EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
by and between
XXXXXX RIVER BANCORP, INC.
XXXXXX RIVER BANK & TRUST COMPANY
and
COHOES BANCORP, INC.
Dated November 24, 2000
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND RULES OF INTERPRETATION
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . .-2-
1.2 Rules of Interpretation. . . . . . . . . . . . . . . . . -10-
ARTICLE II
PLAN OF MERGER
2.1 The Merger . . . . . . . . . . . . . . . . . . . . . . . -11-
2.2 Surviving Corporation. . . . . . . . . . . . . . . . . . -11-
2.3 Conversion of Cohoes Common Stock. . . . . . . . . . . . -12-
2.4 Dissenting Shares/Cohoes-Owned Shares. . . . . . . . . . -12-
2.5 Shareholders Rights, Stock Transfers . . . . . . . . . . -13-
2.6 Exchange Procedures. . . . . . . . . . . . . . . . . . . -13-
2.7 Cohoes Options/Cohoes Restricted Shares. . . . . . . . . -15-
2.8 Closing. . . . . . . . . . . . . . . . . . . . . . . . . -18-
ARTICLE III
UNQUALIFIED REPRESENTATIONS AND WARRANTIES
OF COHOES
3.1 Capital Structure. . . . . . . . . . . . . . . . . . . . -18-
3.2 Registrations. . . . . . . . . . . . . . . . . . . . . . -19-
3.3 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . -19-
3.4 This Agreement . . . . . . . . . . . . . . . . . . . . . -19-
3.5 Financial Statements; No Adverse Change. . . . . . . . . -20-
3.6 Fairness Opinion . . . . . . . . . . . . . . . . . . . . -20-
3.7 Interim Events . . . . . . . . . . . . . . . . . . . . . -20-
3.8 Regulatory Reports . . . . . . . . . . . . . . . . . . . -21-
3.9 Governmental Approvals . . . . . . . . . . . . . . . . . -21-
3.10 No Broker's or Finder's Fees. . . . . . . . . . . . . . -21-
3.11 Equity Holdings . . . . . . . . . . . . . . . . . . . . -22-
3.12 Certain Agreements. . . . . . . . . . . . . . . . . . . -22-
3.13 No Impediments. . . . . . . . . . . . . . . . . . . . . -23-
3.14 Cohoes Officer Severance Plan . . . . . . . . . . . . . -23-
3.15 Proxy Statement Information . . . . . . . . . . . . . . -23-
3.16 Cohoes Restoration Plan . . . . . . . . . . . . . . . . -23-
3.17 Registration Obligations. . . . . . . . . . . . . . . . -24-
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ARTICLE IV
QUALIFIED REPRESENTATIONS AND WARRANTIES
OF COHOES
4.1 Organization and Good Standing . . . . . . . . . . . . . -24-
4.2 Compliance with Law. . . . . . . . . . . . . . . . . . . -24-
4.3 No Violations. . . . . . . . . . . . . . . . . . . . . . -25-
4.4 Litigation and Other Proceedings . . . . . . . . . . . . -25-
4.5 Environmental Matters. . . . . . . . . . . . . . . . . . -25-
4.6 Insurance. . . . . . . . . . . . . . . . . . . . . . . . -26-
4.7 Labor. . . . . . . . . . . . . . . . . . . . . . . . . . -26-
4.8 Indemnification. . . . . . . . . . . . . . . . . . . . . -27-
4.9 Loan Portfolio . . . . . . . . . . . . . . . . . . . . . -27-
4.10 Investment Portfolio. . . . . . . . . . . . . . . . . . -27-
4.11 Defaults. . . . . . . . . . . . . . . . . . . . . . . . -27-
4.12 Real Estate Loans and Investments . . . . . . . . . . . -28-
4.13 Employee Benefit Plans. . . . . . . . . . . . . . . . . -28-
4.14 Liquidation Account . . . . . . . . . . . . . . . . . . -31-
4.15 Tax Matters . . . . . . . . . . . . . . . . . . . . . . -31-
4.16 Derivatives Contracts . . . . . . . . . . . . . . . . . -32-
4.17 Properties. . . . . . . . . . . . . . . . . . . . . . . -32-
4.18 Material Interests of Certain Persons . . . . . . . . . -33-
4.19 Disclosures . . . . . . . . . . . . . . . . . . . . . . -34-
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF XXXXXX AND XXXXXX BANK
5.1 Organization and Good Standing . . . . . . . . . . . . . -34-
5.2 Registrations. . . . . . . . . . . . . . . . . . . . . . -34-
5.3 This Agreement . . . . . . . . . . . . . . . . . . . . . -34-
5.4 Financial Statements . . . . . . . . . . . . . . . . . . -35-
5.5 Fairness Opinion . . . . . . . . . . . . . . . . . . . . -35-
5.6 Regulatory Reports . . . . . . . . . . . . . . . . . . . -35-
5.7 Governmental Approvals . . . . . . . . . . . . . . . . . -35-
5.8 No Impediments . . . . . . . . . . . . . . . . . . . . . -36-
5.9 Proxy Statement Information. . . . . . . . . . . . . . . -36-
5.10 Financial Ability . . . . . . . . . . . . . . . . . . . -36-
ARTICLE VI
COVENANTS AND AGREEMENTS
6.1 Reasonable Best Efforts. . . . . . . . . . . . . . . . . -37-
6.2 Shareholders Meeting . . . . . . . . . . . . . . . . . . -37-
6.3 Regulatory Matters . . . . . . . . . . . . . . . . . . . -37-
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6.4 Investigation and Confidentiality. . . . . . . . . . . . -39-
6.5 Press Releases . . . . . . . . . . . . . . . . . . . . . -40-
6.6 Business of the Parties. . . . . . . . . . . . . . . . . -40-
6.7 Certain Actions. . . . . . . . . . . . . . . . . . . . . -45-
6.8 Current Information. . . . . . . . . . . . . . . . . . . -47-
6.9 Indemnification. . . . . . . . . . . . . . . . . . . . . -47-
6.10 Environmental Reports . . . . . . . . . . . . . . . . . -50-
6.11 Employees and Employee Benefit Plans. . . . . . . . . . -50-
6.12 Litigation Matters. . . . . . . . . . . . . . . . . . . -54-
6.13 Conforming Entries. . . . . . . . . . . . . . . . . . . -54-
6.14 Systems Integration . . . . . . . . . . . . . . . . . . -56-
6.15 Disclosure Supplements. . . . . . . . . . . . . . . . . -56-
6.16 Failure to Fulfill Conditions . . . . . . . . . . . . . -56-
6.17 Proxy Solicitor . . . . . . . . . . . . . . . . . . . . -56-
6.18 Previous Transaction Stock Option Agreements
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -57-
6.19 Organization of Merger Sub. . . . . . . . . . . . . . . -57-
6.20 Liquidated Damages. . . . . . . . . . . . . . . . . . . -57-
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions Precedent - the Parties . . . . . . . . . . . -58-
7.2 Conditions Precedent - Cohoes. . . . . . . . . . . . . . -59-
7.3 Conditions Precedent - Xxxxxx. . . . . . . . . . . . . . -60-
ARTICLE VIII
TERMINATION, WAIVER, AMENDMENT
AND SPECIFIC PERFORMANCE
8.1 Termination. . . . . . . . . . . . . . . . . . . . . . . -61-
8.2 Effect of Termination. . . . . . . . . . . . . . . . . . -62-
8.3 Survival of Representations, Warranties and Covenants. . -62-
8.4 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . -62-
8.5 Amendment or Supplement. . . . . . . . . . . . . . . . . -63-
8.6 Specific Performance . . . . . . . . . . . . . . . . . . -63-
ARTICLE IX
MISCELLANEOUS
9.1 Expenses . . . . . . . . . . . . . . . . . . . . . . . . -64-
9.2 Entire Agreement . . . . . . . . . . . . . . . . . . . . -64-
9.3 No Assignment. . . . . . . . . . . . . . . . . . . . . . -64-
9.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . -65-
9.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . -65-
9.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . -66-
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9.7 Severability . . . . . . . . . . . . . . . . . . . . . . -66-
9.8 Standard of Breach . . . . . . . . . . . . . . . . . . . -66-
9.9 Alternative Structure. . . . . . . . . . . . . . . . . . -66-
EXHIBITS
EXHIBIT A - Cohoes Savings Bank General Severance Plan
EXHIBIT B - Voting Agreement
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is dated as of November 24, 2000, by
and between Xxxxxx, Xxxxxx Bank and Cohoes.
WHEREAS, the Boards of the Parties deem it advisable and in the best
interests of the respective companies and their shareholders to consummate the
Transactions consisting of: (a) the Merger pursuant to which Merger Sub shall
be merged into Cohoes and in connection therewith each share of Cohoes Common
Stock outstanding immediately prior to Effective Time (excluding Dissenting
Shares and Cohoes-Owned Shares) shall be canceled in exchange for the right to
receive the Merger Consideration, (b) the Liquidation pursuant to which Cohoes
shall be liquidated and dissolved by transferring all of its assets and
liabilities to Xxxxxx Bank, and (c) the Bank Merger pursuant to which Cohoes
Bank shall merge into Xxxxxx Bank;
WHEREAS, the Board of Directors of the Parties have approved and adopted
this Agreement and the Merger;
WHEREAS, Xxxxxx and Cohoes have mutually agreed to terminate the Cohoes
Stock Option Agreement as of the date hereof;
WHEREAS, as a material inducement for Xxxxxx and Xxxxxx Bank to enter
into this Agreement, the executive officers, directors and emeritus director
of Cohoes have entered into the Voting Agreement pursuant to which they have
agreed to vote all of the shares of Cohoes Common Stock owned, controlled or
for which they possess voting power in favor of the Merger and the adoption of
this Agreement; and
WHEREAS, the Parties desire to provide for certain undertakings,
conditions, representations, warranties and covenants in connection with the
Transactions.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained and intending to be
legally bound hereby, the Parties do agree as follows:
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ARTICLE I
DEFINITIONS AND RULES OF INTERPRETATION
The following meanings shall apply for purposes of this Agreement.
1.1 Definitions
---------------
"Agreement" means this Agreement and Plan of Merger.
"Alternative Proposal" shall mean any bona fide written proposal by any
person other than Xxxxxx and Xxxxxx Bank to engage in a merger, consolidation,
purchase or lease of substantially all assets, purchase of securities
representing more than 20% of the voting power, or any similar transaction,
involving Cohoes or Cohoes Bank.
"Bank Merger" means the merger of Cohoes Bank into Xxxxxx Bank.
"Bank Merger Effective Time" means the time the Plan of Merger is filed
in the Office of the Superintendent by the Superintendent.
"Board" means the Board of Directors of an entity, or any committee duly
authorized to act on behalf of the Board of Directors of such entity with
respect to the relevant matter.
"Cause" means termination because of the employee's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties or willful violation of
any law, rule or regulation (other than traffic violations or similar
offenses).
"Certificate" means any certificate which immediately prior to the
Effective Time represented shares of Cohoes Common Stock.
"Certificate of Merger" means the certificate of merger to be executed
and filed by Merger Sub and Cohoes with the Secretary of State of the State of
Delaware pursuant to the DGCL to make the Merger effective.
"Claim" has the meaning attributed to it in Section 6.9(a).
"Closing" means the closing of the Transactions.
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"Closing Date" means the date on which the Closing occurs.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cohoes" means Cohoes Bancorp, Inc., a Delaware corporation.
"Cohoes Bank" means Cohoes Savings Bank, a New York chartered savings
bank.
"Cohoes ESOP" means the Cohoes Employee Stock Ownership Plan and Trust
Agreement, as in effect as of the date hereof.
"Cohoes 401(k) Plan" means the Cohoes Savings Bank 401(k) Retirement
Savings Plan and Trust Agreement in RSI Retirement Trust as in effect on the
date hereof.
"Cohoes General Severance Plan" means the Cohoes Savings Bank General
Severance Plan (for non-officer employees) as adopted on the date hereof in
the form of EXHIBIT A hereto.
"Cohoes Officer Severance Plan" means the Cohoes Savings Bank Employee
Severance Compensation Plan as in effect on the date hereof.
"Cohoes Option Plan" means the Cohoes 1999 Stock Option and Incentive
Plan as the same may be amended pursuant to the Previously Disclosed
amendments at the 2000 annual meeting of shareholders of Cohoes.
"Cohoes Options" means options to purchase shares of Cohoes Common Stock
granted under the Cohoes Option Plan.
"Cohoes-Owned Shares" means any shares of Cohoes' Common Stock which are
owned beneficially or of record by any Party or any Subsidiary of a Party
immediately prior to the Effective Time, other than shares held in a fiduciary
capacity for the benefit of third parties or as a result of debts previously
contracted.
"Cohoes Recognition Plan" means the Cohoes 1999 Recognition and
Retention Plan as the same may be amended pursuant to the Previously Disclosed
amendments at the 2000 annual meeting of shareholders of Cohoes.
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"Cohoes Restoration Plan" means the Benefit Restoration Plan of Cohoes
as in effect on the date hereof.
"Cohoes Restricted Shares" means shares of Cohoes Common Stock awarded
under the Cohoes Recognition Plan which are subject to restriction.
"Cohoes Special Bonus" means the special bonus to be paid by Cohoes
Savings Bank immediately prior to the Effective Time to each holder of an
unvested Cohoes Option who (a) is an employee or director of Cohoes Savings
Bank immediately prior to the Effective Time but specifically excluding
Messrs. Xxxxxxxx, Ahl and Xxxxxx and (b) timely executes and delivers to
Xxxxxx cancellation agreements with respect to his or her Substitute Option
and Substitute Restricted Shares.
"Cohoes Stock Option Agreement" means that certain Stock Option
Agreement between Cohoes, as issuer, and Xxxxxx, as grantee, dated April 25,
2000, as amended.
"Common Stock" means the common stock of any entity which has only one
authorized class of common stock.
"CRA" means the Community Reinvestment Act.
"Delivered" means provided by a Party or any of its Subsidiaries to the
other Party or Parties.
"DGCL" means the Delaware General Corporation Law.
"Dissenting Shares" means any shares of Cohoes Common Stock whose holder
becomes entitled to fair value of such shares under the DGCL.
"DOL" means the U.S. Department of Labor.
"Effective Time" means the time that the Merger becomes effective under
the DGCL.
"Employee Plans" means all stock option, restricted stock, employee
stock purchase and stock bonus plans, pension, profit- sharing and retirement
plans, deferred compensation, consultant, bonus and group insurance agreements
and all other incentive, health, welfare and benefit plans and arrangements
maintained for
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the benefit of any present or former directors or employees of Cohoes or any
of its Subsidiaries, whether written or oral.
"Encumbrance" means any lien, claim, charge, restriction, security
interest, rights of third parties, or encumbrance.
"Environmental Claim" means any written notice from any Governmental
Entity or third party alleging potential liability (including potential
liability for investigatory costs, cleanup costs, governmental response costs,
natural resources damages, property damages, personal injuries or penalties)
arising out of, based on, or resulting from the presence, or release into the
environment, of any Materials of Environmental Concern.
"Environmental Laws" means any federal, state or local law, statute,
ordinance, rule, regulation, code, license, permit, authorization, approval,
consent, order, judgment, decree, injunction or agreement with any
Governmental Entity relating to (i) the protection, preservation or
restoration of the environment (including air, water vapor, surface water,
groundwater, drinking water supply, surface soil, subsurface soil, plant and
animal life or any other natural resource), and/or (ii) the use, storage,
recycling, treatment, generation, transportation, processing, handling,
labeling, production, release or disposal of Materials of Environmental
Concern. The term Environmental Law includes (x) the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
Section 9601, et seq; the Resource Conservation and Recovery Act, as amended,
42 U.S.C. Section 6901, et seq; the Clean Air Act, as amended, 42 U.S.C.
Section 7401, et seq; the Federal Water Pollution Control Act, as amended, 33
U.S.C. Section 1251, et seq; the Toxic Substances Control Act, as amended, 15
U.S.C. Section 9601, et seq; the Emergency Planning and Community Right to Know
Act, 42 U.S.C. Section 1101, et seq; the Safe Drinking Water Act, 42 U.S.C.
Section 300f, et seq; and all comparable state and local laws, and (y) any
common law (including common law that may impose strict liability) that may
impose liability or obligations for injuries or damages due to, or threatened
as a result of, the presence of or exposure to any Materials of Environmental
Concern.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" has the meaning set forth in Section 4.13(f).
-5-
"ERISA Affiliate Plan" has the meaning set forth in Section 4.13(f).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Agent" means an exchange agent designated by Xxxxxx or Xxxxxx
Bank and reasonably acceptable to Cohoes.
"Exchange Ratio" means a number equal to the quotient of $19.50 and the
average closing sale price of a share of Xxxxxx Common Stock as reported on
the Nasdaq Stock Market, or any other nationally recognized stock exchange, on
the most recent trading day prior to the day that the Effective Time occurs.
"FDIA" means the Federal Deposit Insurance Act, as amended.
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"FHLB" means the Federal Home Loan Bank of New York.
"Financial Advisor" means Xxxxx, Xxxxxxxx & Xxxxx, Inc. with respect to
Cohoes, and Sandler X'Xxxxx & Partners, L.P. with respect to Xxxxxx and Xxxxxx
Bank.
"Financial Statements" means both the Annual Financial Statements and
Interim Financial Statements of Cohoes or Xxxxxx, whichever is applicable.
(a) "Financial Reports" means the consolidated balance sheets,
consolidated statements of income and statements of changes in
shareholders' equity and cash flows, including any related notes and
schedules.
(b) "Annual Financial Statements" means all the Financial
Reports filed by Cohoes or Xxxxxx, whichever is applicable, in its most
recent annual report under the Securities Laws.
(c) "Interim Financial Statements" means the Financial Reports
filed by Cohoes or Xxxxxx, whichever is applicable, in all of its
quarterly reports under the Securities Laws since the filing of its most
recent Annual Financial Statements.
-6-
"GAAP" means generally accepted accounting principles applied
consistently with prior practices.
"Governmental Entity" means any federal or state court, administrative
agency or commission or other governmental authority or instrumentality.
"HOLA" means the Home Owners' Loan Act, as amended.
"Xxxxxx" means Xxxxxx River Bancorp, Inc., a Delaware corporation.
"Xxxxxx Bank" means Xxxxxx River Bank & Trust Company, a New York
chartered savings bank.
"Xxxxxx Proposal" has the meaning set forth in Section 6.7(b).
"Xxxxxx Stock Option Agreement" means that certain Stock Option
Agreement between Xxxxxx, as issuer, and Cohoes, as grantee, dated April 25,
2000, as amended.
"Indemnified Liabilities" has the meaning attributed to it in Section
6.9(a).
"Indemnified Parties " has the meaning attributed to it in Section
6.9(a).
"Insider Loans" means loans from Cohoes or any of its Subsidiaries to
any of its officers, directors or employees or any associate or related
interest of any such person.
"IRS" means the Internal Revenue Service or any successor thereto.
"Knowledge Qualification" means to the best knowledge, after reasonable
investigation, of the Party receiving the benefit of the qualification.
"Liquidation" means the liquidation and dissolution of Cohoes pursuant
to which all of the assets and liabilities of Cohoes shall be transferred to
Xxxxxx Bank.
"Material Adverse Effect" means, (a) in the case of Cohoes, any effect
that is material and adverse to the condition
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(financial or otherwise), results of operations or business of Cohoes and
Cohoes Bank, taken as a whole, or that materially impairs the ability of
Cohoes or Cohoes Bank to consummate any of the Transactions, provided,
however, that a Material Adverse Effect shall not be deemed to include the
impact of (i) changes in laws and regulations or interpretations thereof that
are generally applicable to the banking or savings institution industries,
(ii) changes in GAAP that are generally applicable to the banking or savings
institution industries, (iii) expenses incurred in connection with this
Agreement and the Transactions, (iv) actions or omissions of Cohoes or Cohoes
Bank taken with the prior informed written consent of Xxxxxx or Xxxxxx Bank
in contemplation of the Transactions or (v) changes attributable to or
resulting from changes in general economic conditions generally affecting
financial institutions, including changes in the prevailing level of interest
rates; and (b) in the case of Xxxxxx Bank, any effect that materially impairs
the ability of Xxxxxx Bank to make payment at the Effective Time of the
aggregate Merger Consideration or otherwise materially impairs the ability of
Xxxxxx or Xxxxxx Bank to consummate any of the Transactions.
"Materials of Environmental Concern" means pollutants, contaminants,
wastes, toxic substances, petroleum and petroleum products and any other
materials regulated under Environmental Laws.
"Merger" means the merger of Merger Sub into Cohoes, with Cohoes being
the surviving corporation.
"Merger Consideration" means $19.50, without interest, for each share of
Cohoes Common Stock that is outstanding immediately prior to the Effective
Time (but excluding Dissenting Shares and Cohoes-Owned Shares).
"Merger Sub" means a Delaware corporation to be formed and wholly owned
by Xxxxxx Bank as a transitory Subsidiary to effectuate the Merger.
"OTS" means the Office of Thrift Supervision of the U.S. Department of
the Treasury or any successor thereto.
"Party" means Cohoes, Xxxxxx, Xxxxxx Bank or Merger Sub, after it
becomes a party to this Agreement, whichever is applicable.
-8-
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Plan of Bank Merger" means the plan of merger to be entered into by
Cohoes Bank and Xxxxxx Bank to effectuate the Bank Merger.
"Pension Plan" has the meaning set forth in Section 4.13(c).
"Previously Disclosed" means disclosed in a written disclosure schedule
delivered on or prior to the date hereof by Cohoes to Xxxxxx or Xxxxxx Bank
specifically referring to the appropriate section of this Agreement and
describing in reasonable detail the matters contained therein.
"Previous Transaction Stock Option Agreements" means the Cohoes Stock
Option Agreement and the Xxxxxx Stock Option Agreement.
"Proxy Statement" means the proxy statement, together with any
supplements thereto, to be delivered to the holders of Cohoes Common Stock in
connection with the solicitation of their adoption of this Agreement.
"Regulatory Reports" means all reports, including Securities Documents,
which a Party or any of its Subsidiaries is required to file with any banking
or thrift Governmental Entity or the SEC.
"Rights" means all warrants, options, rights, convertible securities and
other arrangements or commitments which obligate an entity to issue or dispose
of any of its capital stock or other ownership interests.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended."
"Securities Documents" means all reports, offering circulars, proxy
statements, registration statements and all similar documents filed, or
required to be filed, pursuant to the Securities Laws.
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"Securities Laws" means the Securities Act; the Exchange Act; the
Investment Company Act of 1940, as amended; the Investment Advisers Act of
1940, as amended; the Trust Indenture Act of 1939, as amended; and the rules
and regulations of the SEC promulgated thereunder.
"Subsidiary" when used with respect to any Party means any entity,
whether incorporated or unincorporated, which is consolidated with such Party
for financial reporting purposes.
"Substitute Option" has the meaning set forth in Section 2.7(b).
"Substitute Restricted Shares" has the meaning set forth in Section
2.7(c).
"Superintendent" means the Superintendent of Banks of the State of New
York.
"Superior Offer" has the meaning set forth in Section 6.7(d).
"Thrift Regulations" means the banking laws of the State of New York,
the FDIA, the HOLA and the rules and regulations promulgated thereunder.
"Transactions" means the Merger, Liquidation and Bank Merger.
"Voting Agreement" means that certain agreement entered into between
Xxxxxx and the executive officers, directors and emeritus directors of Cohoes
on the date hereof in the form of EXHIBIT B hereto.
1.2 Rules of Interpretation
---------------------------
The captions contained in this Agreement are for reference purposes only
and are not part of this Agreement. All provisions of this Agreement are
subject to applicable law and to the other terms and conditions of this
Agreement. No provision of this Agreement shall be construed to require a
party or its affiliate to take any action which would violate applicable law.
The word "accurate" includes the concept "true and complete."
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The word "agreement" includes every sort of contract, commitment, or
understanding, whether written or oral.
The word "authority" includes the concept "all requisite power and
authority."
The word "authorized" includes the concepts "duly approved and
authorized," "adopted," "advised," and any other similar term which may be
required by law.
All forms of the verb "include" includes the concept "without
limitation."
With respect to any securities, "outstanding" means "issued and
outstanding."
ARTICLE II
PLAN OF MERGER
2.1 The Merger
--------------
At the Effective Time, Merger Sub shall be merged into Cohoes. The
separate corporate existence of Merger Sub shall cease, Cohoes shall be the
surviving corporation, and Cohoes shall continue its corporate existence
under the DGCL.
2.2 Surviving Corporation
-------------------------
(a) The name of the surviving corporation shall be "Cohoes
Bancorp, Inc.
(b) The Certificate of Incorporation and Bylaws of Cohoes as in
effect immediately prior to the Effective Time shall be the Certificate
of Incorporation and Bylaws of Cohoes, as the surviving corporation, at
and after the Effective Time, until thereafter altered, amended or
repealed in accordance with Delaware law.
(c) The directors and officers of Merger Sub immediately prior
to the Effective Time shall be the directors and officers of Cohoes, as
the surviving corporation, at and after the Effective Time, each to hold
office until his or her successor is elected and qualified or otherwise
in accordance with the Certificate of
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Incorporation and Bylaws of Cohoes, as the surviving corporation.
2.3 Conversion of Cohoes Common Stock
-------------------------------------
At the Effective Time, by virtue of the Merger and without any action on
the part of the Parties or the holders of Common Stock of the Parties, the
following shall occur:
(a) each share of Cohoes Common Stock outstanding immediately
prior to the Effective Time shall cease to be outstanding and shall be
converted into the right to receive the Merger Consideration, except as
provided in Section 2.4;
(b) each share of Xxxxxx Common Stock outstanding immediately
prior to the Effective Time shall remain an outstanding share of Xxxxxx
Common Stock at and after the Effective Time; and
(c) each share of Merger Sub Common Stock outstanding
immediately prior to the Effective Time shall be converted into and
become one share of Cohoes Common Stock.
2.4 Dissenting Shares/Cohoes-Owned Shares
-----------------------------------------
(a) Any holders of Dissenting Shares shall be entitled to payment
for such shares only to the extent permitted by and in accordance with
the DGCL; provided, however, that if any holder of Dissenting Shares
shall forfeit such right to payment, such shares shall thereupon be
deemed to have been converted into and to have become exchangeable for,
as of the Effective Time, the right to receive the Merger Consideration
from Xxxxxx Bank without interest. Dissenting Shares shall not, after
the Effective Time, be entitled to vote for any purpose or receive any
dividends or other distributions and shall be entitled only to such
rights as are afforded in respect of Dissenting Shares pursuant to the
DGCL.
(b) Cohoes shall give Xxxxxx or Xxxxxx Bank (i) prompt notice of
any written objections to the Merger and any written demands for the
payment of the fair value of any shares, withdrawals of such demands,
and any other instruments served upon or received by Cohoes pursuant to
Section 262 of the DGCL and (ii) the opportunity to
-12-
participate in all negotiations and proceedings with respect to such
demands under the DGCL. Cohoes shall not voluntarily make any payment
with respect to any demands for payment of fair value and shall not,
except with the prior written consent of Xxxxxx or Xxxxxx Bank, settle
or offer to settle any such demands.
(c) Any Cohoes-Owned Shares shall cease to exist at the
Effective Time, the Certificates for such shares shall as promptly as
practicable be canceled, such shares shall not be converted into the
Merger Consideration, and no cash or other consideration shall be issued
or exchanged therefor.
2.5 Shareholders Rights, Stock Transfers
----------------------------------------
At the Effective Time, holders of Certificates shall cease to be and
shall have no rights as shareholders of Cohoes, other than such rights as they
may have under the DGCL. After the Effective Time, there shall be no
transfers on the stock transfer books of Cohoes of Certificates and if
Certificates are presented for transfer after the Effective Time, they shall
be delivered to the Exchange Agent or Xxxxxx Bank for cancellation against
delivery of the Merger Consideration. No interest shall be paid on the Merger
Consideration.
2.6 Exchange Procedures
-----------------------
(a) No later than five business days following the Effective
Time, Xxxxxx Bank shall cause the Exchange Agent to mail or make
available to each holder of record any Certificate a notice and letter
of transmittal disclosing the effectiveness of the Merger and the
procedure for exchanging Certificates for the Merger Consideration.
Such letter of transmittal shall specify that delivery shall be effected
and risk of loss and title shall pass only upon proper delivery of
Certificates to the Exchange Agent.
(b) At or prior to the Effective Time, or at such other time or
times as the Exchange Agent may otherwise request, Xxxxxx Bank shall
deliver to the Exchange Agent for the benefit of the holders of
Certificates (other than the holders of Dissenting Shares and Cohoes-
Owned Shares) an amount of cash equal to the aggregate Merger
Consideration
-13-
for payment of the aggregate Merger Consideration to such holders of
Certificates.
(c) Each holder of any outstanding Certificate (other than
holders of Dissenting Shares and Cohoes-Owned Shares) who surrenders
such Certificate to the Exchange Agent will, upon acceptance thereof by
the Exchange Agent, be entitled to the Merger Consideration. The
Exchange Agent shall accept Certificates upon compliance with such
reasonable terms and conditions as the Exchange Agent may impose to
effect an orderly exchange in accordance with normal exchange practices.
Each outstanding Certificate which is not surrendered to the Exchange
Agent shall, except as provided in Section 2.4, evidence ownership of
only the right to receive the Merger Consideration without interest.
(d) The Exchange Agent shall not be obligated to deliver the
Merger Consideration until the holder surrenders a Certificate as
provided in this Section 2.6, or, in default thereof, an appropriate
affidavit of loss and indemnity agreement and/or a bond as may be
required in each case by the Exchange Agent or Xxxxxx Bank. If any
check is to be issued in a name other than that in which the Certificate
is registered, it shall be a condition of the issuance thereof that the
Certificate so surrendered shall be properly endorsed or accompanied by
an executed form of assignment separate from the Certificate and
otherwise in proper form for transfer and that the person requesting
such exchange pay to the Exchange Agent any transfer or other tax
required by reason of the issuance of a check in any name other than
that of the registered holder of the Certificate surrendered or
otherwise establish to the satisfaction of the Exchange Agent that such
tax has been paid or is not payable.
(e) Any portion of the cash delivered to the Exchange Agent by
Xxxxxx Bank pursuant to Section 2.6(b) that remains unclaimed by the
former shareholders of Cohoes for six months after the Effective Time
shall be delivered by the Exchange Agent to Xxxxxx Bank. Any
shareholders of Cohoes who have not theretofore complied with Section
2.6(c) shall thereafter look only to Xxxxxx Bank for the Merger
Consideration. If outstanding Certificates are not surrendered or the
payment for them is not claimed prior to the date on which such payment
would otherwise escheat to or
-14-
become the property of any Governmental Entity, the unclaimed items
shall, to the extent permitted by abandoned property and any other
applicable law, become the property of Xxxxxx Bank (and to the extent
not in its possession shall be delivered to it), free and clear of all
claims or interest of any person previously entitled to such property.
Neither the Exchange Agent nor any of the Parties shall be liable to any
holder of Cohoes Common Stock represented by any Certificate for any
consideration paid to a public official pursuant to applicable abandoned
property, escheat or similar laws. Xxxxxx Bank and the Exchange Agent
shall be entitled to rely upon the stock transfer books of Cohoes to
establish the identity of those persons entitled to receive the Merger
Consideration, which books shall be conclusive with respect thereto.
(f) The Exchange Agent or Xxxxxx Bank shall be entitled to
deduct and withhold from the Merger Consideration otherwise payable
pursuant to this Agreement to any holder of Certificates such amounts as
it is required to deduct and withhold with respect to the making of such
payment under the Code, or any provision of state, local or foreign tax
law. To the extent that amounts are so withheld by the Exchange Agent
or Xxxxxx Bank, such withheld amounts shall be treated for all purposes
of this Agreement as having been paid to the holder of the Certificates
in respect of which such deduction and withholding was made.
2.7 Cohoes Options/Cohoes Restricted Shares
-------------------------------------------
(a) At the Effective Time, each Cohoes Option granted pursuant
to the Cohoes Option Plan that is then vested, outstanding and
unexercised shall be canceled, and in lieu thereof the holder of such
Cohoes Option shall be paid in cash an amount equal to the product of
(i) the number of shares of Cohoes Common Stock subject to such vested
option at the Effective Time and (ii) the amount by which the Merger
Consideration exceeds the exercise price per share of such Cohoes
Option, net of any cash which must be withheld under federal and state
income and employment tax requirements.
(b) At the Effective Time, each Cohoes Option granted pursuant
to the Cohoes Option Plan that is then unvested and outstanding will be
converted into an option (the
-15-
"Substitute Option") to purchase shares of Xxxxxx Common Stock under the
same terms and provisions of the Cohoes Option Plan and the underlying
stock option agreement by which the Cohoes Option is evidenced
(including the vesting schedule), which plan and agreement shall be
assumed by Xxxxxx, except that the Substitute Option shall represent the
right to purchase (when and to the extent it becomes exercisable and
during the exercise period) a number of shares of Xxxxxx Common Stock
(rounded to the nearest whole share) equal to the product of (i) the
number of shares of Cohoes Common Stock subject to the Cohoes Option
being converted and (ii) the Exchange Ratio. The exercise price for
each share of Xxxxxx Common Stock subject to the Substitute Option shall
be adjusted by dividing the per share exercise price contained in the
Cohoes Option by the Exchange Ratio (rounded to the nearest cent).
(c) At the Effective Time, all of the Cohoes Restricted Shares
of a holder awarded pursuant to the Cohoes Recognition Plan that are
then outstanding will be converted into restricted shares of Xxxxxx
Common Stock (the "Substitute Restricted Shares") under the same terms
and provisions of the Cohoes Recognition Plan and the underlying award
agreement by which the Cohoes Restricted Shares are evidenced (including
the vesting schedule), which plan and agreement shall be assumed by
Xxxxxx, except that the Substitute Restricted Shares shall represent a
number of shares of Xxxxxx Common Stock (rounded to the nearest whole
share) equal to the product of (i) the number of Cohoes Restricted
Shares of the holder and (ii) the Exchange Ratio.
(d) At least 25 days prior to the Effective Time, each holder of
an unvested Cohoes Option will be offered the opportunity to enter into
a cancellation agreement with Xxxxxx with respect to the Substitute
Option to be received by the holder pursuant to Section 2.7(b). The
cancellation agreement shall provide that Xxxxxx shall pay to the holder
of the Substitute Option on the first business day following the day the
Effective Time occurs, in cancellation of the Substitute Option of the
holder, a cash amount, by check, equal to (i) the number of options to
purchase shares of Xxxxxx Common Stock that vest on July 2, 2001
multiplied by the quotient of $7.43750 and the Exchange Ratio (provided
this subpart (i) shall only apply if the Effective Time occurs prior to
July 2, 2001), plus (ii) the number of options to purchase shares of
Xxxxxx Common Stock that vest on July 2, 2002 multiplied by the quotient
of $6.01707 and the Exchange Ratio, plus (iii) the number of options to
purchase shares of Xxxxxx Common Stock that vest on July 2, 2003
multiplied by the quotient of $4.63411 and the Exchange Ratio, plus (iv)
the number of
-16-
options to purchase shares of Xxxxxx Common Stock that vest on July 2,
2004 multiplied by the quotient of $3.28596 and the Exchange Ratio, less
any cash which must be withheld under applicable federal and state
income and employment tax requirements. In order to accept the
aforesaid offer, the holder of an unvested Cohoes Option must execute
and deliver the cancellation agreement to Xxxxxx no later than the 15th
day after it is provided to the holder by Xxxxxx, time being of the
essence. Accordingly, Xxxxxx shall not be obligated to abide by its
offer herein to any holder of an unvested Cohoes Option who does not
timely provide his or her executed cancellation agreement to Xxxxxx.
(e) At least 25 days prior to the Effective Time, each holder of
Cohoes Restricted Shares will be offered the opportunity to enter into a
cancellation agreement with Xxxxxx with respect to the Substitute
Restricted Shares to be received by the holder pursuant to Section
2.7(c). The cancellation agreement shall provide that Xxxxxx shall pay
to the holder of the Substitute Restricted Shares on the first business
day following the day the Effective Time occurs, in cancellation of the
Substitute Restricted Shares of the holder, a cash amount, by check,
equal to (i) the number of Substitute Restricted Shares that vest on
July 2, 2001 multiplied by the quotient of $19.50 and the Exchange Ratio
(provided this subpart (i) shall only apply if the Effective Time occurs
prior to July 2, 2001), plus (ii) the number of Substitute Restricted
Shares that vest on July 2, 2002 multiplied by the quotient of $15.77584
and the Exchange Ratio, plus (iii) the number of Substitute Restricted
Shares that vest on July 2, 2003 multiplied by the quotient of $12.14993
and the Exchange Ratio, plus (iv) the number of Substitute Restricted
Shares that vest on July 2, 2004 multiplied by the quotient of $8.61530
and the Exchange Ratio, plus (v) the amount of the accrued but unpaid
cash dividends on the Cohoes Restricted Shares of the holder, less any
cash which must be withheld under applicable federal and state income
and employment tax requirements. In order to accept the aforesaid
offer, the
-17-
holder of Cohoes Restricted Shares must execute and deliver
the cancellation agreement to Xxxxxx no later than the 15th day after it
is provided to the holder by Xxxxxx, time being of the essence.
Accordingly, Xxxxxx shall not be obligated to abide by its offer herein
to any holder of Cohoes Restricted Shares who does not timely provide
his or her executed cancellation agreement to Xxxxxx.
(f) Notwithstanding the foregoing, each director and executive
officer of Cohoes and Cohoes Bank will execute and deliver to Xxxxxx
within 15 business days of the date hereof (i) a cancellation agreement
with respect to his or her Substitute Option and (ii) a cancellation
agreement with respect to his or her Substitute Restricted Shares.
2.8 Closing
-----------
Within 30 days following the satisfaction or waiver of all the
conditions set forth in Article VII(other than the delivery of certificates,
opinions and other instruments and documents to be furnished at Closing), the
Closing shall take place on a date and at a time and place designated in
writing by Xxxxxx or Xxxxxx Bank. The Parties shall use their best efforts to
cause all of the Transactions to be completed on the Closing Date with the
Merger and Liquidation occurring simultaneously and the Bank Merger occurring
immediately thereafter.
ARTICLE III
UNQUALIFIED REPRESENTATIONS AND WARRANTIES
OF COHOES
As of the date hereof, Cohoes represents and warrants to Xxxxxx and
Xxxxxx Bank as follows:
3.1 Capital Structure
---------------------
(a) Its authorized capital stock consist of 25,000,000 shares of
Cohoes Common Stock of which 7,911,985 are outstanding (inclusive of
Cohoes Restricted Shares) and 1,623,240 are held by it as treasury
shares, and 5,000,000 shares of preferred stock, none of which are
outstanding or held as treasury shares of outstanding shares of Cohoes
Common Stock have been duly authorized and validly issued,
-18-
are fully paid and nonassessable, and have not been issued in violation
of the preemptive rights of any person.
(b) Its outstanding Rights consist solely of Cohoes Options.
There are outstanding (i) Rights to acquire 858,305 shares of Cohoes
Common Stock and 275,262 Cohoes Restricted Shares. It has Previously
Disclosed a schedule of its Rights and Cohoes Restricted Shares that
includes the name of each optionee and holder of Restricted Shares, the
number of options held by each optionee, the number of shares of
Restricted Shares held by each holder thereof, the exercise price of
each option and the vesting date of each option and each of the
Restricted Shares.
3.2 Registrations
-----------------
It is duly registered as a savings and loan holding company under the
HOLA and is registered under the Exchange Act.
3.3 Subsidiaries
----------------
It has Previously Disclosed a list of all its Subsidiaries. All
outstanding shares or ownership interests of its Subsidiaries are validly
issued, fully paid, nonassessable and owned beneficially and of record by it
or one of its Subsidiaries free and clear of any Encumbrance. There are no
Rights authorized, issued or outstanding with respect to any of its
Subsidiaries. All eligible accounts of Cohoes Bank are insured by the FDIC to
the maximum extent permitted by law.
3.4 This Agreement
------------------
(a) It has authority to enter into this Agreement, and any other
documents and instruments that are to be executed by it in connection
with the Transactions and, subject to any necessary approvals from
Governmental Entities and/or its shareholders, to consummate the
Transactions.
(b) Its Board has authorized the execution, delivery and
performance of this Agreement and the consummation of the Transactions.
It has properly executed and delivered this Agreement. Its obligations
under this Agreement are valid and binding upon it, and this Agreement
does not violate its Certificate of Incorporation, Bylaws, or any
-19-
law, judgment or order of any Governmental Entity applicable to it.
(c) No "business combination," "moratorium," "control share" or
other state anti-takeover statute or regulation prohibits, restricts or
subjects to any material condition its ability to perform its
obligations under this Agreement.
3.5 Financial Statements; No Adverse Change
-------------------------------------------
Its Financial Statements have been prepared in accordance with GAAP,
fairly present its consolidated financial position, and contain adequate
reserves for losses. Since the period covered by its most recent Annual
Financial Statements prior to the date hereof, it and its Subsidiaries have
conducted their businesses only in the ordinary course and, except as
Previously Disclosed, it has not suffered a Material Adverse Effect. Except as
disclosed in such Annual Financial Statements or as otherwise Previously
Disclosed, no circumstances exist that could reasonably be expected to result
in a Material Adverse Effect to it. It and its Subsidiaries have no
liabilities, known or unknown, asserted or unasserted, absolute, contingent or
otherwise, that are required under GAAP to be reflected in audited financial
statements or the notes thereto which are not reflected in its Annual
Financial Statements other than liabilities incurred in the ordinary course of
business since such date.
3.6 Fairness Opinion
--------------------
It has received an opinion from its Financial Advisor to the effect that
Merger Consideration is fair, from a financial point of view, to its
shareholders.
3.7 Interim Events
------------------
Except as Previously Disclosed, since its most recent Interim Financial
Statements neither it nor any of its Subsidiaries paid or declared any
dividend (other than its regular quarterly cash dividend) or made any other
distribution to shareholders or taken any action (other than loan
originations) which if taken after the date hereof would require the prior
written consent of Xxxxxx or Xxxxxx Bank hereunder.
-20-
3.8 Regulatory Reports
----------------------
The Regulatory Reports filed by it and its Subsidiaries during the past
three years, as filed or amended, complied with applicable requirements of law
and, as of their respective dates or the dates as amended, did not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
3.9 Governmental Approvals
--------------------------
No approval of, or filing with, any Governmental Entity is required by
it or any of its Subsidiaries for the consummation of the Transactions except
for:
(a) any filings or approvals under the Thrift Regulations;
(b) the clearance of the Proxy Statement;
(c) the filing of the Certificate of Merger;
(d) the filing of the Plan of Bank Merger; and
(e) any anti-trust filings or approvals.
It is not aware of any reasons relating to it or any of its Subsidiaries
why such consents and approvals should not be granted, free of any conditions
or requirements which would be unduly burdensome to Xxxxxx or Xxxxxx Bank or
which would materially reduce the value of the Transactions to Xxxxxx.
3.10 No Broker's or Finder's Fees
---------------------------------
No agent, broker, investment banker, person or firm acting on behalf of
it or any of its Subsidiaries will be entitled to any fee or commission in
connection with the Transactions, except for its Financial Advisor. It has
Previously Disclosed the engagement letter that it entered into with its
Financial Advisor which sets forth all of the fees and expenses to be paid to
its Financial Advisor in connection with the Transactions.
-21-
3.11 Equity Holdings
--------------------
Except as Previously Disclosed, neither it nor any of its Subsidiaries
own more than 2% of the capital stock or other equity securities (including
securities convertible or exchangeable into such securities) of or more than
2% of the aggregate profit participations in any entity other than a
Subsidiary.
3.12 Certain Agreements
-----------------------
Except as Previously Disclosed or for agreements, arrangements,
commitments and understandings which are not material in the aggregate,
neither it nor any of its Subsidiaries is a party to, is bound or affected by,
or receives or is obligated to pay benefits (other than those that relate to
benefits which previously have been fully accrued as a liability or expensed
and for which there is no future financial reporting obligation) under:
(a) any agreement, arrangement or commitment, including any
agreement, indenture or other instrument, relating to the borrowing of
money(other than in the case of deposits, FHLB advances and federal
funds purchased) or the guarantee of any obligation;
(b) any agreement, arrangement or commitment relating to the
employment of a consultant or the employment, election or retention in
office of any present or former director, advisory director, officer or
employee;
(c) any agreement, arrangement or understanding pursuant to which
any payment (whether of severance pay or otherwise) is or may become due
to any present or former director, advisory director, officer or
employee;
(d) any agreement, arrangement or understanding pursuant to which
any present or former director, advisory director, officer, employee or
agent is entitled to indemnification;
(e) any agreement, arrangement or understanding which limits its
or any of its Subsidiaries freedom to compete in any line of business or
with any person;
-22-
(f) any agreement, arrangement or understanding which would be
required to be filed as an exhibit to its Annual Report on Form 10-K
under the Exchange Act and which has not been so filed;
(g) any agreement pursuant to which loans have been sold, which
impose any potential recourse obligations (by representation, warranty,
covenant or other contractual terms) upon it or any of its Subsidiaries;
or
(h) any subservicing agreement.
3.13 No Impediments
-------------------
Except as Previously Disclosed, neither it nor any of its Subsidiaries
has taken or agreed to take any action, nor does it have knowledge of any fact
or circumstance, that would materially impede or delay the consummation of the
Transactions or the ability of the Parties to obtain any approval of any
Governmental Entity required for consummation of the Transactions or to
perform their covenants and agreements under this Agreement.
3.14 Cohoes Officer Severance Plan
----------------------------------
All current participants and all persons who may become participants in
the Cohoes Officer Severance Plan prior to the Effective Time have been
Previously Disclosed.
3.15 Proxy Statement Information
--------------------------------
None of the information relating to it or any of its Subsidiaries which
is included in the Proxy Statement, as of the date such Proxy Statement is
mailed to its shareholders and up to and including the date of the meeting of
its shareholders to which such Proxy Statement relates, will contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, provided that information as of a later date shall
be deemed to modify information as of an earlier date.
3.16 Cohoes Restoration Plan
----------------------------
Upon the termination of the Cohoes ESOP and Cohoes 401(k) Plan as of the
Effective Time in accordance with Sections 6.11(e)
-23-
and 6.11(f), none of Cohoes, any Cohoes Subsidiary or any of their respective
successors in interest will have any obligation to make further contributions
to or awards of benefits under the Cohoes Restoration Plan. No participant
in the Cohoes Restoration Plan will receive any contribution or benefit award
under the Cohoes Restoration Plan as a result of the aforesaid termination of
the Cohoes ESOP and Cohoes 401(k) Plan.
3.17 Registration Obligations
-----------------------------
It is not under any obligation, contingent or otherwise, which will
survive the Effective Time to register any of its securities under the
Securities Act or other federal or state securities laws or regulations.
ARTICLE IV
QUALIFIED REPRESENTATIONS AND WARRANTIES
OF COHOES
As of the date hereof, except as Previously Disclosed and subject to the
standard set forth in Section 9.8, Cohoes as to itself and separately as to
each of its Subsidiaries, represents and warrants to Xxxxxx and Xxxxxx Bank as
follows:
4.1 Organization and Good Standing
----------------------------------
It is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has authority to own, operate and
lease its assets and properties and to carry on its business. It is qualified
to do business and is in good standing in each jurisdiction where the
character of its assets or the nature of its business requires it to be
qualified. It has Delivered accurate copies of its organizational documents,
bylaws and other governing documents as currently in effect. Its minute books
contain complete and accurate records of all meetings and other actions taken
by its shareholders, owners, Board, or committees of its Board. Its stock
ledgers or other ownership ledgers reflect all transactions in its capital
stock or ownership interests, since its inception.
4.2 Compliance with Law
-----------------------
(a) It is in compliance with all laws, regulations, ordinances,
rules, judgments, orders or decrees applicable to its operations and
business.
-24-
(b) It has all permits, licenses, certificates of authority,
orders and approvals of, and has made all filings, applications and
registrations with, all Governmental Entities that are required in order
to permit it to carry on its business as it is presently being
conducted.
(c) It has not received in the last three years any notification
or communication from any Governmental Entity or the staff thereof
asserting that it was not in compliance with any statutes, regulations
or ordinances, threatening to revoke any license, franchise, permit or
authorization; or threatening or contemplating any enforcement action.
(d) It is not required to give prior notice to any regulatory
agency of the proposed addition of an individual to its board of
directors or the employment of an individual as a senior executive
officer.
4.3 No Violations
-----------------
Neither the execution of this Agreement nor the consummation of the
Transactions will result in any violation, breach, termination, default or
loss of a material benefit under, or permit the acceleration of any obligation
under, or require the consent of a third party under, or result in the
creation of any Encumbrance on any of the property or assets under, any of its
agreements or other instruments.
4.4 Litigation and Other Proceedings
------------------------------------
It is not a defendant in nor is any of its property subject to any
pending (or, subject to the Knowledge Qualification, threatened), claim,
action, suit, investigation or proceeding or subject to any judicial order,
judgment or decree.
4.5 Environmental Matters
-------------------------
(a) It is in compliance with all Environmental Laws. It has not
received any communication alleging that it is not in such compliance
and, subject to the Knowledge Qualification, there are no present
circumstances that would prevent or interfere with the continuation of
such compliance.
-25-
(b) Subject to the Knowledge Qualification, none of the
properties owned, leased or operated by it has been or is in violation of
or liable under any Environmental Law.
(c) Subject to the Knowledge Qualification, there are no past or
present actions, activities, circumstances, conditions, events or
incidents that could reasonably form the basis of any Environmental
Claim or other claim or action or governmental investigation that could
result in the imposition of any liability against or obligation on the
part of it or any person or entity whose liability or obligation for any
Environmental Claim it has or may have retained or assumed either
contractually or by operation of law.
(d) It has not conducted (i) any phase one environmental
investigations during the past three years (other than in connection
with loan originations or purchases) or (ii) any phase two environmental
investigations during the past five years, in each case, with respect to
any properties owned by it, leased by it or securing loans held by it.
4.6 Insurance
-------------
It is insured for reasonable amounts with financially sound and
reputable insurance companies against such risks as companies or institutions
engaged in a similar business would, in accordance with good business
practice, customarily be insured and has maintained all insurance required by
its agreements and applicable laws and regulations. It has not, during the
past five years, had an insurance policy canceled or non-renewed or been
denied any insurance coverage for which it has applied.
4.7 Labor
---------
No work stoppage involving it is pending or, subject to the Knowledge
Qualification, threatened. It is not involved in or, subject to the Knowledge
Qualification, threatened with or affected by, any labor dispute,
discrimination or sexual harassment claims, arbitration, lawsuit or
administrative proceeding involving any of its current or former employees.
It is not a party to any collective bargaining agreement.
-26-
4.8 Indemnification
-------------------
Subject to the Knowledge Qualification, no action or failure to take
action by any present or former director, advisory director, officer, employee
or agent of it has occurred which would give rise to a claim or a potential
claim by any such person for indemnification from it.
4.9 Loan Portfolio
------------------
Each loan reflected as an asset on its Annual Financial Statements and
each loan originated or acquired thereafter is evidenced by appropriate and
sufficient documentation and constitutes a legal, valid and binding obligation
of the obligor named therein, enforceable in accordance with its terms, except
to the extent that the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles
or doctrines. All such loans are free and clear of any Encumbrance, other than
the lien of the FHLB. It has no loan or other asset that has been classified
by examiners or others as "Other Loans of Concern," "Substandard," "Doubtful"
or "Loss." It has Previously Disclosed a complete list of the real estate
acquired by it through foreclosure, repossession or deed in lieu thereof which
are currently held by it.
4.10 Investment Portfolio
-------------------------
All investment securities held by it are carried on its financial books
and records in accordance with GAAP. Except for pledges to secure public and
trust deposits, none of its investment securities are subject to any
restriction, whether contractual or statutory, which materially impairs its
ability to freely dispose of such investment securities at any time, other
than those restrictions imposed on securities held to maturity under GAAP.
4.11 Defaults
-------------
There has not been any default in any obligation to be performed by it
under any agreement and it has not waived any material right under any
agreement. Subject to the Knowledge Qualification, no other party to any
agreement is in default in any obligation to be performed by such party.
-27-
4.12 Real Estate Loans and Investments
--------------------------------------
Except for properties acquired by it in settlement of loans, there are
no facts, circumstances or contingencies known to it which exist and would
require a reduction under GAAP in the present carrying value of any of its
real estate investments, joint ventures, construction loans, other investments
or other loans (either individually or in the aggregate with its other loans
and investments).
4.13 Employee Benefit Plans
---------------------------
(a) It has Previously Disclosed all Employee Plans (other than
those that relate to benefits which previously have been fully accrued
as a liability or expensed and for which there is no future financial
reporting obligation) and has heretofore delivered accurate copies of
each (including amendments and agreements relating thereto) together
with, in the case of qualified plans, (i) the most recent financial
reports and actuarial reports prepared with respect thereto, (ii) the
most recent annual reports filed with any Governmental Entity with
respect thereto, and (iii) all rulings and determination letters and any
open requests for rulings or letters that pertain thereto.
(b) Each Employee Plan has been operated and administered in
accordance with its terms and with applicable law, including, to the
extent applicable, ERISA, the Code, the Securities Act, the Exchange
Act, the Age Discrimination in Employment Act, and the regulations or
rules promulgated thereunder; and all filings, disclosures and notices
required by ERISA, the Code, the Securities Act, the Exchange Act, the
Age Discrimination in Employment Act and any other applicable law have
been timely made.
(c) Each Employee Plan which is an "employee pension benefit
plan" within the meaning of Section 3(2) of ERISA (a "Pension Plan") and
which is intended to be qualified under Section 401(a) of the Code has
received a favorable determination letter (including a determination
that the related trust under such Pension Plan is exempt from tax under
Section 501(a) of the Code) from the IRS, and it is not aware of any
circumstances likely to result in revocation of any such favorable
determination letter.
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(d) There is no pending or, subject to the Knowledge
Qualification, threatened legal action, suit or claim relating to any
Employee Plan (other than routine claims for benefits) or against any
related trust thereto or fiduciary thereof.
(e) It has not engaged in a transaction, or omitted to take any
action, with respect to any Employee Plan that has or would reasonably
be expected to subject it to a tax or penalty imposed by either Section
4975 of the Code or Section 502 of ERISA, assuming for purposes of
Section 4975 of the Code that the taxable period of any such transaction
expired as of the date hereof.
(f) No liability (other than for payment of premiums to the PBGC
which have been made or will be made on a timely basis) under Title IV
of ERISA has been or is expected to be incurred by it with respect to
any ongoing, frozen or terminated "single-employer plan", within the
meaning of Section 4001(a)(15) of ERISA, currently or formerly
maintained by it, or any single-employer plan of any entity (an "ERISA
Affiliate") which is considered one employer with it under Section
4001(a)(14) of ERISA or Section 414(b) or (c) of the Code (an "ERISA
Affiliate Plan").
(g) Neither it nor any ERISA Affiliate has contributed, or has
been obligated to contribute, to a multiemployer plan under Subtitle E
of Title IV of ERISA at any time since September 26, 1980.
(h) No notice of a "reportable event", within the meaning of
Section 4043 of ERISA for which the 30-day reporting requirement has not
been waived, has been required to be filed for any Employee Plan or by
any ERISA Affiliate Plan within the 12-month period ending on the date
hereof. The PBGC has not instituted proceedings to terminate any
Pension Plan or ERISA Affiliate Plan and, subject to the Knowledge
Qualification, no condition exists that presents a risk that such
proceedings will be instituted by the PBGC.
(i) There is no pending investigation or enforcement action by
the PBGC, DOL or IRS or any other Governmental Entity with respect to
any Employee Plan.
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(j) All contributions required to be made under the terms of any
Employee Plan or ERISA Affiliate Plan have been timely made.
(k) Neither any Pension Plan nor any ERISA Affiliate Plan has an
"accumulated funding deficiency" (whether or not waived) within the
meaning of Section 412 of the Code or Section 302 of ERISA and all
required payments to the PBGC with respect to each Pension Plan or ERISA
Affiliate Plan have been made on or before their due dates.
(l) Neither it nor any ERISA Affiliate (i) has provided, or
would reasonably be expected to be required to provide, security to any
Pension Plan or to any ERISA Affiliate Plan pursuant to
Section 401(a)(29) of the Code, or (ii) has taken any action, or omitted
to take any action, that has resulted, or would reasonably be expected
to result, in the imposition of an Encumbrance under Section 412(n) of
the Code or pursuant to ERISA.
(m) It is not currently a sponsor of or a participating employer
in any Pension Plan that is a defined benefit plan.
(n) It has no obligation to provide retiree health and life
insurance or other retiree death benefits under any Employee Plan, other
than benefits mandated by Section 4980B of the Code. There has been no
communication to its employees that would reasonably be expected to
promise or guarantee such employees retiree health or life insurance or
other retiree death benefits.
(o) Except as Previously Disclosed with respect to parachute
payments to be made to Messrs. Xxxxxxxx and Ahl, it has neither made any
payments, nor is obligated to make any payments by virtue of the
consummation of any of the Transactions or any termination of employment
in connection therewith, nor is a party to any agreement or any Employee
Plan, that under any circumstances could obligate it or its successor to
make payments or deemed payments that (i) are not or will not be
deductible because of Sections 162(m) or 280G of the Code or (ii) would
require Xxxxxx or any of its Subsidiaries to record any charge or
expense therefor (or any tax gross-up payments) for financial reporting
purposes on a post-acquisition basis.
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4.14 Liquidation Account
------------------------
In the case of Cohoes Bank, the liquidation account established by it in
connection with its conversion from mutual to stock form has been maintained
since its establishment in accordance with applicable laws and the records
with respect to said account are accurate.
4.15 Tax Matters
----------------
(a) It has timely filed all federal, state and local (and, if
applicable, foreign) income, franchise, bank, excise, real property,
personal property and other tax returns and reports required by
applicable law to be filed by it(including estimated tax returns, income
tax returns, information returns and withholding and employment tax
returns) and has paid, or where payment is not required to have been
made, has set up adequate reserves or accruals for the payment of, all
taxes in respect of the periods covered by such returns and reports and,
as of the Effective Time, will have paid, or where payment is not
required to have been made will have set up adequate reserves or
accruals for the payment of, all taxes for any subsequent periods ending
on or prior to the Effective Time. It will not have any liability for
any such taxes in excess of the amounts so paid or reserves or accruals
so established.
(b) All federal, state and local (and, if applicable, foreign)
income, franchise, bank, excise, real property, personal property and
other tax returns and reports filed by it are accurate and complete. It
is either not delinquent in the payment of any tax, assessment or
governmental charge or has requested an extension of time without
penalty within which to file any tax returns or reports in respect of
any fiscal year or portion thereof. Its federal, state and local tax
returns and reports that are open to audit have not been audited by the
applicable tax authorities and no deficiencies for any tax, assessment
or governmental charge have been proposed, asserted or assessed
(tentatively or otherwise) against it which have not been settled and
paid. There are currently no agreements in effect as to it to extend the
period of limitations for the assessment or collection of any tax. No
audit, examination or deficiency or refund litigation with respect to
any of its returns or
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reports is pending or, subject to the Knowledge Qualification,
threatened.
(c) It (i) is not a party to any agreement providing for the
allocation or sharing of taxes, (ii) is not required to include in
income any adjustment pursuant to Section 481(a) of the Code or by
reason of any change in accounting method (nor does it have any
knowledge that the IRS has proposed any such adjustment or change of
accounting method) and (iii) has not filed a consent pursuant to Section
341(f) of the Code or agreed to have Section 341(f)(2) of the Code
apply.
(d) It has withheld amounts from its employees, shareholders, and
holders of public deposit accounts in compliance with the tax
withholding provisions of applicable federal, state and local laws, has
filed all federal, state and local returns and reports for all periods
for which such returns or reports would be due with respect to income
tax withholding, social security, unemployment taxes, income and other
taxes and all payments or deposits with respect to such taxes have been
timely made.
4.16 Derivatives Contracts
--------------------------
It is not a party to and has not agreed to enter into any
exchange-traded or over-the-counter swap, forward, future, option, cap, floor
or collar financial contract or any other contract not included in Cohoes'
Annual Financial Statement which is a derivatives contract (including various
combinations thereof) and it does not own any securities that are identified
in OTS Thrift Bulletin No. 65 or otherwise referred to as structured notes.
4.17 Properties
---------------
(a) All real and personal property owned by it or presently used
by them it is in good condition (ordinary wear and tear excepted) and
are sufficient to carry on its business in the ordinary course
consistent with past practices. It has good and marketable title free
and clear of all Encumbrances (other than equitable rights of redemption
laws relating to property acquired in foreclosure) to all of its
properties and assets, real and personal, except
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(i) liens for current taxes not yet due or payable,
(ii) pledges to secure deposits,
(iii) such imperfections of title, easements and
non-monetary Encumbrances affecting real property, if any, which
do not adversely affect the value or use of such real property,
and
(iv) any monetary Encumbrances, reflected in Cohoes'
Annual Financial Statements.
(b) All real and personal property that is leased or licensed
by it is held pursuant to leases or licenses which are valid and
enforceable in accordance with their respective terms and no such lease
or license will terminate or lapse prior to the Effective Time or
thereafter by reason of completion of the Transactions. All improved
real property owned or leased by it or any of its Subsidiaries is in
compliance in all material respects with all applicable laws including
zoning laws.
4.18 Material Interests of Certain Persons
------------------------------------------
(a) None of its officers, directors or employees or any
"associate" (as such term is defined in Rule 14a-1 under the Exchange
Act) or related interest of any such persons has any material interest
in any material agreement or property (real or personal, tangible or
intangible), used in, or pertaining to, its business.
(b) Except as set forth in the Cohoes proxy statement for its
most recent annual meeting of the shareholders, there are no outstanding
Insider Loans. All outstanding Insider Loans were made in the ordinary
course of business and on substantially the same terms as those
prevailing at the time for comparable transactions with third parties
and were, with respect to executive officers and directors, approved by
its Board in accordance with applicable law and regulations.
-33-
4.19 Disclosures
----------------
None of the representations and warranties pursuant to Articles III and
IV hereof or any of the information Previously Disclosed or Delivered by it or
on its behalf, contains any untrue statement of a material fact, or omits to
state any material fact required to be stated or necessary to make any such
information, in light of the circumstances, not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF XXXXXX AND XXXXXX BANK
As of the date hereof, Xxxxxx and Xxxxxx Bank, jointly and severally,
represent and warrant to Cohoes as follows:
5.1 Organization and Good Standing
----------------------------------
It is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has authority to own, operate and
lease its assets and properties and to carry on its business. It is qualified
to do business and is in good standing in each jurisdiction where the
character of its assets or the nature of its business requires it to be
qualified. It has Delivered accurate copies of its organizational documents,
bylaws and other governing documents as currently in effect.
5.2 Registrations
-----------------
Xxxxxx is duly registered as a savings and loan holding company under
the HOLA and is registered under the Exchange Act.
5.3 This Agreement
------------------
(a) It has authority to enter into this Agreement, and any other
documents and instruments that are to be executed by it in connection
with the Transactions and, subject to any necessary approvals from
Governmental Entities, to consummate the Transactions.
(b) Its Board has authorized the execution, delivery and
performance of this Agreement and the consummation of the Transactions.
It has properly executed and delivered this Agreement. Its obligations
under this Agreement are valid and binding upon it, and this Agreement
does not
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violate its Certificate of Incorporation or Charter, Bylaws, or any law,
judgment or order of any Governmental Entity applicable to it.
(c) No "business combination," "moratorium," "control share" or
other state anti-takeover statute or regulation prohibits, restricts or
subjects to any material condition its ability to perform its
obligations under this Agreement.
5.4 Financial Statements
------------------------
The Financial Statements of Xxxxxx have been prepared in accordance with
GAAP, fairly present its consolidated financial position, and contain adequate
reserves for losses. It has not suffered a Material Adverse Effect. No
circumstance exists that could reasonably be expected to result in a Material
Adverse Effect to it.
5.5 Fairness Opinion
--------------------
It has received an opinion from its Financial Advisor to the effect that
Merger Consideration is fair, from a financial point of view, to it and its
shareholders.
5.6 Regulatory Reports
----------------------
The Regulatory Reports filed by it and its Subsidiaries during the past
three years, as filed or amended, complied with applicable requirements of law
and, as of their respective dates or the dates as amended, did not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
5.7 Governmental Approvals
--------------------------
No approval of, or filing with, any Governmental Entity is required by
it for the consummation of the Transactions except for:
(a) any filings or approvals under the Thrift Regulations;
(b) the filing of the Certificate of Merger;
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(c) the filing of the Plan of Bank Merger; and
(d) any anti-trust filings or approvals;
It is not aware of any reasons relating to it why such consents and
approvals should not be granted, free of any conditions or requirements which
would be unduly burdensome to it or which would materially reduce the value of
the Transactions to it.
5.8 No Impediments
------------------
It has not taken or agreed to take any action, nor does it have
knowledge of any fact or circumstance, that would materially impede or delay
the consummation of the Transactions or the ability of the Parties to obtain
any approval of any Governmental Entity required for consummation of the
Transactions or to perform their covenants and agreements under this
Agreement.
5.9 Proxy Statement Information
-------------------------------
None of the information relating to it or any of its Subsidiaries which
is supplied by it in writing for inclusion in the Proxy Statement, as of the
date such Proxy Statement is mailed to the shareholders of Cohoes and up to
and including the date of the meeting of the shareholders of Cohoes to which
such Proxy Statement relates, will contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, provided that information as of a later date shall be deemed to
modify information as of an earlier date.
5.10 Financial Ability
----------------------
At the Effective Time, Xxxxxx Bank will have sufficient cash funds to
pay the aggregate Merger Consideration and will use such funds for the
payment of the Merger Consideration subject to the completion of the
Transactions in accordance with the terms of this Agreement. Xxxxxx Bank
is, and will be immediately following completion of the Transactions, in
material compliance with all capital, debt, and financial and nonfinancial
provisions applicable to it, under the Thrift Regulations.
-36-
ARTICLE VI
COVENANTS AND AGREEMENTS
6.1 Reasonable Best Efforts
---------------------------
Subject to the terms and conditions of this Agreement, each of the
Parties (i) shall use its reasonable best efforts in good faith to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary or advisable under applicable laws and regulations so as to permit
and otherwise enable completion of the Transactions as promptly as reasonably
practicable, and (ii) shall cooperate fully with each other to that end.
Consistent with the foregoing, prior to Closing (or earlier if necessary to
facilitate the Transactions), Cohoes shall take all necessary action to delete
Section 7 of the Charter of Cohoes Bank.
6.2 Shareholders Meeting
------------------------
Cohoes shall take all action necessary to properly call and convene a
meeting of its shareholders as soon as practicable after the date hereof to
consider and vote upon the adoption of this Agreement. The Board of Cohoes
has agreed as of the date hereof to recommend to its shareholders that they
vote in favor of the adoption of this Agreement. The Board of Cohoes will
continue to make such favorable recommendation, provided that the Board of
Cohoes may fail to continue to make such recommendation, or withdraw, modify
or change such recommendation, if it has determined in good faith, after the
receipt of advice from its outside counsel, that the making of such
recommendation would result in a breach of its fiduciary duties to the
shareholders of Cohoes under applicable Delaware law.
6.3 Regulatory Matters
----------------------
(a) The Parties shall promptly cooperate with each other in the
preparation of the Proxy Statement to be filed by Cohoes with the SEC
and after the SEC has cleared the Proxy Statement, Cohoes shall promptly
mail the Proxy Statement to its shareholders.
(b) The Parties shall cooperate with each other and use their
reasonable best efforts to promptly prepare and file within 30 days
after the date hereof or as soon thereafter as is reasonably
practicable, all necessary
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documentation, to effect all applications (including applications of
Merger Sub), notices, petitions and filings, and to obtain as promptly
as practicable all permits, consents, approvals and authorizations of all
Governmental Entities and third parties which are necessary or advisable
to consummate the Transactions; provided however, nothing herein shall
require the Board of Cohoes to solicit proxies from Cohoes' shareholders
or make any other communications to such shareholders to vote for
adoption of this Agreement, if such Board has determined pursuant to
Section 6.2 that it can no longer favorably recommend adoption of this
Agreement to the Cohoes' shareholders. Each Party shall have the right
to review in advance, and to the extent practicable each will consult
with the other on, in each case subject to applicable laws relating to
the exchange of information, all the information which appears in any
filing made by another Party or written materials submitted by another
Party to any third party or any Governmental Entity in connection with
the Transactions. In exercising the foregoing right, each Party shall
act reasonably and as promptly as practicable. The Parties agree that
they will consult with each other with respect to the obtaining of all
permits, consents, approvals and authorizations of all third parties and
Governmental Entities necessary or advisable to consummate the
Transactions and each Party will keep the other Parties apprised of the
status of matters relating to completion of the Transactions. The
Parties agree that they will use their reasonable best efforts to cause
the Closing Date to occur by April 30, 2001.
(c) Each Party shall, upon the request of another Party, furnish
to such other Party all information concerning itself and its
Subsidiaries, their respective present and former directors and officers,
the shareholders of Cohoes and such other matters as may be reasonably
necessary or advisable in connection with any statement, filing, notice
or application made by or on behalf of a Party or any of its Subsidiaries
to any Governmental Entity in connection with the Transactions.
(d) Each Party shall promptly furnish the other Parties with
copies of written communications received from, or delivered to, any
Governmental Entity in respect of the Transactions.
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6.4 Investigation and Confidentiality
-------------------------------------
(a) Cohoes shall, and shall cause its Subsidiaries to, permit
Xxxxxx and Xxxxxx Bank and their representatives reasonable access to
their properties and personnel, and shall disclose and make available to
them, upon reasonable request, all books, papers and records relating to
their assets, stock or other ownership records, properties, operations,
obligations and liabilities, including all books of account (including
the general ledger), tax records, minute books of meetings of boards of
directors (and any committees thereof) and shareholders, organizational
documents, bylaws, material contracts and agreements, filings with any
Governmental Entity, accountants' work papers, litigation files, loan
files, plans affecting employees, and any other business activities or
prospects in which Xxxxxx or Xxxxxx Bank may have a reasonable interest,
provided that such access and any such reasonable request shall be
reasonably related to the Transactions and shall not unduly interfere
with the normal operations of Cohoes and its Subsidiaries. Cohoes shall
make its, and shall cause Cohoes Bank to make its, directors, officers,
employees and agents and authorized representatives (including counsel
and independent public accountants) available to confer with Xxxxxx or
Xxxxxx Bank and its representatives, provided that such access shall be
reasonably related to the Transactions and shall not unduly interfere
with Cohoes' and Cohoes Bank's normal operations.
(b) All information furnished previously in connection with the
Transactions or pursuant to this Agreement shall be treated as the sole
property of the Party furnishing the information until completion of the
Transactions and, if the Transactions shall not be completed, the Party
receiving the information shall either destroy or return to the Party
which furnished such information all documents or other materials
containing, reflecting or referring to such information, shall use its
best efforts to keep confidential all such information, and shall not
directly or indirectly use such information for any competitive or other
commercial purposes. The obligation to keep such information confidential
shall continue for two years from the date the Transactions are abandoned
but shall not apply to (i) any information which (A) the Party receiving
the information can establish was already in its possession prior to the
-39-
disclosure thereof by the Party furnishing the information; (B) was then
generally known to the public; or (C) became known to the public through
no fault of the Party receiving the information; or (ii) disclosures
pursuant to a legal requirement or in accordance with an order of a
court of competent jurisdiction, provided that the Party which is the
subject of any such legal requirement or order shall use its best
efforts to give the Party, at least ten business days' prior notice
thereof.
6.5 Press Releases
------------------
Xxxxxx and Cohoes shall agree with each other as to the form and
substance of any press release related to this Agreement or the Transactions,
and consult with each other as to the form and substance of other public
disclosures which may relate to the Transactions provided, however, that
nothing contained herein shall prohibit either of them, following notification
to the other, from making any disclosure which it believes is required by law
or regulation.
6.6 Business of the Parties
---------------------------
(a) During the period from the date of this Agreement and
continuing until the Effective Time, except as expressly contemplated or
permitted by this Agreement or with the prior written consent of Xxxxxx
or Xxxxxx Bank, Cohoes shall, and shall cause each of its Subsidiaries
to, carry on its business only in the ordinary course consistent with
past practice. During such period, Cohoes will, and will cause
each of its Subsidiaries to, use all reasonable efforts to (x) preserve
its business organization intact, (y) keep available the present
services of its employees and (z) preserve the goodwill of its customers
and others with whom it has business relationships. Without limiting the
generality of the foregoing, except with the prior written consent of
Xxxxxx or Xxxxxx Bank (which consent shall not be unreasonably withheld
or delayed with respect to subparts (vi), (ix) and (xv)) or as expressly
contemplated hereby, between the date hereof and the Effective Time,
neither Cohoes nor any of its Subsidiaries shall:
(i) declare, set aside, make or pay any dividend or
other distribution (whether in cash, stock or property or
any combination thereof) in
-40-
respect of its capital stock, except for (A) the declaration and
payment of regular quarterly cash dividends by Cohoes in an amount
not in excess of $0.08 per outstanding share of Cohoes Common Stock
with usual record and payment dates for such dividends
consistent with the past dividend practices of Cohoes and
(B) the declaration and payment of cash dividends by Cohoes
Bank to Cohoes to facilitate the payment of any cash
dividend by Cohoes pursuant to clause (A) above or any other
cash payments to be made by Cohoes pursuant to or as
contemplated by this Agreement;
(ii) issue any shares of its capital stock, other
than upon exercise of Cohoes Options referred to in Section
3.1 hereof; issue, grant, modify or authorize any Rights
other than a modification pursuant to the Previously
Disclosed amendments to the Cohoes Option Plan approved by
Cohoes' shareholders at Cohoes' 2000 annual meeting of
shareholders; purchase any shares of its capital stock or
ownership interests; or effect any recapitalization,
reclassification, stock dividend, stock split or like change
in capitalization;
(iii) except for the deletion of Section 7 of the
Charter of Cohoes Bank, amend its Certificate of
Incorporation, Charter, Bylaws or similar organizational
documents; or waive or release any material right or cancel
or compromise any material debt or claim;
(iv) increase the rate of compensation of or benefits
to any of its directors, officers or employees, or pay or
agree to pay any bonus or severance to, or provide any other
new benefit or incentive to, any of its directors, officers
or employees, except (A) compensation increases and bonus
payments as may be required pursuant to Previously Disclosed
commitments existing on the date hereof, and in the case of
Previously Disclosed bonuses the amounts accrued therefor
through December, 2000 may be paid in December, 2000 and
unpaid amounts accrued immediately before
-41-
the Closing may be paid on the Closing Date, (B) the Cohoes Special
Bonus to the persons and in the amounts Previously Disclosed if
such persons are employees or directors of Cohoes Bank
immediately prior to the Effective Time,(C) as may be
required by law; or (D) merit increases to rank and file
employees consistent with past practices;
(v) enter into or, except as may be required by law,
modify any Employee Plan other than a modification pursuant
to the Previously Disclosed amendments to the Cohoes Option
Plan and the Cohoes Recognition Plan approved by Cohoes'
shareholders at Cohoes' 2000 annual meeting of shareholders;
(vi) originate or purchase (A) any brokered loan not
pursuant to a commitment Previously Disclosed and existing
on the date hereof, (B) any unsecured loan in excess of
$50,000,(C) any loan secured by a first trust or mortgage on
a one- to four-family residential property in excess of
$250,000, (D) any loan secured by a first trust or mortgage
on commercial real property in excess of $400,000, or (E) any other
loan in excess of $100,000;
(vii) except as otherwise permitted hereunder, enter
into (A) any agreement for the purchase, sale, transfer,
Encumbrance or other disposition of any properties or assets
(other than real estate acquired in foreclosure (or by deed
in lieu thereof) or repossessed assets, in each case, with a
carrying value on Cohoes' Financial Reports of less than
$300,000 individually),(B) any other transaction, agreement,
arrangement or commitment not made in the ordinary course of
business, (C) any agreement, indenture or other instrument
relating to the borrowing of money or guarantee of any
obligations, except for deposits, FHLB advances not to
exceed six months to maturity, federal funds purchased and
securities sold under agreements to repurchase in the
ordinary course of business consistent with past practice,
(D) any
-42-
agreement, arrangement or commitment relating to the
employment of an employee or consultant, or amend any such
existing agreement, arrangement or commitment; or (E) any
contract, agreement or understanding with a labor union;
(viii) change any of its methods of accounting,
except as required by changes in laws or regulations or
GAAP, or change any of its methods of reporting income and
deductions for federal income tax purposes from those
employed in the preparation of its last federal income tax
return, except as required by changes in laws or
regulations;
(ix) enter into or renew any lease of real or
personal property or any service contract; or fail to give
any required notice to prevent a lease or service contract
from being renewed; or make any capital expenditures in
excess of $25,000 individually or $50,000 in the aggregate,
other than pursuant to binding commitments Previously
Disclosed and existing on the date hereof and expenditures
necessary to maintain existing assets in good repair;
(x) enter into or agree to enter into any agreement,
arrangement or commitment described in Section 3.12(b) -
(h);
(xi) file any applications or make any contract with
respect to branching or site location or relocation;
(xii) purchase any security or acquire in any manner
whatsoever (other than to realize upon collateral for a
defaulted loan) control over or any equity interest in any
business or entity, other than marketable securities (which
do not exceed 1% of the securities outstanding within such
class) in the ordinary course of business;
(xiii) except with respect to real estate acquired in
foreclosure (or by deed in lieu thereof) or repossessed assets,
enter or agree to enter into any
-43-
agreement or arrangement granting any preferential right to
purchase any of its assets or rights or requiring the consent of
any party to the transfer and assignment of any such assets or
rights;
(xiv) except as necessitated in the reasonable opinion
of Cohoes Bank due to changes in interest rates, and in
accordance with safe and sound banking practices, change or
modify in any material respect any of its lending,
investment, or deposit gathering policies, except to the
extent required by law or an applicable regulatory
authority;
(xv) enter into any futures contract, option
contract, interest rate caps, interest rate floors, interest
rate exchange agreement or other agreement for purposes of
hedging the exposure of its interest-earning assets and
interest-bearing liabilities to changes in market rates of interest;
(xvi) take any action that would cause any of the
representations and warranties of Cohoes contained in this
Agreement not to be true and correct in any material respect
at the Effective Time or that would cause any of the
conditions of Section 7.1 or 7.3 hereof not to be satisfied;
(xvii) voluntarily take any action that would
materially impede or delay the completion of the Transactions or the
ability of the Parties to perform their covenants and agreements
under this Agreement; or
(xviii) agree to do any of the foregoing.
(b) Except with the prior written consent of Cohoes or as
expressly contemplated hereby, between the date hereof and the Effective
Time, neither Xxxxxx nor Xxxxxx Bank shall:
(i) take any action that would cause any of its
representations and warranties contained in this Agreement not to
be true and correct in any material respect at the Effective Time
or that would cause any
-44-
of the conditions of Section 7.1 or 7.2 hereof not to be satisfied;
(ii) voluntarily take any action that would materially
impede or delay the completion of the Transactions or its ability
to perform its covenants and agreements under this Agreement; or
(iii) agree to do any of the foregoing.
(c) Each Party shall promptly notify the other Parties in
writing of the occurrence of any matter or event known to and directly
involving it, that could have, either individually or in the aggregate,
a Material Adverse Effect upon it.
6.7 Certain Actions
-------------------
(a) Neither Cohoes nor any of its Subsidiaries or any of their
respective officers, directors, employees, representatives or agents
shall solicit or encourage inquiries or proposals with respect to,
furnish any information relating to, or participate in any negotiations
or discussions concerning, any Alternative Proposal, provided, however,
that the Board of Cohoes may furnish such information or participate in
such negotiations or discussions if it, after having consulted with and
considered the advice of outside counsel and its Financial Advisor, has
determined in good faith that the failure to do the same would result in
a breach of the fiduciary duties of such Board to Cohoes' shareholders
under applicable Delaware law. Cohoes will promptly inform Xxxxxx or
Xxxxxx Bank orally and in writing of any such request for information or
of any such negotiations or discussions, as well as instruct its and its
Subsidiaries directors, officers, representatives and agents to refrain
from taking any action prohibited by this Section 6.7. In no event may
Cohoes provide any information to a third party that it has not provided
to Xxxxxx or Xxxxxx Bank.
(b) In the event that the Board of Cohoes determines in good
faith, after consultation with its Financial Advisor and upon advice
from outside counsel, that it has received a Superior Offer (as defined
below), it shall notify Xxxxxx in writing of its intent to terminate
this Agreement and
-45-
concurrently with or after such termination cause Cohoes to enter into
an acquisition agreement with respect to, or recommend acceptance of,
the Superior Offer. Such notice shall specify all of the terms and
conditions of such Superior Offer and identify the person making such
Superior Offer. Xxxxxx shall have five business days to evaluate and
respond to the Cohoes notice. If Xxxxxx notifies Cohoes in writing
prior to the expiration of the five business day period provided above
that it or Xxxxxx Bank shall increase the Merger Consideration to an
amount at least equal to that of such Superior Offer (the "Xxxxxx
Proposal"), then Cohoes shall not be permitted to enter into an
acquisition agreement with respect to, or permit its Board to
recommend acceptance to its shareholders of, such Superior Offer.
Such notice by Xxxxxx shall specify the new Merger Consideration.
Cohoes shall have five business days to evaluate the Xxxxxx Proposal.
(c) In the event the Superior Offer involves consideration to
Cohoes' shareholders consisting of securities, in whole or in part, a
Xxxxxx Proposal shall be deemed to be at least equal to the Superior
Offer, if the Xxxxxx Proposal offers cash Merger Consideration that
equals or exceeds the consideration being offered to Cohoes'
shareholders in the Superior Offer valuing any securities forming a part
of the Superior Offer at its cash equivalent based upon (a) the average
trading price of such securities for the 20 trading days immediately
preceding the date of the Xxxxxx Proposal or (b) the written valuation
of such securities by a nationally recognized investment banking firm
selected by Xxxxxx(who shall not be Xxxxxx'x Financial Advisor) if such
securities are not traded on a nationally recognized exchange or will be
newly issued securities that are not of a class then trading on a
nationally recognized exchange. Any written valuation shall be attached
as an Exhibit to the Xxxxxx Proposal.
(d) In the event that the Board of Cohoes determines in good
faith, upon the advice of its Financial Advisor and outside counsel,
that the Xxxxxx Proposal is not at least equal to the Superior Offer,
Cohoes can terminate this Agreement in order to execute an acquisition
agreement with respect to, or to allow its Board to adopt a resolution
recommending acceptance to the Cohoes' shareholders of, the Superior
Offer as provided in Section 8.1(g). For purposes
-46-
of this Agreement, a "Superior Offer" means any bona fide proposal,
including a tender offer, made by a third party to acquire, directly or
indirectly, for consideration consisting of cash and/or securities, more
than 40% of the voting power of the shares of Cohoes or Cohoes Bank
Common Stock then outstanding or all or substantially all the assets of
Cohoes or Cohoes Bank and provides consideration to the Cohoes'
shareholders which the Board of Cohoes determines in its good faith
judgment (based on the advice of its Financial Advisor) to be materially
more favorable than the Merger Consideration and for which third-party
financing, to the extent required, is then firmly committed.
6.8 Current Information
-----------------------
During the period from the date hereof to the Effective Time, Cohoes
shall, upon the request of Xxxxxx, cause one or more of its designated
representatives to confer on a monthly or more frequent basis with
representatives of Xxxxxx regarding Cohoes' consolidated financial condition,
operations and business and matters relating to the completion of the
Transactions. As soon as reasonably available, but in no event more than two
business days after filing, Cohoes will deliver to Xxxxxx or Xxxxxx Bank all
reports and documents including Securities Documents filed by it or Cohoes
Bank with the SEC or under the Thrift Regulations subsequent to the date
hereof. Within 45 days after the end of each month, Cohoes will deliver to
Xxxxxx or Xxxxxx Bank an unaudited consolidated balance sheet and an unaudited
consolidated statement of income, without related notes, for such month
prepared in accordance with GAAP.
6.9 Indemnification
-------------------
(a) After the Effective Time, Xxxxxx shall indemnify, defend and
hold harmless each person who is now, or who has been at any time before
the date hereof or who becomes before the Effective Time, an officer or
director of Cohoes or any of its Subsidiaries(the "Indemnified Parties")
against all losses, claims, damages, costs, expenses (including
attorney's fees), liabilities or judgments or amounts that are paid in
settlement (which settlement shall require the prior written consent of
Xxxxxx, which consent shall not be unreasonably withheld) of or in
connection with any claim, action, suit, proceeding or investigation,
whether civil, criminal, or administrative (each a "Claim"),
-47-
in which an Indemnified Party is, or is threatened to be made, a party
or a witness based in whole or in part on or arising in whole or in part
out of the fact that such person is or was a director or officer of
Cohoes or any of its Subsidiaries if such Claim pertains to any matter
or fact arising, existing or occurring before the Effective Time
(including, without limitation, the Transactions, regardless of whether
such Claim is asserted or claimed before, or at or after, the Effective
Time (the "Indemnified Liabilities"), to the fullest extent permitted
under applicable state law or the Thrift Regulations, whichever is
applicable, in effect as of the date hereof or as amended applicable to a
time before the Effective Time and under the Certificate of
Incorporation, Charter or Bylaws of Cohoes or any of its Subsidiaries,
whichever is applicable, as in effect on the date hereof. Xxxxxx shall pay
expenses in advance of the final disposition of any such action or
proceeding to each Indemnified Party to the fullest extent permitted by
applicable state law or the Thrift Regulations, whichever is applicable,
in effect on the date hereof or as amended applicable to a time before
the Effective Time upon receipt of any undertaking required by applicable
state law or the Thrift Regulations. Any Indemnified Party wishing to
claim indemnification under this Section 6.9(a), upon learning of any
Claim, shall notify Xxxxxx (but the failure so to notify Xxxxxx shall
not relieve it from any liability which it may have under this Section
6.9(a)except to the extent such failure materially prejudices Xxxxxx)
and shall deliver to Xxxxxx any undertaking required by applicable state
law or the Thrift Regulations, whichever is applicable. Xxxxxx shall
ensure, to the extent permitted under applicable state law or the
Thrift Regulations, whichever is applicable, that all limitations of
liability existing in favor of the Indemnified Parties as provided in
the Certificate of Incorporation, Charter or Bylaws of Cohoes or any of
its Subsidiaries(as the case may be), as in effect on the date hereof,
or allowed under applicable state law or the Thrift Regulations,
whichever is applicable, as in effect on the date hereof or as such law
or regulation may be amended applicable to a time before the Effective
Time, with respect to Indemnified Liabilities shall survive the
consummation of the Transactions.
(b) From and after the Effective Time, the directors, and
officers of Cohoes and its Subsidiaries who become
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directors or officers of Xxxxxx or its Subsidiaries, shall have
indemnification rights having prospective application with respect to
acts or omissions occurring after the Effective Time. The prospective
indemnification rights shall consist of such rights to which directors
and officers of Xxxxxx or its Subsidiaries, whichever is applicable, are
entitled to under the provisions of the Certificate of Incorporation,
Charter or Bylaws of Xxxxxx or its Subsidiaries, whichever is applicable,
as in effect from time to time after the Effective Time, and the
provisions of applicable state law and the Thrift Regulations, whichever
is applicable, as in effect from time to time after the Effective Time.
(c) For a period of six years from and after the Effective Time,
Xxxxxx shall cause to be maintained in effect the current policies of
directors' and officers' liability insurance maintained by Cohoes and
its Subsidiaries (provided that Xxxxxx may substitute therefor policies
from a financially capable insurer of at least the same coverage and
amount containing terms and conditions which are substantially no less
advantageous, or in the event such coverage is provided through Xxxxxx'x
insurer it may be on terms and conditions (other than coverage and
amounts) consistent with Xxxxxx'x current coverage), or in lieu thereof
single limit tail coverage for such period (which shall be purchased by
Cohoes immediately prior to Closing upon the request of Xxxxxx), with
respect to claims arising from facts or events which occurred before the
Effective Time. Following the Effective Time, the directors and
officers of Xxxxxx and its Subsidiaries shall be covered by the
directors' and officers' liability insurance maintained by Xxxxxx and/or
its Subsidiaries, whichever is applicable.
(d) The obligations of Xxxxxx provided under paragraphs (a), (b)
and (c) of this Section 6.9 are intended to be enforceable against
Xxxxxx directly by the Indemnified Parties and shall be binding on all
successors and permitted assigns of Xxxxxx.
-49-
6.10 Environmental Reports
--------------------------
If requested by Xxxxxx or Xxxxxx Bank within 20 days of the date hereof
(or within 10 days after Xxxxxx or Xxxxxx Bank is informed of the permitted
acquisition or lease of any real property by Cohoes or any of its Subsidiaries
after the date hereof), Cohoes shall provide to Xxxxxx or Xxxxxx Bank, as soon
as reasonably practicable, but not later than 30 days from the receipt by
Cohoes of the request of Xxxxxx or Xxxxxx Bank therefor, a report of a phase
one environmental investigation on real property owned or leased by Cohoes or
any of its Subsidiaries (but excluding space in office or retail and similar
establishments leased by Cohoes or any of its Subsidiaries for automatic
teller machines or bank branch facilities or other office uses where the space
leased comprises less than 20% of the total space leased to all tenants of
such property). If required by the phase one environmental investigation in
Xxxxxx'x or Xxxxxx Bank's reasonable opinion, Cohoes shall provide to Xxxxxx
or Xxxxxx Bank, within 45 days of the receipt by Cohoes of the request of
Xxxxxx or Xxxxxx Bank therefor, a report of a phase two environmental
investigation on properties requiring such additional study. Xxxxxx or Xxxxxx
Bank shall have ten days from its receipt of the phase one environmental
investigation to request a phase two environmental investigation. The costs
of the phase one and phase two environmental investigations, if any, shall be
borne by Xxxxxx or Xxxxxx Bank.
6.11 Employees and Employee Benefit Plans
-----------------------------------------
(a) Full time employees of Cohoes and its Subsidiaries who
remain employed after the Effective Time will be eligible to participate
in benefit plans of Xxxxxx and its Subsidiaries that are generally
available to their full-time employees on a uniform and
non-discriminatory basis in accordance with and subject to the terms and
provisions of such benefit plans, with credit for years of service with
Cohoes and its Subsidiaries for the purpose of determining eligibility
for participation, vesting and entitlement to vacation time and sick pay
(but not for the purpose of accrual or restoration of benefits under any
existing or future benefit plan of Xxxxxx or any of its Subsidiaries
where benefits are calculated on an actuarial basis, including any
qualified or non-qualified defined benefit plan or restoration plan).
Contributions to (and accrual of benefits, to the extent applicable, if
any, under) benefit
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plans of Xxxxxx and its Subsidiaries on behalf of continuing full-time
employees of Cohoes and its Subsidiaries shall only relate to qualifying
compensation earned by such employees after the Effective Time subject to
the terms and provisions of such benefit plans. Notwithstanding anything
contained above, continuing full time employees of Cohoes and its
Subsidiaries shall not be eligible to participate in the Xxxxxx Bank
benefit restoration plan or any qualified plan of Xxxxxx or any of its
Subsidiaries, including the Xxxxxx Bank retirement plan, Xxxxxx Bank
savings plan and Xxxxxx employee stock ownership plan until the plan year
commencing in 2002, except that, to the extent permitted by the Code and
any other applicable law, continuing full time employees of Cohoes and
its Subsidiaries who are not participants in the Cohoes ESOP immediately
prior to the Effective Time and otherwise meet the eligibility
requirements of the Xxxxxx employee stock ownership plan (after taking
into account their past service credit with Cohoes and its Subsidiaries)
shall be permitted to participate in the Xxxxxx employee stock ownership
plan as of the first entry date in such plan on or following the date of
the Effective Time. Xxxxxx shall amend its employee stock ownership
plan to accomplish the foregoing, to the extent such amendments are
consistent with the Code and any other applicable law. Xxxxxx shall use
its best efforts to cause any and all pre-existing condition limitations
(to the extent such limitations did not apply to a pre-existing
condition under the corresponding Cohoes group health plan) and
eligibility waiting periods under its group health plans to be waived
with respect to such participants and their eligible dependents.
(b) Xxxxxx or Xxxxxx Bank agrees to honor the Cohoes Officer
Severance Plan, the Cohoes General Severance Plan, the Cohoes Option
Plan, the Cohoes Recognition Plan, and the terms of all Previously
Disclosed employment and change in control severance agreements to which
Cohoes or Cohoes Bank is a party; provided however, in the case of the
employment agreements of Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxx, such
individuals shall accept a reduction in their monetary benefits upon
termination of their employment by virtue of (i) their monetary benefits
being calculated from and after July 2, 2001 (as if such date were the
employment termination date) and (ii)Xxxxx X. Xxxxxxxx and Xxxxxxx X.
Xxx shall take an additional reduction in monetary benefits
-51-
in the amounts of $300,000 and $150,000, respectively. It is
acknowledged by the Parties that the employment of Messrs Xxxxxxxx and
Ahl will be terminated on the day next following the date on which the
Effective Time occurs, and that any subsequent employment of such
individuals by Xxxxxx or Xxxxxx Bank shall be at will. Cohoes covenants
that the amounts Previously Disclosed are the sole amounts of monetary
benefits to be received by Messrs. Xxxxxxxx and Ahl pursuant to their
employment agreements upon a termination of their employment at or
following the Effective Time, other than any adjustments to be made with
respect to the tax gross up payments under Section 12 of their
respective employment agreements; and that Messrs. Xxxxxxxx and Ahl have
agreed in writing to accept the Previously Disclosed monetary benefits
in full satisfaction of all monetary obligations under their respective
employment agreements (other than any adjustments to be made with
respect to the tax gross up payments under Section 12 of their
respective employment agreements) and to take a tax filing position on
their federal income tax returns with respect to parachute payments
consistent with the tax filing position taken by Xxxxxx on its federal
income tax return with respect thereto. Xxxxxx or Xxxxxx Bank,
whichever is applicable, hereby expressly assumes at the Effective Time
the Cohoes Officer Severance Plan, the Cohoes General Severance Plan,
the Cohoes Option Plan, the Cohoes Recognition Plan, and every such
employment (subject to the foregoing provisions) and change in control
severance agreement which by its terms requires express assumption by a
successor. Such express assumption shall occur by virtue of Xxxxxx'x and
Xxxxxx Bank's execution of this Agreement without any further action
required by them upon the completion of the Transactions.
(c) In the sole discretion of Xxxxxx or Xxxxxx Bank payments
made by it in full and complete satisfaction of obligations under
Section 6.11(b) shall be subject to the recipient's delivery to it of
(i) a written acknowledgment signed by such recipient that the payment
or payments and benefits to be made to him or her is in full and
complete satisfaction of all liabilities and obligations thereunder of
Cohoes, Cohoes Bank, Xxxxxx and Xxxxxx Bank and their respective
affiliates, directors, officers, employees and agents and (ii) a written
release signed by such recipient releasing such parties from further
liability in connection
-52-
with such obligations and from all other matters relating to the
recipient's employment.
(d) Cohoes and its Subsidiaries shall take all necessary action
to cause the Cohoes ESOP to be terminated as of the Effective Time. The
Merger Consideration received by the Cohoes ESOP trustee in connection
with the Merger with respect to the unallocated shares of Cohoes Common
Stock shall be first applied by the Cohoes ESOP trustee to the full
repayment of the Cohoes ESOP loan. The balance of the Merger
Consideration (if any) received by the Cohoes ESOP trustee with respect
to the unallocated shares of Cohoes Common Stock shall be allocated to
the accounts of all participants in the Cohoes ESOP who have accounts
remaining under the Cohoes ESOP (whether or not such participants are
then actively employed) and beneficiaries in proportion to the account
balances of such participants and beneficiaries as they exist as of the
Effective Time as earnings, to the maximum extent permitted under the
Code and applicable law. As soon as practicable after the date hereof,
Cohoes shall file or cause to be filed all necessary documents with the
IRS for a determination letter for termination of the Cohoes ESOP as of
the Effective Time. As soon as practicable after receipt of a favorable
determination letter for termination from the IRS, the account balances
in the Cohoes ESOP shall be distributed to participants and
beneficiaries or transferred to an eligible individual retirement
account as a participant or beneficiary may direct. Prior to the
Effective Time, no prepayments shall be made on the Cohoes ESOP loan and
contributions to the Cohoes ESOP and payments on the Cohoes ESOP loan
shall be made consistent with past practices on the regularly scheduled
payment dates.
(e) Cohoes and its Subsidiaries shall take all necessary action
to cause the Cohoes 401(k) Plan to be terminated as of the Effective
Time. As soon as practicable after the date hereof, Cohoes shall file
or cause to be filed all necessary documents with the Internal Revenue
Service for a determination letter for termination of the Cohoes 401(k)
Plan as of the Effective Time. As soon as practicable after receipt of
the favorable determination letter for termination from the IRS, the
account balances in the Cohoes 401(k) Plan shall be distributed to
participants and beneficiaries or transferred to an eligible individual
-53-
retirement account as a participant or beneficiary may direct. From the
date hereof through the Closing Date, Cohoes and its Subsidiaries shall
be permitted to make accrued employer profit sharing contributions and
401(k) matching contributions to the Cohoes 401(k) Plan on a periodic or
monthly basis.
(f) At the Effective Time, Xxxxxx shall cause Xxxxx X. Xxxxxxxx
to be added to its Board with the official title of Vice Chairman. If
the initial term of Xxxxx X. Xxxxxxxx'x directorship at Xxxxxx is for a
period of less than three years, then the Xxxxxx Board agrees, subject
to their fiduciary duties, to nominate him as part of the management
slate of directors for one additional three year term and if he is so
elected, he shall continue to serve as Vice Chairman of the Board. The
provisions hereof shall not be binding upon any successor of Xxxxxx.
(g) At the Bank Merger Effective Time, Xxxxxx, as the sole
shareholder of Xxxxxx Bank, shall cause Xxxxx X. Xxxxxxxx, Xxxxxx X.
XxxXxxxx and two other current directors of Cohoes Bank selected by the
President of Xxxxxx Bank after consultation with Messrs. Xxxxxxxx and
MacAffer, to be elected as directors of Xxxxxx Bank, with Xx. Xxxxxxxx
having the official title of Vice Chairman. Subject to its fiduciary
duties, Xxxxxx shall cause such individuals to be re-elected as
directors of Xxxxxx Bank so that their service as directors does not
cease prior to the expiration of three years from the Effective Time.
The provisions of this paragraph shall only apply during the period that
Xxxxxx possesses voting control of Xxxxxx Bank and such provisions shall
not be binding upon any successor of Xxxxxx or Xxxxxx Bank.
6.12 Litigation Matters
-----------------------
Cohoes will consult with Xxxxxx or Xxxxxx Bank about any proposed
settlement, or any disposition of, any litigation to which Cohoes or any of
its Subsidiaries is a party.
6.13 Conforming Entries
-----------------------
(a) Cohoes recognizes that Xxxxxx and its Subsidiaries may have
adopted different loan, accrual and reserve policies (including loan
classifications and levels of
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reserves for possible loan losses). Subject to applicable law, from and
after the date hereof to the Closing, Cohoes and Xxxxxx shall consult and
cooperate with each other with respect to conforming the loan, accrual and
reserve policies of Cohoes and its Subsidiaries to those policies of
Xxxxxx and its Subsidiaries, as specified in each case in writing from
Xxxxxx to Cohoes, based upon such consultation and subject to the
conditions in Section 6.13(c) below.
(b) Subject to applicable law, Cohoes and Xxxxxx shall consult
and cooperate with each other with respect to determining, as specified in
a written notice from Xxxxxx to Cohoes, based upon such consultation and
subject to the conditions in Section 6.13(c) below, the amount and the
timing for recognizing for financial accounting purposes of Cohoes'
expenses of the Transactions and the restructuring charges relating to
or to be incurred in connection with the Transactions.
(c) Subject to applicable law, Cohoes and its Subsidiaries shall
(i) establish and take such reserves and accruals at such time as Xxxxxx
shall reasonably request to conform the loan, accrual and reserve
policies of Cohoes and its Subsidiaries to the policies of Xxxxxx and
its Subsidiaries, and (ii) establish and take such accruals, reserves
and charges in order to implement such policies and to recognize for
financial accounting purposes such expenses of the Transactions and
restructuring charges related to or to be incurred in connection with
the Transactions, in each case at such times as are reasonably requested
by Xxxxxx, but in no event prior to five days before the Closing Date;
provided, however, that on the date such reserves, accruals and
charges are to be taken, Xxxxxx shall certify to Cohoes that all
conditions to Xxxxxx'x obligation to consummate the Transactions set
forth in Sections 7.1 and 7.3 hereof (other than the delivery of
certificates, opinions and other instruments and documents to be
delivered at the Closing by Cohoes, the delivery of which shall continue
to be conditions to Xxxxxx'x obligation to consummate the Transactions)
have been satisfied or waived; and provided, further, that Cohoes and
its Subsidiaries shall not be required to take any such action that is
not consistent with GAAP and regulatory accounting principles.
-55-
(d) No reserves, accruals or charges taken in accordance with
this Section may be a basis to assert a violation or a breach of a
representation, warranty or covenant of Cohoes herein.
6.14 Systems Integration
------------------------
During the period from the date hereof to the Effective Time, Cohoes
shall cause its and Cohoes Bank's directors, officers and employees to, and
shall make all reasonable efforts to cause Cohoes Bank's data processing
service providers to, cooperate and assist Xxxxxx Bank in connection with an
electronic and systematic conversion of all applicable data regarding Cohoes
Bank to Xxxxxx Bank's system of electronic data processing. In furtherance of
the foregoing, Cohoes shall cause Cohoes Bank to make reasonable arrangements
during normal business hours to permit representatives of Xxxxxx Bank to train
Cohoes Bank employees in Xxxxxx Bank's system of electronic data processing.
6.15 Disclosure Supplements
---------------------------
From time to time prior to the Closing, each Party shall promptly
supplement or amend any materials Previously Disclosed or Delivered pursuant
hereto with respect to any matter hereafter arising which, if existing,
occurring or known at the date of this Agreement, would have been required to
be set forth or described in materials Previously Disclosed or Delivered or
which is necessary to correct any information in such materials which has been
rendered materially inaccurate thereby. No such supplement or amendment to
such materials shall be deemed to have modified the representations,
warranties and covenants of the disclosing Party for the purpose of
determining whether the conditions set forth in Article VII hereof have been
satisfied.
6.16 Failure to Fulfill Conditions
----------------------------------
If a Party determines that a condition to its obligations to consummate
the Transactions may not be fulfilled, it will promptly notify the other
Parties. Each Party will promptly inform the other Parties of any facts
applicable to it that would be likely to prevent or materially delay approval
of any of the Transactions by any Governmental Entity or third party or which
would otherwise prevent or materially delay completion of any of the
Transactions.
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6.17 Proxy Solicitor
--------------------
Cohoes may, and if requested by Xxxxxx or Xxxxxx Bank shall, retain a
proxy solicitor in connection with its meeting of shareholders held to vote on
the adoption of this Agreement.
6.18 Previous Transaction Stock Option Agreements
-------------------------------------------------
Xxxxxx and Cohoes do hereby agree to terminate the Cohoes Stock Option
Agreement. Accordingly, upon the execution of this Agreement, the Cohoes
Stock Option Agreement shall terminate and have no further force and effect.
The Xxxxxx Stock Option Agreement shall continue in full force and effect in
accordance with its terms.
6.19 Organization of Merger Sub
-------------------------------
Xxxxxx Bank shall cause Merger Sub to be organized under the DGCL. The
Board of Merger Sub shall approve this Agreement and the Merger, whereupon
Merger Sub shall become a party to, and be bound by, this Agreement, and
Xxxxxx Bank shall adopt and ratify this Agreement in its capacity as the sole
shareholder of Merger Sub.
6.20 Liquidated Damages
-----------------------
Due to expenses, direct and indirect, incurred by Xxxxxx and Xxxxxx Bank
in negotiating and executing this Agreement and in taking steps to effect the
Transactions, the loss by them of other opportunities, and as material
inducement for Xxxxxx agreeing to terminate the Cohoes Stock Option
Agreement as provided in Section 6.18, Cohoes shall pay to Xxxxxx and Xxxxxx
Bank, collectively, agreed upon cash liquidated damages of $4.7 million,
within 5 days after written demand for payment is made by Xxxxxx and
Xxxxxx Bank, following the occurrence of any of the events set forth below:
(a) Cohoes terminates this Agreement pursuant to Section
8.1(g);
(b) the termination of this Agreement by Cohoes for any reason
(other than a termination by Cohoes pursuant to Section 8.1(b) or (c))
prior to the date of the meeting of the shareholders of Cohoes to vote
on this Agreement; or
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(g) the entering into a definitive agreement by Cohoes or Cohoes
Bank relating to an Alternative Proposal or the consummation of an
Alternative Proposal involving Cohoes or Cohoes Bank within 18 months
after the occurrence of any of the following: (i) the termination of
this Agreement by Xxxxxx pursuant to Section 8.1(b) or 8.1(f); (ii) the
failure of the shareholders of Cohoes to adopt this Agreement at the
Cohoes' shareholders meeting held to vote on this Agreement; or (iii)
August 31, 2001 if prior thereto the Cohoes' shareholders meeting has
not been held to vote on the adoption of this Agreement.
If demand for payment of cash liquidated damages is made pursuant to
this Section 6.20 and payment is timely made, then neither Xxxxxx nor Xxxxxx
Bank will have any other rights or claims against Cohoes, its Subsidiaries,
and their respective officers, directors, attorneys and financial advisors
under this Agreement, it being agreed that the acceptance of cash liquidated
damages under this Section 6.20 will constitute the sole and exclusive remedy
of Xxxxxx and Xxxxxx Bank against Cohoes, its Subsidiaries and their
respective officers, directors, attorneys and financial advisors.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions Precedent - the Parties
--------------------------------------
The respective obligations of both Parties to effect the Merger
shall be subject to the satisfaction of the following conditions at or prior
to the Closing unless waived by the Parties to the extent permitted by Section
8.4.
(a) The shareholders of Cohoes shall have adopted this Agreement
in accordance with all legal requirements.
(b) All approvals and consents from any Governmental Entity, the
approval or consent of which is required for the completion of the
Transactions, shall have been received and all statutory waiting periods
in respect thereof shall have expired; and the Parties shall have
procured all other approvals, consents and waivers of each person (other
than the Governmental Entities referred to above) whose approval,
consent or waiver is necessary to the completion of the Transactions;
provided, however, that the approvals and consents referred to in this
Section 7.1(b) shall not be
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deemed to have been received if, individually or in the aggregate, they
shall include any conditions or requirements that, in the reasonable
opinion of the Xxxxxx Board, are unduly burdensome or would materially
reduce the value of the Transactions to Xxxxxx.
(c) None of Xxxxxx, Xxxxxx Bank, Cohoes or Cohoes Bank shall be
subject to any statute, rule, regulation, injunction or other order or
decree which shall have been enacted, entered, promulgated or enforced
by any Governmental Entity which prohibits, restricts or makes illegal
completion of any of the Transactions.
(d) No proceeding initiated by any Government Entity seeking an
order, injunction or decree issued by any court or agency of competent
jurisdiction or other legal restraint or prohibition preventing the
completion of any of the Transactions shall be pending or threatened.
7.2 Conditions Precedent - Cohoes
---------------------------------
The obligations of Cohoes to effect the Merger shall be subject to
satisfaction of the following conditions at or prior to the Closing unless
waived by Cohoes to the extent permitted by Section 8.4.
(a) The representations and warranties of Xxxxxx and Xxxxxx Bank
made herein shall be true and correct as of the date hereof and in all
material respects as of the Closing as though made anew at the Closing
(as if the Closing Date was the date hereof for such purpose).
(b) Xxxxxx and Xxxxxx Bank shall have performed in all material
respects all obligations and complied in all material respects with all
covenants and agreements required to be performed and complied with by
it pursuant to this Agreement on or prior to the Closing.
(c) Xxxxxx and Xxxxxx Bank shall have delivered to Cohoes a
certificate, dated the Closing Date and signed by their respective Chief
Executive Officers, to the effect that the conditions set forth in
Sections 7.2(a) and 7.2(b) have been satisfied.
(d) Xxxxxx and Xxxxxx Bank shall have furnished Cohoes with such
certificates of their officers or others and such
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other documents to evidence fulfillment of the conditions set forth in
Section 7.1 as such conditions relate to Xxxxxx and Xxxxxx Bank as
Cohoes may reasonably request.
7.3 Conditions Precedent - Xxxxxx
---------------------------------
The obligations of Xxxxxx, Xxxxxx Bank and Merger Sub to effect the
Merger shall be subject to satisfaction of the following conditions at or
prior to the Closing unless waived by Xxxxxx to the extent permitted by
Section 8.4.
(a) Between the date hereof and the Closing, Cohoes shall not
have been affected by any event or change which has had or caused, or is
reasonably likely to have or cause, a Material Adverse Effect.
(b) The representations and warranties of Cohoes set forth herein
shall be true and correct as of the date hereof and (other than the
representations and warranties in Section 3.1 with respect to the
effects of any exercise of Rights or vesting of Restricted Shares) in
all material respects as of the Closing as though made anew at the
Closing (as if the Closing Date was the date hereof for such purpose),
except that in each case the representations and warranties under
Article IV shall be subject to the standard set forth in Section 9.8.
(c) Cohoes shall have performed in all material respects all
obligations and complied in all material respects with all covenants and
agreements required to be performed and complied with by it pursuant to
this Agreement on or prior to the Closing.
(d) Cohoes shall have delivered to Xxxxxx Bank a certificate,
dated the Closing Date and signed by its Chief Executive Officer, to the
effect that the conditions set forth in Sections 7.3(a) through 7.3(c)
have been satisfied.
(e) Cohoes shall have furnished Xxxxxx Bank with such
certificates of its officers or others and such other documents to
evidence fulfillment of the conditions set forth in Section 7.1 as such
conditions relate to Cohoes and its Subsidiaries as Xxxxxx Bank may
reasonably request.
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(f) Each director and executive officer of Cohoes and Cohoes Bank
shall have executed and delivered cancellation agreements to Xxxxxx as
provided in Section 2.7(f).
ARTICLE VIII
TERMINATION, WAIVER, AMENDMENT
AND SPECIFIC PERFORMANCE
8.1 Termination
---------------
This Agreement may be terminated by a written instrument prior to the
Effective Time:
(a) by the mutual consent of the Boards of Xxxxxx and Cohoes;
(b) by the Board of the non-breaching Party if the other Party
has breached in any material respect any of its covenants, agreements or
representations and warranties (but in the case of representations and
warranties under Article IV subject to the standard set forth in Section
9.8) herein, and such breach has not been cured within 30 days after
written notice (and for purposes hereof Xxxxxx and Xxxxxx Bank shall be
deemed to be one Party);
(c) by the Board of either Xxxxxx or Cohoes, (i) if any
Governmental Entity of competent jurisdiction shall have issued a final
nonappealable order prohibiting the completion of the Transactions or
(ii) if application for any necessary prior approval of a Governmental
Entity is denied or withdrawn at the request or recommendation of the
Governmental Entity, provided that such denial or request or
recommendation for withdrawal is not due to the terminating Party's
breach of any provision of this Agreement;
(d) By the Board of either Xxxxxx or Cohoes if the shareholders
of Cohoes fail to adopt this Agreement at the Cohoes' shareholders meeting
held to vote on this Agreement;
(e) by the Board of either Xxxxxx or Cohoes if the Effective Time
has not occurred by the close of business on August 31, 2001, provided
that the terminating Party is not then in breach of any of its
covenants, agreements or representations and warranties (but in the case
of representations and warranties under Article IV subject to the
standard set forth in Section 9.8) herein;
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(f) by the Board of Xxxxxx if the Cohoes Board either (i) fails
to recommend, or fails to continue its recommendation, that the
shareholders of Cohoes vote in favor of the adoption of this Agreement,
or (ii) modifies, withdraws or changes in any manner adverse to Xxxxxx
or Xxxxxx Bank its recommendation that the shareholders of Cohoes vote
in favor of the adoption of this Agreement; or
(g) by the Board of Cohoes if Cohoes has received a Superior
Offer which is not timely matched by Xxxxxx and Xxxxxx Bank pursuant to
Section 6.7, and the Board of Cohoes has made a determination to accept
such Superior Offer subject to approval thereof by the Cohoes'
shareholders, and simultaneously with the termination of this Agreement
pursuant to this paragraph Cohoes enters into an acquisition agreement
with respect to the Superior Offer if the Superior Offer is for a merger
or the Board of Cohoes adopts a binding resolution to recommend to the
shareholders of Cohoes that they accept the Superior Offer if the
Superior Offer is for a tender offer.
8.2 Effect of Termination
--------------------------
In the event that this Agreement is terminated it shall become void and
have no effect, except for:
(a) the provisions relating to confidentiality set forth in
Section 6.4,
(b) the provision relating to press releases set forth in Section
6.5,
(c) The provision relating to cash liquidated damages set forth
in Section 6.20; and
(d) except as provided in Section 6.20, a termination pursuant to
Section 8.1(b) shall not relieve the breaching Party from any liability
or damages if such termination arises out of its willful breach of any
provision of this Agreement; in such event the non-breaching Party shall
be entitled to such monetary remedies and relief against the breaching
Party as are available at law (and for purposes hereof Xxxxxx and Xxxxxx
Bank shall be deemed to be one Party).
-62-
8.3 Survival of Representations, Warranties and Covenants
---------------------------------------------------------
All representations, warranties, agreements and covenants in this
Agreement or in any other document or instrument delivered pursuant hereto or
in connection herewith shall expire on, and be terminated and extinguished at,
the Effective Time other than agreements or covenants contained herein or
therein that by their terms are to be performed after the Effective Time. No
such representations, warranties, agreements or covenants shall be deemed to
be terminated or extinguished so as to deprive Xxxxxx or Xxxxxx Bank or any of
its affiliates of any defense at law or in equity which otherwise would be
available against the claims of any person, including any shareholder or
former shareholder.
8.4 Waiver
----------
Each Party hereto by written instrument approved by its Board and signed
by an executive officer of such Party, may at any time (whether before or
after approval of this Agreement by the shareholders of Cohoes) extend the
time for the performance of any of the obligations or other acts of the other
Party hereto and may waive (i) any inaccuracies of the other Party in the
representations or warranties contained in this Agreement or any document
delivered pursuant hereto, (ii) compliance with any of the covenants,
undertakings or agreements of the other Party, (iii) to the extent permitted
by law, satisfaction of any of the conditions precedent to its obligations
contained herein or (iv) the performance by the other Party of any of its
obligations set forth herein.
8.5 Amendment or Supplement
---------------------------
This Agreement may be amended at any time by mutual written agreement of
the Parties approved by their Boards and signed by an executive officer of
each Party, provided that any such amendment after the adoption of this
Agreement by shareholders of Cohoes shall not either modify the form or
decrease the amount of the Merger Consideration or otherwise materially
adversely affect such shareholders without the approval of the shareholders to
the extent required by applicable law.
8.6 Specific Performance
------------------------
The Parties acknowledge and agree that the Transactions contemplated
herein are unique and that any remedy at law for breach is inadequate to
compensate the aggrieved Party
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or Parties. Accordingly, each Party shall have the right to seek specific
performance of this Agreement and the other Parties' duties, obligations,
covenants and agreements herein in order to cause the Transactions to be
consummated. To this end, each Party, to the extent permitted by law,
irrevocably waives any defense it might have based on the adequacy of a
remedy at law which might be asserted as a bar to specific performance or any
other equitable relief. Notwithstanding the foregoing, neither Xxxxxx nor
Xxxxxx Bank shall be entitled to seek specific performance under any
circumstances where it is entitled to receive liquidated damages pursuant to
Section 6.20 upon termination of this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses
------------
Each Party hereto shall bear and pay all costs and expenses incurred by
it in connection with this Agreement and the Transactions, including fees and
expenses of its Financial Advisor, counsel and accountants.
9.2 Entire Agreement
--------------------
This Agreement together with any other documents or instruments executed
by the Parties relating to the subject matter hereto concurrently with or on
the same day as the execution of this Agreement contains the entire agreement
among the Parties with respect to the Transactions and supersedes all prior
arrangements or understandings with respect thereto, written or oral, other
than documents referred to herein which are to be executed after the date
hereof. The terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the Parties hereto and their respective successors.
Nothing in this Agreement, expressed or implied, is intended to confer upon
any person, other than the Parties, and their respective successors, any
rights, remedies, obligations or liabilities other than as set forth in
Article II and in Sections 6.9 and 6.11 hereof.
9.3 No Assignment
-----------------
None of the Parties hereto may assign any of its rights or obligations
under this Agreement to any other person.
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9.4 Notices
-----------
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally,
telecopied (with confirmation) or sent by overnight mail service or by
registered or certified mail (return receipt requested), postage prepaid,
addressed as follows:
If to Cohoes:
Cohoes Bancorp, Inc.
00 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
With a required copy to:
Elias, Matz, Xxxxxxx & Xxxxxxx, L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxx, Xx., Esq.
If to Hudson, Hudson Bank or Merger Sub:
Xxxxxx River Bancorp, Inc.
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
President and Chief Executive Officer
With a required copy to:
Silver, Xxxxxxxx & Taff, L.L.P.
0000 Xxx Xxxx Xxxxxx, X.X., 0xx Xxxxx Xxxx
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxxxxx, P.C.
9.5 Counterparts
----------------
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an
-65-
original instrument, but all such counterparts together shall constitute but
one agreement.
9.6 Governing Law
-----------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to agreements made and entirely to be
performed within such jurisdiction. The Parties hereby designate Wilmington,
Delaware to be the proper jurisdiction and venue for any suit or action
arising out of this Agreement.
9.7 Severability
----------------
Any term, provision, covenant or restriction contained in this Agreement
held to be invalid, void or unenforceable, shall be ineffective to the extent
of such invalidity, voidness or unenforceability, but neither the remaining
terms, provisions, covenants or restrictions contained in this Agreement nor
the validity or enforceability thereof in any other jurisdiction shall be
affected or impaired thereby. Any term, provision, covenant or restriction
contained in this Agreement that is so found to be so broad as to be
unenforceable shall be interpreted to be as broad as is enforceable.
9.8 Standard of Breach
----------------------
None of the representations or warranties contained in Article IV shall
be deemed untrue or incorrect, and Cohoes shall not be deemed to have breached
its representations or warranties therein as a consequence of the existence of
any fact, circumstance or event, which would not, either individually or taken
together with all other facts, circumstances or events, have a Material
Adverse Effect on it.
9.9 Alternative Structure
-------------------------
Notwithstanding any provision of this Agreement to the contrary, Xxxxxx
may at any time modify the structure of the acquisition of Cohoes set forth
herein, subject to the prior written consent of Cohoes which consent shall not
be unreasonably withheld or delayed, provided that (i) the Merger
Consideration to be paid to the holders of Cohoes Common Stock is not thereby
changed in kind or reduced in amount as a result of such modification and (ii)
such modification will not materially delay
-66-
or jeopardize receipt of any required approvals of Governmental Entities.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers and attested by their officers
thereunto duly authorized, all as of the day and year first above written.
COHOES BANCORP, INC.
Attest:
/s/ Xxxxxxx X. Xxx By: /s/ Xxxxx X. Xxxxxxxx
---------------------- -------------------------
Name: Xxxxxxx X. Xxx Name: Xxxxx X. Xxxxxxxx
Title: Secretary Title: President
XXXXXX RIVER BANCORP, INC.
Attest:
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx
---------------------- ---------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxx X. Xxxxxx
Title: Secretary Title: President
XXXXXX RIVER BANK & TRUST COMPANY
Attest:
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx
---------------------- ----------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxx X. Xxxxxx
Title: Secretary Title: President
-00-
XXXXXX XXXXX XXXXXXXXXXX CORP., Merger Sub, has joined as a Party to this
Agreement on this __ day of ___________, 2001.
XXXXXX RIVER ACQUISITION CORP.
Attest:
By:
---------------------- ------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxx X. Xxxxxx
Title: Secretary Title: President
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Exhibit A
Cohoes Savings Bank General Severance Plan
1. Definitions. Whenever used herein, the following terms shall have
the meanings set forth below:
a. "Bank" means Cohoes Savings Bank or any successor thereto.
b. "Change in Control," for purposes of determining whether
there has been a change in control of the Bank or the Holding Company,
means the definition of change in control set forth in 12 C.F.R. Section
574 et. seq. as interpreted by the Board of Directors of the Bank, as it
is constituted prior to the Change in Control.
c. "Eligible Employee" means any Employee who, on the date of
the Change in Control or within one year thereafter, is either (i)
involuntarily terminated by the Bank other than for Just Cause, or (ii)
voluntarily terminated solely by reason of the Bank demanding that such
Employee permanently relocate to an office that is more than 15 miles
away from the Employee's then current employment location and the
Employee refuses to relocate.
d. "Employee" means any non-officer who has been employed by
the Bank for at least one year, on a full-time basis, immediately prior
to the Change in Control, excluding any employee who is covered by an
employment contract or change in control severance agreement with, or
any other severance plan of, the Holding Company or the Bank.
e. "Holding Company" means Cohoes Bancorp, Inc. or any
successor thereto.
f. "Just Cause," with respect to termination of employment,
means an act or acts of personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order. In determining incompetence,
acts or omissions shall be measured against standards generally
prevailing in the savings institution industry, as determined by the
Board of Directors of the Bank in its sole discretion.
2. Severance Benefit to Eligible Employees. Subject to the
provisions of Paragraphs 3 and 4 below, each Eligible Employee shall be
entitled to receive a severance benefit in cash, by check, within five
business days after his or her termination of employment in an amount equal to
the Eligible Employee's regular salary for a two-week period (as in effect
immediately prior to the Change in Control) multiplied by the total number of
whole years of his or her full time employment with the Bank as of his or her
date of employment termination, but not to exceed aggregate severance of more
than 26 weeks regular salary (i.e., 13 whole years of full-time employment).
3. Reduction of Severance Benefits to Non-Branch Eligible Employees.
If the aggregate amount of the severance benefits to be paid to non-branch
Eligible Employees (assuming that all non-branch Employees become Eligible
Employees on the date of the Change in Control) would exceed $260,000, then
the Board of Directors of the Bank shall, prior to the Change in Control,
amend the methodology set forth in Paragraph 2
above for determining severance benefits so that the potential aggregate
amount thereof to non-branch Eligible Employees utilizing the assumption
above does not exceed $260,000. Notwithstanding the foregoing, no adjustment
shall be made pursuant to this Paragraph 3 relating to merit increases
awarded after November 24, 2000 in the ordinary course of business consistent
with past practices which result in the aggregate severance benefits payable
hereunder exceeding $260,000.
4. Written Acknowledgement and Release. As a condition to receiving
payment pursuant to Paragraph 2 above, as the same may be adjusted pursuant to
Paragraph 3 above, the Eligible Employee shall deliver to the Bank a written
Acknowledgement and Release signed by the Eligible Employee stating (a) that
the severance payment to be made to the Eligible Employee pursuant to
Paragraph 2 above is in full and complete satisfaction of all liabilities and
obligations of the Holding Company, the Bank and their respective affiliates,
directors, officers, employees and agents and (ii) that the parties named in
subpart (a) immediately above shall not have any other liabilities or
obligation to the Eligible Employee relating to the Eligible Employee's
employment by the Bank, the Holding Company or any of their respective
affiliates.
5. Governing Law. This plan shall be governed by the laws of the
State of New York.
6. Termination or Amendment. This plan may be amended or terminated
at any time, in the full discretion of the Board of Directors of the Bank,
prior to the Change in Control. This plan may not be terminated or amended at
the time of or after the occurrence of the Change in Control.
2
Exhibit B
Form of Voting Agreement
November 24, 2000
Xxxxxx River Bancorp, Inc.
Xxxxxx River Bank & Trust Company
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
The undersigned understands that you (collectively, "Buyer") and Cohoes
Bancorp, Inc. ("Cohoes") are entering into an Agreement and Plan of Merger
(the "Merger Agreement") providing for, among other things, the merger of a
wholly-owned subsidiary of Buyer into Cohoes (the "Merger"), in which the
outstanding shares of common stock of Cohoes will be exchanged for cash.
The undersigned is a stockholder of Cohoes and is entering into this
agreement to induce Buyer to enter into the Merger Agreement and to consummate
the transactions contemplated thereby.
The undersigned confirms its agreement with Buyer as follows:
1. The undersigned represents, warrants and agrees that Schedule I
annexed hereto sets forth the shares of the capital stock of Cohoes of which
the undersigned is the record or beneficial owner, or over which he has voting
control other than shares of Cohoes capital stock he or she holds in a
fiduciary capacity (the "Shares"), and that the undersigned is on the date
hereof the lawful owner of the Shares, free and clear of all liens, charges,
encumbrances, voting agreements and commitments of every kind, except as
disclosed in Schedule I. Except as Previously Disclosed (as such term is
defined in the Merger Agreement) or as set forth in Schedule I, the
undersigned does not own or hold any rights to acquire any additional shares
of the capital stock of Cohoes (by exercise of stock options or otherwise) or
any interest therein or any voting rights with respect to any additional
shares.
2. Except as required by law, the undersigned agrees that the
undersigned will not, and will not permit any company, trust or other entity
controlled by the undersigned to, contract to sell, sell or otherwise transfer
or dispose of any of the Shares or any interest therein or securities
convertible thereunto or any voting rights with respect thereto, other than
subsequent to the stockholder meeting of Cohoes held in connection with the
vote on the Merger Agreement or pursuant to a gift where the donee has agreed
in writing to abide by the terms of this agreement in a form reasonably
satisfactory to Buyer.
3. The undersigned agrees that all of the Shares, together with any
additional shares of capital stock of Cohoes of which the undersigned is the
record or beneficial owner, or over which he or she has voting control other
than shares of Cohoes capital stock he or she holds in a fiduciary capacity,
at the record date for any meeting of stockholders of Cohoes called to
consider and vote to adopt the Merger Agreement, will be voted by the
undersigned in favor thereof.
4. The undersigned represents and warrants to Buyer that (i) the
undersigned has all necessary power and authority to enter into this agreement
and (ii) this agreement is the legal, valid and
November 24, 2000
Page 2
binding agreement of the undersigned, and is enforceable against the
undersigned in accordance with its terms.
5. This agreement shall automatically terminate (i) upon termination
of the Merger Agreement in accordance with its terms; (ii) at the Effective
Time (as defined in the Merger Agreement) or (iii) by mutual consent of the
parties hereto.
6. This agreement may be amended, modified or supplemented at any
time by the written approval of such amendment, modification or supplement by
the undersigned and Buyer.
7. This agreement evidences the entire agreement between the parties
hereto with respect to the matters provided for herein and there are no
agreements, representations or warranties with respect to the matters provided
for herein other than those set forth herein.
8. The parties agree that if any provision of this agreement shall
under any circumstances be deemed invalid or inoperative, this agreement shall
be construed with the invalid or inoperative provisions deleted and the rights
and obligations of the parties shall be construed and enforced accordingly.
9 This agreement may be executed in two counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same agreement.
10. The validity, construction, enforcement and effect of this
agreement shall be governed by the laws of the State of Delaware.
11. This agreement shall inure to the benefit of Buyer, and shall be
binding upon the undersigned and his or her executors, personal
representatives, administrators, heirs, legatees, guardians and other legal
representatives. This agreement shall survive the death or incapacity of the
undersigned.
12. Nothing in this agreement shall be construed to give Buyer any
rights to exercise or direct the exercise of voting power as owner of the
Shares, either beneficially or otherwise, for any purpose.
13. The undersigned agrees that in the event of his or her breach
Buyer shall be entitled to such remedies and relief against the undersigned as
are available at law or in equity. The undersigned acknowledges that there is
not an adequate remedy at law to compensate Buyer for a violation of this
agreement, and irrevocably waives, to the extent permitted by law, any defense
that he or she might have based on the adequacy of a remedy at law which might
be asserted as a bar to specific performance, injunctive relief, or other
equitable relief. The undersigned agrees to the granting of injunctive relief
without the posting of any bond and further agrees that if any bond shall be
required, such bond shall be in a nominal amount.
November 24, 2000
Page 3
Please confirm that the foregoing correctly states the understanding
between the undersigned and Buyer by signing and returning to Buyer a
counterpart hereof.
Very truly yours,
___________________________
NAME
Accepted as of this __ day
of November, 2000
Xxxxxx River Bancorp, Inc.
and
Xxxxxx River Bank & Trust Company
By: ______________________________
Xxxx X. Xxxxxx
President
Schedule I
----------
Number of shares of Cohoes common
stock beneficially owned . . . . . . . . . . . . . . . . . . . .
Number of vested options to acquire
shares of Cohoes common stock . . . . . . . . . . . . . . . . .
