As filed with the Securities and Exchange Commission on September 30, 1997
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
---------------
ASTORIA FINANCIAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF 11-3170868
INCORPORATION OR (I.R.S. EMPLOYER
ORGANIZATION) IDENTIFICATION NO.)
ONE ASTORIA FEDERAL PLAZA
LAKE SUCCESS, NEW YORK 11042
(516) 327-3000
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
---------------
OPTION PLAN CONSISTING OF ADVISORY BOARD OPTION
AGREEMENTS AND 4 OPTION CONVERSION AGREEMENTS WITH
FORMER OFFICERS AND DIRECTORS OF
THE GREATER NEW YORK SAVINGS BANK
(FULL TITLE OF THE PLAN)
---------------
George L. Engelke, Jr.
Chairman of the Board and Chief Executive Officer
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042
(516) 327-3000
Copy to:
W. Edward Bright, Esq.
Thacher Proffitt & Wood
Two World Trade Center - 38th Floor
New York, New York 10048
(212) 912-7400
(NAME AND ADDRESS, INCLUDING ZIP CODE, TELEPHONE NUMBER AND
AREA CODE, OF AGENT FOR SERVICE)
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Amount to be Registered(1) Proposed Maximum Offering Proposed Maximum Amount of
Title of Securities to be Registered Price Per Share (2) Aggregate Offering Price Registration Fee
(2)
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 273,840 shares ----- $5,205,212 $1,578
</TABLE>
(1) Based on the number of shares of common stock of Astoria Financial
Corporation ("AFC") reserved for issuance upon exercise of certain options
granted pursuant to Option Conversion Agreements dated September 30, 1997
by and between AFC and each of Gerard C. Keegan, Michael J. Henchy, Daniel
J. Harris and Franklyn Berkowitz, and Advisory Board Option Agreements
dated September 30, 1997 by and between AFC and each of William F. de
Neergaard, James G. Peel, C. Stephen Connolly, Philip F. Ruppel, George H.
Sorter, Nicholas A. Marshall, William F. Ward and Gwendolyn Calvert Baker.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, pursuant to which
6,340 shares of AFC common stock subject to outstanding options are deemed
to be offered at $20.75 per share, 10,000 shares are deemed to be offered
at $17.50, 16,750 shares are deemed to be offered at $11.50 per share,
47,500 shares are deemed to be offered at $3.0625 per share, 21,250 shares
are deemed to be offered at $7.50 per share, 50,000 shares are deemed to be
offered at $19.75 per share, 77,000 shares are deemed to be offered at
$22.25 per share and 12,500 shares are deemed to be offered at $7.625 per
share, the prices at which such options may be exercised according to the
terms of the applicable agreements, and options to purchase 32,000 shares
which will price after the filing of this Registration Statement are deemed
to be offered at $49.8125, the average of the high and low bid price of AFC
Common Stock on The NASDAQ Stock Market on September 24, 1997.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange
Commission (the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
Note: The document containing the information specified in
this Part I will be sent or given to employees as specified by Rule 428(b)(1).
Such document need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended ("Securities Act").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with
the Commission by the Registrant (File No. 0-22228) are incorporated by
reference in this registration statement:
(1) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996, which was filed with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended ("Exchange Act");
(2) the description of the Registrant's Common Stock (the "Common
Stock"), and AFC Series A Junior Participating Preferred
Stock and Preferred Stock Purchase Rights set forth in the
Registrant's Exchange Act Registration Statement on Form
8-A, dated August 11, 1993 and July 23, 1996, respectively,
and any amendment or report filed for the purpose of
updating any such description;
(3) the description of the Registrant's Preferred Share Purchase
Rights contained in the Registrant's Exchange Act Registration
Statements on Form 8-A, dated July 17,
1996;
(4) the Registrant's Quarterly Report on Form 10-Q for the
quarters ended March 31, 1997 and June 30, 1997; and
<PAGE>
(5) the Registrant's Current Reports on Form 8-K, dated March 31,
1997 (as amended on April 8, 1997), June 30, 1997, July 17,
1997, July 24, 1997 and August 7, 1997, as amended, filed by
the Registrant pursuant to Section 13 of the Exchange
Act.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date hereof and prior to the date of the
termination of the offering of the Common Stock offered hereby shall be deemed
to be incorporated by reference into this registration statement and to be a
part hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in any
document which is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Astoria Financial Corporation will provide without charge to
each person to whom this Prospectus is delivered, upon request of any such
person, a copy of any or all of the foregoing documents incorporated herein by
reference (other than exhibits to such documents). Written requests should be
directed to William K. Sheerin, Astoria Financial Corporation, One Astoria
Federal Plaza, Lake Success, New York 11042. Telephone requests may be directed
to (516) 327- 3000.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's authority to indemnify its officers and
directors is governed by the provisions of Section 145, as amended, of the
Delaware General Corporation Law ("GCL") and
by the Certificate of Incorporation of the Registrant.
Article Tenth of the Certificate of Incorporation of the
Registrant provides that any person who is made a party or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative by reason of the fact that he
or she is or was a director or officer of the Registrant or is or was serving at
the
-2-
<PAGE>
request of the Registrant as a director, officer, employee or agent of another
corporation, will be indemnified and held harmless by the Registrant to the
fullest extent authorized by the GCL. Such indemnification shall apply whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent. Such indemnification shall be against all
expenses, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonable incurred or
suffered in connection with the proceeding. This right to indemnification
includes, to the extent permitted by the GCL, the right to be paid by the
Registrant the expenses incurred in defending any such proceeding in advance of
its final determination.
If a claim for indemnification is not paid in full by the
Registrant within sixty days after a written claim has been received by the
Registrant, the indemnitee may at any time thereafter bring suit against the
Registrant to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit (or in a suit brought by the Registrant to recover an
advancement of expenses), the indemnitee shall be entitled to be paid also the
expenses of prosecuting (or defending) such suit. In any such suit, it shall be
a defense to the Registrant that the indemnitee has not met any applicable
standard for indemnification set forth in the GCL. The burden of proof in any
such suit shall be on the Registrant to prove that the indemnitee is not
entitled to be indemnified.
The right of indemnification conferred in Article Tenth of the
Certificate of Incorporation shall not be exclusive of any right which any
person may have of hereafter acquire under any statute, the Registrant's Bylaws,
agreement, vote of stockholders, disinterested directors, or otherwise. The
Registrant maintains directors' and officers' liability insurance coverage for
all directors and officers of Astoria Financial Corporation and its
subsidiaries.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling Astoria Financial Corporation pursuant to the foregoing provisions,
the Registrant has been informed that in the opinion of the Commission, such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
-3-
<PAGE>
ITEM 8. EXHIBITS.
4.1 Form of Option Conversion Agreement by and between
Astoria Financial Corporation and Former Executive
Officer of The Greater New York Savings Bank dated
September 30, 1997.
4.2 Form of Advisory Board Option Agreement by and
between Astoria Financial Corporation and Former
Director of The Greater New York Savings Bank dated
September 30, 1997.
4.3 Certificate of Incorporation of Astoria Financial
Corporation, incorporated by reference to the
Registrant's Registration Statement on Form S-1,
dated October 1, 1993, as amended (Registration No.
33-67044).
4.4 Rights Agreement dated as of July 17, 1996 between
Astoria Financial Corporation and Chase Mellon
Shareholder Service, L.L.C, incorporated by reference
to Registrant's Registration Statement on Form 8-A
dated July
17, 1996.
4.5 By-Laws of Astoria Financial Corporation,
incorporated by reference to the Registrant's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1993, which was filed with the
Commission pursuant to the Securities Exchange Act of
1934, as amended.
4.6 Agreement and Plan of Merger dated as of the 29th day
of March, 1997 by and among Astoria Financial
Corporation, Astoria Federal Savings and Loan
Association and The Greater New York Savings Bank, as
amended, incorporated by reference to the
Registrant's Current Report on Form 8-K, dated March
31, 1997.
5. Opinion of Thacher Proffitt & Wood, counsel for
Registrant, as to the legality of the securities
being registered.
23.1 Consent of Thacher Proffitt & Wood (included in
Exhibit 5 hereof).
23.2 Consent of KPMG Peat Marwick LLP.
ITEM 9. UNDERTAKINGS.
A. RULE 415 OFFERINIG. The undersigned Registrant hereby
undertakes:
(1) To file, during any period in which offers or sales
are being made, a post- effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and
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<PAGE>
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
C. INCORPORATED ANNUAL AND QUARTERLY REPORTS. The undersigned
registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the latest
annual report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3 of Regulation S-X is
not set forth in the prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest quarterly report that
is specifically incorporated by reference in the prospectus to provide such
interim financial information.
D. FILING OF REGISTRATION ON FORM S-8. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant for expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with
-5-
<PAGE>
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Lake Success, State of New York on September 30,
1997.
Astoria Financial Corporation
(Registrant)
By: /s/ George L. Engelke, Jr.
-------------------------------------
George L. Engelke, Jr.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ George L. Engelke, Jr. Chairman of the Board, President and September 30, 1997
- ---------------------------------------------- Chief Executive Officer (Principal
George L. Engelke, Jr. Executive Officer) and Director
Senior Vice President, Treasurer and
/s/ Monte N. Redman Chief Financial Officer (Principal September 30, 1997
- ---------------------------------------------- Financial and Accounting Officer)
Monte N. Redman
/s/ Robert G. Bolton Director September 30, 1997
- ----------------------------------------------
Robert G. Bolton
/s/ Andrew M. Burger Director September 30, 1997
- ----------------------------------------------
Andrew M. Burger
/s/ Denis J. Connors Director September 30, 1997
- ----------------------------------------------
Denis J. Connors
/s/ Thomas J. Donahue Director September 30, 1997
- ----------------------------------------------
Thomas J. Donahue
/s/ William J. Fendt Director September 30, 1997
- ----------------------------------------------
William J. Fendt
/s/ Ralph F. Palleschi Director September 30, 1997
- ----------------------------------------------
Ralph F. Palleschi
/s/ Thomas V. Powderly Director September 30, 1997
- ----------------------------------------------
Thomas V. Powderly
</TABLE>
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<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 Form of Option Conversion Agreement by and between Astoria
Financial Corporation and Former Executive Officer of The Greater
New York Savings Bank dated September 30, 1997.....................
4.2 Form of Advisory Board Option Agreement by and between Astoria
Financial Corporation and Former Director of The Greater New York
Savings Bank dated September 30, 1997..............................
4.3 Certificate of Incorporation of Astoria Financial Corporation,
incorporated by reference to the Registrant's Registration
Statement on Form S-1, dated October 1, 1993, as amended
(Registration No.
33-67044).......................................................... *
4.4 Rights Agreement dated as of July 17, 1996 between Astoria
Financial Corporation and Chase Mellon Shareholder Service,
L.L.C., incorporated by reference to Registrant's Registration
Statement on
Form 8-A dated July 17, 1996....................................... *
4.5 By-Laws of Astoria Financial Corporation, incorporated by
reference to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1993, which was filed with
the Commission pursuant to the Securities Exchange Act of
1934, as
amended............................................................ *
4.6 Agreement and Plan Merger dated as of the 29th day of March, 1997
by and among Astoria Financial Corporation, Astoria Federal Savings
and Loan Association and The Greater New York Savings Bank, as
amended, incorporated by reference to the Registrant's Current Report
on Form 8K, dated March 31, 1997................................... *
5. Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to
the legality of the securities being registered....................
23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5 hereof)..
23.2 Consent of KPMG Peat Marwick LLP...................................
* Incorporated by reference.
-8-
EXHIBIT 4.1
Form of Option Conversion Agreement by and between Astoria Financial
Corporation and Former Executive Officer of The Greater New York Savings Bank
dated September 30, 1997.
<PAGE>
EXHIBIT 4.1
-----------
OPTION CONVERSION AGREEMENT
---------------------------
This OPTION CONVERSION AGREEMENT ("Agreement") is made and
entered into as of the ____ day of September, 1997 by and between ASTORIA
FINANCIAL CORPORATION, a corporation organized and existing under the laws of
the State of Delaware and having an office at One Astoria Federal Plaza, Lake
Success, New York 11042-1085 ("Corporation") and
________________________________ residing at _________________________________
("Option Holder").
W I T N E S S E T H :
WHEREAS, the Option Holder holds certain options to purchase
shares of common stock of The Greater New York Savings Bank ("Existing
Options"); and
WHEREAS, pursuant to an Agreement and Plan of Merger dated as
of March 29, 1997 by and among the Corporation, Astoria Federal Savings and Loan
Association ("Association") and The Greater New York Savings Bank ("Merger
Agreement"), the Corporation will purchase all of the outstanding common stock
of The Greater New York Savings Bank ("Seller") and will cause the Seller to be
merged with and into the Association; and
WHEREAS, pursuant to the Merger Agreement, the Option Holder
may elect to cause all or any portion of the Existing Options to be converted
into an option to purchase shares of the common stock of the Corporation
("Converted Option"); and
WHEREAS, the Option Holder has made such an election, and the
Option Holder and the Corporation desire to set forth the terms and conditions
of the Converted Option;
NOW, THEREFORE, the Option Holder and the Corporation agree as
follows:
SECTION 1. GRANT OF CONVERTED OPTION.
The Corporation hereby grants, and the Option Holder hereby
accepts the Corporation's grant of, a Converted Option, on the terms and
conditions hereinafter set forth, to purchase the number of shares of the
Corporation's Common Stock (each, an "Optioned Share"), at the exercise price(s)
per share (each, an "Applicable Exercise Price"), and generally for the period
beginning on the date hereof and ending on the expiration date(s) (each, an
"Applicable Expiration Date") set forth in columns (4), (5) and (6),
respectively, of the table set forth below:
<PAGE>
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<TABLE>
<CAPTION>
=========================================================== ========================================================================
EXISTING OPTION CONVERTED OPTION
- ----------------------------------------------------------- ------------------------------------------------------------------------
(1) (2) (3) (4) (5) (6)
No. of Shares Exercise Price Expiration Date No. of Shares Exercise Price Expiration Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
______ $______ ________________ ________ ______ Same as Column (3)
- ------------------------------------------------------------------------------------------------------------------------------------
______ $______ ________________ ________ ______ Same as Column (3)
====================================================================================================================================
</TABLE>
It is not intended that any of the Converted Options granted hereunder qualify
as incentive stock options described in section 422 of the Internal Revenue Code
of 1986 ("Code").
SECTION 2. TERM AND EXERCISE OF OPTIONS.
(a) Each Converted Option shall be exercisable as to an
Optioned Share at any time beginning on the date of this Agreement and ending on
the Applicable Expiration Date for such Optioned Share; PROVIDED, HOWEVER, that
the Converted Option shall be subject to earlier expiration as provided in
section 2(f) hereof.
(b) The Converted Option shall be exercisable in whole or in
part; PROVIDED HOWEVER, that no partial exercise of the Converted Option shall
be for an aggregate Applicable Exercise Price of less than One Thousand Dollars
($1,000). The partial exercise of a Converted Option shall not cause the
expiration, termination or cancellation of the remaining portion thereof. Upon
the partial exercise of the Converted Option, this Agreement, marked with any
notations deemed appropriate by the Corporation, shall be returned to the Option
Holder together with the delivery of the certificates described in section 2(e)
hereof.
(c) The Converted Option shall be exercised by delivering
notice to the Corporation's principal office, to the attention of its Corporate
Secretary, no less than three (3) business days in advance of the effective date
of the proposed exercise. Such notice shall be accompanied by this Agreement,
shall specify the number of Optioned Shares with respect to which the Converted
Option is being exercised and the effective date of the proposed exercise, and
shall be signed by the Option Holder. The Option Holder may withdraw such notice
at any time prior to the close of business on the business day immediately
preceding the effective date of the proposed exercise, in which case the
Agreement shall be returned to him. Payment for Optioned Shares purchased upon
the exercise of the Converted Option shall be made on the effective date of such
exercise either (i) in cash, by certified check, bank cashier's check or wire
transfer or (ii) subject to the approval of the Corporation, in shares of common
stock of the Corporation ("Common Stock") owned by the Option Holder and valued
at their Fair Market Value (as defined in section 8 hereof) on the effective
date of such exercise, or partly in shares of Common Stock with the balance in
cash, by certified check, bank cashier's check or wire transfer. Any payment in
shares of Common Stock shall be effected by the delivery of such shares to the
Corporate Secretary of the Corporation, duly endorsed in blank or accompanied by
stock powers duly executed in blank, together with any other documents and
evidences as the Corporate Secretary of the Corporation shall require from time
to time.
<PAGE>
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(d) During the life of the Option Holder, the Converted Option
shall be exercisable only by him. The Converted Option shall not be assignable
or transferable otherwise than by will or by the laws of descent and
distribution.
(e) Certificates for shares of Common Stock purchased upon the
exercise of the Converted Option shall be issued in the name of the Option
Holder and delivered to the Option Holder as soon as practicable following the
effective date on which the Converted Option is exercised.
(f) In the event of the death of the Option Holder, the
Converted Option shall remain exercisable until the expiration of one year after
such death, on which date the Converted Option shall expire; PROVIDED, HOWEVER,
that the Converted Option shall not be exercisable as to any Optioned Share
after the Applicable Expiration Date for such Optioned Share.
(g) The exercise of all or any portion of the Converted Option
shall have the effect of reducing the number of Optioned Shares available for
purchase at the Applicable Exercise Price by the number of shares of Common
Stock acquired upon such exercise. At the close of business on any Applicable
Expiration Date, the number of Optioned Shares available for purchase at the
Applicable Exercise Price for the Optioned Shares subject to such Applicable
Expiration Date shall be reduced to zero. At the close of business on the first
anniversary of the Option Holder's death, the total number of Optioned Shares
available for purchase hereunder shall be reduced to zero.
SECTION 3. CERTAIN ADJUSTMENTS IN THE CONVERTED OPTION.
(a) Subject to any required action by the shareholders of the
Corporation, in the event of any increase or decrease in the number of issued
shares of Common Stock resulting from a subdivision or consolidation or shares
of Common Stock or the payment of a stock dividend (but only on the shares of
Common Stock), or any other increase or decrease in the number of such shares
effected without receipt of consideration by the Corporation, the Corporation
shall proportionally adjust the number of shares of Common Stock subject to the
Converted Option and the Applicable Exercise Price per Optioned Share.
(b) Subject to any required action by the shareholders of the
Corporation, in the event that the Corporation shall be the surviving
corporation in any merger or consolidation (except a merger or consolidation as
a result of which the holders of shares of Common Stock receive securities of
another corporation), the Converted Option, to the extent outstanding on the
date of such merger or consolidation, shall pertain to and apply to the
securities which a holder of the number of shares of Common Stock subject to
such Converted Option on such date would have received in such merger or
consolidation, and an appropriate adjustment shall be made in the Applicable
Exercise Price.
(c) In the event of (i) a dissolution or liquidation of the
Corporation, (ii) a sale of all or substantially all of the Corporation's
assets, (iii) a merger or consolidation involving the
<PAGE>
-4-
Corporation in which the Corporation is not the surviving corporation or (iv) a
merger or consolidation involving the Corporation in which the Corporation is
the surviving corporation but the holders of shares of Common Stock receive
securities of another corporation and/or other property, including cash, the
Corporation shall either:
(A) cancel, effective immediately prior to the occurrence of
such event, the Converted Option and, in full consideration of such
cancellation, pay to the Option Holder an amount in cash, for each
Optioned Share then subject to the Converted Option, equal to the
excess of (I) the value, as determined by the Corporation in its
absolute discretion, of the property (including cash) received by the
holder of a share of Common Stock as a result of such event over (II)
the Applicable Exercise Price; or
(B) provide for the exchange of the Converted Option for an
option on some or all of the property for which the Common Stock of the
Corporation is exchanged and, incident thereto, make an equitable
adjustment as determined by the Corporation in its absolute discretion
in the Applicable Exercise Price, or the number of shares or amount of
property subject to the Option, or both, or, if appropriate, provide
for a cash payment to the Option Holder in partial consideration for
the exchange of the Converted Option.
The Corporation shall take the same action under this section 3(c) as it takes
under any similar provisions of stock options granted to executive officers of
the Corporation.
(d) In the event of any change in the capitalization of the
Corporation or corporate change other than those specifically referred to in
sections 3(a), (b), or (c) hereof, the Corporation shall make such adjustments
in the number and class of shares subject to the Converted Option outstanding on
the date on which such change occurs and in the Applicable Exercise Price of
each Optioned Share then subject to the Converted Option as is appropriate to
prevent dilution or enlargement of rights.
(e) Except as expressly provided herein, the Option Holder
shall have no rights by reason of any subdivision or consolidation of shares of
stock of any class, the payment of any dividend, any increase or decrease in the
number of shares of stock of any class or any dissolution, liquidation, merger
or consolidation of the Corporation or any other corporation. Except as
expressly provided herein, no issuance by the Corporation of shares of stock of
any class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number of Optioned Shares.
SECTION 4. RIGHTS AS A STOCKHOLDER.
No person shall have any rights as a stockholder with respect
to any shares of Common Stock covered by or relating to the Converted Option
until the date of the issuance of a stock certificate with respect to such
shares. Except as otherwise expressly provided in section
<PAGE>
-5-
3 hereof, no adjustment to the Converted Option shall be made for dividends or
other rights for which the record date occurs prior to the date such stock
certificate is issued.
SECTION 5. WITHHOLDING TAXES.
(a) Whenever shares of Common Stock are to be issued upon the
exercise of the Converted Option, the Corporation shall have the right to
require the Option Holder to remit to the Corporation in cash an amount
sufficient to satisfy federal, state and local withholding tax requirements, if
any, attributable to such exercise payment prior to the delivery of any
certificate or certificates for such shares.
(b) At the election of the Option Holder, but subject to the
approval of the Corporation, when shares of Common Stock are to be issued upon
the exercise of the Converted Option, in lieu of the remittance required by
section 5(a) hereof, the Option Holder may tender to the Corporation a number of
shares of Common Stock determined by him, the Fair Market Value (as defined in
section 8 hereof) of which at the tender date the Corporation determines to be
sufficient to satisfy the federal, state and local withholding tax requirements,
if any, attributable to such exercise, occurrence or grant and not greater than
the Participant's estimated total federal, state and local tax obligations
associated with such exercise.
(c) At the election of the Option Holder, but subject to the
approval of the Corporation, when shares of Common Stock are to be issued upon
the exercise of the Converted Option, in lieu of the remittance required by
section 5(a) hereof, the Corporation shall withhold a number of such shares
determined by the Option Holder, the Fair Market Value (as defined in section 8
hereof) of which at the exercise date the Corporation determines to be
sufficient to satisfy the federal, state and local withholding tax requirements,
if any, attributable to such exercise and not greater than the Option Holder's
estimated total federal, state and local tax obligations associated with such
exercise.
SECTION 6. NO OBLIGATION TO EXERCISE.
The grant to the Option Holder of the Converted Option shall
impose no obligation to exercise such Converted Option.
SECTION 7. TRANSFERS UPON DEATH.
Upon the death of the Option Holder, the Converted Option may
be exercised only by the executors or administrators of Option Holder's estate
or by any person or persons who shall have acquired such right to exercise by
will or by the laws of descent and distribution. No transfer by will or the laws
of descent and distribution shall be effective to bind the Corporation unless
the Corporation shall have been furnished with (a) written notice thereof and
with a copy of the will and/or such evidence as the Corporation may deem
necessary to establish the validity of the
<PAGE>
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transfer and (b) an agreement by the transferee to comply with all the terms and
conditions of the Converted Option that are or would have been applicable to the
Option Holder and to be bound by the acknowledgements made by the Option Holder
in connection with the grant of the Converted Option. Except as provided in this
section 7, the Converted Option shall not be transferable and may only be
exercised during the Option Holder's lifetime by the Option Holder.
SECTION 8. DEFINITION OF FAIR MARKET VALUE.
The "Fair Market Value" of a share of Common Stock with
respect to any day shall be (a) the closing sales price on the immediately
preceding business day of a share of Common Stock as reported on the principal
securities exchange on which shares of Common Stock are then listed or admitted
to trading (including as a securities exchange for this purpose the NASDAQ
National Market System) or (b) if not so reported, the average of the closing
bid and ask prices on the immediately preceding business day as reported on the
National Association of Securities Dealers, Inc. Automated Quotations System or
(c) if not so reported, as furnished by any member of the National Association
of Securities Dealers, Inc., selected by the Corporation. In the event that the
price of a share of Common Stock shall not be so reported, the Fair Market Value
of a share of Common Stock shall be determined by the Corporation in its
absolute discretion.
SECTION 9. REGISTRATION AND DELIVERY OF OPTIONED SHARES.
The Corporation's obligation to deliver shares of Common Stock
under this Agreement shall, if the Corporation so requests, be conditioned upon
the receipt of a representation as to the investment intention of the person to
whom such shares are to be delivered, in such form as the Corporation shall
determine to be necessary or advisable to comply with the provisions of
applicable federal, state or local law. It may be provided that any such
representation shall become inoperative upon a registration of the shares of
Common Stock or upon the occurrence of any other event eliminating the necessity
of such representation. The Corporation shall not be required to deliver any
shares of Common Stock under this Agreement prior to (a) the admission of such
shares of Common Stock to listing on any stock exchange on which Common Stock
may then be listed, or (b) the completion of such registration or other
qualification under any state or federal law, rule or regulations as the
Corporation shall determine to be necessary or advisable. In the event that the
Corporation refuses, pursuant to the preceding sentence, to deliver shares of
its Common Stock upon the exercise of the Converted Option, the Corporation
shall pay to the Option Holder in a lump sum in cash not later than the proposed
exercise date an amount, for each share of Common Stock with respect to which
the Converted Option was proposed to be exercised, equal to the excess of (i)
the Fair Market Value (determined pursuant to section 8) of a share of Common
Stock on the proposed exercise date over (ii) the Exercise Price of the
Converted Option.
<PAGE>
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SECTION 10. REGISTRATION RIGHTS.
At or as soon as practicable following the effective date
provided for in the Merger Agreement, the Corporation shall prepare and file
with the Securities and Exchange Commission on Form S-8 (or another
substantially equivalent form promulgated by the Securities and Exchange
Commission and available to the Corporation) a registration statement covering
the issuance of the Optioned Shares in compliance with applicable laws, rules
and regulations. Following such filing, the Corporation shall take such actions
as are necessary to maintain the effectiveness of such registration through the
Applicable Expiration Date or, if earlier, the date on which no Optioned Shares
remain available for purchase hereunder. Notwithstanding anything contained
herein to the contrary, the Corporation's obligations under this section will
not require the Corporation to incur any unreasonable expenses.
SECTION 11. NOTICES.
Any communication required or permitted to be given hereunder,
including any notice, direction, designation, comment, instruction, objection or
waiver, shall be in writing and shall be deemed to have been given at such time
as it is delivered personally or five (5) days after mailing if mailed, postage
prepaid, by registered or certified mail, return receipt requested, addressed to
such party at the address listed below, or at such other address as one such
party may by written notice specify to the other party:
(a) If to the Corporation
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042-1085
Attention: CORPORATE SECRETARY
(b) If to the Option Holder, to the Option Holder's
address first above written.
No notice given to any party shall be deemed effective as to such party until
actually received.
SECTION 12. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and shall be
binding upon the Corporation and the Option Holder and their respective heirs,
successors and assigns.
<PAGE>
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SECTION 13. CONSTRUCTION OF LANGUAGE.
Whenever appropriate in the Agreement, words used in the
singular may be read in the plural, words used in the plural may be read in the
singular, and words importing the masculine gender may be read as referring
equally to the feminine or the neuter. Any reference to a section shall be a
reference to a section of this Agreement, unless the context clearly indicates
otherwise.
SECTION 14. GOVERNING LAW.
This Agreement shall be construed, administered and enforced
according to the laws of the State of New York without giving effect to the
conflict of laws principles thereof, except to the extent that such laws are
preempted by the federal law.
SECTION 15. AMENDMENT.
This Agreement may be amended, in whole or in part, at any
time and from time to time, by written agreement between the Corporation and the
Option Holder.
SECTION 16. SEVERABILITY.
A determination that any provision of this Agreement, in whole
or in part, is invalid or unenforceable shall not affect the validity or
enforceability of any other provision hereof or of any part of the provision in
question not determined to be unenforceable.
SECTION 17. WAIVER.
Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 18. COUNTERPARTS.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
<PAGE>
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SECTION 19. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York without giving effect to
the conflict of law principles of such laws.
SECTION 20. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience
of reference only and are not intended to qualify the meaning of any section.
Any reference to a section number shall refer to a section of this Agreement,
unless otherwise stated.
SECTION 21. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes in its entirety any and
all prior agreements, understandings or rep resentations relating to the subject
matter hereof. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
SECTION 22. DISPUTE RESOLUTION.
Any controversy or claim arising out of or relating to this
Agreement, or the breach hereof, shall be settled by arbitration in accordance
with the Commercial Rules of the American Arbitration Association and judgment
upon the award rendered by the arbitral tribunal may be entered in any court
having jurisdiction thereof. The arbitration shall be held in Nassau County, New
York, or at such other place as may be selected by mutual agreement. The
arbitration shall be conducted before a panel of three neutral arbitrators, all
of whom shall be members of the Bar of the State of New York, actively engaged
in practice of law for at least ten (10) years. Within fifteen (15) days after
the commencement of the arbitration, each party shall select one person to act
as arbitrator, and the two selected shall select a third arbitrator within ten
(10) days after their appointment; if the arbitrators selected by the parties
hereto are unable or fail to agree upon the third arbitrator, the third
arbitrator shall be selected by the President of the American Arbitration
Association or his designee. Either party may, without inconsistency with this
Agreement, seek from a court any interim or provisional relief that may be
necessary to protect the rights or property of that party pending the arbitral
tribunal's determination of the merits of the controversy. Neither party nor the
arbitrators may disclose the existence, content, or results of any arbitration
hereunder without the prior written consent of both parties. Each party shall
bear its own costs and expenses in any such Proceeding.
<PAGE>
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IN WITNESS WHEREOF, the Option Holder has executed, and the
Corporation has caused its duly authorized representative to execute, this
Agreement as of the date first above written.
ASTORIA FINANCIAL CORPORATION
By:
-------------------------------
Signature
Title:
----------------------------
Date:
-----------------------------
ATTEST:
- ----------------------------------
Secretary
[SEAL]
[EXECUTIVE]
-------------------------------
Signature
Date:
-------------------------------
EXHIBIT 4.2
Form of Advisory Board Option Agreement by and between Astoria Financial
Corporation and Former Director of The Greater New York Savings Bank
dated September 30, 1997.
<PAGE>
EXHIBIT 4.2
-----------
ADVISORY BOARD OPTION AGREEMENT
-------------------------------
This OPTION AGREEMENT ("Agreement") is made and entered into
as of the ____ day of September, 1997 by and between ASTORIA FINANCIAL
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware and having an office at One Astoria Federal Plaza, Lake Success, New
York 11042-1085 ("Corporation") and _________________ residing at
____________________________________________ ("Advisory Director").
W I T N E S S E T H :
WHEREAS, pursuant to an Agreement and Plan of Merger dated as
of March 29, 1997 by and among the Corporation, Astoria Federal Savings and Loan
Association ("Association") and The Greater New York Savings Bank ("Merger
Agreement"), the Corporation will purchase all of the outstanding common stock
of The Greater New York Savings Bank ("Seller") and will cause the Seller to be
merged with and into the Association; and
WHEREAS, pursuant to the Merger Agreement, the Corporation has
agreed to cause certain members of the Seller's board of directors as of March
29, 1997 who are willing to serve to be elected or appointed as members of a
newly formed advisory board of the Corporation and to provide compensation for
such services in part through a grant of options as hereinafter provided; and
WHEREAS, the Advisory Director was a member of the Seller's
board of directors as of March 29, 1997 and is willing to serve in such
position;
NOW, THEREFORE, the Advisory Director and the Corporation
agree as follows:
SECTION 1. GRANT OF OPTION.
The Corporation hereby grants, and the Advisory Director
hereby accepts the Corporation's grant of, an Option, on the terms and
conditions hereinafter set forth, to purchase 4,000 shares of the Corporation's
common stock, par value $.01 per share (each, an "Optioned Share") at an
exercise price equal to the final sale price for a share of the Corporation's
Common Stock on the NASDAQ Stock Market System on September 30, 1997 as reported
in the New York City edition of the Wall Street Journal ("Exercise Price"). It
is not intended that any of the Options granted hereunder qualify as incentive
stock options described in section 422 of the Internal Revenue Code of 1986
("Code").
<PAGE>
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SECTION 2. TERM AND EXERCISE OF OPTIONS.
(a) Each Option shall be exercisable as to an Optioned Share
at any time beginning on the date of this Agreement and ending on the date ten
years after the date of this Agreement ("Expiration Date").
(b) The Option shall be exercisable in whole or in part;
PROVIDED, HOWEVER, that no partial exercise of the Option shall be for an
aggregate Exercise Price of less than One Thousand Dollars ($1,000). The partial
exercise of an Option shall not cause the expiration, termination or
cancellation of the remaining portion thereof. Upon the partial exercise of the
Option, this Agreement, marked with any notations deemed appropriate by the
Corporation, shall be returned to the Advisory Director together with the
delivery of the certificates described in section 2(e) hereof.
(c) The Option shall be exercised by delivering notice to the
Corporation's principal office, to the attention of its Corporate Secretary, no
less than three (3) business days in advance of the effective date of the
proposed exercise. Such notice shall be accompanied by this Agreement, shall
specify the number of Optioned Shares with respect to which the Option is being
exercised and the effective date of the proposed exercise, and shall be signed
by the Advisory Director. The Advisory Director may withdraw such notice at any
time prior to the close of business on the business day immediately preceding
the effective date of the proposed exercise, in which case the Agreement shall
be returned to him. Payment for Optioned Shares purchased upon the exercise of
the Option shall be made on the effective date of such exercise either (i) in
cash, by certified check, bank cashier's check or wire transfer or (ii) subject
to the approval of the Corporation, in shares of common stock of the Corporation
("Common Stock") owned by the Option Holder and valued at their Fair Market
Value (as defined in section 8 hereof) on the effective date of such exercise,
or partly in shares of Common Stock with the balance in cash, by certified
check, bank cashier's check or wire transfer. Any payment in shares of Common
Stock shall be effected by the delivery of such shares to the Corporate
Secretary of the Corporation, duly endorsed in blank or accompanied by stock
powers duly executed in blank, together with any other documents and evidences
as the Corporate Secretary of the Corporation shall require from time to time.
(d) During the life of the Advisory Director, the Option shall
be exercisable only by him. The Option shall not be assignable or transferable
otherwise than by will or by the laws of descent and distribution.
(e) Certificates for shares of Common Stock purchased upon the
exercise of the Option shall be issued in the name of the Advisory Director and
delivered to the Advisory Director as soon as practicable following the
effective date on which the Option is exercised.
(f) The exercise of all or any portion of the Option shall
have the effect of reducing the number of Optioned Shares by the number of
shares of Common Stock acquired upon such exercise. At the close of business on
the Expiration Date, the number of Optioned Shares available for purchase shall
be reduced to zero.
<PAGE>
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SECTION 3. CERTAIN ADJUSTMENTS IN THE OPTION.
(a) Subject to any required action by the shareholders of the
Corporation, in the event of any increase or decrease in the number of issued
shares of Common Stock resulting from a subdivision or consolidation of shares
of Common Stock or the payment of a stock dividend (but only on the shares of
Common Stock), or any other increase or decrease in the number of such shares
effected without receipt of consideration by the Corporation, the Corporation
shall proportionally adjust the number of shares of Common Stock subject to the
Option and the Exercise Price per Optioned Share.
(b) Subject to any required action by the shareholders of the
Corporation, in the event that the Corporation shall be the surviving
corporation in any merger or consolidation (except a merger or consolidation as
a result of which the holders of shares of Common Stock receive securities of
another corporation), the Option, to the extent outstanding on the date of such
merger or consolidation, shall pertain to and apply to the securities which a
holder of the number of shares of Common Stock subject to such Option on such
date would have received in such merger or consolidation, and an appropriate
adjustment shall be made in the Exercise Price.
(c) In the event of (i) a dissolution or liquidation of the
Corporation, (ii) a sale of all or substantially all of the Corporation's
assets, (iii) a merger or consolidation involving the Corporation in which the
Corporation is not the surviving corporation or (iv) a merger or consolidation
involving the Corporation in which the Corporation is the surviving corporation
but the holders of shares of Common Stock receive securities of another
corporation and/or other property, including cash, the Corporation shall either:
(A) cancel, effective immediately prior to the occurrence of
such event, the Option and, in full consideration of such cancellation,
pay to the Advisory Director an amount in cash, for each Optioned Share
then subject to the Option, equal to the excess of (I) the value, as
determined by the Corporation in its absolute discretion, of the
property (including cash) received by the holder of a share of Common
Stock as a result of such event over (II) the Exercise Price; or
(B) provide for the exchange of the Option for an option on
some or all of the property for which the Common Stock of the
Corporation is exchanged and, incident thereto, make an equitable
adjustment as determined by the Corporation in its absolute discretion
in the Exercise Price, or the number of shares or amount of property
subject to the Option, or both, or, if appropriate, provide for a cash
payment to the Advisory Director in partial consideration for the
exchange of the Option.
The Corporation shall take the same action under this section 3(c) as it takes
under any similar provision of the stock options granted to executive officers
of the Corporation.
(d) In the event of any change in the capitalization of the
Corporation or corporate change other than those specifically referred to in
sections 3(a), (b), or (c) hereof, the
<PAGE>
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Corporation shall make such adjustments in the number and class of shares
subject to the Option outstanding on the date on which such change occurs and in
the Exercise Price as is appropriate to prevent dilution or enlargement of
rights.
(e) Except as expressly provided herein, the Advisory Director
shall have no rights by reason of any subdivision or consolidation of shares of
stock of any class, the payment of any dividend, any increase or decrease in the
number of shares of stock of any class or any dissolution, liquidation, merger
or consolidation of the Corporation or any other corporation. Except as
expressly provided herein, no issuance by the Corporation of shares of stock of
any class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number of Optioned Shares.
SECTION 4. RIGHTS AS A STOCKHOLDER.
No person shall have any rights as a stockholder with respect
to any shares of Common Stock covered by or relating to the Option until the
date of the issuance of a stock certificate with respect to such shares. Except
as otherwise expressly provided in section 3 hereof, no adjustment to the Option
shall be made for dividends or other rights for which the record date occurs
prior to the date such stock certificate is issued.
SECTION 5. WITHHOLDING TAXES.
(a) Whenever shares of Common Stock are to be issued upon the
exercise of the Option, the Corporation shall have the right to require the
Advisory Director to remit to the Corporation in cash an amount sufficient to
satisfy federal, state and local withholding tax requirements, if any,
attributable to such exercise payment prior to the delivery of any certificate
or certificates for such shares.
(b) At the election of the Advisory Director, but subject to
the approval of the Corporation, when shares of Common Stock are to be issued
upon the exercise of the Option, in lieu of the remittance required by section
5(a) hereof, the Advisory Director may tender to the Corporation a number of
shares of Common Stock determined by him, the Fair Market Value (as defined in
section 8 hereof) of which at the tender date the Corporation determines to be
sufficient to satisfy the federal, state and local withholding tax requirements,
if any, attributable to such exercise, occurrence or grant and not greater than
the Advisory Director's estimated total federal, state and local tax obligations
associated with such exercise.
(c) At the election of the Advisory Director, but subject to
the approval of the Corporation, when shares of Common Stock are to be issued
upon the exercise of the Option, in lieu of the remittance required by section
5(a) hereof, the Corporation shall withhold a number of such shares determined
by the Advisory Director, the Fair Market Value (as defined in section 8 hereof)
of which at the exercise date the Corporation determines to be sufficient to
satisfy the federal, state and local withholding tax requirements, if any,
attributable to such exercise and not
<PAGE>
-5-
greater than the Advisory Director's estimated total federal, state and local
tax obligations associated with such exercise.
SECTION 6. NO OBLIGATION TO EXERCISE.
The grant to the Advisory Director of the Option shall impose
no obligation to exercise such Option.
SECTION 7. TRANSFERS UPON DEATH.
Upon the death of the Advisory Director, the Option may be
exercised only by the executors or administrators of the Advisory Director's
estate or by any person or persons who shall have acquired such right to
exercise by will or by the laws of descent and distribution. No transfer by will
or the laws of descent and distribution shall be effective to bind the
Corporation unless the Corporation shall have been furnished with (a) written
notice thereof and with a copy of the will and/or such evidence as the
Corporation may deem necessary to establish the validity of the transfer and (b)
an agreement by the transferee to comply with all the terms and conditions of
the Option that are or would have been applicable to the Advisory Director and
to be bound by the acknowledgements made by the Advisory Director in connection
with the grant of the Option. Except as provided in this section 7, the Option
shall not be transferable and may only be exercised during the Advisory
Director's lifetime by the Advisory Director.
SECTION 8. DEFINITION OF FAIR MARKET VALUE.
The "Fair Market Value" of a share of Common Stock with
respect to any day shall be (a) the closing sales price on the immediately
preceding business day of a share of Common Stock as reported on the principal
securities exchange on which shares of Common Stock are then listed or admitted
to trading (including as a securities exchange for this purpose the NASDAQ
National Market System) or (b) if not so reported, the average of the closing
bid and ask prices on the immediately preceding business day as reported on the
National Association of Securities Dealers, Inc. Automated Quotations System or
(c) if not so reported, as furnished by any member of the National Association
of Securities Dealers, Inc., selected by the Corporation. In the event that the
price of a share of Common Stock shall not be so reported, the Fair Market Value
of a share of Common Stock shall be determined by the Corporation in its
absolute discretion.
SECTION 9. REGISTRATION AND DELIVERY OF OPTIONED SHARES.
The Corporation's obligation to deliver shares of Common Stock
under this Agreement shall, if the Corporation so requests, be conditioned upon
the receipt of a representation as to the investment intention of the person to
whom such shares are to be delivered, in such form as the Corporation shall
determine to be necessary or advisable to comply
<PAGE>
-6-
with the provisions of applicable federal, state or local law. It may be
provided that any such representation shall become inoperative upon a
registration of the shares of Common Stock or upon the occurrence of any other
event eliminating the necessity of such representation. The Corporation shall
not be required to deliver any shares of Common Stock under this Agreement prior
to (a) the admission of such shares of Common Stock to listing on any stock
exchange on which Common Stock may then be listed, or (b) the completion of such
registration or other qualification under any state or federal law, rule or
regulations as the Corporation shall determine to be necessary or advisable. In
the event that the Corporation refuses, pursuant to the preceding sentence, to
deliver shares of its Common Stock upon the exercise of the Option, the
Corporation shall pay to the Advisory Director in a lump sum in cash not later
than the proposed exercise date an amount, for each share of Common Stock with
respect to which the Option was proposed to be exercised, in cancellation of
such Option with respect to such share, equal to the excess of (i) the Fair
Market Value (determined pursuant to section 8) of a share of Common Stock on
the proposed exercise date over (ii) the Exercise Price of the Option.
SECTION 10. REGISTRATION RIGHTS.
At or as soon as practicable following the effective date
provided for in the Merger Agreement, the Corporation shall prepare and file
with the Securities and Exchange Commission on Form S-8 (or another
substantially equivalent form promulgated by the Securities and Exchange
Commission and available to the Corporation) a registration statement covering
the issuance of the Optioned Shares in compliance with applicable laws, rules
and regulations. Following such filing, the Corporation shall take such actions
as are necessary to maintain the effectiveness of such registration through the
Expiration Date or, if earlier, the date on which no Optioned Shares remain
available for purchase hereunder. Notwithstanding anything contained herein to
the contrary, the Corporation's obligations under this section will not require
the Corporation to incur any unreasonable expenses.
SECTION 11. NOTICES.
Any communication required or permitted to be given hereunder,
including any notice, direction, designation, comment, instruction, objection or
waiver, shall be in writing and shall be deemed to have been given at such time
as it is delivered personally or five (5) days after mailing if mailed, postage
prepaid, by registered or certified mail, return receipt requested, addressed to
such party at the address listed below, or at such other address as one such
party may by written notice specify to the other party:
<PAGE>
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(a) If to the Corporation
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042-1085
Attention: CORPORATE SECRETARY
(b) If to the Advisory Director, to the Advisory
Director's address first above written.
No notice given to any party shall be deemed effective as to such party until
actually received.
SECTION 12. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and shall be
binding upon the Corporation and the Advisory Director and their respective
heirs, successors and assigns.
SECTION 13. CONSTRUCTION OF LANGUAGE.
Whenever appropriate in the Agreement, words used in the
singular may be read in the plural, words used in the plural may be read in the
singular, and words importing the masculine gender may be read as referring
equally to the feminine or the neuter. Any reference to a section shall be a
reference to a section of this Agreement, unless the context clearly indicates
otherwise. The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section.
SECTION 14. AMENDMENT.
This Agreement may be amended, in whole or in part, at any
time and from time to time, by written agreement between the Corporation and the
Advisory Director.
SECTION 15. SEVERABILITY.
A determination that any provision of this Agreement, in whole
or in part, is invalid or unenforceable shall not affect the validity or
enforceability of any other provision hereof or of any part of the provision in
question not determined to be unenforceable.
<PAGE>
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SECTION 16. WAIVER.
Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 17. COUNTERPARTS.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
SECTION 18. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York without giving effect to
the conflict of law principles of such laws.
SECTION 19. ENTIRE AGREEMENT.
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes in its entirety any and
all prior agreements, understandings or rep resentations relating to the subject
matter hereof.
SECTION 20. DISPUTE RESOLUTION.
Any controversy or claim arising out of or relating to this
Agreement, or the breach hereof, shall be settled by arbitration in accordance
with the Commercial Rules of the American Arbitration Association, and judgment
upon the award rendered by the arbitral tribunal may be entered in any court
having jurisdiction thereof. The arbitration shall be held in Nassau County, New
York, or at such other place as may be selected by mutual agreement. The
arbitration shall be conducted before a panel of three neutral arbitrators, all
of whom shall be members of the Bar of the State of New York, actively engaged
in practice of law for at least ten (10) years. Within fifteen (15) days after
the commencement of the arbitration, each party shall select one person to act
as arbitrator, and the two selected shall select a third arbitrator within ten
(10) days after their appointment; if the arbitrators selected by the parties
hereto are unable or fail to agree upon the third arbitrator, the third
arbitrator shall be selected by the President of the American Arbitration
Association or his designee. Either party may, without inconsistency with this
Agreement, seek from a court any interim or provisional relief that may be
necessary to protect the rights or
<PAGE>
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property of that party pending the arbitral tribunal's determination of the
merits of the controversy. Neither party nor the arbitrators may disclose the
existence, content, or results of any arbitration hereunder without the prior
written consent of both parties. The prevailing party shall be entitled to an
award of reasonable attorneys' fees.
SECTION 21. ACCEPTANCE BY OPTION HOLDER.
By executing this Agreement and returning a fully executed
copy hereof to the Corporation at the address specified in section 11, the
Option Holder signifies his acceptance of the terms and conditions of this
Option. If a fully executed copy of this Agreement is not received by the
Corporation within forty-five (45) days after the date first above written, the
Corporation may revoke the Option granted, and thereby avoid all obligations,
hereunder.
<PAGE>
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IN WITNESS WHEREOF, the Advisory Director has executed, and
the Corporation has caused its duly authorized representative to execute, this
Agreement as of the date first above written.
ASTORIA FINANCIAL CORPORATION
By:
---------------------------------
Signature
Title:
------------------------------
Date:
-------------------------------
ATTEST:
- ---------------------------------
Secretary
[SEAL]
[ADVISORY DIRECTOR]
------------------------------------
Signature
Date:
-------------------------------
EXHIBIT 5./EXHIBIT 23.1
Opinion of Thacher Proffitt & Wood, counsel for Registrant,
as to the legality of the securities being registered
Consent of Thacher Proffitt & Wood
<PAGE>
[OPINION LETTERHEAD OF THACHER PROFFIT & WOOD]
Writer's Direct Dial
212-912-7435
September 30, 1997
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042-1085
Re: Astoria Financial Corporation Option Conversion
Agreements and Advisory Board Option Agreements
-----------------------------------------------
Dear Sirs:
We have acted as counsel for Astoria Financial Corporation, a
Delaware corporation ("Corporation"), in connection with the filing of a
registration statement on Form S-8 under the Securities Act of 1933, as amended
("Registration Statement") with respect to 273,840 shares of its common stock,
par value $.01 per share ("Shares"), which may be issued pursuant to four Option
Conversion Agreements dated September 30, 1997 by and between the Corporation
and each of Gerard C. Keegan, Michael J. Henchy, Daniel J. Harris and Franklin
Berkowitz and pursuant to eight Advisory Board Option Agreements dated September
30, 1997 by and between the Corporation and each of William F. de Neergaard,
James G. Peel, C. Stephen Connolly, Philip F. Ruppel, George H. Sorter, Nicholas
A. Marshall, William F. Ward and Gwendolyn Calvert Baker ("Agreements"). In
rendering the opinion set forth below, we do not express any opinion concerning
law other than the federal law of the United States and the corporate law of the
States of New York and Delaware.
We have examined originals or copies, certified or otherwise
identified, of such documents, corporate records and other instruments as we
have deemed necessary or advisable for purposes of this opinion. As to matters
of fact, we have examined and relied upon the Agreements described above and,
where we have deemed appropriate, representations or certificates of officers of
the Corporation or public officials. We have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents submitted to us as copies.
<PAGE>
Astoria Financial Corporation
September 30, 1997 Page 2.
Based on the foregoing, we are of the opinion that the Shares
which are being registered pursuant to the Registration Statement have been duly
authorized and, when issued and paid for in accordance with the terms of the
Agreements, such Shares will be validly issued, fully paid and non-
assessable.
In rendering the opinion set forth above, we have not passed
upon and do not purport to pass upon the application of "doing business" or
securities or "blue-sky" laws of any jurisdiction (except
federal securities law).
This opinion is given solely for the benefit of the
Corporation and purchasers of shares under the Agreements, and no other person
or entity is entitled to rely hereon without express written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to our Firm's name therein.
Very truly yours,
THACHER PROFFITT & WOOD
By /s/ W. Edward Bright
------------------------
W. Edward Bright
EXHIBIT 23.2
Consent of KPMG Peat Marwick LLP
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<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Astoria Financial Corporation
We consent to incorporation by reference in the registration statement of Form
S-8 of Astoria Financial Corporation of our report dated January 23, 1997,
relating to the consolidated statements of financial condition of Astoria
Financial Corporation and subsidiary as of December 31, 1996 and 1995, and the
related consolidated statements of operations, changes in stockholders' equity
and cash flows for each of the years in the three-year period ended December 31,
1996, which report appears in the December 31, 1996 Annual Report on Form 10-K
of Astoria Financial Corporation.
/s/ KPMG Peat Marwick LLP
New York, New York
September 30, 1997
