As filed with the Securities and
Exchange Commission on November 21, 1997 REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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WARWICK COMMUNITY BANCORP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 06-1497903
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
18 OAKLAND AVENUE
WARWICK, NEW YORK 10990-0591
(914) 986-2206
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
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THE WARWICK SAVINGS BANK
401(K) SAVINGS PLAN
(FULL TITLE OF THE PLAN)
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Timothy A. Dempsey
President, Chief Executive Officer and Trustee
Warwick Community Bancorp, Inc.
18 Oakland Avenue
Warwick, New York 10990-0591
(914) 986-2206
Copy to:
Douglas J. McClintock, Esq.
Thacher Proffitt & Wood
Two World Trade Center - 38th Floor
New York, New York 10048
(212) 912-7400
(NAME AND ADDRESS, INCLUDING ZIP CODE, TELEPHONE NUMBER
AND AREA CODE, OF AGENT FOR SERVICE)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Title of Securities to be Registered Registered(1) Price Per Share (2) Aggregate Offering Price (2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 600,000 shares $10.00 $6,000,000 $1,818.18
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Plan Participation Interests(3) -- -- -- --
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(1) Based on the estimated number of shares of common stock of Warwick
Community Bancorp, Inc. ("Warwick") under The Warwick Savings Bank
401(k) Savings Plan (the "Plan") with the current assets of the Plan
and the projected contributions to the Plan through December 1, 2002.
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457(h) of the Securities Act of 1933, as amended
(the "Securities Act"), pursuant to which shares of common stock of
Warwick Community Bancorp, Inc. ("Warwick") offered pursuant to the
Plan are deemed to be offered at $10 per share, the price at which
shares of Warwick common stock are being offered to the public pursuant
to the Registration Statement on Form S-1 (Registration No.333-36021).
(3) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests
to be offered pursuant to the employee benefit plan described herein.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
Note: The document containing the information specified in this Part
I will be sent or given to employees as specified by Rule 428(b)(1). Such
document need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended ("Securities Act").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with the
Commission by the Registrant (File No. 0-23293) are incorporated by reference in
this registration statement:
(1) the Registrant's Registration Statement on Form S-1 dated September
19, 1997, Registration No. 333-36021, as amended by Pre-Effective
Amendment No. 1 to Form S-1 dated October 30, 1997, and any
amendments thereto; and
(2) the description of the Registrant's common stock (the "Common
Stock") contained in the Registrant's Registration Statement on Form
S-1 dated September 19, 1997, Registration No. 333-36021, as amended
by Pre-Effective Amendment No. 1 to Form S-1 dated October 30, 1997,
and any amendments thereto.
All documents filed by the Registrant pursuant to Sections 13, 14,
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") subsequent
to the date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold are incorporated herein by reference, and such
documents shall be deemed to be a part hereof from the date of filing of such
documents.
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Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
Warwick Community Bancorp, Inc. will provide without charge to each
person to who this Prospectus is delivered, upon request of any such person, a
copy of any or all of the foregoing documents incorporated herein by reference
(other than exhibits to such documents). Written requests should be directed to:
Nancy L. Sobotor-Littell, Corporate Secretary and Director of Human Resources,
The Warwick Savings Bank, 18 Oakland Avenue, Warwick, New York 10990. Telephone
requests may be directed to (914) 986-2206.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's authority to indemnify its officers and directors
is governed by the provisions of Section 145, as amended, of the Delaware
General Corporation Law ("GCL"). The following is an extract from Article IX of
the Certificate of Incorporation of the Registrant concerning indemnification of
directors and officers:
LIMITATION OF DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, except to the extent such exemption from
liability or limitation thereof is expressly prohibited by the GCL as the
same exists or may hereafter be amended.
Any amendment, termination or repeal of this Article IX or any
provisions hereof shall not adversely affect or diminish in any way any
right or protection of
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<PAGE>
a director of the Corporation existing with respect to any act or omission
occurring prior to the time of the final adoption of such amendment,
termination or repeal.
In addition to any requirements of law or of any other provisions of
this Certificate of Incorporation, the affirmative vote of the holders of
not less than eighty percent (80%) of the total number of votes eligible to
be cast by the holders of all outstanding shares of Capital Stock entitled
to vote thereon shall be required to amend, alter, rescind or repeal any
provision of this Article IX.
SECTION 1. ACTIONS, SUITS OR PROCEEDINGS OTHER THAN BY OR IN THE
RIGHT OF THE CORPORATION. To the fullest extent permitted by the GCL, the
Corporation shall indemnify any person who is or was or has agreed to
become a director or officer of the Corporation who was or is made a party
to or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation) by reason of the fact that he or she is or was or has
agreed to become a director or officer of the Corporation, or is or was
serving or has agreed to serve at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action
alleged to have been taken or omitted in such capacity, and the Corporation
may indemnify any other person who is or was or has agreed to become an
employee or agent of the Corporation who was or is made a party to or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he or she is or was or has agreed to become an
employee or agent of the Corporation, or is or was serving or has agreed to
serve at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges, expenses (including
attorneys' fees and expenses), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her or on his or her
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed
to be in, or not opposed to, the best interests of the Corporation and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful. Notwithstanding anything
contained in this Article X, but subject to Section 7 hereof, the
Corporation shall not be obligated to indemnify any director
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<PAGE>
or officer in connection with an action, suit or proceeding, or part
thereof, initiated by such person against the Corporation unless such
action, suit or proceeding, or part thereof, was authorized or consented to
by the Board of Directors.
SECTION 2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION.
To the fullest extent permitted by the GCL, the Corporation shall indemnify
any person who is or was or has agreed to become a director or officer of
the Corporation who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact
that he or she is or was or has agreed to become a director or officer of
the Corporation, or is or was serving or has agreed to serve at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by
reason of any action alleged to have been taken or omitted in such
capacity, and the Corporation may indemnify any other person who is or was
or has agreed to become an employee or agent of the Corporation who was or
is made a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation
to procure a judgment in its favor by reason of the fact that he or she is
or was or has agreed to become an employee or agent of the Corporation, or
is or was serving or has agreed to serve at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against
costs, charges and expenses (including attorneys' fees and expenses)
actually and reasonably incurred by him or her or on his or her behalf in
connection with the defense or settlement of such action or suit and any
appeal therefrom, if he or she acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests of
the Corporation, except no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to
be liable to the Corporation unless and only to the extent that the Court
of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
such liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such costs,
charges and expenses which the Court of Chancery or such other court shall
deem proper. Notwithstanding anything contained in this Article X, but
subject to Section 7 hereof, the Corporation shall not be obligated to
indemnify any director or officer in connection with an action or suit, or
part thereof, initiated by such person against the Corporation unless such
action or suit, or part thereof, was authorized or consented to by the
Board of Directors.
SECTION 3. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF A
SUCCESSFUL PARTY. To the extent that a present or former director or
officer of the Corporation has been successful, on the merits or otherwise
(including, without
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limitation, the dismissal of an action without prejudice), in defense of
any action, suit or proceeding referred to in Section 1 or 2 of this
Article X, or in defense of any claim, issue or matter therein, such person
shall be indemnified against all costs, charges and expenses (including
attorneys' fees and expenses) actually and reasonably incurred by such
person or on such person's behalf in connection therewith.
SECTION 4. INDEMNIFICATION FOR EXPENSES OF A WITNESS. To the extent
that any person who is or was or has agreed to become a director or officer
of the Corporation is made a witness to any action, suit or proceeding to
which he or she is not a party by reason of the fact that he or she was, is
or has agreed to become a director or officer of the Corporation, or is or
was serving or has agreed to serve as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, at the request of the Corporation, such person shall be
indemnified against all costs, charges and expenses actually and reasonably
incurred by such person or on such person's behalf in connection therewith.
To the extent that any person who is or was or has agreed to become
an employee or agent of the Corporation is made a witness to any action,
suit or proceeding to which he or she is not a party by reason of the fact
that he or she was, is or has agreed to become an employee or agent of the
Corporation, or is or was serving or has agreed to serve as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, at the request of the Corporation, such
person may be indemnified against all costs, charges and expenses actually
and reasonably incurred by such person or on such person's behalf in
connection therewith.
SECTION 5. DETERMINATION OF RIGHT TO INDEMNIFICATION. Any
indemnification under Section 1 or 2 of this Article X (unless ordered by a
court) shall be made, if at all, by the Corporation only as authorized in
the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper under the circumstances
because he or she has met the applicable standard of conduct set forth in
Section 1 or 2 of this Article X. Any indemnification under Section 4 of
this Article X (unless ordered by a court) shall be made, if at all, by the
Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper
under the circumstances. Such determinations shall be made with respect to
a person who is a director or officer at the time of such determination (a)
by a majority vote of directors who were not parties to such action, suit
or proceeding even though less than a quorum of the Board of Directors, (b)
by a committee of such directors designated by majority vote of such
directors, even though less than a quorum, (c) if there are no such
directors, or if such directors so direct, by independent counsel in a
written opinion or (d) by the shareholders of the Corporation. To obtain
indemnification under this Article X, any person referred
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to in Section 1, 2, 3 or 4 of this Article X shall submit to the
Corporation a written request, including therewith such documents as are
reasonably available to such person and are reasonably necessary to
determine whether and to what extent such person is entitled to
indemnification.
SECTION 6. ADVANCEMENT OF COSTS, CHARGES AND EXPENSES. Costs,
charges and expenses (including attorneys' fees and expenses) incurred by
or on behalf of a director or officer in defending a civil or criminal
action, suit or proceeding referred to in Section 1 or 2 of this Article X
shall be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding; PROVIDED, HOWEVER, that the payment of
such costs, charges and expenses incurred by or on behalf of a director or
officer in advance of the final disposition of such action, suit or
proceeding shall be made only upon receipt of a written undertaking, by or
on behalf of the director or officer to repay all amounts so advanced in
the event that it shall ultimately be determined that such director or
officer is not entitled to be indemnified by the Corporation as authorized
in this Article X or by law. No security shall be required for such
undertaking and such undertaking shall be accepted without reference to the
recipient's financial ability to make repayment. The majority of the
directors who were not parties to such action, suit or proceeding may,
upon approval of such director or officer of the Corporation, authorize the
Corporation's counsel to represent such person, in any action, suit or
proceeding, whether or not the Corporation is a party to such action, suit
or proceeding.
SECTION 7. PROCEDURE FOR INDEMNIFICATION. Any indemnification under
Section 1, 2, 3 or 4 of this Article X or advancement of costs, charges and
expenses under Section 6 of this Article X shall be made promptly, and in
any event within sixty (60) days (except indemnification to be determined
by shareholders which will be determined at the next annual or special
meeting of shareholders), upon the written request of the director or
officer. The right to indemnification or advancement of expenses as granted
by this Article X shall be enforceable by the director, officer, employee
or agent in any court of competent jurisdiction in the event the
Corporation denies such request, in whole or in part, or if no disposition
of such request is made within sixty (60) days of the request. Such
person's costs, charges and expenses incurred in connection with
successfully establishing his or her right to indemnification or
advancement, to the extent successful, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action
(other than an action brought to enforce a claim for the advancement of
costs, charges and expenses under Section 6 of this Article X where the
required undertaking, if any, has been received by the Corporation) that
the claimant has not met the standard of conduct set forth in Section 1 or
2 of this Article X, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its
directors, its independent counsel and its shareholders) to have made a
determination prior to the commence-
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ment of such action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of conduct
set forth in Section 1 or 2 of this Article X, nor the fact that there has
been an actual determination by the Corporation (including its directors,
its independent counsel and its shareholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard
of conduct.
SECTION 8. SETTLEMENT. The Corporation shall not be obligated to
reimburse the costs, charges and expenses of any settlement to which it has
not agreed. If, in any action, suit or proceeding (including any appeal)
within the scope of Section 1 or 2 of this Article X, the person to be
indemnified shall have unreasonably failed to enter into a settlement
thereof offered or assented to by the opposing party or parties in such
action, suit or proceeding, then, notwithstanding any other provision of
this Article X, the indemnification obligation of the Corporation to such
person in connection with such action, suit or proceeding shall not exceed
the total of the amount at which settlement could have been made and the
expenses incurred by or on behalf of such person prior to the time such
settlement could reasonably have been effected.
SECTION 9. OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION;
INDIVIDUAL CONTRACTS. The indemnification and advancement of costs, charges
and expenses provided by or granted pursuant to this Article X shall not be
deemed exclusive of any other rights to which any person seeking
indemnification or advancement of costs, charges and expenses may be
entitled under law (common or statutory) or any By-Law, agreement, policy
of indemnification insurance or vote of shareholders or directors or
otherwise, both as to action in his or her official capacity and as to
action in any other capacity while holding office, and shall continue as to
any person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the legatees, heirs, distributees, executors
and administrators of any such person. Nothing contained in this Article X
shall be deemed to prohibit the Corporation from entering into, and the
Corporation is specifically authorized to enter into, agreements with
directors, officers, employees and agents providing indemnification rights
and procedures different from those set forth herein. All rights to
indemnification under this Article X shall be deemed to be a contract
between the Corporation and each director, officer, employee or agent of
the Corporation who serves or served in such capacity (or is or was serving
or has agreed to serve at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise) at any time while this Article X is in
effect.
SECTION 10. SAVINGS CLAUSE. If this Article X or any portion shall
be invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify each director or officer, and may
indemnify each em-
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ployee or agent, of the Corporation as to any costs, charges, expenses
(including attorneys' fees and expenses), judgments, fines and amounts paid
in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative (including an action by or
in the right of the Corporation), to the full extent permitted by any
applicable portion of this Article X that shall not have been invalidated
and to the fullest extent permitted by applicable law.
SECTION 11. INSURANCE. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any person who is or was a
director, officer, employee or agent of the Corporation or is or was
serving or has agreed to serve at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any costs, charges or
expenses, liability or loss incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such
costs, charges or expenses, liability or loss under the Certificate of
Incorporation or applicable law; PROVIDED, HOWEVER, that such insurance is
available on acceptable terms as determined by a vote of the Board of
Directors. To the extent that any director, officer, employee or agent is
reimbursed by an insurance company under an indemnification insurance
policy for any costs, charges, expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement to the fullest
extent permitted by any applicable portion of this Article X, the By-Laws,
any agreement, the policy of indemnification insurance or otherwise, the
Corporation shall not be obligated to reimburse the person to be
indemnified in connection with such proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 The Warwick Savings Bank 401(k) Savings Plan and
Trust, effective as of March 1, 1987, amended and
restated effective as of May 6, 1996, incorporated by
reference to the Registrant's Registration Statement
on Form S-1, dated September 19, 1997, as amended,
Registration No. 333-36021, and any amendments thereto.
4.2 Form of Trust Agreement by and between The Warwick Savings
Bank and Marine Midland Bank for The Warwick Savings Bank
401(k) Plan Employer Stock Fund.
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4.4 Certificate of Incorporation of Warwick Community
Bancorp, Inc., incorporated by reference to the
Registrant's Registration Statement on Form S-1,
dated September 19, 1997, as amended, Registration
No. 333-36021, and any amendments thereto.
4.5 By-Laws of Warwick Community Bancorp, Inc., incorporated by
reference to the Registrant's Registration Statement on
Form S-1, dated September 19, 1997, Registration No.
333-36021, and any amendments thereto.
5. Opinion of Thacher Proffitt & Wood, counsel for Registrant,
as to the legality of the securities being registered.
23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5
hereof).
23.2 Consent of Arthur Andersen, LLP.
ITEM 9. UNDERTAKINGS.
A. QUALIFICATION OF PLAN. The undersigned Registrant hereby undertakes
to submit the Plan and any amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and has made or will make all changes required by the
IRS in order to qualify the Plan under section 401(a) of the Internal Revenue
Code of 1986, as amended.
B. RULE 415 OFFERING. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
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(2) That, for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
C. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
D. INCORPORATED ANNUAL AND QUARTERLY REPORTS. The undersigned
registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the latest
annual report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3 of Regulation S-X
are not set forth in the prospectus, to deliver, or cause to be delivered to
each person to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide such
interim financial information.
E. FILING OF REGISTRATION ON FORM S-8. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant for expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Warwick, State of New York on the 21st day of
November, 1997.
Warwick Community Bancorp, Inc.
(Registrant)
By: /s/ Timothy A. Dempsey
--------------------------------------
Timothy A. Dempsey
President, Chief Executive Officer and
Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Timothy A. Dempsey President, Chief Executive Officer November 21, 1997
- ---------------------------------------------- (Principal Executive Officer) and
Timothy A. Dempsey Director
/s/ Ronald J. Gentile Executive Vice President, Chief November 21, 1997
- ---------------------------------------------- Operating Officer (Principal Financial
Ronald J. Gentile Officer) and Director
/s/ Frances M. Gorish Director November 21, 1997
- ----------------------------------------------
Frances M. Gorish
/s/ R. Michael Kennedy Director November 21, 1997
- ----------------------------------------------
R. Michael Kennedy
/s/ Fred M. Knipp Director November 21, 1997
- ----------------------------------------------
Fred M. Knipp
/s/ Emil R. Krahulik Director November 21, 1997
- ----------------------------------------------
Emil R. Krahulik
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Thomas F. Lawrence, Jr. Director November 21, 1997
- ----------------------------------------------
Thomas F. Lawrence, Jr.
/s/ Henry L. Neilsen, Jr. Director November 21, 1997
- ----------------------------------------------
Henry L. Neilsen, Jr.
/s/ John W. Sanford III Director November 21, 1997
- ----------------------------------------------
John W. Sanford III
/s/ Robert N. Smith Director November 21, 1997
- ----------------------------------------------
Robert N. Smith
</TABLE>
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<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1933,
the directors (or other persons who administer the employee benefit plan) have
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Village of Warwick, State of New
York, on November 21, 1997.
The Warwick Savings Bank
401(k) Savings Plan (Registrant)
By: /s/ Nancy Sobotor-Littell
-------------------------------------------
Nancy Sobotor-Littell
Plan Administrator
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<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION NO.
- ------ ----------- ---
4.1 The Warwick Savings Bank 401(k) Savings Plan and Trust,
effective as of March 1, 1987, amended and restated effective
as of May 6, 1996, incorporated by reference to the
Registrant's Registration Statement on Form S-1, dated
September 19, 1997, Registration No. 333-36021, and any
amendments thereto ................................................
4.2 Form of Trust Agreement by and between The Warwick Savings
Bank and Marine Midland Bank for The Warwick Savings Bank
401(k) Savings Plan Employer Stock Fund............................
4.4 Certificate of Incorporation of Warwick Community Bancorp,
Inc., incorporated by reference to the Registrant's
Registration Statement on Form S-1, dated September 19, 1997,
Registration No. 333-36021, and any amendments thereto.............
4.5 By-Laws of Warwick Community Bancorp, Inc., incorporated by
reference to the Registrant's Registration Statement on Form
S-1, dated September 19, 1997, Registration No. 333 -36021,
and any amendments thereto.........................................
5. Opinion of Thacher Proffitt & Wood, counsel for Registrant, as
to the legality of the securities being registered.................
23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5
hereof)............................................................
23.2 Consent of Arthur Andersen LLP.....................................
-15-
EXHIBIT 4.2
-----------
Form of Trust Agreement by and between The Warwick Savings Bank and Marine
Midland Bank for The Warwick Savings Bank 401(k) Savings Plan Employer
Stock Fund.
<PAGE>
TRUST AGREEMENT
BETWEEN
THE WARWICK SAVINGS BANK
AND
MARINE MIDLAND BANK
FOR THE
THE WARWICK SAVINGS BANK
401(K) SAVINGS PLAN EMPLOYER STOCK FUND
-------------------------------------------
Entered into as of November 21, 1997
<PAGE>
TABLE OF CONTENTS
-----------------
PAGE
----
Article I
DEFINITIONS
Section 1.01 Specific Definitions.......................................-1-
Article II
ESTABLISHMENT OF THE TRUST
Section 2.01 Establishment of Trust.....................................-2-
Section 2.02 Purposes of Trust..........................................-2-
Article III
ADMINISTRATION
Section 3.01 Appointment of Committee...................................-3-
Section 3.02 Action of the Committee....................................-3-
Section 3.03 Plan Administrator.........................................-3-
Section 3.04 Duties of the Trustee......................................-4-
Section 3.05 Trustee as Agent...........................................-4-
Article IV
INVESTMENTS
Section 4.01 General Investment Operations..............................-4-
Section 4.02 Investment Funds...........................................-5-
Section 4.03 Appointment of Investment Manager..........................-5-
Section 4.04 Investment Decisions.......................................-6-
Section 4.05 Brokerage..................................................-7-
Section 4.06 Investment in Collective Funds.............................-7-
Section 4.07 Liquidity..................................................-7-
<PAGE>
PAGE
----
Article V
POWERS OF TRUSTEE
Section 5.01 Specific Powers............................................-8-
Section 5.02 Discretionary Powers.......................................-9-
Article VI
PAYMENTS OF BENEFITS AND EXPENSES
Section 6.01 Authorization by Plan Administrator.......................-10-
Section 6.02 Representations by the Plan Administrator.................-11-
Section 6.03 Form of Payment...........................................-11-
Section 6.04 Fees and Expenses of Trustee..............................-11-
Section 6.05 Taxes.....................................................-11-
Article VII
VOTING RIGHTS AND TENDER OFFERS
Section 7.01 Exercise of Voting Rights.................................-12-
Section 7.02 Response to Tender Offers and Similar Events..............-13-
Section 7.03 Dissent and Appraisal Rights..............................-14-
Article VIII
LIABILITY OF THE TRUSTEE
Section 8.01 Contributions.............................................-15-
Section 8.02 Claims Limited to the Trust Fund..........................-15-
Section 8.03 Retention of Advisors.....................................-16-
Section 8.04 Qualification of Plan and Trust...........................-16-
Section 8.05 General Duties of Trustee.................................-16-
Section 8.06 No Liability for Acts of Others...........................-16-
Section 8.07 Indemnification...........................................-17-
Section 8.08 Communications............................................-19-
Section 8.09 Proof of Matters..........................................-19-
Section 8.10 Party in Interest Information.............................-20-
Section 8.11 Disputes..................................................-20-
-ii-
<PAGE>
PAGE
----
Article IX
ACCOUNTING OF THE TRUSTEE
Section 9.01 Keeping of Accounts.......................................-20-
Section 9.02 Rendering of Accounts.....................................-20-
Section 9.03 Discharge of Trustee......................................-21-
Section 9.04 Right to Judicial Settlement..............................-21-
Article X
REMOVAL AND RESIGNATION OF THE TRUSTEE
Section 10.01 Removal or Resignation....................................-21-
Section 10.02 Successor Trustee.........................................-22-
Section 10.03 Delivery of Trust Fund....................................-22-
Article XI
AMENDMENT AND TERMINATION
Section 11.01 Amendment.................................................-22-
Section 11.02 Termination...............................................-22-
Article XII
MISCELLANEOUS
Section 12.01 Merger of Trustee.........................................-23-
Section 12.02 Affiliated Companies......................................-23-
Section 12.03 Alienation of Trust Fund..................................-24-
Section 12.04 Applicable Law............................................-24-
Section 12.05 Headings Not Part of the Agreement........................-24-
Section 12.06 Multiple Copies...........................................-24-
-iii-
<PAGE>
TRUST AGREEMENT
FOR THE
THE WARWICK SAVINGS BANK
401(K) SAVINGS PLAN EMPLOYER STOCK FUND
This AGREEMENT ("Agreement") has been made as of the 21st day
of November, 1997 between THE WARWICK SAVINGS BANK, a savings bank organized
under the laws of the State of New York with its principal place of business at
18 Oakland Avenue, Warwick, New York 10990 ("Bank") and MARINE MIDLAND BANK, a
bank organized under the laws of the State of New York, with a principal place
of business at 140 Broadway, New York, New York 10005 ("Trustee").
W I T N E S S E T H :
WHEREAS, the Bank maintains The Warwick Savings Bank 401(k)
Savings Plan ("Plan") for the exclusive benefit of certain of its employees and
their beneficiaries; and
WHEREAS, the Plan contemplates the establishment of one or
more trusts to hold, invest and administer amounts contributed under the Plan,
and the Bank desires to establish an investment fund that will invest primarily
in shares of common stock of Warwick Community Bancorp, Inc. ("Shares"); and
WHEREAS, the Trustee has agreed to hold, invest and administer
the assets of the Plan that are held under this Trust Fund (as defined in
Section 1.01(g)) on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the Bank and the Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 SPECIFIC DEFINITIONS.
The following terms as used in this Agreement have the
meanings indicated unless the context requires otherwise:
(a) "Board" means the Board of Trustees of the Bank prior to
the conversion of the Bank from mutual to stock form and the Board Directors of
the Bank thereafter.
<PAGE>
(b) "Committee" means the committee appointed by the Bank
under Section 3.01 of this Agreement.
(c) "ERISA" means the Employee Retirement Income Security Act
of 1974, as it has been and may be amended, and corresponding provisions of
future laws, as they may be amended.
(d) "Internal Revenue Code" means the Internal Revenue Code of
1986, as it has been and may be amended, and corresponding provisions of future
laws, as they may be amended.
(e) "Participant" means a person for whose benefit
contributions have been made to the Trust Fund under the Plan.
(f) "Prohibited Transaction" has the meaning of that term
under ERISA and the Internal Revenue Code.
(g) "Trust Fund" means the assets held under this Trust by the
Trustee, including contributions made under the Plan which are transferred to
the Trustee by the Bank, a predecessor or co-trustee and any income and
appreciation, and reinvestments attributable thereto.
ARTICLE II
ESTABLISHMENT OF THE TRUST
SECTION 2.01 ESTABLISHMENT OF TRUST.
The Bank hereby establishes with the Trustee a Trust for the
purpose of holding and administering the Trust Fund in accordance with this
Agreement. Such Trust shall continue for such time as may be necessary to
accomplish the purpose for which it was created, subject to the provisions of
Section 10.02.
SECTION 2.02 PURPOSES OF TRUST.
The Bank and the Trustee shall discharge their duties with
respect to the Trust Fund for, and the Trust Fund shall be used solely for and
not diverted from, the exclusive purpose of providing benefits to Participants
and their beneficiaries who are entitled to benefits under the Plan, other than
such part as is required to pay taxes and reasonable expenses of administering
the Plan. Notwithstanding the preceding sentence, however, contributions may be
returned to the Bank by the Trustee at the direction of the Committee as
hereinafter provided, if the Committee certifies in writing to the Trustee that
one or both of the following circumstances exist and that the Plan permits such
repayments:
(a) If a contribution is made by the Bank by a mistake of
fact, the contribution may be returned to the Bank within one year after it was
paid to the Trustee;
-2-
<PAGE>
(b) If a contribution is conditioned upon its deductibility
under Section 404 of the Internal Revenue Code, the contribution, to the extent
the deduction is disallowed by the Internal Revenue Service, may be returned to
the Bank within one year after the disallowance or, if such disallowance is
appealed to the courts, within one year after the date a court decision
upholding such disallowance becomes final.
For purposes of this Section, the word "contribution" has the
same meaning as it does in Section 403(c) of ERISA.
ARTICLE III
ADMINISTRATION
SECTION 3.01 APPOINTMENT OF COMMITTEE.
The Bank shall appoint a Committee of one or more persons to
represent it in dealing with the Trustee under this Agreement. The Secretary or
assistant Secretary of the Bank shall promptly give the Trustee a certified copy
of each Board resolution appointing or removing a member of the Committee or
approving any action with respect to this Agreement. Until it receives such
written notice that a person is no longer a member of the Committee, the Trustee
shall be fully protected in assuming that the person is still a member of the
Committee. When the Secretary or Assistant Secretary delivers to the Trustee a
certified copy of a resolution of the Board appointing a member of the
Committee, he shall also deliver a specimen signature of that member. The
members of the Committee shall be "named fiduciaries" within the meaning of
Section 402(a) of ERISA with respect to the Plan and the Trust. If at any time
no members are currently serving as the Committee, or if no Committee is
appointed, the Board shall be deemed to be the Committee.
SECTION 3.02 ACTION OF THE COMMITTEE.
The Bank shall certify to the Trustee the names and specimen
signatures of the members of the Committee appointed by the Bank to give
directions to the Trustee. Such certification shall include directions as to the
number of signatures required for any communication or direction to the Trustee.
The Bank shall promptly give notice to the Trustee of changes in the membership
of the Committee. The Committee may also certify to the Trustee the name of any
person, together with a specimen signature of any such person, authorized to act
for it in relation to the Trustee. The Committee shall promptly give notice to
the Trustee of any change in any person authorized to act on behalf of it. For
all purposes under this Agreement, until any such notice is received by the
Trustee, the Trustee shall be fully protected in assuming that the membership of
the Committee and the authority of any person certified to act in its behalf
remain unchanged.
SECTION 3.03 PLAN ADMINISTRATOR.
The Bank shall certify to the Trustee the name and specimen
signature of the Plan Administrator appointed by the Bank to administer the Plan
and give directions to the Trustee. Such
-3-
<PAGE>
certification shall include directions as to the number of signatures required
for any communication or direction to the Trustee. The Bank shall promptly give
notice to the Trustee of changes in the identity of the Plan Administrator. The
Plan Administrator may also certify to the Trustee the name of any person,
together with a specimen signature of any such person, authorized to act for the
Plan Administrator in relation to the Trustee. The Plan Administrator shall
promptly give notice to the Trustee of any change in any person authorized to
act on behalf of the Plan Administrator. For all purposes under this Agreement,
until any such notice is received by the Trustee, the Trustee shall be fully
protected in assuming that the identity of the Plan Administrator and the
authority of any person certified to act on the Plan Administrator's behalf
remain unchanged.
SECTION 3.04 DUTIES OF THE TRUSTEE.
The Trustee shall have only those duties specifically assumed
by it in this Agreement. The Trustee shall have no responsibility to administer
or interpret the Plan, to enforce payment of any contributions to the Trust
Fund, or to see that the Trust Fund is adequate to meet liabilities under the
Plan. The Trustee shall be fully protected in acting upon any instrument,
certificate or paper reasonably believed by it to be genuine and to be signed or
presented by the proper person or persons, and the Trustee shall be under no
duty to make any investigation or inquiry as to any statement contained in any
such writing but may accept the same as conclusive evidence of the truth and
accuracy of the statements therein contained. The Trustee shall not be liable
for the proper application of any part of the Trust Fund if payments are made in
accordance with the written directions of the Committee or the Plan
Administrator as herein provided. All persons dealing with the Trustee are
released from inquiry into the decision or authority of the Trustee and from
seeing to the application of any monies, securities or other property paid or
delivered to the Trustee.
SECTION 3.05 TRUSTEE AS AGENT.
The Bank or anyone acting on its behalf may at any time employ
the Trustee in its corporate (and not its fiduciary) capacity, in addition to
its duties provided hereunder, as agent to perform any act, keep any records or
accounts, or make any computations required by the Bank or the Committee. Any
such agency relationship shall be established by a separate agreement between
the Bank and the Trustee and the existence of such arrangement shall not affect
its responsibilities as Trustee under this Agreement.
ARTICLE IV
INVESTMENTS
SECTION 4.01 GENERAL INVESTMENT OPERATIONS.
The Trust Fund shall be held by the Trustee and shall be
invested and reinvested as hereinafter provided in this Article IV, without
distinction between principal and income and without regard to the restrictions
of the laws of the State of New York, or of any other jurisdiction, relating to
the investment of trust funds.
-4-
<PAGE>
SECTION 4.02 INVESTMENT FUNDS.
(a) The Trustee shall establish and maintain an investment
fund, to be known as the Employer Stock Fund, which fund shall be invested in
Shares and, only to the extent provided in Section 4.07 or pending investment in
Shares, in cash and short-term investments.
(b) The Trustee shall establish and maintain, for the
investment of the Trust Fund, such separate investment funds in addition to the
Employer Stock Fund established pursuant to Section 4.02(a), (individually, the
Employer Stock Fund and such other investment funds are referred to herein as an
"Investment Fund"), as the Bank may request by written notice to the Trustee.
(c) To the extent directed to do so pursuant to Section 4.04,
the Trustee shall hold and invest amounts paid over to it pursuant to this
Agreement in such Investment Funds as shall have been established in accordance
with Section 4.02(a) and 4.02(b), and shall allocate amounts paid over to it
among the Investment Funds in the manner and in the proportion designated by the
Committee or such other person or entity selected by the Committee. The Trustee
shall also credit to each Investment Fund all earnings and appreciation
allocable thereto and shall charge against each such fund any depreciation,
losses, expenses, payments and distributions allocable thereto.
(d) The Trustee shall invest and reinvest amounts allocated to
each Investment Fund in accordance with such written investment criteria as
shall be established by the Committee and communicated in writing to the
Trustee. Notwithstanding any such investment criteria, the Trustee is authorized
to retain in an Investment Fund, for as long as it is deemed advisable by the
person responsible for directing the investment of the particular Investment
Fund, (i) any securities or other property received by means of a dividend,
distribution, exchange, conversion, liquidation or otherwise than by initial
purchase; and (ii) any investments which were authorized hereunder when made by
the Trustee.
SECTION 4.03 APPOINTMENT OF INVESTMENT MANAGER.
(a) The Committee may, in its discretion, appoint an
investment manager ("Investment Manager") to direct the investment and
reinvestment of all or any portion of the Trust Fund. Any such Investment
Manager shall either: (i) be registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Investment Advisers Act"); (ii) be
a bank, as defined in the Investment Advisers Act; or (iii) be an insurance
company qualified to perform investment services under the laws of more than one
state.
(b) The Committee shall give written notice to the Trustee of
the appointment of an Investment Manager pursuant to Section 4.03(a). Such
notice shall include: (i) a specification of the portion of the Trust Fund to
which the appointment applies; (ii) a certification by the Committee that the
Investment Manager satisfies the requirements of Section 4.03(a)(i), (ii) or
(iii); (iii) a copy of the instruments appointing the Investment Manager and
evidencing the Investment Manager's acceptance of the appointment; (iv)
directions as to the manner in which the Investment Manager is authorized to
give
-5-
<PAGE>
instructions to the Trustee, including the persons authorized to give
instructions and the number of signatures required for any written instruction;
(v) an acknowledgment by the Investment Manager that it is a fiduciary of the
Plan; and (vi) if applicable, a certificate evidencing the Investment Manager's
current registration under the Investment Advisers Act. For purposes of this
Agreement, the appointment of an Investment Manager pursuant to this Section
4.03 shall become effective as of the effective date specified in such notice,
or, if later, as of the date on which the Trustee receives proper notice of such
appointment.
(c) The Committee shall give written notice to the Trustee of
the resignation or removal of an Investment Manager previously appointed
pursuant to this Section 4.03. From and after the date on which the Trustee
receives such notice, or, if later, the effective date of the resignation or
removal specified in such notice, the Committee shall be responsible, in
accordance with this Section 4.03, for the investment and reinvestment of the
portion of the Trust Fund theretofore managed by such Investment Manager, until
such time as a successor Investment Manager has been duly appointed pursuant to
this Section 4.03.
SECTION 4.04 INVESTMENT DECISIONS.
(a) The Trustee shall invest and reinvest the Trust Fund as
follows:
(i) To the extent that any portion of the Trust Fund
shall be allocated to an Investment Fund other than
the Employer Stock Fund, such portion of the Trust
fund shall be invested and reinvested:
(A) by the Trustee, in its discretion; or
(B) if an Investment Manager is appointed to direct
the investment of amounts allocated to such
Investment Fund, in accordance with the
directions of such Investment Manager; and
(ii) to the extent that any portion of the Trust Fund is
allocated to the Employer Stock Fund, such portion
of the Trust Fund shall be invested and reinvested
in Shares at such prices and at such times as the
Trustee, in its discretion, may determine.
The Trustee shall be under no duty or obligation to review any investment to be
acquired, held or disposed of pursuant to directions of the Committee, any
Investment Manager nor to make any recommendation with respect to the
disposition or continued retention of any such investment. To the extent that
the Trustee is subject to direction by the Committee or an Investment Manager,
or the Trustee is acting pursuant to Section 4.04(c), the Bank hereby agrees to
indemnify the Trustee and hold it harmless from and defend it against any claim
or liability which may be asserted against the Trustee by reason of any action
or inaction by it pursuant to a direction by the Committee or by an Investment
Manager or failing to act in the absence of any such direction.
-6-
<PAGE>
(b) The Committee or an Investment Manager appointed pursuant
to Section 4.03 may, from time to time, issue orders for the purchase or sale of
securities directly to a broker. Written notification of the issuance of each
such order shall be given promptly to the Trustee by the Committee or the
Investment Manager, and the execution of each such order shall be confirmed by
written advice to the Trustee by the broker. Such notification shall be
authority for the Trustee to pay for securities purchased against receipt
thereof and to deliver securities sold against payment therefor, as the case may
be.
(c) To the extent that neither the Committee nor an Investment
Manager furnishes directions as to the investment of any portion of the Trust
Fund that is subject to its direction, to the extent provided by ERISA, the
Trustee shall invest and reinvest the Trust Fund in any savings account, time or
other interest bearing deposit or in any other interest bearing obligation of
any one or more banks, savings banks, savings and loan associations and other
financial institutions, or any of them, including any subsidiary of the Bank,
or, subject to Section 4.06, in any commingled, collective, common or group
trust fund at least 75 % of the assets of which are invested in such savings
accounts, time or other interest bearing deposits or other interest bearing
obligations.
SECTION 4.05 BROKERAGE.
The Trustee shall have the power and authority to be exercised
in its sole discretion at any time and from time to time to issue and place
orders for the purchase or sale of securities directly with qualified brokers or
dealers. Such orders may be placed with such qualified brokers and/or dealers
who also provide investment information or other research or statistical
services to the Trustee in its capacity as a fiduciary or investment manager for
other clients.
SECTION 4.06 INVESTMENT IN COLLECTIVE FUNDS.
The Trustee may from time to time temporarily transfer any
assets of the Trust Fund to, or withdraw the same from, any pooled investment
fund or group or collective trusts maintained by a bank or trust company (which
may be the Trustee or an affiliate of the Trustee) supervised by a state or
federal agency, which has been determined by the Internal Revenue Service to be
a qualified trust or fund exempt from federal income tax under Section 501(a) of
the Internal Revenue Code, and which has been established to permit separate
pension and profit sharing trusts qualified under Section 401(a) of the Internal
Revenue Code to pool some or all of their funds for investment purposes. To the
extent the Trust Fund is invested in such a pooled fund or group or collective
trust, the terms of the instrument establishing such pooled fund or group or
collective trust are made a part of this Agreement as fully as if set forth at
length herein. The commingling of assets of this Trust with assets of other
qualified participating trusts in such pooled funds or group or collective
trusts is specifically authorized.
SECTION 4.07 LIQUIDITY.
Notwithstanding any provision of this Article IV to the
contrary, the Trustee, in its sole discretion or as the Committee may request,
may retain uninvested cash or cash balances, and sell, to provide cash or cash
balances, such investments in whatever portion of the Trust Fund that
-7-
<PAGE>
it may deem advisable without being required to pay interest thereon. Pending
investment, the Trustee, in its sole discretion, may temporarily invest any
funds held or received by it for investment in an investment fund established
hereunder in commercial paper or in obligations or, or guaranteed by, the United
States government or any of its agencies.
ARTICLE V
POWERS OF TRUSTEE
SECTION 5.01 SPECIFIC POWERS.
In addition to, and not in limitation of, the powers now, or
which may later become, vested in it by law or by other provisions of this
Agreement, but subject to Section 2.02, Section 4.04 and this Article V, the
Trustee is authorized and empowered:
(a) to purchase, receive or subscribe for Shares (for which
the Trustee shall pay no more than "adequate consideration," as defined in
Section 3(18) of ERISA and shall pay no commission), other securities or other
property and to retain in trust such Shares, other securities or other property;
(b) to sell, exchange, redeem, transfer, and otherwise dispose
of, by private agreement or public auction, any property held in the Trust Fund;
and no person dealing with the Trustee need see to the application of the
consideration paid therefor or inquire into the validity, expediency, or
propriety of any such transaction;
(c) subject to the provisions of Article VII, to exercise
voting rights either in person, by limited or general power of attorney, or by
proxy, with respect to Shares and other stocks, securities or other property,
and generally to exercise with respect to Trust Fund assets all rights, powers,
and privileges that may be lawfully exercised by any person owning similar
property in his own right;
(d) subject to the provisions of Article VII, to exercise any
options, conversion rights, or rights to subscribe for additional Shares,
stocks, bonds or other securities appurtenant to any Shares, stocks, bonds or
other securities held by it, and to make any necessary payments in connection
with such exercise; to join in, dissent from, and oppose the reorganization,
consolidation, recapitalization, liquidation, merger, or sale, mortgage, pledge
or lease, of corporate property with respect to any corporations or property in
which it may be interested as Trustee; to deposit any property with any
protective, reorganization or similar committee, and to pay or agree to pay part
of the expenses and compensation of any committee and any assessments levied
with respect to property so deposited; and
(e) to compromise, compound, submit to arbitration or settle
any debt or obligation owing to or from it as Trustee; to reduce or increase the
rate of interest on extension, or otherwise modify, foreclose upon default, or
otherwise enforce any such obligation.
-8-
<PAGE>
ln exercising such powers with respect to any portion of the Trust Fund that is
invested in the discretion of the Trustee or pursuant to Section 4.04(c), the
Trustee shall act in its discretion. In exercising such powers with respect to
directions of the Committee or of an Investment Manager, the Trustee shall act
in accordance with directions provided by the Committee or Investment Manager.
The Trustee shall be under no duty or obligation to review any action to be
taken, nor to recommend any action, pursuant to this Section 5.01 with respect
to any portion of the Trust Fund that is under the direction of the Committee or
an Investment Manager. The Trustee shall have no liability of responsibility
for, and the Bank agrees to indemnify the Trustee and hold it harmless from and
defend it against any claim or liability which may be asserted against the
Trustee by reason of, its actions or inaction pursuant to the direction of, or
its failure to act in the absence of directions from, the Committee, the Plan
Administrator or an Investment Manager, except to the extent provided in Section
8.06.
SECTION 5.02 DISCRETIONARY POWERS.
In addition to and not by way of limitation of any other
powers conferred upon the Trustee by law or other provisions of this Agreement,
but subject to Section 2.02 and this Article V, the Trustee is authorized and
empowered, in its discretion:
(a) to sue or defend suits or legal proceedings to protect or
enforce any interest in the Trust and to represent the Trust in all suits or
legal proceedings in any court or before any other administrative agency, body
or tribunal, where it is advised by counsel that such action is required by
applicable law;
(b) to organize corporations and/or partnerships or
established ancillary or subsidiary trusts under the laws of any jurisdiction
for the purpose of holding title to any property held in the Trust Fund;
(c) to borrow, subject to the provisions of Article VI and
ERISA, for the purpose of the Trust from any person or persons, and for any sums
so borrowed to issue its promissory note as Trustee and to secure the repayment
thereof by pledging all or any part of the assets of the Trust fund; no person
lending money to the Trustee shall be required to see to the application of the
money lent or to inquire into the validity, expediency, or propriety of any such
borrowing;
(d) to hold part of the Trust Fund uninvested in cash or cash
balances for liquidity purposes and not be required to pay interest thereon;
(e) to hold any property at any place, except that it shall
not maintain the indicia of ownership of any assets of the Trust Fund outside
the jurisdiction of the district courts of the United States except as permitted
by regulations issued by the Secretary of Labor of the United States under
Section 404(b) or ERISA.
(f) to make, sign, acknowledge, and deliver deeds, leases,
assignments, and other instruments;
-9-
<PAGE>
(g) to cause any property to be registered in the name of its
nominee, or to hold any such property in such form that it will pass by delivery
and, in accordance with Sections 11-1.8 and 11-1.9 of the Estates, Powers and
Trusts Law of the State of New York, to deposit or arrange for the deposit of
any securities held by it with the Federal Reserve Bank of New York or in a
clearing corporation (as defined in the New York State Uniform Commercial Code);
provided, however, that the records of the Trustee shall at all times show that
any such property held or registered in the name of another is part of the Trust
Fund;
(h) to employ legal counsel, brothers, and other advisors,
agents, or employees to perform services for the Trust Fund or to advise it with
respect to its duties and obligations under this Agreement and in connection
with the Trust, and to pay to them from the Trust Fund such compensation as it
deems appropriate; and
(i) generally to do all acts, whether or not expressly
authorized, which the Trustee may deem necessary or desirable for the protection
of the Trust Fund.
ARTICLE VI
PAYMENTS OF BENEFITS AND EXPENSES
SECTION 6.01 AUTHORIZATION BY PLAN ADMINISTRATOR.
The Trustee shall pay benefits and administrative expenses
under the Plan, transfer funds to any other trust fund established under the
Plan or make direct transfers to other tax-qualified plans, only when it
receives (and in accordance with) written instructions of the Plan Administrator
indicating the amount of the payment and the name and address of the recipient.
The Trustee need not inquire into whether any payment the Plan Administrator
instructs it to make is consistent with the terms of the Plan or applicable law
or otherwise proper. Any payment made by the Trustee in accordance with such
instructions shall be a complete discharge and acquittance to the Trustee. If
the Plan Administrator advises the Trustee that benefits have become payable
with respect to a Participant's interest in the Trust Fund but does not instruct
the Trustee as to the manner of payment, the Trustee shall hold the
Participant's interest in the Trust until it receives written instructions from
the Plan Administrator as to the manner of payment. The Trustee shall not pay
benefits from the Trust Fund without such instructions, even though it may be
informed from other sources, including, without limitation, a Participant or
beneficiary, that benefits are payable under the Plan. The Trustee shall have no
responsibility to determine when, to whom, or in what amount benefits and
expenses are payable under the Plan. If the Plan Administrator so directs, the
Trustee shall segregate amounts payable with respect to the interest in the Plan
of any Participant and administer them separately from the rest of the Trust
Fund in accordance with the Plan Administrator's instructions. The Plan
Administrator shall certify to the Trustee that any such instructions are
consistent with the Plan.
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SECTION 6.02 REPRESENTATIONS BY THE PLAN ADMINISTRATOR.
The Trustee may require the Plan Administrator to certify in
writing that any payment of benefits or expenses it instructs the Trustee to
make pursuant to Section 6.01 is: (a) in accordance with the terms of the Plan,
and/or (b) one which the Plan Administrator is authorized by the Plan and any
other applicable instruments to direct, and/or (c) made for the exclusive
purpose of providing benefits to Participants and their beneficiaries, or
defraying reasonable expenses of Plan administration, and/or (d) not made to a
party in interest, within the meaning of Section 3(14) of ERISA or a
disqualified person, within the meaning of Section 4975 of the Internal Revenue
Code, and/or (e) not a Prohibited Transaction. If the Trustee requests,
instructions to pay benefits shall be made by the Plan Administrator on forms
prepared by the Trustee that include any or all of the above representations.
The Trustee shall be fully protected in relying on the truth of any such
representation by the Plan Administrator and shall have no duty to investigate
whether such representations are correct or to see to the application of any
amounts paid to the recipient. The Bank shall indemnify the Trustee and hold it
harmless from any liability resulting from acts or omissions taken in reliance
on such representations.
SECTION 6.03 FORM OF PAYMENT.
Payments of money by the Trustee for any benefit or expense
under the Plan may be made by, when applicable, mailing its check for the amount
thereof to the person designated by the Committee as entitled to receive such
payment to such address as may have been last furnished to the Trustee by the
Committee. If no such address has been furnished, benefits or expenses may be
mailed by the Trustee to such person in care of the Committee or the Bank. To
the extent permitted under the Plan, distributions of Shares shall be made by
causing Warwick Community Bancorp, Inc., or its transfer agent, to issue to the
distributee a stock certificate evidencing ownership of the designated number of
Shares. To the extent that any distribution of Shares to any person requires the
registration of such Shares under the securities or blue sky laws of the United
States or any state, or otherwise requires any governmental approvals, the Bank
shall undertake to complete such registration or obtain such approvals at its
sole expense.
SECTION 6.04 FEES AND EXPENSES OF TRUSTEE.
The Trustee shall receive as reasonable compensation for its
services as Trustee such amounts as may, from time to time, be agreed upon in
writing between the Bank and the Trustee. Such fees and expenses may be charged
directly to the Trust Fund unless paid by the Bank. The Trustee shall have a
lien against the Trust Fund for the unpaid amount of any fees and disbursements
due it and, in its discretion, may withdraw the same from the Trust Fund.
SECTION 6.05 TAXES.
All taxes that may be levied or assessed upon or in respect of
the Trust Fund shall be paid from the Trust Fund. The Trustee shall notify the
Committee of any proposed or final assessments of taxes and may assume that any
such taxes are lawfully levied or assessed unless the Committee advises it in
writing to the contrary within fifteen (15) days after receiving the above
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notice from the Trustee. In such case, the Trustee, if requested by the
Committee in writing, shall contest the validity of such taxes in any manner
deemed appropriate by the Committee; the Bank may itself contest the validity of
any such taxes, in which case the Committee shall so notify the Trustee and the
Trustee shall have no responsibility or liability respecting such contest. If
either party to this Agreement contests any such proposed levy or assessments,
the other party shall provide such information and cooperation as the party
conducting the contest shall reasonably request.
ARTICLE VII
VOTING RIGHTS AND TENDER OFFERS
SECTION 7.01 EXERCISE OF VOTING RIGHTS.
(a) Each person with amounts invested in the Employer Stock
Fund shall have the right to confidentially direct the exercise of voting rights
appurtenant to Shares attributable to the portion of such person's account
invested in the Employer Stock Fund; PROVIDED, HOWEVER, that such person had
investments in the Employer Stock Fund as of the most recent valuation date
coincident with or immediately preceding the applicable record date for
exercising such voting rights. Such person shall, for this purpose, be deemed a
"named fiduciary" within the meaning of section 402(a)(2) of ERISA. Such
direction shall be made by completing and filing with the inspector of
elections, Trustee, or such other person who shall be independent of the issuer
of Shares as the Committee shall designate, at least 10 days prior to the date
of the meeting of holders of Shares at which such voting rights will be
exercised, a written direction in the form and manner prescribed by the
Committee. The inspector of elections, Trustee or such other person designated
by the Committee shall tabulate the directions given on a strictly confidential
basis and shall provide the Committee with only the final results of such
tabulation. The final results of the tabulation shall be followed by the
Committee or the Board in directing the Trustee as to the manner in which such
voting rights shall be exercised. The Committee shall furnish, or cause to be
furnished, to each person whose account is invested in the Employer Stock Fund
all annual reports, proxy materials and other information known by the Committee
to have been furnished by the issuer of the Shares or by any proxy solicitor to
the holders of Shares.
(b) To the extent that any person with amounts invested in the
Employer Stock Fund fails to give instructions with respect to the exercise of
voting rights appurtenant to Shares attributable to the portion of such person's
account invested in the Employer Stock Fund with respect to each matter to be
voted upon:
(i) the Committee or the Board shall direct the Trustee to:
(A) cast a number of affirmative votes equal to the
product of (I) the number of Shares for which no written
instructions have been given, multiplied by (II) a
fraction, the numerator of which is the number of Shares
for which affirmative votes will be cast in accordance
with written instructions given as provided in section
7.01(a) and the denominator of which is the aggregate
number of affirmative and negative votes which will be
cast in accordance with written
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instructions given as aforesaid, and (B) cast a number
of negative votes equal to the excess (if any) of (I)
the number of Shares for which no written instructions
have been given over (II) the number of affirmative
votes being cast with respect to such Shares pursuant to
section 7.01(b)(i)(A); or
(ii) if the Committee or the Board shall determine that it
may not, consistent with its fiduciary duties, direct
the Trustee to vote the Shares for which no written
instructions have been given in the manner described in
section 7.01(b)(i), it shall direct the Trustee to vote
such Shares in such manner as the Compensation Committee
or the Board, in its discretion, may determine to be in
the best interests of the persons to whom such Shares
are attributable.
(c) To the extent permitted by applicable law, the Trustee
shall act in accordance with the directions that it receives from the Committee
for each matter as to which voting rights are to be exercised. If the Committee
does not provide the Trustee with directions, then to the extent permitted by
applicable law, the Trustee shall exercise the voting rights appurtenant to
Shares held in the Employer Stock Fund in its discretion. The Trustee shall have
no discretion over or responsibility or liability for its actions taken in
accordance with the Committee's directions. The Bank hereby agrees to indemnify
the Trustee and hold it harmless from and defend it against any claim asserted
against or liability imposed on the Trustee by reason of its having acted on any
direction given by the Committee in accordance with this Section 7.01 or failing
to act in the absence of such direction.
SECTION 7.02 RESPONSE TO TENDER OFFERS AND SIMILAR EVENTS.
(a) Each person with amounts invested in the Employer Stock
Fund shall have the right to confidentially direct the response to a tender
offer, or to any other offer, made to the holders of Shares generally, to
purchase, exchange, redeem or otherwise transfer Shares, with respect to the
Shares attributable to the portion of such person's account invested in the
Employer Stock Fund; PROVIDED, HOWEVER, that such person had amounts invested in
the Employer Stock Fund as of the most recent valuation date coincident with or
immediately preceding the first day for delivering Shares or otherwise
responding to such tender or other offer. Such person shall, for such purpose,
be deemed a "named fiduciary" within the meaning of section 402(a)(2) of ERISA.
Such direction shall be made by completing and filing with the Trustee, or such
other person who shall be independent of the issuer of Shares as the Committee
shall designate, at least 10 days prior to the last day for delivering Shares or
otherwise responding to such tender or other offer, a written direction in the
form and manner prescribed by the Committee. The Trustee or such other person
designated by the Committee shall tabulate the directions given on a strictly
confidential basis and shall provide the Committee with only the final results
of such tabulation. The final results of the tabulation shall be followed by the
Committee or the Board in directing the Trustee as to the number of Shares to be
delivered in response to such tender or other offer. The Committee shall furnish
or cause to be furnished, to each person whose account is invested in whole or
in part in the Employer Stock Fund, all information concerning such tender or
other offer
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known by the Committee to have been furnished by the issuer of Shares or
furnished by or on behalf of the person making such tender or other offer.
(b) To the extent that any person with amounts invested in the
Employer Stock Fund fails to give instructions with respect to Shares
attributable to the portion of his account invested in the Employer Stock Fund:
(i) the Committee or the Board shall direct the Trustee to:
(A) tender or otherwise offer for purchase, exchange or
redemption a number of such Shares equal to the product
of (I) the number of Shares for which no written
instructions have been given, multiplied by (II) a
fraction, the numerator of which is the number of Shares
tendered or otherwise offered for purchase, exchange or
redemption in accordance with written instructions given
as provided in section 7.02(a) and the denominator of
which is the aggregate number of Shares for which
written instructions have been given as aforesaid, and
(B) withhold a number of Shares equal to the excess (if
any) of (I) the number of Shares for which no written
instructions have been given over (II) the number of
Shares being tendered or otherwise offered pursuant to
section 7.02(b)(i)(A); or
(ii) if the Committee or the Board shall determine that it
may not, consistent with its fiduciary duties, direct
the Trustee to tender or otherwise offer for purchase,
exchange or redemption Shares for which no written
instructions have been given in the manner described in
section 7.02(b)(i), it shall tender, or otherwise offer,
or withhold such Shares in such manner as it, in its
discretion, may determine to be in the best interests of
the persons to whom such Shares are attributable.
(c) If the Committee does not provide the Trustee with
directions with respect to a tender offer or other offer described in section
7.02(a), then to the extent permitted by applicable law, the Trustee shall take
any action in response to such an offer in its discretion. The Trustee shall
have no discretion over or responsibility or liability for its actions taken in
accordance with the Committee's directions. The Bank hereby agrees to indemnify
the Trustee and hold it harmless from and defend it against any claim asserted
against or liability imposed on the Trustee by reason of its having acted on any
direction given by the Committee in accordance with this Section 7.02 or failing
to act in the absence of any such direction.
SECTION 7.03 DISSENT AND APPRAISAL RIGHTS.
(a) Each person with amounts invested in the Employer Stock
Fund shall have the right to confidentially direct the manner in which all
dissent and appraisal rights appurtenant to Shares attributable to the portion
of such person's account invested in the Employer Stock Fund will be exercised;
PROVIDED, HOWEVER, that such person had amounts invested in the Employer Stock
Fund as of the most recent valuation date coincident with or immediately
preceding the applicable date for exercising such dissent or appraisal rights.
Such individual shall, for such
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purpose, be deemed a "named fiduciary" within the meaning of section 402(a)(2)
of ERISA. Such a direction shall be given by completing and filing with the
Trustee or such other person designated by the Committee who shall be
independent of the issuer of Shares at least 10 days prior to the latest date
for exercising such dissent and appraisal rights a written direction in the form
and manner prescribed by the Committee. The Trustee or other person designated
by the Committee shall tabulate the directions given on a strictly confidently
basis and shall provide the Committee with only the final results of such
tabulation. The final results of the tabulation shall be followed by the
Committee or the Board in directing the Trustee as to the manner in which such
dissent and appraisal rights shall be exercised. The Committee shall furnish, or
cause to be furnished, to each person whose account is invested in the Employer
Stock Fund all information known by the Committee to have been furnished by the
issuer of the Shares, or by or on behalf of any person, to the holders of Shares
in connection with such dissent and appraisal rights.
(b) To the extent that any person with amounts invested in the
Employer Stock Fund shall fails to give instructions with respect to dissent and
appraisal rights appurtenant to Shares attributable to his interest, the
Compensation Committee or the Board shall direct the Trustee to exercise dissent
and appraisal rights as to those Shares in such manner as the Compensation
Committee or the Board shall determine to be in the best interest of the person
to whom such Shares are attributable.
(c) If the Committee does not provide the Trustee with
directions with respect to dissent and appraisal rights, then to the extent
permitted by applicable law, the Trustee shall take any action in response to
such rights in its discretion. The Trustee shall have no discretion over or
responsibility or liability for its actions taken in accordance with the
Committee's directions. The Bank hereby agrees to indemnify the Trustee and hold
it harmless from and defend it against any claim asserted against or liability
imposed on the Trustee by reason of its having acted on any direction given by
the Committee in accordance with this Section 7.03 or failing to act in the
absence of any such direction.
ARTICLE VIII
LIABILITY OF THE TRUSTEE
SECTION 8.01 CONTRIBUTIONS.
The Trustee shall not be responsible for computing or
collecting contributions due under the Plan.
SECTION 8.02 CLAIMS LIMITED TO THE TRUST FUND.
The Trustee in its individual or corporate capacity shall not
be liable for claims of any persons in any manner regarding the Plan; such
claims shall be limited to the Trust Fund. The Trustee shall not be liable to
make distributions or payments of any kind unless sufficient funds are
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available therefor in the Trust Fund. The Trustee shall be responsible only for
such money and other property as are received by it as Trustee under this
Agreement.
SECTION 8.03 RETENTION OF ADVISORS.
The Trustee may consult legal counsel and other professional
advisors who may, but need not, be its counsel or advisors or counsel or
advisors to the Bank, the Committee, or any Participant or beneficiary, with
respect to the meaning and construction of this Agreement or its powers,
obligations, and conduct hereunder.
The Trustee shall be entitled to reasonable reimbursement from
the Trust Fund for such legal counsel's and other professional advisors' fees.
The Trustee shall not be deemed imprudent solely by reason of its taking or
refraining from taking any action in accordance with the opinion of counsel.
SECTION 8.04 QUALIFICATION OF PLAN AND TRUST.
The Trustee shall be fully protected in assuming that the Plan
and Trust meet the requirements of Sections 401 and 501 of the Internal Revenue
Code and all the applicable provisions of ERISA unless it is advised to the
contrary in writing by the Committee or a governmental agency.
SECTION 8.05 GENERAL DUTIES OF TRUSTEE.
The Trustee shall discharge its duties hereunder with the
care, skill, prudence, and diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like
aims. The Trustee shall not be liable for any loss sustained by the Trust Fund
by reason of the purchase, retention, sale or exchange of any investment in good
faith and in accordance with the provisions of this Agreement and any applicable
law. The Trustee's duties and obligations shall be limited to those expressly
imposed upon it by this Agreement notwithstanding any reference herein to the
Plan.
SECTION 8.06 NO LIABILITY FOR ACTS OF OTHERS.
(a) Subject to Section 8.06(b), no "fiduciary" (as such term
is defined in Section 3(21) of ERISA) under this Agreement shall be liable for
an act or omission of another person in carrying out any fiduciary
responsibility where such fiduciary responsibility is allocated to such other
person by this Agreement or pursuant to a procedure established in this
Agreement except to the extent that:
(i) such fiduciary participated knowingly in, or
knowingly undertook to conceal, an act or omission of such
other person, knowing such act or omission to be a breach of
fiduciary responsibility;
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(ii) such fiduciary, by his failure to comply with
Section 404(a)(1) of ERISA in the administration of his
specific responsibilities which give rise to his status as a
fiduciary, has enabled such other person to commit a breach of
fiduciary, responsibility; or
(iii) such fiduciary has knowledge of a breach of
fiduciary responsibility by such other person, unless he makes
reasonable efforts under the circumstances to remedy the
breach.
(b) Except as required by applicable law, the Trustee shall
have no liability or responsibility for an act or omission of an Investment
Manager appointed pursuant to Section 4.03 in carrying out its fiduciary
responsibilities with respect to the Plan and no obligation to invest or
otherwise manage any asset of the Plan which is subject to the management of
such Investment Manager unless the Trustee: (i) by its failure to comply with
Section 404(a)(1) of ERISA in the administration of its specific
responsibilities which give rise to its status as a fiduciary, has enabled such
Investment Manager to commit a breach of fiduciary responsibility; or (ii)
participated knowingly in, or knowingly undertook to conceal, an act or omission
of such Investment Manager, knowing such act or omission to be a breach of
fiduciary responsibility.
SECTION 8.07 INDEMNIFICATION.
(a) Subject to the relevant provisions of ERISA, the Bank
hereby agrees to discharge, indemnify and hold Marine Midland Bank, ("Marine"),
and its directors, officers and employees (hereinafter collectively referred to
as the "Indemnitees") harmless from and against:
(i) any and all reasonable costs and expenses
incurred by Marine in the enforcement of this Section 8.07
including, but not limited to, reasonable attorneys' fees and
expenses and court costs; and
(ii) any and all losses, claims, damages, expenses,
or liabilities (including, but not limited to, court costs,
judgments, fines, excise taxes, time charged for personnel
time of Marine related to litigation and the aggregate amount
paid in reasonable settlement of any actions, suits,
proceedings, or claims) (hereinafter referred to as "Losses")
incurred by any one or more of the Indemnitees in connection
with actions, proceedings, or suits of any kind or nature
whatsoever, whether civil under any statue or common law or
otherwise, criminal, administrative or investigative arising
from or in any way related to actions taken, or omitted to be
taken, by one or more of the Indemnitees in connection with
the engagement of Marine as Trustee of the Trust, including,
but not limited to, any actions taken or omitted to be taken
pursuant to directions or requests of the Bank, the Plan
Administrator, the Committee, the Plan's Investment Manager,
or their duly authorized agent or agents (such indemnification
shall also include reasonable fees and expenses of Marine's
legal counsel and financial advisors ("Litigation Expenses")
which shall be paid within thirty (30) days of the date
billed); provided, however, that upon a written determination
of any court of competent jurisdiction ("Court") ,
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in an action in which the Bank and Marine are parties,
concluding that a Loss resulted from the gross negligence or
willful misconduct of one or more Indemnitees, the Bank shall
not be obligated to pay Marine's Litigation Expenses within
thirty (30) days of the date billed. Notwithstanding the
foregoing, the provisions of this Section 8.07 (other than
this sentence and the last sentence of this Section 8.07(a))
shall not apply to the extent that any Loss is found, in a
final judgement ("Judgment") by a Court either (i) from which
no appeal can be taken or (ii) from which no appeal is taken
in a timely manner, to have resulted from the gross negligence
or willful misconduct of one or more Indemnitees, in which
case Marine shall reimburse the Bank for any Litigation
Expenses and/or Losses paid by the Bank hereunder. However, if
the Judgment does not indicate that the Loss resulted from the
gross negligence or willful misconduct of one or more
Indemnitees, the Bank shall pay all of Marine's outstanding
Litigation Expenses and/or Losses within thirty (30) days. Any
reimbursement or payment, as the case may be, required to be
made hereunder after a Judgment shall include interest
calculated in accordance with Marine's prime rate of interest
as of the date the Bank or Marine, as the case may be, paid
the litigation Expense or Loss.
(b) If notice of any action, claim, investigation or
proceeding (hereinafter collectively referred to as "Proceeding") is received by
one or more Indemnitees in respect to which indemnity may be sought against the
Bank hereunder, such Indemnitee or Indemnitees shall promptly notify the Bank,
in writing in no event later than thirty (30) days of the commencement thereof,
but the omission to so notify the Bank shall not relieve the Bank from any
liability to any one or more Indemnitees hereunder, except to the extent that
such failure shall have actually prejudiced the defense of such action. The
Bank, upon written notice to the Indemnitees within fifteen (15) days after
receiving notice of commencement of the Proceeding, will be entitled to
participate in any such Proceeding and to the extent that it may wish, assume
the defense of the Proceeding with counsel satisfactory to the Indemnitees.
After notice from the Bank to the Indemnitees of its election to assume the
defense of any Proceeding, the Bank will pay all costs of defense of such
Proceeding of every kind whatsoever. The Bank shall pay the Indemnitees'
reasonable costs of investigation, of testifying in any hearing, of responding
to discovery proceedings, or of consulting with the Bank or the Bank's
attorneys. Indemnitees shall have the right to employ their own counsel in any
Proceeding and the fees and expenses of such counsel shall be paid by the Bank,
as they are incurred, if:
(i) Indemnitees have been advised by such counsel
that there may be one or more legal defenses available to them
which are different from or additional to defenses that are
available to the Bank (in which case the Bank shall not have
the right to assume the defense of the Proceeding on behalf of
Indemnitees);
(ii) the Bank has not assumed the defense of the
Proceeding and employed counsel satisfactory to Indemnitees
within fifteen (15) days after notice of commencement of the
Proceeding;
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(iii) the employment of such counsel has been
authorized by the Bank in connection with the defense of the
Proceeding; or
(iv) Indemnitees have been reasonably informed by
such counsel that a conflict exists with counsel selected by
the Bank.
(c) Neither termination, nor completion of the engagement of
Marine or Indemnitees shall affect the provisions of this Section 8.07, which
shall nevertheless remain operative and in full force and effect. The Bank
hereby agrees that, in the event a Court holds that any payment or award of
indemnification under the provisions of this Section 8.07 shall be unavailable
to any one or more of the Indemnitees from the Bank for any reason, the Bank
shall contribute to the aggregate Loss such amount as shall reflect the relative
fault of the Bank.
(d) The provisions of this Section 8.07 shall be binding upon
and inure to the benefit of the assigns, successors and legal representatives of
the parties hereto.
(e) The parties agree that this Section 8.07 shall apply from
the date Marine becomes Trustee of the Trust and shall remain in full force and
effect with regard to any matters covered hereunder, irrespective of whether
Marine is then serving as Trustee of the Trust.
(f) The parties agree that, in the event a Court holds that
any part of this Section 8.07 is invalid or unenforceable, the remaining
provisions of this Section 8.07 shall remain in full force and effect as if the
provisions held invalid or unenforceable were never a part thereof.
SECTION 8.08 COMMUNICATIONS.
Communications to the Trustee shall be sent to the Trustee's
principal office as stated in the preamble to this Agreement, to the attention
of its Trust Department, or to such other address as the Trustee shall indicate
in a written instrument delivered to the Committee.
Communication to the Committee, the Plan Administrator, the
Bank or the Board shall be sent to the Bank's principal office as stated in the
preamble to this Agreement, or to such other address as the Committee shall
specify in a written instrument delivered to the Trustee. Communications shall
be deemed to have been given at the time given personally, the day sent by
facsimile transmission or by overnight courier or five (5) days after mailing
postage prepaid or by registered or certified mail.
SECTION 8.09 PROOF OF MATTERS.
Whenever the Trustee shall deem it desirable for a matter to
be proved or established before taking, permitting, or omitting any act, the
matter (unless other evidence in respect thereof is specifically prescribed in
this Agreement) may be deemed to be conclusively established by a certification
signed by any two members of the Committee (or by the member of the Committee if
the Committee has only one member) and delivered to the Trustee, and the Trustee
shall be fully protected in relying on such an instrument.
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SECTION 8.10 PARTY IN INTEREST INFORMATION.
The Bank shall provide the Trustee with such information
concerning the relationship between any person or organization and the Plan as
the Trustee reasonably requests in order to determine whether such person or
organization is a party in interest with respect to the Plan within the meaning
of Section 3(14) of ERISA or a disqualified person with respect to the Plan
within the meaning of section 4975 of the Internal Revenue Code.
SECTION 8.11 DISPUTES.
If a dispute arises as to the payment of any funds or delivery
of any assets by the Trustee, the Trustee may withhold such payment or delivery
until the dispute is determined by a court of competent jurisdiction or finally
settled in writing by the parties concerned.
ARTICLE IX
ACCOUNTING OF THE TRUSTEE
SECTION 9.01 KEEPING OF ACCOUNTS.
The Trustee shall keep accurate and detailed accounts of all
investments, reinvestments, receipts and disbursements and all other records of
all its transactions under this Agreement. These accounts, books and records
shall be open to inspection during regular business hours of the Trustee by the
Committee or the Plan Administrator or any person or persons designated by the
Committee or the Plan Administrator in a written instrument filed with the
Trustee. The Trustee need not keep records of the interests in the Trust Fund of
individual Participants and beneficiaries unless it agrees with the Committee or
the Bank to keep such records under a separate agreement adopted under Section
3.05 of this Agreement.
SECTION 9.02 RENDERING OF ACCOUNTS.
Within ninety (90) days after the close of each fiscal year of
the Plan, the Trustee's removal or resignation as Trustee hereunder, or the
termination of the Plan or this Agreement, the Trustee shall file with the
Committee an account setting forth all its transactions (including all receipts
and disbursements) under the Agreement during such year, or during the period
from the close of the last preceding fiscal year of the Plan to the effective
date of its removal or resignation or the termination of the Plan or this
Agreement, and showing property (including its cost and fair market value) held
by it hereunder at the end of such accounting period. The Trustee shall certify
in writing that the information in the accounting is accurate. The Committee and
the Trustee may agree in writing that similar accounts will be prepared by the
Trustee and filed with the Committee at more frequent intervals. No person or
persons (including, without limitation, the Bank, the Board, and the Committee)
shall be entitled to any further or different accounting by the Trustee, except
as may be required by law.
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SECTION 9.03 DISCHARGE OF TRUSTEE.
Ninety (90) days after the filing of any account with the
Committee under Section 9.02, the Trustee shall be forever released and
discharged from any liability or accountability to anyone with respect to the
transactions shown or reflected on the account, except with respect to any acts
or transactions as to which the Committee, within such ninety-day period, files
written objections with the Trustee. The written approval of the Committee of
any account filed by the Trustee, or the Committee's failure to file written
objections within ninety (90) days, shall be a settlement of such account as
against all persons, and shall forever release and discharge the Trustee from
any liability or accountability to anyone with respect to the transactions shown
or reflected on such account.
If a statement of objections is filed by the Committee and the
Committee is satisfied that its objections should be withdrawn or if the account
is adjusted to its satisfaction, the Committee shall indicate its approval of
the account in a written statement filed with the Trustee and the Trustee shall
be forever released and discharged from all liability and accountability to
anyone in accordance with the immediately preceding sentence. If an objection is
not settled by the Committee and the Trustee, the Trustee, the Bank or the
Committee may start a proceeding for a judicial settlement of the account in any
court of competent jurisdiction; the only parties that need be joined in such a
proceeding are the Trustee, the Committee, the Bank, and any other parties whose
participation is required by law.
SECTION 9.04 RIGHT TO JUDICIAL SETTLEMENT.
Nothing in this Agreement shall prevent the Trustee, the Bank
or the Committee from having the Trustee's account settled by a Court at any
time. The only parties that need be joined in any such proceeding are the Bank,
the Committee, the Trustee, and any other parties whose participation is
required by law.
ARTICLE X
REMOVAL AND RESIGNATION OF THE TRUSTEE
SECTION 10.01 REMOVAL OR RESIGNATION.
The Trustee may resign as Trustee under this Agreement at any
time by a written instrument delivered to the Committee giving notice of such
resignation, which shall be effective sixty (60) days after receipt or at such
other time as is agreed by the Committee and the Trustee. The Trustee may be
removed at any time by the Board by a written resolution, certified by the
Secretary or Assistant Secretary of the Bank and delivered to the Trustee, which
shall be effective sixty (60) days after receipt or at such other time as is
agreed between the Committee and the Trustee.
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<PAGE>
SECTION 10.02 SUCCESSOR TRUSTEE.
If a vacancy in the office of trustee of the Trust occurs, the
Board shall appoint a successor trustee and shall deliver to the Trustee copies
of (a) a written instrument executed by the Bank appointing such successor, and
(b) a written instrument executed by the successor in which it accepts such
appointment. Such instruments shall indicate their effective dates. The
instrument of appointment shall be accompanied by certified copies of
resolutions of the Board authorizing its adoption. Any such successor trustee or
trustees shall have all the powers and duties of the original trustee.
SECTION 10.03 DELIVERY OF TRUST FUND.
If the Trustee resigns or is removed, it shall deliver any
assets of the Trust Fund in its possession to a successor trustee as soon as it
reasonably practicable after the settlement of its account or at such earlier
time as shall be agreed on by the Bank, the Trustee, and the successor trustee.
The Trustee may, however, reserve such amount of cash or property as it deems
advisable for payment of its fees and expenses in connection with its
administration of the Trust or the settlement of its account or for payment of
all taxes that may be assessed on or in respect of the Trust Fund or the income
thereof for the period before its removal or resignation. The Trustee shall pay
over to the successor trustee any balance of such reserve remaining after the
payment of such fees, expenses, and taxes. The delivery of assets of the Trust
Fund to the successor trustee shall not be deemed a waiver by the Trustee of any
lien or claim it may have on the Trust Fund for its fees or expenses.
ARTICLE XI
AMENDMENT AND TERMINATION
SECTION 11.01 AMENDMENT.
This Agreement may be amended at any time and from time to
time by a written instrument signed by the Trustee and the Bank. The instrument
of amendment must be approved by the Board and the Committee shall deliver to
the Trustee a certified copy of resolutions adopted by the Board authorizing its
adoption. The Bank shall certify to the Trustee that the amendment does not
permit any part of the Trust Fund to be used for or diverted to purposes other
than the exclusive benefit of Participants and their beneficiaries or the
payment of reasonable expenses of administering the Plan and Trust, subject to
Section 2.02. The instrument of amendment shall specify its effective date and
amendments may be made effective retroactively.
SECTION 11.02 TERMINATION.
If the Committee certifies to the Trustee that the Plan is or
has been terminated, the Trustee shall hold and/or dispose of the Trust Fund in
accordance with the Committee's written instructions, subject to the Trustee's
right to receive a written or judicial settlement of its account and
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<PAGE>
such evidence of governmental approval as it shall, in its sole discretion,
require. The Committee shall certify in writing to the Trustee that the
disposition directed: (a) does not result in any part of the Trust Fund being
used for or diverted to purposes other than the exclusive benefit of
Participants and their beneficiaries and the payment of reasonable expenses of
administering the Plan and Trust, subject to Section 2.02, (b) is in accordance
with ERISA and any other applicable laws, and (c) does not result in a
Prohibited Transaction. The Trustee may, however, reserve such amount of cash or
property as it deems advisable for payment of its fees and expenses in
connection with its administration of the Trust or the settlement of its account
or for payment of taxes that may be assessed on or in respect of the Trust or
the income thereof.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01 MERGER OF TRUSTEE.
Any corporation into which the Trustee is merged or with which
it is consolidated, or any corporation resulting from a merger, reorganization,
or consolidation, to which the Trustee is a party, or any corporation to which
all or substantially all the trust business of the Trustee is transferred shall
become the successor trustee under this Agreement without the execution or
filing of any further instrument or the performance of any further act.
SECTION 12.02 AFFILIATED COMPANIES.
(a) Any other company which adopts the Plan in accordance with
its terms may, with the written consent of the Trustee and Bank, become a party
to this Agreement as an "Affiliated Company" by delivering a certified copy of a
resolution of its board of directors to the effect that it agrees to adopt the
Plan, to become a party to this Agreement and to be bound by all the terms and
conditions of the Plan and this Agreement, as then in effect and as it may
thereafter be amended. The Bank shall have the sole authority to enforce this
Agreement on behalf of any such Affiliated Bank and the Trustee need not deal
with any Affiliated Company except by dealing with the Bank or the Committee as
its agent. The Trustee shall invest and administer the Trust Fund as a single
fund for investment and accounting purposes without identification or allocation
among the Bank and any Affiliated Companies or to any employee or group of
employees or their beneficiaries, unless the Trustee, the Bank, and the
Affiliated Companies concerned agree in writing to segregate funds.
(b) Any Affiliated Company may cease to be a party to this
Agreement by delivering to the Trustee a certified copy of a resolution of its
board of directors terminating its participation in the Plan or this Agreement.
In such case, or in the event of the merger, consolidation, sale of property or
stock, separation, reorganization or liquidation of any Affiliated Company, the
Trustee, until directed otherwise by the Committee, shall continue to hold, in
accordance with the provisions of this Agreement, that portion of the Trust Fund
which it is advised by the Committee is attributable to the participation in the
Plan of the employees and their beneficiaries affected by such termination or by
such transaction.
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<PAGE>
SECTION 12.03 ALIENATION OF TRUST FUND.
No right or claim in or to the Trust Fund or any assets
thereof shall be assignable or subject to garnishment, attachment, execution, or
levy of any kind except as otherwise provided under Section 414(p) of the
Internal Revenue Code and Section 206(d)(3) of ERISA; any attempt to transfer,
assign, or pledge the same shall be void and shall not be recognized by the
Trustee except to such extent as may be legally required.
SECTION 12.04 APPLICABLE LAW.
This Agreement shall be administered, construed, and enforced
in accordance with applicable federal law (including, but not limited to, the
fiduciary requirements of Part 4 of Title I of ERISA) and, to the extent not
preempted by federal law, the laws of the State of New York.
SECTION 12.05 HEADINGS NOT PART OF THE AGREEMENT.
Headings of Articles and Sections are inserted for convenience
of reference. They are not part of this Agreement and shall not be considered in
construing it.
SECTION 12.06 MULTIPLE COPIES.
This Agreement may be executed in any number of counterparts,
each of which shall be considered an original even though no others are
produced.
<PAGE>
IN WITNESS WHEREOF, the Bank and the Trustee have caused this
Agreement to be executed by their duly authorized officers and their respective
corporate seals to be hereunto affixed as of the day and year first above
written.
THE WARWICK SAVINGS BANK
By: /s/ Ronald J. Gentile
-------------------------------------
Ronald J. Gentile
Title: Executive Vice President
and Chief Operating Officer
Date: November 21, 1997
Attest:
By: Nancy L. Sobotor-Littell
------------------------------
Secretary
[seal]
MARINE MIDLAND BANK
By: /s/ Richard A. Glover
-------------------------------------
Richard A. Glover
Title: Vice President
Date: November 20, 1997
Attest:
By: James Chin
--------------------------------
Vice President
[seal]
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF ORANGE )
On this 21st day of November, 1997, before me personally came
RONALD J. GENITLE to me known, who, being by me duly sworn, did depose and say
that he resides at 30 Newport Bridge Road, Warwick, New York 10990; that he is
the Executive Vice President and Chief Operating Officer of THE WARWICK SAVINGS
BANK, the savings bank described in and which executed the foregoing instrument;
that he knows the seal of said savings bank; that the seal affixed to said
instrument is such savings bank's seal; that it was so affixed by order of the
Board of Directors of said savings bank; and that he signed his name thereto by
like order.
/s/ Mary K. Serringer
---------------------------------------------
Mary K. Serringer
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 20th day of November, 1997, before me personally came
RICHARD A. GLOVER, to me known, who, being by me duly sworn, did depose and say
that he resides at 5 Windward Court, Dix Hills, New York, that he is Vice
President and Trust Officer of MARINE MIDLAND BANK, the banking corporation
described in and which executed the foregoing instrument; that he knows the seal
of said banking corporation; that the seal affixed to said instrument is such
seal; that it was so affixed by order of the Board of Directors of said banking
corporation; and that he signed his name thereto by like order.
/s/ Doris Colon
---------------------------------------------
Doris Colon
Notary Public
EXHIBIT 5./EXHIBIT 23.1
-----------------------
Opinion of Thacher Proffitt & Wood, counsel for Registrant,
as to the legality of the securities being registered
Consent of Thacher Proffitt & Wood
<PAGE>
[Letterhead of Thacher Proffitt & Wood]
Writer's Direct Dial
(212) 912-7436
November 21, 1997
Warwick Community Bancorp, Inc.
18 Oakland Avenue
Warwick, New York 10990
Re: The Warwick Savings Bank 401(k) Savings Plan
--------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Warwick Community Bancorp, Inc., a
Delaware corporation ("Corporation"), in connection with the filing of a
registration statement on Form S-8 under the Securities Act of 1933, as amended
("Registration Statement") with respect to 600,000 shares of its common stock,
par value $.01 per share ("Shares"), issued to participants in The Warwick
Savings Bank 401(k) Savings Plan ("Plan") and with respect to participation
interests in the Plan ("Plan Interests"). In rendering the opinion set forth
below, we do not express any opinion concerning law other than the federal law
of the United States and the corporate law of the state of Delaware.
We have examined originals or copies, certified or otherwise
identified, of such documents, corporate records and other instruments as we
have deemed necessary or advisable for purposes of this opinion. As to matters
of fact, we have examined and relied upon the Plan and, where we have deemed
appropriate, representations or certificates of officers of the Corporation or
public officials. We have assumed the authenticity of all documents submitted to
us as originals, the genuineness of all signatures, the legal capacity of
natural persons and the conformity to the originals of all documents submitted
to us as copies.
Based on the foregoing, we are of the opinion that the Shares and
Plan Interests which are being registered pursuant to the Registration Statement
have been duly authorized and, when issued and paid for in accordance with the
terms of the Plan, such Plan Interests will be validly issued, and such Shares
will be validly issued, fully paid and non-assessable.
<PAGE>
Warwick Community Bancorp, Inc.
November 21, 1997 Page 2.
In rendering the opinion set forth above, we have not passed upon
and do not purport to pass upon the application of "doing business" or
securities or "blue-sky" laws of any jurisdiction (except federal securities
laws).
This opinion is given solely for the benefit of the Corporation and
purchasers of shares and interests under the Plan, and no other person or entity
is entitled to rely hereon without express written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
THACHER PROFFITT & WOOD
By: /s/ Douglas J. McClintock
--------------------------------
Douglas J. McClintock
EXHIBIT 23.2
------------
Consent of Arthur Andersen LLP
<PAGE>
[Letterhead of Arthur Andersen LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in the Registration Statement on Form S-8 of our report dated July 30,
1997 (and to all references to our Firm) relating to the financial statements of
The Warwick Savings Bank and subsidiaries as of May 31, 1997 and 1996, and for
each of the years in the three-year period ended May 31, 1997, which report is
included in the Registration Statement on Form S-1 filed by Warwick Community
Bancorp, Inc. (Registration No. 333-36021) and incorporated herein.
/s/ ARTHUR ANDERSEN LLP
-------------------
New York, New York
November 18, 1997
