AGREEMENT AND PLAN OF MERGER AND CHARTER CONVERSION
AS AMENDED AND RESTATED
This AGREEMENT AND PLAN OF MERGER AND MERGER CHARTER CONVERSION (the
"Agreement"), dated as of April 25, 1996 among CAYUGA SAVINGS BANK ("CSB"), an
existing New York state-chartered stock form savings bank, IROQUOIS BANCORP,
INC. ("IROQUOIS"), a New York corporation of which CSB is a wholly-owned
subsidiary, and CAYUGA BANK, a bank and trust company formed under the laws of
the State of New York as a subsidiary of Iroquois for the primary purpose of
becoming the successor to CSB upon the merger of CSB with and into Cayuga Bank
(the "Merger"). The merger and related transactions provided for by the terms
and conditions in this Agreement constitute the conversion of the CSB savings
bank charter to that of a bank and trust company with commercial banking powers
(the "Conversion").
BACKGROUND
The parties are entering into this Agreement in order to set forth the
terms and conditions of the Conversion by which CSB will convert its charter
from that of a savings bank under Article VI of the New York State Banking Law
(the "Banking Law") to a bank and trust company with commercial banking powers
under Article III of the Banking Law. The result of the Conversion will be that,
as of the Effective Time (as defined in Article V below), (a) all assets and
property of CSB, including but not limited to any subsidiary, branch offices,
and electronic banking facilities, real, personal and mixed property, tangible
and intangible, and all interests of CSB at such time shall become the property
and interests of Cayuga Bank, (b) all of the issued and outstanding shares of
capital stock of Cayuga Bank will be held solely by Iroquois, (c) Cayuga Bank
shall conduct the business of commercial banking, including to the fullest
extent permitted by law, all business heretofore conducted by CSB, and (d)
Iroquois will be a bank holding company pursuant to the Bank Holding Company Act
of 1956, as amended (the "BHCA") under the jurisdiction of the Federal Reserve
Board ("FRB"). The Conversion is to be accomplished through the following steps:
(1) the formation of a New York state-chartered bank and trust company,
Cayuga Bank, which will be wholly-owned by Iroquois;
(2) the merger (the "Merger") of CSB with and into Cayuga Bank, with
Cayuga Bank as the receiving and surviving corporation;
(3) pursuant to the Merger, and by operation of law,
(a) the surrender of the organization certificate of CSB to the
New York State Banking Department and the cancellation thereof,
and
(b) the cancellation of all of the issued and outstanding shares
of CSB common stock held by Iroquois; and
(4) the registration of Iroquois with the FRB as a bank holding company
and deregistration with the Office of Thrift Supervision (the "OTS") as
a thrift holding company.
The foregoing Merger is intended to constitute a tax-free exchange
under the Internal Revenue Code of 1986, as amended. The parties, intending to
be legally bound hereby, agree as follows:
ARTICLE I. MERGER OF CSB WITH AND INTO CAYUGA BANK AND RELATED MATTERS.
1.1 THE MERGER. At the Effective Time, CSB shall be merged with and
into Cayuga Bank, which shall be the receiving and surviving corporation,
pursuant to the Merger, and the separate existence and charter of CSB shall
cease. The Merger shall be pursuant to the provisions of, and shall have the
effect provided in, Sections 600, 601 and 602 of the Banking Law. At the
Effective Time, all assets and property of CSB and Cayuga Bank (including, but
not limited to the wholly-owned subsidiary of CSB, Cayuga Financial Services,
Inc., the CSB branch offices (the "Branches") and CSB electronic banking
facilities at locations other than the Branches ("ATMs") which Branches and ATMs
are identified on Schedule A attached hereto and made a part hereof, and all
other real, personal and mixed property, tangible and intangible, and interests
then owned by Cayuga Bank or CSB, or which would inure to either of them) shall
immediately, by operation of law and without any conveyance, transfer or further
action, become the property of Cayuga Bank. Commencing as of the Effective Time
and continuing thereafter, Cayuga Bank shall be deemed to be a continuation of
both Cayuga Bank and CSB. All rights and obligations of CSB shall, to the
fullest extent permitted by law, remain unimpaired and Cayuga Bank shall, at the
Effective Time, succeed to all those rights and obligations.
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1.2 CONTINUED EXISTENCE OF CAYUGA BANK. Following the Merger, the
existence of Cayuga Bank shall continue unaffected and unimpaired by the Merger,
with all the rights, privileges, immunities, powers and franchises, and subject
to all the duties and liabilities, of a bank and trust company organized under
Article III of the Banking Law. The Organization Certificate and By-laws of
Cayuga Bank, as in effect immediately prior to the Merger, shall continue in
full force and effect following the Merger until amended or repealed. Cayuga
Bank's name shall not be changed by reason of the Merger. Deposit accounts
formerly insured as CSB accounts shall continue to be insured by the Bank
Insurance Fund of the Federal Deposit Insurance Corporation (the "FDIC") as
Cayuga Bank accounts. Cayuga Bank shall continue as the sole shareholder of
Cayuga Financial Services, Inc., which is the wholly-owned subsidiary of CSB.
1.3 CONTINUED BUSINESS OF CAYUGA BANK. From and after the Effective
Time, and subject to the actions of the Board of Directors and officers of
Cayuga Bank, the business currently conducted by CSB shall continue to be
conducted by it at the same principal office, Branches, ATMs and other places
of business, as a subsidiary of Iroquois, and the directors and officers of CSB
immediately prior to the Effective Time shall continue in their respective
positions as the directors and officers of Cayuga Bank immediately following the
Effective Time, with, in the case of directors, the same terms and classes. It
is the parties' intention that there be continuity of management and of the
operation of CSB's business to the fullest extent permitted by law.
1.4 FURTHER ASSURANCES. CSB and Cayuga Bank each agree that at any
time, or from time to time, as and when requested by Cayuga Bank, by its
successors or assigns, or by Iroquois, CSB shall execute and deliver, or cause
to be executed and delivered, in its name by its last acting officers or by the
corresponding officers of Cayuga Bank (CSB hereby authorizing such officers so
to act in its name), all such conveyances, assignments, transfers, deeds and
other instruments, and shall take or cause to be taken such further or other
action as Cayuga Bank, its successors or assigns, or Iroquois as its sole
shareholder may deem necessary or desirable in order to carry out the vesting,
perfecting, confirming, assignment or other transfer of the interests, assets,
property, privileges, powers, immunities, franchises and other rights referred
to in Article I, or otherwise to carry out the intent and purpose of this
Agreement.
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ARTICLE II. CONVERSION OF CHARTER.
2.1 The terms and conditions of the Merger and Conversion shall be as
follows:
2.1.1 CSB RESTATED ORGANIZATION CERTIFICATE. At the Effective
Time, the Restated Organization Certificate of CSB shall be surrendered
to the Banking Department and shall be surrendered, and thereafter,
shall be of no further force and effect.
2.1.2 CAYUGA BANK ORGANIZATION CERTIFICATE. From and after the
Effective Time, all powers of CSB and Cayuga Bank vested in Cayuga Bank
as the surviving entity in the Merger shall be those authorized by the
Organization Certificate of Cayuga Bank.
2.1.3 CSB STOCK. At the Effective Time, all shares of CSB common
stock held by Iroquois immediately prior to the Effective Time shall be
canceled and shall no longer be deemed to be issued or outstanding for
any purpose.
2.1.4 CAYUGA BANK COMMON STOCK. From and after the Effective
Time, all rights and obligations of CSB and Cayuga Bank vested in Cayuga
Bank as the surviving entity in the Merger shall be represented by the
shares of Cayuga Bank held by Iroquois.
2.1.5 EMPLOYEE AGREEMENTS AND BENEFIT PLANS. At the Effective
Time, Cayuga Bank shall assume all the rights and obligations of CSB
under any and all employment agreements and employee benefit plans,
programs or arrangements to which CSB is a party or in which CSB
participates as a subsidiary of Iroquois.
2.1.6 PENDING JUDICIAL PROCEEDINGS.
(a) From and after the Effective Time, any pending action or
other judicial proceeding to which CSB is a party, shall not be deemed
to have abated or to have discontinued by reason of the Merger, but may
be prosecuted or defended, in the same manner as if the Merger had not
been made, by Cayuga Bank as the substituted party to such action in
place of CSB, and any judgment, order, or decree rendered may be
rendered for or against Cayuga Bank and Cayuga Bank may enter into any
settlement with respect to any such action or proceeding as it deems
desirable or appropriate in its sole discretion.
2.1.7 BANK HOLDING COMPANY STATUS OF IROQUOIS. At the Effective
Time, Iroquois shall be approved as a bank holding company pursuant the
BHCA authorized to own and manage its subsidiaries, including Cayuga
Bank and any other subsidiary then owned by Iroquois. From and after the
Effective Time, Iroquois shall be a bank holding company subject to the
jurisdiction of the FRB and all applicable laws, rules and regulations.
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ARTICLE III. CONDITIONS.
3.1 The obligations of CSB, Cayuga Bank and Iroquois to effect the
Merger and otherwise consummate the transactions contemplated by this Agreement
shall be subject to satisfaction of each of the following conditions at or prior
to the Effective Time of the Conversion:
3.1.1 BOARD APPROVAL. At or prior to the Effective Time, the
respective Boards of Directors of CSB, Cayuga Bank and Iroquois shall each
have duly authorized this Agreement and executed and delivered this
Agreement to each other, and such authorizations shall not have been revoked
or modified at the Effective Time.
3.1.2 STOCKHOLDER APPROVAL. At or prior to the Effective Time,
Iroquois as sole shareholder of CSB and Cayuga Bank shall have approved the
Merger with respect to each of CSB and Cayuga Bank.
3.1.3 APPROVALS; CONSENTS. All approvals and consents as may be
required of the Banking Board or the Superintendent of Banks of the State of
New York, the FDIC, the FRB, the OTS and any other governmental agency
having jurisdiction, and other persons that are, in the opinion of counsel
for CSB, Cayuga Bank and Iroquois required for the lawful consummation of
the Merger and for the registration of Iroquois as a bank holding company
under the jurisdiction of the FRB and deregistration of Iroquois as a thrift
holding company under the jurisdiction of the OTS, as contemplated by this
Agreement, shall have been obtained and shall not have been revoked at the
Effective Time.
3.1.6 TAX STATUS. CSB, Cayuga Bank and Iroquois shall have received
either a ruling from the Internal Revenue Service or an opinion of its
independent auditors or counsel, satisfactory to the parties, substantially
to the effect that for federal income tax purposes the Merger constitutes a
tax free reorganization; provided, however, that in the event the parties do
not obtain a ruling or an opinion of counsel, any other opinion of counsel
with respect to such Merger as may be required for consummation of the
Conversion may be qualified with respect to tax status of the transaction.
ARTICLE IV. TERMINATION; EXPENSES.
4.1 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time (whether before or after any approval by the respective
boards of directors, Iroquois as sole shareholder of CSB and Cayuga Bank or
regulatory agency),
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(a) at the option of the Board of Directors of any of CSB, Cayuga
Bank or Iroquois if any one or more of the conditions to the obligations
of any of them under this Agreement shall not have been satisfied and
shall not be waived at or prior to the Effective Time, or
(b) at the option of the Board of Directors of Iroquois for any
reason.
This Agreement also may be terminated at any time prior to the Effective Time by
the mutual consent of the Boards of Directors all of the parties.
4.2 NO FURTHER LIABILITY. In the event of the termination of this
Agreement pursuant to this Article IV, this Agreement shall be void and of no
further force or effect, and there shall be no further liability or obligation
of any nature on the part of any of the parties or their respective directors,
officers, employees or stockholders, by reason of this Agreement or the
termination of this Agreement.
4.3 COSTS AND EXPENSES. Each party shall pay all costs and expenses
incurred by it in connection with this Agreement and the transactions
contemplated by this Agreement.
ARTICLE V. EFFECTIVE TIME OF MERGER AND CONVERSION.
The "Effective Time" for all purposes of this Agreement shall be the
later of (a) the date designated by CSB and Cayuga Bank to the Superintendent of
Banks of the State of New York (the "Superintendent") as the date on which the
Merger shall be effective or (b) the date on which the Superintendent files this
Agreement pursuant to Section 601-b(1) of the New York Banking Law.
ARTICLE VI. MISCELLANEOUS.
6.1 WAIVER, AMENDMENT. Any of the terms or conditions of this
Agreement that legally may be waived may be waived at any time by any party
which is, or the stockholder of which is, entitled to the benefit of such terms
or conditions. Any of such terms or conditions may be amended in whole or in
part at any time, to the extent not prohibited by applicable law, rules and
regulations, by an agreement in writing, executed in the same manner as this
Agreement.
6.2 COUNTERPARTS. This Agreement may be executed by the parties in any
number of separate counterparts, each of which shall be an original, but such
counterparts together shall constitute but one and the same instrument.
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6.3 HEADINGS. The article and section headings contained in this
Agreement are for reference purposes only and shall not be deemed to be part of
this Agreement or to affect the meaning or interpretation of this Agreement.
6.4 EXECUTION BY CAYUGA BANK. CSB and Iroquois acknowledge that, as of
the date of this Agreement, Cayuga Bank may not have received its charter from
the Superintendent and therefore would not have the legal capacity to execute
and deliver this Agreement. If so, Iroquois agrees to cause Cayuga Bank to
execute and deliver this Agreement promptly following the issuance of the
organization certificate by the Superintendent. CSB and Iroquois agree to be
bound by this Agreement prior to and following such execution and delivery by
Cayuga Bank.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
CAYUGA SAVINGS BANK
by: /s/ Richard D. Callahan
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Richard D. Callahan
IROQUOIS BANCORP, INC.
by /s/ Richard D. Callahan
- -------------------------------------
Richard D. Callahan
CAYUGA BANK
by /s/ Richard D. Callahan
- -------------------------------------
Richard D. Callahan
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SCHEDULE A
LOCATION OF BANKING FACILITIES
CAYUGA SAVINGS BANK
BRANCH OFFICES
Main Office 1935 East Shore Drive
115 Genesee Street Lansing Plaza, (Unincorporated Area)
Auburn, Cayuga County, NY 13021 Town of Lansing, Tompkins County, NY 14882
Owned Leased - expires 12/31/97
268 Grant Avenue 8330 Harwood Drive,
Auburn, Cayuga County, NY 13021 (Unincorporated Area)
Owned Town of Sandy Creek, Oswego County, NY 13083
Owned
Drive-In Office 31-33 Main Street
State Street & Loop Road Moravia, Cayuga County, NY 13118
Auburn, Cayuga County, NY 13021 Owned
Owned
351 West Genesee Street 9015 North Seneca Street
Auburn, Cayuga County, NY 13021 Weedsport, Cayuga County, NY 13166
Owned Owned
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ELECTRONIC FACILITIES NOT LOCATED AT A BRANCH OFFICE
ATM's located at:
Cayuga County Community College Auburn Memorial Hospital
Franklin Street 17 Lansing Street
Auburn, Cayuga County, NY 13021 Auburn, Cayuga County, NY 13021
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