Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
between
COHOES BANCORP, INC.
and
HUDSON RIVER BANCORP, INC.
April 25, 2000
TABLE OF CONTENTS
Page Number
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..............................................................10
2.2 Surviving Corporation...................................................11
2.3 Closing.................................................................13
2.4 Treatment of Capital Stock..............................................13
2.5 Shareholder Rights; Stock Transfers.....................................13
2.6 Fractional Shares.......................................................13
2.7 Options.................................................................14
2.8 Exchange Procedures.....................................................14
2.9 Additional Actions......................................................16
ARTICLE III
MUTUAL REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE PARTIES
3.1 Capital Structure.......................................................16
3.2 Registrations...........................................................17
3.3 Subsidiaries............................................................17
3.4 This Agreement..........................................................17
3.5 Financial Statements; No Adverse Change.................................18
3.6 Fairness Opinion........................................................18
3.7 Interim Events..........................................................19
ARTICLE IV
MUTUAL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO
THE PARTIES AND THEIR SUBSIDIARIES
4.1 Organization and Good Standing..........................................19
4.2 Compliance with Law.....................................................19
4.3 Regulatory Reports......................................................20
4.4 Governmental Approvals..................................................20
4.5 No Violations...........................................................21
4.6 No Broker's or Finder's Fees............................................21
4.7 Equity Holdings ........................................................21
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4.8 Litigation and Other Proceedings........................................21
4.9 Environmental Matters...................................................21
4.10 Tax Matters............................................................22
4.11 Year 2000 Compliant....................................................23
4.12 Insurance..............................................................24
4.13 Labor..................................................................24
4.14 Indemnification........................................................24
4.15 Loan Portfolio.........................................................24
4.16 Investment Portfolio...................................................25
4.17 Defaults...............................................................25
4.18 Real Estate Loans and Investments......................................25
4.19 Derivatives Contracts..................................................25
4.20 Employee Benefit Plans.................................................26
4.21 Properties.............................................................29
4.22 Certain Agreements.....................................................30
4.23 Material Interests of Certain Persons..................................31
4.24 No Impediments.........................................................31
4.25 Liquidation Account....................................................31
4.26 Disclosures............................................................31
ARTICLE V
ADDITIONAL REPRESENTATIONS AND
WARRANTIES OF COHOES
5.1 Registration Obligations................................................32
ARTICLE VI
COVENANTS
6.1 Reasonable Best Efforts.................................................32
6.2 Shareholders' Meetings..................................................32
6.3 Regulatory Matters......................................................32
6.4 Investigation and Confidentiality.......................................33
6.5 Press Releases..........................................................35
6.6 Business of the Parties.................................................35
6.7 Certain Actions.........................................................40
6.8 Current Information.....................................................40
6.9 Indemnification.........................................................40
6.10 Environmental Reports..................................................43
6.11 Employees and Employee Benefit Plans...................................43
6.12 Bank Merger and Resulting Institution..................................47
6.13 Litigation Matters.....................................................49
6.14 Conforming Entries.....................................................49
6.15 INTENTIONALLY OMITTED.................................................50
6.16 Disclosure Supplements.................................................51
6.17 Failure to Fulfill Conditions..........................................51
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6.18 Proxy Solicitor........................................................51
6.19 Surviving Corporation Common Stock.....................................51
6.20 Prospectus/Joint Proxy Statement.......................................51
6.21 Tax Opinion............................................................52
6.22 Reservation of Shares to
Satisfy Cohoes Continuing Options.....................................52
6.23 Listing................................................................53
6.24 New Affiliates.........................................................53
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions Precedent - the Parties......................................53
7.2 Conditions Precedent - Cohoes...........................................55
7.3 Conditions Precedent - Hudson...........................................56
ARTICLE VIII
TERMINATION, WAIVER, AMENDMENT
AND SPECIFIC PERFORMANCE
8.1 Termination.............................................................57
8.2 Effect of Termination...................................................58
8.3 Survival of Representations, Warranties and Covenants...................59
8.4 Waiver..................................................................59
8.5 Amendment or Supplement.................................................59
8.6 Specific Performance....................................................59
ARTICLE IX
MISCELLANEOUS
9.1 Expenses................................................................60
9.2 Entire Agreement........................................................60
9.3 No Assignment...........................................................61
9.4 Notices.................................................................61
9.5 Counterparts............................................................62
9.6 Governing Law...........................................................62
9.7 Severability............................................................62
9.8 Standard of Breach......................................................62
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Exhibit A - Cohoes Stock Option Agreement Exhibit B - Hudson Stock Option
Agreement Exhibit C - Hudson Directors' Voting Agreement Exhibit D - Cohoes
Directors' Voting Agreement Exhibit E - Cohoes Affiliates Agreement Exhibit F -
Robinson Employment Agreement Exhibit G - Florio Employment Agreement Exhibit H
- - Blow Employment Agreement Exhibit I - Ahl Employment Agreement Exhibit J -
Richter Employment Agreement Exhibit K - Proposed Amendments to Hudson's Charter
Exhibit L - Proposed Amendments to Hudson's Bylaws
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is dated as of April 25, 2000, by and
between Cohoes and Hudson.
WHEREAS, Cohoes and Hudson desire to combine their respective holding
companies through a tax-free, stock-for-stock merger so that the respective
shareholders of Cohoes and Hudson will have an equity ownership in the combined
holding company;
WHEREAS, neither the Board of Cohoes nor the Board of Hudson seeks to sell
its respective holding company at this time but both Boards desire to merge
their respective holding companies in a transaction structured as a merger of
equals;
WHEREAS, it is intended that to accomplish this result, Cohoes will be
merged with and into Hudson, with Hudson being the Surviving Corporation;
WHEREAS, immediately following consummation of the Merger, it is
contemplated that Cohoes' savings bank Subsidiary will be merged with and into
Hudson's savings bank Subsidiary, with Hudson's savings bank Subsidiary as the
Resulting Institution;
WHEREAS, concurrently with the execution and delivery of this Agreement,
and as a condition and inducement to the other Party's willingness to enter into
this Agreement, each of Hudson and Cohoes is granting the other an option to
acquire its Common Stock pursuant to stock option agreements in the forms
attached as Exhibits A and B hereto, respectively;
WHEREAS, it is intended that for federal income tax purposes the
Transactions shall qualify as reorganizations within the meaning of Section 368
of the Code and this Agreement shall constitute a plan of reorganization
pursuant to Section 368 of the Code;
WHEREAS, concurrently with the execution and delivery of this Agreement,
and as a condition and inducement to the Parties' willingness to enter into this
Agreement, Cohoes and each of the directors of Hudson, and Hudson and each of
the directors of Cohoes, are entering into voting agreements in the forms
attached hereto as Exhibits C and D, respectively;
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WHEREAS, concurrently with the execution and delivery of this Agreement,
and as a condition and inducement to Hudson's willingness to enter into this
Agreement, each of the affiliates of Cohoes for purposes of Rule 145 of the
Securities Act is entering into an affiliate agreement in the form attached
hereto as Exhibit E; and
WHEREAS, concurrently with the execution and delivery of this Agreement,
and as a condition and inducement to the Parties' willingness to enter into this
Agreement certain executives of Cohoes and Hudson are entering into employment
agreements with Hudson and its savings bank subsidiary (which shall become
effective at the Effective Time) in the forms attached as Exhibits F, G, H, I
and J, respectively.
NOW, THEREFORE, in consideration of such inducements and of the mutual
promises and agreements contained herein, the Parties agree as follows:
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" means any bona fide written proposal, public
announcement or filing with the SEC or any other Government Entity by any person
other than a Party 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 a Party or any of its
Subsidiaries.
"Bank Merger" means the contemplated merger of Cohoes' savings bank
Subsidiary into Hudson's savings bank Subsidiary.
"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.
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"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 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 the Parties with the Secretary of State of the State of Delaware
pursuant to the DGCL to make the Merger effective and which shall include
amendments in the Charter of the Surviving Corporation in substantially the form
of Exhibit K hereto to implement and carry out the provisions of Sections 2.2(a)
and (b) of this Agreement.
"Charter" means the primary organizational document of any entity, whether
designated as "Articles of Incorporation," "Certificate of Incorporation" or
otherwise.
"Claim" has the meaning attributed to it in Section 6.9.
"Closing" means the closing of the transactions contemplated
by this Agreement.
"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 ESOP" means the employee stock ownership plan of Cohoes, as in
effect as of the date hereof.
"Cohoes Options" means options to purchase shares of Cohoes Common Stock,
but excludes the option being granted to Hudson pursuant to the stock option
agreement in the form attached as Exhibit B hereto.
"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, other
than shares held in a fiduciary capacity for the benefit of third parties or as
a result of debts previously contracted.
"Common Stock" means the common stock of any entity which has only one
authorized class of common stock.
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"CRA" means the Community Reinvestment Act.
"Delivered" means provided by a Party or any of its
Subsidiaries to the other Party.
"DGCL" means the Delaware General Corporation Law.
"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 the benefit of any present or former directors or employees of a Party 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. ss.9601, et seq; the Resource Conservation
and Recovery Act, as amended, 42 U.S.C. ss.6901, et seq; the Clean Air Act, as
amended, 42 U.S.C. ss.7401, et seq; the Federal Water
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Pollution Control Act, as amended, 33 U.S.C. ss.1251, et seq; the Toxic
Substances Control Act, as amended, 15 U.S.C. ss.9601, et seq; the Emergency
Planning and Community Right to Know Act, 42 U.S.C. ss.1101, et seq; the Safe
Drinking Water Act, 42 U.S.C. ss.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
4.20(f).
"ERISA Affiliate Plan" has the meaning set forth in Section
4.20(f).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Agent" means an exchange agent designated by Hudson and
reasonably acceptable to Cohoes.
"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 Keefe, Bruyette & Woods, Inc. with
respect to Cohoes, and Sandler O'Neill & Partners, L.P. with
respect to Hudson.
"Financial Statements" means both a Party's Annual Financial
Statements and its Interim Financial Statements.
(a) "Financial Reports" means consolidated balance sheets,
consolidated statements of income and statements of changes in
shareholders' equity and cash flows, including any related notes and
schedules.
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(b) "Annual Financial Statements" means all the Financial Reports
filed in a Party's most recent annual report under the Securities Laws.
(c) "Interim Financial Statements" means the Financial Reports filed
in all quarterly reports of a Party under the Securities Laws since the
filing of its most recent Annual Financial Statements.
"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.
"Hudson" means Hudson River Bancorp, Inc., a Delaware
corporation.
"Hudson Option Plan" means the Hudson River Bancorp, Inc.
1998 Stock Option and Incentive Plan.
"Hudson RRP Plan" means the Hudson River Bancorp, Inc. 1998
Recognition and Retention Plan.
"Indemnified Liabilities" has the meaning attributed to it
in Section 6.9.
"Indemnified Parties " has the meaning attributed to it in
Section 6.9.
"Insider Loans" means loans from a Party or any of its Subsidiaries to any
officer, director or employee of that Party or any of its Subsidiaries 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.
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"Material Adverse Effect" means, with respect to a Party, any effect that
is material and adverse to the condition (financial or otherwise), results of
operations or business of that Party and its Subsidiaries taken as whole, or
that materially impairs the ability of that Party to consummate the Merger,
provided, however, that Material Adverse Effect shall not be deemed to include
the impact of (a) changes in laws and regulations or interpretations thereof
that are generally applicable to the banking or savings institution industries,
(b) changes in GAAP that are generally applicable to the banking or savings
institution industries, (c) expenses incurred in connection with this Agreement
and the Transactions, (d) actions or omissions of a Party (or any of its
Subsidiaries) taken with the prior informed written consent of the other Party
in contemplation of the Transactions or (e) changes attributable to or resulting
from changes in general economic conditions generally affecting financial
institutions, including changes in the prevailing level of interest rates.
"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 Cohoes into Hudson, with Hudson being the
Surviving Corporation.
"Merger Consideration" means 1.185 shares of Surviving Corporation Common
Stock (the "Exchange Ratio") for each share of Cohoes Common Stock, provided
that cash, without interest, is to be paid in lieu of any fractional share; and
provided further, that if the issued and outstanding shares of Cohoes or Hudson
Common Stock shall, during the period commencing on the date hereof and ending
with the Effective Time, through a reorganization, recapitalization, stock
split, reverse stock split, stock dividend, reclassification, combination of
shares or similar corporate rearrangement in the capitalization of Cohoes or
Hudson, as the case may be, increase or decrease in number or be changed into or
exchanged for a different kind or number of securities, then an appropriate and
proportionate adjustment shall be made to the Exchange Ratio.
"OTS" means the Office of Thrift Supervision of the U.S.
Department of the Treasury or any successor thereto.
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"Party" means Cohoes or Hudson, whichever is applicable.
"PBGC" means the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Pension Plan" has the meaning set forth in Section 4.20(c).
"Previously Disclosed" means disclosed in a written disclosure schedule
delivered on or prior to the date hereof by the disclosing Party to the other
Party specifically referring to the appropriate section of this Agreement and
describing in reasonable detail the matters contained therein.
"Proposal" means, with respect to Cohoes, the proposal to adopt this
Agreement and approve the Merger, and, with respect to Hudson, all of the
following proposals:
(1) to adopt this Agreement and approve the Merger and to approve the
issuance of shares of Hudson Common Stock in the Merger; and
(2) to amend the Hudson Option Plan and Hudson RRP Plan, respectively,
to increase the number of shares of Hudson Common Stock reserved for
issuance thereunder from 1,785,375 to 1,930,241 in the case of the Hudson
Option Plan and from 714,150 to 918,324 in the case of the Hudson RRP Plan.
"Proxy Statement" means the joint proxy statement/prospectus to be
delivered to shareholders of the Parties in connection with the solicitation of
their approval of the Proposal.
"Registration Statement" means the Registration Statement on Form S-4
(including the Proxy Statement) with respect to shares of Surviving Corporation
Common Stock to be issued in the Merger.
"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.
"Restricted Stock" has the meaning attributed to it in
Section 3.1.
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"Resulting Institution" means the resulting institution of
the Bank Merger.
"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, but excluding the
options being granted by each Party to the other Party pursuant to the stock
option agreements in the forms attached as Exhibits A and B hereto,
respectively.
"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.
"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.
"Surviving Corporation" means Hudson after the Merger.
"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 transactions contemplated by this Agreement,
including the Merger and Bank Merger.
"Year 2000 Compliant" means that all hardware, firmware, software and
computer systems (i) completely and accurately address, produce, store and
calculate data involving dates both before and after January 1, 2000 without
error or interruption; and (ii) provide that all "date"-related functionalities
and data
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fields include the indication of century and millennium, and perform
calculations which involve a four-digit year.
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."
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, Cohoes shall be merged into Hudson. The separate
corporate existence of Cohoes shall cease, Hudson shall be the Surviving
Corporation, and Hudson shall continue its corporate existence under the DGCL.
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2.2 SURVIVING CORPORATION
(a) The name of the Surviving Corporation shall be "Cohoes-Hudson Bancorp,
Inc." The headquarters of the Surviving Corporation shall be located in the
Albany, New York metropolitan
area.
(b) The Certificate of Merger shall amend the Charter of Hudson as of the
Effective Time to (x) change the name of the Surviving Corporation to
Cohoes-Hudson Bancorp, Inc., and (y) to provide until the earlier of (A) six
years after the Effective Time or (B) a business combination approved by the
Board of the Surviving Corporation results in the shareholders of the Surviving
Corporation owning less than 51% of the combined entity that:
(i) the initial Board of the Surviving Corporation shall be made up
of six directors named by a pre-Merger resolution of the Cohoes Board and
six directors named by a pre-Merger resolution of the Hudson Board;
(ii) the classes to which the directors of the Surviving Corporation
shall be assigned shall be designated in the respective resolutions of the
Parties' Boards according to the following table:
Directors Designated by
-----------------------
Cohoes Hudson
-------- ---------
Class expiring in 2001 2 2
Class expiring in 2002 2 2
Class expiring in 2003 2 2
(iii) any vacancy among the directors designated by a Party shall,
suject to the fiduciary duties of the directors of the Surviving
Corporation, be filled from among the pre-merger directors of that Party
who are not already directors or emeritus directors of the Surviving
Corporation. If no such person is available, the vacancy shall be filled by
a person chosen by the remaining directors of the Surviving Corporation
designated by that Party (including any of their successors in office);
(iv) the Board of Directors of the Surviving Corporation shall,
subject to their fiduciary duties, nominate and recommend all incumbents
for reelection as directors. If an incumbent declines to stand for
reelection, a candidate will be chosen according to the procedures of
subparagraph (iii) above as if such position was a vacancy and, to the
extent
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permitted by their fiduciary duties, all directors will vote to nominate
and recommend such candidate to the shareholders. If the directors do not
nominate and recommend such candidate, then the remaining directors of the
Surviving Corporation designated by that Party (including any of their
successors in office) shall choose another candidate according to the
procedures of subparagraph (iii) above until the directors nominate and
recommend such candidate to the shareholders; and
(v) the Charter of Hudson, as so amended, shall be the Charter of
the Surviving Corporation, until amended as provided therein or by law.
(c) At the Effective Time, the Surviving Corporation shall adopt the fee
policies currently in effect at Cohoes for the payment of director and committee
fees, until such time as such fees are adjusted by action of the Board of the
Surviving Corporation.
(d) Prior to Closing, Hudson shall amend its bylaws to provide that the
positions and duties of the Chief Executive Officer and President shall be
separate and distinct as set forth on Exhibit L hereto and to conform to the
agreements of the Parties reflected herein, and such bylaws shall be the bylaws
of the Surviving Corporation, until amended as provided therein or by law. For
the first six years after the Effective Time, the bylaws of the Surviving
Corporation shall be amended only at such times as there are no vacancies on the
Board of the Surviving Corporation.
(e) At the Effective Time, the executive officers of the Surviving
Corporation shall be:
Chairman and Chief Executive Officer Harry L. Robinson
Vice Chairman and President Carl A. Florio
CFO Timothy E. Blow
COO and Executive Vice President Richard A. Ahl
Executive Vice President Sidney D. Richter
(f) It is the intention of the Parties to use the Nasdaq trading symbol
"COHB" for the Surviving Corporation Common Stock.
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2.3 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 mutually designated in writing by
the Parties. The Certificate of Merger shall be filed on the Closing Date.
2.4 TREATMENT OF CAPITAL STOCK
Subject to the provisions of this Agreement, at the Effective Time,
automatically by virtue of the Merger and without any action on the part of any
person or entity:
(a) Each share of Hudson Common Stock shall continue unchanged as a
share of Surviving Corporation Common Stock.
(b) All Cohoes-Owned Shares shall be canceled and retired without
consideration or conversion.
(c) Each other outstanding share of Cohoes Common Stock shall be
converted into the right to receive the Merger Consideration.
2.5 SHAREHOLDER RIGHTS; STOCK TRANSFERS
At the Effective Time, holders of Certificates shall cease to be and shall
have no rights as shareholders of Cohoes. After the Effective Time, there shall
be no transfers on the stock transfer books of Cohoes. If Certificates are
presented for transfer after the Effective Time, they shall be delivered to the
Surviving Corporation or the Exchange Agent for cancellation against delivery,
without interest, of the Merger Consideration.
2.6 FRACTIONAL SHARES
No fractional shares of Surviving Corporation Common Stock will be issued
in the Merger; instead, the Surviving Corporation shall pay to each Certificate
holder who would otherwise be entitled to a fractional share an amount in cash
(without interest) determined by multiplying such fraction by the closing sale
price of Hudson Common Stock, as reported by the Nasdaq reporting system (as
reported in THE WALL STREET JOURNAL or, if
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not reported therein, in another authoritative source), for the last trading day
immediately preceding the Closing Date. No dividend or distribution with respect
to Hudson Common Stock shall be payable on or with respect to any fractional
share interest, and no such fractional share interest shall entitle the owner
thereof to vote or to any other rights of a shareholder. For the purposes of
determining any such fractional share interests, all shares of Surviving
Corporation Common Stock to be issued to a Cohoes shareholder in the Merger
shall be combined so as to calculate the maximum number of whole shares of
Surviving Corporation Common Stock issuable to such Cohoes shareholder.
2.7 OPTIONS
At the Effective Time, each then outstanding Cohoes Option which was also
outstanding on the date hereof shall be assumed by the Surviving Corporation,
shall continue to be outstanding, and shall represent an option to purchase
Surviving Corporation Common Stock subject to the same terms and conditions, but
in an amount and at an exercise price determined as provided below:
(a) the number of shares of Surviving Corporation Common Stock to be
subject to the continuing option shall be equal to the product of the
number of shares of Cohoes Common Stock subject to the Cohoes Option
immediately prior to the Effective Time and the Exchange Ratio, rounded to
the nearest whole share; and
(b) the exercise price per share of Surviving Corporation Common
Stock under the continuing option shall be equal to the exercise price per
share of Cohoes Common Stock under the Cohoes Option immediately prior to
the Effective Time divided by the Exchange Ratio, rounded to the nearest
whole cent.
It is intended that the foregoing assumption shall be undertaken
consistent with and in a manner that will not constitute a "modification" under
Section 424 of the Code as to any Cohoes Option which is an "incentive stock
option".
2.8 EXCHANGE PROCEDURES
(a) At or prior to the Effective Time, Hudson shall deposit with the
Exchange Agent certificates representing shares of Surviving Corporation
Common Stock (and an
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estimated amount of cash for fractional shares) equal to the aggregate
Merger Consideration.
(b) As promptly as practicable after the Effective Time, the
Exchange Agent shall send transmittal materials to each holder of record
of Certificates, which transmittal materials shall specify that risk of
loss and title to Certificates shall pass only upon acceptance of such
Certificates by the Surviving Corporation or the Exchange Agent. Upon
acceptance of a Certificate (or indemnity reasonably satisfactory to the
Surviving Corporation and the Exchange Agent, if any of such Certificates
are lost, stolen or destroyed) the Exchange Agent shall deliver the Merger
Consideration. The Surviving Corporation and the Exchange Agent shall be
entitled to conclusively rely upon the stock transfer books of Cohoes to
establish the identity of the Certificate holders. In the event of a
dispute with respect to ownership of any Certificate, the Surviving
Corporation or the Exchange Agent shall be entitled to deposit any
consideration in respect thereof in escrow with an independent third party
and thereafter be relieved with respect to any claims thereto.
(c) Neither the Exchange Agent nor any Party shall be liable to any
Certificate holder for any amount properly delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws.
(d) No holder of an unsurrendered Certificate shall be eligible to
receive dividends or distributions on Surviving Corporation Common Stock.
Upon exchange of a Certificate for Surviving Corporation Common Stock, the
holder thereof shall be entitled to receive any dividends or
distributions, without interest, declared and paid after the Effective
Time.
(e) Any cash and certificates for Surviving Corporation Common Stock
which remain unclaimed six months after the Effective Time shall be
returned to the Surviving Corporation. Certificate holders shall
thereafter look only to the Surviving Corporation for payment of the
Merger Consideration and unpaid dividends and distributions thereon.
15
2.9 ADDITIONAL ACTIONS
If, at any time after the Effective Time, the Surviving Corporation shall
consider that any further assignments or assurances in law or any other acts are
necessary or desirable to (i) vest, perfect or confirm, of record or otherwise,
in the Surviving Corporation its right, title or interest in, to or under any of
the rights, properties or assets of Cohoes acquired by the Surviving Corporation
in the Merger, or (ii) otherwise carry out the purposes of this Agreement,
Cohoes and its proper officers and directors shall be deemed to have granted to
the Surviving Corporation an irrevocable power of attorney to execute and
deliver all such proper deeds, assignments and assurances in law and to do all
acts necessary or proper to vest, perfect or confirm title to and possession of
such rights, properties or assets in the Surviving Corporation and otherwise to
carry out the purposes of this Agreement; and the proper officers and directors
of the Surviving Corporation are fully authorized in the name of Cohoes or
otherwise to take any and all such action.
ARTICLE III
MUTUAL REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE PARTIES
As of the date hereof, and except as Previously Disclosed, each Party
represents and warrants to the other Party as follows:
3.1 CAPITAL STRUCTURE
Its authorized and issued and outstanding capital stock is correctly set
forth in the table below. All issued and outstanding shares of its stock have
been duly authorized and validly issued, are fully paid and nonassessable, and
have not been issued in violation of the preemptive rights of any person.
Stock Authorized Issued Treasury Outstanding
- ------------------ ------------- ----------- ----------- ---------------
Cohoes Common 25,000,000 9,535,225 1,622,970 7,912,225
Stock
Cohoes 5,000,000 None None None
Preferred Stock
Hudson Common 40,000,000 17,853,750 2,307,190 15,546,560
Stock
Hudson 5,000,000 None None None
Preferred Stock
Its outstanding Rights and shares of outstanding Common Stock subject to
restriction ("Restricted Stock") are correctly set forth in the table below. It
has Previously Disclosed a schedule of its Rights and Restricted Stock that
includes the name of each optionee and holder of Restricted Stock, the number of
options held by each optionee, the number of shares of Restricted Stock held by
each holder thereof, the exercise price of each option and the vesting date of
each option and of each share of Restricted Stock.
Outstanding Restricted
Rights Stock
----------- ----------
Cohoes 860,555 344,972
Hudson 1,151,465 630,677
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 each of its savings bank Subsidiaries 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 executed by it on the date hereof that
relate to 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 any other documents and instruments that are
executed by it on the date hereof
16
that relate to the Transactions and the consummation of the Transactions.
It has properly executed and delivered this Agreement and any other
documents and instruments that are executed by it on the date hereof that
relate to the Transactions, which are its valid and binding obligations,
and neither this Agreement nor any of such other documents or instruments
executed by it on the date hereof that relate to the Transactions violates
its 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 or any of the other documents or instruments that are
executed by it on the date hereof that relate to the Transactions.
3.5 FINANCIAL STATEMENTS; NO ADVERSE CHANGE
It has Delivered Financial Statements which 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 Delivered prior to the date hereof, it and
its Subsidiaries have conducted their businesses only in the ordinary course and
it has not suffered a Material Adverse Effect. Except as disclosed in such
Annual Financial Statements, no circumstances exist that could reasonably be
expected to result in a Material Adverse Effect. 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,
as of the date hereof, the Exchange Ratio utilized to determine Merger
Consideration is fair, from a financial point
of view, to its shareholders.
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3.7 INTERIM EVENTS
Except as Previously Disclosed, since its most recent Interim Financial
Statements it has not 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 the other Party hereunder.
ARTICLE IV
MUTUAL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO
THE PARTIES AND THEIR SUBSIDIARIES
As of the date hereof, except as Previously Disclosed and subject to the
standard set forth in Section 9.8, each Party as to itself and separately as to
each of its Subsidiaries, represents and warrants to the other Party 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 Charter and bylaws as currently in effect. Its
minute books contain complete and accurate records of all meetings and other
corporate actions taken by its shareholders and Board. Its stock ledgers reflect
all transactions in its capital stock, 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.
(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.
18
(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 REGULATORY REPORTS
For the past three years it has timely filed all Regulatory Reports. These
Regulatory Reports, as finally 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. It has
Delivered all Regulatory Reports for the past year.
4.4 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 effectiveness of the Registration Statement.
(c) The filing of the Certificate of Merger.
(d) Any state securities filings.
(e) Any anti-trust filings or approvals.
(f) Listing of the Surviving Corporation Common Stock on the Nasdaq
National Market.
19
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 materially reduce the value of the Transactions.
4.5 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.
4.6 NO BROKER'S OR FINDER'S FEES
No agent, broker, investment banker, person or firm acting on its behalf
or under its authority will be entitled to any fee or commission in connection
with the Transactions.
4.7 EQUITY HOLDINGS
It does not 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.
4.8 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.
4.9 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.
20
(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.
4.10 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 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 an
adequate reserve or accrual for the payment of, all taxes in respect of
the periods covered by such returns and, as of the Effective Time, will
have paid, or where payment is not required to have been made will have
set up an adequate reserve or accrual 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 filed by it are
21
accurate. It either is 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 in respect of any
fiscal year or portion thereof. Its federal, state and local income tax
returns 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 with respect 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 such
return 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.
4.11 YEAR 2000 COMPLIANT
All its hardware, firmware, software and computer systems are Year 2000
Compliant and shall continue to function in accordance with their intended
purpose without error or interruption because of a date in the twenty-first
century during
and after the year 2000.
22
4.12 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.
4.13 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 employees. It is not a party to any collective bargaining
agreement.
4.14 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.
4.15 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,
23
repossession or deed in lieu thereof which are currently held by
it.
4.16 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.
4.17 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.
4.18 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).
4.19 DERIVATIVES CONTRACTS
It is not a party to and has not agreed to enter into an exchange-traded
or over-the-counter swap, forward, future, option, cap, floor or collar
financial contract or any other contract not included in its 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.
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4.20 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.
(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
25
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.
(j) Under each Pension Plan and ERISA Affiliate Plan that is a
defined benefit plan, as of the date of the most recent actuarial
valuation performed prior to the date hereof, the actuarially determined
present value of all "benefit liabilities", within the meaning of Section
4001(a)(16) of ERISA (as determined on the basis of the actuarial
assumptions contained in such actuarial valuation of such Pension Plan or
ERISA Affiliate Plan), did not exceed the then current value of the assets
of such Pension Plan or ERISA Affiliate Plan and since such date
26
there has been neither a material adverse change in the financial
condition of such Pension Plan or ERISA Affiliate Plan nor any amendment
or other change to such Pension Plan or ERISA Affiliate Plan that would
increase the amount of benefits thereunder which reasonably could be
expected to change such result.
(k) All contributions required to be made under the terms of any
Employee Plan or ERISA Affiliate Plan have been
timely made.
(l) 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.
(m) 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.
(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) It has neither made any payments, nor is obligated to make any
payments by virtue of the consummation of any of the Transactions or
otherwise, nor 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) require the Surviving
Corporation or any of its Subsidiaries to record any charge or expense
therefor (or any tax gross-up payments) for financial reporting purposes
on a
27
post-acquisition basis. Neither the execution of this Agreement nor the
consummation of the Transactions will constitute a change in control for
purposes of any of the Hudson Employee Plans or any of the employment
agreements, change in control severance agreements, severance compensation
plan or benefit restoration plan to which Hudson or any of its
Subsidiaries is a party.
4.21 PROPERTIES
(a) All real and personal property owned by it or presently used in
its business is in good condition (ordinary wear and tear excepted) and is
sufficient to carry on its business in the ordinary course of business
consistent with its 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 by it in foreclosure) to all of its
properties and assets, real and personal, except
(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 its 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 such leases and licenses will
not 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 is in compliance with all applicable laws including zoning
laws.
28
4.22 CERTAIN AGREEMENTS
It is not a party to, is not bound or affected by, and does not receive
and is not 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 by it (other than in the case of deposits, FHLB advances and federal
funds purchased) or the guarantee by it 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 it
is obligated to indemnify any present or former director, advisory
director, officer, employee or agent;
(e) any agreement, arrangement or understanding which limits its
freedom to compete in any line of business or with any person;
(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 by it,
which impose any potential recourse obligations (by representation,
warranty, covenant or other contractual terms) upon it; or
(h) any subservicing agreement.
29
4.23 MATERIAL INTERESTS OF CERTAIN PERSONS
(a) No officer, director or employee of it or any "associate" (as
such term is defined in Rule 14a-1 under the Exchange Act) or related
interest of any such person 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 its proxy statement for its most recent
annual meeting of 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.
4.24 NO IMPEDIMENTS
It has not taken or agreed to take any action, nor does it have knowledge
of any fact or circumstance, that would (i) 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
or (ii) prevent the Transactions from qualifying as reorganizations within the
meaning of Section 368(a) of the Code.
4.25 LIQUIDATION ACCOUNT
In the case of the savings bank Subsidiary of a Party, 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.
4.26 DISCLOSURES
None of the representations and warranties by a Party as to itself or its
Subsidiaries pursuant to Articles III, IV or V hereof or any of the information
Previously Disclosed or Delivered by a Party or on its behalf, contains any
untrue statement of a material fact, or omits to state any material fact
30
required to be stated or necessary to make any such information,
in light of the circumstances, not misleading.
ARTICLE V
ADDITIONAL REPRESENTATIONS AND
WARRANTIES OF COHOES
As of the date hereof, and except as Previously Disclosed, Cohoes
represents and warrants to Hudson as follows:
5.1 REGISTRATION OBLIGATIONS
Cohoes is not under any obligation, contingent or otherwise, which will
survive the Effective Time by reason of any agreement to register any of its
securities under the Securities Act or other federal or state securities laws or
regulations.
ARTICLE VI
COVENANTS
6.1 REASONABLE BEST EFFORTS
Subject to the terms and conditions of this Agreement, each Party 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 Merger as promptly as reasonably practicable, and shall cooperate fully
with the other to that end. Prior to the Closing (or earlier if necessary or
appropriate to facilitate any of the Transactions), Cohoes shall take all
necessary action to delete Section 7 of the Charter of its savings bank
Subsidiary.
6.2 SHAREHOLDERS' MEETINGS
Each Party 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 its Proposal. The Board of each Party will recommend that
its shareholders approve
its Proposal.
6.3 REGULATORY MATTERS
(a) The Parties shall cooperate with each other and use their
reasonable best efforts to promptly prepare and file
31
all necessary documentation, to effect all applications (including
applications for the Bank Merger), 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. 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 the other Party or written materials submitted by
the other Party to any third party or any Governmental Entity in
connection with the Transactions. In exercising the foregoing right, each
of the Parties 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 appraised
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 September 30, 2000.
(b) Each Party shall, upon the request of the other Party, furnish
such other Party with all information concerning itself, its present and
former directors and officers, its shareholders and such other matters as
may be reasonably necessary or advisable in connection with any statement,
filing, notice or application made to any Governmental Entity in
connection with the Transactions.
(c) Each Party shall promptly furnish the other Party with copies of
written communications received from, or delivered to, any Governmental
Entity in respect of the Transactions.
6.4 INVESTIGATION AND CONFIDENTIALITY
(a) Each Party shall permit the other Party and its representatives
reasonable access to its and its Subsidiaries properties and personnel,
and shall disclose and make available upon reasonable request to the
extent such disclosure is permitted by law and will not result in
32
the loss or potential loss of any attorney-client privilege, all books,
papers and records relating to its and its Subsidiaries assets, stock
ownership, 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, Charter, bylaws, material 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 the examining Party 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
normal operations of the other Party and its Subsidiaries. Each Party
shall make its directors, officers, employees and agents and authorized
representatives (including counsel and independent public accountants) and
those or its Subsidiaries available to confer with the other Party and its
representatives, provided that such access shall be reasonably related to
the Transactions and shall not unduly interfere with the normal operations
of such Party and its Subsidiaries.
(b) All information furnished previously in connection with the
Transactions or pursuant hereto shall be treated as the sole property of
the Party furnishing the information until completion of the Merger and,
if the Merger shall not occur, the Party receiving the information shall
either destroy or return to the furnishing Party 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 five years from the date of this Agreement
but shall not apply to (i) any information which (x) the Party receiving
the information can establish was already in its possession prior to the
disclosure thereof by the other Party; (y) was then generally known to the
public; or (z) 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
33
requirement or order shall use its best efforts to give the other Party at
least ten business days' prior notice thereof.
6.5 PRESS RELEASES
The Parties shall mutually agree 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 Party, following notification to the other Party, from making
any disclosure which such Party 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 the other Party, each
Party shall carry on its business and cause its Subsidiaries to carry on
their businesses only in the ordinary course consistent with past
practice. During such period, each Party also will use, 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 business relationships exist. Without limiting the generality of
the foregoing, except with the prior written consent of the other Party or
as expressly contemplated hereby, between the date hereof and the
Effective Time, neither Party 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 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 $0.07 per outstanding share of
Cohoes Common Stock and the declaration and payment of regular
quarterly cash dividends by Hudson in an amount not in excess of
$0.05 per outstanding share of Hudson Common Stock, in each case
with usual
34
record and payment dates for such dividends consistent with such
Parties' past dividend practices; provided however, the declaration
of the last quarterly dividend by Cohoes prior to the Effective Time
and the payment thereof shall be coordinated with, and subject to
the approval of (which approval will not be unreasonably withheld),
Hudson so as to preclude any duplication of dividends (it being the
intention of the Parties that holders of Cohoes Common Stock shall
not receive a dividend from both Parties relating to such period, or
fail to receive one dividend relating to such period); and provided
further that the initial dividend for the first full quarterly
dividend period subsequent to the Effective Time shall be equal to
$0.06 per share of Surviving Corporation Common Stock, and (B)
dividends or distributions by a wholly owned Subsidiary of a Party
to such Party;
(ii) issue any shares of its capital stock, other than upon
the exercise of options outstanding on the date hereof to acquire a
Party's Common Stock; issue, grant, modify or authorize any Rights;
purchase any shares of its Common Stock; or effect any
recapitalization, reclassification, stock dividend, stock split or
like change in capitalization;
(iii) amend its Charter or bylaws; or waive or release any
material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of 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) as may be
required pursuant to Previously Disclosed commitments existing on
the date hereof;(B) as may be required by law; (C) merit increases
in accordance with past practices, normal cost-of-living increases,
and normal increases related to promotions or increased job
responsibilities, in each case consistent with past practices; (D)
bonuses under plans and programs Previously Disclosed in amounts
consistent with past practices (even though the amounts thereof are
subject to Board discretion and have not been heretofore
35
determined) which bonuses may be paid on a pro rata basis through
the end of the month preceding the Closing Date; and(E) Cohoes may
make amendments to the Cohoes ESOP Plan and the profit sharing plan
portion of the Cohoes 401(k) Plan to permit it and its Subsidiaries
to make contributions thereto, and Cohoes and its Subsidiaries shall
be permitted to make contributions thereto, on a pro rata basis for
the period from January 1, 2000 through the end of the month
preceding the Closing Date.
(v) enter into or, except as may be required by law, modify
any Employee Plan or other benefit, incentive or welfare contract,
plan or arrangement, or any trust agreement related thereto, in
respect of any of its directors, officers or employees;
(vi) originate or purchase any loan in excess of $1 million
without prior notification to the other Party;
(vii) except as otherwise permitted hereunder, enter into (v)
any agreement for the purchase, sale, transfer or other disposition
of any material properties or material 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 a Party's
Financial Reports of less than $1,000,000 individually) or the
placing of any Encumbrance thereon or (w) any other transaction,
agreement, arrangement or commitment not made in the ordinary course
of business, (x) any agreement, indenture or other instrument
relating to its borrowing of money or its guarantee of any such
obligation, except for deposits, FHLB advances not to exceed one
year to maturity, federal funds purchased and securities sold under
agreements to repurchase in the ordinary course of business
consistent with past practice, (y) any agreement, arrangement or
commitment relating to the employment of an employee or consultant,
or amend any such existing agreement, arrangement or commitment;
provided that a Party or its Subsidiaries may employ an employee or
consultant in the ordinary course if the employment of such employee
or consultant is terminable by such Party or its Subsidiary, as the
case may be, at will without
36
liability, other than as required by law; and that the term of the
employment agreements and change in control severance agreements
existing as of the date hereof involving the Parties or their
Subsidiaries may be extended in accordance with the terms thereof;
or (z) any agreement with a labor union;
(viii) change its method of accounting in effect for its
Annual Financial Statements, 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 federal income tax return for
such year, except as required by changes in laws or regulations;
(ix) enter into or renew any lease of real or personal
property or any service agreement provided the consent of the other
Party shall not be unreasonably withheld or delayed, or fail to give
any required notice to prevent a lease or service agreement from
being renewed; or make any capital expenditures in excess of $50,000
individually or $100,000 in the aggregate (provided the consent of
the other Party shall not be unreasonably withheld or delayed),
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) file any applications or make any contract with respect to
branching or site location or relocation;
(xi) 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;
(xii) 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
37
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;
(xiii) except as necessitated in its reasonable opinion 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 or investment policies, except to the extent required by
law or an applicable regulatory authority;
(xiv) 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 provided the consent of the
other Party shall not be unreasonably withheld or delayed if the
hedging activity is undertaken consistent with past practices and
prudent banking practices;
(xv) take any action that would cause any of the
representations and warranties contained herein not to be true and
correct in any material respect at Closing or that would cause any
of the conditions of Article VII hereof not to be satisfied;
(xvi) take any action that would materially impede or delay
the completion of the Transactions or the ability of either Party to
perform its covenants and agreements under this Agreement;
(xvii) materially increase or decrease the rate of interest
paid on time deposits, or on certificates of deposit, except in a
manner and pursuant to policies consistent with past practices; or
(xviii) agree to do any of the foregoing.
(b) Each Party shall promptly notify the other Party in writing of
the occurrence of any matter or event known to and directly involving it
or any of its Subsidiaries, other than any changes in conditions that
affect the banking or
38
savings institution industry generally, that would have, either
individually or in the aggregate, a Material Adverse Effect on it.
6.7 CERTAIN ACTIONS
Neither Party nor any of its Subsidiaries or any of their respective
directors, officers, 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 a Party may furnish
such information (but limited to the information provided to the other Party in
connection with or relating to this Agreement and the Transactions) or
participate in such negotiations or discussions if such Board, after having
consulted with and considered the advice of outside counsel, has determined that
the failure to do the same would, in the good faith opinion of such Board,
result in a breach of the fiduciary duty of the Board under applicable law. Each
Party will promptly inform the other Party orally and in writing of any such
request for information or of any negotiations or discussions, as well as
instruct its directors, officers, employees, representatives and agents and
those of its Subsidiaries to refrain from taking any action prohibited by this
Section.
6.8 CURRENT INFORMATION
During the period from the date hereof to the Closing Date, each Party
shall, upon request of the other Party, cause one or more of its designated
representatives to confer on a monthly or more frequent basis with
representatives of the requesting Party regarding its and its Subsidiaries
financial condition, operations and businesses and matters relating to the
completion of the Transactions. As soon as reasonably available, but in no event
more than five business days after filing, each Party will Deliver all reports
filed by it under the Thrift Regulations concurrently with the filing of such
reports. Each Party will also Deliver as soon as practicable all Securities
Documents filed by it with the SEC subsequent to the date hereof.
6.9 INDEMNIFICATION
(a) After the Effective Time, the Surviving Corporation shall indemnify,
defend and hold harmless each person who is now,
39
or who has been at any time before the date hereof or who becomes before the
Effective Time, an officer, director or employee of either Party or any of its
respective 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 the Surviving Corporation, 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"), 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, officer or employee of either
Party or any of its respective 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 or federal
law in effect as of the date hereof or as amended applicable to a time before
the Effective Time and under such Party's Charter or bylaws as in effect on the
date hereof (as the case may be). The Surviving Corporation shall pay expenses
in advance of the final disposition of any such action or proceeding to each
Indemnified Party to the full extent permitted by applicable state or federal
law in effect as of the date hereof or as amended applicable to a time before
the Effective Time upon receipt of any undertaking required by applicable law.
Any Indemnified Party wishing to claim indemnification under this Section
6.9(a), upon learning of any Claim, shall notify the Surviving Corporation (but
the failure so to notify the Surviving Corporation 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 the Surviving Corporation) and shall deliver to
the Surviving Corporation any undertaking required by applicable law. The
Surviving Corporation shall ensure, to the extent permitted under applicable
law, that all limitations of liability existing in favor of the Indemnified
Parties as provided in a Party's Charter or bylaws(as the case may be), as in
effect as of the date hereof, or allowed under applicable state or federal law
as in effect as of the date hereof or as such law may be amended applicable to a
time before the Effective Time, with respect to
40
Indemnified Liabilities shall survive the consummation of the Transactions.
(b) From and after the Effective Time, the directors, officers and
employees of each Party hereto or any of its Subsidiaries who become directors,
officers or employees of the Surviving Corporation or any of 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, officers
and employees of the Surviving Corporation and its Subsidiaries are entitled
under the provisions of the Charter and bylaws of the Surviving Corporation and
its Subsidiaries, as in effect from time to time after the Effective Time, as
applicable, and provisions of applicable state and federal law as in effect from
time to time after the Effective Time.
(c) For a period of six years from and after the Effective Time, the
Surviving Corporation shall cause to be maintained in effect the current
policies of directors' and officers' liability insurance maintained by Cohoes
and its Subsidiaries (provided that the Surviving Corporation 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 Hudson's
insurer it may be on terms and conditions (other than coverage and amounts)
consistent with Hudson's current coverage), or in lieu thereof single limit tail
coverage for such period, with respect to claims arising from facts or events
which occurred before the Effective Time. Following consummation of the Merger,
the directors and officers of the Surviving Corporation and its Subsidiaries
shall be covered by the directors' and officers' liability insurance maintained
by the Surviving Corporation and its Subsidiaries.
(d) The obligations of the Surviving Corporation provided under paragraphs
(a), (b) and (c) of this Section 6.9 are intended to be enforceable against the
Surviving Corporation directly by the Indemnified Parties and shall be binding
on all respective successors and permitted assigns of the Surviving Corporation.
41
6.10 ENVIRONMENTAL REPORTS
If requested by a Party within 15 days after the date hereof (or within 15
days after the acquisition or lease of any real property acquired or leased
after the date hereof), the other Party shall, as soon as reasonably
practicable, but not later than 30 days from the receipt of the request, Deliver
a report of a phase one environmental investigation on real property owned or
leased by it (but excluding space in office or retail and similar establishments
leased 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 the requesting Party's reasonable opinion, the other Party
shall Deliver, within 60 days of the receipt of the request, a report of a phase
two environmental investigation on properties requiring such additional study.
The requesting Party shall have ten days from its receipt of the phase one
environmental investigation to request a phase two environmental investigation.
The costs of any environmental investigations shall be borne by the requesting
Party.
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 the Surviving Corporation 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 Hudson
Employee Plan or any future benefit plan of the Surviving Corporation 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 plans of the Surviving
Corporation 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
42
the terms and provisions of such employee plans. Notwithstanding anything
contained above, continuing full time employees of Cohoes and its
Subsidiaries shall not be eligible to participate in the Hudson (Surviving
Corporation) ESOP until the plan year beginning April 1, 2001. The
Surviving Corporation 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) If the employment of any full-time employee of Cohoes, Hudson or
their respective Subsidiaries is involuntarily terminated other than for
Cause within six months following the Effective Time, the Surviving
Corporation or its applicable Subsidiary shall provide severance benefits
to such employee in a cash amount equal to such employee's regular salary
for a one-week period (as in effect immediately prior to the Effective
Time) multiplied by the total number of whole years of such employee's
full-time employment (up to a maximum of thirteen years) at Cohoes, Hudson
or any of their respective Subsidiaries; provided, however that in no
event shall the Surviving Corporation or any of its applicable
Subsidiaries have any obligation to provide severance benefits to any such
full-time employee whose termination of employment occurs due to
resignation or discharge for Cause or who is entitled to severance
benefits or the equivalent thereof under the terms of any other
compensation plan or individual contract or the provisions of Section
6.11(c).
(c) The Surviving Corporation agrees to honor the terms of all
Previously Disclosed employment, consulting, severance and termination
agreements, severance plans, benefit restoration plans, stock option
plans, and recognition and retention plans to which Cohoes or Hudson or
any of their respective Subsidiaries is a party, other than those that are
being terminated and/or replaced at the Effective Time. Nothing herein is
intended to limit the right of the Surviving Corporation to amend or
terminate any of the foregoing in accordance with their terms. The
Surviving Corporation hereby expressly assumes at the Effective Time every
such agreement which by its terms
43
requires express assumption by a successor. Such express assumption shall
occur by virtue of Hudson's execution of this Agreement without any
further action required by the Surviving Corporation upon the completion
of the Merger. Each Cohoes employee who is currently a party to a change
in control severance agreement with Cohoes' savings bank Subsidiary and is
employed at the Effective Time shall be offered at such time the
opportunity to receive a new change in control severance agreement from
the Surviving Corporation in replacement thereof in the same form and with
the same benefits contained in the change in control severance agreements
currently in effect at Hudson in consideration of such employee waiving,
relinquishing and releasing all of his rights under his existing change in
control severance agreement with Cohoes' savings bank Subsidiary unless
his employment with the Resulting Institution is involuntarily terminated
without cause by the Resulting Institution within one year after the
Effective Time, in which case such employee shall remain entitled to
receive the severance and other benefits contained in his or her current
change in control severance agreement with Cohoes' savings bank
Subsidiary. Any employee of Hudson or its savings bank Subsidiary who
currently has a change in control severance agreement with Hudson shall,
if his or her employment is involuntarily terminated by the Surviving
Corporation or the Resulting Institution without cause within one year
after the Effective Time, be entitled to receive benefits equal to one
year's base salary in lump sum on the date of employment termination plus
continuing health insurance coverage(including spousal and dependant
coverage) under the Surviving Corporation's group health insurance plan
during the one year period after the date of employment termination with
all premiums being paid by the Surviving Corporation.
(d) In the sole discretion of the Surviving Corporation, payments
made by it or its Subsidiaries in full and complete satisfaction of
obligations of Cohoes or its Subsidiaries under any Cohoes Employee Plan,
or severance under Section 6.11(b) or under any agreement or arrangement
referred to in Section 6.11(c) shall be subject to the recipient's
delivery to the Surviving Corporation 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
44
obligations thereunder of Cohoes, the Surviving Corporation, and each of
their respective Subsidiaries, affiliates, directors, officers, employees
and agents, and (ii) a release by such recipient of all such parties from
further liability in connection with the particular Cohoes Employee Plan,
the recipients' employment, agreement or arrangement, as applicable.
(e) Prior to the Closing, Cohoes shall make appropriate amendments
to the Cohoes ESOP, to the extent permitted by law, to permit the
Surviving Corporation Common Stock received by the Cohoes ESOP in the
Merger to be tendered to the Surviving Corporation for redemption and/or
cancellation against payment and retirement of the Cohoes ESOP loan by the
Surviving Corporation(in the same manner as if such shares of Surviving
Corporation Common Stock received in the Merger by the Cohoes ESOP were
sold by it in the open market with the cash proceeds therefrom being
utilized to retire the Cohoes ESOP loan). At the Effective Time, the
Cohoes ESOP shall terminate in accordance with its terms based upon the
Merger constituting a change in control termination therein and the
Surviving Corporation shall not take any action to preclude such
termination. Moreover, the Parties shall make all filings with
Governmental Entities relating to the termination of the Cohoes ESOP to
facilitate the repayment of the ESOP loan and the distribution of benefits
to participants thereunder, if any, at the earliest practicable time after
the Effective Time.
(f) At any time on or after the Effective Time as determined by the
Surviving Corporation, the Cohoes 401(k) Plan shall be merged into the
Hudson 401(k) Plan, with the Hudson 401(k) Plan being the surviving plan,
all in accordance with applicable law, provided the Parties understand and
agree that there is no intention on their part for the profit sharing plan
portion of the Cohoes 401(k) Plan to be continued in the surviving plan.
Cohoes shall take all actions requested by Hudson in order to accomplish
the merger of the Cohoes 401(k) Plan into the Hudson 401(k) Plan. The
Surviving Corporation may at any time after the Effective Time modify the
Cohoes 401(k) Plan or the merged 401(k) Plans, as the Surviving
Corporation in its sole discretion determines necessary or appropriate to
accomplish the merger, and to facilitate the ongoing
45
operation of the merged 401(k) Plan, subject to compliance
with applicable law.
(g) Cohoes shall, at the request of Hudson terminate the profit
sharing plan portion of the Cohoes 401(k) Plan at
or prior to the Closing.
(h) The Surviving Corporation shall, as of the Effective Time, grant
stock options and restricted stock awards to directors (including the
emeritus director) and two executive officers of Cohoes as Previously
Disclosed by Hudson.
(i) Each person who is a director of Cohoes, Hudson or its
respective savings bank Subsidiary, immediately prior to the Effective
Time, who does not become an initial director of either the Surviving
Corporation or the Resulting Institution at the Effective Time, together
with Charles Crotty (if he is an emeritus director of Cohoes immediately
prior to the Effective Time) and, at the election of Hudson prior to
Closing each of its emeritus directors (if such director is an emeritus
director of Hudson immediately prior to the Effective Time and no
alternative arrangements have been made by Hudson with such
director),shall be entitled to become an emeritus director of the
Surviving Corporation at the Effective Time as Previously Disclosed by
Hudson. Subsequent to the Effective Time, each of Carl A. Florio and Harry
L. Robinson shall be entitled to become an emeritus director of the
Surviving Corporation as Previously Disclosed by Hudson.
(j) Prior to the Closing, the Board of Hudson shall approve by at
least a 75% vote the directors named by the Cohoes Board pursuant to
Section 2.2(b)(i) hereof so as to ensure that completion of the
Transactions does not result in a change in control under Hudson's change
in control severance agreements.
6.12 BANK MERGER AND RESULTING INSTITUTION
The Parties and their respective savings bank Subsidiaries shall take all
necessary and appropriate actions to make it possible for the Bank Merger to be
authorized, agreed to, and accomplished immediately after the Effective Time, or
at such other time thereafter as may be determined by the Surviving
46
Corporation. In connection with the Bank Merger, the Surviving
Corporation shall cause the following to occur:
(a) the name of the Resulting Institution shall continue as "Hudson
River Bank & Trust Company";
(b) the Resulting Institution shall have 12 directors or such other
equal number as is agreed to by the Parties in writing at or prior to the
Closing. The directors of the Resulting Institution shall be selected by
the directors of the Surviving Corporation. Those directors of the
Surviving Corporation designated by pre-Merger resolutions of each Party
shall, by majority action of such individuals and subject to their
fiduciary duties, designate one half of the directors of the Resulting
Institution according to the following procedure:
(i) Harry L. Robinson and Duncan MacAffer shall
be
designated by Cohoes to be directors of the Resulting
Institution, and Carl A. Florio and Earl Schram, Jr.
shall be designated by Hudson to be directors of the
Resulting Institution;
(ii) the remaining directors of the Resulting Institution
shall be chosen equally from the Boards of Cohoes and Hudson, with
preference given to those directors who are not named as directors
of the Surviving Corporation pursuant to Section 2.2(b)(i) hereof
and who do not elect emeritus director status under Section 6.11(i);
and
(iii) Messrs. MacAffer and Schram shall be Co-Chairmen of the
Board of the Resulting Institution.
(c) For the period set forth in Section 2.2(b)(y) hereof, the Board
of the Surviving Corporation, to the extent consistent with its fiduciary
duties, shall elect all incumbent directors of the Resulting Institution
to additional terms. If an incumbent director designated on behalf of a
Party is not re-elected or declines to stand for re-election, then the
directors of the Surviving Corporation installed by such Party (inclusive
of any of their successors in office) shall nominate the candidate to be
elected in place of such incumbent director and the Board of Directors of
the Surviving Corporation, to the extent consistent with its fiduciary
duties, shall cause such
47
candidate to be elected as a director of the Resulting Institution. If the
Board of the Surviving Corporation does not cause such candidate to be
elected, then the remaining directors of the Surviving Corporation
designated by that Party (including any of their successors in office)
shall choose another candidate until the Board of the Surviving
Corporation causes such candidate to be elected as a director of the
Resulting Institution.
(d) Any vacancy among the directors of the Resulting Institution
elected on behalf of a Party pursuant to Section 6.12(b) or (c) shall be
filled by majority action of those remaining directors of the Resulting
Institution who were
elected on behalf of such Party.
(e) The initial officers of the Resulting Institution shall be:
Vice Chairman and Chief Executive Harry L. Robinson
Officer
Vice Chairman and President Carl A. Florio
CFO Timothy E. Blow
COO and Executive Vice President Richard A. Ahl
Senior Lending Officer and Executive Sidney D. Richter
Vice President
6.13 LITIGATION MATTERS
Each Party will consult with the other about any proposed settlement, or
any disposition of, any litigation.
6.14 CONFORMING ENTRIES
(a) Cohoes recognizes that Hudson and its Subsidiaries may have
adopted different loan, accrual and reserve policies (including loan
classifications and levels of reserves for possible loan losses). Subject
to applicable law, from and after the date hereof to the Closing, Cohoes
and Hudson 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 Hudson and its Subsidiaries, as
specified in each case in writing from Hudson to Cohoes, based upon such
consultation and subject to the conditions in Section 6.14(c) below.
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(b) Subject to applicable law, Cohoes and Hudson shall consult and
cooperate with each other with respect to determining, as specified in a
written notice from Hudson to Cohoes, based upon such consultation and
subject to the conditions in Section 6.14(c) below, the amount and the
timing for recognizing for financial accounting purposes 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 Hudson shall
reasonably request to conform the loan, accrual and reserve policies of
Cohoes and its Subsidiaries to the policies of Hudson 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 Hudson, 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,
Hudson shall certify to Cohoes that all conditions to Hudson's obligation
to consummate the Merger 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 Hudson's obligation to consummate the
Merger) 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.
(d) No reserves, accruals or charges taken in accordance with this
Section may be a basis to assert a violation of a breach of a
representation, warranty or covenant of Cohoes herein.
6.15 INTENTIONALLY OMITTED
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6.16 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.
6.17 FAILURE TO FULFILL CONDITIONS
If a Party determines that a condition to its obligations to consummate
the Merger may not be fulfilled, it will promptly notify the other Party. Each
Party will promptly inform the other Party 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.
6.18 PROXY SOLICITOR
Each Party may, and if requested by the other Party shall, retain a proxy
solicitor in connection with its meeting of shareholders held to vote on its
Proposal.
6.19 SURVIVING CORPORATION COMMON STOCK
Hudson shall reserve for issuance a sufficient number of shares of its
Common Stock for the purpose of issuing the Merger Consideration to Cohoes'
shareholders. Hudson covenants that the Surviving Corporation Common Stock to be
issued in the Merger will be duly authorized, validly issued, fully paid and
nonassessable and not subject to any preemptive rights or other Encumbrance.
6.20 PROSPECTUS/JOINT PROXY STATEMENT
(a) The Parties shall promptly cooperate with each other in the
preparation and filing of the Registration Statement with the
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SEC and after the SEC has cleared the Registration Statement, each shall
promptly mail the Proxy Statement to its shareholders.
(b) Each Party covenants that at the time the Proxy Statement is mailed to
shareholders of the Parties, and at all times after such mailings up to and
including the final required approval of shareholders of the Parties, such Proxy
Statement (including any supplements thereto), with respect to all information
set forth therein relating to it, its Subsidiaries, its shareholders, its Common
Stock, this Agreement, and the Transactions will:
(i) comply in all material respects with applicable provisions of
the Securities Act, the Exchange Act and the rules and regulations under
such Acts; and
(ii) not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements contained therein, in light of the
circumstances under which
they are made, not misleading.
6.21 TAX OPINION
Each Party agrees to use reasonable efforts to obtain a written tax
opinion of counsel, dated as of the Closing, in order to satisfy the condition
set forth in Section 7.1(f).
6.22 RESERVATION OF SHARES TO SATISFY COHOES CONTINUING OPTIONS
Hudson or the Surviving Corporation shall take all corporate action
necessary to reserve for issuance a sufficient number of shares of Surviving
Corporation Common Stock for delivery upon exercise of those Cohoes Options that
have been converted to a right to acquire Surviving Corporation Common Stock
pursuant to Section 2.7. As soon as practicable after the Effective Time, the
Surviving Corporation shall file an appropriate registration statement with
respect to the shares of Surviving Corporation Common Stock subject to Cohoes
Options that have been converted to a right to acquire Surviving Corporation
Common Stock pursuant to Section 2.7 and shall use its reasonable best efforts
to maintain the effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or prospectuses
contained therein) for so long as such options remain outstanding.
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6.23 LISTING
Hudson shall use all reasonable efforts to cause the shares of Surviving
Corporation Common Stock to be issued in the Merger, and the shares of Surviving
Corporation Common Stock to be reserved for issuance pursuant to Section 6.22,
to be approved for listing on the Nasdaq National Market, subject to official
notice of issuance, prior to or as of the Closing.
6.24 NEW AFFILIATES
Cohoes shall use its best efforts to cause any person becoming an
affiliate of Cohoes for purposes of Rule 145 of the Securities Act after the
date hereof to enter into an affiliate agreement in the form attached hereto as
Exhibit E.
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 each Party shall have approved its Proposal
including in the case of Hudson, each part of its Proposal.
(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 no approval or consent referred to in this Section 7.1(b) shall be
deemed to have been received if it shall include any condition or
requirement that, in the aggregate, would materially reduce the economic
or business benefits of the Transactions to the Surviving Corporation as
the Parties shall reasonably and in good faith agree.
52
(c) Neither Party nor its savings bank Subsidiary 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.
(e) The Registration Statement shall have been declared effective
and shall not be subject to a stop order of the SEC (and no proceedings
for that purpose shall have been initiated or threatened by the SEC) and,
if the offer and sale of the Surviving Corporation Common Stock in the
Merger pursuant to this Agreement is subject to the securities laws of any
state, shall not be subject to a stop order of any state securities
authority.
(f) Each Party shall have received an opinion of its tax counsel,
dated as of the Closing, to the effect that for
federal income tax purposes:
(i) The Transactions will qualify as "reorganizations"
under Section 368(a) of the Code.
(ii) No gain or loss will be recognized by any Party or
any of its savings bank Subsidiaries by reason of the consummation
of the Transactions.
(iii) No gain or loss will be recognized by any
shareholder of Cohoes upon the exchange of Cohoes Common Stock
solely for Surviving Corporation Common
stock in the Merger.
(iv) The basis of the Surviving Corporation Common Stock
received by each shareholder of Cohoes who exchanges Cohoes Common
Stock for Surviving Corporation Common Stock in the Merger will be
the same as the basis of the Cohoes Common Stock surrendered in
exchange therefor (subject to any adjustments required as the result
of receipt of cash in lieu of a
53
fractional share of Surviving Corporation Common
Stock).
(v) The holding period of the Surviving Corporation
Common Stock received by a shareholder of Cohoes in the Merger will
include the holding period of the Cohoes Common Stock surrendered in
exchange therefor, provided that such shares of Cohoes Common Stock
were held as a capital asset by such shareholder at the Effective
Time.
(vi) Cash received by a Cohoes shareholder in lieu of a
fractional share interest of Surviving Corporation Common Stock
which such shareholder would otherwise be entitled to receive (or
the deemed issuance of a fractional share interest by the Surviving
Corporation and deemed redemption thereof by it) will qualify as
capital gain or loss (assuming the Cohoes Common Stock was a capital
asset in such shareholder's hands at the Effective Time).
(g) The shares of Surviving Corporation Common Stock to be issued in
the Merger shall have been approved for listing on the Nasdaq National
Market, subject to official notice of issuance.
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) Between the date hereof and the Closing, Hudson and/or its
Subsidiaries shall not have been affected by any event or change which has
had or caused a Material Adverse Effect on Hudson.
(b) The representations and warranties of Hudson made 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 Stock and in Section
3.6) as of the Closing as though made anew at the Closing (as if the
Closing Date was the date hereof for such purpose), in each case as to the
representations and warranties of Hudson
54
under Article IV subject to the standard set forth in
Section 9.8.
(c) Hudson 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) Hudson shall have delivered to Cohoes a certificate, dated the
Closing Date and signed by its Chief Executive Officer and by its Chief
Financial Officer, to the effect that the conditions set forth in Sections
7.2(a) through 7.2(c) have been satisfied.
(e) Hudson shall have furnished Cohoes with such certificates of its
officers or others and such other documents to evidence fulfillment of the
conditions set forth in Sections 7.1 and 7.2 as such conditions relate to
Hudson and its Subsidiaries as Cohoes may reasonably request.
7.3 CONDITIONS PRECEDENT - HUDSON
The obligations of Hudson to effect the Merger shall be subject to
satisfaction of the following conditions at or prior to the Closing unless
waived by Hudson to the extent permitted by
Section 8.4.
(a) Between the date hereof and the Closing, Cohoes and/or its
Subsidiaries shall not have been affected by any event or change which has
had or caused a Material Adverse Effect on Cohoes.
(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 Stock and in Section
3.6) as of the Closing as though made anew at the Closing (as if the
Closing Date was the date hereof for such purpose), in each case as to the
representations and warranties of Cohoes under Article IV subject to the
standard set forth in Section 9.8.
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(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 Hudson a certificate, dated the
Closing Date and signed by its Chief Executive Officer and by its Chief
Financial 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 Hudson with such certificates of its
officers or others and such other documents to evidence fulfillment of the
conditions set forth in Sections 7.1 and 7.3 as such conditions relate to
Cohoes and its Subsidiaries as Hudson may reasonably request.
(f) Each affiliate of Cohoes for purposes of Rule 145 of the
Securities Act shall have entered into an affiliate agreement in the form
attached hereto as Exhibit E.
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 Parties;
(b) by 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;
(c) by either Party, (i) if any Governmental Entity of competent
jurisdiction shall have issued a final nonappealable order prohibiting the
completion of the Merger; or (ii) if application for any necessary prior
56
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 either Party if the shareholders of either Party do not
approve the Cohoes Proposal or the Hudson Proposal (including each part
thereof), as applicable; and
(e) by either Party if the Effective Time has not occurred by the
close of business on February 28, 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.
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 expenses set forth in Section 9.1, and
(d) 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; provided,
however, that the non-breaching Party may only collect monetary damages
against the breaching Party if it shall (i) not have exercised any rights
under the stock option agreement executed by the Parties for benefit of
the non-breaching Party in the form of Exhibit A or B hereto, whichever is
applicable, and (ii) cancel and surrender such stock option agreement to
the breaching Party against payment of such damages.
57
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 the Surviving Corporation or any
affiliate of a Party 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 Parties' shareholders) 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 shareholders of the Parties
have approved this Agreement shall not modify either the amount or form 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
58
breach is inadequate to compensate the aggrieved Party. Accordingly, each Party
shall have the right to seek specific performance of this Agreement and the
other Party's 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.
ARTICLE IX
MISCELLANEOUS
9.1 EXPENSES
Except as otherwise provided below, 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 own financial consultants,
investment bankers, accountants and counsel. The Parties shall equally share all
printing costs, mailing costs and filing fees for the Registration Statement and
the Proxy Statement.
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, 6.11 and 6.12 hereof.
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9.3 NO ASSIGNMENT
None of the Parties hereto may assign any of its rights or obligations
under this Agreement to any other person.
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.
75 Remsen Street
Cohoes, New York 12047
Attention: Harry L. Robinson
President and Chief Executive Officer
With a required copy to:
Elias, Matz, Tiernan & Herrick, L.L.P.
734 15th Street, N.W.
Washington, DC 20005
Attn: Raymond A. Tiernan, Esq.
Gerald F. Heupel, Jr., Esq.
If to Hudson:
Hudson River Bancorp, Inc.
One Hudson City Center
Hudson, New York 12534
Attention: Carl A. Florio
President and Chief Executive Officer
With a required copy to:
Silver, Freedman & Taff, L.L.P.
1100 New York Avenue, N.W., 7th Floor East
Washington, D.C. 20005
Attn: Robert L. Freedman, P.C.
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9.5 COUNTERPARTS
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an 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 no Party shall 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 any Party.
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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/ Richard A. Ahl By: /s/ Harry L. Robinson
- ------------------------- -----------------------------
Name: Richard A. Ahl Name: Harry L. Robinson
Title: Secretary Title: President
HUDSON RIVER BANCORP, INC.
ATTEST:
/s/ Holly Rappleyea By: /s/ Carl A. Florio
- ------------------------- -----------------------------
Name: Holly Rappleyea Name: Carl A. Florio
Title: Secretary Title: President
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