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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____)*
North Fork Bancorporation, Inc.
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(Name of Issuer)
Common Stock, par value $0.01 per share
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(Title of Class of Securities)
659424105
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(CUSIP Number)
William C. Mutterperl, Esq.
Executive Vice President, Secretary and General Counsel
Fleet Boston Corporation
One Federal Street
Boston, Massachusetts 02110
(617) 346-4000
Copies to:
Robert L. Tortoriello, Esq.
David Leinwand, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
March 5, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. |_|
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
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CUSIP No. 0006594241 Page 2 of [ ] Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Fleet Boston Corporation
05-0341324
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
3
4
SOURCE OF FUNDS*
OO (See Item 3.)
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Rhode Island
7 SOLE VOTING POWER
21,341,165 (See Items 4 and 5.)
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 2,850 (See Item 5.)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH
21,486,815 (See Items 4 and 5.)
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,489,815 (See Items 4 and 5.)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.9% (See Items 4 and 5.)
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
Item 1. Security and Issuer.
This statement relates to the common stock, par value $0.01 per share
(the "Common Stock"), of North Fork Bancorporation, Inc., a Delaware corporation
(the "Company"), whose principal executive offices are located at 275 Broad
Hollow Road, Melville, New York 11747.
Item 2. Identity and Background.
This statement is filed by Fleet Boston Corporation, doing business as
FleetBoston Financial Corporation ("FleetBoston"). FleetBoston, a Rhode Island
corporation with its principal executive office at One Federal Street, Boston,
Massachusetts 02110, is a diversified financial services company formed by the
merger on October 1, 1999 of BankBoston Corporation with and into Fleet
Financial Group, Inc.
The executive officers and directors of FleetBoston are Terrence
Murray (Chairman, Chief Executive Officer and Director), Charles K. Gifford
(President, Chief Operating Officer and Director), Robert J. Higgins (President
of Commercial and Retail Banking and Director), Henrique C. Meirelles (President
of Global Banking and Financial Services and Director), David L. Eyles (Vice
Chairman and Chief Credit Officer), Paul F. Hogan (Vice Chairman, Corporate and
Investment Banking), Peter J. Manning (Vice Chairman), Eugene M. McQuade (Vice
Chairman and Chief Financial Officer), H. Jay Sarles (Vice Chairman, National
Financial Services, and Chief Administrative Officer), Joseph Smialowski (Vice
Chairman, Technology and Operations), Bradford H. Warner (Vice Chairman,
Investment Services), Brian T. Moynihan (Executive Vice President), William C.
Mutterperl (Executive Vice President, General Counsel and Secretary), M. Anne
Szostak (Executive Vice President), Erich Schumann (Senior Vice President and
Chief Accounting Officer), Robert C. Lamb, Jr. (Controller), Joel B. Alvord
(Director), William Barnet, III (Director), Daniel P. Burnham (Director), Paul
J. Choquette, Jr. (Director), John T. Collins (Director), William F. Connell
(Director), Gary L. Countryman (Director), Alice F. Emerson (Director), James F.
Hardymon (Director), Marian L. Heard (Director), Robert M. Kavner (Director),
Thomas J. May (Director), Donald F. McHenry (Director), Michael B. Picotte
(Director), Thomas R. Piper (Director), Thomas C. Quick (Director), Francene S.
Rodgers (Director), John W. Rowe (Director), Thomas M. Ryan (Director) and Paul
R. Tregurtha (Director).
Terrence Murray has his principal business address at One Federal
Street, Boston, Massachusetts 02110. Mr. Murray's principal occupation is as
Chairman, Chief Executive Officer and Director of FleetBoston. Mr. Murray is a
citizen of the United States.
Charles K. Gifford has his principal business address at One Federal
Street, Boston, Massachusetts 02110. Mr. Gifford's principal occupation is as
President, Chief Operating Officer and Director of FleetBoston. Mr. Gifford is a
citizen of the United States.
Robert J. Higgins has his principal business address at One Federal
Street, Boston, Massachusetts 02110. Mr. Higgins' principal occupation is as
President of Commercial and Retail Banking and Director of FleetBoston. Mr.
Higgins is a citizen of the United States.
Henrique C. Meirelles has his principal business address at One
Federal Street, Boston, Massachusetts 02110. Mr. Meirelles' principal occupation
is as President of Global Banking and Financial Services and Director of
FleetBoston. Mr. Meirelles is a citizen of Brazil.
David L. Eyles has his principal business address at 777 Main Street,
Hartford, Connecticut 06115. Mr. Eyles' principal occupation is as Vice
Chairman and Chief Credit Officer of FleetBoston. Mr. Eyles is a citizen of the
United States.
Paul F. Hogan has his principal business address at One Federal
Street, Boston, Massachusetts 02110. Mr. Hogan's principal occupation is as Vice
Chairman, Corporate and Investment Banking, of FleetBoston. Mr. Hogan is a
citizen of the United States.
Peter J. Manning has his principal business address at One Federal
Street, Boston, Massachusetts 02110. Mr. Manning's principal occupation is as
Vice Chairman of FleetBoston. Mr. Manning is a citizen of the United States.
Eugene M. McQuade has his principal business address at One Federal
Street, Boston, Massachusetts 02110. Mr. McQuade's principal occupation is as
Vice Chairman and Chief Financial Officer of FleetBoston. Mr. McQuade is a
citizen of the United States.
H. Jay Sarles has his principal business address at 100 Federal
Street, Boston, Massachusetts 02110. Mr. Sarles' principal occupation is as Vice
Chairman, National Financial Services, and Chief Administrative Officer of
FleetBoston. Mr. Sarles is a citizen of the United States.
Joseph Smialowski has his principal business address at 100 Federal
Street, Boston, Massachusetts 02110. Mr. Smialowski's principal occupation is as
Vice Chairman, Technology and Operations, of FleetBoston. Mr. Smialowski is a
citizen of the United States.
Bradford H. Warner has his principal business address at One Federal
Street, Boston, Massachusetts 02110. Mr. Warner's principal occupation is as
Vice Chairman, Investment Services, of FleetBoston. Mr. Warner is a citizen of
the United States.
Brian T. Moynihan has his principal business address at 100 Federal
Street, Boston, Massachusetts 02110. Mr. Moynihan's principal occupation is as
Executive Vice President of FleetBoston. Mr. Moynihan is a citizen of the United
States.
William C. Mutterperl has his principal business address at One
Federal Street, Boston, Massachusetts 02110. Mr. Mutterperl's principal
occupation is as Executive Vice President, General Counsel and Secretary of
FleetBoston. Mr. Mutterperl is a citizen of the United States.
M. Anne Szostak has her principal business address at One Federal
Street, Boston, Massachusetts 02110. Ms. Szostak's principal occupation is as
Executive Vice President of FleetBoston. Ms. Szostak is a citizen of the United
States.
Erich Schumann has his principal business address at 100 Federal
Street, Boston, Massachusetts 02110. Mr. Schumann's principal occupation is as
Senior Vice President and Chief Accounting Officer of FleetBoston. Mr. Schumann
is a citizen of Germany.
Robert C. Lamb, Jr. has his principal business address at One Federal
Street, Boston, Massachusetts 02110. Mr. Lamb's principal occupation is as
Controller of FleetBoston. Mr. Lamb is a citizen of the United States.
Joel B. Alvord has his principal business address at 75 Federal
Street, 18th Floor, Boston, Massachusetts 02110. Mr. Alvord's principal
occupation is as President and Managing Partner of Shawmut Capital Partners,
Inc. Mr. Alvord is a citizen of the United States.
William Barnet, III has his principal business address at P.O. Box
131, Arcadia, South Carolina 29320. Mr. Barnet's principal occupation is as
President and Chief Executive Officer of William Barnet & Son, Inc. Mr. Barnet
is a citizen of the United States.
Daniel P. Burnham has his principal business address at 141 Spring
Street, Lexington, Massachusetts 02421. Mr. Burnham's principal occupation is as
Chairman and Chief Executive Officer of Raytheon Company. Mr. Burnham is a
citizen of the United States.
Paul J. Choquette, Jr. has his principal business address at Seven
Jackson Walkway, Providence, Rhode Island 02903. Mr. Choquette's principal
occupation is as Chairman and Chief Executive Officer of Gilbane Building
Company. Mr. Choquette is a citizen of the United States.
John T. Collins has his principal business address at 60 State Street,
Suite 700, Boston Massachusetts 02109. Mr. Collins' principal occupation is as
Chairman and Chief Executive Officer of The Collins Group, Inc. Mr. Collins is a
citizen of the United States.
William F. Connell has his principal business address at One
International Place, 31st Floor, Boston, Massachusetts 02110. Mr. Connell's
principal occupation is as Chairman and Chief Executive Officer of Connell
Limited Partnership. Mr. Connell is a citizen of the United States.
Gary L. Countryman has his principal business address at 175 Berkeley
Street, Boston, Massachusetts 02117. Mr. Countryman's principal occupation is as
Chairman of Liberty Mutual Insurance Company. Mr. Countryman is a citizen of the
United States.
Alice F. Emerson has her residence address at 11 Coolidge Road,
Arlington, Massachusetts 02476. Ms. Emerson's principal occupation is as Senior
Advisor of the Andrew W. Mellon Foundation and President Emerita of Wheaton
College, Norton, Massachusetts. Ms. Emerson is a citizen of the United States.
James F. Hardymon has his principal business address at 333 West Vine
Street, Suite 300, Lexington, Kentucky 40507. Mr. Hardymon's principal
occupation is as Retired Chairman and Chief Executive Officer of Textron Inc.
Mr. Hardymon is a citizen of the United States.
Marian L. Heard has her residence address at 47 Hopewell Farm Road,
Natick, Massachusetts 01760. Ms. Heard's principal occupation is as President
and Chief Executive Officer of United Way of Massachusetts Bay. Ms. Heard is a
citizen of the United States.
Robert M. Kavner has his principal business address at 20680 Leonard
Road, Saratoga, California 95070. Mr. Kavner's principal occupation is Vice
Chairman of Bill Gross' Idealab! Mr. Kavner is a citizen of the United States.
Thomas J. May has his principal business address at 800 Boylston
Street, Boston, Massachusetts 02199. Mr. May's principal occupation is as
President and Chief Executive Officer of NSTAR, Boston Edison, ComElectric,
ComGas and Cambridge Electric. Mr. May is a citizen of the United States.
Donald F. McHenry has his principal business address at 1320 19th
Street, N.W. -- Suite 410, Washington, D.C. 20036. Mr. McHenry's principal
occupation is as University Research Professor of Diplomacy and International
Relations of Georgetown University and President of the IRC Group. Mr. McHenry
is a citizen of the United States.
Michael B. Picotte has his principal business address at 20 Corporate
Woods Boulevard, Suite 600, Albany, New York 12211. Mr. Picotte's principal
occupation is as President and Chief Executive Officer of the Picotte Companies.
Mr. Picotte is a citizen of the United States.
Thomas R. Piper has his principal business address at Morgan Hall, 493
Soldiers Field Road, Boston, Massachusetts 02163. Mr. Piper's principal
occupation is as Lawrence E. Fouraker Professor of Business Administration of
Harvard University Graduate School of Business Administration. Mr. Piper is a
citizen of the United States.
Thomas C. Quick has his principal business address at 26 Broadway, New
York, New York 10004. Mr. Quick's principal occupation is as President and Chief
Operating Officer of Quick & Reilly/Fleet Securities, Inc. Mr. Quick is a
citizen of the United States.
Francene S. Rogers has her principal business address at 928
Commonwealth Avenue, Boston, Massachusetts 02215. Ms. Rogers' principal
occupation is as Chief Executive Officer of WFD, Inc. Ms. Rogers is a citizen of
the United States.
John W. Rowe has his principal business address at 10 South Dearborn
Street -- 37th Floor, Chicago, Illinois 60603. Mr. Rowe's principal occupation
is as Chairman, President and Chief Executive Officer of Unicom Corp. and
Commonwealth Edison Company. Mr. Rowe is a citizen of the United States.
Thomas M. Ryan has his principal place of business at One CVS Drive,
Woonsocket, Rhode Island 02895. Mr. Ryan's principal occupation is as Chairman
and Chief Executive Officer of CVS Corporation. Mr. Ryan is a citizen of the
United States.
Paul R. Tregurtha has his principal business address at Three Landmark
Square, Stamford, Connecticut 06901. Mr. Tregurtha's principal occupation is as
Chairman and Chief Executive Officer of Mormac Marine Group, Inc. and Chairman
and Chief Executive Officer of Moran Transportation Company. Mr. Tregurtha is a
citizen of the United States.
During the last five years, neither FleetBoston nor, to the best
knowledge of FleetBoston, any of the executive officers or directors of
FleetBoston, has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors). During the last five years, neither
FleetBoston nor, to the best knowledge of FleetBoston, any such individual, has
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
As more fully described under Item 4 below, FleetBoston and the
Company have entered into the Stock Purchase Agreement (as defined below),
pursuant to which FleetBoston has agreed to purchase the Preferred Stock and the
Rights (each as defined below) for aggregate consideration of $250,000,000 in
cash. It is currently anticipated that the funds required for the purchase of
Preferred Stock and Rights by FleetBoston will be obtained from general funds
available to Fleet Boston and its affiliates.
Item 4. Purpose of Transaction.
On March 5, 2000, FleetBoston entered into a Stock Purchase Agreement
(the "Stock Purchase Agreement") with the Company pursuant to which FleetBoston
agreed to purchase (i) 250,000 shares of the Company's 7.5% Series B
Non-Cumulative Convertible Preferred Stock, par value $1.00 per share and with a
liquidation preference of $1,000.00 per share (the "Preferred Stock"), and (ii)
rights to acquire 7,500,000 shares of Common Stock (the "Rights"), for an
aggregate purchase price of $250,000,000.
FleetBoston entered into the Stock Purchase Agreement in connection
with the Company's offer (the "Company Exchange Offer") to exchange each
outstanding share of common stock, par value $0.01 per share (the "Dime Common
Stock"), of Dime Bancorp, Inc. ("Dime") for 0.9302 shares of Common Stock and
$2.00 in cash. FleetBoston understands that the Company is seeking, upon the
valid termination of the merger agreement relating to the proposed merger (the
"Proposed Hudson United Merger") of Hudson United Bancorp ("Hudson United") with
and into Dime, to negotiate a definitive merger agreement with Dime pursuant to
which Dime would, as soon as practicable following the completion of the Company
Exchange Offer, merge with and into the Company or a wholly owned subsidiary of
the Company. In connection with the Company Exchange Offer, on March 14, 2000,
the Company filed a registration statement on Form S-4 (the "Company
Registration Statement"), with the Securities and Exchange Commission (the
"Commission"), which includes a prospectus related to the Company Exchange
Offer. The Company also is soliciting proxies from the holders of Dime Common
Stock against the Proposed Hudson United Merger, and on March 13, 2000, the
Company filed a definitive proxy statement on Schedule 14A (the "Company
Schedule 14A") with the Commission relating to that solicitation. Detailed
information regarding the Company Exchange Offer and the Company's proxy
solicitation can be found in the Company Registration Statement and the Company
Schedule 14A, respectively. FleetBoston disclaims that it is a bidder in the
Company Exchange Offer or a participant in the Company's solicitation of proxies
from holders of Dime Common Stock.
As described below, completion of FleetBoston's purchase of the
Preferred Stock and the Rights is conditioned on, among other things,
satisfaction of the conditions of the Company Exchange Offer and the Company's
acceptance for exchange of shares of Dime Common Stock tendered in the Company
Exchange Offer. The Company Exchange Offer is subject to certain conditions
described below.
Preferred Stock and Rights. The Preferred Stock will be convertible,
in whole or in part, at any time and from time to time, into shares of Common
Stock at a conversion price of $18.69 per share of Common Stock, subject to
certain antidilution adjustments. The Rights will be exercisable, in whole or in
part, at any time and from time to time, for shares of Common Stock for a period
of ten years after their issuance at a price of $17.88 per share, subject to
certain antidilution adjustments.
The Preferred Stock will bear a non-cumulative dividend of 7.5% per
annum (payable quarterly), and will be redeemable for cash, at the Company's
option, in whole or in part, at any time after the third anniversary of the
issuance date at a redemption price of $1,000 per share, plus declared and
unpaid dividends to the date fixed for redemption.
Except as specified below, neither the Preferred Stock nor the Rights
will entitle the holders thereof to any voting rights. If dividends on the
shares of Preferred Stock have not been paid for six quarterly dividend periods,
the maximum number of directors of the Company will be increased by two (which
directors will constitute a separate class) and, subject to applicable law, the
holders of the Preferred Stock (and any holders of shares of stock issued by the
Company after the issuance date which provide that such stock will rank equally
with the Preferred Stock) will be entitled to vote as a single class to elect
the two directors at the Company's next annual meeting and at each subsequent
annual meeting until full dividends have been paid on the Preferred Stock for
four consecutive quarterly dividend periods.
The consent of the holders of two-thirds of the outstanding shares of
Preferred Stock, voting separately as a class, is also required for the Company
to take certain actions, including (i) changing its certificate of incorporation
or by-laws, if such change would materially and adversely affect the rights of
the Preferred Stock (but not including creating or issuing any stock ranking
equal or junior to the Preferred Stock), (ii) authorizing or issuing any equity
securities ranking senior to the Preferred Stock, (iii) authorizing or issuing
any additional shares of Preferred Stock or (iv) effecting any business
combination if, as a result thereof, the surviving corporation would have more
equity securities either authorized or outstanding ranking senior to the
Preferred Stock.
Transfer Restrictions. Each of the Preferred Stock, the Rights, any
additional rights issued as described below and any shares of Common Stock
received upon conversion of the Preferred Stock or the exercise of the Rights
will be subject to certain transfer restrictions, including that FleetBoston
will not dispose of beneficial ownership of such securities (other than to
affiliates) prior to the first anniversary of the issuance date. The disposition
of such securities after the first anniversary of the issuance date will be
subject to the requirement that the transferee and its affiliates not
beneficially own, at the time of or as a result of the disposition, 5% or more
of the Common Stock, without the prior approval of the Company's Board of
Directors. In addition, the sale of any shares of Preferred Stock, Rights or
additional rights will be subject to a right of first refusal by the Company or
a purchaser designated by the Company. Notwithstanding the foregoing, a holder
of Preferred Shares, Rights, additional rights or Common Stock issued upon the
conversion or exercise thereof, will be permitted to dispose of such securities
in any recommended third-party tender or exchange offer, and a holder of Common
Stock will, on or after the first anniversary of the issuance date, be permitted
to sell the Common Stock in a widely distributed underwritten public offering.
Registration Rights. The Preferred Stock, Rights, any additional
rights and any Common Stock issued upon the conversion or exercise thereof will
also benefit from certain rights related to the registration of the offering and
sale of such securities pursuant to a registration rights agreement to be
entered into at the closing of the investment (the "Registration Rights
Agreement"). Under the Registration Rights Agreement, the Company will grant
FleetBoston rights to offer and sell the Preferred Stock, the Rights, the
additional rights and the underlying Common Stock in certain registered
offerings made by the Company. FleetBoston will also have the right to "demand"
registration (including by means of a shelf registration) of the Preferred
Stock, the Rights, the additional rights and the underlying Common Stock. No
more than two demand registrations may be requested prior to the fifth
anniversary of the issuance date and no more than two may be exercised in any
subsequent five-year period; however, any demand registration right not
exercised may be carried over to and exercised in any subsequent period. The
Company is not required to effect more than one demand registration in any
12-month period or within six months after a registration in which holders
participated pursuant to the piggyback rights described above. The registration
rights are subject to certain customary blackout and cutback provisions and are
accompanied by customary indemnification provisions.
Conditions to Closing. Completion of FleetBoston's purchase of the
Preferred Stock and the Rights is subject to certain conditions, including (1)
satisfaction of the conditions of the Company Exchange Offer (without
substantial change in the conditions of the Company Exchange Offer as disclosed
to FleetBoston in the Stock Purchase Agreement); (2) acceptance for exchange of
shares of Dime Common Stock tendered in the Company Exchange Offer; and (3)
receipt and effectiveness of all regulatory approvals required to complete the
purchase and the expiration of all related statutory waiting periods (without
the imposition of any condition or restriction that would be materially adverse
to FleetBoston).
As disclosed in the Stock Purchase Agreement, the conditions of the
Company Exchange Offer include, among others, the following: (i) the valid
tender in the Company Exchange Offer of at least a majority of the shares of
Dime Common Stock, on a fully diluted basis; (ii) the holders of Dime Common
Stock not having approved the Proposed Hudson United Merger; (iii) the
termination of the merger agreement related to the Proposed Hudson United
Merger; (iv) the execution of a merger agreement between the Company and Dime
relating to the Company's proposed acquisition of Dime; (v) the receipt of all
required regulatory approvals in connection with the Company's proposed
acquisition of Dime; (vi) the termination of the stock option agreement between
Dime and Hudson United and the surrender to Dime of the option granted to Hudson
United for an amount not to exceed $50,000,000; and (vii) the approval of the
Company's stockholders of the issuance of Common Stock in the merger.
Branch Sale. In the Stock Purchase Agreement, the Company has agreed,
subject to the consummation of the Company Exchange Offer, to cause Dime to sell
to a FleetBoston subsidiary 17 retail banking offices of Dime that, as of
December 31, 1999, had total deposits of approximately $2.0 billion.
Consummation of the branch sale transaction will be subject to the execution of
a definitive branch sale agreement (which FleetBoston and the Company have
agreed to negotiate in good faith and enter into reasonably promptly following
the consummation of the Company Exchange Offer), the receipt and effectiveness
of all necessary regulatory approvals, and the satisfaction of other customary
closing conditions.
If the Company does not acquire Dime and if, subsequent to the
termination of the Hudson United/Dime Standstill (as defined below), FleetBoston
acquires a majority equity interest in Dime on or before December 31, 2001,
FleetBoston has agreed to cause Dime to sell to the Company five branches with
total deposits of approximately $500 million as of December 31, 1999.
Consummation of any such transaction would be subject to conditions comparable
to those applicable to the branch purchase by FleetBoston.
Additional Rights. Under the Stock Purchase Agreement, the Company has
agreed that if, after the third anniversary of the issuance of the Preferred
Stock and the Rights, any shares of Preferred Stock are still outstanding, then
on each quarterly dividend payment date the Company will issue to FleetBoston
additional rights to purchase a number of shares of Common Stock equal to .5%
(or 1% if any shares of Preferred Stock are outstanding on or after the fifth
anniversary of the issuance of the Preferred Stock) of the aggregate liquidation
preference of the then-outstanding shares of Preferred Stock divided by the
then-current market price of the Common Stock. The exercise price for any such
additional rights will be the market price of Common Stock at the time of
issuance of such additional rights, and such additional rights will be
exercisable for 10 years from their issuance date. In all other respects such
additional rights will be similar to the Rights.
Standstills. Under the Stock Purchase Agreement, FleetBoston has
agreed that, other than as contemplated in the Stock Purchase Agreement, for a
period of two years it will not, among other things, acquire beneficial
ownership of any voting equity securities of the Company, make any public
announcement with respect to (or submit to the Company) any proposal for the
acquisition of any voting equity securities of the Company or with respect to a
merger or other business combination involving the Company, unless the Company
shall have made a prior written request to FleetBoston to submit such proposal,
or participate in any solicitation of proxies to vote any voting equity
securities of the Company. In addition, FleetBoston has agreed that until
December 31, 2001, it will not acquire, or offer to acquire, any voting equity
securities or assets of Dime or Hudson United, or make any public announcement
with respect to (or submit to Dime or Hudson United) any proposal for the
acquisition of any voting equity securities of Dime or Hudson United,
respectively, or for a merger or other business combination involving Dime or
Hudson United (the "Hudson United/Dime Standstill"), except that from and after
the earlier of the termination of the other provisions of the Stock Purchase
Agreement and March 31, 2001, FleetBoston may terminate the Hudson United/Dime
Standstill by providing notice to the Company and paying the Company a fee of
$2.5 million. In the event that FleetBoston acquires a majority interest in Dime
on or prior to December 31, 2001, FleetBoston must pay the Company an additional
fee of $2.5 million.
Under the Stock Purchase Agreement, the Company must pay FleetBoston a
fee of $2.5 million on the earlier of the termination of the Stock Purchase
Agreement and March 31, 2001, if at such time the Company has not acquired a
majority equity interest in Dime. If the Company acquires a majority of the
equity interest in Dime on or prior to the later of the termination of the Stock
Purchase Agreement and March 31, 2001, the Company must pay FleetBoston a fee of
$5.0 million on the date of the closing of such acquisition (or $2.5 million if
the Company has paid the $2.5 million fee referred to in the previous sentence).
Certain Covenants. In the Stock Purchase Agreement, the Company has
agreed to operate substantially in the ordinary course and to refrain from
paying or making any extraordinary dividends or distributions on the Common
Stock prior to the closing of the investment. The Company has also agreed to
indemnify FleetBoston for breaches of the representations or covenants in the
Stock Purchase Agreement and for losses (including litigation expenses) arising
out of the Company's solicitation of proxies from holders of Dime Common Stock
and the Company Exchange Offer.
Termination. The Stock Purchase Agreement may be terminated by mutual
consent. Either FleetBoston or the Company may terminate the Stock Purchase
Agreement under certain circumstances, including if the acquisition of Dime
Common Stock pursuant to the Company Exchange Offer has not been consummated by
March 31, 2001, if Dime's and Hudson United's stockholders approve the Proposed
Hudson United Merger or if the Company publicly announces the abandonment of its
efforts to acquire Dime.
General. The provisions of the Stock Purchase Agreement (including the
forms of certificate of designation with respect to the Preferred Stock, rights
certificate with respect to the Rights and Registration Rights Agreement
attached as exhibits thereto) are set forth in full in such document, which is
filed as Exhibit 1 to this Schedule and which is incorporated herein in its
entirety by this reference in response to this Item. The foregoing description
of the terms and provisions of such document is a summary only, and is qualified
in its entirety by reference to such document.
Except as set forth herein, FleetBoston does not have any plans or
proposals which would relate to or result in any of the actions described in
subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a), (b) Except as described herein, as of the date hereof, neither
FleetBoston nor, to the best knowledge of FleetBoston, any of the persons named
in Item 2 holds of record any shares of Common Stock or other securities of the
Company. However, by virtue of the execution of the Stock Purchase Agreement,
FleetBoston may be deemed beneficially to own up to 20,876,137 shares of Common
Stock, representing in the aggregate approximately 10.6% of the outstanding
shares of Common Stock (based on the number of shares of Common Stock
represented by the Company in the Stock Purchase Agreement to be outstanding as
of February 25, 2000 plus the number of shares represented by the Company in the
Stock Purchase Agreement to be reserved for issuance in connection with the
closing of the Company's acquisition of JSB Financial, Inc., which FleetBoston
understands occurred on February 29, 2000, plus the number of shares to be
issued to FleetBoston as described herein), and 7.0% of the Common Stock
assuming consummation of the Company Exchange Offer and the related merger and
the issuance of 102,381,765 shares of Common Stock in connection therewith.
FleetBoston disclaims beneficial ownership of such shares. In addition, certain
banking or investment advisory subsidiaries of FleetBoston, in their capacities
as trustee or investment adviser, may be deemed beneficially to own 613,678
shares of Common Stock, representing in the aggregate approximately .3% of the
outstanding shares of Common Stock (based on the number of shares of Common
Stock outstanding as described above). Such subsidiaries have sole dispositive
power as to 610,678 of such shares, sole voting power as to 465,028 of such
shares and shared voting power as to 2,850 of such shares. FleetBoston disclaims
beneficial ownership of such shares. Such shares, together with the shares of
Common Stock that FleetBoston may be deemed beneficially to own as a result of
the execution of the Stock Purchase Agreement, represent approximately 10.9% of
the outstanding shares of Common Stock (based on the number of shares of Common
Stock outstanding as described above), and 7.2% of the Common Stock assuming
consummation of the Company Exchange Offer and the related merger and the
issuance of 102,381,765 shares of Common Stock in connection therewith.
(c) Except as described herein, no transactions in shares of Common
Stock were effected during the past 60 days by FleetBoston or, to the best of
its knowledge, any of the individuals identified in Item 2.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understanding or Relationships with
Respect to Securities of the Issuer.
Except as set forth in this statement, to the best knowledge of
FleetBoston, there are no other contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons named in Item 2 and between
such persons and any person with respect to any securities of the Company,
including but not limited to, transfer or voting of any of the securities of the
Company, joint ventures, loan or options arrangements, puts or calls, guarantees
of profits, division of profits or loss, or the giving or withholding of
proxies, or a pledge or contingency the occurrence of which would give another
person voting power or investment power over the securities of the Company.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 Stock Purchase Agreement, dated as of March 5, 2000 (as amended as
of March 14, 2000), by and between Fleet Boston Corporation and North
Fork Bancorporation, Inc., including the form of Certificate of
Designation of Voting Powers, Preferences and Relative Participating,
Optional and Other Special Rights and Qualifications, Limitations and
Restrictions of 7.5% Series B Non-Cumulative Convertible Preferred
Stock (attached as Exhibit A to the Stock Purchase Agreement), the
form of Rights Certificate for Rights to Purchase Shares of Common
Stock (attached as Exhibit B to the Stock Purchase Agreement) and the
form of Registration Rights Agreement (attached as Exhibit C to the
Stock Purchase Agreement).
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: March 15, 2000
FLEET BOSTON CORPORATION
By: /s/ William C. Mutterperl
---------------------------------
Name: William C. Mutterperl
Title: Executive Vice President,
Secretary and General Counsel
Exhibit 1
STOCK PURCHASE AGREEMENT
By and Between
FLEET BOSTON CORPORATION
and
NORTH FORK BANCORPORATION, INC.
Dated as of March 5, 2000
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................1
ARTICLE II
SALE AND PURCHASE OF THE PREFERRED SHARES; ISSUANCE OF THE RIGHTS
Section 2.01. Sale and Purchase of the Preferred Shares...................5
Section 2.02. Issuance of the Rights......................................5
Section 2.03. Closing.....................................................5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Company...............6
Section 3.02. Representations and Warranties of Purchaser................11
ARTICLE IV
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 4.01 Taking of Necessary Action.................................13
Section 4.02. [Intentionally Omitted.]...................................13
Section 4.03. Conduct of Business........................................13
Section 4.04. Transfer Restrictions......................................14
Section 4.05. Financial Statements and Other Reports.....................19
Section 4.06. Inspection of Property.....................................20
Section 4.07. Compliance with Applicable Law; Information................20
Section 4.08. Legends....................................................21
Section 4.09. Lost, Stolen, Destroyed or Mutilated Securities............22
Section 4.10. Regulatory Matters.........................................22
Section 4.11. Access to Records and Information..........................23
ARTICLE V
CONDITIONS
Section 5.01. Conditions of Purchase.....................................23
Section 5.02. Conditions of Sale.........................................25
ARTICLE VI
TERMINATION; CERTAIN COVENANTS
Section 6.01. Termination................................................25
Section 6.02. Effect of Termination......................................26
Section 6.03. Certain Fees...............................................26
Section 6.04. Sale of Branches...........................................27
Section 6.05. Additional Rights..........................................27
ARTICLE VII
MISCELLANEOUS
Section 7.01. Survival of Representations and Warranties.................28
Section 7.02. Notices....................................................28
Section 7.03. Entire Agreement; Amendment................................29
Section 7.04. Counterparts...............................................29
Section 7.05. Governing Law..............................................29
Section 7.06. Public Announcements.......................................29
Section 7.07. Expenses...................................................30
Section 7.08. Indemnification............................................30
Section 7.09. Successors and Assigns.....................................31
Section 7.10. Captions...................................................31
EXHIBITS
A - Form of Certificate of Designations
B - Form of Rights Certificate
C - Form of Registration Rights Agreement
D - Branch Purchase Terms
E - Conditions to Offer
<PAGE>
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of March 5, 2000, by and between
FLEET BOSTON CORPORATION, a Rhode Island corporation (the "Purchaser"), and
NORTH FORK BANCORPORATION, INC., a Delaware corporation (the "Company")
(restated as of March 14, 2000). Capitalized terms not otherwise defined where
used shall have the meanings ascribed thereto in Article I.
WHEREAS, Purchaser has agreed to purchase, and the Company has agreed
to sell, subject to the terms and conditions of this Agreement, shares of its
Preferred Stock;
WHEREAS, the Company has agreed to issue to Purchaser certain Rights
to purchase shares of Common Stock of the Company;
WHEREAS, the Company may (i) solicit proxies (the "Proxy
Solicitation") from stockholders of Dime Bancorp, Inc., a Delaware corporation
("Dime"), against approval and adoption by such stockholders of the Agreement
and Plan of Merger, dated as of September 15, 1999, by and between Dime and
Hudson United Bancorp, a New Jersey corporation ("Hudson"), as amended and
restated as of December 27, 1999 (the "Dime Merger Agreement"), and (ii)
commence an exchange offer for outstanding shares of common stock of Dime, which
the Company represents shall be on terms previously disclosed in writing to
Purchaser (the "Offer"); and
WHEREAS, the Company and Purchaser desire to set forth certain
agreements herein.
NOW THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained and intending to be
legally bound hereby, the parties hereby agree as follows:
Article I
Definitions
Section 1.01. Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Affiliate" or "affiliate" shall mean, with respect to any Person, any
other Person which directly or indirectly controls or is controlled by or is
under common control with such Person. As used in this definition, "control"
(including its correlative meanings, "controlled by" and "under common control
with") shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise). To the extent that any such term is used in relation to or in
connection with any statute and the definition of such term in such statute is
broader or different, then, in such context, such term shall have the meaning
set forth in such statute.
"Ancillary Documents" shall mean the Certificate of Designations, the
Registration Rights Agreement and the Rights Certificate.
"Beneficially Own" and "Beneficial Owner" shall have the meanings set
forth in Section 4.04(d).
"BHC Act" shall have the meaning set forth in Section 3.01(a).
"Branch Purchase" means the transaction contemplated by the Branch
Purchase Agreement.
"Branch Purchase Agreement" shall have the meaning set forth in
Section 6.04.
"Business Day" shall mean any day, other than a Saturday, Sunday or a
day on which banking institutions in the City of New York are authorized or
obligated by law or executive order to close.
"Certificate of Designations" shall have the meaning set forth in
Section 2.01.
"Closing" and "Closing Date" shall have their meanings set forth in
Section 2.03(a).
"Code" means the United States Internal Revenue Code of 1986,
as amended.
"Common Stock" shall have the meaning set forth in Section 2.02.
"Company Indemnitees" shall have the meaning set forth in Section
7.08(b).
"Company Pension Plans" and "Company Plans" shall have the meanings
set forth in Section 3.01(j).
"Company Subsidiary" shall have the meaning set forth in Section
3.01(b).
"Confidentiality Agreements" shall have the meaning set forth in
Section 7.06.
"Designated Purchaser" shall have the meaning set forth in Section
4.04(c).
"DGCL" shall mean the Delaware General Corporation Law.
"Dime" shall have the meaning set forth in the Recitals hereto.
"Dime/Hudson Period" shall have the meaning set forth in Section
4.04(e).
"Dime Merger Agreement" shall have the meaning set forth in the
Recitals hereto.
"Dime Voting Securities" shall have the meaning set forth in Section
4.04(e).
"Disposition" shall have the meaning set forth in Section 4.04(a).
"ERISA" shall have the meaning set forth in Section 3.01(j).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Entity" shall mean any court, administrative agency or
commission or other governmental authority or instrumentality, whether federal,
state, local or foreign.
"Hudson" shall have the meaning set forth in the Recitals hereto.
"Hudson Voting Securities" shall have the meaning set forth in Section
4.04(e).
"Indemnified Party" shall have the meaning set forth in
Section 7.08(c).
"Indemnifying Party" shall have the meaning set forth in Section
7.08(c).
"Investment" shall have the meaning set forth in Section 4.10(a).
"Loss" shall have the meaning set forth in Section 7.08(a).
"Material Adverse Effect" shall mean a material adverse effect on (i)
the financial condition, results of operations, assets, liabilities or business
of the Company and the Company Subsidiary taken as a whole, (ii) the ability of
the Company to perform its obligations under this Agreement, the Ancillary
Documents or the Branch Purchase Agreement or (iii) the validity or
enforceability of this Agreement, any of the Ancillary Documents or the Branch
Purchase Agreement or the rights or remedies of Purchaser hereunder and
thereunder.
"NFB Group" shall have the meaning set forth in Section
3.01(j).
"NYSE" shall mean the New York Stock Exchange.
"Offer" shall have the meaning set forth in the Recitals hereto.
"Permitted Transferee" shall mean any Affiliate of Purchaser, provided
that such Affiliate agrees in writing to be bound by the terms and conditions of
Section 4.04.
"Person" or "person" shall mean an individual, corporation,
association, partnership, group (as such term is used in Section 13(d)(3) of the
Exchange Act), trust, joint venture, business trust or unincorporated
organization, or a government or any agency or political subdivision thereof.
"Preferred Shares" shall have the meaning set forth in Section 2.01.
"Proposed Dime Merger" shall mean the proposed merger of the Company
and Dime contemplated by the Offer.
"Proxy Solicitation" shall have the meaning set forth in the Recitals
hereto.
"Proxy Statement" shall have the meaning set forth in Section 3.02(h).
"Purchase Notice" shall have the meaning set forth in Section 4.04(c).
"Purchase Price" shall have the meaning set forth in Section 4.04(c).
"Purchaser Indemnitee" shall have the meaning set forth in Section
7.08(a).
"Purchaser Information" shall have the meaning set forth in Section
3.02(h).
"Registration Rights Agreement" shall mean the registration rights
agreement to be executed by the Company and Purchaser at the Closing, which
shall be in the form attached hereto as Exhibit C.
"Regulatory Filings" shall have the meaning set forth in Section
3.02(h).
"Reports" shall have the meaning set forth in Section 3.01(g).
"Rights" shall have the meaning set forth in Section 2.02.
"S-4" shall have the meaning set forth in Section 3.02(h).
"Sale Closing Date" shall have the meaning set forth in Section
4.04(c).
"Sale Notice" shall have the meaning set forth in Section 4.04(c).
"Sale Securities" shall have the meaning set forth in Section 4.04(c).
"Schedule TO" shall have the meaning set forth in Section 3.02(h).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"SEC" shall mean the United States Securities and Exchange Commission.
"Seller" shall have the meaning set forth in Section 4.04(c).
"Standstill Period" shall have the meaning set forth in Section
4.04(d).
"Subsidiary" shall mean, with respect to any corporation (the
"parent") any other corporation, association or other business entity of which
more than 50% of the shares of the voting stock are owned or controlled,
directly or indirectly, by the parent or one or more Subsidiaries of the parent,
or by the parent and one or more of its Subsidiaries.
"Termination Fee" shall have the meaning set forth in Section 6.03.
"Transaction Filings" shall have the meaning set forth in Section
3.02(h).
"Voting Securities" shall have the meaning set forth in Section
4.04(d).
Article II
Sale and Purchase of the Preferred Shares;
Issuance of the Rights
Section 2.01. Sale and Purchase of the Preferred Shares. Subject to
all of the terms and conditions of this Agreement, and in reliance upon the
representations and warranties hereinafter set forth, at the Closing provided
for in Section 2.03 hereof, the Company will sell to Purchaser, and Purchaser
will purchase from the Company, 250,000 shares of its 7.5% Series B
Non-Cumulative Convertible Preferred Stock, par value $1.00 per share and
liquidation preference $1,000.00 per share (the "Preferred Shares"), together
with the Rights, for an aggregate purchase price (such purchase price to be
allocated between the Preferred Shares and the Rights as Purchaser shall
reasonably determine) of $250,000,000. The Preferred Shares will have the
designation, relative rights, preferences and limitations set forth in the
Company's Restated Certificate of Incorporation and the Certificate of
Designations in the form attached hereto as Exhibit A (the "Certificate of
Designations").
Section 2.02. Issuance of the Rights. Subject to all of the terms and
conditions of this Agreement, at the Closing provided for in Section 2.03
hereof, the Company shall issue to Purchaser stock purchase rights ("Rights") to
purchase 7,500,000 shares of common stock, par value $0.01 per share, of the
Company (the "Common Stock"). The terms and provisions of the Rights shall be as
set forth in the form of Rights Certificate attached hereto as Exhibit B.
Section 2.03. Closing. (a) Subject to the satisfaction or waiver of
the conditions set forth in this Agreement, the purchase and sale of the
Preferred Shares hereunder and the issuance of the Rights (the "Closing") shall
take place at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, counsel
to the Company, at Four Times Square, New York, New York, or another mutually
agreed location, on the date when the condition set forth in Section 5.01(i)
hereof shall have been satisfied (the "Closing Date").
(b) At the Closing: (i) the Company will deliver to Purchaser
certificates for the Preferred Shares registered in the name of Purchaser; (ii)
the Company will deliver to Purchaser certificates for the Rights registered in
the name of Purchaser; (iii) Purchaser, in full payment for the Preferred
Shares, will deliver to the Company immediately available funds, by wire
transfer to such account as the Company shall specify, in the amount of the
purchase price to be paid hereunder pursuant to Section 2.01; and (iv) each
party shall take or cause to happen such other actions, and shall execute and
deliver such other instruments or documents, as shall be required under Article
V hereof.
Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, Purchaser as follows:
(a) Organization and Good Standing of the Company. The Company is a
corporation registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended the ("BHC Act"), is duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority and governmental authorizations to own, operate
and lease its properties and to carry on its business as it is being conducted
on the date of this Agreement. The Company is duly licensed or qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, except where the
failure to be so licensed or qualified in any such jurisdiction would not have a
Material Adverse Effect.
(b) Organization and Good Standing of Company Subsidiaries. The
only "significant subsidiary" of the Company within the meaning of Regulation
S-X promulgated by the SEC is North Fork Bank (together with its Subsidiaries,
the "Company Subsidiary"). Except for directors' qualifying shares, the Company
owns, directly or indirectly, all the shares of outstanding capital stock of the
Company Subsidiary. Other than as disclosed in Section 3.01(e) and other than
pursuant to this Agreement and the Ancillary Documents, (i) no equity securities
of the Company Subsidiary are or may become required to be issued by reason of
any options, warrants, rights to subscribe to, calls or commitments of any
character whatsoever, (ii) there are outstanding no securities or rights
convertible into or exchangeable for shares of any capital stock of the Company
Subsidiary and (iii) there are no contracts, commitments, understandings or
arrangements by which the Company Subsidiary is bound to issue additional shares
of its capital stock or options, warrants or rights to purchase or acquire any
additional shares of its capital stock. All of the shares of capital stock of
the Company Subsidiary owned by the Company are duly and validly authorized,
fully paid and (subject to applicable law) non-assessable and are owned by it
free and clear of any claim, lien, encumbrance, agreement or preemptive rights
with respect thereto. North Fork Bank is a banking corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, and has all requisite corporate power and authority and
governmental authorizations to own, operate and lease its properties and to
carry on its business as it is now being conducted, and is duly licensed or
qualified to do business in each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
except where the failure to be so authorized, licensed or qualified in any such
jurisdiction would not have a Material Adverse Effect. The deposits of North
Fork Bank are insured by the FDIC to the fullest extent permitted by the Federal
Deposit Insurance Act and the rules and regulations of the FDIC thereunder.
(c) Authorization; No Conflicts. The Company has full corporate
power and authority to enter into this Agreement, the Ancillary Documents to
which it is a party and the Branch Purchase Agreement and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement and each Ancillary Document and the consummation
of the transactions contemplated hereby and thereby has been duly authorized by
the Board of Directors of the Company. No other corporate proceedings on the
part of the Company or the Company Subsidiary are necessary to authorize the
execution, delivery and performance of this Agreement and each Ancillary
Document and the transactions contemplated hereby and thereby. This Agreement
and each Ancillary Document have been duly and validly executed and delivered by
the Company. This Agreement and each Ancillary Document constitute valid and
binding obligations of the Company, enforceable in accordance with their terms.
The execution, delivery and performance of this Agreement, the Ancillary
Documents and the Branch Purchase Agreement, the consummation of the
transactions by the Company contemplated hereby and thereby and the compliance
by the Company with any of the provisions hereof and thereof (including, without
limitation, the conversion provisions of the Preferred Shares) will not conflict
with, violate or result in a breach of any provision of, or constitute a default
(or an event which, with notice or lapse of time or both would constitute a
default) under, or result in the termination of or accelerate the performance
required by, or result in a right of termination or acceleration under, (i) any
provision of the restated certificate of incorporation, by-laws or other
governing instrument of the Company or the certificate of incorporation,
charter, by-laws or other governing instrument of the Company Subsidiary or
(ii)(x) any mortgage, note, indenture, deed of trust, lease, loan agreement or
other agreement or instrument or, (y) any permit, concession, grant, franchise,
license, judgment, order, decree, ruling, injunction, statute, law, ordinance,
rule or regulation, in the case of (x) or (y), applicable to the Company or the
Company Subsidiary or their respective properties or assets, except for such
conflicts, violations, breaches, defaults, terminations and accelerations which
do not have, or could not be reasonably expected to have, a Material Adverse
Effect.
(d) Consents. No consent, approval or order of, or filing with, any
Governmental Entity is required in connection with the execution, delivery and
performance of this Agreement and the Ancillary Documents by the Company and the
consummation of the transactions by the Company hereunder and thereunder.
(e) Capitalization. As of February 25, 2000, the authorized capital
stock of the Company consisted of (i) 500,000,000 shares of Common Stock of
which at such date 145,050,215 shares were issued and outstanding and (ii)
10,000,000 shares of Preferred Stock, $1.00 par value, no shares of which were
outstanding at such date. As of February 25, 2000, the Company held 130,816
shares of Common Stock in its treasury. As of February 25, 2000, there were
4,231,284 shares of Common Stock reserved for issuance in connection with
employee benefit, stock option and dividend reinvestment and stock purchase
plans and 31,000,000 shares reserved for issuance in connection with the closing
of the Company's acquisition of JSB Financial, Inc. All of the issued and
outstanding shares of the Company's capital stock have been duly and validly
authorized and issued and are fully paid and nonassessable, and are not subject
to preemptive rights. Other than as set forth in this subsection (e) or pursuant
to this Agreement, the Certificate of Designations and the Rights, (i) no equity
securities of the Company are or may be required to be issued by reason of any
options, warrants, rights to subscribe to, calls or commitments of any character
whatsoever, (ii) there are outstanding no securities or rights convertible into
or exchangeable for shares of any capital stock of the Company and (iii) there
are no contracts, commitments, understandings or arrangements by which the
Company is bound to issue additional shares of its capital stock or options,
warrants or rights to purchase or acquire any additional shares of its capital
stock.
(f) Financial Statements. The Company has previously delivered or
made available to Purchaser copies of (a) the consolidated balance sheet of the
Company and its consolidated Subsidiaries (including the Company Subsidiary) as
of December 31 for the fiscal years 1997 and 1998, and the related consolidated
statements of income, changes in stockholders' equity and cash flows for the
fiscal years 1996 through 1998, inclusive, as reported in the Company's Annual
Report on Form 10-K (as amended) for the fiscal year ended December 31, 1998,
filed by the Company with the SEC under the Exchange Act, in each case
accompanied by the audit report of KPMG LLP, independent public accountants with
respect to the Company, and (b) the unaudited consolidated balance sheet of the
Company and its consolidated Subsidiaries (including the Company Subsidiary) as
of September 30, 1999 and the related unaudited consolidated statement of
income, changes in stockholders' equity and cash flows for the nine-month period
then ended as reported in the Company's Quarterly Report on Form 10-Q (as
amended) for the quarter ended September 30, 1999 filed with the SEC under the
Exchange Act. Such financial statements fairly present in all material respects
the consolidated financial position of the Company and its consolidated
Subsidiaries (including the Company Subsidiary) as of the dates shown and the
results of the consolidated operations, changes in stockholders' equity and cash
flows of the Company and its consolidated Subsidiaries (including the Company
Subsidiary) for the respective fiscal periods or as of the respective dates
therein set forth; and each of such statements has been prepared in accordance
with GAAP consistently applied during the periods involved, except as otherwise
set forth in the notes thereto.
(g) Reports. Since January 1, 1998, each of the Company and the
Company Subsidiary has filed all reports, registration statements, proxy
statements and other materials, together with any amendments required to be made
with respect thereto, that were required to be filed with (i) the SEC under the
Securities Act or the Exchange Act, (ii) the Federal Reserve Board, (iii) the
FDIC and (iv) any applicable state securities or banking authorities (all such
reports and statements are collectively referred to herein as the "Reports"). As
of their respective dates, the Reports (including the Transaction Filings, other
than with respect to Purchaser Information, as to which no representation is
made) complied in all material respects with all of the statutes and published
rules and regulations enforced or promulgated by the regulatory authority with
which they were filed and (i) with respect to Reports filed with the SEC, did
not as of the date of filing thereof with the SEC contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and (ii) with respect
to all other Reports, are complete and accurate in all material respects as of
their respective dates. There are no facts existing as of the date hereof
peculiar to the Company or the Company Subsidiary which the Company has not
disclosed in the Reports or to Purchaser in writing which, either individually
or in the aggregate, would be likely to have a Material Adverse Effect, other
than facts relating to the economic condition generally of the industry in which
the Company and its Subsidiaries operate.
(h) Compliance with Applicable Law. (i) Each of the Company and the
Company Subsidiary holds all material licenses, franchises, permits and
authorizations necessary for the lawful conduct of its business under, and
except as reflected in the Reports, is not in default or violation in any
respect of, any law, statute, order, rule, regulation, policy or guideline of
any Federal, state or local governmental authority applicable to the Company or
the Company Subsidiary, other than such defaults or violations that, either
individually or in the aggregate, would not result in a material limitation on
the conduct of the business of the Company or the Company Subsidiary and which
would not otherwise have a Material Adverse Effect. No investigation or review
by any Governmental Entity (other than judicial bodies with respect to matters
identified pursuant to paragraph (i) below), with respect to the Company or the
Company Subsidiary, is pending or, to the best knowledge of the Company, is
presently threatened or contemplated, other than those the outcome of which
would not have a Material Adverse Effect.
(ii) The Company hereby covenants and agrees that, for so long
as this Agreement shall remain in effect, it shall, and shall cause
its Subsidiaries, Affiliates, directors, officers and employees to,
comply with all legal requirements (including those under the
Exchange Act and the rules and regulations thereunder) that are
applicable to the Company as a "bidder" within the meaning of Rule
14d-1(g)(2) under the Exchange Act with respect to the Offer and a
"participant" within the meaning of Instruction 3 to Item 4 of
Schedule 14A under the Exchange Act with respect to the Proxy
Solicitation.
(i) Legal Proceedings. Except as set forth in the Reports, neither
the Company nor the Company Subsidiary is a party to any legal, administrative,
arbitration or other proceedings, claims, actions or governmental investigations
of any nature against the Company or the Company Subsidiary or to which any of
their assets are subject (i) in which there is a reasonable probability of an
adverse decision which either individually or in the aggregate would have a
Material Adverse Effect, or (ii) relating to or which challenges the validity or
propriety of the transactions contemplated by this Agreement or the Ancillary
Documents, and, to the best knowledge of the Company, there has not been
threatened, any such proceeding, claim, action or governmental investigation
against the Company or the Company Subsidiary. Neither the Company nor the
Company Subsidiary is subject to any order, judgment or decree which has a
Material Adverse Effect, or could reasonably have a Material Adverse Effect.
(j) ERISA. All "employee benefit plans", as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and any other stock option, bonus, incentive, severance or other benefit plan,
program or arrangement (whether or not subject to ERISA), currently maintained
or maintained since April 1, 1988, by either the Company or any companies which,
with the Company, would be deemed to be a single employer under Section 414 of
the Code (collectively, the "NFB Group") or for the benefit of NFB Group
employees, are collectively, for purposes of this Agreement, referred to herein
as the "Company Plans". All Company Plans which constitute employee "pension
plans" as defined in Section 3(2) of ERISA are referred to herein as the
"Company Pension Plans". No "prohibited transaction" (as such term is used in
Section 406 of ERISA or Section 4975 of the Code), has heretofore occurred with
respect to any Company Plan or any Company Pension Plan and no such prohibited
transaction shall occur as a result of the execution and delivery of this
Agreement, the Ancillary Documents and the Branch Purchase Agreement and the
consummation of the transactions contemplated hereby and thereby.
(k) Absence of Certain Changes. Except for transactions
contemplated by this Agreement and the Ancillary Documents, since September 30,
1999, the Company and the Company Subsidiary have conducted their respective
businesses only in the ordinary course, consistent with prior practice, and
there has not been (i) any change in the financial condition, results of
operations, assets, liabilities or business of the Company and the Company
Subsidiary which has had, or may have, a Material Adverse Effect or (ii) any
damage, destruction, theft or other casualty loss (whether or not covered by
insurance) which has had, or is likely to have, a Material Adverse Effect.
(l) Disclosure. Neither this Agreement, any Ancillary Document nor
any certificate or disclosure statement delivered by or on behalf of the Company
in connection with the transactions contemplated hereby or thereby contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein and therein not misleading.
(m) No Undisclosed Liabilities, etc. Neither the Company nor its
consolidated Subsidiaries has any liabilities or obligations of any nature
(absolute, accrued, contingent or otherwise) which are not fully reflected or
reserved against in the financial statements described in Section 3.01(f),
except for liabilities that may have arisen in the ordinary and usual course of
business and consistent with past practice and that, individually or in the
aggregate, do not have and could not reasonably be expected to have a Material
Adverse Effect.
(n) Status of Securities. The Preferred Shares and the Rights have
been duly authorized by all necessary corporate action. When issued and sold
against receipt of the consideration therefor, the Preferred Shares will be
validly issued, fully paid and nonassessable, will not subject the holders
thereof to personal liability and will not be subject to preemptive rights of
any other stockholder of the Company. When executed and delivered as
contemplated by this Agreement, the Rights will be valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms.
Not less than 18,469,425 shares of Common Stock have been duly reserved for
issuance upon the conversion of the Preferred Shares and the exercise of the
Rights. When issued upon the conversion of the Preferred Shares or the exercise
of the Rights, such shares of Common Stock will be validly issued, fully paid
and nonassessable, will not subject the holders thereof to personal liability
and will not be subject to preemptive rights of any other stockholder of the
Company.
(o) Offering of Securities. Neither the Company nor any Person
acting on its behalf has offered the Preferred Shares or the Rights or any
similar securities of the Company for sale to, solicited any offers to buy any
of the Preferred Shares or the Rights or any similar securities of the Company
from or otherwise approached or negotiated with respect to any of the Preferred
Shares or the Rights or any similar securities of the Company with any Person
other than Purchaser. Neither the Company nor any Person acting on its behalf
has taken or will take any action (including, without limitation, any offering
of any securities of the Company under circumstances which would require the
integration of such offering with the offering of any of the Preferred Shares or
the Rights under the Securities Act and the rules and regulations of the SEC
thereunder) which might subject the offering, issuance or sale of any of the
Preferred Shares or the Rights to the registration requirements of the
Securities Act.
(p) Brokers and Finders. Neither the Company nor any Company
Subsidiary nor any of their respective officers, directors, employees or agents
has utilized any broker, finder, placement agent or financial advisor or
incurred any liability for any fees or commissions in connection with any of the
transactions contemplated hereby or by the Ancillary Documents.
(q) Company Information. None of the information to be contained in
the Transaction Filings or Regulatory Filings (in each case, other than
Purchaser Information, as to which no representation is made) will, in the case
of the Proxy Statement, the Schedule TO or any amendments or supplements
thereto, at the time such document is mailed, or in the case of the S-4, at the
time it is declared effective by the SEC, or in the case of any other
Transaction Filings or Regulatory Filings, at the time such filing is made,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they are made, not misleading. No report,
schedule, proxy statement or other document filed by the Company with the SEC
and incorporated by reference in any of the Transaction Filings contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstance in which they were made, not misleading.
None of the information provided to Purchaser as contemplated by Section 4.10
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstance in which they are made not
misleading. The Schedule TO (other than with respect to Purchaser Information,
as to which no representation is made) will comply with the applicable
provisions of the Exchange Act, and the rules and regulations thereunder.
Section 3.02. Representations and Warranties of Purchaser. Purchaser
represents and warrants to, and agrees with, the Company as follows:
(a) Organization. Purchaser is a corporation registered as a bank
holding company under the BHC Act, is duly organized, validly existing and in
good standing under the laws of the State of Rhode Island and has all requisite
corporate power and authority to enter into this Agreement and the Ancillary
Documents to which it is a party and to carry out its obligations hereunder and
thereunder.
(b) Authorization; No Conflicts. The execution and delivery by
Purchaser of this Agreement and the Ancillary Documents to which it is a party
and the consummation of the transactions contemplated hereby and thereby have
been authorized by all necessary corporate action on behalf of Purchaser. This
Agreement has been, and on or prior to the Closing Date the Ancillary Documents
to which it is a party will be, executed and delivered on behalf of Purchaser
and this Agreement is, and upon their execution on or prior to the Closing Date
the Ancillary Documents to which it is a party will be, valid and binding
obligations of Purchaser, enforceable against it in accordance with their terms.
The execution, delivery and performance of this Agreement and the Ancillary
Documents to which it is a party, and the consummation of the transactions
contemplated hereby and thereby and the compliance by Purchaser with any of the
provisions hereof and thereof will not conflict with, violate or result in a
breach of any provision of, or constitute a default (or an event, which, with
notice or lapse of time or both would constitute a default) under, (i) any
organizational document of Purchaser or (ii) any mortgage, note, indenture, deed
of trust, lease, loan agreement or other agreement or instrument of Purchaser
or, assuming that the clearances, filings, consents and approvals referred to in
Section 3.02(c) have been obtained or made and any waiting period applicable
thereto has expired or been terminated, any permit, concession, grant,
franchise, license, judgment, order, decree, ruling, injunction, statute, law,
ordinance, rule or regulation applicable to Purchaser or its properties other
than any such conflict, violation, breach or default under clause (ii) which
will not materially and adversely affect the consummation of the transactions
contemplated hereby.
(c) Consents and Approvals. Except for the filing of an application
with the Federal Reserve Board under the BHC Act with respect to the acquisition
of the Preferred Shares and Rights and the approval of such applications, no
consent, approval, order or authorization of, or registration, declaration or
filing with, any governmental authority is required on the part of Purchaser in
connection with the execution and delivery of this Agreement by Purchaser and
the consummation of the Investment by Purchaser hereunder.
(d) Securities Act. Purchaser is acquiring the Preferred Shares and
the Rights solely for the purpose of investment and not with a view to, or for
resale in connection with, any distribution thereof in violation of the
Securities Act.
(e) [Intentionally Left Blank]
(f) Access. Purchaser has been provided full access to all
information deemed relevant by Purchaser relating to its investment and the
Company has made available to Purchaser the opportunity to ask questions and
receive answers and to obtain information which the Company possesses or can
acquire without unreasonable effort or expense.
(g) Brokers and Finders. Neither Purchaser nor any of its officers,
directors, employees or agents has utilized any broker, finder, placement agent
or financial advisor or incurred any liability for any fees or commissions in
connection with any of the transactions contemplated hereby or by the Ancillary
Documents.
(h) Purchaser Information. None of the information with respect to
Purchaser and its Subsidiaries or any of their respective officers and directors
which is provided to the Company by Purchaser or any of its representatives
(collectively, "Purchaser Information") specifically for inclusion in the
Company's proxy statement with respect to the Proxy Solicitation (the "Proxy
Statement"), the Tender Offer Statement on Schedule TO with respect to the Offer
(together with all amendments and supplements thereto, the "Schedule TO"), the
Registration Statement on Form S-4 with respect to the Offer (the "S-4") and any
other filings (including filings under Rule 425 under the Securities Act and
Rule 14a-12 under the Exchange Act) made by the Company with the SEC in
connection with the Proxy Solicitation or the Offer (collectively, the
"Transaction Filings"), or in any other document filed with any other regulatory
agency in connection with the Offer or the regulatory approvals contemplated by
Section 3.02(c) of this Agreement (the "Regulatory Filings"), will, in the case
of the Proxy Statement, the Schedule TO or any amendments or supplements
thereto, at the time that such document is mailed, or in the case of the S-4, at
the time it is declared effective by the SEC, or in the case of any other
Transaction Filings or Regulatory Filings, at the time such filing is made,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances in which they are made, not misleading.
No report, schedule, proxy statement or other document filed by Purchaser with
the SEC and incorporated by reference in any of the Transaction Filings at the
direction of or with the consent of Purchaser contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading. The Schedule TO, with
respect to the Purchaser Information, will comply with the applicable provisions
of the Exchange Act and the rules and regulations thereunder.
Article IV
Additional Agreements of the Parties
Section 4.01. Taking of Necessary Action. Subject to the conditions
set forth in Article V hereof, each of the parties hereto agrees to use all
reasonable efforts promptly to take or cause to be taken all action and promptly
to do or cause to be done all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the Investment,
the Ancillary Documents and the Branch Purchase Agreement. Without limiting the
foregoing, the Company and Purchaser will, and the Company will cause the
Company Subsidiary to, each use all reasonable efforts to make all filings and
obtain all consents of Governmental Entities which may be necessary or, in the
opinion of Purchaser or the Company, as the case may be, advisable for the
consummation, effectiveness and issuance of the Investment, the Ancillary
Documents, the Branch Purchase Agreement and the Preferred Shares, including,
without limitation, any filings or consents that may be required to permit the
conversion of the Preferred Shares or the exercise of the Rights.
Section 4.02. [Intentionally Omitted.]
Section 4.03. Conduct of Business. Except as otherwise required to
perform its obligations under this Agreement, from the date hereof to the
Closing Date, the Company shall, and shall cause the Company Subsidiary to:
(a) conduct its operations substantially in accordance with its
ordinary course of business and consistent with past practice;
(b) not do any other act which would cause any representation or
warranty in this Agreement or any Ancillary Document to be or become untrue in
any material respect;
(c) not engage in any other act, other than in the ordinary course
of business and consistent with past practice, that would have a Material
Adverse Effect; or
(d) not change the number of shares of the authorized capital stock
of the Company, or issue or grant any option, warrant, call, commitment,
subscription, right to purchase or agreement of any character relating to the
authorized or issued capital stock of the Company or the Company Subsidiary, or
any securities convertible into shares of such stock (except for grants of
options to purchase Common Stock granted pursuant to a Company Plan) or declare,
set aside or pay any extraordinary dividend or other extraordinary distribution
(whether in cash, stock or property or any combination thereof) in respect of
the capital stock of the Company.
Section 4.04. Transfer Restrictions. (a) Purchaser shall not sell,
pledge, transfer or otherwise dispose of beneficial ownership of the Preferred
Shares or the Rights or shares of Common Stock received upon conversion of the
Preferred Shares or the exercise of the Rights to any Person (other than a
Permitted Transferee) at any time prior to the first anniversary of the Closing
Date, and then only in accordance with the transfer restrictions described in
the next sentence and subject to the provisions in Section 4.04(c). Subject to
Section 4.04(c), Purchaser shall not sell, pledge, transfer or otherwise dispose
of beneficial ownership of any Preferred Shares or Rights or shares of Common
Stock received by Purchaser upon the conversion of such Preferred Shares or the
exercise of the Rights to any Person other than a Permitted Transferee (each
such occurrence, a "Disposition"), in any transaction or series of transactions,
if, at the time of agreement to effect such Disposition, to Purchaser's
knowledge, such Person and its Affiliates then beneficially own, or as a result
of such Disposition would beneficially own, as the case may be, 5% or more of
the Common Stock, unless Purchaser shall have received the prior approval of the
Board of Directors of the Company. NOTWITHSTANDING PURCHASER'S LACK OF KNOWLEDGE
AS TO A TRANSFEREE'S VIOLATION OF THE PERCENTAGE OWNERSHIP LIMITATIONS OF THE
PRECEDING SENTENCE, ANY PURPORTED TRANSFER IN VIOLATION OF THESE PROVISIONS
SHALL BE VOID AND OF NO FORCE OR EFFECT.
(b) Notwithstanding paragraph (a) of this Section 4.04, (i)
Purchaser and its Permitted Transferees may effect a Disposition of any or all
of their Preferred Shares or Rights (subject to receipt of any required Federal
Reserve Board approval for such disposition), or shares of Common Stock received
upon conversion of the Preferred Shares or exercise of the Rights, by tendering
such securities pursuant to any tender offer or exchange offer commenced by a
third person which is favorably recommended by the Company or in connection with
any merger or consolidation to which the Company is a party or pursuant to a
plan of liquidation of the Company and (ii) on or after the first anniversary of
the Closing Date, Purchaser and its Permitted Transferees may sell any or all of
the shares of Common Stock received upon the conversion of the Preferred Shares
or the exercise of the Rights in a widely distributed underwritten public
offering.
(c) Right of First Refusal. (i) In addition to the restrictions on
transfer set forth in Section 4.04(a), neither Purchaser nor any Permitted
Transferee (a "Seller") shall sell any Preferred Shares or any Rights unless it
has complied with the provisions of this Section 4.04(c) prior to such sale. If
a Seller desires to sell any Preferred Shares or any Rights, the Seller shall
deliver written notice to the Company (a "Sale Notice") setting forth the number
of Preferred Shares or Rights proposed to be sold (the "Sale Securities") and
the material terms (including the price per Preferred Share or per Right, as the
case may be, if the Preferred Shares or Rights are not then listed for trading
on a national securities exchange or quoted on the Nasdaq National Market or
actively traded in the over-the-counter market) on which the Seller proposes to
sell such Sale Securities. The Company may elect to purchase, or arrange for the
purchase by a designated purchaser (the "Designated Purchaser") of, all but not
less than all of the Sale Securities covered by such Sale Notice by delivering
written notice (a "Purchase Notice") to the Seller, within 10 days following its
receipt of the Sale Notice, specifying a date for the closing of the purchase by
the Company or the Designated Purchaser of the Sale Securities (the "Sale
Closing Date"), which date shall be not less than 10 nor more than 30 days
following the date of the Purchase Notice and which Purchase Notice shall
indicate that there are no conditions or requirements for the purchase by the
Company or the Designated Purchaser of all of the Sale Securities on the Sale
Closing Date.
(ii) The closing for the purchase of the Sale Securities by the
Company or the Designated Purchaser shall take place on the Sale
Closing Date at the principal executive offices of the Company (or
such other date and/or place as may be mutually agreed to by the
parties to such transaction). At such closing, the Company, or the
Designated Purchaser, shall deliver to the Seller the Purchase Price
(as determined in accordance with subparagraph (iii) below) for the
Sale Securities by wire transfer of immediately available funds to
an account designated in writing by the Seller prior to the Sale
Closing Date, against delivery by the Seller of certificates
representing the Sale Securities, duly endorsed by the Seller.
(iii) The "Purchase Price" to be paid by the Company or the
Designated Purchaser on the Sale Closing Date in consideration for
the Sale Securities shall be as follows:
(A) If the Sale Securities are listed or admitted for
trading on a national securities exchange or quoted by the
Nasdaq National Market, then the Purchase Price with respect to
the Sale Securities shall be the product of (x) the aggregate
number of Sale Securities and (y) the average of the last
reported sale prices per Preferred Share or per Right of such
Sale Security as reported in the principal consolidated
transaction reporting system of the principal exchange on which
such Preferred Shares or Rights are listed or admitted for
trading, or, if no sale has occurred on any trading day, the
mean of the last bid and asked price per Preferred Share or
Right for such Sale Security, in any case, for the fifteen
consecutive trading day period ending on the trading day
immediately preceding the date of the Sale Notice; and
(B) If the Sale Securities are not listed or admitted for
trading on a national securities exchange or quoted by the
Nasdaq National Market, then the Purchase Price with respect to
the Sale Securities shall be (1) in the case of a Sale Notice
with respect to a registered offering of Sale Securities
(including pursuant to the Registration Rights Agreement), the
aggregate fair market value of such Sale Securities as
determined by a nationally-recognized investment banking firm
mutually selected by the Company and the Seller using customary
valuation methodologies, or (2) in the case of a Sale Notice
with respect to a private sale by the Seller to a third party,
the Purchase Price set forth in the Sale Notice.
(iv) If at the end of the 10-day period following the giving of
the Sale Notice, the Company shall not have delivered a Purchase
Notice to the Seller, the Seller shall have 60 days in which to sell
the Sale Securities at the price and on the terms and conditions
contained in the Sale Notice. Promptly after any sale pursuant to
this Section 4.04(c), the Seller shall notify the Company of the
consummation thereof and shall furnish such evidence of the
completion (including time of completion) of such sale and of the
terms and conditions thereof as the Company may reasonably request.
If, at the end of such 60-day period, the Seller has not completed
the sale of the Sale Securities, the Seller shall no longer be
permitted to sell such Sale Securities pursuant to this Section
4.04(c) without again fully complying with the provisions of this
Section 4.04(c).
(v) The provisions of this Section 4.04(c) shall not be
applicable to any transfer of Preferred Shares or Rights from
Purchaser to any Permitted Transferee or the Company, or from any
Permitted Transferee to any other Permitted Transferee or Purchaser,
provided that in any such transfer to a Permitted Transferee such
Permitted Transferee must agree in writing to be bound by the
applicable terms and conditions of this Agreement, including this
Section 4.04(c).
(d) (i) Purchaser covenants to and agrees with the Company that
during the two-year period following the date of this Agreement (the "Standstill
Period"), without the Company's prior written consent, neither Purchaser nor any
of its Affiliates will, directly or indirectly:
(A) In any way acquire, offer or propose to acquire or
agree to acquire Beneficial Ownership of any Voting Securities
or any direct or indirect rights or options to acquire
Beneficial Ownership of any Voting Securities other than those
acquired by Purchaser or its Affiliates (x) from the Company
pursuant to the terms of this Agreement, the Certificate of
Designations and the Rights or pursuant to a stock split, stock
dividend or similar corporate action initiated by the Company,
or (y) in the ordinary course of business in a fiduciary or
agency capacity and not for its own account;
(B) Make any public announcement with respect to (except as
otherwise required by applicable law with respect to the
acquisition, conversion or exercise, as the case may be, of the
Preferred Shares and the Rights), or submit to the Company or
any of its directors, officers, representatives, trustees,
employees, attorneys, advisors, agents or Affiliates, any
proposal for, the acquisition of any Voting Securities or with
respect to any merger, consolidation, business combination or
purchase of any substantial portion of the assets of the
Company, whether or not any parties other than Purchaser and its
Affiliates are involved, and whether or not such proposal might
require the making of a public announcement by the Company
unless the Company shall have made a prior written request to
Purchaser to submit such a proposal;
(C) Seek or propose to influence, advise, change or control
the management, Board of Directors, governing instruments or
policies or affairs of the Company by way of any public
communication or communication with any Person other than the
Company, or make, or in any way participate in, any
"solicitation" of "proxies" (as such terms are defined or used
in Regulation 14A under the Exchange Act) to vote any Voting
Securities or become a "participant" in any "election contest"
as such terms are defined and used in Rule 14a-11 under the
Exchange Act) with respect to Voting Securities; provided, that
nothing in this clause (C) shall prevent Purchaser or its
Affiliates from voting any Voting Securities then Beneficially
Owned by Purchaser or such Affiliates in any manner;
(D) Deposit any Voting Securities in a voting trust or
subject any Voting Securities to any arrangement or agreement
(other than this Agreement) with respect to the voting of such
Voting Securities or other agreement having similar effect,
except that Purchaser may grant any revocable proxy in
connection with proxy solicitations under the Exchange Act;
(E) Form or join a partnership, limited partnership,
syndicate or other group (as defined in Section 13(d)(3) of the
Exchange Act) with respect to any Voting Securities (other than
a group of which only Purchaser and Purchaser's Affiliates are
members); or
(F) Make a request to amend or waive any provision of this
Section 4.04(d).
(ii) For purposes of this Section 4.04(d) and Section 4.04(e),
a Person shall be deemed to "Beneficially Own" any securities of
which such Person or any such Person's Affiliates is considered to
be a "Beneficial Owner" under Rule 13(d)-3 under the Exchange Act as
in effect on the date hereof or of which such Person or any of such
Person's Affiliates or associates, directly or indirectly, has the
right to acquire (whether such right is exercisable immediately or
only after the passage of time or upon the satisfaction of
conditions) pursuant to any agreement, arrangement or understanding
(whether or not in writing) or upon the exercise of conversion
rights, exchange rights, rights, warrants or options, or otherwise
and "Voting Securities" shall mean at any time shares of any class
of capital stock of the Company which are then entitled to vote
generally in the election of directors or any securities which are
convertible into, or exchangeable or exercisable for, any such
shares, it being understood that the Preferred Shares and the Rights
will at all times be considered for this purpose to be Voting
Securities equal to the number of shares of Common Stock then
issuable upon conversion of the Preferred Shares and exercise of the
Rights represented thereby.
(e) (i) Subject to Section 4.04(e)(iii), Purchaser covenants to and
agrees with the Company that from and after the date hereof until December 31,
2001 (the "Dime/Hudson Period"), without the Company's prior written consent,
neither Purchaser nor any of its Affiliates will, directly or indirectly:
(A) In any way acquire, offer or propose to acquire or
agree to acquire Beneficial Ownership of any Dime Voting
Securities or Hudson Voting Securities or any direct or indirect
rights or options to acquire Beneficial Ownership of any Dime
Voting Securities or Hudson Voting Securities other than those
acquired in the ordinary course of business in a fiduciary or
agency capacity and not for its own account;
(B) Make any public announcement with respect to, or submit
to Dime or Hudson or any of their respective directors,
officers, representatives, trustees, employees, attorneys,
advisors, agents or Affiliates, any proposal for, the
acquisition of any Dime Voting Securities or Hudson Voting
Securities or with respect to any merger, consolidation,
business combination or purchase of any substantial portion of
the assets of Dime or Hudson, whether or not any parties other
than Purchaser and its Affiliates are involved, and whether or
not such proposal might require the making of a public
announcement by Dime or Hudson;
(C) Seek or propose to influence, advise, change or control
the management, Board of Directors, governing instruments or
policies or affairs of Dime or Hudson, or make, or in any way
participate in, any "solicitation" of "proxies" (as such terms
are defined or used in Regulation 14A under the Exchange Act) to
vote any Dime Voting Securities or Hudson Voting Securities or
become a "participant" in any "election contest" (as such terms
are defined and used in Regulation 14A and Schedule 14A under
the Exchange Act) with respect to Dime Voting Securities or
Hudson Voting Securities; provided, that nothing in this clause
(C) shall prevent Purchaser or its Affiliates from voting any
Dime Voting Securities or Hudson Voting Securities then
beneficially owned by Purchaser or such Affiliate in any manner;
(D) Deposit any Dime Voting Securities or Hudson Voting
Securities in a voting trust or subject any Dime Voting
Securities or Hudson Voting Securities to any arrangement or
agreement (other than this Agreement) with respect to the voting
of such Dime Voting Securities or Hudson Voting Securities or
any other agreement having similar effect; or
(E) Form or join a partnership, limited partnership,
syndicate or other group (as defined in Section 13(d)(3) of the
Exchange Act) with respect to any Dime Voting Securities or
Hudson Voting Securities (other than a group of which only
Purchaser and Purchaser's Affiliates are members)]
(F) prior to the termination of this Agreement pursuant to
Section 6.01, make a request to amend or waive any provision of
this Section 4.04(e).
(ii) For purposes of this Section 4.04(e), "Dime Voting
Securities" and "Hudson Voting Securities" shall mean at any time
shares of any class of capital stock of Dime or Hudson,
respectively, which are then entitled to vote generally in the
election of directors or any securities which are convertible into,
or exchangeable or exercisable for, any such shares.
(f) Purchaser shall not be deemed to have violated any provision of
Sections 4.04(d)(i) or 4.04(e)(i) by virtue of its compliance with its
agreements and covenants contained in this Agreement or by reason of its
acquisition of shares of capital stock or other securities of a Person which is
not an Affiliate of Purchaser, the Company, Dime or Hudson if such Person holds
Voting Securities, Dime Voting Securities or Hudson Voting Securities, as the
case may be, at the time of Purchaser's acquisition. The prohibition contained
in Section 4.04(e)(i) shall terminate immediately upon Purchaser, at any time
after the termination of this Agreement pursuant to Section 6.01, (i) paying the
Termination Fee to the Company pursuant to Section 6.03 hereof and (ii)
providing written notice to the Company stating that the Termination Fee has
been paid and that Purchaser has elected to terminate the prohibitions contained
in Section 4.04(e)(i) above.
Section 4.05. Financial Statements and Other Reports. The Company
covenants that it will deliver to Purchaser:
(i) as soon as practicable and in any event within 45 days
after the end of each quarterly period (other than the last quarterly
period) in each fiscal year, consolidated statements of income,
changes in stockholders' equity and cash flows of the Company and its
consolidated Subsidiaries (including the Company Subsidiary) for the
period from the beginning of the then current fiscal year to the end
of such quarterly period, and a consolidated balance sheet of the
Company and its consolidated Subsidiaries (including the Company
Subsidiary) as of the end of such quarterly period; provided however,
that delivery pursuant to clause (iii) below of a copy of the
Company's periodic report on Form 10-Q for such period filed with the
SEC shall be deemed to satisfy the requirements of this clause (i);
(ii) as soon as practicable and in any event within 90 days
after the end of each fiscal year, a consolidated balance sheet of the
Company and its consolidated Subsidiaries (including the Company
Subsidiary) as of the end of such fiscal year and the related
consolidated statements of income, changes in stockholders' equity and
cash flows for such fiscal year, together with the audit report of
KPMG LLP or other independent public accountants of recognized
standing selected by the Company; provided , however, that delivery
pursuant to clause (iii) below of a copy of the Annual Report on Form
10-K of the Company for such fiscal year filed with the SEC shall be
deemed to satisfy the requirements of this clause (ii); and
(iii) (a) promptly upon transmission thereof, copies of all
such financial statements, proxy statements, notices and reports as it
shall send to its stockholders and (b) all such regular and periodic
reports on Forms 10-K, 10-Q and 8-K (or similar or substitute forms)
as it shall file with the SEC.
The obligations of the Company to deliver the materials described in
clauses (i) through (iii) of this Section 4.05 to Purchaser shall continue in
full force and effect until such time as Purchaser shall no longer own Preferred
Shares or Rights convertible into or exercisable for shares of Common Stock, or
shares of Common Stock issued upon exercise of the Rights or conversion of the
Preferred Shares, in either case equal to at least 2% of the Common Stock then
outstanding.
Section 4.06. Inspection of Property. (a) The Company covenants
that it will permit representatives of Purchaser to visit and inspect, at
Purchaser's expense, any of the properties of the Company, the Company
Subsidiary or, to the extent applicable, Dime, to examine the corporate books
and make copies or extracts therefrom and to discuss the affairs, finances and
accounts of the Company, the Company Subsidiary and, to the extent applicable,
Dime with the principal officers of the Company or Dime, all upon reasonable
notice and at such reasonable times and as often as Purchaser may reasonably
request.
(b) The provisions of paragraph (a) of this Section 4.06 shall
terminate and no longer be of any effect from and after such time as Purchaser
no longer beneficially owns any Preferred Shares or Rights convertible into or
exercisable for shares of Common Stock, or shares of Common Stock issued upon
the conversion of the Preferred Shares or the exercise of the Rights, in either
case equal to at least 2% of the Common Stock then outstanding.
Section 4.07. Compliance with Applicable Law; Information. (a)
Purchaser hereby covenants and agrees that, for so long as this Agreement shall
remain in effect, it shall, and shall cause its Subsidiaries, Affiliates,
directors, officers and employees to, comply with all legal requirements
(including those under the Exchange Act and the rules and regulations
thereunder) that would be applicable to Purchaser were it deemed to be a
"bidder" within the meaning of Rule 14d-1(g)(2) under the Exchange Act with
respect to the Offer and a "participant" within the meaning of Instruction 3 to
Item 4 to Schedule 14A under the Exchange Act with respect to the Proxy
Solicitation, it being understood that Purchaser does not admit that it is a
"bidder" with respect to the Offer or a "participant" with respect to the Proxy
Solicitation.
(b) Immediately following the execution of this Agreement,
Purchaser shall cooperate with the Company with respect to the Company's
preparation of the Schedule TO and any other Transaction Filings to be made by
the Company in connection with the Proxy Solicitation and the Offer, and shall
provide the Company with all information with respect to Purchaser and its
Subsidiaries, Affiliates, directors, officers, employees and stockholders
reasonably requested by the Company for inclusion in the Schedule TO or in any
other such Transaction Filings in order to assure compliance with all applicable
legal requirements including the rules of the SEC. Promptly following the
completion of the preparation of the Schedule TO, each of the Company and
Purchaser shall execute and file the Schedule TO with the SEC. Promptly
following any request made by the Company or any of its representatives from
time to time during the pendency of the Offer or the Proxy Solicitation,
Purchaser shall provide the Company with all such information as shall be
reasonably requested by the Company in connection with any filing of, or
amendment or supplement to, any Transaction Filing in order to assure compliance
with all applicable legal requirements including the rules of the SEC.
Section 4.08. Legends. (a) Purchaser acknowledges and agrees that
as of the date hereof neither the Preferred Shares nor the Rights nor the
securities issuable upon the conversion or exercise of the Preferred Shares and
the Rights have been or will be registered under the Securities Act or the
securities laws of any state and that they may be sold or otherwise disposed of
only in one or more transactions registered under the Securities Act and, where
applicable, such laws or as to which an exemption from the registration
requirements of the Securities Act and, where applicable, such laws is
available. Purchaser acknowledges that, except as provided in the Ancillary
Documents, Purchaser has no right to require the Company to register the
Preferred Shares, the Rights, or the securities issuable upon the conversion or
exercise of the Preferred Shares and the Rights. Purchaser further acknowledges
and agrees that each certificate for the Preferred Shares and the Rights shall
bear a legend substantially as set forth in paragraph (b) of this Section 4.08.
(b) Certificates for the Preferred Shares and the Rights and any
securities issued upon the conversion or exercise thereof shall bear legends in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE SUCH A REGISTRATION IS
IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. THIS CERTIFICATE IS
ISSUED PURSUANT TO AND SUBJECT TO THE RESTRICTIONS ON TRANSFER, VOTING AND OTHER
PROVISIONS OF A STOCK PURCHASE AGREEMENT DATED AS OF MARCH 5, 2000 BETWEEN THE
COMPANY AND THE PURCHASER REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE WITH
THE COMPANY. EXCEPT AS PROVIDED IN SUCH STOCK PURCHASE AGREEMENT, THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE NOT TRANSFERABLE AND ANY PURPORTED TRANSFER
IN VIOLATION OF THE PROVISIONS OF SUCH STOCK PURCHASE AGREEMENT SHALL BE VOID
AND OF NO FORCE AND EFFECT.
(c) When issued pursuant hereto, the certificates evidencing the
Preferred Shares and the Rights shall also bear any legend required by any
applicable state blue sky law.
(d) Any holder of Preferred Shares or Rights may request the
Company to remove any or all of the legends described in this Section 4.08 from
the certificates evidencing such Preferred Shares or Rights, as the case may be,
by submitting to the Company such certificates, together with an opinion of
counsel to the effect that such legend or legends are no longer required under
the Securities Act or applicable state laws, as the case may be.
Section 4.09. Lost, Stolen, Destroyed or Mutilated Securities. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of any certificate for any security of the Company and, in the
case of loss, theft or destruction, upon delivery of an undertaking by the
holder thereof to indemnify the Company (and, if requested by the Company, the
delivery of an indemnity bond sufficient in the judgment of the Company to
protect the Company from any loss it may suffer if a certificate is replaced),
or, in the case of mutilation, upon surrender and cancellation thereof, the
Company will issue a new certificate for an equivalent number of shares or
another security of like tenor, as the case may be.
Section 4.10. Regulatory Matters.
(a) Purchaser and the Company shall use their best efforts to
promptly prepare and file all necessary documentation, to effect all
applications, notices, petitions and filings, and to obtain as promptly as
practicable all permits, consents, approvals and authorizations of all third
parties and Governmental Entities which are necessary or advisable to consummate
the purchase by Purchaser of the Preferred Shares and the Rights (the
"Investment") and (in the case of the Company) to consummate the Offer and the
Proxy Solicitation. The Company and Purchaser shall have the right to consult
the other on, in each case subject to applicable laws relating to the exchange
of information, any filing made with, or written materials submitted to, any
third party or any Governmental Entity in connection with the Investment, the
Offer or the Proxy Solicitation. In exercising the foregoing right, each of the
parties hereto shall act reasonably and as promptly as practicable. The parties
hereto agree that they will consult with each other with respect to the
obtaining of all permits, consents, approvals and authorizations of all third
parties and Governmental Entities necessary or advisable to consummate the
Investment and, in the case of the Company, the Offer and the Proxy Solicitation
and each party will keep the other appraised of the status of matters relating
to completion of the Investment and, in the case of the Company, the Offer and
the Proxy Solicitation.
(b) Purchaser and the Company shall, upon request, furnish each
other with all information concerning themselves, their Subsidiaries, directors,
officers and stockholders and such other matters as may be reasonably necessary
or advisable in connection with any statement, filing, notice or application
made by or on behalf of Purchaser, the Company or any of their respective
Subsidiaries to any Governmental Entity in connection with the Investment, the
Offer, the Proxy Solicitation and the other transactions contemplated by this
Agreement.
(c) Purchaser and the Company shall promptly furnish the other with
copies of written communications received by them, their Subsidiaries,
Affiliates or Associates (as such terms are defined in Rule 12b-2 under the
Exchange Act as in effect on the date of this Agreement) from, or delivered by
any of the foregoing to, any Governmental Entity in respect of the Investment,
the Offer, the Proxy Solicitation and the other transactions contemplated by
this Agreement (other than in respect of information filed or otherwise
submitted confidentially to any such Governmental Entity).
(d) Purchaser and the Company shall, and shall cause their
Subsidiaries to, use their best efforts (i) to take, or cause to be taken, all
actions necessary, proper or advisable to comply promptly with all legal
requirements which may be imposed on them or their Subsidiaries with respect to
the Investment, the Offer, the Proxy Solicitation and the other transactions
contemplated by this Agreement and, subject to the conditions set forth in
Article V hereof, to consummate the Investment and (ii) subject to the
conditions set forth in Article V hereof, to obtain (and to cooperate with the
other party to obtain) any consent, authorization, order or approval of, or any
exemption by, any Governmental Entity and any other third party which is
required to be obtained by the Company or Purchaser or any of their respective
Subsidiaries in connection with the Investment, the Offer, the Proxy
Solicitation and the other transactions contemplated by this Agreement, and to
comply with the terms and conditions of such consent, authorization, order or
approval. Without limiting the generality of the foregoing, in connection with
seeking the regulatory approvals required for the consummation of the
Investment, if in Purchaser's reasonable judgment it would be necessary to
obtain any required consent, authorization, order or approval of, or exemption
by, any Governmental Entity in connection with the Investment, Purchaser shall
make "passivity commitments" in customary form as reflected in recent orders of
the Federal Reserve Board relating to non-controlling minority investments by
bank holding companies in other banks or bank holding companies to all
appropriate regulatory authorities except to the extent such commitments would
be inconsistent with the transactions contemplated hereby.
Section 4.11. Access to Records and Information. During the period
from the date of this Agreement to the Closing Date, (i) the Company shall
afford to Purchaser and its authorized agents and representatives reasonable
access to the records, files and other information relating to the business of
the Company, the Company Subsidiary and, to the extent applicable, Dime and (ii)
Purchaser shall be entitled to, in consultation with the Company, such access to
the representatives and officers of the Company, the Company Subsidiary, and, to
the extent applicable, Dime as Purchaser may reasonably request, and the Company
shall during such period cause its personnel and, to the extent applicable, the
personnel of Dime to provide to Purchaser assistance and access in Purchaser's
investigations.
Article V
Conditions
Section 5.01. Conditions of Purchase. The obligations of Purchaser
to purchase and pay for the Preferred Shares at the Closing are subject to
satisfaction or waiver of each of the following conditions precedent:
(a) Representations and Warranties; Covenants. The representations
and warranties of the Company contained in this Agreement and the Ancillary
Documents shall be true and correct in all material respects on and as of the
date of this Agreement or the date of such Ancillary Documents, as the case may
be, and on and as of the Closing Date with the same effect as though made on and
as of such respective dates, except to the extent that any such representation
or warranty specifically relates to an earlier date, and the Company shall have
performed all obligations and complied with all agreements, undertakings,
covenants and conditions required hereunder and thereunder to be performed by it
at or prior to the Closing.
(b) Opinion of Counsel. Purchaser shall have received at the
Closing from Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Company, a
written opinion dated as of the Closing Date which shall be in such form and to
such effect as is customary in connection with the private placement of
securities by public companies.
(c) No Adverse Action or Decision or Injunction. There shall be no
action, suit, investigation or proceeding pending or threatened by a
Governmental Entity which seeks to restrain, enjoin, prevent the consummation of
or otherwise affect the transactions contemplated by this Agreement, the
Ancillary Documents or the Branch Purchase Agreement, and there shall not be in
effect any order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits consummation of the transactions
contemplated hereby or thereby.
(d) Proceedings. All corporate and other proceedings to be taken by
the Company in connection with the authorization and consummation of the
transactions contemplated hereby and by the Ancillary Documents shall have been
duly and validly taken by the Company and all documents incident thereto shall
be reasonably satisfactory in form and substance to Purchaser and its counsel,
and Purchaser and its counsel shall have received all such counterpart originals
or certified or other copies of such documents as it may reasonably request.
(e) Regulatory Approvals. Purchaser shall have procured any
required approvals, clearances or non-disapprovals of the transactions
contemplated hereby and by the Ancillary Documents by the Federal Reserve Board
under the BHC Act without the implementation of any condition or restriction
that would be materially adverse to Purchaser and the statutory waiting periods
thereunder shall have expired and all consents, authorizations, orders and
approvals of, and filings and registrations required under any other Federal or
state law, rule or regulation for or in connection with the execution and
delivery of this Agreement and the Ancillary Documents and the consummation by
the parties hereto of the transactions contemplated on such parties' part hereby
and thereby shall have been obtained or made and all statutory waiting periods
thereunder in respect thereof shall have expired.
(f) Company Certificate. The Company shall have delivered to
Purchaser a certificate, dated the Closing Date, signed by its chief executive
officer and its chief financial officer, to the effect that the conditions set
forth in this Section 5.01 have been satisfied to the best knowledge of the
officer executing the same.
(g) Registration Rights Agreement. The Registration Rights
Agreement shall have been executed and delivered by the parties thereto and
shall be in full force and affect.
(h) Certificate of Designations. The Certificate of Designations
shall have been duly filed with the Secretary of State of Delaware. There shall
have been no changes to the Restated Certificate of Incorporation or by-laws of
the Company since the date of this Agreement.
(i) Exchange Offer. The conditions of the Offer as set forth on
Exhibit E hereto shall have been satisfied, the Voting Securities tendered
pursuant thereto shall have been accepted by the Company for exchange and there
shall not have occurred any substantial change in the terms or conditions of the
Offer from those previously disclosed to Purchaser.
(j) Rights. The Company shall have executed and delivered the
Rights Certificate, which shall be in full force and effect.
Section 5.02. Conditions of Sale. The obligation of the Company to
sell the Preferred Shares and to issue the Rights at the Closing is subject to
satisfaction or waiver of each of the following conditions precedent:
(a) Representations and Warranties; Covenants. The representations
and warranties of Purchaser contained in this Agreement shall be true and
correct in all material respects on and as of the date of this Agreement and on
and as of the Closing Date with the same effect as though made on and as of such
dates except to the extent that any such representation or warranty specifically
relates to an earlier date, and Purchaser shall have performed all obligations
and complied with all agreements, undertakings, covenants and conditions
required by it to be performed at or prior to the Closing.
(b) No Adverse Action or Decision or Injunction. There shall be no
action, suit, investigation or proceeding pending or threatened by a
Governmental Entity which seeks to restrain, enjoin, prevent the consummation of
or otherwise affect the transactions contemplated by this Agreement or the
issuance of the Preferred Shares and the Rights to Purchaser, and there shall
not be in effect any order, decree or injunction of a court or agency of
competent jurisdiction with enjoins or prohibits consummation of the
transactions contemplated hereby and thereby.
(c) Regulatory Approvals. All consents, authorizations, orders and
approvals of, and filings and registrations with, any United States or state
governmental commission, board or other regulatory body, required for or in
connection with the execution and delivery of this Agreement and the Ancillary
Documents and any agreements to be executed in connection therewith, the sale of
the Preferred Shares and the issuance of the Rights, shall have been obtained or
made and all statutory waiting periods in respect thereof shall have expired.
(d) Purchaser's Certificate. An executive officer of Purchaser
shall have delivered to the Company a certificate, dated the Closing Date, to
the effect that the condition set forth in Section 5.02(a) has been satisfied to
the best knowledge of the officer executing the certificate.
Article VI
Termination; Certain Covenants
Section 6.01. Termination. This Agreement may be terminated on or any
time prior to the Closing:
(a) by the mutual written consent of Purchaser and the Company; or
(b) by Purchaser pursuant to notice in the event of a breach or
failure by the Company that is material in the context of the transactions
contemplated by this Agreement or any Ancillary Document of any representation,
warranty, covenant or agreement contained herein or therein which has not been,
or cannot be, cured within 30 days after written notice of such breach is given
to the Company; or
(c) by the Company pursuant to notice in the event of a breach or
failure by Purchaser that is material in the context of the transactions
contemplated by this Agreement or any Ancillary Document of any representation,
warranty, covenant or agreement contained herein or therein which has not been,
or cannot be, cured within 30 days after written notice of such breach is given
to Purchaser; or
(d) by either the Company or Purchaser if the Closing shall not
have occurred on or prior to March 31, 2001 unless the failure of such
occurrence shall be due to the failure of the party seeking to terminate this
Agreement to perform or observe its agreements set forth herein required to be
performed or observed by such party on or before the Closing; or
(e) by either the Company or Purchaser if the stockholders of Dime
and Hudson shall have approved the Dime Merger Agreement; or
(f) by either the Company or Purchaser if the Company shall have
publicly announced that it is terminating its effort to acquire the entire
equity interest in Dime.
Section 6.02. Effect of Termination. In the event of the termination
of this Agreement as provided in Section 6.01 hereof, this Agreement shall
forthwith become void except for the obligations set forth in Sections 4.04,
6.03, 6.04, 7.02, 7.03, 7.05, 7.06, 7.07, 7.08 and 7.09 and there shall be no
liability or obligation on the part of the parties hereto except as otherwise
provided in this Agreement.
Section 6.03. Certain Fees. The Company shall pay to Purchaser $2.5
million in immediately available funds to a bank account designated by Purchaser
upon the earlier of (i) the termination of this Agreement pursuant to Section
6.01 and (ii) March 31, 2001; provided, however, that the Company shall not be
obligated to make such payment if (x) Purchaser shall have materially breached
this Agreement or (y) the Company shall acquire a majority of the equity
interest in Dime prior to the later of the termination of this Agreement
pursuant to Section 6.01 and March 31, 2001, but in such event the Company,
immediately upon acquiring such majority interest, shall pay to Purchaser $5.0
million (or, if the Company shall previously have paid to Purchaser $2.5 million
as provided in this sentence, $2.5 million) in the manner provided above. In the
event Purchaser shall elect to terminate the Dime/Hudson Period pursuant to the
last sentence of Section 4.04(e)(iii) and Purchaser shall previously have been
paid $2.5 million by the Company as provided in the first sentence of this
Section 6.03, then contemporaneously with such termination Purchaser shall pay
to the Company $2.5 million in immediately available funds to a bank account
designated by the Company (the "Termination Fee"), and Purchaser shall
immediately pay to the Company an additional $2.5 million in such manner
immediately upon Purchaser acquiring a majority of the equity interest in Dime
at any time on or prior to December 31, 2001.
Section 6.04. Sale of Branches. In the event that, at any time on
or prior to December 31, 2001, the Company shall acquire a majority equity
interest in Dime, then reasonably promptly thereafter the Company shall cause
Dime to enter into a branch purchase agreement with Purchaser or such Subsidiary
of Purchaser as Purchaser shall designate (the "Branch Purchase Agreement")
providing for the sale by Dime to Purchaser or such Subsidiary of the branches
identified on Exhibit D hereto as branches to be sold to Purchaser. Such
agreement shall be in such form as is usual and customary for such transactions
and shall include the terms set forth on Exhibit D. Each of the Company and
Purchaser shall negotiate reasonably and in good faith in determining the final
terms of such Agreement. In the event that, at any time on or prior to December
31, 2001, Purchaser shall acquire a majority equity interest in Dime, then
reasonably promptly thereafter Purchaser shall cause Dime to enter into a branch
purchase agreement with the Company providing for the sale to the Company or a
Subsidiary thereof of the branches identified on Exhibit D hereto as branches to
be sold to the Company. Such agreement shall be in such form as is usual and
customary for such transactions and shall include the terms set forth in Exhibit
D. Each of the Company and Purchaser shall negotiate reasonably and in good
faith in determining the final terms of such agreement.
Section 6.05. Additional Rights. Beginning with the first Dividend
Payment Date (as such term is defined in the Certificate of Designations)
occurring after the third anniversary of the Closing and on each Dividend
Payment Date thereafter through and including the eighth Dividend Payment Date
occurring after the third anniversary of the Closing, to the extent that any
Preferred Shares remain outstanding on any such Dividend Payment Date, the
Company shall issue to each holder of record of the Preferred Shares at the
close of business on the Record Date (as such term is defined in the Certificate
of Designations) with respect to such Dividend Payment Date stock purchase
rights ("Additional Rights") to purchase a number of shares of Common Stock
equal to the quotient obtained by dividing (i) the product of (a) 0.005 and (b)
the aggregate Liquidation Preference (as such term is defined in the Certificate
of Designations) of the Preferred Shares held by such record holder on the
Record Date by (ii) the "current market price" (as defined in Section 3(f)(v) of
the Certificate of Designations) of a share of Common Stock on the Business Day
immediately preceding the Record Date with respect to such Dividend Payment
Date. The purchase price per share of Common Stock purchasable pursuant to the
exercise of any such Additional Rights shall be equal to the current market
price determined pursuant to clause (ii) of the preceding sentence, such
Additional Rights shall expire on the tenth anniversary of the date of issuance
of such Additional Rights, and such Additional Rights shall otherwise be
substantially in the form of Exhibit B hereto. Beginning with the first Dividend
Payment Date occurring after the fifth anniversary of the Closing and on each
Dividend Payment Date thereafter occurring on or prior to the tenth anniversary
of the Closing, to the extent that any Preferred Shares remaining outstanding on
any such Dividend Payment Date, the Company shall issue to each holder of record
of the Preferred Shares at the close of business on the Record Date with respect
to such Dividend Payment Date Additional Rights to purchase a number of shares
of Common Stock determined as provided in the first sentence of this Section
6.05, except that the amount in clause (i)(a) of such sentence shall be 0.010.
The purchase price per share of Common Stock purchasable pursuant to the
exercise of any such Additional Rights shall be equal to the current market
price determined pursuant to clause (ii) of the first sentence of this Section
6.05, such Additional Rights shall expire on the tenth anniversary of the date
of issuance of such Additional Rights and such Additional Rights shall otherwise
be substantially in the form of Exhibit B hereto. For all purposes of this
Agreement, unless the context otherwise requires, the term "Rights" shall
include any Additional Rights.
Article VII
Miscellaneous
Section 7.01. Survival of Representations and Warranties. All
covenants and agreements, other than those which by their terms apply in whole
or in part after the Closing Date, shall terminate as of the Closing Date.
Except for the warranties and representations contained in Sections 3.01(b) and
3.01(c) and 3.01(o), which shall survive the Closing without limitation, the
warranties and representations made herein or in any certificates delivered in
connection with the Closing shall survive the Closing for a period of 2 years
and shall then expire.
Section 7.02. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given, if
delivered personally, by telecopier or sent by overnight courier as follows:
(a) If to Purchaser, to:
Fleet Boston Corporation
One Federal Street
Boston, Massachusetts 02110
Attention: William C. Mutterperl, Esq.
Executive Vice President and General Counsel
Fax: 617-346-3185
With a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Robert L. Tortoriello, Esq.
Fax: 212-225-3999
If to the Company, to:
North Fork Bancorporation
275 Broad Hollow Road
Melville, New York 11747
Attn: John Adam Kanas
Fax: 516-844-1471
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attn: William S. Rubenstein, Esq.
Fax: 212-735-2000
or to such other address or addresses as shall be designated in writing. All
notices shall be effective when received.
Section 7.03. Entire Agreement; Amendment. This Agreement, the
Registration Rights Agreement, the Rights, the Confidentiality Agreements
(except for the seventh paragraph thereof which shall be deemed to be replaced
and superseded by the terms of this Agreement) and the Certificate of
Designations and the documents described herein and therein or attached or
delivered pursuant hereto or thereto set forth the entire agreement between the
parties hereto with respect to the transactions contemplated by this Agreement.
Any provision of this Agreement may be amended or modified in whole or in part
at any time by an agreement in writing between the parties hereto executed in
the same manner as this Agreement. No failure on the part of any party to
exercise, and no delay in exercising, any right shall operate as a waiver
thereof nor shall any single or partial exercise by any party of any right
preclude any other or future exercise thereof or the exercise of any other
right. No investigation by Purchaser of the Company prior to or after the date
hereof shall stop or prevent Purchaser from exercising any right hereunder or be
deemed to be a waiver of any such right.
Section 7.04. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to constitute any original,
but all of which together shall constitute one and the same documents.
Section 7.05. Governing Law. This Agreement shall be governed by,
and interpreted in accordance with, the laws of the State of New York applicable
to contracts made and to be performed in that State.
Section 7.06. Public Announcements. Subject to each party's
disclosure obligations imposed by law and notwithstanding any provision to the
contrary contained in the confidentiality agreements dated February 28, 2000
between the parties (the "Confidentiality Agreements"), each of the parties
hereto will cooperate with each other in the development and distribution of all
news releases and other public information disclosures with respect to this
Agreement and any of the transactions contemplated hereby, and no party hereto
will make any news release or disclosure without first consulting with the other
party hereto; provided, however, that the foregoing shall not affect or
otherwise restrict the Company's ability to make such disclosures as it shall
deem necessary in connection with the Proxy Solicitation and the Offer and the
transactions contemplated thereby (it being understood that all disclosures
concerning or relating to Purchaser shall be subject to Purchaser's prior review
and reasonable approval, and that the Company may not modify any Purchaser
Information in any material respect as part of or in connection with any such
disclosure).
Section 7.07. Expenses. Each party hereto shall bear its own costs
and expenses (including attorneys' fees) incurred in connection with this
Agreement and the Ancillary Documents and the transactions contemplated hereby.
Section 7.08. Indemnification.
(a) The Company agrees to indemnify and hold harmless Purchaser,
each person who controls Purchaser within the meaning of the Exchange Act, and
each of the respective officers, directors, employees, agents and Affiliates of
the foregoing in their respective capacities as such (the "Purchaser
Indemnitees"), to the fullest extent lawful, from and against any and all
actions, suits, claims, proceedings, costs, damages, judgments, amounts paid in
settlement (subject to Section 7.08(d) below) and expenses (including, without
limitation, attorneys' fees and disbursements) (collectively, "Loss") arising
out of or resulting from (i) any inaccuracy in or breach of the representations,
warranties, covenants or agreements made by the Company in this Agreement, any
Ancillary Document or the Branch Purchase Agreement; (ii) the Proxy
Solicitation, the Offer or the transactions contemplated thereby (except to the
extent that any such Loss arises out of or results from any inaccuracy in or
breach of the representations, warranties, covenants or agreements made by
Purchaser in this Agreement); or (iii) any action or failure to act undertaken
by a Purchaser Indemnitee at the request of or with the consent of the Company.
(b) Purchaser agrees to indemnify and hold harmless the Company and
each of its officers, directors, employees, agents and Affiliates in their
respective capacities as such (the "Company Indemnitees"), to the fullest extent
lawful, from and against any and all Losses arising out of or resulting from (i)
any inaccuracy in or breach of the representations, warranties, covenants or
agreements made by Purchaser herein; or (ii) any action or failure to act
undertaken by a Company Indemnitee at the request of Purchaser.
(c) A party obligated to provide indemnification under this Section
7.08 (an "Indemnifying Party") shall reimburse the indemnified parties of the
other party (the "Indemnified Parties") for all out-of-pocket expenses
(including attorneys' fees and disbursements) as they are incurred in connection
with investigating, preparing to defend or defending any such action, suit,
claim or proceeding (including any inquiry or investigation) whether or not an
Indemnified Party is a party thereto. If an Indemnified Party makes a claim
hereunder for payment or reimbursement of expenses, such expenses shall be paid
or reimbursed promptly upon receipt of appropriate documentation relating
thereto even if the Indemnifying Party reserves the right to dispute whether
this Agreement requires the payment or reimbursement of such expenses.
(d) An Indemnified Party shall give written notice to the
Indemnifying Party of any claim with respect to which it seeks indemnification
promptly after the discovery by such party of any matters giving rise to a claim
for indemnification; provided that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 7.08 unless and to the extent that the
Indemnifying Party shall have been materially prejudiced by the failure of such
Indemnified Party to so notify such party. In case any such action, suit, claim
or proceeding is brought against an Indemnified Party, the Indemnifying Party
shall be entitled to participate in the defense thereof; provided, however, that
separate counsel of the Indemnified Party shall be entitled to conduct the
defense, and the Indemnifying Party shall be liable for any legal or other
expenses incurred by the Indemnified Party in connection with the defense. No
Indemnifying Party shall be liable for any settlement of any action, suit, claim
or proceeding effected without its written consent; provided, however, the
Indemnifying Party shall not unreasonably withhold, delay or condition its
consent. The Indemnifying Party further agrees that it will not, without the
Indemnified Party's prior written consent, settle or compromise any claim or
consent to entry of any judgment in respect thereof in any pending or threatened
action, suit, claim or proceeding in respect of which indemnification may be
sought hereunder (whether or not any Indemnified Party is an actual or potential
party to such action, suit, claim or proceeding) unless such settlement or
compromise includes an unconditional release of each Indemnified Party from all
liability arising out of such action, suit, claim or proceeding.
(e) The obligations of the Indemnifying Party under this Section
7.08 shall survive the transfer, redemption or conversion of the Preferred
Shares, the Rights and the shares issued upon the conversion or exercise
thereof, or the closing or termination of this Agreement, any Ancillary
Document, the Branch Purchase Agreement or the transactions contemplated hereby
or thereby. The agreements contained in this Section 7.08 shall be in addition
to any other rights of the Indemnified Party against the Indemnifying Party or
others. The Indemnifying Party consents to personal jurisdiction, service and
venue in any court in the continental United States in which any claim subject
to this Agreement is brought by any Indemnified Party.
(f) The rights of the Indemnified Party under this Section 7.08
shall be in addition to any liability that the Indemnifying Party might
otherwise have to the Indemnified Party under this Agreement, at common law or
otherwise.
(g) The amount the Indemnifying Party shall pay to the Indemnified
Party with respect to a claim made pursuant to this Section 7.08 shall be an
amount equal to the Loss incurred by the Indemnified Party with respect to such
claim, after giving effect to any taxes payable by the Indemnified Party on
receipt of any indemnification hereunder with respect to such claim and any tax
benefit realizable (including deductions) by the Indemnified Party with respect
to such claim for tax purposes.
Section 7.09. Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the Company's successors and assigns and Purchaser's successors
and assigns, and no other person. Subject to applicable law, Purchaser may
assign its rights under this Agreement to any Affiliate, but no such assignment
shall relieve Purchaser of its obligations hereunder.
Section 7.10. Captions. The captions contained in this Agreement
are for reference purposes only and are not part of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto or by their respective duly authorized officers, all as of the date first
above written.
FLEET BOSTON CORPORATION
By:
---------------------------------
Name:
Title:
NORTH FORK BANCORPORATION, INC.
By:
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
CERTIFICATE OF DESIGNATION OF VOTING POWERS,
PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL AND OTHER
SPECIAL RIGHTS AND
QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS
OF
7.5% SERIES B NON-CUMULATIVE CONVERTIBLE
PREFERRED STOCK
OF
NORTH FORK BANCORPORATION, INC.
------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
------------------
North Fork Bancorporation, Inc., a Delaware corporation (the
"Company"), certifies that pursuant to the authority contained in Article
Fourth, subsection B of its Restated Certificate of Incorporation, as amended
(the "Restated Certificate of Incorporation"), and in accordance with the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors of the Company at a meeting duly called and
held on ________, 2000 duly approved and adopted the following resolution which
resolution remains in full force and effect on the date hereof:
RESOLVED, that pursuant to the authority vested in the Board of
Directors by the Restated Certificate of Incorporation, the Board of Directors
does hereby designate, create, authorize and provide for the issue of a series
preferred stock having a par value of $1.00 per share, with a liquidation
preference of $1,000 per share (the "Liquidation Preference") which shall be
designated as 7.5% Series B Non-Cumulative Convertible Preferred Stock (the
"Preferred Stock") consisting of 250,000 shares having the following voting
powers, preferences and relative, participating, optional and other special
rights, and qualifications, limitations and restrictions thereof as follows:
1. Ranking. The Preferred Stock shall, with respect to dividend
distributions and distributions upon the liquidation, winding-up and dissolution
of the Company, rank (i) senior to the common stock, par value $0.01 per share
(the "Common Stock"), of the Company and to each other class of capital stock or
series of preferred stock established after ______, 2000 by the Board of
Directors the terms of which do not expressly provide that it ranks senior to or
on a parity with the Preferred Stock as to dividend distributions and
distributions upon the liquidation, winding-up and dissolution of the Company
(collectively referred to with the Common Stock of the Company as "Junior
Stock"); (ii) on a parity with any additional shares of Preferred Stock issued
by the Company in the future and any other class of capital stock or series of
preferred stock issued by the Company established after _______, 2000, by the
Board of Directors, the terms of which expressly provide that such class or
series will rank on a parity with the Preferred Stock as to dividend
distributions and distributions upon the liquidation, winding-up and dissolution
of the Company (collectively referred to as "Parity Stock"); and (iii) junior to
each class of capital stock or series of preferred stock issued by the Company
established after , 2000 by the Board of Directors the terms of which expressly
provide that such class or series will rank senior to the Preferred Stock as to
dividend distributions and distributions upon liquidation, winding-up and
dissolution of the Company (collectively referred to as "Senior Stock").
2. Dividends.
(a) Payment of Dividends. The holders of shares of the Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, out of funds of the Company legally available therefor, noncumulative
cash dividends at the rate per annum of 7.5% of the Liquidation Preference per
share, and no more. Such noncumulative cash dividends shall be payable, if
declared, quarterly in arrears on February 15, May 15, August 15 and November
15, of each year, or, if such day is not a Business Day (as defined below), on
the next Business Day (each such date, a "Dividend Payment Date"). The first
Dividend Payment Date shall be [ ], 2000 (the "Initial Dividend Payment Date").
Each declared dividend shall be payable to holders of record of the Preferred
Stock as they appear on the stock books of the Company at the close of business
on such record dates, not more than sixty (60) calendar days nor less than ten
(10) calendar days preceding the Dividend Payment Date therefor, as determined
by the Board of Directors (each such date, a "Record Date"); provided, however,
that if a redemption date for the Preferred Stock occurs after a dividend is
declared but before it is paid, such dividend shall be paid as part of the
redemption price to the person to whom the redemption price is paid. Quarterly
dividend periods (each, a "Dividend Period") shall commence on and include the
first day, and shall end on and include the last day, of the calendar quarter
that immediately precedes the calendar quarter in which the corresponding
Dividend Payment Date occurs. The dividend to be paid to holders of the
Preferred Stock on the Initial Dividend Payment Date shall be payable in respect
of the Dividend Period (the "Initial Dividend Period") commencing on and
including the Issue Date (as defined below) and ending on and including [last
day of quarterly period]. "Business Day" shall mean any day except a Saturday, a
Sunday, or any day on which banking institutions in New York, New York are
required or authorized by law or other governmental action to be closed.
The amount of dividends payable on each share of the Preferred Stock
outstanding on a Record Date for each full Dividend Period shall be $18.75. The
amount of dividends payable for any Dividend Period which, as to a share of
Preferred Stock (determined by reference to the redemption or retirement date
thereof), is other than a full three (3) months shall be computed on the basis
of the number of days elapsed in the period using a 360-day year composed of
twelve (12) thirty (30) -day months.
Holders of the Preferred Stock shall not be entitled to any interest,
or any sum of money in lieu of interest, in respect of any dividend payment or
payments on the Preferred Stock declared by the Board of Directors which may be
unpaid. Any dividend payment made on the Preferred Stock shall first be credited
against the earliest declared but unpaid cash dividend with respect to the
Preferred Stock.
(b) Dividends Noncumulative. The right of holders of Preferred Stock
to receive dividends is noncumulative. Accordingly, if the Board of Directors
does not declare a dividend payable in respect of any Dividend Period, holders
of shares of Preferred Stock shall have no right to receive a dividend in
respect of such Dividend Period, and the Company shall have no obligation to pay
a dividend in respect of such Dividend Period, whether or not dividends are
declared payable in respect of any future Dividend Period.
(c) Priority as to Dividends. No full dividends shall be declared or
paid or set apart for payment on any Parity Stock or Junior Stock for any
Dividend Period unless full dividends have been or contemporaneously are
declared and paid (or declared and a sum sufficient for the payment thereof set
apart for such payment) on the Preferred Stock for such Dividend Period. When
dividends are not paid in full (or declared and a sum sufficient for such full
payment is not so set apart) for any Dividend Period on the Preferred Stock and
any Parity Stock, dividends declared on the Preferred Stock and Parity Stock
shall only be declared pro rata based upon the respective amounts that would
have been paid on the Preferred Stock and such Parity Stock had dividends been
declared in full.
In addition to the foregoing restriction, the Company shall not
declare, pay or set apart funds for any dividends or other distributions (other
than in Common Stock or other Junior Stock) with respect to any Common Stock or
other Junior Stock of the Company or repurchase, redeem or otherwise acquire, or
set apart funds for repurchase, redemption or other acquisition of, any Common
Stock or other Junior Stock through a sinking fund or otherwise, in any case
during or in respect of any Dividend Period, unless the Company shall, during
such Dividend Period, declare a cash dividend on the Preferred Stock at the
annual dividend rate in respect of such Dividend Period, and sufficient funds
have been paid over to the dividend disbursing agent for the Company for the
payment of such cash dividend on the Dividend Payment Date for such Dividend
Period.
No dividend shall be paid or set aside for holders of Preferred Stock
for any Dividend Period unless full dividends have been paid or set aside for
the holders of each class or series of equity securities of the Company if any,
ranking prior to the Preferred Stock as to the dividends for such Dividend
Period.
(d) Any reference to "dividends" or "distributions" in this Section 2
shall not be deemed to include any distribution made in connection with any
voluntary of involuntary dissolution, liquidation or winding up of the Company.
3. Conversion Rights.
(a) Upon the terms and in the manner set forth in this Section 3 and
subject to the provisions for adjustment contained in Section 3(f), the shares
of Preferred Stock shall be convertible, in whole or in part, at the option of
the holders thereof, at any time after the Issue Date (as hereinafter defined),
upon surrender to the Company of the certificate(s) for the shares to be
converted, into a number of fully paid and nonassessable shares of Common Stock
equal to the aggregate Liquidation Preference of the Preferred Stock to be
converted divided by the conversion price of $18.69 (as such price may be
adjusted from time to time in accordance with this Section 3, the "Conversion
Price"). As used herein, the term "Issue Date" shall mean the date of initial
issuance of the Preferred Stock.
(b) In order to convert shares of Preferred Stock into Common Stock,
the holder thereof shall deliver a properly completed and duly executed written
notice of election to convert specifying the number (in whole shares) of shares
of Preferred Stock to be converted. Each holder of Preferred Stock shall (A)
deliver a written notice to the Company at its principal office or at the office
of the agency which may be maintained for such purpose (each, a "Common Stock
Conversion Agent") specifying the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock to be issued, (B)
surrender the certificate for such shares of Preferred Stock to the Company or
the Common Stock Conversion Agent, accompanied, if so required by the Company or
the Common Stock Conversion Agent, by a written instrument or instruments of
transfer in form reasonably satisfactory to the Company or the Common Stock
Conversion Agent duly executed by the holder or its attorney duly authorized in
writing, and (C) pay any transfer or similar tax required by Section 3(h).
(c) (i) A "Common Stock Conversion" shall be deemed to have been
effected at the close of business on the date (the "Common Stock Conversion
Date") on which the Company or the Common Stock Conversion Agent shall have
received a written notice of election to convert, a surrendered
certificate, any required payments contemplated by Section 3(h) below, and
all other required documents. Immediately upon conversion, the rights of
the holders of Preferred Stock shall cease and the persons entitled to
receive the shares of Common Stock upon the conversion of such shares of
Preferred Stock shall be treated for all purposes as having become the
beneficial owners of such shares of Common Stock; provided, however, that
such persons shall be entitled to receive when paid any dividends declared
in respect of such shares of Preferred Stock which are unpaid as of the
date of such conversion. A Common Stock Conversion shall be at the
Conversion Price in effect on such date, unless the stock transfer books of
the Company shall be closed on that date, in which event such person or
persons shall be deemed to have become such holder or holders of record of
the Common Stock at the close of business on the next succeeding day on
which such stock transfer books are open, but such conversion shall be at
the Conversion Price in effect on the Common Stock Conversion Date.
(ii) As promptly as practicable after the Common Stock Conversion
Date, the Company shall deliver or cause to be delivered at the office or
agency of the Common Stock Conversion Agent, to or upon the written order
of the holders of the surrendered shares of Preferred Stock, a certificate
or certificates representing the number of fully paid and nonassessable
shares of Common Stock, with no personal liability attaching to the
ownership thereof, free of all taxes with respect to the issuance thereof,
liens, charges and security interests and not subject to any preemptive
rights, into which such shares of Preferred Stock have been converted in
accordance with the provisions of this Section 3, and any cash payable in
respect of fractional shares as provided in Section 3(d).
(iii) Upon the surrender of a certificate representing shares of
Preferred Stock that is converted in part, the Company shall issue or cause
to be issued for the holder a new certificate representing shares of
Preferred Stock equal in number to the unconverted portion of the shares of
Preferred Stock represented by the certificate so surrendered.
(d) No fractional shares or scrip representing fractional shares of
Common Stock shall be issued upon the conversion or redemption of any shares of
Preferred Stock. Instead of any fractional interest in a share of Common Stock
which would otherwise be deliverable upon the conversion or redemption of a
share of Preferred Stock, the Company shall pay to the holder of such share of
Preferred Stock an amount in cash (computed to the nearest cent) equal to the
product of (i) such fraction and (ii) the current market price (as defined in
Section 3(f)(v) below) of a share of Common Stock on the Business Day next
preceding the day of conversion or redemption. If more than one share shall be
surrendered for conversion or redemption at one time by the same holder, the
number of full shares of Common Stock issuable upon conversion or redemption
thereof shall be computed on the basis of the aggregate Liquidation Preference
of the shares of Preferred Stock so surrendered.
(e) The holders of Preferred Stock at the close of business on a
Record Date shall be entitled to receive the dividend payable on such shares on
the corresponding Dividend Payment Date notwithstanding the conversion thereof
or the Company's default in payment of the dividend due on such Dividend Payment
Date.
(f) The Conversion Price shall be subject to adjustment as follows:
(i) If the Company shall (1) declare or pay a dividend on its
outstanding Common Stock in shares of Common Stock or make a distribution
to holders of its Common Stock in shares of Common Stock, (2) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, (3) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (4) issue by reclassification
of its shares of Common Stock other securities of the Company, then the
Conversion Price in effect immediately prior thereto shall be adjusted so
that a holder of any shares of Preferred Stock thereafter converted shall
be entitled to receive the number and kind of shares of Common Stock or
other securities that such holder of Preferred Stock would have owned or
been entitled to receive after the happening of any of the events described
above had such shares of Preferred Stock been converted immediately prior
to the happening of such event or any record date with respect thereto. An
adjustment made pursuant to this Section 3(f)(i) shall become effective on
the date of the dividend payment, subdivision, combination or issuance
retroactive to the record date with respect thereto, if any, for such
event. Such adjustment shall be made successively.
(ii) If the Company shall issue to all holders of its Common Stock
rights, options, warrants or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common Stock at
a price per share that is lower than the then current market price per
share of Common Stock (as defined in Section 3(f)(v) below), the Conversion
Price shall be adjusted in accordance with the following formula:
( N x P )
-----
AC = C x O + ( M )
---------
O + N
where
AC = the adjusted Conversion Price
C = the current Conversion Price
O = the number of shares of Common Stock outstanding on the
record date
N = the number of additional shares of Common Stock offered
P = the offering price per share of the additional shares
M = the current market price per share of Common Stock on the
record date
The adjustment shall be made successively whenever any such rights,
options, warrants or convertible or exchangeable securities are issued, and
shall become effective immediately after the record date for the
determination of stockholders entitled to receive the rights, options,
warrants or convertible or exchangeable securities.
(iii) Upon the expiration of any rights, options, warrants or
convertible or exchangeable securities issued by the Company to all holders
of its Common Stock which caused an adjustment to the Conversion Price
pursuant to Section 3(f)(ii), if any thereof shall not have been exercised,
then the Conversion Price shall be increased by the amount of the initial
adjustment of the Conversion Price pursuant to Section 3(f)(ii) in respect
of such expired rights, options, warrants or convertible or exchangeable
securities.
(iv) If the Company shall distribute to all holders of its outstanding
Common Stock any shares of capital stock of the Company (other than Common
Stock) or evidences of indebtedness or assets (excluding ordinary cash
dividends and dividends or distributions referred to in Sections 3(f)(i)
and (ii) above) or rights or warrants to subscribe for or purchase any of
its securities (excluding those referred to in Section 3(f)(ii) above) (any
of the foregoing being hereinafter in this Section 3(f)(iv) called the
"Securities or Assets"), then in each such case, unless the Company elects
to reserve shares or other units of such Securities or Assets for
distribution to the holders of Preferred Stock upon the conversion of the
shares of Preferred Stock so that a holder converting shares of Preferred
Stock will receive upon such conversion, in addition to the shares of the
Common Stock to which such holder of Preferred Stock is entitled, the
amount and kind of such Securities or Assets which such holder of Preferred
Stock would have received if such holder had, immediately prior to the
record date for the distribution of the Securities or Assets, converted its
shares of Preferred Stock into Common Stock, the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying
the Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the current
market price per share (as defined in Section 3(f)(v) below) of the Common
Stock on the record date mentioned below less the then fair market value
(as determined by the Board in good faith) of the portion of the capital
stock or assets or evidences of indebtedness so distributed or of such
rights or warrants applicable to one share of Common Stock, and of which
the denominator shall be the current market price per share of the Common
Stock on such record date; provided, however, that if the then fair market
value (as so determined) of the portion of the Securities or Assets so
distributed applicable to one share of Common Stock is equal to or greater
than the current market price per share of the Common Stock on the record
date mentioned above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of shares of Preferred Stock
shall have the right to receive, in addition to the shares of Common Stock
to which such holder is entitled, the amount and kind of Securities and
Assets such holder would have received had such holder converted each such
share of Preferred Stock immediately prior to the record date for the
distribution of the Securities or Assets. Such adjustment shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such distribution.
(v) For the purposes of any computation under Section 2(d) or Section
3(f), and for the purposes of Section 3(d), the Acurrent market price@ per
share of Common Stock at any date shall be deemed to be the average of the
daily closing prices for the 20 consecutive trading days commencing on the
30th trading day prior to the date in question. The closing price for each
day shall be (i) if the Common Stock is listed or admitted to trading on a
national securities exchange, the closing price on the New York Stock
Exchange Consolidated Tape (or any successor composite tape reporting
transactions on national securities exchanges) or, if such a composite tape
shall not be in use or shall not report transactions in the Common Stock,
the last reported sales price regular way on the principal national
securities exchange on which the Common Stock is listed or admitted to
trading (which shall be the national securities exchange on which the
greatest number of shares of Common Stock has been traded during such 20
consecutive trading days), or, if there is no transaction on any such day
in any such situation, the mean of the bid and asked prices on such day, or
(ii) if the Common Stock is not listed or admitted to trading on any such
exchange, the closing price, if reported, or, if the closing price is not
reported, the average of the closing bid and asked prices as reported by
The Nasdaq Stock Market, or (iii) if bid and asked prices for the Common
Stock on each such day shall not have been reported through The Nasdaq
Stock Market, the average of the bid and asked prices for such date as
furnished by any three New York Stock Exchange member firms regularly
making a market in the Common Stock and not affiliated with the Company
selected for such purpose by the Board, or (iv) if no such quotations are
available, the fair market value of the Common Stock as determined by a New
York Stock Exchange member firm regularly making a market in the Common
Stock selected for such purpose by the Board.
(vi) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% of
such price; provided, however, that any adjustments which by reason of this
Section 3(f)(vi) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Section 3(f) shall be made to the nearest one-hundredth of a cent or
to the nearest one-hundredth of a share, as the case may be.
(vii) If the Company shall be a party to any transaction, including
without limitation a merger, consolidation, sale of all or substantially
all of the Company's assets, liquidation or recapitalization of the Common
Stock (each of the foregoing being referred to as a "Transaction"), in each
case (except in the case of a Common Stock Fundamental Change (as
hereinafter defined)) as a result of which shares of Common Stock shall be
converted into the right to receive stock, securities or other property
(including cash or any combination thereof), each share of Preferred Stock
shall thereafter be convertible into the kind and amount of shares of stock
and other securities and property receivable (including cash) upon the
consummation of such Transaction by a holder of that number of shares of
Common Stock into which one share of Preferred Stock was convertible
immediately prior to such Transaction. The Company shall not be a party to
any Transaction unless the terms of such Transaction are consistent with
the provisions of this Section 3(f)(vii) and it shall not consent or agree
to the occurrence of any Transaction until the Company has entered into an
agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of Preferred Stock, which shall contain a
provision enabling the holders of Preferred Stock to convert into the
consideration received by holders of Common Stock at the Conversion Price
immediately after such Transaction. In connection with any transaction
referred to in this paragraph, lawful provision shall be made so that,
except as set forth in this paragraph, the terms of the Preferred Stock (or
any stock issued in such transaction in consideration therefor) shall
remain substantially unchanged to the extent practicable. The provisions of
this Section 3(f)(vii) shall similarly apply to successive Transactions.
(viii) In the event of a Common Stock Fundamental Change, each share
of Preferred Stock shall be convertible into common stock of the kind
received by holders of Common Stock as the result of such Common Stock
Fundamental Change. The Conversion Price immediately following such Common
Stock Fundamental Change shall be the Conversion Price in effect
immediately prior to such Common Stock Fundamental Change multiplied by a
fraction, the numerator of which is the Purchaser Stock Price (as
hereinafter defined) and the denominator of which is the Applicable Price
(as hereinafter defined). The Company shall not consent or agree to the
occurrence of any Common Stock Fundamental Change until the Company has
entered into an agreement with the successor or purchasing entity, as the
case may be, for the benefit of the holders of Preferred Stock, which shall
contain a provision enabling the holders of Preferred Stock to convert into
the consideration received by holders of Common Stock at the Conversion
Price immediately after such Common Stock Fundamental Change. In connection
with any transaction referred to in this paragraph, lawful provision shall
be made so that, except as set forth in this paragraph, the terms of the
Preferred Stock (or any stock issued in such transaction in consideration
therefor) shall remain substantially unchanged to the extent practicable.
The provisions of this Section 3(f)(viii) shall similarly apply to
successive Common Stock Fundamental Changes.
(ix) As used herein:
(A) The term "Applicable Price" means the current market price
for one share of the Common Stock (determined in accordance with Section
3(f)(v)) on the record date for the determination of the holders of Common
Stock entitled to receive common stock in connection with such Common Stock
Fundamental Change, or, if there is no such record date, on the date upon
which the holders of Common Stock shall have the right to receive such
common stock.
(B) The term "Common Stock Fundamental Change" shall mean the
occurrence of any transaction or event in connection with which all or
substantially all the Common Stock shall be exchanged for, converted into,
acquired for or shall constitute solely the right to receive common stock
that, for the ten consecutive trading days immediately prior to such Common
Stock Fundamental Change, has been admitted for listing on a national
securities exchange or quoted on The Nasdaq National Market (whether by
means of an exchange order, liquidation, tender offer, consolidation,
merger, combination, reclassification, recapitalization or otherwise).
(C) The term "Purchaser Stock Price" shall mean, with respect to
any Common Stock Fundamental Change, the current market price for one share
of the common stock received by holders of Common Stock in such Common
Stock Fundamental Change (determined in accordance with Section 3(f)(v) as
if such Section were applicable to such common stock) on the record date
for the determination of the holders of Common Stock entitled to receive
such common stock or, if there is no such record date, on the date upon
which the holders of Common Stock shall have the right to receive such
common stock.
(x) For the purposes of this Section 3(f) and Section 3(i), the term
"shares of Common Stock" shall mean (A) the class of stock designated as
the Common Stock of the Company at the date hereof or (B) any other class
of stock resulting from successive changes or reclassifications of such
shares consisting solely of changes in par value, or from no par value to
par value. If at any time, as a result of an adjustment made pursuant to
Sections 3(f)(i),(iv),(vii) or (viii) above, the holders of Preferred Stock
shall become entitled to receive any securities other than shares of Common
Stock, thereafter the number of such other securities so issuable upon
conversion of the shares of Preferred Stock shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares of Preferred Stock
contained in this Section 3(f).
(xi) Notwithstanding the foregoing, in any case in which this Section
3(f) provides that an adjustment shall become effective immediately after a
record date for an event, the Company may defer until the occurrence of
such event (A) issuing to the holder of any share of Preferred Stock
converted after such record date and before the occurrence of such event
the additional shares of Common Stock issuable upon such conversion before
giving effect to such adjustment and (B) paying to such holder any amount
in cash in lieu of any fraction pursuant to Section 3(d).
(xii) If the Company shall take any action affecting the Common Stock,
other than action described in this Section 3(f), which in the opinion of
the Board would materially adversely affect the conversion rights of the
holders of Preferred Stock, the Conversion Price for the Preferred Stock
may be adjusted, to the extent permitted by law, in such manner, if any,
and at such time, as the Board may determine in good faith to be equitable
in the circumstances. Failure of the Board to provide for any such
adjustment prior to the effective date of any such action by the Company
affecting the Common Stock shall be evidence that such Board has determined
that it is equitable to make no adjustments in the circumstances.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Chief Financial Officer of the Company shall compute the adjusted Conversion
Price in accordance with the foregoing provisions and shall prepare a
certificate setting forth such adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based. A copy of such
certificate shall be filed promptly with the Common Stock Conversion Agent.
Promptly after delivery of such certificate, the Company shall prepare a notice
of such adjustment of the Conversion Price setting forth the adjusted Conversion
Price and the date on which such adjustment becomes effective and shall mail
such notice of such adjustment of the Conversion Price to each holder of shares
of Preferred Stock at such holder's last address as shown on the stock books of
the Company.
(h) The Company will pay any and all documentary, stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of shares of
Common Stock on the conversion of shares of Preferred Stock pursuant to this
Section 3; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any registration or transfer involved in
the issue or delivery of shares of Common Stock in a name other than that of the
registered holder of Preferred Stock converted or to be converted, and no such
issue or delivery shall be made unless and until the person requesting such
issue has paid to the Company the amount of any such tax or has established, to
the satisfaction of the Company, that such tax has been paid.
(i) (i) The Company shall at all times reserve and keep available,
free from all liens, charges and security interests and not subject to any
preemptive rights, out of the aggregate of its authorized but unissued
Common Stock or its issued Common Stock held in its treasury, or both, for
the purpose of effecting the conversion of Preferred Stock, the full number
of shares of Common Stock then deliverable upon the conversion of all
outstanding shares of Preferred Stock.
(ii) Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value (if any) of the Common Stock
issuable upon conversion of Preferred Stock, the Company will take any
corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable shares of such Common Stock at such adjusted Conversion
Price.
(j) If (i) the Company shall declare a dividend on its outstanding
Common Stock (excluding ordinary cash dividends) or make a distribution to
holders of its Common Stock; (ii) the Company shall authorize the granting to
the holders of the Common Stock of rights, options, warrants or convertible or
exchangeable securities containing the right to subscribe for or purchase any
shares of Common Stock or any of its securities; (iii) there shall be any
reclassification of the Common Stock or any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the Company is
required, or the sale or transfer of all or substantially all of the assets of
the Company; or (iv) there shall be any Common Stock Fundamental Change; then
the Company shall cause to be mailed to the holders of Preferred Stock at their
addresses as shown on the stock books of the Company, as promptly as possible,
but at least 15 days prior to the applicable date hereinafter specified, a
notice stating (1) the date on which a record is to be taken for the purpose of
such dividend or distribution, or, if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such dividend
or distribution are to be determined or (2) the date on which such
reclassification, consolidation, merger, sale, transfer or Common Stock
Fundamental Change is expected to become effective, and the date as of which it
is expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer or Common Stock
Fundamental Change.
4. Liquidation Preference. (a) Upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Company, each holder of shares of
the Preferred Stock will be entitled to payment out of the assets of the Company
legally available for distribution of an amount per share of Preferred Stock
held by such holder equal to the Liquidation Preference per share of Preferred
Stock held by such holder, plus declared and unpaid dividends, if any, without
interest, to the date fixed for liquidation, dissolution or winding-up, before
any distribution is made on any Junior Stock, including, without limitation,
Common Stock of the Company. After payment in full of the Liquidation Preference
and all declared but unpaid dividends, if any, to which holders of Preferred
Stock are entitled, such holders will not be entitled to any further
participation in any distribution of assets of the Company. If, upon any
voluntary or involuntary liquidation, dissolution or winding-up of the Company,
the amounts payable with respect to the Preferred Stock and all other Parity
Stock are not paid in full, the holders of the Preferred Stock and the Parity
Stock will share equally and ratably in any distribution of assets of the
Company in proportion to the full liquidation preference and any declared and
unpaid dividends to which each is entitled.
(b) Neither the voluntary sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the Company nor the consolidation
or merger of the Company with or into one or more Persons will be deemed to be a
voluntary or involuntary liquidation, dissolution or winding-up of the Company
for purposes of this Section 4.
5. Optional Redemption.
(a) The Preferred Stock may be redeemed for cash, at the option of the
Company in whole or in part, at any time and from time to time on or after [ ],
2003, at a price per share in cash equal to $1,000 plus any declared and unpaid
dividends to the date fixed for redemption (the "Applicable Redemption Price").
(b) In case of redemption of less than all of the shares of Preferred
Stock at the time outstanding, the shares to be redeemed shall be selected pro
rata or by lot as determined by the Company in its sole discretion, provided
that the Company may redeem all shares held by holders of fewer than 100 shares
of Preferred Stock (or by holders that would hold fewer than 100 shares of
Preferred Stock following such redemption) prior to its redemption of other
shares of Preferred Stock.
(c) Notice of any redemption shall be sent by or on behalf of the
Company not less than 30 nor more than 60 days prior to the date specified for
redemption in such notice (the "Redemption Date"), by first class mail, postage
prepaid, to all holders of record of the Preferred Stock at their last addresses
as they shall appear on the books of the Company; provided, however, that no
failure to give such notice or any defect therein or in the mailing thereof
shall affect the validity of the proceedings for the redemption of any shares of
Preferred Stock except as to the holder to whom the Company has failed to give
notice or except as to the holder to whom notice was defective. In addition to
any information required by law or by the applicable rules of any exchange upon
which the Preferred Stock may be listed or admitted to trading, such notice
shall state: (i) that such redemption is being made pursuant to the optional
redemption provisions hereof; (ii) the Redemption Date; (iii) the Applicable
Redemption Price; (iv) that shares of Preferred Stock called for redemption may
be converted in accordance with and subject to the terms of Section 3 hereof at
any time prior to the Redemption Date; (v) the total number of shares of
Preferred Stock to be redeemed and, if less than all shares held by such holder
are to be redeemed, the number of such shares to be redeemed; and (vi) the place
or places where certificates for such shares are to be surrendered for payment
of the Applicable Redemption Price, including any procedures applicable to
redemptions to be accomplished through book-entry transfers. Upon the mailing of
any such notice of redemption, the Company shall become obligated to redeem at
the time of redemption specified thereon all shares called for redemption.
(d) If notice has been mailed in accordance with Section 5(c) above
and on or before the Redemption Date specified in such notice all funds
necessary for such redemption have been set aside by the Company, separate and
apart from its other funds, in trust for the benefit of the holders of the
shares so called for redemption, so as to be and to continue to be available
therefor, then from and after the Redemption Date, unless the Company defaults
in the payment of the Applicable Redemption Price, said shares shall no longer
be deemed to be outstanding and shall have the status of authorized but unissued
shares of Preferred Stock, undesignated as to series, and all rights of the
holders thereof as stockholders of the Company (except the right to receive from
the Company the Applicable Redemption Price) shall cease. Upon surrender in
accordance with said notice, of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Company shall so require and
the notice shall so state), such shares shall be redeemed by the Company at the
Applicable Redemption Price. In case fewer than all the shares represented by
any such certificate are redeemed, a new certificate or certificates shall be
issued representing the unredeemed shares without cost to the holder thereof.
(e) Any funds deposited with a bank or trust company for the purpose
of redeeming Preferred Stock shall be irrevocable except that:
(i) the Company shall be entitled to receive from such bank or trust
company the interest or other earnings, if any, earned on any money so
deposited in trust, and the holders of any shares redeemed shall have no
claim to such interest or other earnings; and
(ii) any balance of monies so deposited by the Company and unclaimed
by the holders of the Preferred Stock entitled thereto at the expiration of
one year from the applicable Redemption Date shall be repaid, together with
any interest or other earnings earned thereon, to the Company, and after
any such repayment, the holders of the shares entitled to the funds so
repaid to the Company shall look only to the Company for payment of the
Applicable Redemption Price without interest or other earnings thereon.
6. Voting Rights.
(a) Except as expressly provided in this Section 6 or as otherwise
required by applicable law or regulation, holders of the shares of Preferred
Stock shall have no voting rights.
(b) If dividends on shares of the Preferred Stock shall not have been
paid for six (6) Dividend Periods, the maximum number of directors of the
Company shall thereupon be increased by two (2). Subject to compliance with any
requirement for regulatory approval of (or non-objection to) persons serving as
directors, the holders of shares of the Preferred Stock, voting together as a
class with the holders of any Parity Stock upon which the same voting rights as
those of the Preferred Stock have been conferred and are irrevocable, shall have
the exclusive right to elect the two additional directors at the Company's next
annual meeting of stockholders and at each subsequent annual meeting until full
dividends have been paid or declared and set apart for payment for four (4)
consecutive Dividend Periods. Such directors shall be deemed to be in a class
separate from the classes of directors established by Article Sixth of the
Restated Certificate of Incorporation of the Company. If any director so elected
by the holders of the Preferred Stock shall cease to serve as a director before
his term shall expire, the holders of the Preferred Stock then outstanding may,
at the next annual meeting of stockholders, elect a successor to hold office for
the unexpired term of the director whose place shall be vacant. The term of such
directors elected thereby shall terminate, and the total number of directors
shall be decreased by two (2), upon the payment or the declaration and setting
aside for payment of full dividends on the Preferred Stock for four (4)
consecutive Dividend Periods.
(c) So long as any shares of the Preferred Stock are outstanding, the
Company shall not, without the consent or vote of the holders of at least
two-thirds of the outstanding shares of the Preferred Stock, voting separately
as a class, (1) amend, alter or repeal or otherwise change any provision of the
Restated Certificate of Incorporation of the Company or this Certificate of
Designation if such amendment, alteration, repeal or change would materially and
adversely affect the rights, preferences, powers or privileges of the Preferred
Stock, or (2) authorize, create or increase the authorized amount of or issue
any class or series of any equity securities of the Company, or any warrants,
options or other rights convertible or exchangeable into any class or series of
any equity securities of the Company, ranking prior to the Preferred Stock,
either as to dividend rights or rights on liquidation, dissolution or winding up
of the Company, (3) authorize or issue any additional shares of the Preferred
Stock, or (4) merge, consolidate, reorganize or effect any other business
combination involving the Company, unless the resulting corporation will
thereafter have no class or series of equity securities either authorized or
outstanding ranking prior to the Preferred Stock as to dividends or as to the
distribution of assets upon liquidation, dissolution or winding up, except the
same number of shares of such equity securities with the same rights,
preferences, powers and privileges as the shares of equity securities of the
Company that are authorized and outstanding immediately prior to such
transaction.
The creation or issuance of Parity Stock or Junior Stock in respect of
the payment of dividends, or the distribution of assets upon liquidation,
dissolution or winding up of the Company, or an amendment that increases the
number of authorized shares of Preferred Stock or any Junior Stock or Parity
Stock, shall not be deemed to be a material and adverse change requiring a vote
of the holders of shares of the Preferred Stock pursuant to this Section 6.
7. Exclusion of Other Rights. Except as may otherwise be required by
law, the shares of Preferred Stock shall not have any voting powers, preferences
and relative, participating, optional or other special rights, other than those
specifically set forth in this resolution (as such resolution may be amended
from time to time) and in the Restated Certificate of Incorporation. The shares
of Preferred Stock shall have no preemptive or subscription rights.
8. Severability of Provisions. If any voting powers, preferences and
relative, participating, optional and other special rights of the Preferred
Stock and qualifications, limitations and restrictions thereof set forth in this
resolution (as such resolution may be amended from time to time) is invalid,
unlawful or incapable of being enforced by reason of any rule of law or public
policy, all other voting powers, preferences and relative, participating,
optional and other special rights of Preferred Stock and qualifications,
limitations and restrictions thereof set forth in this resolution (as so
amended) which can be given effect without the invalid, unlawful or
unenforceable voting powers, preferences and relative, participating, optional
or other special rights of Preferred Stock and qualifications, limitations and
restrictions thereof shall, nevertheless, remain in full force and effect, and
no voting powers, preferences and relative, participating, optional or other
special rights of Preferred Stock and qualifications, limitations and
restrictions thereof herein set forth shall be deemed dependent upon any other
such voting powers, preferences and relative, participating, optional or other
special rights of Preferred Stock and qualifications, limitations and
restrictions thereof unless so expressed herein.
9. Reissuance of Preferred Stock. Shares of Preferred Stock that have
been issued and reacquired in any manner, including shares purchased or redeemed
or exchanged or converted, shall (upon compliance with any applicable provisions
of the laws of Delaware) have the status of authorized but unissued shares of
preferred stock of the Company undesignated as to series and may be designated
or re-designated and issued or reissued, as the case may be, as part of any
series of preferred stock of the Company, provided that any issuance of such
shares as Preferred Stock must be in compliance with the terms hereof.
10. Mutilated or Missing Preferred Stock Certificates. If any of the
Preferred Stock certificates shall be mutilated, lost, stolen or destroyed, the
Company shall issue, in exchange and in substitution for and upon cancellation
of the mutilated Preferred Stock certificate, or in lieu of and substitution for
the Preferred Stock certificate lost, stolen or destroyed, a new Preferred Stock
certificate of like tenor and representing an equivalent amount of shares of
Preferred Stock, but only upon receipt of evidence of such loss, theft or
destruction of such Preferred Stock certificate and indemnity, if requested,
satisfactory to the Company and the transfer agent (if other than the Company).
IN WITNESS WHEREOF, the Company has caused this certificate to be duly
executed by ______________, Chairman of the Board, President and Chief Executive
Officer of the Company and attested by _____________, Executive Vice President
and Secretary of the Company, this ____________, 2000.
[ ]
By:
--------------------------------
Name:
Title: Chairman of the Board, President
and Chief Executive Officer
ATTEST:
By:
----------------------------
Name:
Title: Executive Vice President
and Secretary
<PAGE>
EXHIBIT B
THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES
ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH
ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT OR SUCH LAWS. THIS CERTIFICATE IS ISSUED PURSUANT TO
AND SUBJECT TO THE RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF A STOCK
PURCHASE AGREEMENT DATED AS OF MARCH 5, 2000 BETWEEN THE ISSUER OF THESE
SECURITIES AND THE PURCHASER REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE
WITH THE ISSUER.
EXERCISABLE AT ANY TIME UNTIL 5:00 P.M.,
NEW YORK CITY TIME, ON [ ], 2010* UNLESS
EXTENDED PURSUANT TO THIS RIGHTS CERTIFICATE.
NORTH FORK BANCORPORATION, INC.
RIGHTS CERTIFICATE
No. __
Rights Certificate for ________ Rights to
Purchase ________ Shares of Common Stock
of North Fork Bancorporation, Inc.
This Rights Certificate certifies that, for value received,
________________________, or its registered assigns (the "Holder"), is the owner
of ________________________ (________) Rights (as defined below), which entitle
the Holder to purchase at any time from and after the date hereof and until 5:00
p.m., New York City time, on [ ], 2010,* at the purchase price of $17.88 per
share (the "Exercise Price"), up to an aggregate of ________________________
(________) shares of common stock, $0.01 par value per share (the "Common
Stock"), of North Fork Bancorporation, Inc., a Delaware corporation (the
"Company"). The number of shares purchasable upon exercise of the Rights and the
Exercise Price shall be subject to adjustment from time to time as herein
provided. In this Rights Certificate, the right to purchase each share of Common
Stock is referred to as a "Right"; the shares of Common Stock or, pursuant to
the terms hereof, other securities, issuable upon exercise of the Rights are
referred to as the "Rights Shares".
The Rights are subject to the following terms, conditions and
provisions:
- ----------
* Ten years after issue.
SECTION 1. Registration; Transferability; Exchange of Rights Certificate.
1.1 Registration. The Company shall number and register each Right in
a register (the "Rights Register") maintained at the office of the Company (the
"Office") as they are issued by the Company. The Company shall be entitled to
treat the registered Holder of any Right, as set forth in the Rights Register,
as the owner in fact thereof for all purposes and shall not be bound to
recognize any equitable or other claim to or interest in such Right on the part
of any other person. The Rights shall be transferable only on the Rights
Register maintained at the Office upon delivery of the certificate or
certificates evidencing such Rights, duly endorsed by the Holder or by his duly
authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. In all cases of transfer by an
attorney, the original power of attorney, duly approved, or a copy thereof, duly
certified, shall be deposited and remain with the Company.
1.2 Intentionally Omitted
1.3 Exchange of Rights Certificates. Subject to the provisions herein,
each Rights Certificate may be exchanged for another Rights Certificate(s)
entitling the Holder to purchase a like aggregate number of Rights Shares as
this Rights Certificate then entitles such Holder to purchase. If the Holder
desires to exchange this Rights Certificate, it shall make such request in
writing and deliver it to the Company, and shall surrender, properly endorsed if
required by the Company, this Rights Certificate. Thereupon, the Company shall
sign and deliver to the person entitled thereto a new Rights Certificate as so
requested.
SECTION 2. Term of Rights; Exercise of Rights.
2.1 Term of Rights. Subject to the terms of this Rights Certificate,
the Holder shall have the right, which may be exercised at any time from the
date hereof until 5:00 p.m., New York City time, on [ ], 2010* (the "Expiration
Date") to purchase from the Company (and the Company shall issue and sell to the
Holder of the Rights represented hereby) up to an aggregate of _____________
fully paid and nonassessable Rights Shares or such other number of Rights Shares
which the Holder may at the time be entitled to purchase in accordance with this
Rights Certificate. Each Right not exercised prior to 5:00 p.m., New York City
time, on the Expiration Date shall become void, and all rights under this Rights
Certificate shall cease as of such time except as set forth in Section 2.3
hereof.
2.2 Exercise of Rights. (a) The Rights evidenced by this Rights
Certificate may be exercised in whole or in part upon surrender to the Company,
at its Office, of this Rights Certificate, together with the Purchase Form
attached hereto duly completed and signed. Such surrender may be by facsimile
transmission, provided the Company shall not be obligated to issue any Rights
Shares in respect of this Rights Certificate and such Purchase Form until it
shall have received the original versions of this Rights Certificate and such
Purchase Form. The earlier of the receipt of such facsimile transmission or the
receipt of such original certificate and form is referred to herein as (the
"Exercise Date"). Promptly following the Exercise Date, the Holder shall
deliver, if it has not already done so, original versions of this Rights
Certificate and the Purchase Form and the Exercise Price for such Shares. As
used herein, "Business Day" shall mean any day other than a Saturday, Sunday, or
a day in which banking institutions in the City of New York, New York are
authorized or obligated by law or executive order to close.
- ----------
* Ten years after issue.
(b) Upon the surrender of this Rights Certificate, with the Purchase
Form duly executed, and payment of the Exercise Price as aforesaid, the Company
shall promptly cause to be issued and delivered with all reasonable dispatch to
or upon the written order of the Holder and in such name or names as the Holder
may designate a certificate(s) for the number of Rights Shares so purchased,
together, at the option of the Company as provided in Section 7 hereof, with
cash in respect of any fractional Rights Shares otherwise issuable upon such
surrender. Payment of the aggregate Exercise Price shall be by wire transfer of
immediately available funds. Any such Rights Shares so purchased shall be deemed
to have been issued as of the Exercise Date.
(c) The rights of purchase represented by this Rights Certificate
shall be exercisable, at the election of the Holder, either in full at any time
or in part from time to time prior to the Expiration Date. In the event that the
Holder of this Rights Certificate shall exercise fewer than all the Rights
evidenced hereby at any time prior to the Expiration Date, a new Rights
Certificate evidencing the remaining unexercised Rights shall be issued and
delivered to the Holder.
2.3 Registration; Compliance with Government Regulations. The Company
covenants that if any Rights Shares required to be reserved for purposes of the
exercise of Rights require, under any Federal or state law or applicable
governing rule or regulation of any national securities exchange, registration
with or approval of any governmental authority, or listing on any such national
securities exchange, before such Rights Shares may be issued upon exercise, the
Company will in good faith and as expeditiously as possible endeavor to cause
such shares to be duly registered or approved by such governmental authority or
listed on the relevant national securities exchange, as the case may be;
provided, however, that in no event shall such Rights Shares be issued, and the
Company is hereby authorized to suspend the exercise of all Rights, for the
period during which such registration, approval or listing is required but not
in effect (the "Suspension Period"); provided, further, that in the event that a
Suspension Period is in effect, the term of the Rights shall be extended for the
equivalent number of days of such Suspension Period (the "Extension Period")
with such Extension Period beginning on the later of (i) the Expiration Date or
(ii) the date the suspension is lifted; and provided, further, that in no event
shall such Extension Period be less than 180 days. The Company shall give prompt
notice of any such suspension and shall promptly return this Rights Certificate
and payment of the Exercise Price thereof to the Holder if such Holder tendered
this Rights Certificate and Exercise Price during such Suspension Period and
shall promptly give notice of the lifting of any such suspension and the
commencement of any such Extension Period.
2.4 Exercise Price. The price per share at which each Rights Share
shall be purchased upon exercise of each Right shall be $17.88, subject to
adjustment pursuant to Section 6 hereof.
SECTION 3. Payment of Taxes. The Company covenants and agrees that it
will pay when due and payable any and all documentary, stamp or similar issue or
transfer taxes, if any, which may be payable in respect of the issuance or
delivery of any Right or of the Rights Shares issuable upon the exercise of such
Rights; provided, however, that the Company shall not be required to pay any tax
which may be payable in respect of any registration or transfer involved in the
issuance or delivery of any Right or the issuance or delivery of certificates
for Rights Shares in a name other than that of the Holder of such Rights.
SECTION 4. Mutilated or Missing Rights Certificates. In the event this
Rights Certificate shall be mutilated, lost, stolen or destroyed, the Company
shall issue and deliver in exchange and substitution for and upon cancellation
of the mutilated Rights Certificate, or in lieu of and in substitution for the
Rights Certificate lost, stolen or destroyed, a new Rights Certificate of like
tenor and representing an equivalent right or interest, but only upon, in the
event of a lost, stolen or destroyed certificate, receipt of evidence
satisfactory to the Company of such loss, theft or destruction.
SECTION 5. Reservation and Availability of Rights Shares; Purchase and
Cancellation of Rights.
5.1 Reservation of Rights Shares. (a) The Company shall at all times
reserve and keep available free from preemptive rights, out of its authorized
but unissued shares of Common Stock, for the purpose of enabling it to satisfy
any obligations to issue the Rights Shares upon exercise of Rights, the full
number of Rights Shares deliverable upon the exercise of all outstanding Rights
evidenced by this Rights Certificate. The Company or, if appointed, the transfer
agent for the Common Stock and every subsequent transfer agent for any shares of
the Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid (each, a "Transfer Agent") will be irrevocably authorized and
directed at all times to reserve such number of authorized shares as shall be
required for such purpose. The Company will keep a copy of this Rights
Certificate on file with each Transfer Agent. The Company will furnish such
Transfer Agent with a copy of all notices of adjustments and certificates
related thereto which are transmitted to the Holder pursuant to Section 6
hereof.
(b) The Company covenants that all Rights Shares issuable upon
exercise of Rights will, upon issuance, be duly authorized and validly issued,
and fully paid and nonassessable shares of Common Stock, with no personal
liability attaching to the ownership thereof, free from preemptive rights and
free from all taxes with respect to the issuance thereof, and all liens,
charges, and security interests.
5.2 Rights Shares Record Date. Each person in whose name any stock
certificate for Rights Shares is issued shall for all purposes be deemed to have
become the holder of record of the Rights Shares represented thereby on, and
such stock certificate shall be dated as of, the Exercise Date relating to such
Rights Shares.
5.3 Purchase of Rights by the Company. The Company shall have the
right, except as limited by law, other agreements or herein, to purchase or
otherwise acquire in negotiated transactions Rights evidenced hereby at such
times, in such manner and for such consideration as it may deem appropriate.
5.4 Cancellation of Rights. Any Rights Certificate surrendered for
exchange, substitution, transfer or exercise in whole or in part shall be
cancelled by the Company and retired.
SECTION 6. Adjustment of Exercise Price. The Exercise Price shall be
subject to adjustment from time to time upon the happening of certain events as
hereinafter described.
6.1 Mandatory Adjustments. The Exercise Price shall be subject to
adjustment as follows:
(a) If the Company shall (i) declare or pay a dividend on its
outstanding Common Stock in shares of Common Stock or make a distribution to
holders of its Common Stock in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares of Common
Stock, (iii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock or (iv) issue by reclassification of its shares
of Common Stock other securities of the Company, then the Exercise Price in
effect immediately prior thereto shall be adjusted so that the Holder of any
Rights thereafter exercised shall be entitled to receive the number and kind of
shares of Common Stock or other securities that the Holder would have owned or
have been entitled to receive after the happening of any of the events described
above had such Rights been converted immediately prior to the happening of such
event or any record date with respect thereto. An adjustment made pursuant to
this paragraph 6.1(a) shall become effective on the date of the dividend
payment, subdivision, combination or issuance retroactive to the record date
with respect thereto, if any, for such event. Such adjustment shall be made
successively.
(b) If the Company shall issue to all holders of its Common Stock
rights, options, warrants or convertible or exchangeable securities containing
the right to subscribe for or purchase shares of Common Stock at a price per
share that is lower than the then Current Market Price per share (as hereinafter
defined) of Common Stock, then the Exercise Price shall be adjusted in
accordance with the following formula:
O + ( N x P )
---------
AE = E x ( M )
---------
O + N
where
AE = the adjusted Exercise Price
E = the current Exercise Price
O = the number of shares of Common Stock outstanding on the
record date
N = the number of additional shares of Common Stock offered
P = the offering price per share of the additional shares
M = the Current Market Price per share of Common Stock on the
record date
The adjustment shall be made successively whenever any such rights, options,
warrants or convertible or exchangeable securities are issued and shall become
effective immediately after the record date for the determination of
stockholders entitled to receive the rights, options, warrants or convertible or
exchangeable securities. Upon the expiration of any such rights, options,
warrants or convertible or exchangeable securities, if any thereof shall not
have been exercised, the Exercise Price shall be increased by the amount of the
initial adjustment of the Exercise Price made pursuant to this Section 6.1(b) in
respect of such expired rights, options, warrants or convertible or exchangeable
securities. For the purposes of this Certificate, the "Current Market Price" per
share of Common Stock at any date shall be deemed to be the average of the daily
closing prices for the 20 consecutive trading days commencing on the 30th
trading day prior to the date in question. The closing price for each day shall
be (i) if the Common Stock is listed or admitted to trading on a national
securities exchange, the closing price on the New York Stock Exchange
Consolidated Tape (or any successor composite tape reporting transactions on
national securities exchanges) or, if such a composite tape shall not be in use
or shall not report transactions in the Common Stock, the last reported sales
price regular way on the principal national securities exchange on which the
Common Stock is listed admitted to trading (which shall be the national
securities exchange on which the greatest number of shares of Common Stock has
been traded during such 20 consecutive trading days), or, if there is no
transaction on any such day in any such situation, the mean of the bid and asked
prices on such day, or (ii) if the Common Stock is not listed or admitted to
trading on any such exchange, the closing price, if reported, or, if the closing
price is not reported, the average of the closing bid and asked prices as
reported by The Nasdaq Stock Market, or (iii) if bid and asked prices for the
Common Stock on each such day shall not have been reported through The Nasdaq
Stock Market, the average of the bid and asked prices for such date as furnished
by any three New York Stock Exchange member firms regularly making a market in
the Common Stock and not affiliated with the Company selected for such purpose
by the Board of Directors of the Company, or (iv) if no such quotations are
available, the fair market value of the Common Stock as determined by a New York
Stock Exchange member firm regularly making a market in the Common Stock
selected for such purpose by such Board.
(c) If the Company shall distribute to all holders of its outstanding
Common Stock any shares of capital stock of the Company (other than Common
Stock) or evidences of indebtedness or assets (excluding ordinary cash dividends
and dividends or distributions referred to in paragraphs 6.1(a) and (b)) or
rights or warrants to subscribe for or purchase any of its securities (excluding
those referred to in paragraph 6.1(b) above) (any of the foregoing being
hereinafter in this paragraph 6.1(c) called the "Securities or Assets"), then in
each such case, unless the Company elects to reserve shares or other units of
such Securities or Assets for distribution to the Holder upon the exercise of
the Rights so that the Holder will receive upon such exercise, in addition to
the shares of the Common Stock to which such Holder is entitled, the amount and
kind of such Securities or Assets which the Holder would have received if the
Holder had, immediately prior to the record date for the distribution of the
Securities or Assets, exercised the Rights and received Common Stock, the
Exercise Price shall be adjusted so that the same shall equal the price
determined by multiplying the Exercise Price in effect immediately prior to the
date of such distribution by a fraction of which the numerator shall be the
Current Market Price per share of the Common Stock on the record date mentioned
below less the then fair market value (as determined in good faith by the Board
of Directors of the Company), of the portion of the capital stock or assets or
evidences of indebtedness so distributed or of such rights or warrants
applicable to one share of Common Stock, and of which the denominator shall be
the Current Market Price per share of the Common Stock on such record date;
provided, however, that if the then fair market value (as so determined) of the
portion of the Securities or Assets so distributed applicable to one share of
Common Stock is equal to or greater than the Current Market Price per share of
the Common Stock on the record date mentioned above, in lieu of the foregoing
adjustment, adequate provision shall be made so that the Holder of the Rights
shall have the right to receive, in addition to the shares of Common Stock to
which such Holder is entitled, the amount and kind of Securities and Assets the
Holder would have received had the Holder exercised each such Right immediately
prior to the record date for the distribution of the Securities or Assets. Such
adjustment shall become effective immediately after the record date for the
determination of stockholders entitled to receive such distribution.
(d) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least 1% of such price;
provided, however, that any adjustments which by reason of this Section 6.1(d)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 6.1 shall be made
to the nearest one-hundredth of a cent or to the nearest one-hundredth of a
share, as the case may be.
(e) If the Company shall be a party to any transaction, including
without limitation a merger, consolidation, sale of all or substantially all of
the Company's assets, liquidation or recapitalization of the Common Stock (each
of the foregoing being referred to as a "Transaction"), in each case (except in
the case of a Common Stock Fundamental Change (as hereinafter defined)) as a
result of which shares of Common Stock shall be converted into the right to
receive stock, securities or other property (including cash or any combination
thereof), each Right shall thereafter be exercisable into the kind and amount of
shares of stock and other securities and property receivable (including cash)
upon the consummation of such Transaction by a holder of that number of shares
of Common Stock issuable upon the exercise of one Right immediately prior to
such Transaction. The Company shall not be a party to any Transaction unless the
terms of such Transaction are consistent with the provisions of this Section
6.1(e) and it shall not consent or agree to the occurrence of any Transaction
until the Company has entered into an agreement with the successor or purchasing
entity, as the case may be, for the benefit of the Holders of the Rights, which
shall contain provisions enabling the Holders of the Rights to exercise such
Rights for the consideration received by holders of Common Stock at the Exercise
Price immediately after such Transaction. The provisions of this Section 6.1(e)
shall similarly apply to successive Transactions.
(f) In the event of a Common Stock Fundamental Change, each Right
shall be exercisable into common stock of the kind received by holders of Common
Stock as the result of such Common Stock Fundamental Change. The Exercise Price
immediately following such Common Stock Fundamental Change shall be the Exercise
Price in effect immediately prior to such Common Stock Fundamental Change
multiplied by a fraction, the numerator of which is the Purchaser Stock Price
(as hereinafter defined) and the denominator of which is the Applicable Price
(as hereinafter defined). The Company shall not consent or agree to the
occurrence of any Common Stock Fundamental Change until the Company has entered
into an agreement with the successor or purchasing entity, as the case may be,
for the benefit of the Holders of the Rights, which shall contain provisions
enabling the Holders of the Rights to exercise such Rights for the consideration
received by holders of Common Stock at the Exercise Price immediately after such
Common Stock Fundamental Change. The provisions of this Section 6.1(f) shall
similarly apply to successive Common Stock Fundamental Changes.
(g) As used herein:
(i) The term "Applicable Price" means the Current Market Price
for one share of the Common Stock on the record date for the determination
of the holders of Common Stock entitled to receive common stock in
connection with such Common Stock Fundamental Change, or, if there is no
such record date, on the date upon which the holders of Common Stock shall
have the right to receive such common stock.
(ii) The term "Common Stock Fundamental Change" shall mean the
occurrence of any transaction or event in connection with which all or
substantially all the Common Stock shall be exchanged for, converted into,
acquired for or shall constitute solely the right to receive common stock
that, for the ten consecutive trading days immediately prior to such Common
Stock Fundamental Change, has been admitted for listing on a national
securities exchange or quoted on The Nasdaq Stock Market (whether by means
of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise).
(iii) The term "Purchaser Stock Price" shall mean, with respect
to any Common Stock Fundamental Change, the Current Market Price for one
share of the common stock received by holders of Common Stock in such
Common Stock Fundamental Change (determined as if the definition of Current
Market Price contained in this Certificate were applicable to such common
stock) on the record date for the determination of the holders of Common
Stock entitled to receive such common stock or, if there is no such record
date, on the date upon which the holders of Common Stock shall have the
right to receive such common stock.
(h) For the purposes of this Section 6.1, the term "shares of Common
Stock" shall mean (i) the class of stock designated as the Common Stock of the
Company at the date hereof or (ii) any other class of stock resulting from
successive changes or reclassifications of such shares consisting solely of
changes in par value, or from no par value to par value. If at any time, as a
result of an adjustment made pursuant to Sections 6.1(a), (c), (e) or (f) the
Holder shall become entitled to receive any securities other than shares of
Common Stock, thereafter the number of such other securities so issuable upon
the exercise of the Rights shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Rights contained in this Section 6.1.
(i) Notwithstanding the foregoing, in any case which this Section 6.1
provides that an adjustment shall become effective immediately after a record
date for an event, the Company may defer until the occurrence of such event (i)
issuing to the Holder of any Right exercised after such record date and before
the occurrence of such event the additional shares of Common Stock issuable upon
such conversion before giving effect to such adjustment and (ii) paying to the
Holder any amount in cash in lieu of any fraction pursuant to Section 7.
(j) If the Company shall take any action affecting the Common Stock,
other than action described in this Section 6.1, which in the opinion of the
Board of Directors of the Company would materially adversely affect the
conversion rights of the Holder of the Rights, the Exercise Price for the Rights
may be adjusted, to the extent permitted by law, in such manner, if any, and at
such time, as such Board may determine in good faith to be equitable in the
circumstances. Failure of the Board of Directors of the Company to provide for
any such adjustment prior to the effective date of any such action by the
Company affecting the Common Stock shall be evidence that the Board of Directors
of the Company has determined that it is equitable to make no adjustments in the
circumstances.
6.2 Voluntary Adjustment by the Company. The Company may at its
option, at any time during the term of the Rights, reduce the then current
Exercise Price to any amount deemed appropriate by the Board of Directors of the
Company; provided that if the Company elects so to reduce the then current
Exercise Price, such reduction shall remain in effect for at least a 15-day
period, after which time the Company may, at its option, reinstate the Exercise
Price in effect prior to such reduction.
6.3 Notice of Adjustment. Whenever the Exercise Price is adjusted as
herein provided, the Chief Financial Officer of the Company shall compute the
adjusted Exercise Price in accordance with the foregoing provisions and shall
prepare a certificate setting forth such adjusted Exercise Price and showing in
reasonable detail the facts upon which such adjustment is based. A copy of such
certificate shall be filed promptly with the Transfer Agent. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Exercise Price setting forth the adjusted Exercise Price and
the date on which such adjustment becomes effective and shall mail such notice
of such adjustment of the Exercise Price to the Holder at his last address as
shown on the Rights Register.
6.4 No Adjustment for Dividends. Except as provided in Section 6.1
hereof, no adjustment in respect of any dividends or other payments or
distributions made to Holders of securities issuable upon exercise of Rights
shall be made during the term of a Right or upon the exercise of a Right.
6.5 Statement on Rights Certificate. Irrespective of any adjustments
in the number or kind of securities purchasable upon the exercise of the Rights
or the Exercise Price, any Rights Certificate theretofore or thereafter issued
may continue to express the same price and number and kind of shares as are
stated in this Rights Certificate.
SECTION 7. Fractional Interests. The Company may, but shall not be
required to, issue fractional Rights Shares on the exercise of Rights. If more
than one Right shall be presented for exercise in full at the same time by a
Holder, the exercise thereof shall be computed on the basis of the aggregate
number of Rights Shares purchasable on exercise of the Rights so presented. If
any fraction of a Rights Share would be issuable on the exercise of any Right
(or specified portion thereof), the Company may, in its sole discretion, issue
such fraction of a Rights Share or pay to the Holder of the Right an amount in
cash equal to the Current Market Price per share of Common Stock computed as of
the trading day immediately preceding the date the Right is presented for
exercise, multiplied by such fraction (but in no event less than an amount equal
to such fraction multiplied by the Exercise Price in effect at such time).
SECTION 8. No Rights as Stockholders; Notices to Holder. Nothing
contained in this Rights Certificate shall be construed as conferring upon the
Holder or its Permitted Transferees the right to vote or to receive dividends
(except as provided in Section 6 hereof) or to consent or to receive notice as
stockholders in respect of any meeting of stockholders of the Company for the
election of the directors of the Company or any other matter, or any rights
whatsoever as stockholders of the Company. If, however, at any time prior to the
expiration of the Rights and prior to their exercise, any of the following
events shall occur:
(a) the Company shall declare any dividend upon its shares of Common
Stock (excluding ordinary cash dividends) or make any distribution to the
holders of its shares of Common Stock;
(b) the Company shall authorize the granting to all holders of its
shares of Common Stock of rights, options, warrants, or convertible or
exchangeable securities containing the right to subscribe for or purchase any
shares of Common Stock or any of its securities;
(c) there shall be a reclassification of the Common Stock or any
consolidation or merger to which the Company is a party and for which approval
of any stockholders of the Company is required, or the sale or transfer of all
or substantially all of the assets of the Company; or
(d) there shall be any Common Stock Fundamental Change;
then in any one or more of said events, the Company shall give to the Holder by
registered mail (return receipt requested) as promptly as possible but at least
15 days prior to the applicable date hereinafter specified, a written notice
stating (i) the date on which a record is to be taken for the purpose of such
dividend or distribution, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such dividend or
distribution are to be determined or (ii) the date on which such
reclassification, consolidation, merger, sale, transfer or Common Stock
Fundamental Change is expected to become effective, and the date as of which it
is expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer or Common Stock
Fundamental Change.
SECTION 9. Identity of Transfer Agent. Forthwith upon the appointment
of any Transfer Agent for the Common Stock, or any other shares of the Company's
capital stock issuable upon the exercise of the Rights, the Company shall
promptly notify the Holder of the name and address of such Transfer Agent.
SECTION 10. Notices. Any notice, except as provided in Section 8 of
this Rights Certificate, or demand authorized by this Rights Certificate to be
given by the Holder to the Company, shall be in writing and shall be delivered
in person or by facsimile transmission, or mailed by first class mail, postage
prepaid, or by overnight courier, to the Company, at 275 Broad Hollow Rd.,
Melville, NY 11747, telefax no.: (516) 844-1471, confirmation no. (516)
844-1000, Attention: Secretary. The Company may change the address or telefax
numbers to which notices to it are to be transmitted, delivered or mailed
hereunder by notice to the Holder.
Any notice pursuant to this Rights Certificate by the Company to the
Holder shall be in writing and shall be delivered by first class mail, postage
prepaid, or by facsimile transmission, by overnight courier, or otherwise
delivered by hand, to the Holder at its address on the books of the Rights
Register or at the telefax number specified in writing by the Holder to the
Company.
Notices delivered personally shall be effective at the time delivered
by hand, notices sent by mail shall be effective two days after mailing, notices
sent by facsimile transmission shall be effective when receipt is acknowledged
and notices sent by courier guaranteeing next day delivery shall be effective on
the next business day after timely delivery to the courier.
SECTION 11. Supplements and Amendments. This Rights Certificate may
not be supplemented, amended or otherwise modified without the prior written
consent of the Holder.
SECTION 12. Successors. All the covenants and provisions of this
Rights Certificate by or for the benefit of the Company shall bind and inure to
the benefit of its respective successors and assigns.
SECTION 13. Merger or Consolidation of the Company. The Company will
not merge or consolidate into, or sell, transfer or lease all or substantially
all of its property to, any other corporation unless the successor, transferee
or lessee corporation, as the case may be (if not the Company), shall expressly
assume the due and punctual performance and observance of each and every
covenant and condition of this Rights Certificate to be performed and observed
by the Company.
SECTION 14. Applicable Law. This Rights Certificate and the Rights
evidenced hereby shall be governed by and construed in accordance with the laws
of the State of New York, without giving effect to principles of conflict of
laws.
SECTION 15. Benefits of this Rights Certificate. Nothing in this
Rights Certificate shall be construed to give to any person or entity other than
the Company and the Holder any legal or equitable right, remedy or claim under
this Rights Certificate; and this Rights Certificate shall be for the sole and
exclusive benefit of the Company and the Holder.
SECTION 16. Captions. The captions of the Sections and paragraphs of
this Rights Certificate have been inserted for convenience only and shall have
no substantive effect.
IN WITNESS WHEREOF, the Company has caused this Rights Certificate to
be duly executed this____ day of [ ], 2000.
NORTH FORK BANCORPORATION, INC.
By:
--------------------------------
Name:
Title:
<PAGE>
PURCHASE FORM
(To be executed upon exercise of Right)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Rights Certificate, to purchase _______ shares of Common
Stock as provided for herein and upon confirmation from the Company that such
shares of Common Stock shall be issued, agrees that it will tender in payment
for such shares of Common Stock payment of the purchase price in full in the
form of cash or a bank check payable to the order of North Fork Bancorporation,
Inc. or a combination thereof in the amount of $_______, all in accordance with
the terms hereof. The undersigned requests that a certificate for such shares of
Common Stock be registered in the name of ______________________ whose address
is ___________________________ and that such certificate shall be delivered to
______________________ whose address is ___________________________. If said
number of shares of Common Stock is less than all of the shares of Common Stock
purchasable hereunder, the undersigned requests that a new Rights Certificate
representing the right to purchase the remaining balance of the shares of Common
Stock be registered in the name of ________________________ whose address is
___________________________ and that such certificate shall be delivered to
______________________ whose address is ___________________________.
Dated:
-------------------------------
-------------------------------
(Insert Employer Identification
Number of holder)
Signature
-------------------------------
Note: Signature must conform in all
respects to name of holder as
specified on the face of this
Rights Certificate in every
particular, without alteration or
enlargement or any change
whatsoever, unless this Rights
Certificate has been assigned.
<PAGE>
ASSIGNMENT
(To be executed only upon
assignment of the Rights Certificate)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________ (Name and Address of Assignee, Must Be Printed
or Typewritten) the within Rights Certificate, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint
____________________, Attorney, to transfer said Rights Certificate on the books
of the within-named Company, with full power of substitution in the premises.
Dated:
-------------------------------
-------------------------------------
Signature of Registered Holder
Note: The above signature must
correspond with the name as
written on the face of this
Rights Certificate in every
particular, without alteration
or enlargement or any change
whatsoever.
<PAGE>
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of [ ],
2000 made and entered into by North Fork Bancorporation, Inc., a Delaware
corporation (the "Company"), and Fleet Boston Corporation, a Rhode Island
corporation ("Fleet Boston").
WHEREAS, the Company has entered into a stock purchase agreement (the
"Purchase Agreement") with Fleet Boston pursuant to which, among other things,
the Company has agreed to (i) issue and sell to Fleet Boston, and Fleet Boston
has agreed to purchase, an aggregate of 250,000 shares of the Company's
Non-Cumulative Convertible Perpetual Preferred Stock, Series B, par value $1.00
per share and liquidation value $1,000.00 per share (the "CP Shares") and (ii)
issue to Fleet Boston stock purchase rights (the "Rights") to purchase 7,500,000
shares of common stock, $0.01 par value per share ("Common Stock"), of the
Company (such shares of Common Stock, the "Rights Shares");
WHEREAS, in connection with the issuance of the CP Shares and the
Rights, the Company has agreed to register the CP Shares, the Rights, the Rights
Shares and the NFB Conversion Shares (as hereinafter defined) upon the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the promises and the
representations, warranties and agreements herein contained and intending to be
legally bound hereby, the parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Certificate of Designations" shall mean the Certificate of
Designations relating to the CP Shares, the form of which is attached as Exhibit
A to the Purchase Agreement.
"Demand Party" shall mean any Holder or Holders; provided, that to be
a Demand Party, a Holder or Holders must either individually or in the aggregate
with all other Holders with whom or on whose behalf it is acting to demand
registration own not less than 25% of the class of Registrable Securities in
respect of which such demand for registration is being made.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to the
comparable section, if any, of any such similar federal statute.
"Holder" shall mean Fleet Boston and any Permitted Transferee which is
or becomes the beneficial owner of Registrable Securities.
"NFB Conversion Shares" shall mean the shares of Common Stock, which
are issuable from time to time upon conversion of the CP Shares in accordance
with the Certificate of Designations.
"Permitted Transferee" shall mean any Affiliate (as defined in the
Purchase Agreement) of any Holder.
"Person" shall mean any individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or any department
or agency thereof.
"Registrable Securities" shall mean any Rights, any shares of Stock,
and any securities which may be issued or distributed in respect thereof by way
of stock dividend or stock split or other distribution, recapitalization or
reclassification. Any particular Registrable Securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale by the Holder of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) they shall have been distributed to the
public pursuant to Rule 144 (or any successor provision) under the Securities
Act, (iii) they shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered by
the Company and, in the written opinion of counsel to the Company of recognized
national standing, subsequent disposition of them shall not require registration
or qualification of them under the Securities Act or any state securities or
blue sky law then in force, or (iv) they shall have ceased to be outstanding.
"Registrant" shall mean the Company.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation,
(i) all SEC and stock exchange or National Association of Securities Dealers,
Inc. ("NASD") registration and filing fees (including, if applicable, the fees
and expenses of any "qualified independent underwriter" as such term is defined
in Schedule E to the By-laws of the NASD, and of counsel to such qualified
independent underwriter), (ii) all fees and expenses of complying with
securities or blue sky laws (including fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv) all fees
and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange pursuant to clause (viii) of Section 4
hereof and all rating agency fees, (v) the fees and disbursements of counsel for
the Registrant and of its independent public accountants, including the expenses
of any special audits and/or "cold comfort" letters required by or incident to
such performance and compliance, (vi) the fees and disbursements of counsel
selected pursuant to Section 7 hereof by the Holders of the Registrable
Securities being registered to represent such Holders in connection with each
such registration, (vii) any fees and disbursements of underwriters customarily
paid by the issuers or sellers of securities, and the fees and expenses of any
special experts retained in connection with the requested registration, but
excluding underwriting discounts and commissions and transfer taxes, if any, in
respect of the Registrable Securities, and (viii) other reasonable out-of-pocket
expenses of Holders (provided that such expenses shall not include expenses of
counsel other than those provided for in clause (vi) above).
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"SEC" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the Exchange Act.
"Stock" shall mean the CP Shares, the NFB Conversion Shares, and the
Rights Shares.
2. Incidental Registrations.
(a) Right to Include Registrable Securities. If the Registrant at any
time after the date hereof proposes to register any of its shares of common
stock (which term shall not include convertible debt or convertible preferred
stock) under the Securities Act (other than a registration on Form S-4 or S-8,
or any successor or other forms promulgated for similar purposes), whether or
not for sale for its own account, the Registrant will at each such time, give
prompt written notice to all Holders of Registrable Securities of its intention
to do so and of such Holders' rights under this Section 2. Upon the written
request of any Holder receiving such notice made within 15 days after the
receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such Holder), the Registrant will use
all reasonable efforts to effect the registration under the Securities Act of
all Registrable Securities of the same class as are being registered and which
the Registrant has been so requested to register by the Holders thereof, to the
extent requisite to permit the disposition of the Registrable Securities to be
so registered; provided, that (i) if, at any time after giving written notice of
its intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Registrant shall determine for any reason not to proceed with the proposed
registration of the securities to be sold by it, the Registrant may, at its
election, give written notice of such determination to each Holder of
Registrable Securities and, thereupon, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection
therewith), and (ii) if such registration involves an underwritten offering of
securities of the same class as the Registrable Securities to be included in
such registration, all Holders of Registrable Securities requesting to be
included in such registration must sell their Registrable Securities to the
underwriters selected by the Registrant on the same terms and conditions as
apply to the Registrant with such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
combined primary and secondary offerings. If a registration requested pursuant
to this Section 2(a) involves an underwritten public offering, any Holder of
Registrable Securities requesting to be included in such registration may elect,
in writing prior to the effective date of the registration statement filed in
connection with such registration, not to register such securities in connection
with such registration and shall have no liability with respect to any such
withdrawal. No registration effected under this Section 2(a) shall relieve the
Registrant of its obligation to effect any registration upon request under
Section 3(a) except as provided in such Section 3(g).
(b) Expenses. The Registrant will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2.
(c) Priority in Incidental Registrations. If a registration pursuant
to this Section 2 involves an underwritten offering and the managing underwriter
advises the Registrant in writing that, in its opinion, the number and kind of
securities requested to be included in such registration exceeds the number and
kind which can be sold in such offering, so as to be likely to have a material
adverse effect on the price, timing or distribution of the securities offered in
such offering as contemplated by the Registrant (other than the Registrable
Securities), then the Registrant will include in such registration securities
all of the securities the Registrant proposes to sell ("Registrant Securities")
plus such number and kind of Registrable Securities requested to be included in
such registration by the selling Holder which, in the opinion of such managing
underwriter, can be sold without having the adverse effect referred to above.
The Registrable Securities to be included in such registration shall be
allocated pro rata among all requesting Holders on the basis of the relative
number of shares of Registrable Securities then held by each such Holder
(provided that any shares thereby allocated to any such Holder that exceed such
Holder's request will be reallocated among the remaining requesting Holders in
like manner). In the event the Registrant is faced with a conflict between its
obligations under this Section 2 and pre-existing obligations to persons who are
not Holders hereunder with respect to the priority of securities to be included
in a registration pursuant to this Section 2, the Registrant shall at such time
endeavor to arrange with the Holder or Holders and such other persons to fairly
allocate the shares of such securities to be sold by it, such Holder or Holders
and such other persons pursuant to such registration; provided, that, if a
registration pursuant to this Section 2 is effected pursuant to the demand
registration rights of a third party with whom the Company has a contractual
obligation, the number and kinds of securities requested to be included by such
third party shall first be included in such registration and the number and kind
of securities requested to be included by the Holders, the Company and any other
persons entitled to sell securities pursuant to such registration shall then be
included on a pro rata basis.
3. Registration on Request.
(a) Request by the Demand Party. At any time upon the written request
of the Demand Party requesting that the Registrant effect the registration under
the Securities Act of all or part of such Demand Party's Registrable Securities
(such amount to equal at least 25% of the total number of Registrable Securities
held by such Demand Party of the class in respect of which such demand for
registration is being made) and specifying the amount and intended method of
disposition thereof, the Registrant will promptly give written notice of such
requested registration to all other Holders of Registrable Securities of the
same class as the securities requested to be registered, and thereupon will, as
expeditiously as possible, use all reasonable efforts to effect the registration
under the Securities Act (including by means of a shelf registration pursuant to
Rule 415 under the Securities Act if so requested by the Demand Party and if the
Registrant is then eligible to use such registration) of:
(i) the Registrable Securities which the Registrant has been so
requested to register by the Demand Party; and
(ii) all other Registrable Securities of the same class as the
securities requested to be registered which the Registrant has been
requested to register by any other Holder thereof by written request given
to the Registrant within 15 days after the giving of such written notice by
the Registrant (which request shall specify the amount and intended method
of disposition of such Registrable Securities),
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities so to be
registered; provided, that notwithstanding anything to the contrary contained
herein, the Registrant shall not be obligated to effect such registration under
this Section 3(a) with respect to the Rights or the CP Shares until the date
that is one year from the date of this Agreement; provided further that, if with
respect to a registration under this Section 3(a), the SEC, the Securities Act
or the rules and regulations thereunder, or the form on which the registration
statement is to be filed, would require the conduct of an audit other than the
regular annual audit conducted by the Registrant, the filing of the registration
statement may be delayed until the completion of such regular audit (unless the
Holders of the Registrable Securities to be registered agree to pay the expenses
of the Registrant in connection with such an audit other than the regular
audit).
(b) Expenses. The Registrant will pay all Registration Expenses in
connection with the registrations of Registrable Securities pursuant to Section
3(a).
(c) Effective Registration Statement. A registration pursuant to this
Section 3 will not be deemed to have been effected unless it has become
effective; provided, that, if within 180 days after it has become effective, the
offering of Registrable Securities pursuant to such registration is interfered
with by any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court, such registration will be deemed not to have
been effected.
(d) Selection of Underwriters. If a registration pursuant to this
Section 3 involves an underwritten offering, the Holders of a majority of the
class of shares of Registrable Securities to be so registered which are held by
Holders shall have the right to select the investment banker or bankers and
managers to administer the offering.
(e) Priority in Requested Registrations. If a registration pursuant to
this Section 3 involves an underwritten offering and the managing underwriter
advises the Registrant in writing that, in its opinion, the number of securities
requested to be included in such registration (including securities of the
Registrant which are not Registrable Securities ("Additional Securities"))
exceeds the number which can be sold in such offering, the Registrant will
include in such registration (i) first, 100% of the Registrable Securities
requested to be included in such registration and (ii) second, such Additional
Securities, if any, which, in the opinion of such managing underwriter, can also
be sold in such offering. If the number of Registrable Securities requested to
be included in such registration exceeds the number which, in the opinion of
such managing underwriter, can be sold, the number of such Registrable
Securities to be included in such registration shall be allocated pro rata among
all requesting Holders on the basis of the relative number of shares of
Registrable Securities then held by each such Holder (provided that any shares
thereby allocated to any such Holder that exceed such Holder's request shall be
reallocated among the remaining requesting Holders in like manner). If the
number of Registrable Securities requested to be included in such registration
is less than the number which, in the opinion of the managing underwriter, can
be sold, the Registrant may include in such registration the securities the
Registrant proposes to sell up to the number of securities that, in the opinion
of the underwriter, can be sold.
(f) No Inconsistent Agreements. The Registrant will not enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the Holders in this Agreement.
(g) Limitations on Demand. Notwithstanding anything in this Section 3
to the contrary, (i) the Registrant will not be required to effect a
registration of Registrable Securities pursuant to this Section 3 if it shall
have delivered to the Demand Party a written opinion of counsel to the
Registrant of recognized national standing to the effect that the disposition of
Registrable Securities shall not require registration or qualification of them
under the Securities Act or any state securities or blue sky law then in force,
(ii) in no event will the Registrant be required to effect more than two
registrations pursuant to this Section 3 prior to the fifth anniversary of the
date of original issuance of the CP Shares and no more than two registrations
(the "Permitted Registrations") in any subsequent five-year period, provided
that in the event the Holders request less than two registrations pursuant to
this Section 3 in any five-year period described above, then such registrations
may be requested in any subsequent five-year period in addition to the Permitted
Registrations in such subsequent period, and (iii) in no event shall the
Registrant be required to effect more than one registration pursuant to this
Section 3 during any 12-month period or to effect any registration pursuant to
this Section 3 within six months after the effective date of any registration
statement under which any Holder registered Registrable Securities pursuant to
Section 2 of this Agreement. The Registrant shall not be obligated to effect a
registration pursuant to this Section 3, or file any amendment or supplement
thereto, and may suspend the sellers' rights to make sales pursuant to an
effective registration statement pursuant to this Section 3, at any time when
the Registrant, in the good faith judgment of its Board of Directors, reasonably
believes that the filing thereof at the time requested, or the offering of
securities pursuant thereto, would adversely affect a pending or proposed
acquisition, merger, recapitalization, consolidation, reorganization or similar
transaction, or negotiations, discussions or pending proposals with respect
thereto. The filing of a registration statement pursuant to this Section 3, or
any amendment or supplement thereto, by the Registrant cannot be deferred, and
the sellers' rights to make sales pursuant to an effective registration pursuant
to this Section 3 cannot be suspended, pursuant to the provisions of the
preceding sentence for more than fifteen days after the abandonment or
consummation of any of the foregoing proposals or transactions or, in any event,
for more than 90 days after the date of the Board's determination referenced in
the preceding sentence, and the Registrant shall be entitled to only one such
deferral or suspension in any 12 month period. If the Registrant suspends the
sellers' right to make sales pursuant to this subparagraph, the applicable
registration period shall be extended by the number of days of such suspension.
4. Registration Procedures. If and whenever the Registrant is required
to use its best efforts to effect or cause the registration of any Registrable
Securities under the Securities Act as provided in this Agreement, the
Registrant will, as expeditiously as possible:
(i) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective and to remain continuously
effective for a period of not less than 180 days following the date on
which such registration statement is declared effective, provided, however,
that the Registrant shall have no obligation to maintain the effectiveness
of such registration statement after the sale of all stock registered
thereunder;
(ii) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a
period of not less than 180 days and to comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations of the SEC
thereunder with respect to the disposition of all securities covered by
such registration statement during such period in accordance with the
intended methods of disposition by the seller or sellers thereof set forth
in such registration statement; provided, that before filing a registration
statement or prospectus, or any amendments or supplements thereto, the
Registrant will furnish to counsel selected pursuant to Section 7 hereof by
the Holders of the Registrable Securities covered by such registration
statement to represent such Holders, copies of all documents proposed to be
filed, which documents will be subject to the review of such counsel;
(iii) furnish to each selling Holder of such Registrable Securities
such numbers of copies of such registration statement and of each amendment
and supplement thereto (in each case including all exhibits filed
therewith, including any documents incorporated by reference), such number
of copies of the prospectus included in such registration statement
(including each preliminary prospectus and summary prospectus and any other
prospectus filed under Rule 424 under the Securities Act), in conformity
with the requirements of the Securities Act, and such other documents as
such Holder may reasonably request in order to facilitate the disposition
of the Registrable Securities by such Holder;
(iv) use all reasonable efforts to register or qualify such
Registrable Securities covered by such registration under the blue sky laws
of such jurisdictions as each selling Holder shall reasonably request, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder, except
that the Registrant shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
where, but for the requirements of this clause (iv), it would not be
obligated to be so qualified, to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction;
(v) use all reasonable efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the selling Holder or Holders thereof to consummate the disposition
of such Registrable Securities;
(vi) notify each selling Holder of any such Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in clause (ii) of this Section 4,
of the Registrant's becoming aware that the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and at the request of any such
Holder, prepare and furnish to such Holder a reasonable number of copies of
an amended or supplemental prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing;
(vii) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
eighteen months) after the effective date of the registration statement, an
earnings statement which shall satisfy the provision of Section 11(a) of
the Securities Act and the rules and regulations promulgated thereunder;
(viii) use its best efforts to list such Registrable Securities on any
securities exchange on which shares of the same class or series as the
Registrable Securities are then listed, if such Registrable Securities are
not already so listed and if such listing is then permitted under the rules
of such exchange, and to provide a transfer agent and registrar for such
Registrable Securities covered by such registration statement not later
than the effective date of such registration statement;
(ix) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions as Holders of a
majority of shares of such Registrable Securities covered by the
registration statement or the underwriters, if any, reasonably request in
order to expedite or facilitate the disposition of such Registrable
Securities;
(x) obtain a "cold comfort" letter or letters from the Registrant's
independent public accountants in customary form and covering matters of
the type customarily covered by "cold comfort" letters as the Holder or
Holders of a majority of shares of such Registrable Securities covered by
the registration statement shall reasonably request;
(xi) make available for inspection by any Holder of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent
retained by any such Holder or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Registrant, and cause all of the Registrant's officers, directors
and employees to supply all information reasonably requested by any such
Holder, underwriter, attorney, accountant or agent in connection with such
registration statement;
(xii) notify counsel (selected pursuant to Section 7 hereof) for the
Holders of Registrable Securities included in such registration statement
and the managing underwriter or agent, immediately, and confirm the notice
in writing (i) when the registration statement, or any post-effective
amendment to the registration statement, shall have become effective, or
any supplement to the prospectus or any amendment prospectus shall have
been filed, (ii) of the receipt of any comments from the SEC, (iii) of any
request of the SEC to amend the registration statement or amend or
supplement the prospectus or for additional information and (iv) of the
issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the registration statement for offering or sale in any jurisdiction, or of
the institution or threatening of any proceedings for any of such purposes;
(xiii) make every reasonable effort to prevent the issuance of any
stop order suspending the effectiveness of the registration statement or of
any order preventing or suspending the use of any preliminary prospectus
and, if any such order is issued, to obtain the withdrawal of any such
order at the earliest possible moment;
(xiv) if requested by the managing underwriter or agent or any Holder
of Registrable Securities covered by the registration statement, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or agent or such Holder reasonably
requests to be included therein, including, without limitation, with
respect to the number of Registrable Securities being sold by such Holder
to such underwriter or agent, the purchase price being paid therefor by
such underwriter or agent and with respect to any other terms of the
underwritten offering of the Registrable Securities to be sold in such
offering; and make all required filings of such prospectus supplement or
post-effective amendment as soon as practicable after being notified of the
matters incorporated in such prospectus supplement or post-effective
amendment;
(xv) cooperate with the Holders of Registrable Securities covered by
the registration statement and the managing underwriter or agent, if any,
to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold under
the registration statement, and enable such securities to be in such
denominations and registered in such names as the managing underwriter or
agent, if any, or such Holders may request;
(xvi) obtain for delivery to the underwriter or agent an opinion or
opinions from counsel for the Registrant in customary form and in form,
substance and scope reasonably satisfactory to such Holders, underwriters
or agents and their counsel; and
(xvii) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD.
The Registrant may require each Holder of Registrable Securities as to
which any registration is being effected to furnish the Registrant with such
information regarding such Holder and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Registrant may from time to time reasonably request in writing and to enter into
such agreements, including customary underwriting agreements, as may be
reasonably necessary to effect the registration and sale of the Registrable
Securities.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Registrant of the happening of any event of the kind described
in clause (vi) of this Section 4, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by clause (vi) of this
Section 4, and, if so directed by the Registrant, such Holder will deliver to
the Registrant (at the Registrant's expense) all copies, other than permanent
file copies then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Registrant shall give any such notice, the period mentioned in clause
(ii) of this Section 4 shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to clause (vi)
of this Section 4 and including the date when each seller of Registrable
Securities covered by such registration statement shall have received the copies
of the supplemented or amended prospectus contemplated by clause (vi) of this
Section 4.
5. Indemnification.
(a) Indemnification by the Registrant. In the event of any
registration of any securities of the Registrant under the Securities Act
pursuant to Sections 2 or 3, the Registrant will, and it hereby does, indemnify
and hold harmless, to the extent permitted by law, the Holder of any Registrable
Securities covered by such registration statement, each affiliate of such Holder
and their respective directors and officers or general and limited partners
(including any director, officer, affiliate, employee, agent and controlling
Person of any of the foregoing), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such Holder, such affiliate or any such underwriter within the
meaning of the Securities Act (collectively, the "Indemnified Parties"), against
any and all losses, claims, damages or liabilities, joint or several, and
expenses (including reasonable attorney's fees and reasonable expenses of
investigation) to which such Indemnified Party may become subject under the
Securities Act, common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof, whether or not
such Indemnified Party is a party thereto) arise out of or are based upon (a)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such securities were registered under
the Securities Act, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement thereto, or (b) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in light
of the circumstances under which they were made) not misleading, and the
Registrant will reimburse such Indemnified Party for any legal or any other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, liability, action or proceeding; provided that the
Registrant shall not be liable to any Indemnified Party in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto or in any such
preliminary, final or summary prospectus in reliance upon and in conformity with
information furnished to the Registrant in writing by such Holder or any
representative of such Holder specifically for use in the preparation thereof.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Holder or any Indemnified Party and
shall survive the transfer of such securities by such Holder.
(b) Indemnification by the Holders. The Registrant may require, as a
condition to including any Registrable Securities in any registration statement
filed in accordance with Section 4 herein, that the Registrant shall have
received an undertaking reasonably satisfactory to it from the prospective
selling Holder of such Registrable Securities or any underwriter to indemnify
and hold harmless (in the same manner and to the same extent as set forth in
subdivision (a) of this Section 5) the Registrant with respect to any statement
or alleged statement in or omission or alleged omission from such registration
statement, any preliminary, final or summary prospectus contained therein, or
any amendment or supplement, if such statement or alleged statement or omission
or alleged omission was made in reliance upon and in conformity with information
provided to the Registrant in writing by such selling Holder or underwriter or
any of their respective representatives specifically for use in the preparation
of such registration statement, preliminary, final or summary prospectus or
amendment or supplement, or a document incorporated by reference into any of the
foregoing. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Registrant, or any of its
respective affiliates, directors, officers or controlling Persons and shall
survive the transfer of such securities by such selling Holder. In no event
shall the liability of any selling Holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds received by such
selling Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Notice of Claims, Etc. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided, that the failure of the
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 5, except to the extent the indemnifying party is actually prejudiced by
such failure. In case any such action is brought against an indemnified party,
unless in the written opinion of such indemnified party's counsel a conflict of
interest between such indemnified party and indemnifying parties may exist in
respect of such claim, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof, the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
(d) Other Indemnification. Indemnification similar to that specified
in the preceding subdivisions of this Section 5 (with appropriate modifications)
shall be given by the Registrant and each selling Holder of Registrable
Securities with respect to any required registration or other qualification of
securities under any federal or state law or regulation or governmental
authority other than the Securities Act.
(e) Contribution. If for any reason the indemnification provided for
in this Section 5 is unavailable to an indemnified party or is insufficient to
hold it harmless as contemplated by this Section 5, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party an a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations; provided that in no event shall the liability of any
Holder for such contribution and indemnification exceed, in the aggregate, the
dollar amount of the proceeds received by such Holder upon the sale of
Registrable Securities giving rise to such indemnification and contribution
obligation.
(f) Non-Exclusivity. The obligations of the parties under this Section
5 shall be in addition to any liability which any party may otherwise have to
any other party.
6. Rule 144 and Rule 144A. If the Registrant shall have filed a
registration statement pursuant to the requirements of Section 12 of the
Exchange Act or a registration statement pursuant to the requirements of the
Securities Act, the Registrant covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder (or, if the Registrant is not
required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available such information), and it will
take such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell shares of Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (i) Rule 144 or Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (ii) any similar rules or regulations hereafter adopted by the SEC. Upon the
request of any Holder of Registrable Securities, the Registrant will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
7. Selection of Counsel.
In connection with any registration of Registrable Securities pursuant
to Sections 2 and 3 hereof, the Holders of a majority of the Registrable
Securities covered by any such registration, voting by class, may select one
counsel to represent all Holders of Registrable Securities covered by such
registration; provided, however, that in the event that the counsel selected as
provided above is also acting as counsel to the Registrant in connection with
such registration, the remaining Holders shall be entitled to select one
additional counsel to represent all such remaining Holders.
8. Miscellaneous.
(a) Holdback Agreement. If any registration shall be in connection
with an underwritten public offering, each Holder of Registrable Securities
agrees not to effect any public sale or distribution, including any sale
pursuant to Rule 144 or Rule 144A under the Securities Act, of any equity
securities of the Registrant, or of any security convertible into or
exchangeable or exercisable for any equity security of the Registrant (in each
case, other than as part of such underwritten public offering), within 30 days
before or 60 days (or such lesser period as the managing underwriters may permit
or permit any other holders of Securities included in such registration) after
the effective date of such registration (except as part of such registration),
and the Registrant hereby also so agrees and agrees to request and make good
faith efforts to persuade each other holder of any equity security, or of any
security convertible into or exchangeable or exercisable for any equity
security, of the Registrant purchased from the Registrant (at any time other
than in a public offering) to so agree.
(b) Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holders of
a majority of the Registrable Securities then outstanding, voting by class;
provided, however, that no amendment, waiver or consent to the departure from
the terms and provisions of this Agreement that is adverse to Fleet Boston or
any of its successors and assigns shall be effective as against any such Person
for so long as such Person holds any Registrable Securities unless consented to
in writing by such Person. Each Holder of any Registrable Securities at the time
or thereafter outstanding shall be bound by any consent authorized by this
Section 8(b), whether or not such Registrable Securities shall have been marked
to indicate such consent.
(c) Successors, Assigns and Transferees. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent Holder of any Registrable
Securities, subject to the provisions contained herein.
(d) Notices. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
(i) if to the Company, to:
North Fork Bancorporation, Inc.
275 Broad Hollow Road
Melville, New York 11747
Attention: Chief Financial Officer
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: William S. Rubenstein, Esq.
(ii) if to Fleet Boston, to:
Fleet Boston Corporation
One Federal Street
Boston, Massachusetts 02110
Attention: Chief Financial Officer
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, NY 10006
Attention: Robert L. Tortoriello, Esq.
(iii) if to any other Holder of Registrable Securities, to the address of
such other Holder as shown in the stock record book of the Registrant,
or to such other address as any of the above shall have designated in
writing to all of the other above.
All notices shall be effective when received.
(e) Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(f) Severability. If any one or more of the provisions, paragraphs,
words, clauses, phrases or sentences contained herein, or the application
thereof in any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision, paragraph, word, clause, phrase or sentence in every other respect
and of the remaining provisions, paragraphs, words, clauses, phrases or
sentences hereof shall not be in any way impaired, it being intended that all
rights, powers and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.
(h) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York applicable to
contracts made and to be performed therein.
(i) Specific Performance. The parties hereto acknowledge and agree
that irreparable damage would occur if any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, it is agreed that the parties hereto shall be entitled to
an injunction or injunctions, to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which such parties may be entitled at law or
equity.
IN WITNESS WHEREOF, each of the undersigned has caused this
Registration Rights Agreement to be executed on its behalf as of the date first
written above.
NORTH FORK BANCORPORATION, INC.
By:
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Name:
Title:
FLEET BOSTON CORPORATION
By:
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Name:
Title:
Dated:
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<PAGE>
EXHIBIT D
Branch Purchase and Assumption Term Sheet
" Annex 1: Schedule of branches to be sold
" Premium / Purchase Price
(Y) Cash premium of 8% of deposits at closing
(Y) Loans transferred at fair market value (rate and credit)
(Y) ATMs transferred at book value
(Y) Plug with cash or securities at fair market value
(Y) CRA investments remain with transferor
(Y) Derivatives associated with specific assets or liabilities transferred
at fair market value
(Y) Fixed assets transferred at book value
(Y) Property (includes leasehold improvements)
(Y) Purchase at average of book value and fair market value
(Y) Transferee assumes contingent or contractual liabilities related to the
deposits, loans, property and facilities transferred
" Definition of deposits and loans to be transferred to be based on overall
relationships
(Y) Relationships (majority of $ value of deposits & loans)
(Y) Loans (CRE, C&I, consumer, mortgage) and collateral
(Y) Best efforts to transfer IRA and Keogh deposits and safe deposit boxes
" Indemnification
(Y) Liability cap of 10% of premium
(Y) Basket of 15% of cap
(Y) Survival: 12 months
(Y) Indemnification to relate to (i) representations, warranties and
covenants, and (ii) liabilities not assumed; indemnification not to
relate to, property, facilities or operations of Dime prior to
acquisition by transferor
" Employment
(Y) Offers to current Dime employees employed at branches (same salary and
participation in transferee benefit plans)
(Y) Severance responsibility to transferee
(Y) No solicitation by transferor or transferee of employees at the other's
Dime branches for one year
(Y) Transferor not to relocate or transfer employees from branches to be
sold prior to closing
" Lease consents
(Y) Transferee must obtain (shared expense)
" Expenses
(Y) Each party pays its own expenses
" MAC Clause
(Y) None
" Representations and Warranties
(Y) Deposits (yes)
(Y) Loans (yes)
(Y) Facilities (no)
(Y) Other customary representations (yes)
" Transferee communication with employees, customers
(Y) Same access as transferor
" Closing
(Y) Transferee must close by later of (i) 120 days after close of
transferor acquisition of Dime and (ii) receipt of regulatory approvals
(and expiration of waiting period)
(Y) Transferee pays servicing fee from and after 120th day after transferor
acquisition of Dime
(Y) N.Y. State transfer taxes shared equally
" Ordinary course operations covenant
" Purchase price allocation to be mutually agreed
<PAGE>
EXHIBIT E
CONDITIONS TO OFFER
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Agreement.
(1) there being validly tendered and not withdrawn prior to the
expiration of the Offer that number of shares of Dime Common
Stock which, together with the shares of Dime Common Stock
beneficially owned by the Company for its own account,
constitutes a majority of the shares of Dime Common Stock
outstanding on a fully diluted basis;
(2) the stockholders of Dime not having approved and adopted the Dime
Merger Agreement in satisfaction of Section 251 of the DGCL;
(3) the Company being satisfied, in its sole judgment, that the Dime
Merger Agreement has been validly terminated, and Dime having
entered into a definitive merger agreement with the Company to
provide for the acquisition of Dime pursuant to the Offer and the
Proposed Dime Merger;
(4) approval of the issuance of shares of Common Stock pursuant to
the Offer by the requisite vote of holders of Common Stock under
applicable NYSE rules;
(5) the Company being satisfied, in its sole judgment, that the Dime
Stockholder Protection Rights Plan is inapplicable to the Offer
and the Proposed Dime Merger;
(6) the Company being satisfied, in its sole judgment, that the
provisions of Section 203 of the DGCL are inapplicable to the
Offer and the Proposed Dime Merger;
(7) all regulatory approvals required to consummate the Offer and the
Proposed Dime Merger having been obtained and remaining in full
force and effect without the imposition of any condition or
restriction that would be materially adverse to the Company and
Dime on a combined basis, and all statutory waiting periods in
respect thereof having expired;
(8) the termination of the Stock Option Agreement, dated as of
September 16, 1999 between Hudson and Dime and the surrender to
Dime of the option issued by Dime to Hudson thereunder for an
amount not to exceed $50 million in cash;
(9) Dime not having entered into or effectuated any agreement or
transaction with any person or entity having the effect of
impairing the Company's ability to acquire Dime or otherwise
diminishing the expected economic value to the Company of the
acquisition of Dime;
(10) the shares of Common Stock which shall be issued to Dime
stockholders in the Offer and the Proposed Dime Merger have been
authorized for listing on the NYSE, subject to official notice of
issuance;
(11) the registration statement covering the shares to be issued in
the Offer shall have become effective under the Securities Act,
and no stop order suspending the effectiveness of the
registration statement shall have been issued nor shall there
have been proceedings for that purpose initiated or threatened by
the SEC, and the Company shall have received all necessary state
securities law or "blue sky" authorizations;
(12) no temporary restraining order, preliminary or permanent
injunction or other order or decree issued by any court or agency
of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the Offer or any of the other
transactions contemplated by the prospectus relating to the Offer
shall be in effect; no statute, rule, regulation, order,
injunction or decree shall have been enacted, entered,
promulgated or enforced by any Governmental Entity which
prohibits, restricts or makes illegal the consummation of the
Offer or the Proposed Dime Merger;
(13) there shall not be pending any suit, action or proceeding by any
Governmental Entity (a) challenging the Offer, seeking to
restrain or prohibit the consummation of the Offer or seeking to
obtain from Dime or the Company any damages that are material in
relation to Dime and its subsidiaries taken as a whole, (b)
seeking to prohibit or limit the ownership or operation by Dime
or the Company or any of the Company's subsidiaries of any
material portion of the business or assets of Dime or the Company
or any of the Company's subsidiaries or to compel Dime or the
Company or any of the Company's subsidiaries, to dispose of or
hold separate any material portion of the business or assets of
Dime or the Company or any of the Company's subsidiaries, as a
result of the Offer, (c) seeking to prohibit the Company from
effectively controlling in any material respect the business or
operations of Dime or (d) which otherwise is reasonably likely to
have a material adverse effect on the Company or Dime;
(14) the representations and warranties of Dime in the Dime Merger
Agreement shall be true and correct (without giving effect to any
qualification as to "materiality" or "Material Adverse Effect"
set forth therein) as of the date of the prospectus relating to
the Offer and as of the expiration date of the Offer as though
made on and as of the date of such prospectus and such expiration
date except where the failure of such representations and
warranties to be so true and correct would not reasonably be
expected to have, individually or in the aggregate, a material
adverse effect on Dime.
