As filed with the Securities and Exchange Commission on March 1, 2000
Registration No. 333-94381
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933*
NORTH FORK BANCORPORATION, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3154608
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
275 BROAD HOLLOW ROAD
MELVILLE, NEW YORK 11747
(Address of Principal Executive Offices including Zip Code)
RELIANCE BANCORP, INC. 1994 INCENTIVE STOCK OPTION PLAN
AMENDED AND RESTATED RELIANCE BANCORP, INC. 1994 STOCK OPTION PLAN FOR
OUTSIDE DIRECTORS RELIANCE BANCORP, INC. 1996 INCENTIVE STOCK
OPTION PLAN AMENDED AND RESTATED
AS OF FEBRUARY 19, 1997
(Full title of the plan(s))
JOHN ADAM KANAS, PRESIDENT
NORTH FORK BANCORPORATION, INC.
275 BROAD HOLLOW ROAD
MELVILLE, NEW YORK 11747
(Name and address of agent for service)
(631) 298-5000
(Telephone number, including area code, of
agent for service).
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
COMMON STOCK,
$0.01 PAR VALUE** 1,369,438 N/A N/A N/A***
================================================================================================================
- -------------
* Filed as a Post-Effective Amendment on Form S-8 to such Registration Statement pursuant to the procedure
described herein. See "Explanatory Note."
** As of February 11, 2000, North Fork Bancorporation, Inc. amended its Restated Certificate of Incorporation
to change the par value of its common stock from $2.50 to $0.01.
*** Fee previously paid.
</TABLE>
EXPLANATORY NOTE
North Fork Bancorporation, Inc. (the "Company") hereby
amends its Registration Statement on Form S-4 (No. 333-94381), declared
effective on January 11, 2000 (the "S-4"), by filing this Post-Effective
Amendment No. 1 on Form S-8 relating to up to 1,369,438 shares of common
stock, $0.01 par value per share, of the Company ("Company Common Stock")
issuable upon the exercise of options to acquire or receive shares of
Company Common Stock pursuant to the provisions of (i) Reliance Bancorp,
Inc. 1994 Incentive Stock Option Plan (the "1994 Plan"), (ii) Amended and
Restated Reliance Bancorp, Inc. 1994 Stock Option Plan for Outside
Directors (the "1994 Outside Director Plan") and (iii) Reliance Bancorp,
Inc. 1996 Incentive Stock Option Plan Amended and Restated as of February
19, 1997 (the "1996 Plan" and together with the 1994 Plan and the 1994
Outside Director Plan, the "Reliance Stock Option Plans"), which have been
assumed by the Company pursuant to the Merger Agreement defined and
described below.
At a Special Meeting of Stockholders of Reliance Bancorp,
Inc. ("Reliance"), held on February 10, 2000, Reliance's stockholders
approved and adopted an Amended and Restated Agreement and Plan of Merger,
dated as of August 30, 2000 (The "Merger Agreement"), between Reliance and
the Company. Pursuant to the Merger Agreement, among other things, (i)
Reliance merged with and into the Company (the "Merger"), with the Company
continuing as the surviving corporation; (ii) each share of common stock,
par value $0.01 per share, of Reliance (the "Reliance Common Stock") issued
and outstanding immediately prior to the effective time of the Merger (the
"Effective Time") was converted into 2.0 shares of Company Common Stock;
and (iii) at the Effective Time, the Company assumed the Reliance Stock
Option Plans (and all outstanding stock options granted thereunder).
Prior to the Effective Time, (i) stock options granted
under the 1994 Plan related to shares of Reliance Common Stock, which
shares had been registered by Reliance under a Registration Statement on
Form S-8 (No. 33-81278); (ii) stock options granted under the 1994 Outside
Director Plan related to Shares of Reliance Common Stock, which shares had
been registered by Reliance under a Registration Statement on Form S-8 (No.
33-81278); and (iii) stock options granted under the 1996 Plan related to
shares of Reliance Common Stock, which shares had been registered by
Reliance Under a Registration Statement on Form S-8 (No. 333-20379).
This Post-Effective Amendment relates to (i) up to
227,776 shares of Company Common Stock issuable pursuant to the 1994 Plan;
(ii) up to 536,250 shares of Company Common Stock issuable pursuant to the
1994 Outside Director Plan; and (iii) up to 605,412 shares of Company
Common Stock issuable pursuant to the the Amended 1996 ISO Plan. When the
S-4 was filed, the Company registered 19,328,134 shares of Company Common
Stock (the "S-4 Registered Shares"). The S-4 Registered Shares included
that number of shares of Company Common Stock necessary to provide for the
issuance at the Effective Time of Company Common Stock in exchange for all
shares of Reliance Common Stock that could have been issued prior to the
Effective Time upon exercise of all outstanding options to acquire Reliance
Common Stock ("Reliance Options"). At the Effective Time, the Company
Issued 17,120,160 shares of Company Common Stock in exchange for
outstanding shares of Reliance Common Stock, and assumed outstanding
Reliance Options covering a total of up to 684,719 Shares of Reliance
Common Stock. No additional options will be granted after the Effective
Time under the Reliance Stock Option Plans. Consequently, up to 1,369,438
shares of Company Common Stock may be issued in connection with the
Company's assumption of the Reliance Stock Option Plans and the Reliance
Options outstanding thereunder. The remaining 838,536 S-4 Registered Shares
that were not issued at the Effective Time and that do not relate to the
unexercised Reliance Options being Assumed by the Company are hereby
deregistered.
The designation of this Post-Effective Amendment as
Registration No. 333-94381-1 denotes that this Post-Effective Amendment
relates only to up to 1,369,438 shares of Company Common Stock issuable
upon exercise of options under the Reliance Stock Option Plans.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, previously filed with the SEC by
North Fork Bancorporation, Inc., a Delaware corporation ("North Fork"),
pursuant to the Securities Exchange Act of 1934, are incorporated by
reference in this registration statement:
(1) North Fork's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998 (the "1998 Form 10-K");
(2) North Fork's Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 1999, June 30, 1999 and September 30, 1999;
(3) North Fork's Current Reports on Form 8-K filed on (a)
August 16, 1999, (b) August 31, 19999, (c) October 25, 1999, (d) December
30, 1999, (e) January 12, 2000, and (f) February 1, 2000;
(4) The portions of North Fork's Proxy Statement for its
Annual Meeting of Stockholders held on April 28, 1999 that have been
incorporated by reference in the 1998 Form 10-K; and
(5) The description of North Fork's common stock which is
contained in the registration statement filed by North Fork under Section
12 of the Exchange Act, including any amendment or report filed for
purposes of updating such description.
All documents subsequently filed by North Fork
Bancorporation, Inc. pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment that
indicates that all securities offered by this registration statement have
been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a part of
this registration statement from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference in this registration statement shall be deemed to be modified
or superseded for purposes of this registration statement to the extent
that a statement contained in this registration statement or in any other
subsequently filed document that also is incorporated or deemed to be
incorporated by reference in this registration statement modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporate Law (the "DGCL")
generally provides that a corporation may indemnify directors, officers,
employees or agents against liabilities they may incur in such capacities
provided certain standards are met, including good faith and the reasonable
belief that the particular action was in, or not opposed to, the best
interests of the corporation.
Subsection (a) of Section 145 of the DGCL ("Section 145") empowers
a corporation to indemnify any person who was or is a party 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 is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he 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 that his
conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify
any person 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
such person acted in any of the capacities set forth above, against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted under standards similar to those set forth above, except that no
indemnification may 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 Delaware Court of Chancery or the
court in which such action or suit was brought shall determine that,
despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to be
indemnified for such expenses which the court shall deem proper.
Section 145 further provides that, among other things, to the
extent that a director or officer of a corporation has been successful in
the defense of any action, suit or proceeding referred to in Subsections
(a) and (b) of Section 145, or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive
of any other rights to which the indemnified party may be entitled; and
that a corporation is empowered to purchase and maintain insurance on
behalf of a director or officer of the corporation against any liability
asserted against him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the corporation would have the
power to indemnify against such liability under Section 145.
Indemnification as described above shall be granted in a specific
case only upon a determination that indemnification is proper under the
circumstances using the applicable standard of conduct which is made by (a)
a majority of directors who were not parties to such proceeding, (b)
independent legal counsel in a written opinion if there are no such
disinterested directors or if such disinterested directors so direct, or
(c) the shareholders.
Article 8.1 of the By-laws of the Registrant provides that the
Registrant shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding by reason of the fact that he is or was a
director or officer of the Registrant against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him to the fullest extent permitted by the DGCL
and any other applicable law, as may be in effect from time to time.
Article 8.2 of the By-laws of the Registrant provides that the
Registrant may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding by reason of the fact that he is or was an employee or agent of
the Registrant or is serving at the request of the Registrant as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him to the extent permitted by the DGCL and any
other applicable law, as may be in effect from time to time.
Section 102(b)(7) of the DGCL ("Section 102(b)(7)") permits the
certificate of incorporation of a corporation to limit or eliminate a
director's personal liability to the corporation or its stockholders for
monetary damages for breach of his fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL (dealing with unlawful dividends
or unlawful stock purchases or redemptions), or (iv) for any transaction
from which the director derived an improper personal benefit.
Article 10 of the Registrant's Certificate of Incorporation
provides that, subject only to the express prohibitions on elimination or
limitation of liability of directors set forth in Section 102(b)(7), as it
now exists or may be hereinafter amended, directors shall not be liable for
monetary damages in excess of $25,000 per occurrence resulting from a
breach of their fiduciary duties.
The Registrant maintains a directors' and officers' liability
insurance policy providing for the insurance on behalf of any person who is
or was a director or officer of the Registrant and subsidiary companies
against any liability incurred by him in any such capacity or arising out
of his status as such. The insurer's limit of liability under the policy is
$25,000,000 in the aggregate for all insured losses per year. The policy
contains various reporting requirements and exclusions.
The Federal Deposit Insurance Act (the "FDI Act") provides that
the Federal Deposit Insurance Corporation (the "FDIC") may prohibit or
limit, by regulation or order, payments by any insured depository
institution or its holding company for the benefit of directors and
officers of the insured depository institution, or others who are or were
"institution-affiliated parties," as defined under the FDI Act, in order to
pay or reimburse such person for any liability or legal expense sustained
with regard to any administrative or civil enforcement action which results
in a final order against the person. FDIC regulations prohibit, subject to
certain exceptions, insured depository institutions, their subsidiaries and
affiliated holding companies from indemnifying officers, directors or
employees for any civil money penalty or judgment resulting from an
administrative or civil enforcement action commenced by any federal banking
agency, or for that portion of the costs sustained with regard to such an
action that results in a final order or settlement that is adverse to the
director, officer or employee.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. REQUIRED UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) (1) (i) - (ii) not applicable;
(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.
(2) That, for the purpose of determining any
liability under the Securities Act, 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.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in this 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.
(c) - (g) Not Applicable.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of 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 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, North Fork Bancorporation, Inc. certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing this
Post Effective Amendment on Form S-8 to the Registration Statement on Form
S-4 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, there unto duly authorized, in the City of
Melville, State of New York, on this 1st day of March, 2000.
NORTH FORK BANCORPORATION, INC.
By: /s/ Daniel M. Healy
-----------------------
Daniel M. Healy
Executive Vice President
and Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of North Fork
Bancorporation, Inc. hereby severally and individually constitute and
appoint Daniel M. Healy, our true and lawful attorney-in-fact and agent
(with full power of substitution and resubstitution in each case) of each
of us to execute in the name, place and stead of each of us, individually
and in any and all capacities, any and all amendments (including
post-effective amendments) to this registration statement on Form S-8 and
all instruments necessary or advisable to enable said company to comply
with the Securities Act of 1933, as amended, and any rules, regulations or
requirements of the SEC in connection therewith and to file the same with
the SEC, and said attorney and agent to have power to act and to have full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as any of the undersigned might or could do in
person, and we hereby ratify and confirm all that the said
attorneys-in-fact and agents or each of them, shall do or cause to be done
by virtue hereof.
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 1ST DAY OF MARCH, 2000.
Name Title
---- -----
/s/ John A. Kanas
- --------------------------
John A. Kanas President, Chief Executive Officer and
Chairman of the Board
/s/ Daniel M. Healy
- --------------------------
Daniel M. Healy Executive Vice President and Chief Financial
Officer (Principal Financial and Accounting
Officer)
- --------------------------
Park T. Adikes Director
/s/ John Bohlsen
- ---------------------------
John Bohlsen Director
/s/ Irvin L. Cherashore
- ---------------------------
Irvin L. Cherashore Director
/s/ Alan C. Dickerson
- ---------------------------
Allan C. Dickerson Director
/s/ Lloyd A. Gerard
- ---------------------------
Lloyd A. Gerard Director
/s/ Patrick E. Malloy, III
- ---------------------------
Patrick E. Malloy, III Director
- ---------------------------
Raymond A. Nielsen Director
/s/ Thomas M. O'Brien
- ---------------------------
Thomas M. O'Brien Director
- ---------------------------
James F. Reeve Director
/s/ George H. Rawsom
- ---------------------------
George H. Rowsom Director
- ---------------------------
Kurt R. Schmeller Director
- ---------------------------
Raymond W. Terry, Jr. Director
EXHIBIT INDEX
Exhibit
Number Exhibit Description
------- -------------------
4.1 Restated Certificate of Incorporation of North Fork
Bancorporation, Inc., as amended.
4.2 Amended and Restated By-Laws of North Fork
Bancorporation, Inc., as amended, effective July 28,
1992. Previously filed on Form 10-K, for the year
ended December 31, 1993 dated March 9, 1994, as
Exhibit 3(b) and incorporated herein by reference.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23.1 Consent of KPMG LLP, New York, N.Y.
23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1 hereto).
24.1 Powers of Attorney (see signature page to this
Registration Statement).
EXHIBIT 4.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
NORTH FORK BANCORPORATION, INC.
The undersigned, John Adam Kanas, certifies that he is
the President of North Fork Bancorporation, Inc., a corporation organized
and existing under the laws of the State of Delaware (the "Corporation"),
and does hereby further certify as follows:
(1) The name of the Corporation is NORTH FORK
BANCORPORATION, INC.
(2) The name under which the Corporation was originally
incorporated was NORTH FORK BANCORPORATION, INC. and the original
Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on December 8, 1980.
(3) This Restated Certificate of Incorporation was duly
adopted by in accordance with the provisions of Section 245 of the
General Corporation Law of the State of Delaware.
(4) The text of the Certificate of Incorporation of the
Corporation as heretofore amended is restated without further
amendment to read in its entirety, as follows:
FIRST: Name. The name of the corporation is NORTH FORK
BANCORPORATION, INC.(hereinafter called the "Corporation").
SECOND: Address; Registered Agent. The address of the
Corporation's registered office is Corporation Trust Center, 1209 Orange
Street, City of Wilmington, County of New Castle, State of Delaware; and
its registered agent at such address is The Corporation Trust Company.
THIRD: Purposes. The nature of the business and purposes
to be conducted or promoted by the Corporation are to engage in, carry on
and conduct any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: Capital Stock. (a) The authorized shares which
the Corporation has authority to issue shall be two hundred ten million
(210,000,000), divided into two hundred million (200,000,000) shares of
Common Stock, par value of two dollars and fifty cents ($2.50) each, and
ten million (10,000,000) shares of Preferred Stock, par value of one dollar
($1.00) each, which Preferred Stock may be divided into and issued in
series as described herein.
(b) Subject to any applicable provisions of the
Certificate of Incorporation (including such provisions set forth
in the Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock attached hereto as
Exhibit A) and any applicable requirements or limitations
prescribed by law, the Board of Directors of the Corporation is
hereby expressly authorized, from time to time by resolution, to
divide the Preferred Stock into series, to authorize the issuance
of one or more series of the Preferred Shares, and to fix for each
such series the number, designation, powers, preferences and
rights and the qualifications, limitations or restrictions of such
preferences or rights, specifying as to each such series:
(A) the designation of such series in such
manner as shall distinguish shares
thereof from all other series, and the
number of shares which shall constitute
the initial issue thereof;
(B) the dividend rights of such series,
including the dividend rate or rates
thereon, the time or times at which
such dividends shall be payable,
whether such dividends are cumulative
and, if so, on what terms;
(C) the redemption rights of such series,
if any, including the price or prices
at which and the terms and conditions
on which shares of such series may be
redeemed, and whether such rights may
be exercised by the corporation, the
holders or both;
(D) the amount payable upon shares of such
series in the event of a voluntary or
involuntary liquidation, dissolution or
winding up of the affairs of the
Corporation;
(E) sinking fund provisions, if any, for the
redemption or purchase of shares of such
series;
(F) the conversion rights of such series,
if any, including the identity of the
security or securities into which such
shares are convertible, the rate or
rates of conversion, and the terms and
conditions of conversion;
(G) whether the shares of such series shall
have any voting rights in addition to
those prescribed by law, and, if so,
the nature of such rights and under what
circumstances the rights may be exercised;
and
(H) such other powers, preferences, and
relative participating, optional or
other special rights of such series,
and the qualifications, limitations, or
restrictions of such preferences and/or
rights desired to be so fixed.
(c) All shares of any one series of Preferred
Stock shall be identical with each other in all respects except
that shares of any one series issued at different times may differ
as to the dates from which dividends thereon shall accumulate, and
all series of Preferred Stock shall rank equally and be identical
in all respects except in respect to the particulars which may be
fixed in the resolutions of the Board of Directors providing for
the initial issue thereof.
(d) Except as may be otherwise provided in this
Article Fourth or in the resolution or resolutions providing for
the issue of a particular series, the Board of Directors may from
time to time increase the number of shares of any series already
created by providing that any unissued shares of Preferred Stock
shall constitute part of such series, or may decrease (but not
below the number of shares thereof then outstanding) the number of
shares of any series already created by providing that any
unissued shares previously assigned to such series shall no longer
constitute part thereof.
(e) Each holder of record of Common Stock shall
have the right to one vote for each share of Common Stock held in
his name on the record books of the Corporation as of the record
date for any matter submitted to a vote of the stockholders of the
Corporation. Except to the extent otherwise provided herein or in
any resolution or resolutions of the Board of Directors providing
of for the initial issue of shares of one or more series of
Preferred Stock or as otherwise required by law, holders of shares
of Preferred Stock of any series shall not be entitled to vote
such shares with respect to any matter which is put to a vote of
the stockholders. The number of shares of Preferred Stock which
the Corporation shall have the authority to issue may be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote, and the holders of the Preferred Stock, if entitled by law
to vote on any such increase or decrease, shall not be entitled to
vote separately as a class or series of a class thereon.
(f) Subject to the prior and superior rights of
the Preferred Stock as set forth in any resolution or resolutions
of the Board of Directors providing for the initial issue of one
or more series of Preferred Stock, the holders of Common Stock shall
be entitled to receive such dividends, whether payable in cash,
stock or otherwise, as may be declared from time to time by the
Board of Directors to be paid thereon out of any fund legally
available therefor, and the Preferred Stock shall not be entitled
to participate in any such dividend.
(g) In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the affairs of the
Corporation, after distribution in full of the preferential
amounts required to be distributed to the holders of each series
of Preferred Stock then outstanding including the amount of any
cumulated but unpaid dividends, if any, if a preference shall then
attach thereto, the holders of Common Stock shall be entitled to
receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders, ratably in proportion to the numbers of shares of
Common Stock held by them respectively.
FIFTH: Intentionally Omitted.
SIXTH: Directors; Election and Classification.
(h) Members of the Board of Directors may be
elected either by written ballot or by voice vote.
(i) The Board of Directors shall consist of not
less than three (3) members, such number to be fixed initially by
the incorporator and subject to change thereafter from time to
time by action of the stockholders or by action of the Board. The
Board shall be divided into three classes. The number of directors
of the first class shall equal one third (1/3) of the total of the
number of directors thus determined (or the nearest whole number
thereto); the number of directors of the second class shall equal
the number of directors of the first class; and the number of
directors of the third class shall equal said total number of
directors minus the aggregate number of directors of the first and
second classes. At the election of the first Board, the class of
each of the members then elected shall be designated. The term of
office of those members then designated as the first class shall
expire at the annual meeting of shareholders next ensuing, that of
the members designated as the second class at the annual meeting
of shareholders one year thereafter, and that of the members
designated as the third class at the annual meeting of
shareholders two years thereafter. At each annual meeting of the
shareholders held after the election and classification of the
first Board, directors shall be elected for a full term of three
(3) years to succeed those members whose terms then expire.
SEVENTH: Adoption, Amendment and/or Repeal of By-Laws.
The Board of Directors may from time to time (after adoption by the
undersigned of the original by-laws of the Corporation) adopt, amend or
repeal the by-laws of the Corporation; provided, that any by-laws adopted,
amended or repealed by the Board of Directors may be amended or repealed,
and any by-laws may be adopted, by the stockholders of the Corporation.
EIGHTH: Compromise and Arrangements. Whenever a
compromise or arrangement is proposed between this Corporation and its
creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction
within the State of Delaware may, on the application in a summary way of
this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation
under the provisions of section 291 of Title 8 of the Delaware Code or on
the application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of section 279 of Title
8 of the Delaware Code order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value
of the creditors or class of creditors, and/or of the stockholders or class
of stockholders of this Corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this Corporation as
a consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court
to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
NINTH: Special Provisions. The holders of any shares of
any class of stock or any other securities of the Corporation shall have no
preemptive rights, and shall have no pro rata preference rights, to
subscribe for any new or increased shares of any class of stock or
securities of the Corporation or any rights or options to purchase such
shares or any securities convertible into such shares which are authorized
for issuance.
TENTH: Liability of Directors. Subject only to the
express prohibitions on elimination or limitation of liability of directors
set forth in Section 102(b)(7) of the Delaware General Corporation Law, as
the same exists or may hereafter be amended, the personal liability of a
director of this Corporation to the Corporation or its stockholders for
monetary damages for breach of his fiduciary duty as a director shall be
limited to $25,000 per occurrence.
IN WITNESS WHEREOF, this Certificate has been signed on
this 9th day of December, 1997, and the signature of the undersigned shall
constitute the affirmation and acknowledgement of the undersigned, under
penalties of perjury, that the Certificate is the act and deed of the
undersigned and that the facts stated in the Certificate are true.
/s/ John Adam Kanas
-----------------------------
John Adam Kanas, President
Appendix A
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
NORTH FORK BANCORPORATION, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, John A. Kanas, President and Chief Executive Officer,
and Frank A. Anderson, Secretary of North Fork Bancorporation, Inc., a
corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 103
thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors by the Certificate of Incorporation of the said Corporation,
as amended, the said Board of Directors on February 28, 1989, adopted the
following resolution creating a series of 500,000 shares of Preferred Stock
designated as Series A Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the
Board of Directors of this Corporation in accordance with the provisions of
its Certificate of Incorporation, as amended, a series of Preferred Stock
of the Corporation be and it hereby is created, and that the designation
and amount thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are as
follows:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series A Junior Participating Preferred
Stock" and the number of shares constituting such series shall be 500,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock ranking prior and
superior to the shares of Series A Junior Participating Preferred Stock
with respect to dividends, the holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to receive when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of March,
June, September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a)
$2.00 or (b) subject to the provision for adjustment hereinafter set forth,
100 times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock, par value
$2.50 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior Participating Preferred
Stock. In the event the Corporation shall at any time after February 28,
1989 (the "Rights Declaration Date") (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount to which holders of
shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred Stock as
provided in paragraph (A) above immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares
of Common Stock); provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $2.00 per share on the Series A Junior
Participating Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of issue of
such shares of Series A Junior Participating Preferred Stock, unless the
date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Junior Participating Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which
record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of Series
A Junior Participating Preferred Stock shall have the following voting
rights:
(A) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Junior Participating Preferred Stock
shall entitle the holder thereof to 100 votes on all matters submitted to a
vote of the stockholders of the Corporation. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a small number of shares, then in each such case the number of votes
per share to which holders of shares of Series A Junior Participating
Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the
holders of shares of Series A Junior Participating Preferred Stock and the
holders of shares of Series A Junior Participating Preferred Stock and the
holders of shares of Common Stock shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal to six
(6) quarterly dividends thereon, the occurrence of such contingency shall
mark the beginning of a period (herein called a "default period") which
shall extend until such time when all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current quarterly dividend
period on all shares of Series A Junior Participating Preferred Stock then
outstanding shall have been declared and paid or set apart for payment.
During each default period, all holders of Preferred Stock (including
holders of the Series A Junior Participating Preferred Stock) with
dividends in arrears in an amount equal to six (6) quarterly dividends
thereon, voting as a class, irrespective of series, shall have the right to
elect two (2) Directors.
(ii) During any default period, such voting right of the
holders of Series A Junior Participating Preferred Stock may be exercised
initially a special meeting called pursuant to subparagraph (iii) of this
Section 3(c) or at any annual meeting of stockholders, and thereafter at
annual meetings of stockholders, provided that neither such voting right
nor the right of the holders of any other series of Preferred Stock, if
any, to increase, in certain cases, the authorized number of Directors
shall be exercised unless the holders of ten percent (10%) in number of
shares of Preferred Stock outstanding shall be present in person or by
proxy. The absence of a quorum of the holders of Common Stock shall not
affect the exercise by the holders of Preferred Stock of such voting right.
At any meeting at which the holders of Preferred Stock shall exercise such
voting right initially during an existing default period, they shall have
the right, voting as a class, to elect Directors to fill such vacancies, if
any, in the Board of Directors as may then exist up to two (2) Directors
or, if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special meeting
does not amount to the required number, the holders of the Preferred Stock
shall have the right to make such increase in the number of Directors as
shall be necessary to permit the election by them of the required number.
After the holders of the Preferred Stock shall have exercised their right
to elect Directors in any default period and during the continuance of such
period, the number of Directors shall not be increased or decreased except
by vote of the holders of Preferred Stock as herein provided or pursuant to
the rights of any equity security ranking senior to or pari passu with the
Series A Junior Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during
an existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than then ten percent (10%)
of the total number of shares of Preferred Stock outstanding, irrespective
of series, may request, the calling of a special meeting of the holders of
Preferred Stock which meeting shall thereupon be called by the President, a
Vice-President or the Secretary of the Corporation. Notice of such meeting
and of any annual meeting at which holders of Preferred Stock are entitled
to vote pursuant to this paragraph (C) (iii) shall be given to each holder
of record of Preferred Stock by mailing a copy of such notice to him at his
last address as the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 20 days and not later
than 60 days after such order or request or in default of the calling of
such meeting within 60 days after such order or request, such meeting may
be called on similar notice by any stockholder or stockholders owning in
the aggregate not less than ten percent (10%) of the total number of shares
of Preferred Stock outstanding. Notwithstanding the provisions of this
paragraph (C)(iii), no such special meeting shall be called during the
period within 60 days immediately preceding the date fixed or the next
annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock,
and other classes of stock of the Corporation if applicable, shall continue
to be entitled to elect the whole number of Directors until the holders of
Preferred Stock shall have exercised their right to elect two (2) Directors
voting as a class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in office until
their successors shall have been elected by such holders or until the
expiration of the default period, and (y) any vacancy in the Board of
Directors may (except as provided in paragraph (C)(iii) of this Section 3)
be filled by vote of a majority of the remaining Directors theretofore
elected by the holders of the class of stock which elected the Director
whose office shall have become vacant. References in this paragraph (C) to
Directors elected by the holders of a particular class of stock shall
include Directors elected by such Directors to fill vacancies as provided
in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period,
(x) the right of the holders of Preferred Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the holders
of Preferred Stock as a class shall terminate, and (z) the number of
Directors shall be such number as may be provided for in the certificate of
incorporation or by-laws irrespective of any increase made pursuant to the
provisions of paragraph (C)(ii) of this Section 3 (such number being
subject, however, to change thereafter in any manner provided by law or in
the certificate of incorporation or by-laws). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Series A
Junior Participating Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock
as provided in Section 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on shares
of Series A Junior Participating Preferred Stock outstanding shall have
been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Junior Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Junior Participating Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to
the Series A Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for or otherwise
acquire for consideration any shares of Series A Junior Participating
Preferred Stock, or any shares of stock ranking on a parity with the Series
A Junior Participating Preferred Stock, except in accordance with an offer
made in writing or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such shares
at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A
Junior Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. (A)
Upon any liquidation (voluntary or otherwise), dissolution or winding up of
the Corporation, no distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred
Stock unless, prior thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received $100 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment (the "Series A
Liquidation Preference"). Following the payment of the full amount of the
Series A Liquidation Preference, no additional distributions shall be made
tot he holders of shares of Series A Junior Participating Preferred stock
unless, prior thereto, the holders of shares of Common Stock shall have
received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation Preference by
(ii) 100 (as appropriately adjusted as set forth in subparagraph C below to
reflect such events as stock splits, stock dividends, and recapitalizations
with respect to the common Stock) (such number in clause (ii), the
"Adjustment Number"). Following the payment of the full amount of the
Series A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A Junior Participating Preferred Stock and
Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to 1 with respect to such Preferred
Stock and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of preferred
stock, if any, which rank on a parity with the Series A Junior
Participating Preferred Stock, then such remaining assets shall be
distributed ratably to the holders of such parity shares in proportion to
their respective liquidation preferences. In the event, however, that there
are not sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number
of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such even and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case the shares of Series A Junior participating Preferred
Stock shall at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time after the Rights Declaration Date (i) declare
any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Junior Participating Preferred stock shall be
adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Junior Participating
Preferred Stock shall rank junior to all other series of the Corporation's
Preferred Stock as to the payment of dividends and the distribution of
assets, unless the terms of any such series shall provide otherwise.
Section 10. Amendment. The Certificate of Incorporation
of the Corporation, as amended, shall not be further amended in any manner
which would materially alter or change the powers, preferences or special
rights of the Series A Junior Participating Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of a majority or
more of the outstanding shares of Series A Junior Participating Preferred
Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Junior
Participating Preferred Stock may be issued in fractions of a share which
shall entitle the holder, in proportion to such holders fractional shares,
to exercise voting rights, receive dividends, participate in distributions
and to have the benefit of all other rights of holders of Series A Junior
Participating Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties of
perjury this 28th day of February, 1989.
NORTH FORK BANCORPORATION, INC.
/s/ John A. Kanas
----------------------------------
President and Chief Executive Officer
Attest:
/s/ Frank A. Anderson
- ------------------------
Secretary
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
NORTH FORK BANCORPORATION, INC.
-----------------------------------------
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
-----------------------------------------
North Fork Bancorporation, Inc., a Delaware corporation
(hereinafter called the "Corporation"), does hereby certify as follows:
FIRST: Paragraph (a) of Article Fourth of the
Corporation's Restated Certificate of Incorporation is hereby amended to
read in its entirety as set forth below:
FOURTH: Capital Stock. (a) The authorized shares which
the Corporation has authority to issue shall be five
hundred ten million (510,000,000), divided into five
hundred million (500,000,000) shares of common stock, par
value of one cent ($.01) each, and ten million
(10,000,000) shares of Preferred Stock, par value of one
dollar ($1.00) each which Preferred Stock may be divided
into and issued in series as described herein.
SECOND: The foregoing amendment was duly adopted in
accordance with Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, North Fork Bancorporation, Inc. has
caused this Certificate to be duly executed in its corporate name this 11th
day of February, 2000.
NORTH FORK BANCORPORATION, INC.
By: /s/ Aurelie S. Graf
------------------------------
Name: Aurelie S. Graf
Title: Secretary
EXHIBIT 5.1
[LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP]
March 1, 2000
Board of Directors
North Fork Bancorporation, Inc.
275 Broad Hollow Road
Melville, New York 11747
Re: North Fork Bancorporation, Inc.
Registration Statement on Form S-8
Gentlemen:
We have acted as special counsel to North Fork Bancorporation,
Inc., a Delaware corporation (the "Company"), in connection with the
preparation of a Registration Statement on Form S-8, which is being filed
by the Company with the Securities and Exchange Commission (the
"Commission") on the date hereof (the "Registration Statement") relating to
the registration and issuance by the Company of an aggregate of up to
1,369,438 shares of common stock, par value $0.01 per share (the "Common
Stock"), of the Company pursuant to the (i) Reliance Bancorp, Inc. 1994
Incentive Stock Option Plan (the "1994 Plan"), (ii) Amended and Restated
Reliance Bancorp, Inc. 1994 Stock Option Plan for Outside Directors (the
"1994 Outside Director Plan") and (iii) Reliance Bancorp, Inc. 1996
Incentive Stock Option Plan Amended and Restated as of February 19, 1997
(the "1996 Plan" and together with the 1994 Plan and the 1994 Outside
Director Plan, the "Reliance Stock Option Plans"), which have been assumed
by the Company pursuant to the Amended and Restated Agreement and Plan of
Merger, dated as of August 30, 1999 (the "Merger Agreement"), by and
between the Company and Reliance Bancorp, Inc., a Delaware corporation.
This opinion is delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as
amended.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement of the Company on Form S-8 filed with the Commission
on the date hereof, (ii) the Merger Agreement, (iii) the form of
certificates to be used to represent the shares of Common Stock, (iv) the
Restated Certificate of Incorporation and Amended and Restated By-Laws of
the Company, as amended to date, (v) resolutions adopted by the Board of
Directors of the Company with respect to the Merger Agreement and the
issuance of the shares of Common Stock contemplated thereby, and (vi) such
other documents as we have deemed necessary or appropriate as a basis for
the opinions set forth below.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies, and the authenticity of originals of such copies. As to
any facts material to this opinion which we did not independently establish
or verify, we have relied upon statements or representations of officers
and other representatives of the Company and others.
Members of our firm are admitted to the bar in the State of New
York, and we do not express any opinion as to the law of any other
jurisdiction other than the General Corporation Law of Delaware and the
laws of the United States of America to the extent specifically referred to
herein.
Based upon and subject to the foregoing, and assuming the due
execution and delivery of certificates representing the shares of Common
Stock in the form examined by us, we are of the opinion that the shares of
Common Stock to be issued by the Company pursuant to the Reliance Stock
Option Plans will be duly authorized, validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5.1 to the Registration Statement. In giving such
consent we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Act.
Very truly yours,
Skadden, Arps, Slate, Meagher & Flom LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
North Fork Bancorporation, Inc.:
We hereby consent to the incorporation by reference in the
Post-Effective Amendment No. 1 on Form S-8 on Form S-4 of North Fork
Bancorporation, Inc., dated as of the date hereof, of our report dated
January 14, 1999, relating to the consolidated balance sheets of North Fork
Bancorporation, Inc. and subsidiaries as of December 31, 1998 and 1997, and
the related consolidated statements of income, cash flows, changes in
shareholders' equity, and comprehensive income for each of the years in the
three-year period ended December 31, 1998, which report is included in the
1998 Annual Report to Shareholders of North Fork Bancorporation, Inc. and
has been incorporated by reference in the December 31, 1998 Annual Report
on Form 10-K of North Fork Bancorporation, Inc.
/s/ KPMG LLP
- -----------------
KPMG LLP
New York, New York
February 28, 2000
