SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
-------------------
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
-------------------
ASTORIA FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 11-3170868
(State of incorporation or organization) (I.R.S. Employer Identification No.)
ONE ASTORIA FEDERAL PLAZA, LAKE SUCCESS, NEW YORK 11042-1085
(Address of principal executive offices)
-------------------
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Title of each class Name of each exchange on which
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
- - ------------------- ------------------------------
NONE NOT APPLICABLE
-------------------
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check the
following box: [ ]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box: [ ]
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
PREFERRED SHARE PURCHASE RIGHTS
(Title of Class)
<PAGE>
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
IN GENERAL.
On July 17, 1996, the Board of Directors of Astoria Financial
Corporation (the "Corporation") declared a dividend of one preferred share
purchase right (the "Right") for each outstanding share of common stock, par
value $.01 per share (the "Common Shares"), of the Corporation. The dividend is
payable on September 3, 1996 (the "Record Date") to the stockholders of record
on that date. Each Right entitles the registered holder to purchase from the
Corporation one one-hundredth interest in a share of Series A Junior
Participating Preferred Stock, par value $.01 per share (the "Preferred
Shares"), of the Corporation, at a price of $100.00 per one one-hundredth
interest in a Preferred Share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement, as the
same may be amended from time to time (the "Rights Agreement") dated as of July
17, 1996 between the Corporation and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent (the "Rights Agent").
DISTRIBUTION DATE.
Until the date on which certain events take place (the "Distribution
Date"), the Rights will be evidenced by, with respect to any Common Share
certificate outstanding on the Record Date, such Common Share certificate with a
copy of this Summary of Rights attached thereto. The term "Distribution Date"
means the earlier of (a) the 20th business day following a public announcement
that a person or group of affiliated or associated persons has acquired
beneficial ownership of 10% or more of the outstanding Common Shares
(collectively, an "Acquiring Person") or (b) the 20th business day (or such
later date as may be determined by the Board of Directors of the Corporation)
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of affiliated or associated persons of 10% or
more of such outstanding Common Shares.
TRANSFER OF RIGHTS AND CERTIFICATES.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Share certificates issued after the Record Date upon transfer or new
issuance of Common Shares will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date, even without such notation or a
copy of this Summary of Rights being attached thereto, will also constitute the
transfer of the Rights associated with the Common Shares represented by such
certificate. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights (the "Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date, and such separate Right Certificates alone will evidence the
Rights.
<PAGE>
EXERCISE PERIOD.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on the Final Expiration Date, unless the Final Expiration
Date is extended, or the Rights are earlier redeemed by the Corporation. The
term "Final Expiration Date" is defined in the Rights Agreement and generally
means September 3, 2006.
ADJUSTMENTS.
(a) The Purchase Price payable, and the number of interests in
Preferred Shares or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Shares, (ii) upon the grant to holders of the
Preferred Shares of certain rights or warrants to subscribe for or purchase
Preferred Shares at a price, or securities convertible into Preferred Shares
with a conversion price, less than the then current market price of the
Preferred Shares or (iii) upon the distribution to holders of the Preferred
Shares of evidences of indebtedness or assets (excluding regular periodic cash
dividends paid out of earnings or retained earnings or dividends payable in
Preferred Shares) or of subscription rights or warrants (other than those
referred to above).
(b) The number of outstanding Rights and the number of one
one-hundredth interests in Preferred Shares issuable upon exercise of each Right
are also subject to adjustment in the event of a stock split of the Common
Shares or a stock dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common Shares occurring, in
any such case, prior to the Distribution Date.
(c) With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. No fractional Preferred Shares will be issued (other
than fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Corporation, be evidenced by depositary
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
PREFERRED SHARES.
(a) Interests in Preferred Shares purchasable upon exercise of the
Rights will not be redeemable. Each Preferred Share will be entitled to a
minimum preferential quarterly dividend payment of $1 per share but will be
entitled to an aggregate dividend of 100 times the dividend declared per Common
Share. In the event of liquidation, the holders of the interests in Preferred
Shares will be entitled to a minimum preferential liquidation payment of $100
per share but will be entitled to an aggregate payment of 100 times the payment
made per Common Share. Each Preferred Share will have 100 votes, voting together
with the Common Shares. Finally, in the event of any merger, consolidation or
other transaction in which Common Shares are exchanged, each Preferred Share
will be entitled to receive 100 times the amount received per Common Share.
These rights are protected by customary antidilution provisions.
<PAGE>
(b) Because of the nature of the Preferred Shares' dividend,
liquidation and voting rights, the value of the one one-hundredth interest in a
Preferred Share purchasable upon exercise of each Right should approximate the
value of one Common Share.
EXERCISE OF RIGHTS FOR COMMON STOCK.
In the event that the Corporation is acquired in a merger or other
business combination transaction or 50% or more of its consolidated assets or
earning power is sold, proper provision will be made so that each holder of a
Right will thereafter have the right to receive, upon the exercise thereof at
the then current purchase price of the Right, that number of shares of common
stock of the acquiring company that at the time of such transaction will have a
market value of two times the purchase price of the Right. In the event that any
person becomes an Acquiring Person, proper provision shall be made so that each
holder of a Right, other than Rights beneficially owned by the Acquiring Person
(which will thereafter be void), will thereafter have the right to receive upon
exercise that number of Common Shares having a market value of two times the
purchase price of the Right.
OPTIONAL EXCHANGE OF RIGHTS.
At any time after a person or group of affiliated or associated
persons becomes an Acquiring Person and prior to the acquisition by such person
or group of persons of 50% or more of the outstanding Common Shares, the Board
of Directors of the Corporation may exchange the Rights (other than Rights owned
by such person or group which have become void), in whole or in part, at an
exchange ratio (subject to adjustment) of one Common Share per Right. At its
option, the Board may substitute interests in Preferred Shares (or shares of a
class or series of the Corporation's preferred stock having equivalent rights,
preferences and privileges) for Common Shares exchangeable for Rights at an
initial rate (subject to adjustment) of one one-hundredth interest in a
Preferred Share (or equivalent preferred share) for each Common Share.
REDEMPTION OF RIGHTS.
(a) At any time prior to the acquisition by a person or group of
affiliated or associated persons of beneficial ownership of 10% or more of the
outstanding Common Shares and up to 20 business days thereafter, the Board of
Directors of the Corporation may redeem the Rights in whole, but not in part, at
a price of $.01 per Right (the "Redemption Price").
(b) Immediately upon any redemption of the Rights, the right to exercise
the Rights will terminate, and the only right of the holders of Rights will be
to receive the Redemption Price.
<PAGE>
AMENDMENTS.
The terms of the Rights may be amended by the Board of Directors of
the Corporation without the consent of the holders of the Rights, including an
amendment to lower the threshold for exercisability of the rights to not less
than the largest percentage of the outstanding Common Shares then known to the
Corporation to be beneficially owned by any person or group of affiliated or
associated persons, provided that from and after such time as any person becomes
an Acquiring Person, the terms of the Rights may be amended only by resolution
of the Board adopted by a majority of Continuing Directors (which resolution is
effective only if Continuing Directors constitute a majority of the number of
directors in office).
RIGHTS PRIOR TO EXERCISE.
Until a Right is exercised, the holder thereof, as such, will have
no rights as a stockholder of the Corporation, including, without limitation,
the right to vote or to receive dividends.
DOCUMENTS AND EFFECT OF THIS SUMMARY.
A copy of the Rights Agreement specifying the terms of the Rights
(including as Exhibit B the Form of the Rights Certificate) is filed as an
exhibit to this Registration Statement and is incorporated herein by reference.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement.
ITEM 2. EXHIBITS.
The following exhibits are filed as a part of this Registration
Statement:
EXHIBIT NO. DESCRIPTION
----------- -----------
99.1 Certificate of Designations, Preferences and Rights
of Series A Junior Participating Preferred Stock
(included as Exhibit A to the Rights Agreement
filed herein as Exhibit 99.3)
99.2 Form of Rights Certificate (included as Exhibit B to
the Rights Agreement filed herein as Exhibit 99.3)
99.3 Rights Agreement, dated as of July 17, 1996, between
Astoria Financial Corporation and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent
99.4 Press Release, dated July 18, 1996
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
ASTORIA FINANCIAL CORPORATION
By: /s/ George L. Engelke, Jr.
-------------------------------
George L. Engelke, Jr.
President and Chief Executive
Officer
Dated: July 17, 1996
(SEE EXHIBIT A TO THE RIGHTS
AGREEMENT FILED HEREIN AS EXHIBIT 99.3)
(SEE EXHIBIT B TO THE RIGHTS
AGREEMENT FILED HEREIN AS EXHIBIT 99.3)
RIGHTS AGREEMENT
between
ASTORIA FINANCIAL CORPORATION
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., AS RIGHTS AGENT
Dated as of July 17, 1996
<PAGE>
TABLE OF CONTENTS
PAGE
Section 1. Certain Definitions........................................1
Section 2. Appointment of Rights Agent................................6
Section 3. Issue of Right Certificates................................6
Section 4. Form of Right Certificates.................................7
Section 5. Countersignature and Registration..........................8
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates...............................................8
Section 7. Exercise of Rights; Purchase Price; Expiration Date........9
Section 8. Cancellation and Destruction of Right Certificates........10
Section 9. Reservation and Availability of Capital Stock.............11
Section 10. Preferred Shares Record Date..............................11
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights..........................................11
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares....................................................18
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.............................................18
Section 14. Fractional Rights and Fractional Shares...................19
Section 15. Rights of Action..........................................20
Section 16. Agreement of Right Holders................................21
Section 17. Right Certificate Holder Not Deemed a Stockholder.........21
Section 18. Concerning the Rights Agent...............................21
Section 19. Merger or Consolidation or Change of Name of Rights Agent.22
Section 20. Terms and Conditions of Rights Agent's Appointment........23
Section 21. Change of Rights Agent....................................25
(i)
<PAGE>
PAGE
Section 22. Issuance of New Right Certificates........................26
Section 23. Redemption................................................26
Section 24. Exchange..................................................26
Section 25. Notice of Certain Events..................................28
Section 26. Notices...................................................28
Section 27. Supplements and Amendments................................29
Section 28. Successors................................................29
Section 29. Determinations and Actions by the Board of Directors......30
Section 30. Benefits of this Agreement................................30
Section 31. Severability..............................................30
Section 32. Governing Law.............................................30
Section 33. Counterparts..............................................31
Section 34. Descriptive Headings......................................31
Signatures ...........................................................32
Exhibit A - Form of Certificate of Designations, Preferences and Rights of
Series A Junior Participating Preferred Stock of Astoria Financial
Corporation
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preferred
Shares or Common Shares
(ii)
<PAGE>
RIGHTS AGREEMENT
This Rights Agreement ("Agreement"), is made as of the 17th day of
July, 1996, between Astoria Financial Corporation, a Delaware corporation,
having an office at One Astoria Federal Plaza, Lake Success, New York 11042-1085
(the "Corporation"), and ChaseMellon Shareholder Services, L.L.C., a corporation
organized under the laws of the State of New Jersey, with its principal office
at 85 Challenger Road, Overpeck Centre, Ridgefield Park, New Jersey 07660
("Rights Agent").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Corporation desires to
provide all stockholders of the Corporation with the opportunity to benefit from
the long-term prospects and value of the Corporation and to ensure that all
stockholders of the Corporation receive fair and equal treatment in the event of
any proposed takeover of the Corporation; and
WHEREAS, on July 17, 1996 the Board of Directors of the Corporation
has authorized and declared a dividend of one preferred share purchase right
("Right") for each Common Share (as such term is hereinafter defined) of the
Corporation outstanding at the close of business on September 3, 1996 (the
"Record Date"), each Right representing the right to purchase one one-hundredth
(subject to adjustment) interest in a Preferred Share (as such term is
hereinafter defined), upon the terms and subject to the conditions herein set
forth, and has further authorized and directed the issuance of one Right
(subject to adjustment) with respect to each Common Share that shall become
outstanding between the Record Date and the earliest of the Distribution Date,
the Redemption Date and the Final Expiration Date (as such terms are hereinafter
defined);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereby agree as follows:
Section 1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms have the
meanings indicated:
(a) ACQUIRING PERSON. The term "Acquiring Person" shall mean any
Person (as such term is hereinafter defined) who or which, together with
all Affiliates and Associates (as such terms are hereinafter defined) of
such Person, shall be the Beneficial Owner (as such term is hereinafter
defined) of 10% or more of the Common Shares (as such term is hereinafter
defined) of the Corporation then outstanding, but shall not include the
Corporation, any Subsidiary (as such term is hereinafter defined) of the
Corporation, any employee benefit plan of the Corporation or any
Subsidiary of the Corporation or any entity holding Common Shares for or
pursuant to the terms of any such plan. Notwithstanding the foregoing, no
Person shall become an "Acquiring Person" as the result of an acquisition
of Common Shares by the Corporation which, by reducing the number of
shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to 10% or more of the Common Shares of
the Corporation then outstanding; provided, however, that if a Person
becomes the Beneficial
<PAGE>
-2-
Owner of 10% or more of the Common Shares of the Corporation then
outstanding by reason of share purchases by the Corporation and shall,
after such share purchases by the Corporation, become the Beneficial Owner
of any additional Common Shares of the Corporation, then such Person shall
be deemed to be an "Acquiring Person" unless upon the consummation of the
acquisition of such additional Common Shares such Person does not own 10%
or more of the Common Shares then outstanding.
Notwithstanding the foregoing, if (i) a Person who would otherwise
be an "Acquiring Person" became such inadvertently (including, without
limitation, because (A) such Person was unaware that it beneficially owned
a percentage of Common Shares that would otherwise cause such Person to be
an "Acquiring Person," or (B) such Person was aware of the existence of
its Beneficial Ownership of Common Shares but had no actual knowledge of
the consequences of such Beneficial Ownership under this Agreement) and
without any intention of changing or influencing control of the
Corporation, but in no event if such Person beneficially owned or owns in
excess of 11% of the Common Shares of the Corporation then outstanding,
and if such Person as promptly as practicable, but in no event later than
ten (10) business days after becoming aware of such ownership of Common
Shares of the Corporation or of such consequences, divested or divests
itself of Beneficial Ownership of a sufficient number of Common Shares so
that such person would no longer be an "Acquiring Person," or (ii) the
Board of Directors of the Corporation otherwise determines in good faith
that a Person who would otherwise be an "Acquiring Person" became such
inadvertently, then such Person shall not be deemed to be or to have
become an "Acquiring Person" for any purposes of this Agreement.
(b) AFFILIATE. The term "Affiliate" (whether referred to as an
"affiliate" of, or a Person "affiliated" with, a specified Person) shall
mean a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, the Person specified.
(c) ASSOCIATE. The term "Associate," when used to indicate a
relationship with any Person, shall mean:
(i) any corporation or organization (other than the
Corporation or a Subsidiary of the Corporation) of which such
Person is an officer or partner or is, directly or indirectly,
either alone or together with one or more members of his
immediate family, the Beneficial Owner of 10% or more of any
class of equity securities;
(ii) any trust or other estate in which such Person has
a substantial beneficial interest or as to which such Person
serves as a trustee or in a similar fiduciary capacity; and
(iii) any relative or spouse of such Person or any
relative of such spouse, who has the same home as such Person
or who is a director or officer of the Corporation or any of
its Subsidiaries or Affiliates.
<PAGE>
-3-
(d) BENEFICIAL OWNER. A Person shall be deemed the "Beneficial
Owner" of and shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates
or Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire (whether
such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding (other than customary agreements with and
between underwriters and selling group members with respect to
a bona fide public offering of securities), or upon the
exercise of conversion rights, exchange rights, rights (other
than the Rights issued hereunder), warrants or options, or
otherwise; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange offer
made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or (B) the right to vote
pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security if
the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent
given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable Rules and Regulations promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and (2) is not also then reportable under the Exchange
Act on Schedule 13D under the Rules and Regulations of the
Securities and Exchange Commission (or any comparable or
successor reports); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any
of such Person's Affiliates or Associates has any agreement,
arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with
respect to a bona fide public offering of securities) for the
purpose of acquiring, holding, voting (except to the extent
contemplated by the proviso to Section 1(d)(ii)(B) hereof) or
disposing of any securities of the Corporation.
Notwithstanding the foregoing, none of the corporation's directors,
officers, employees or financial advisors shall be deemed to be the Beneficial
Owner of, or to beneficially own, any Common Shares owned by any other director,
officer, employee or financial advisor of the Corporation by virtue of such
persons acting in their capacities as such, including, without limitation, in
connection with any formulation and publication of the Board of Directors'
recommendation of a position, and any actions taken in furtherance thereof, with
respect to any acquisition proposal relating to the Corporation, any tender or
exchange offer for the Common Shares, or any solicitation of proxies with
respect to the Common Shares.
<PAGE>
-4-
(e) BUSINESS DAY. The term "Business Day" shall mean any day other
than a Saturday, a Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to
close.
(f) CLOSE OF BUSINESS. The term "Close of Business" on any given
date shall mean 5:00 P.M., New York City time, on such date; provided,
however, that if such date is not a Business Day it shall mean 5:00 P.M.,
New York City time, on the next succeeding Business Day.
(g) COMMON SHARES. The term "Common Shares" when used with reference
to the Corporation shall mean the shares of common stock, par value $.01
per share, of the Corporation. "Common Shares" when used with reference to
any Person other than the Corporation shall mean the capital stock (or
equity interest) with the greatest voting power of such other Person or,
if such other Person is a Subsidiary of another Person, the Person or
Persons that ultimately control such first-mentioned Person.
(h) CONTINUING DIRECTOR. The term "Continuing Director" shall mean
any member of the Board of Directors of the Corporation who is not an
officer, an Acquiring Person, is not affiliated with or an Associate of an
Acquiring Person and who either (1) was a member of the Board of Directors
prior to the Shares Acquisition Date or (2) was recommended for election
by a majority of the Continuing Directors in office at the time such
director was nominated for election.
(i) DISTRIBUTION DATE. The term "Distribution Date" shall have the
meaning set forth in Section 3 hereof.
(j) EXCHANGE ACT. The term "Exchange Act" shall have the meaning
set forth in Section 1(d) hereof.
(k) EXCHANGE RATIO. The term "Exchange Ratio" shall have the
meaning set forth in Section 24(a) hereof.
(l) FINAL EXPIRATION DATE. The term "Final Expiration Date" shall
have the meaning set forth in Section 7(a) hereof.
(m) NASDAQ. The term "NASDAQ" shall have the meaning set forth in
Section 11(a)(iv) hereof.
(n) PERSON. The term "Person" shall mean any individual, firm,
corporation, partnership, trust, association or other entity, and shall
include any successor (by merger or otherwise) of such entity.
(o) PREFERRED SHARES. The term "Preferred Shares" shall mean shares
of Series A Junior Participating Preferred Stock, par value $.01 per
share, of the Corporation having the rights and preferences set forth in
the form of Exhibit A hereto.
(p) PURCHASE PRICE. The term "Purchase Price" shall have the
meaning set forth in Section 4 hereof.
<PAGE>
-5-
(q) REDEMPTION DATE. The term "Redemption Date" shall have the
meaning set forth in Section 7(a) hereof.
(r) REDEMPTION PRICE. The term "Redemption Price" shall have the
meaning set forth in Section 23(b) hereof.
(s) RECORD DATE. The term "Record Date" shall mean the Close of
Business on September 3, 1996.
(t) RIGHT CERTIFICATE. The term "Right Certificate" shall have the
meaning set forth in Section 3 hereof having the characteristics set forth
in Exhibit B hereto.
(u) RULES AND REGULATIONS. The term "Rules and Regulations" shall
mean the applicable rules and regulations promulgated by the Securities
and Exchange Commission, or any applicable federal or state regulatory
agency or authority that has jurisdiction over the Corporation at the
relevant time.
(v) SECURITIES ACT. The term "Securities Act" shall have the
meaning set forth in Section 11(a)(iv) hereof.
(w) SECURITY. The term "Security" shall have the meaning set forth
in Section 11(d)(i) hereof.
(x) SHARES ACQUISITION DATE. The term "Shares Acquisition Date"
shall mean the first date of public announcement (which, for purposes of
this definition, shall include, without limitation, a report filed
pursuant to Section 13(d) of the Exchange Act) by the Corporation or an
Acquiring Person that an Acquiring Person has become such.
(y) SUBSIDIARY. The term "Subsidiary" of any Person shall mean any
corporation or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or
indirectly, by such Person.
(z) SUMMARY OF RIGHTS. The term "Summary of Rights" shall have the
meaning set forth in Section 3(c) hereof.
(aa) TRADING DAY. The term "Trading Day" shall mean a day on which
the principal national securities exchange on which the Security (as such
term is hereinafter defined) is listed or admitted to trading is open for
the transaction of business or, if the Security is not listed or admitted
to trading on any national securities exchange, a Business Day.
(bb) VOTING STOCK. The term "Voting Stock" shall mean (i) the Common
Shares of the Corporation and (ii) any other shares of capital stock of
the Corporation entitled to vote generally in the election of directors or
entitled to vote together with the Common Shares in respect of any merger,
consolidation, sale of all or substantially all of the Corporation's
assets, liquidation, dissolution or winding up.
<PAGE>
-6-
Section 2. APPOINTMENT OF RIGHTS AGENT.
The Corporation hereby appoints the Rights Agent to act as agent for
the Corporation in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Corporation may from time to
time appoint such co-Rights Agents as it may deem necessary or desirable upon
ten days' prior written notice to the Rights Agent. The Rights Agent shall have
no liability for or duty to supervise any such co-Rights Agent.
Section 3. ISSUE OF RIGHT CERTIFICATES.
(a) From the date hereof until, but not including, the Distribution
Date, (i) the Rights will be evidenced (subject to the provisions of Section
3(c) hereof) by the certificates for Common Shares registered in the names of
the holders thereof and not by separate Right Certificates, and (ii) the right
to receive Right Certificates will be transferable only in connection with the
transfer of Common Shares. As soon as practicable after the Distribution Date,
the Corporation will notify the Rights Agent of the occurrence of the
Distribution Date, and the Corporation will prepare and execute, the Rights
Agent will countersign, and the Corporation will send or cause to be sent (and
the Rights Agent will, if requested, at the Corporation's expense, send) by
first-class, insured, postage-paid mail, to each record holder of Common Shares
as of the Close of Business on the Distribution Date, at the address of such
holder shown on the records of the Corporation, a Right Certificate, in
substantially the form of Exhibit B hereto (a "Right Certificate"), evidencing
one Right (subject to adjustment) for each Common Share so held. As of the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
(b) For purposes of the foregoing, the Distribution Date shall be
the earlier of (i) the Close of Business on the twentieth Business Day after the
Shares Acquisition Date or (ii) the Close of Business on the twentieth Business
Day (or such later date as may be determined by the Board of Directors of the
Corporation by at least a majority of the Continuing Directors, in its sole
discretion) after the date of the commencement by any Person (other than the
Corporation, any Subsidiary of the Corporation, any employee benefit plan of the
Corporation or of any Subsidiary of the Corporation or any entity holding Common
Shares for or pursuant to the terms of any such plan) of, or of the first public
announcement of the intention of any Person (other than the Corporation, any
Subsidiary of the Corporation, any employee benefit plan of the Corporation or
of any Subsidiary of the Corporation or any entity holding Common Shares of the
Corporation for or pursuant to the terms of any such plan) to commence, a tender
or exchange offer the consummation of which would result in any Person becoming
the Beneficial Owner of Common Shares of the Corporation aggregating 10% or more
of the then outstanding Common Shares (including any such date that is after the
date of this Agreement and prior to the issuance of the Rights).
(c) On the Record Date, or as soon as practicable thereafter, the
Corporation will send a copy of a Summary of Rights to Purchase Preferred Shares
or Common Shares, in substantially the form of Exhibit C hereto (the "Summary of
Rights"), by first-class, postage-prepaid mail, to each record holder of Common
Shares as of the Close of Business on the Record Date, at the address of such
holder shown on the records of the Corporation. With respect to certificates for
Common Shares outstanding as of the Record Date, until the
<PAGE>
-7-
Distribution Date, the Rights will be evidenced by such certificates registered
in the names of the holders thereof together with a copy of the Summary of
Rights. Until the Distribution Date (or the earlier of the Redemption Date or
the Final Expiration Date), the surrender for transfer of any certificate for
Common Shares outstanding on the Record Date, with or without a copy of the
Summary of Rights, shall also constitute the transfer of the Rights associated
with the Common Shares represented thereby.
(d) Certificates for Common Shares that become outstanding
(including, without limitation, reacquired Common Shares referred to in this
paragraph (d)) after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration Date shall have
impressed on, printed on, written on or otherwise affixed to them the following
legend:
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between Astoria
Financial Corporation and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent, dated as of July 17, 1996, as the same may be
amended from time to time, (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices of Astoria
Financial Corporation. Under certain circumstances, as set forth in
the Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate.
Astoria Financial Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without charge after
receipt of a written request therefor. As described in the Rights
Agreement, Rights owned by any Person who is or becomes an Acquiring
Person (as defined in the Rights Agreement) and certain transferees
thereof shall become null and void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Common Shares represented by
such certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any such certificates shall also constitute the
transfer of the Rights associated with the Common Shares represented thereby. In
the event that the Corporation purchases or acquires any Common Shares after the
Record Date but prior to the Distribution Date, any Rights associated with such
Common Shares shall be deemed cancelled and retired so that the Corporation
shall not be entitled to exercise any Rights associated with the Common Shares
that are no longer outstanding. The Rights Agent shall deem any such Right
Certificates not outstanding if it has actual knowledge that they are owned by
the Corporation.
Section 4. FORM OF RIGHT CERTIFICATES.
The Right Certificates (and the form of election to purchase
Preferred Shares and the form of assignment printed on the reverse thereof)
shall be substantially in the form of Exhibit B hereto. The Right Certificates
shall be in machine printable format and in a form reasonably satisfactory to
the Rights Agent, and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as the Corporation
<PAGE>
-8-
may deem appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or with any
Rule or Regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Section 22 hereof, the Right
Certificates shall entitle the holders thereof to purchase such number of one
one-hundredth interests in a Preferred Share as shall be set forth therein at
the price per one one-hundredth interest in a Preferred Share set forth therein
(the "Purchase Price"), but the number of such one one-hundredth interests in a
Preferred Share and the Purchase Price shall be subject to adjustment as
provided herein.
Section 5. COUNTERSIGNATURE AND REGISTRATION.
(a) The Right Certificates shall be executed on behalf of the
Corporation by its Chairman of the Board, its President or any Vice President,
either manually or by facsimile signature, shall have affixed thereto the
Corporation's seal or a facsimile thereof and shall be attested by the Secretary
or an Assistant Secretary of the Corporation, either manually or by facsimile
signature. The Right Certificates shall be countersigned and dated by an
authorized signatory of the Rights Agent either manually or by facsimile
signature and shall not be valid for any purpose unless countersigned. In case
any officer of the Corporation who shall have signed any of the Right
Certificates shall cease to be such officer of the Corporation before
countersignature by the Rights Agent and issuance and delivery by the
Corporation, such Right Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Corporation with the same force and
effect as though the person who signed such Right Certificates had not ceased to
be such officer of the Corporation; and any Right Certificate may be signed on
behalf of the Corporation by any person who, at the actual date of the execution
of such Right Certificate, shall be a proper officer of the Corporation to sign
such Right Certificate, although at the date of the execution of this Rights
Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its designated office, books for registration and transfer
of the Right Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates and the date of
each of the Right Certificates. In case any authorized signatory of the Rights
Agent who shall have countersigned any of the Right Certificates shall cease to
be such signatory before delivery of the Right Certificates by the Corporation,
such Right Certificates, nevertheless, may be issued and delivered by the
Corporation with the same force and effect as though the person who
countersigned such Right Certificates had not ceased to be such signatory; and
any Right Certificate may be countersigned on behalf of the Rights Agent by any
person who, at the actual date of the countersignature of such Right
Certificate, shall be a proper signatory of the Rights Agent to countersign such
Right Certificate, although at the date of the execution of this Agreement any
such person was not such a signatory.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT
CERTIFICATES.
(a) Subject to the provisions of Section 14 hereof, at any time
after the Close of Business on the Distribution Date, and at or prior to the
Close of Business on the earlier of
<PAGE>
-9-
the Redemption Date or the Final Expiration Date, any Right Certificate or Right
Certificates (other than Right Certificates representing Rights that have become
void pursuant to Section 11(a)(ii) hereof or that have been exchanged pursuant
to Section 24 hereof) may be transferred, split up, combined or exchanged for
another Right Certificate or Right Certificates, entitling the registered holder
to purchase a like number of one one-hundredth interests in a Preferred Share as
the Right Certificate or Right Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Right Certificate or Right Certificates shall make such
request in writing delivered to the Rights Agent and shall surrender the Right
Certificate or Right Certificates to be transferred, split up, combined or
exchanged at the designated office of the Rights Agent, along with a signature
guarantee and such other and further documentation as the Rights Agent may
reasonably require. Thereupon the Rights Agent shall countersign and deliver to
the person entitled thereto a Right Certificate or Right Certificates, as the
case may be, as so requested from the holders of such Right Certificate. The
Corporation may require payment from the holders of Rights of a sum sufficient
to cover any tax or governmental charge that may be imposed in connection with
any transfer, split up, combination or exchange of Right Certificates.
(b) Upon receipt by the Corporation and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Right Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Corporation's or the
Rights Agent's request, reimbursement to the Corporation and the Rights Agent of
all reasonable expenses incidental thereto, and upon surrender of the Right
Certificate and a signature guarantee and such other and further documentation
as the Rights Agent may reasonably require to the Rights Agent and cancellation
of the Right Certificate if mutilated, the Corporation will make and deliver a
new Right Certificate of like tenor to the Rights Agent for countersignature and
delivery to the registered holder in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
Section 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE.
(a) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the designated office of the Rights Agent,
together with payment of the Purchase Price for each one one-hundredth interest
in a Preferred Share as to which the Rights are exercised, at or prior to the
earliest of (i) the Close of Business on September 3, 2006 (the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed as provided in
Section 23 hereof (the "Redemption Date") or (iii) the time at which such Rights
are exchanged as provided in Section 24 hereof. The Corporation shall provide
the Rights Agent with a prompt written notice of the occurrence of any of the
events provided for in this Section 7(a).
(b) The Purchase Price for each one one-hundredth interest in a
Preferred Share pursuant to the exercise of a Right shall initially be $100.00,
shall be subject to adjustment from time to time as provided in Sections 11 and
13 hereof and shall be payable in lawful money of the United States of America
in accordance with paragraph (c) below.
<PAGE>
-10-
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly executed, accompanied by
payment of the Purchase Price for the shares to be purchased and an amount equal
to any applicable transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof by certified check, cashier's
check or money order payable to the order of the Corporation, the Rights Agent
shall thereupon promptly (i) (A) requisition from any transfer agent of the
Preferred Shares certificates for the number of Preferred Shares to be
purchased, and the Corporation hereby irrevocably authorizes its transfer agent
to comply with all such requests, or (B) requisition from the depositary agent
depositary receipts representing interests in such number of one one-hundredth
interests in a Preferred Share as are to be purchased (in which case
certificates for the Preferred Shares represented by such receipts shall be
deposited by the transfer agent with the depositary agent), and the Corporation
hereby directs the depositary agent to comply with all such requests, (ii) when
appropriate, requisition from the Corporation the amount of cash to be paid in
lieu of issuance of fractional shares in accordance with Section 14 hereof,
(iii) after receipt of such certificates or depositary receipts, cause the same
to be delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder and (iv) when appropriate, after receipt, deliver such cash to or upon
the order of the registered holder of such Right Certificate. The provisions of
this Section 7(c) shall apply whenever cash or securities (such as Common
Shares) may be received in lieu of the Preferred Shares upon exercise of the
Rights and surrender of the Right Certificates.
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of Section 14 hereof.
(e) The Corporation covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued Preferred Shares
or any Preferred Shares held in its treasury, the number of Preferred Shares
that will be sufficient to permit the exercise in full of all outstanding Rights
in accordance with this Section 7.
Section 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES.
All Right Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the
Corporation or to any of its agents, be delivered to the Rights Agent for
cancellation or in cancelled form, or, if surrendered to the Rights Agent, shall
be cancelled by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Rights Agreement.
The Corporation shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any other Right
Certificate purchased or acquired by the Corporation otherwise than upon the
exercise thereof. The Rights Agent shall deliver all cancelled Right
Certificates to the Corporation, or shall, at the written request of the
Corporation, destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Corporation.
<PAGE>
-11-
Section 9. RESERVATION AND AVAILABILITY OF CAPITAL STOCK.
(a) The Corporation covenants and agrees that it will take all such
action as may be necessary to ensure that all Preferred Shares delivered upon
exercise of Rights (and, following the date on which a person becomes an
Acquiring Person, out of its authorized and unissued Common Shares and/or other
securities or out of its authorized and issued shares held in the treasury)
shall, at the time of delivery of the certificates for such Preferred Shares or
Common Shares (subject to payment of the Purchase Price), be duly authorized,
validly issued and fully paid and nonassessable shares.
(b) The Corporation further covenants and agrees that it will pay
when due and payable any and all federal and state transfer taxes and charges
which may be payable in respect of the issuance or delivery of the Right
Certificates or of any Preferred Shares or Common Shares upon the exercise of
Rights. The Corporation shall not, however, be required to pay any transfer tax
which may be payable in respect of any transfer or delivery of Right
Certificates to a person other than, or the issuance or delivery of certificates
or depositary receipts for the Preferred Shares or Common Shares in a name other
than that of, the registered holder of the Right Certificates evidencing Rights
surrendered for transfer, delivery or exercise or to issue or to deliver any
certificates or depositary receipts for Preferred Shares or Common Shares upon
the exercise of any Rights until any such tax shall have been paid (any such tax
being payable by the holder of such Right Certificates at the time of surrender)
or until it has been established to the Corporation's reasonable satisfaction
that no such tax is due.
Section 10. PREFERRED SHARES RECORD DATE.
Each person in whose name any certificate for Preferred Shares is
issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Shares represented thereby on, and
such certificate shall be dated, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Preferred Shares
transfer books of the Corporation are closed, such person shall be deemed to
have become the record holder of such shares on, and such certificate shall be
dated, the next succeeding Business Day on which the Preferred Shares transfer
books of the Corporation are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Right Certificate shall not be entitled to any rights
of a holder of Preferred Shares for which the Rights shall be exercisable,
including, without limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Corporation, except as provided
herein.
Section 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF SHARES OR
NUMBER OF RIGHTS.
The Purchase Price, the number of Preferred Shares or other
securities or interests therein covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this
Section 11.
<PAGE>
-12-
(a) (i) In the event the Corporation shall at any time after the
date of this Agreement (A) declare a dividend on the Preferred Shares
payable in Preferred Shares, (B) subdivide the outstanding Preferred
Shares, (C) combine the outstanding Preferred Shares into a smaller number
of Preferred Shares or (D) issue any shares of its capital stock in a
reclassification of the Preferred Shares (including any such
reclassification in connection with a consolidation or merger in which the
Corporation is the continuing or surviving corporation), except as
otherwise provided in this Section 11(a), the Purchase Price in effect at
the time of the record date for such dividend or of the effective date of
such subdivision, combination or reclassification, and the number and kind
of shares of capital stock or interests therein issuable on such date,
shall be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the aggregate
number and kind of shares of capital stock or interests therein which, if
such Right had been exercised immediately prior to such date and at a time
when the Preferred Shares transfer books of the Corporation were open,
such holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock or interests therein of
the Corporation issuable upon exercise of one Right.
(ii) Subject to Section 24 hereof, in the event any Person
shall become an Acquiring Person, each holder of a Right shall have the
right to receive, upon exercise thereof at a price equal to the then
current Purchase Price multiplied by the number of one one-hundredth
interests in a Preferred Share for which a Right is then exercisable
(regardless of whether the Right is then exercisable), in accordance with
the terms of this Agreement and in lieu of interests in Preferred Shares,
such number of Common Shares of the Corporation as shall equal the result
obtained by (A) multiplying the then current Purchase Price by the number
of one one-hundredth interests in a Preferred Share for which a Right is
then exercisable (regardless of whether the Right is then exercisable) and
dividing that product by (B) 50% of the then current per share market
price of the Corporation's Common Shares (determined pursuant to Section
11(d) hereof) on the date such Person became an Acquiring Person;
provided, however, that the Purchase Price and the number of Common Shares
so purchasable upon exercise of a Right shall, following the occurrence of
such event, be subject to further adjustment as appropriate in accordance
with Section 11(f) hereof. In the event that any Person shall become an
Acquiring Person and the Rights shall then be outstanding, the Corporation
shall not take any action (except as permitted under Sections 24 and 27
hereof) that would eliminate or diminish the benefits intended to be
afforded by the Rights, except as provided in Section 23(b) hereof.
Notwithstanding anything in this Agreement to the contrary, from and after
the time any Person becomes an Acquiring Person, any Rights that are or
were acquired or beneficially owned by such Acquiring Person (or any
Associate or Affiliate of such Acquiring Person) shall be void, and any
holder of such Rights shall thereafter have no right to exercise such
Rights under any provision of this Agreement. No Right Certificate shall
be issued pursuant to Section 3 hereof that represents Rights beneficially
owned by an Acquiring Person or any Associate or Affiliate thereof whose
Rights would be void pursuant to the preceding sentence; no Right
Certificate shall be issued at any time upon the transfer of any Rights to
an Acquiring Person or any Associate or Affiliate thereof or to any
nominee of such Acquiring Person, Associate or Affiliate whose Rights
<PAGE>
-13-
would be void pursuant to the preceding sentence. Where a Right
Certificate is delivered to the Rights Agent for transfer to an Acquiring
Person or an Associate or Affiliate thereof, and the Rights Agent has
actual knowledge or has received notice from the Corporation that the
transferee is an Acquiring Person or an Associate or Affiliate thereof,
that Right Certificate shall be cancelled. The Rights Agent shall have no
liability for cancelling Right Certificates so delivered for transfer.
(iii) In the event that there shall not be sufficient Common
Shares issued but not outstanding or authorized but unissued to permit the
exercise in full of the Rights in accordance with the foregoing
subparagraph (ii) of this paragraph (a), (A) the Corporation shall take
all such action as may be necessary to authorize additional Common Shares
for issuance upon exercise of the Rights or (B) the Corporation, at its
option, notwithstanding any other provision of this Agreement, with
respect to each Right, to the extent permitted by applicable law and any
agreements or instruments in effect on the Distribution Date to which the
Corporation is a party, upon exercise of the Rights, may pay cash and/or
securities equal to the Purchase Price per Right, in lieu of issuing such
additional Common Shares and requiring payment therefor. To the extent
that any legal or contractual restrictions prevent the Corporation from
paying the full amount of cash and/or securities payable in accordance
with the foregoing sentence, the Corporation shall pay to holders of the
Rights as to which such payments are being made all amounts which are not
then restricted on a pro rata basis. The Corporation shall continue to
make payments on a pro rata basis as funds become available until such
payments have been paid in full. The Corporation shall provide the Rights
Agent with written notice of any election made pursuant to this Section
11(a)(iii).
(iv) In the event that the Rights become exercisable or
exchangeable under the provisions of this Agreement, the Corporation
covenants and agrees to use its best efforts to (A) cause a registration
statement under the Securities Act of 1933, as amended (the "Securities
Act"), or, if the Securities Act is not applicable, under the comparable
federal or state securities laws applicable to the Common Shares and
Preferred Shares, as in effect on the date in question, and under the
applicable Rules and Regulations thereunder, on an appropriate form, with
respect to the shares purchasable upon exercise of the Rights or
exchangeable for such Rights, to remain effective (with a prospectus or
offering circular at all times meeting the requirements of the Securities
Act or any other applicable federal or state law) until the Final
Expiration Date; (B) qualify or register the Common Shares or Preferred
Shares purchasable upon exercise of the Rights under the blue sky laws of
such jurisdictions as may be necessary or appropriate; and (C) list the
shares purchasable upon exercise of the Rights on each national securities
exchange on which shares of the same class or series were listed prior to
exercisability of the Rights or, if such shares are not listed or admitted
to the trading on any national securities exchange, with the National
Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ") or such other system then in use. The Corporation covenants and
agrees to bear the full cost of any registration, qualification or listing
required under this Section 11(a)(iv).
(b) In case the Corporation shall fix a record date for the issuance
of rights, options or warrants to all holders of Preferred Shares
entitling them (for a period expiring within 45 calendar days after such
record date) to subscribe for or purchase
<PAGE>
-14-
Preferred Shares (or shares having the same rights, privileges and
preferences as the Preferred Shares ("equivalent preferred shares")) or
securities convertible into Preferred Shares or equivalent preferred
shares at a price per Preferred Share or equivalent preferred share (or
having a conversion price per share, if a security convertible into
Preferred Shares or equivalent preferred shares) less than the then
current per share market price of the Preferred Shares (as defined in
Section 11(d) hereof) on such record date, the Purchase Price to be in
effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of Preferred Shares
outstanding on such record date plus the number of Preferred Shares which
the aggregate offering price of the total number of Preferred Shares
and/or equivalent preferred shares so to be offered (and/or the aggregate
initial conversion price of the convertible securities so to be offered)
would purchase at such current market price and the denominator of which
shall be the number of Preferred Shares outstanding on such record date
plus the number of additional Preferred Shares and/or equivalent preferred
shares to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible);
provided, however, that in no event shall the consideration to be paid
upon the exercise of one Right be less than the aggregate par value of the
shares of capital stock or interests therein of the Corporation issuable
upon exercise of one Right. In case such subscription price may be paid in
a consideration part or all of which shall be in a form other than cash,
the value of such consideration shall be as determined in good faith by
the Board of Directors of the Corporation by at least a majority of the
Continuing Directors, whose determination shall be described in a
statement filed with the Rights Agent and binding upon the Rights Agent
and the holders of the Rights. Preferred Shares owned by or held for the
account of the Corporation shall not be deemed outstanding for the purpose
of any such computation. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such rights,
options or warrants are not so issued, the Purchase Price shall be
adjusted to be the Purchase Price that would then be in effect if such
record date had not been fixed.
(c) In case the Corporation shall fix a record date for the making
of a distribution to all holders of the Preferred Shares (including any
such distribution made in connection with a consolidation or merger in
which the Corporation is the continuing or surviving corporation) of
evidences of indebtedness or assets (other than a regular quarterly cash
dividend or a dividend payable in Preferred Shares) or subscription rights
or warrants (excluding those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date shall be determined
by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the then
current per share market price of the Preferred Shares on such record
date, less the fair market value (as determined in good faith by the Board
of Directors of the Corporation by at least a majority of the Continuing
Directors, whose determination shall be described in a statement filed
with the Rights Agent and binding upon the Rights Agent and the holders of
the Rights) of the portion of the assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants applicable to
one Preferred Share and the denominator of which shall be such current per
share market price of the Preferred Shares; provided, however, that in no
event shall the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital stock (or
interests therein) of the Corporation to be issued upon exercise
<PAGE>
-15-
of one Right. Such adjustments shall be made successively whenever such a
record date is fixed; and in the event that such distribution is not so
made, the Purchase Price shall again be adjusted to be the Purchase Price
that would then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the "current
per share market price" of any security (a "Security" for the purpose of
this Section 11(d)(i)) on any date shall be deemed to be the average of
the daily closing prices per share of such Security for the 30 consecutive
Trading Days immediately prior to such date; provided, however, that in
the event that the current per share market price of the Security is
determined during a period following the announcement by the issuer of
such Security of (A) a dividend or distribution on such Security payable
in shares of such Security or securities convertible into such shares, or
(B) any subdivision, combination or reclassification of such Security and
prior to the expiration of 30 Trading Days after the exdividend date for
such dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the current
per share market price shall be appropriately adjusted to reflect the
current market price per share equivalent of such Security. The closing
price for each day shall be the last sale price, regular way, or, in case
no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the
Security is not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national
securities exchange on which the Security is listed or admitted to trading
or, if the Security is not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in use, or, if on
any such date the Security is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Security selected by the Board of
Directors of the Corporation.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Shares shall be
determined in accordance with the method set forth in Section 11(d)(i)
hereof. If the Preferred Shares are not publicly traded, the "current per
share market price" of the Preferred Shares shall be conclusively deemed
to be the current per share market price of the Common Shares as
determined pursuant to Section 11(d)(i) hereof (appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring
after the date hereof), multiplied by 100. If neither the Common Shares
nor the Preferred Shares are publicly held or so listed or traded,
"current per share market price" shall mean the fair value per share as
determined in good faith by the Board of Directors of the Corporation,
whose determination shall be described in a statement filed with the
Rights Agent and binding upon the Rights Agent and the holders of the
Preferred Shares.
(e) No adjustment in the Purchase Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
the Purchase Price; provided, however, that any adjustments that by reason
of this Section 11(e) are not
<PAGE>
-16-
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be
made to the nearest cent or to the nearest one one-millionth interest in a
Preferred Share or one ten-thousandth interest in any other share or
security as the case may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11 shall be made no
later than the earlier of (i) three years from the date of the transaction
that requires such adjustment or (ii) the date of the expiration of the
right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right thereafter exercised shall become entitled
to receive any shares of capital stock of the Corporation other than
Preferred Shares or interests therein, thereafter the Purchase Price and
the number of such other shares so receivable upon exercise of any Right
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
Preferred Shares contained in Sections 11(a), (b), (c), (e), (h), (i) and
(m) hereof, as applicable, and the provisions of Sections 7, 9, 10, 13 and
14 hereof with respect to the Preferred Shares shall apply on like terms
to any such other shares. The Corporation shall provide the Rights Agent
with prompt written notice of any such election to utilize other
securities, the type of securities and the exchange ratio of Right
Certificates therefor.
(g) All Rights originally issued by the Corporation subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the
right to purchase, at the adjusted Purchase Price, the number of one
one-hundredth interests in a Preferred Share purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment
as provided herein.
(h) Unless the Corporation shall have exercised its election as
provided in Section 11(i) hereof, upon each adjustment of the Purchase
Price as a result of the calculations made in Sections 11(b) and (c)
hereof, each Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at the
adjusted Purchase Price, that number of one one-hundredth interests in a
Preferred Share (calculated to the nearest one one-millionth interest in a
Preferred Share) obtained by (i) multiplying (x) the number of one
one-hundredths interests covered by a Right immediately prior to this
adjustment by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Corporation may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of Rights, in substitution for
any adjustment in the number of one one-hundredth interests in a Preferred
Share purchasable upon the exercise of a Right. Each of the Rights
outstanding after such adjustment of the number of Rights shall be
exercisable for the number of one one-hundredth interests in a Preferred
Share for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the
nearest one ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase
Price. The
<PAGE>
-17-
Corporation shall make a public announcement of its election to adjust the
number of Rights and shall simultaneously provide the Rights Agent with
written notice of such election to adjust, which announcement and notice
shall indicate the record date for the adjustment and, if known at the
time, the amount of the adjustment to be made. This record date may be the
date on which the Purchase Price is adjusted or any day thereafter but, if
the Right Certificates have been issued, shall be at least 10 days later
than the date of the public announcement. If Right Certificates have been
issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Corporation shall, as promptly as practicable, cause to
be distributed to holders of record of Right Certificates on such record
date Right Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a result of
such adjustment or, at the option of the Corporation, shall cause to be
distributed to such holders of record in substitution and replacement for
the Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof along with a signature guarantee
and such other and further documentation as the Rights Agent may
reasonably require, if required by the Corporation, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after
such adjustment. The Corporation shall provide the Rights Agent with
written notice of the occurrence of any distribution effected pursuant to
the foregoing. Right Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein and shall be
registered in the names of the holders of record of Right Certificates on
the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of one one-hundredth interests in a Preferred Share issuable
upon the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and the
number of one one-hundredth interests in a Preferred Share that were
expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below one one-hundredth of the then par value, if any,
of the Preferred Shares issuable upon exercise of the Rights, the
Corporation shall take any corporate action that may, in the opinion of
its counsel, be necessary in order that the Corporation may validly and
legally issue fully paid and nonassessable Preferred Shares at such
adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Corporation may elect to defer until the occurrence
of such event the issuing to the holder of any Right exercised after such
record date of the Preferred Shares and other capital stock or securities
of the Corporation, if any, issuable upon such exercise over and above the
Preferred Shares and other capital stock or securities of the Corporation,
if any, issuable upon such exercise on the basis of the Purchase Price in
effect prior to such adjustment; provided, however, that the Corporation
shall deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment. The Corporation shall
give the Rights Agent prompt written notice of its election to defer the
issuance of Preferred Shares.
<PAGE>
-18-
(m) Anything in this Section 11 to the contrary notwithstanding, the
Corporation shall be entitled to make such reductions in the Purchase
Price, in addition to those adjustments expressly required by this Section
11, as and to the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision of the
Preferred Shares, issuance wholly for cash of any Preferred Shares at less
than the current market price, issuance wholly for cash of Preferred
Shares or securities that by their terms are convertible into or
exchangeable for Preferred Shares, dividends on Preferred Shares payable
in Preferred Shares or issuance of rights, options or warrants referred to
hereinabove in Section 11(b) hereof, hereafter made by the Corporation to
holders of its Preferred Shares shall not be taxable to such stockholders.
(n) In the event that at any time after the date of this Agreement
and prior to the Distribution Date, the Corporation shall (i) declare or
pay any dividend on the Common Shares payable in Common Shares or (ii)
effect a subdivision, combination or consolidation of the Common Shares
(by reclassification or otherwise than by payment of dividends in Common
Shares) into a greater or lesser number of Common Shares, then in any such
case (i) the number of one one-hundredth interests in a Preferred Share
purchasable after such event upon proper exercise of each Right shall be
determined by multiplying the number of one one-hundredth interests in a
Preferred Share so purchasable immediately prior to such event by a
fraction, the numerator of which is the number of Common Shares
outstanding immediately before such event and the denominator of which is
the number of Common Shares outstanding immediately after such event, and
(ii) each Common Share outstanding immediately after such event shall have
issued with respect to it that number of Rights that each Common Share
outstanding immediately prior to such event had issued with respect to it.
The adjustments provided for in this Section 11(n) shall be made
successively whenever such a dividend is declared or paid or such a
subdivision, combination or consolidation is effected.
Section 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
Whenever an adjustment is made as provided in Sections 11 and 13
hereof, the Corporation shall promptly (a) prepare a certificate setting forth
such adjustment, including, but not limited to, the adjusted Purchase Price and
a brief statement of the facts accounting for such adjustment, (b) file with the
Rights Agent and with each transfer agent for the Common Shares or the Preferred
Shares a copy of such certificate and (c) mail a brief summary thereof to each
holder of a Right Certificate in accordance with Section 25 hereof. The Rights
Agent may rely, and shall incur no liability for relying upon, the most recent
such certificate that it has received.
Section 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING
POWER.
In the event, directly or indirectly, at any time after a Person has
become an Acquiring Person, (a) the Corporation shall consolidate with, or merge
with and into, any other Person, (b) any Person shall consolidate with the
Corporation, or merge with and into the Corporation and the Corporation shall be
the continuing or surviving corporation of such merger and, in connection with
such merger, all or part of the Common Shares shall be changed into or exchanged
for stock or other securities of any other Person (or the Corporation) or cash
or any other property, or (c) the Corporation shall sell or otherwise transfer
(or one or more of its Subsidiaries shall sell or otherwise transfer), in one or
more transactions, assets or earning
<PAGE>
-19-
power aggregating 50% or more of the assets or earning power of the Corporation
and its Subsidiaries (taken as a whole) to any other Person other than the
Corporation or one or more of its wholly-owned Subsidiaries, then, and in each
such case, proper provision shall be made so that (i) each holder of a Right
(except as otherwise provided herein) shall thereafter have the right to
receive, upon the exercise thereof at a price equal to the then current Purchase
Price multiplied by the number of one one-hundredth interests in a Preferred
Share for which a Right is then exercisable, in accordance with the terms of
this Agreement, and in lieu of Preferred Shares, such number of Common Shares of
such other Person (including the Corporation as successor thereto or as the
surviving corporation) as shall equal the result obtained by (A) multiplying the
then current Purchase Price by the number of one one-hundredth interests in a
Preferred Share for which a Right is then exercisable and (B) dividing that
product by 50% of the then current per share market price of the Common Shares
of such other Person (determined pursuant to Section 11(d) hereof) on the date
of consummation of such consolidation, merger, sale or transfer; (ii) the issuer
of such Common Shares shall thereafter be liable for, and shall assume, by
virtue of such consolidation, merger, sale or transfer, all the obligations and
duties of the Corporation pursuant to this Agreement; (iii) the term
"Corporation" shall thereafter be deemed to refer to such issuer; and (iv) such
issuer shall take such steps (including, but not limited to, the reservation of
a sufficient number of its Common Shares in accordance with Section 9 hereof and
the making of payments in cash and/or securities equal to the Purchase Price in
accordance with Section 11(a)(iii) hereof) in connection with such consummation
as may be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the Common Shares
thereafter deliverable upon the exercise of the Rights. The Corporation shall
not consummate any such consolidation, merger, sale or transfer unless prior
thereto the Corporation and such issuer shall have executed and delivered to the
Rights Agent a supplemental agreement so providing. The prior written consent of
the Rights Agent must be obtained in connection with any such supplemental
agreement that alters the rights or duties of the Rights Agent. The Corporation
shall not enter into any transaction of the kind referred to in this Section 13
if at the time of such transaction there are any rights, warrants, instruments
or securities outstanding or any agreements or arrangements that, as a result of
the consummation of such transaction, would eliminate or substantially diminish
the benefits intended to be afforded by the Rights. The provisions of this
Section 13 shall similarly apply to successive mergers or consolidations or
sales or other transfers. The Rights Agent may rely, and shall be fully
protected in relying, on a certificate of the Corporation stating that the
provisions of this Section 13 have been fulfilled.
Section 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Corporation shall not be required to issue fractions of
Rights or to distribute Right Certificates that evidence fractional Rights. In
lieu of such fractional Rights, there shall be paid to the registered holders of
the Right Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this Section 14(a),
the current market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price for any
day shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way,
in either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange or, if the Rights are
<PAGE>
-20-
not listed or admitted to trading on the New York Stock Exchange, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Rights are listed or admitted to trading or, if the Rights are not listed or
admitted to trading on any national securities exchange, the last quoted price
or, if not so quoted, the average of the high bid and low asked prices in the
overthecounter market, as reported by NASDAQ or such other system then in use
or, if on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board of Directors of
the Corporation. If on any such date no such market maker is making a market in
the Rights, the fair value of the Rights on such date as determined in good
faith by the Board of Directors of the Corporation shall be used.
(b) The Corporation shall not be required to issue fractional
interests in Preferred Shares (other than fractional interests that are integral
multiples of one one-hundredth of a Preferred Share) upon exercise of the Rights
or to distribute certificates that evidence fractional interests in Preferred
Shares (other than fractions that are integral multiples of one one-hundredth of
a Preferred Share). Fractional interests in Preferred Shares in integral
multiples of one one-hundredth of a Preferred Share may, at the election of the
Corporation, be evidenced by depositary receipts, pursuant to an appropriate
agreement between the Corporation and a depositary selected by it; provided,
that such agreement shall provide that the holders of such depositary receipts
shall have all the rights, privileges and preferences to which they are entitled
as beneficial owners of the Preferred Shares represented by such depositary
receipts, and provided, further, that the Corporation shall notify the Rights
Agent of any such election pursuant to this Section 14(b). In lieu of fractional
interests in Preferred Shares that are not integral multiples of one
one-hundredth of a Preferred Share, the Corporation shall pay to the registered
holders of Right Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of one Preferred Share. For the purposes of this Section 14(b), the
current market value of a Preferred Share shall be the closing price of a
Preferred Share (as determined pursuant to the second sentence of Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of such
exercise.
(c) Upon accepting a Right, the holder of such Right expressly
waives such holder's right to receive any fractional Rights or any fractional
shares upon exercise of a Right (except as provided above).
Section 15. RIGHTS OF ACTION.
All rights of action in respect of this Agreement, excepting the
rights of action given to the Rights Agent under Section 18 hereof, are vested
in the respective registered holders of the Right Certificates (and, prior to
the Distribution Date, the registered holders of the Common Shares); and any
registered holder of any Right Certificate (or, prior to the Distribution Date,
of the Common Shares), without the consent of the Rights Agent or of the holder
of any other Right Certificate (or, prior to the Distribution Date, of the
Common Shares), may, in such holder's own behalf and for such holder's own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Corporation to enforce, or otherwise act in respect of, such
holder's right to exercise the Rights evidenced by such Right Certificate in the
manner provided in such Right Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that
<PAGE>
-21-
the holders of Rights would not have an adequate remedy at law for any breach of
this Agreement and will be entitled to specific performance of the obligations
under, and injunctive relief against actual or threatened violations of the
obligations of any Person subject to, this Agreement.
Section 16. AGREEMENT OF RIGHT HOLDERS.
Every holder of a Right, by accepting the same, consents and agrees
with the Corporation and the Rights Agent and with every other holder of a Right
that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the designated office of the Rights Agent, duly endorsed or accompanied
by a proper instrument of transfer along with a signature guarantee and
such other and further documentation as the Rights Agent may reasonably
require; and
(c) the Corporation and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the Distribution
Date, the associated Common Shares certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Right
Certificates or the associated Common Shares certificate made by anyone
other than the Corporation or the Rights Agent) for all purposes
whatsoever, and neither the Corporation nor the Rights Agent shall be
affected by any notice to the contrary.
Section 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER.
No holder, as such, of any Right Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of the Preferred
Shares or interests therein or any other securities of the Corporation that may
at any time be issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of the rights of a
stockholder of the Corporation or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in Section
25 hereof), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by such Right Certificate shall have been
exercised in accordance with the provisions hereof.
Section 18. CONCERNING THE RIGHTS AGENT.
(a) The Corporation agrees to pay to the Rights Agent such
compensation as shall be agreed to in writing between the Corporation and the
Rights Agent for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
other disbursements (including reasonable attorneys' disbursements) incurred in
the administration and execution of this Agreement and the exercise and
<PAGE>
-22-
performance of its duties hereunder. The Corporation also agrees to indemnify
the Rights Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, bad faith or willful misconduct on the part
of the Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement, including
reasonable attorneys' fees and expenses and the costs and expenses of defending
against any claim of liability in the premises. In no case will the Rights Agent
be liable for special, indirect, incidental or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits), even if the
Rights Agent has been advised of the possibility of such damages. Any liability
of the Rights Agent will be limited to the amount of fees paid by the
Corporation hereunder. This Section 18(a) shall survive the termination of this
Agreement.
(b) The Rights Agent shall be protected and shall incur no liability
for, or in respect of any action taken, suffered or omitted by it in connection
with, its administration of this Agreement in reliance upon any Right
Certificate or certificate for the Preferred Shares or Common Shares or for
other securities of the Corporation, instrument of assignment or transfer, power
of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, instructions or other paper or document believed by it
to be genuine and to be signed and executed by the proper person or persons and,
where necessary, verified or acknowledged, or otherwise upon the advice of
counsel as set forth in Section 20 hereof.
Section 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any corporation succeeding to
the stock transfer or corporate trust business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto, provided that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights Agent shall succeed
to the agency created by this Agreement and any of the Right Certificates shall
have been countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of the predecessor Rights Agent and deliver such
Right Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right Certificates
and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Right Certificates so countersigned; and in
case at that time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Right Certificates either
in its prior name or in its changed name; and in all such cases such Right
Certificates shall have the full force provided in the Right Certificates and in
this Agreement.
<PAGE>
-23-
Section 20. TERMS AND CONDITIONS OF RIGHTS AGENT'S APPOINTMENT.
The Rights Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, to all of which the
Corporation and the holders of Right Certificates, by their acceptance thereof,
shall be bound:
(a) The Rights Agent may consult with legal counsel of its selection
(who may be legal counsel for the Corporation), and the opinion of such
counsel shall be full and complete authorization and protection to the
Rights Agent as to any action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Corporation prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by any one of
the Chairman of the Board, the President, any Vice President, the
Treasurer or the Secretary of the Corporation and delivered to the Rights
Agent; and such certificate shall be full authorization to the Rights
Agent for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable only for its own negligence,
bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Right Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Corporation only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect
of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Corporation of any covenant or condition contained in this Agreement
or in any Right Certificate; nor shall it be responsible for any change in
the exercisability of the Rights (including the Rights becoming void
pursuant to Section 11(a)(ii) hereof) or any adjustment in the terms of
the Rights (including the manner, method or amount thereof) provided for
in Section 3, 11, 13, 23 or 24 hereof, or the ascertaining of the
existence of facts that would require any such change or adjustment
(except with respect to the exercise of Rights evidenced by Right
Certificates after actual notice that such change or adjustment is
required); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
Preferred Shares to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred Shares will, when issued, be
validly authorized and issued, fully paid and nonassessable.
<PAGE>
-24-
(f) The Corporation agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged
and delivered all such further and other acts, instruments and assurances
as may reasonably be required by the Rights Agent for the carrying out or
performance by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder and
certificates delivered pursuant to any provision hereof from the Chairman
of the Board, the Chief Executive Officer, the President, any Vice
President, the Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Corporation, and is authorized to apply to such
officers for advice or instructions in connection with its duties, and it
shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with such instructions of any such officer. An
application by the Rights Agent for instructions may set forth in writing
any action proposed to be taken or omitted by the Rights Agent with
respect to its duties and obligations under this Agreement and the date on
and/or after which such actions shall be taken, and the Rights Agent shall
not be liable for any action taken or omitted in accordance with a
proposal included in any such application on or after the date specified
therein (which date shall not be less than one Business Day after the
Corporation receives such application) without the consent of the
Corporation unless prior to taking or omitting such action, the Rights
Agent has received written instructions in response to such application
specifying the actions to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Corporation or become pecuniarily interested in
any transaction in which the Corporation may be interested, or contract
with or lend money to the Corporation or otherwise act as fully and freely
as though it were not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other capacity for the
Corporation or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Corporation resulting
from any such act, default, neglect or misconduct, provided reasonable
care was exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of its
rights if the Rights Agent shall have reasonable grounds for believing the
repayment of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it.
(k) In addition to the foregoing, the Rights Agent shall be
protected and shall incur no liability for, or in respect of, any action
taken or omitted by it in connection with its administration of this
Agreement in reliance upon (i) the proper execution of the certification
concerning beneficial ownership appended to the Form of Assignment and
<PAGE>
-25-
the Form of Election to Purchase included as part of Exhibit B hereto (the
"Certification"), unless the Rights Agent shall have actual knowledge
that, as executed, the Certification is untrue or (ii) the non-execution
or failure to complete the Certification including, without limitation,
any refusal to honor any otherwise permissible assignment or election by
reason of such nonexecution or failure.
(l) The Corporation agrees to give the Rights Agent prompt written
notice of any event or ownership that comes to the Corporation's attention
that would prohibit the exercise or transfer of the Rights Certificates.
Section 21. CHANGE OF RIGHTS AGENT.
The Rights Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon 30 days' notice in writing
mailed to the Corporation and, at the Corporation's expense, to each transfer
agent of the Common Shares or Preferred Shares by registered or certified mail,
and to the holders of the Right Certificates by first class mail. The
Corporation may remove the Rights Agent or any successor Rights Agent upon 30
days' notice in writing, mailed to the Rights Agent or successor Rights Agent,
as the case may be, and to each transfer agent of the Common Shares or Preferred
Shares by registered or certified mail, and to the holders of the Right
Certificates by first class mail. If the Rights Agent shall resign or be removed
or shall otherwise become incapable of acting, the Corporation shall appoint a
successor to the Rights Agent. If the Corporation shall fail to make such
appointment within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Right Certificate
(who shall, with such notice, submit his Right Certificate for inspection by the
Corporation), then the Corporation shall become the Rights Agent, and the
registered holder of any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Corporation or by such a court, shall be a
corporation or an affiliate thereof organized and doing business under the laws
of the United States or of the State of New York (or of any other state of the
United States so long as such corporation is authorized to do business as a
banking institution in the State of New York), in good standing, having an
office in the State of New York, that is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to supervision or
examination by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least $50
million. After appointment, the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Corporation shall file notice thereof in
writing with the predecessor Rights Agent and each transfer agent of the Common
Shares or Preferred Shares and mail a notice thereof in writing to the
registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
<PAGE>
-26-
Section 22. ISSUANCE OF NEW RIGHT CERTIFICATES.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Corporation may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by its Board of
Directors to reflect any adjustment or change in the Purchase Price and the
number or kind or class of shares or other securities or property purchasable
under the Right Certificates made in accordance with the provisions of this
Agreement.
Section 23. REDEMPTION.
(a) The Rights may be redeemed by action of the Board of Directors
of the Corporation pursuant to paragraph (b) of this Section 23 and shall not be
redeemed in any other manner. The Rights Agent shall be given written notice of
any such redemption.
(b) The Board of Directors of the Corporation may, at its option, at
any time prior to such time as any Person becomes an Acquiring Person and up to
the Distribution Date, redeem all but not less than all the then outstanding
Rights at a redemption price of $.01 per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring after
the date hereof (such redemption price being hereinafter referred to as the
"Redemption Price").
(c) Immediately upon the action of the Board of Directors of the
Corporation ordering the redemption of the Rights pursuant to paragraph (b) of
this Section 23, and without any further action and without any notice, the
right to exercise the Rights will terminate, and the only right thereafter of
the holders of Rights shall be to receive the Redemption Price. The Corporation
shall promptly give public notice of any such redemption; provided, however,
that the failure to give, or any defect in, any such notice shall not affect the
validity of such redemption. Within 10 days after such action of the Board of
Directors ordering the redemption of the Rights pursuant to Section 23(b)
hereof, the Corporation shall mail a notice of redemption to all the holders of
the then outstanding Rights at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Shares. Any notice that is
mailed in the manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption will state the method
by which the payment of the Redemption Price will be made.
Section 24. EXCHANGE.
(a) The Board of Directors of the Corporation may, at its sole
option, at any time after any Person becomes an Acquiring Person, exchange all
or part of the then outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to the provisions of Section 11(a)(ii)
hereof) for Common Shares at an exchange ratio of one Common Share per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio"). The Rights Agent shall be
given written notice of any such exchange and the Exchange Ratio pursuant to
which such exchange is effected. Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any time
<PAGE>
-27-
after any Person (other than the Corporation, any Subsidiary of the Corporation,
any employee benefit plan of the Corporation or any such Subsidiary or any
entity holding Common Shares for or pursuant to the terms of any such plan),
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50% or more of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Corporation ordering the exchange of any Rights pursuant to paragraph (a) of
this Section 24 and without any further action and without any notice, the right
to exercise such Rights shall terminate, and the only right thereafter of a
holder of such Rights shall be to receive that number of Common Shares equal to
the number of such Rights held by such holder multiplied by the Exchange Ratio.
The Corporation shall promptly give public notice of any such exchange, and the
Rights Agent shall be given written notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Corporation shall promptly mail a
notice of any such exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent for the
Common Shares. Any notice that is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice of
exchange will state the method by which the exchange of the Common Shares for
Rights will be effected and, in the event of any partial exchange, the number of
Rights that will be exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights that have become void pursuant
to the provisions of Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Corporation, at
its option, may substitute interests in Preferred Shares (or equivalent
preferred shares, as such term is defined in Section 11(b) hereof) for Common
Shares exchangeable for Rights, at the initial rate of one one-hundredth
interest in a Preferred Share (or equivalent preferred share) for each Common
Share, as appropriately adjusted to reflect adjustments in the voting rights of
the Preferred Shares pursuant to Section 3(a) of Exhibit A hereto so that the
fraction of a Preferred Share delivered in lieu of each Common Share shall have
the same voting rights as one Common Share. The Rights Agent shall be given
written notice of any such substitution.
(d) In the event that there shall not be sufficient Common Shares or
Preferred Shares issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24, (i)
the Corporation shall take all such action as may be necessary to authorize
additional Common Shares or Preferred Shares for issuance upon exchange of the
Rights or (ii) the Corporation, at is option, notwithstanding any other
provision of this Agreement, with respect to each Right, to the extent permitted
by applicable law and any agreements or instruments in effect on the
Distribution Date to which the Corporation is a party, upon exercise of the
Rights, may pay cash and/or securities equal to the Purchase Price per Right, in
lieu of issuing such additional Common Shares and requiring payment therefor. To
the extent that any legal or contractual restrictions prevent the Corporation
from paying the full amount of cash payable in accordance with the foregoing
sentence, the Corporation shall pay to holders of the Rights as to which such
payments are being made all amounts that are not then restricted on a pro rata
basis. The Corporation shall continue to make payments on a pro rata basis as
funds become available until such payments have been paid in full. The
Corporation shall provide the Rights Agent with written notice of any election
made pursuant to this Section 24(d).
<PAGE>
-28-
(e) The Corporation shall not be required to issue fractions of
Common Shares or to distribute certificates that evidence fractional Common
Shares. In lieu of such fractional Common Shares, the Corporation shall pay to
the registered holders of the Right Certificates with regard to which such
fractional Common Shares would otherwise be issuable an amount in cash equal to
the same fraction of the current market value of a whole Common Share. For the
purposes of this paragraph (e), the current market value of a whole Common Share
shall be the closing price of a Common Share (as determined pursuant to the
second sentence of Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24.
Section 25. NOTICE OF CERTAIN EVENTS.
(a) In case the Corporation shall propose (i) to pay any dividend
payable in stock of any class to the holders of its Preferred Shares or to make
any other distribution to the holders of its Preferred Shares (other than a
regular quarterly cash dividend), (ii) to offer to the holders of its Preferred
Shares rights or warrants to subscribe for or to purchase any additional
Preferred Shares or shares of stock of any class or any other securities, rights
or options, (iii) to effect any reclassification of its Preferred Shares (other
than a reclassification involving only the subdivision of outstanding Preferred
Shares), (iv) to effect any consolidation or merger into or with, or to effect
any sale or other transfer (or to permit one or more of its Subsidiaries to
effect any sale or other transfer), in one or more transactions, of 50% or more
of the assets or earning power of the Corporation and its Subsidiaries (taken as
a whole) to, any other Person, (v) to effect the liquidation, dissolution or
winding up of the Corporation or (vi) to declare or pay any dividend on the
Common Shares payable in Common Shares or to effect a subdivision, combination
or consolidation of the Common Shares (by reclassification or otherwise than by
payment of dividends in Common Shares), then, in each such case, the Corporation
shall give to each holder of a Right Certificate and the Rights Agent, in
accordance with Section 26 hereof, a notice of such proposed action, which shall
specify the record date for the purposes of such stock dividend, or distribution
of rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution or winding up is
to take place and the date of participation therein by the holders of the Common
Shares and/or Preferred Shares, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i) or (ii) above
at least 10 days prior to the record date for determining holders of the
Preferred Shares for purposes of such action, and in the case of any such other
action, at least 10 days prior to the date of the taking of such proposed action
or the date of participation therein by the holders of the Common Shares and/or
Preferred Shares, whichever shall be earlier.
(b) In case an event set forth in Section 11(a)(ii) hereof shall
occur, then the Corporation shall as soon as practicable thereafter give to each
holder of a Right Certificate and to the Rights Agent, in accordance with
Section 26 hereof, a notice of the occurrence of such event, which notice shall
describe the event and the consequences of the event to holders of Rights under
Section 11(a)(ii) hereof.
Section 26. NOTICES.
Notices or demands authorized by this Agreement to be given or made
by the Rights Agent or by the holder of any Right Certificate to or on the
Corporation, shall be
<PAGE>
-29-
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Rights Agent) as
follows:
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042-1085
Attention: President and
Chief Executive Officer
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Corporation or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Corporation) as follows:
ChaseMellon Shareholder Services, L.L.C.
85 Challenger Road
Overpeck Centre
Ridgefield Park, New Jersey 07660
Notices or demands authorized by this Agreement to be given or made by the
Corporation or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Corporation.
Section 27. SUPPLEMENTS AND AMENDMENTS.
The Corporation may, at any time prior to the time a Person becomes
an Acquiring Person, by resolution of its Board of Directors, from time to time
supplement or amend this Agreement without the approval of any holders of Right
Certificates in any respect, any such supplement or amendment to be evidenced by
a writing signed by the Corporation and the Rights Agent; provided, however,
that from and after such time as any Person becomes an Acquiring Person, this
Agreement may be amended only by resolution of its Board of Directors adopted by
a majority of the Continuing Directors (which resolution shall be effective only
if the Continuing Directors constitute a majority of the number of directors
then in office), and provided further, that the Rights Agent shall not be
required to consent to any amendment or supplement that is adverse to its
interests. Without limiting the foregoing, the Corporation may, at any time
prior to such time as any Person becomes an Acquiring Person, amend this
Agreement to lower the thresholds set forth in Sections 1(a) and 3(b) hereof to
not less than the largest percentage of the outstanding Common Shares then known
by the Corporation to be beneficially owned by any Person.
Section 28. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the
benefit of the Corporation or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
<PAGE>
-30-
Section 29. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS.
(a) The Board of Directors of the Corporation (including, where
specifically provided for herein, the Continuing Directors) shall have the
exclusive power and authority to administer this Agreement and to exercise all
rights and powers specifically granted to such Board of Directors (including,
where specifically provided for herein, the Continuing Directors) or to the
Corporation, or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to (i) interpret
the provisions of this Agreement and (ii) make all determinations deemed
necessary or advisable for the administration of this Agreement (including,
without limitation, a determination to redeem or not redeem the Rights or to
amend the Agreement). All such actions, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to the
foregoing) that are done or made by the Board of Directors of the Corporation or
the Continuing Directors in good faith, shall (x) be final, conclusive and
binding on the Corporation, the Rights Agent, the holders of the Rights and all
other parties and (y) not subject the Board of Directors of the Corporation (or
the Continuing Directors) to any liability to the holders of the Rights.
(b) In taking any action referred to in Section 29(a), the Board of
Directors and the Continuing Directors shall be entitled to consider, without
limitation, the financial and managerial resources and future prospects of an
Acquiring Person, the possible effects of the action on the business of the
Corporation and its Subsidiaries and on the employees, customers, suppliers and
creditors of the Corporation and its Subsidiaries and the effects on the
communities in which the Corporation's and its Subsidiaries' facilities are
located.
Section 30. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any person
or corporation other than the Corporation, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
Common Shares) any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Corporation, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares).
Section 31. SEVERABILITY.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
Section 32. GOVERNING LAW.
This Agreement and each Right Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Delaware and for all
purposes shall be governed by and construed in accordance with the laws of such
State applicable to contracts to be made and performed entirely within such
State.
<PAGE>
-31-
Section 33. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
Section 34. DESCRIPTIVE HEADINGS.
Descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
<PAGE>
-32-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and attested, all as of the day and year first above written.
ASTORIA FINANCIAL CORPORATION
By: /s/ George L. Engelke, Jr.
------------------------------
George L. Engelke, Jr.
President and Chief Executive
Officer
Attest:
By: /s/ William K. Sheerin
- - ----------------------------
William K. Sheerin
Secretary
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., as Rights Agent
By: /s/ Nathan L. Hill
-----------------------
Nathan L. Hill
Assistant Vice President
Attest:
By: /s/ James E. Hagan
- - ------------------------
James E. Hagan
Team Leader
<PAGE>
EXHIBIT A
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
ASTORIA FINANCIAL CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
--------------------------
We, George L. Engelke, Jr., and William K. Sheerin, being the
President and Chief Executive Officer and the Secretary, respectively, of
Astoria Financial Corporation, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), in
accordance with the provisions of Sections 103 and 151 thereof, DO HEREBY
CERTIFY:
That, pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation of the Corporation, the Board of
Directors of the Corporation at a meeting duly called and held on July 17, 1996,
at which a quorum was present and acting throughout, duly adopted the following
resolution creating a series of 325,000 shares of Preferred Stock, par value
$.01 per share, designated "Series A Junior Participating Preferred Stock":
RESOLVED, that pursuant to the authority vested in the Board
of Directors of the Corporation in accordance with the provisions of
its Certificate of Incorporation, a series of preferred stock of the
Corporation to be designated "Series A Junior Participating
Preferred Stock", par value $.01 per share ("Preferred Stock"), be,
and it hereby is, created, and the designations and amount thereof
and the voting powers, preferences and relative, participating,
optional and other special rights of the shares of such series, and
the qualifications, limitations and restrictions thereof, [are as
follows]:
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK:
Section 1. DESIGNATION AND AMOUNT.
The shares of such series shall be designated as "Series A Junior
Participating Preferred Stock," par value $.01 per share, and the number of
shares constituting such series shall be 325,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors of the
Corporation (the "Board of Directors"); provided, that no decrease shall reduce
the number of shares of Series A Junior Participating Preferred Stock to a
number
<PAGE>
-2-
less than the number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series A Junior Participating Preferred Stock.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the rights of the holders of any shares of any series
of preferred stock (or any similar stock) ranking prior and superior to the
Series A Junior Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred Stock, in
preference to the holders of Common Stock, par value $.01 per share (the "Common
Stock"), of the Corporation, and of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the first day
of March, June, September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $1 or
(b) subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Junior Participating Preferred Stock. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount to which
holders of shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Junior Participating Preferred Stock as provided in paragraph (a) of
this Section immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $1 per share
on the Series A Junior Participating Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
<PAGE>
-3-
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock in an amount less than
the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
Section 3. VOTING RIGHTS.
The holders of shares of Series A Junior Participating Preferred
Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Junior Participating Preferred Stock shall entitle
the holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the number
of votes per share to which holders of shares of Series A Junior
Participating Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(b) Except as otherwise provided herein, in any other resolution
creating a series of preferred stock or any similar stock, in any
amendment to the Certificate of Incorporation of the Corporation or by
law, the holders of shares of Series A Junior Participating Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote together
as one class on all matters submitted to a vote of stockholders of the
Corporation.
(c) Except as set forth herein, or as otherwise provided by law,
holders of Series A Junior Participating Preferred Stock shall have no
special voting rights and their
<PAGE>
-4-
consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably on the Series
A Junior Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such junior stock
in exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to
the Series A Junior Participating Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Junior Participating Preferred Stock, or any shares of
stock ranking on a parity with the Series A Junior Participating Preferred
Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after consideration
of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective
series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (a) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
<PAGE>
-5-
Section 5. REACQUIRED SHARES.
Any shares of Series A Junior Participating Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
preferred stock and may be reissued as part of a new series of preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in a
resolution of the Board of Directors, in the Certificate of Incorporation of the
Corporation, or in any other Certificate of Amendment creating a series of
preferred stock or any similar stock or as otherwise required by law.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
Upon any liquidation, dissolution or winding up of the Corporation,
no distribution shall be made (a) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series A Junior Participating Preferred Stock unless, prior thereto, the
holders of shares of Series A Junior Participating Preferred Stock shall have
received the greater of (i) $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment, or (ii) an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 100 times the aggregate amount to
be distributed per share to holders of shares of Common Stock, or (b) to the
holders of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior Participating
Preferred Stock, except distributions made ratably on the Series A Junior
Participating Preferred Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event under the proviso in clause (a) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC.
In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series A Junior Participating
Preferred Stock shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount of stock, securities, cash and/or any
other property
<PAGE>
-6-
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
Section 8. NO REDEMPTION.
The shares of Series A Junior Participating Preferred Stock shall
not be redeemable, except as otherwise provided herein.
Section 9. RANK.
The Series A Junior Participating Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets, junior to
all other series of the Corporation's preferred stock.
Section 10. AMENDMENT.
At any time that any shares of Series A Preferred Stock are
outstanding, the Certificate of Incorporation of the Corporation shall not be
amended in any manner, nor shall the Board of Directors take any action, which
would materially alter or change the powers, preferences or special rights of
the Series A Junior Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series A Junior Participating Preferred Stock, voting
together as a single class.
Section 11. FRACTIONAL SHARES.
Series A Junior Participating Preferred Stock may be issued in
fractions of a share, which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Junior Participating Preferred Stock.
<PAGE>
-7-
IN WITNESS WHEREOF, Astoria Financial Corporation has caused this
certificate to be executed by its President and Chief Executive Officer and by
its Secretary this 17th day of July, 1996.
ASTORIA FINANCIAL CORPORATION
By:
--------------------------------
George L. Engelke, Jr.
President and Chief Executive
Officer
By:
--------------------------------
William K. Sheerin
Secretary
<PAGE>
EXHIBIT B
Form of Right Certificate
Certificate No. R- ____Rights
NOT EXERCISABLE AFTER SEPTEMBER 3, 2006, OR, IF EARLIER, IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION
AT $.01 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. ANY RIGHTS BENEFICIALLY OWNED BY OR TRANSFERRED TO
AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE THEREOF OR ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME VOID AND WILL NO LONGER
BE TRANSFERABLE.
Right Certificate
ASTORIA FINANCIAL CORPORATION
This certifies that ___________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of July 17, 1996, as the same may be amended from time to
time (the "Rights Agreement"), by and between Astoria Financial Corporation, a
Delaware corporation (the "Corporation"), and ChaseMellon Shareholder Services,
L.L.C., a New Jersey banking corporation (the "Rights Agent"), to purchase from
the Corporation at any time after the Distribution Date (as such term is defined
in the Rights Agreement) and prior to 5:00 P.M., New York City time, on
September 3, 2006 at the designated office of the Rights Agent, or at the office
of its successor as Rights Agent, one one-hundredth interest in a fully paid
non-assessable share of Series A Junior Participating Preferred Stock, par value
$.01 per share (the "Preferred Shares"), of the Corporation, at a purchase price
of $100.00 per one one-hundredth interest in a Preferred Share (the "Purchase
Price"), upon presentation and surrender of this Right Certificate with the Form
of Election to Purchase duly executed, along with a signature guarantee and such
other and further documentation as the Rights Agent may reasonably require. The
number of Rights evidenced by this Right Certificate (and the number of one
one-hundredths interests in Preferred Shares that may be purchased upon exercise
hereof) set forth above, and the Purchase Price set forth above, are the number
and Purchase Price as of , , based on the Preferred Shares as constituted at
such date. As provided in the Rights Agreement, the Purchase Price and the
number of one one-hundredths interests in Preferred Shares that may be purchased
upon the exercise of the Rights
<PAGE>
-2-
evidenced by this Right Certificate are subject to modification and adjustment
upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Corporation and the holders of the Right Certificates. Copies
of the Rights Agreement are on file at the principal executive offices of the
Corporation and the above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates,
upon surrender at the designated office of the Rights Agent, along with a
signature guarantee and such other and further documentation as the Rights Agent
may reasonably require, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of interests in Preferred Shares as the Rights
evidenced by the Right Certificate or Right Certificates surrendered shall have
entitled such holder to purchase. If this Right Certificate shall be exercised
in part, the holder shall be entitled to receive upon surrender hereof another
Right Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be, and under certain circumstances are
required to be, redeemed by the Corporation at a redemption price of $.01 per
Right or (ii) may be exchanged in whole or in part for Preferred Shares or
shares of the Corporation's Common Stock, par value $.01 per share.
No fractional interests in Preferred Shares will be issued upon the
exercise of any Right or Rights evidenced hereby (other than fractional
interests that are integral multiples of one one-hundredth of a Preferred Share,
which may, at the election of the Corporation, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made, as provided in the
Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Corporation that may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Corporation or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
<PAGE>
-3-
WITNESS the facsimile signature of the proper officers of the
Corporation and its corporate seal. Dated as of _______________, ____.
ASTORIA FINANCIAL CORPORATION
By:
-------------------------------
George L. Engelke, Jr.
President and Chief Executive
Officer
Attest:
By:
------------------------------
Name:
Title:
Countersigned:
ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent
By:
-------------------------------
Authorized Signatory
Dated:______________, ______
<PAGE>
-4-
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer the Right Certificate.)
FOR VALUE RECEIVED _______________________ hereby sells, assigns and
transfers unto ________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ________________ Attorney, to
transfer the within Right Certificate on the books of Astoria Financial
Corporation with full power of substitution.
Dated:______________, 19__
______________________
Signature
Signature Guarantee:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the City of New York.
- - --------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
_____________________
Signature
- - --------------------------------------------------------------------------------
<PAGE>
-5-
[Form of Reverse Side of Right Certificate -- continued]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Right Certificate.)
To: Astoria Financial Corporation
The undersigned hereby irrevocably elects to exercise ______________
Rights represented by this Right Certificate to purchase the interests in
Preferred Shares issuable upon the exercise of such Rights and requests that
certificates for such interests in Preferred Shares be issued in the name of:
______________________________
______________________________
______________________________
(Please print name and address)
______________________________
(Please insert social security or
other taxpayer identification number)
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
______________________________
______________________________
______________________________
(Please print name and address)
______________________________
(Please insert social security or
other taxpayer identification number)
Dated:_______________, 19___
______________________________
Signature
Signature Guarantee:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the City of New York.
<PAGE>
-6-
[Form of Reverse Side of Right Certificate -- continued]
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
______________________________
Signature
- - --------------------------------------------------------------------------------
NOTICE
The signature in the foregoing Forms of Assignment and Election must
conform to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Corporation and the Rights Agent will deem the beneficial owner
of the Rights evidenced by this Right Certificate to be an Acquiring Person or
an Affiliate or Associate thereof (as defined in the Rights Agreement), and such
Assignment or Election to Purchase will not be honored.
<PAGE>
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES OR COMMON SHARES
ANY RIGHTS BENEFICIALLY OWNED BY OR TRANSFERRED TO AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE THEREOF OR ANY SUBSEQUENT HOLDER
OF SUCH RIGHTS MAY BECOME VOID AND WILL NO LONGER BE TRANSFERABLE.
1. IN GENERAL.
On July 17, 1996, the Board of Directors of Astoria Financial
Corporation (the "Corporation") declared a dividend of one preferred share
purchase right (the "Right") for each outstanding share of common stock, par
value $.01 per share (the "Common Shares"), of the Corporation. The dividend is
payable on September 3, 1996 (the "Record Date") to the stockholders of record
on that date. Each Right entitles the registered holder to purchase from the
Corporation one one-hundredth interest in a share of Series A Junior
Participating Preferred Stock, par value $.01 per share (the "Preferred
Shares"), of the Corporation, at a price of $100.00 per one one-hundredth
interest in a Preferred Share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement, as the
same may be amended from time to time (the "Rights Agreement") dated as of July
17, 1996 between the Corporation and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent (the "Rights Agent").
2. DISTRIBUTION DATE.
Until the date on which certain events take place (the "Distribution
Date"), the Rights will be evidenced by, with respect to any Common Share
certificate outstanding on the Record Date, such Common Share certificate with a
copy of this Summary of Rights attached thereto. The term "Distribution Date"
means the earlier of (a) the 20th business day following a public announcement
that a person or group of affiliated or associated persons has acquired
beneficial ownership of 10% or more of the outstanding Common Shares
(collectively, an "Acquiring Person") or (b) the 20th business day (or such
later date as may be determined by the Board of Directors of the Corporation)
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of affiliated or associated persons of 10% or
more of such outstanding Common Shares.
3. TRANSFER OF RIGHTS AND CERTIFICATES.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Share certificates issued after the Record Date upon transfer or new
issuance of Common Shares will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration
<PAGE>
-2-
of the Rights), the surrender for transfer of any certificates for Common Shares
outstanding as of the Record Date, even without such notation or a copy of this
Summary of Rights being attached thereto, will also constitute the transfer of
the Rights associated with the Common Shares represented by such certificate. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights (the "Right Certificates") will be mailed to holders of
record of the Common Shares as of the close of business on the Distribution
Date, and such separate Right Certificates alone will evidence the Rights.
4. EXERCISE PERIOD.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on the Final Expiration Date, unless the Final Expiration
Date is extended, or the Rights are earlier redeemed by the Corporation. The
term "Final Expiration Date" is defined in the Rights Agreement and generally
means September 3, 2006.
5. ADJUSTMENTS.
(a) The Purchase Price payable, and the number of interests in
Preferred Shares or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Shares, (ii) upon the grant to holders of the
Preferred Shares of certain rights or warrants to subscribe for or purchase
Preferred Shares at a price, or securities convertible into Preferred Shares
with a conversion price, less than the then current market price of the
Preferred Shares or (iii) upon the distribution to holders of the Preferred
Shares of evidences of indebtedness or assets (excluding regular periodic cash
dividends paid out of earnings or retained earnings or dividends payable in
Preferred Shares) or of subscription rights or warrants (other than those
referred to above).
(b) The number of outstanding Rights and the number of one
one-hundredth interests in Preferred Shares issuable upon exercise of each Right
are also subject to adjustment in the event of a stock split of the Common
Shares or a stock dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common Shares occurring, in
any such case, prior to the Distribution Date.
(c) With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. No fractional Preferred Shares will be issued (other
than fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Corporation, be evidenced by depositary
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
6. PREFERRED SHARES.
(a) Interests in Preferred Shares purchasable upon exercise of the
Rights will not be redeemable. Each Preferred Share will be entitled to a
minimum preferential quarterly dividend payment of $1 per share but will be
entitled to an aggregate dividend of 100 times the dividend declared per Common
Share. In the event of liquidation, the holders of the interests
<PAGE>
-3-
in Preferred Shares will be entitled to a minimum preferential liquidation
payment of $100 per share but will be entitled to an aggregate payment of 100
times the payment made per Common Share. Each Preferred Share will have 100
votes, voting together with the Common Shares. Finally, in the event of any
merger, consolidation or other transaction in which Common Shares are exchanged,
each Preferred Share will be entitled to receive 100 times the amount received
per Common Share. These rights are protected by customary antidilution
provisions.
(b) Because of the nature of the Preferred Shares' dividend,
liquidation and voting rights, the value of the one one-hundredth interest in a
Preferred Share purchasable upon exercise of each Right should approximate the
value of one Common Share.
7. EXERCISE OF RIGHTS FOR COMMON STOCK.
In the event that the Corporation is acquired in a merger or other
business combination transaction or 50% or more of its consolidated assets or
earning power is sold, proper provision will be made so that each holder of a
Right will thereafter have the right to receive, upon the exercise thereof at
the then current purchase price of the Right, that number of shares of common
stock of the acquiring company that at the time of such transaction will have a
market value of two times the purchase price of the Right. In the event that any
person becomes an Acquiring Person, proper provision shall be made so that each
holder of a Right, other than Rights beneficially owned by the Acquiring Person
(which will thereafter be void), will thereafter have the right to receive upon
exercise that number of Common Shares having a market value of two times the
purchase price of the Right.
8. OPTIONAL EXCHANGE OF RIGHTS.
At any time after a person or group of affiliated or associated
persons becomes an Acquiring Person and prior to the acquisition by such person
or group of persons of 50% or more of the outstanding Common Shares, the Board
of Directors of the Corporation may exchange the Rights (other than Rights owned
by such person or group which have become void), in whole or in part, at an
exchange ratio (subject to adjustment) of one Common Share per Right. At its
option, the Board may substitute interests in Preferred Shares (or shares of a
class or series of the Corporation's preferred stock having equivalent rights,
preferences and privileges) for Common Shares exchangeable for Rights at an
initial rate (subject to adjustment) of one one-hundredth interest in a
Preferred Share (or equivalent preferred share) for each Common Share.
9. REDEMPTION OF RIGHTS.
At any time prior to the acquisition by a person or group of
affiliated or associated persons of beneficial ownership of 10% or more of the
outstanding Common Shares and up to 20 business days thereafter, the Board of
Directors of the Corporation may redeem the Rights in whole, but not in part, at
a price of $.01 per Right (the "Redemption Price").
Immediately upon any redemption of the Rights, the right to exercise
the Rights will terminate, and the only right of the holders of Rights will be
to receive the Redemption Price.
<PAGE>
-4-
10. AMENDMENTS.
The terms of the Rights may be amended by the Board of Directors of
the Corporation without the consent of the holders of the Rights, including an
amendment to lower the threshold for exercisability of the rights to not less
than the largest percentage of the outstanding Common Shares then known to the
Corporation to be beneficially owned by any person or group of affiliated or
associated persons, provided that from and after such time as any person becomes
an Acquiring Person, the terms of the Rights may be amended only by resolution
of the Board adopted by a majority of Continuing Directors (which resolution is
effective only if Continuing Directors constitute a majority of the number of
directors in office).
11. RIGHTS PRIOR TO EXERCISE.
Until a Right is exercised, the holder thereof, as such, will have
no rights as a stockholder of the Corporation, including, without limitation,
the right to vote or to receive dividends.
12. DOCUMENTS AND EFFECT OF THIS SUMMARY.
A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on Form 8-A
dated July 17, 1996. A copy of the Rights Agreement is available free of charge
from the Corporation. This summary description of the Rights does not purport to
be complete and is qualified in its entirety by reference to the Rights
Agreement, which is hereby incorporated herein by reference.
[ASTORIA FINANCIAL CORPORATION LETTERHEAD]
Contact: Peter J. Cunningham
First Assistant Vice President
Investor Relations
516-327-7877
- - ---------------------
FOR IMMEDIATE RELEASE
- - ---------------------
ASTORIA FINANCIAL CORPORATION ADOPTS STOCKHOLDER RIGHTS PLAN
------------------------------------------------------------
LAKE SUCCESS, NEW YORK ---- JULY 18, 1996 - Astoria Financial Corporation
(the "Corporation") (Nasdaq:AFSC) announced today that its Board of Directors
has adopted a Stockholder Rights Plan and declared a dividend of one preferred
share purchase right ("Right") for each outstanding share of common stock of the
Corporation. Each Right will initially entitle stockholders to buy a one
one-hundredth interest in a share of a new series of preferred stock of the
Corporation at an exercise price of $100.00 upon the occurrence of certain
events described in the Plan.
President and Chief Executive Officer George L. Engelke, Jr., commented
that as the Corporation approached the three year anniversary of Astoria Federal
Savings and Loan Association's conversion to the stock form of ownership, it was
prudent for the Board to ensure that the interests of stockholders were
adequately protected. He stated, "The Rights Plan, which is similar in effect to
plans adopted at well over two thousand other companies, was not adopted in
response to any specific event. Our Board of Directors has a responsibility to
assure that all stockholders of Astoria Financial Corporation receive fair and
equitable treatment in the event of any proposed acquisition of the Corporation
and to guard against partial tender offers, squeeze-outs and other abusive
tactics to gain control of the Corporation without paying all stockholders a
fair and full value for their investment in the Corporation. The Plan will not
prevent the Corporation from being acquired, but rather encourages potential
acquirors to negotiate any such proposed transaction with the Board of
Directors, who has the responsibility to act in the best interest of all who own
our stock."
Initially, Rights will not be exercisable and will transfer with and only
with the shares of common stock. The Rights will be exercisable and separately
transferable twenty business days after a person or group of persons acquires
10% or more of the common stock of Astoria Financial Corporation ("Acquiring
Person") or a person or group of persons announces a tender offer, the
consummation of which would result in ownership by a person or group of persons
of 10% or more of Corporation common stock. Subject to certain limitations, the
Corporation's Board of Directors may reduce the 10% threshold.
If a person or group of persons becomes an Acquiring Person, each Right,
unless redeemed by the Board of Directors at a price of $0.01 per Right, will
entitle its holder (other than such person or member of such group) to purchase,
at the then-current exercise price of the Right, a number of shares of common
stock of Astoria Financial Corporation having a market value equal to twice the
exercise price of the Right. Alternatively, at any time after an Acquiring
Person becomes such, but prior to the acquisition by such person of 50% or more
of the Corporation's common stock, the Board of Directors may, at its option,
direct the issuance of one share of common stock in exchange for each Right
other than those held by the Acquiring Person. Additionally, if the Corporation
is acquired in a merger or other business combination transaction, each
unredeemed Right will entitle its holder to purchase, at the then-current
<PAGE>
- 2 -
exercise price of the Right, a number of shares of common stock of the acquiring
company having a market value at that time equal to twice the exercise price of
the Right.
The Rights dividend distribution will be payable to stockholders of record
on September 3, 1996. The Rights will expire ten years later on September 3,
2006. The distribution of the Rights is not taxable to stockholders. A letter
regarding the Rights Plan and a summary of its terms will be mailed to
stockholders in August, 1996.
Astoria Financial Corporation is the holding company for Astoria Federal
Savings and Loan Association. With assets in excess of $7.0 billion, Astoria
Financial is the third largest publicly traded thrift in New York and the
fifteenth nationally. Established in 1888, Astoria Federal operates 46 banking
offices and provides retail banking, mortgage and consumer loan services to over
250,000 customers.
# # #
