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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________-
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 16, 1996
_____________________
Dime Bancorp, Inc.
________________________________________________________________________________
(Exact Name of Registrant as Specified in Charter)
Delaware 1-13094 11-3197414
______________________________ _____________________ _________________________
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number ) Identification No.)
589 Fifth Avenue
New York, New York 10017
________________________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (212) 326-6144
____________________________
Not applicable
________________________________________________________________________________
(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
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In connection with an offering by the Federal Deposit Insurance
Corporation, as manager of the FSLIC Resolution Fund of 8,407,500 shares of
common stock of Dime Bancorp, Inc. ("Dime"), Dime entered into a Purchase
Agreement, dated May 16, 1996 (the "Purchase Agreement"), among Dime, the
Federal Deposit and Insurance Corporation, as manager of the FSLIC Resolution
Fund, and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as representative for the several underwriters named in Schedule A
thereto. A form of Purchase Agreement appeared as Exhibit 1 to Dime's
Registration Statement on Form S-3 (No. 333-3372).
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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The following exhibit is attached to this Current Report
1 - The Purchase Agreement.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
DIME BANCORP, INC.
By: /s/ James M. Large, Jr.
________________________________
Name: James M. Large, Jr.
Title: Chairman of the Board,
Chief Executive Officer
and Director
Date: May 21, 1996
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Exhibit Index
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Exhibit Item Page
- ------- ---- ----
1 - Purchase Agreement, dated May 16, 5
1996, among Dime Bancorp, Inc., the
Federal Deposit and Insurance
Corporation, as manager of the FSLIC
Resolution Fund, and Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as representative
for the several underwriters named
in Schedule A thereto.
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EXHIBIT 1
______________________________________________________________________________
______________________________________________________________________________
DIME BANCORP, INC.
(a Delaware corporation)
8,407,500 Shares of Common Stock
PURCHASE AGREEMENT
Dated: May 16, 1996
______________________________________________________________________________
______________________________________________________________________________
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DIME BANCORP, INC.
(a Delaware corporation)
8,407,500 Shares of Common Stock
(Par Value $0.01 Per Share)
PURCHASE AGREEMENT
------------------
May 16, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
as Representative of the several Underwriters
North Tower
World Financial Center
New York, New York 10281-l209
Ladies and Gentlemen:
Dime Bancorp, Inc., a Delaware corporation (the "Company"), and the
Federal Deposit Insurance Corporation, a corporation duly organized and existing
under the laws of the United States (the "FDIC"), as the manager of the FSLIC
Resolution Fund (the "FRF;" the FDIC in its capacity as manager of the FRF is
referred to herein as the "Selling Stockholder"), confirm their respective
agreements with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Merrill Lynch is acting as representative (in such capacity,
the "Representative"), with respect to the sale by the Selling Stockholder, and
the purchase by the Underwriters, acting severally and not jointly, of 8,407,500
shares (the "Securities") of Common Stock, par value $.01 per share (the "Common
Stock"), of the Company. The Securities are issuable to the Selling Stockholder
at a price of $0.01 per share of Common Stock pursuant to the warrant, dated as
of July 9, 1993 (the "Warrant"), issued by the Company (as successor to Anchor
Bancorp, Inc.) to the Selling Stockholder.
The Company and the Selling Stockholder understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representative deems advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-3372) covering the
registration
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of the Securities under the Securities Act of 1933, as amended (the "1933 Act"),
including the related preliminary prospectus or prospectuses. Promptly after
execution and delivery of this Agreement, the Company will either (i) prepare
and file a prospectus in accordance with the provisions of Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Company has elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for
use in connection with the offering of the Securities, is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary prospectus dated April 26, 1996 together with the Term Sheet and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
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SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company
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represents and warrants to each Underwriter and the Selling Stockholder as of
the date hereof and as of the Closing Time referred to in Section 2(b) hereof,
as follows:
(i) Compliance with Registration Requirements. The Company meets
-----------------------------------------
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act; no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
filed and at the Closing Time, included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement, any post-
effective amendment to the Registration Statement, the Prospectus or any
amendment or supplement to the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through Merrill Lynch or by the Selling Stockholder expressly
for use in the Registration Statement, the Prospectus or any such amendment
or supplement.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act and the 1933 Act
Regulations.
(ii) Incorporated Documents. The documents incorporated or deemed
----------------------
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time
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they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the
time the Prospectus was issued and at the Closing Time, did not and will
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which such statements were made, not misleading.
(iii) Independent Accountants. The accountants who certified the
-----------------------
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The consolidated statements of
--------------------
financial condition, consolidated statements of income, consolidated
statements of changes in stockholders' equity and consolidated statements
of cash flows included in the Registration Statement and the Prospectus,
together with the related schedules and notes (the "Financial Statements"),
present fairly in all material respects the consolidated financial
position, results of operations, changes in stockholders' equity and cash
flows of the Company and its consolidated subsidiaries at the dates
indicated and, for the periods specified, as the case may be, subject in
the case of unaudited balance sheets and statements to normal year-end
audit adjustments; said Financial Statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved, except as may be
noted therein, subject in the case of unaudited balance sheets and
statements to normal year-end audit adjustments and the limited scope of
the notes thereto.
(v) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change, or development involving a prospective material
adverse change, in the financial condition, results of operation or
stockholders' equity of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company
and its subsidiaries considered as one enterprise, and (C) there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing under
the laws of the state of
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Delaware and has corporate power and authority to own, lease and operate
its properties and to conduct its business in all material respects as
described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. The Dime Savings Bank of New
-----------------------------
York, FSB (the "Bank") has been duly organized and is validly existing as a
federally chartered stock savings bank and is a member in good standing of
the Federal Home Loan Bank of New York; the Bank's deposit accounts are
insured up to applicable limits by the Savings Association Insurance Fund
or the Bank Insurance Fund, each of the FDIC; and no proceeding for the
termination or revocation of such insurance is pending or, to the knowledge
of the Company or the Bank, threatened. The Bank is the only "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) and has corporate power and authority to own, lease and
operate its properties and to conduct its business in all material respects
as described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of the Bank has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of the Bank was issued in violation of
the preemptive or similar rights of any securityholder of such Subsidiary.
The only subsidiaries of the Company are the subsidiaries listed on
Schedule C hereto.
(viii) Capitalization. The Securities have been duly authorized
--------------
and, when issued and delivered in accordance with the terms of the Warrant,
will be duly and validly issued and fully paid and non-assessable; none of
the outstanding shares of Common Stock was issued, and the Securities will
not be issued, in violation of the preemptive or other similar rights of
any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities. The Common Stock
-------------------------------------------
conforms to the description thereof under the heading "Description of
Capital Stock" contained in the Prospectus and such description, insofar as
it purports to be a
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summary of the instruments defining the rights of holders of the Common
Stock, is accurate, complete and fair; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company nor
---------------------------------
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement (including the
issuance and sale of the Securities) and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of,
default under or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any subsidiary or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the
------------------------
employees of the Company or any subsidiary exists or, to the knowledge of
the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
----------------------
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened,
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against or affecting the Company or any subsidiary, which, individually or
in the aggregate for all such actions, suits, proceedings, inquiries or
investigations, is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect (other than as disclosed in the
Registration Statement), or which might reasonably be expected to
materially and adversely affect the properties or assets thereof (other
than as disclosed in the Registration Statement) or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder.
(xiv) Exhibits. There are no contracts or documents which are
--------
required to be described in the Registration Statement, the Prospectus or
the documents incorporated by reference therein, or to be filed as exhibits
thereto, which have not been so described or filed as required.
(xv) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or
state securities laws.
(xvi) Possession of Licenses and Permits. The Company and its
----------------------------------
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xvii) Title to Property. The Company and its subsidiaries have
-----------------
good and marketable title to all real property reflected in the most recent
balance sheet included in the Prospectus as owned by the Company and its
subsidiaries and good title to all other properties reflected in the most
recent balance sheet included in the Prospectus as owned by them, in each
case, free and clear of all mortgages, pledges, liens, security
7
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interests, claims, restrictions or encumbrances of any kind except such as
(a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries or, with respect
to any such real property, render title unmarketable as to a material part
thereof; and all of the leases and subleases material to the business of
the Company and its subsidiaries, considered as one enterprise, and under
which the Company or any of its subsidiaries holds properties described in
the Prospectus, are in full force and effect, and neither the Company nor
any subsidiary has any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary to
the continued possession of the leased or subleased premises under any such
lease or sublease.
(xviii) Compliance with Cuba Act. The Company has complied with,
------------------------
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba, codified as
Section 517.075 of the Florida statutes, and the rules and regulations
thereunder (collectively, the "Cuba Act") or is exempt therefrom.
(xix) Environmental Laws. Except as described in the Registration
------------------
Statement or except as would not, singly or in the aggregate, result in a
Material Adverse Effect: (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D)
there are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or redemption, or an action, suit
or proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
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(xx) Not an Investment Company. The Company is not an "investment
-------------------------
company" or a company "controlled by" an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(b) Representations and Warranties by the Selling Stockholder. The
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Selling Stockholder represents and warrants to each Underwriter and the Company
as of the date hereof and as of the Closing Time, and agrees with each
Underwriter and the Company as follows:
(i) The Warrant. The Selling Stockholder has as of the date of this
-----------
Agreement, good and valid title to the Warrant, free and clear of all
liens, encumbrances, security interests and claims whatsoever; and at or
prior to the Closing Time, the Selling Stockholder will have duly
authorized and exercised the Warrant and complied with all of the
conditions applicable to the Selling Stockholder for such exercise,
including the payment of the consideration specified therein, and pursuant
to such exercise, at the Closing Time, the Selling Stockholder shall have
good and valid title to the Securities being sold pursuant to this
Agreement, free and clear of all liens, encumbrances, security interests
and claims whatsoever; and upon sale and delivery of, and payment for, such
Securities, as provided herein, at the Closing Time, the Selling
Stockholder will convey to the Underwriters good and valid title to such
Securities, free and clear of all liens, encumbrances, security interests
and claims whatsoever.
(ii) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by the Selling Stockholder and is the
legal, valid and binding agreement of the Selling Stockholder, enforceable
in accordance with its terms.
(iii) Absence of Violations. Neither the execution and delivery of
---------------------
this Agreement, nor the sale of the Securities by the Selling Stockholder,
nor the consummation of any of the other transactions contemplated herein,
nor the fulfillment of the terms hereof, has violated or will violate any
provision of Federal law as administered by the FDIC or to which the
Selling Stockholder is subject.
(iv) Accuracy of Information Regarding Selling Stockholder and FDIC.
--------------------------------------------------------------
Such parts of the Registration Statement and the Prospectus comprising
information under the caption "The Selling Stockholder" which specifically
relate to the Selling Stockholder and the FDIC will not, at the date the
Registration Statement becomes effective, contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and at
the date of the Prospectus and at the Closing Time will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading.
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(v) Authority to Execute this Agreement. The FDIC has statutory
-----------------------------------
authority to execute this Agreement on behalf of the Selling Stockholder
pursuant to 12 U.S.C. 1821a, to sell, assign, transfer and deliver the
Securities being sold by the Selling Stockholder hereunder in the manner
provided herein, to perform its obligations under this Agreement and to
take all other actions taken by it on behalf of the Selling Stockholder in
connection herewith.
(vi) Absence of Proceedings. No actions, suits or proceedings before
----------------------
or by any court or governmental agency, body or authority, or arbitrator
are pending or, to the best of the Selling Stockholder's knowledge,
threatened or contemplated, seeking to prevent the sale of the Securities
or the consummation of this Agreement.
(vii) Absence of Manipulation. The FDIC and the Selling Stockholder
-----------------------
have not taken and will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result under the 1934 Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(c) Officer's Certificates. Any certificate signed by any officer of
----------------------
the Company or any of its subsidiaries delivered to the Representative or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter and to the Selling Stockholder as to the matters
covered thereby, without personal liability for the officer signing such
certificate; and any certificate signed by or on behalf of the Selling
Stockholder as such and delivered to the Representative or to counsel for the
Underwriters pursuant to the terms of this Agreement shall be deemed a
representation and warranty by the Selling Stockholder to the Underwriters and
to the Company as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Securities. On the basis of the representations and warranties
----------
herein contained and subject to the terms and conditions herein set forth, the
Selling Stockholder agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Selling Stockholder, at the price per share set forth in Schedule B,
the number of Securities set forth in Schedule A opposite the name of the
Underwriter, plus any additional number of Securities which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 10 hereof,
subject, in each case, to such adjustments among the Underwriters as the
Representative in its sole discretion shall make to eliminate any sales or
purchases of fractional securities.
(b) Payment. Payment of the purchase price for, and delivery of
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certificates for, the Securities shall be made at the offices of Cleary,
Gottlieb, Steen & Hamilton, One Liberty Plaza, New York, New York, 10006, or at
such other place as shall be agreed upon by the Representative, the Company and
the Selling Stockholder, at 10:00 A.M. Eastern time
10
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on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on
any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by the Representative
and the Company and the Selling Stockholder (such time and date of payment and
delivery being herein called the "Closing Time").
Payment shall be made to the Selling Stockholder by wire transfer of
immediately available funds to a bank account designated by the Selling
Stockholder against (a) exercise by the Selling Stockholder of the Warrant in
accordance with the terms thereof, including the payment for the Common Stock
purchased pursuant to such Warrant, and (b) delivery by the Company to the
Representative for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities that it has agreed to purchase. Merrill Lynch, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time but such
payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities
---------------------------
shall be in such denominations and registered in such names as the
Representative may request in writing at least one full business day before the
Closing Time. The certificates for the Securities will be made available for
examination and packaging by the Representative in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time.
SECTION 3. Covenants of the Company. The Company covenants with each
------------------------
Underwriter and the Selling Stockholder as follows:
(a) Compliance with Securities Regulations and Commission Requests.
--------------------------------------------------------------
The Company, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representative and the
Selling Stockholder promptly, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not,
11
<PAGE>
it will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representative
--------------------
and the Selling Stockholder notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule
462(b)), any Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish the Representative and the Selling Stockholder with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Selling Stockholder, the Representative or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
-----------------------------------
will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representative, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters.
(d) Delivery of Prospectuses. The Company has delivered to each
------------------------
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request.
(e) Continued Compliance with Securities Laws. The Company will
-----------------------------------------
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations to the extent necessary to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
the Underwriters or the Company, based upon advice of counsel, to amend the
12
<PAGE>
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or if it shall be necessary, in the opinion of such
party, based upon the advice of counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
-----------------------
in cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Representative may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
Statement.
(g) Rule 158. The Company will timely file such reports pursuant to
--------
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to effect the
-------
listing of the Securities on the New York Stock Exchange.
(i) Restriction on Sale of Securities. During a period of 45 days
---------------------------------
from the date of the Prospectus, the Company will not, without the prior written
consent of Merrill Lynch, (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise.
13
<PAGE>
The foregoing sentence shall not apply to (A) the Securities to be sold
hereunder, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof and referred to in the Prospectus, (C) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant to existing
employee benefit plans of the Company referred to in the Prospectus, (D) any
shares of Common Stock issued pursuant to any non-employee director stock plan
or dividend reinvestment plan or (E) an acquisition.
(j) Reporting Requirements. The Company, during the period when the
----------------------
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations and the Company will cause the Bank to file all documents required
to be filed with any supervisory, regulatory, administrative or governmental
agency, body or authority, whether pursuant to the 1934 Act and the 1934 Act
Regulations or otherwise (except reports to any bank or thrift regulatory
agencies prepared on a confidential basis), except when the failure to file such
documents could not reasonably be expected to result, directly or indirectly, in
a Material Adverse Effect.
SECTION 4. Payment of Expenses. (a) Expenses. The Company and the
------------------- --------
Selling Stockholder covenant and agree with one another and with the several
Underwriters that (a) the Company will pay the following expenses incident to
this Agreement: (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally filed and
of each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, (iv) the
fees and disbursements of the Company's counsel, accountants and other advisors,
(v) the qualification of the Securities under securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of any transfer agent or registrar for the Securities,
(ix) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review by the NASD of
14
<PAGE>
the terms of the sale of the Securities, (x) the fees and expenses incurred in
connection with the listing of the Securities on the New York Stock Exchange and
(xi) the fees and disbursements of Brown & Wood, outside counsel for the Selling
Stockholder.
(b) Expenses of the Selling Stockholder. The Selling Stockholder will
-----------------------------------
pay or cause to be paid all costs and expenses incident to the performance of
its obligations hereunder that are not otherwise specifically provided for in
this Section. Merrill Lynch agrees to pay any state stock transfer tax and the
Selling Stockholder agrees to reimburse Merrill Lynch for associated carrying
costs if such tax payment is not rebated on the day of payment and for any
portion of such tax payment not rebated. It is understood, however, that,
except as provided in this Section and Sections 6, 7 and 9 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stamp duties, capital duties and stock transfer taxes, if any,
payable on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
(c) Termination of Agreement. If this Agreement is terminated by the
------------------------
Representative in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company shall reimburse the Underwriters for all of
their reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
(d) Effect on Warrant. This Section 4 shall not affect the
-----------------
arrangements between the Company and the Selling Stockholder for payment of
expenses contained in the Registration Rights Agreement attached as Exhibit II-A
to the Warrant, which shall remain in effect as between the Company and the
Selling Stockholder and, solely as between the Company and the Selling
Stockholder, shall govern in the event of any inconsistency with this Section 4.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
---------------------------------------
of the several Underwriters hereunder are subject to the accuracy, as of the
Closing Time, of the representations and warranties of the Company and the
Selling Stockholder contained in Section 1 hereof or in certificates of any
officer of the Company or any subsidiary of the Company or on behalf of the
Selling Stockholder delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder to
be performed at or prior to the Closing Time, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
---------------------------------------
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing the Rule 430A
Information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post-effective amendment providing such information shall
have been filed and declared
15
<PAGE>
effective in accordance with the requirements of Rule 430A) or, if the
Company has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
------------------------------
Representative shall have received the favorable opinions, dated as of
Closing Time, of Sullivan & Cromwell, special counsel for the Company, and
Gene C. Brooks, Esq., Executive Vice President and General Counsel for the
Company, in each instance in form and substance reasonably satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of
such opinions for each of the other Underwriters, collectively to the
effect set forth in Exhibit A hereto.
(c) Opinion of Counsel for the Selling Stockholder. At Closing Time,
----------------------------------------------
the Representative shall have received the favorable opinion, dated as of
Closing Time, of the Deputy General Counsel for the Selling Stockholder, in
form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letters for each of the
other Underwriters to the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
-----------------------------------
Representative shall have received the favorable opinion, dated as of
Closing Time, of Cleary, Gottlieb, Steen & Hamilton, counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters with respect to such matters as they may
reasonably request. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States, and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representative. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have
---------------------
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change, or
development involving a prospective material adverse change, in the
financial condition, results of operations or stockholders' equity of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representative and the
Selling Stockholder shall have received a certificate signed by the
President or a Vice President of the Company and by the chief financial or
chief accounting officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and
satisfied all
16
<PAGE>
conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or are contemplated by the Commission.
(f) Certificate of Selling Stockholder. The FDIC shall have furnished
----------------------------------
to the Representative and the Company a certificate, signed by the acting
Director or an Associate Director of Resolutions of the FDIC, dated the
date of the Closing Time, to the effect that the signer of such certificate
has carefully examined the Registration Statement, the Prospectus, any
amendment or supplement to the Prospectus, and this Agreement and that the
representations and warranties of the FDIC and the Selling Stockholder in
this Agreement are true and correct in all material respects on and as of
the Closing Time to the same effect as if made at the Closing Time and the
FDIC and the Selling Stockholder have complied with all the agreements and
satisfied all the conditions on their part to be performed or satisfied at
or prior to the Closing Time.
(g) Accountant's Comfort Letter'. At the time of the execution of
---------------------------
this Agreement, the Representative shall have received from KPMG Peat
Marwick LLP a letter dated such date, in form and substance satisfactory to
the Representative, together with signed or reproduced copies of such
letter for each of the other Underwriters, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, the Representative
-------------------------
shall have received from KPMG Peat Marwick LLP a letter, dated as of
Closing Time, to the effect that it reaffirms the statements made in the
letter furnished pursuant to subsection (g) of this Section, except that
the specified date referred to shall be a date not more than three business
days prior to Closing Time.
(i) Approval of Listing. At the Closing Time, the Securities shall
-------------------
have been approved for listing on the New York Stock Exchange, subject only
to official notice of issuance.
(j) No Objection. The NASD shall not have raised any objection with
------------
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(k) Additional Documents. At the Closing Time, counsel for the
--------------------
Underwriters shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company and the Selling Stockholder in
17
<PAGE>
connection with the issuance and sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this
------------------------
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representative by notice to the
Company at any time at or prior to Closing Time, and such termination shall
be without liability of any party to any other party, except as provided in
Section 4, and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification by the Company. The Company agrees to indemnify
------------------------------
and hold harmless the Selling Stockholder, each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act to the extent and in the manner as set forth
below:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch or the
Selling Stockholder), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission,
18
<PAGE>
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company (A) by the Selling Stockholder, or (B) by any Underwriter through
Merrill Lynch, expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided further that the foregoing indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such loss, liability, claim or damage purchased
Securities if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary prospectus is eliminated or remedied in the
Prospectus (as amended or supplemented by the Company if the Company shall have
furnished any amendments or supplements thereto) and a copy of the Prospectus
(as so amended or supplemented), which at such time had been provided to the
Underwriters for their use, shall not have been furnished to such person at or
prior to the written confirmation of sale of such Securities to such person.
(b) Indemnification by the Selling Stockholder. The Selling
------------------------------------------
Stockholder agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, and each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the extent and in the manner as set forth below
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Selling Stockholder expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Indemnification by the Underwriters. Each Underwriter severally
-----------------------------------
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, and the Selling Stockholder, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to
19
<PAGE>
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Merrill Lynch expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party
-------------------------------------
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a) or 6(b) above, counsel to the indemnified parties shall be selected by
Merrill Lynch, and in the case of parties indemnified pursuant to Section 6(c)
above, counsel to the indemnified parties shall be selected by the Company or
the Selling Stockholder, as the case may be. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(e) Other Agreements. The provisions of this Section shall not affect
----------------
any agreement between the Company and the Selling Stockholder, or between the
Representative and the Selling Stockholder, with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party (other than pursuant to the terms thereof) in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate
20
<PAGE>
amount of such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Selling Stockholder
on the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other hand in connection
with the offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Selling Stockholder (which for purposes of this
Agreement shall be treated as a benefit of both the Company and the Selling
Stockholder) and the total underwriting discount received by the Underwriters,
in each case as set forth on the cover of the Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company and the Selling Stockholder on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Stockholder or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholder and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public
21
<PAGE>
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among
the Company and the Selling Stockholder with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
- --------
Agreement, or in certificates of officers of the Company or the Selling
Stockholder submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company or the
Selling Stockholder, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representative may terminate this
--------------------
Agreement, by notice to the Company and the Selling Stockholder, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change, or development involving a
prospective material adverse change, in the financial condition, results of
operations or stockholders' equity of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representative, impracticable to market the Securities or
to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or limited by the Commission or the
New York Stock Exchange, or if trading
22
<PAGE>
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
-----------
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6 and 7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or
------------------------------------------
more of the Underwriters shall fail at Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then: (a) if the number of
Defaulted Securities does not exceed 10% of the number of Securities to be
purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or (b) if the
number of Defaulted Securities exceeds 10% of the number of Securities to be
purchased on such date, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative, the Company or the
Selling Stockholder shall have the right to postpone Closing Time, for a period
not exceeding seven days, in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Default by the Selling Stockholder or the Company. If
-------------------------------------------------
(a) the Selling Stockholder shall fail at Closing Time to exercise the Warrant
in accordance with its terms, including the payment to the Company that it is
obligated to deliver thereunder, or (b) if the Selling Stockholder shall make
such delivery but the Company shall fail to deliver the Securities to the
Representative, then the Underwriters may, at the option of the Representative,
by notice from the Representative to the Company and the Selling
23
<PAGE>
Stockholder, terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 1, 4, 6 and 7 shall
remain in full force and effect. No action taken pursuant to this Section 11
shall relieve the defaulting party from liability, if any, in respect of such
default.
SECTION 12. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at North Tower, World
Financial Center, New York, New York 10281-1201, attention of ____________;
notices to the Company shall be directed to it at 589 Fifth Avenue, New York,
New York 10017, attention of General Counsel; and notices to the Selling
Stockholder shall be directed to the Federal Deposit Insurance Corporation, 550
17th Street, N.W., Washington, DC 20429, attention of the General Counsel.
SECTION 13. Parties. This Agreement shall inure to the benefit of
-------
and be binding upon each of the Underwriters, the Company and the Selling
Stockholder and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and the Selling
Stockholder and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company and the Selling Stockholder
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT
AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 15. Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
24
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Selling Stockholder a
counterpart hereof, whereupon this agreement, along with all counterparts, will
become a binding agreement among the Underwriters, the Company and the Selling
Stockholder in accordance with its terms.
Very truly yours,
DIME BANCORP, INC.
By /s/ James M. Large, Jr.
___________________________
Name:
Title:
FEDERAL DEPOSIT INSURANCE CORPORATION,
as the manager of the FSLIC Resolution Fund
By /s/ Gail Patelunas
_____________________________
Name: G. Patelunas
Title: Acting Director
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Henry R. Michaels
___________________________________
Authorized Signatory
For itself and as Representative of the other Underwriters named in
Schedule A hereto.
25
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Name of Underwriter Securities
- ------------------- ----------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.......................... 4,707,500 shares
Bear, Stearns & Co. Inc................ 200,000
CS First Boston Corporation............. 200,000
Dean Witter Reynolds Inc............... 200,000
Goldman, Sachs & Co..................... 200,000
Keefe, Bruyette & Woods, Inc............ 200,000
Lehman Brothers Inc..................... 200,000
Montgomery Securities................... 200,000
Oppenheimer & Co., Inc................. 200,000
PaineWebber Incorporated................ 200,000
Prudential Securities Incorporated..... 200,000
Smith Barney Inc....................... 200,000
Utendahl Capital Partners, L.P.......... 200,000
Advest, Inc............................. 100,000
M.R. Beal & Company..................... 100,000
Dominick & Dominick, Incorporated...... 100,000
Fahnestock & Co. Inc................... 100,000
First Albany Corporation................ 100,000
First Manhattan Co..................... 100,000
Fox-Pitt, Kelton Inc.................... 100,000
Friedman, Billings, Ramsey & Co., Inc... 100,000
Janney Montgomery Scott Inc............. 100,000
Johnston, Lemon & Co. Incorporated...... 100,000
Legg Mason Wood Walker, Incorporated... 100,000
Muriel Siebert & Co., Inc.............. 100,000
H.C. Wainwright & Co., Inc.............. 100,000
---------
Total 8,407,500
=========
</TABLE>
Sch A-1
<PAGE>
SCHEDULE B
DIME BANCORP, INC.
8,407,500 Shares of Common Stock
(Par Value $0.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $11.75.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $11.40, being an amount equal to the initial
public offering price set forth above less an amount of $.35 per share
representing the underwriting discount set forth on page 1 of the Prospectus.
Sch B-1
<PAGE>
SCHEDULE C
List of subsidiaries
FORMER ANCHOR AND LINCOLN SUBSIDIARIES
(as of May 15, 1996)
ACCORD AGENCY, INC.
ACCORD GREENWICH STREET PROPERTIES, INC.
ACCORD REALTY MANAGEMENT CORPORATION
ANCHOR FINANCIAL CORP.(1)
ANCHOR MORTGAGE RESOURCES, INC.(2)
ANCHOR MORTGAGE SERVICES, INC.(3)
ANCHOR PROPERTIES OF NEW JERSEY, INC.
ANCHOR PROPERTY CORP.
ANCHOR RESIDENTIAL FACILITIES CORP.
ANCHOR SYSTEMS CORP.(4)
APRIL PARK CORP.
ASB AGENCY, INC.
69-30 AUSTIN HOLDING CORP.
CANAL LINC, INC.
THE CHELSEA ACCORD CORPORATION
THE DALTON ACCORD CORPORATION(5)
DIME NJ AGENCY, INC.(6)
THE E-F BATTERY ACCORD CORPORATION
FAMESLINC, INC.(7)
GLEN LINC, INC.
HARMONY AGENCY, INC.(8)
HERITAGE COMMUNITY SERVICE CORP.
HOLLIS 184, INC.(9)
INSERVCO, INC.
520 LINC, INC.
180 LINCOLN, INC.
LINCOLN BARRY GARDENS ACQUISITION CORP.
LINCOLN CONGREGATE CARE SERVICES CORPORATION
LINCOLN DEVELOPMENT, INC.
LINCOLN HERITAGE SQUARE, INC.
315-329 LINCOLN PLACE CORP.
LINCOLN REALTY CAPITAL, INC.(10)
LINCOLN RRE CORPORATION
LINCOLN TUDOR COURT ACQUISITION CORP.
LINCOLN VENTURES GROUP LTD.
_________________
(1) F/K/A SIERRA CAPITAL CORP.
(2) F/K/A MORTGAGE RESOURCES, INC.
(3) F/K/A SUBURBAN COASTAL CORP.
(4) F/K/A SUBURBAN COASTAL SYSTEMS CORPORATION WHICH
WAS F/K/A COASTAL COMPUTER SERVICES, INC.
(5) F/K/A THE SUTTON EAST ACCORD CORPORATION.
(6) F/K/A ASB/NJ AGENCY INC. WHICH WAS F/K/A SUBURBAN
COASTAL INSURANCE SERVICES, INC. WHICH WAS F/K/A
COASTAL INSURANCE SERVICES, INC.
(7) F/K/A 3489 BROADLINC, INC.
(8) F/K/A ALLRISK AGENCY, INC.
(9) F/K/A 312-163 EASTLINC, INC.
(10) F/K/A ACCORD PROPERTIES, INC.
-1-
<PAGE>
(FORMER ANCHOR/LINCOLN)
SUBSIDIARIES CONTINUED)
THE MOUNT KISCO ACCORD CORPORATION
78 NEW LINC CORPORATION(11)
NEW PELHANCO INC.
847218 ONTARIO LIMITED
847219 ONTARIO LIMITED
847220 ONTARIO LIMITED
847221 ONTARIO LIMITED
PELHAM VENTURE INC.
620-622 PELHANDALE AVENUE OWNERS CORPORATION
RECON SERVICES CORP.(12)
THE SEVENTH AVENUE ACCORD CORPORATION
THE SIXTH AVENUE ACCORD CORPORATION
SKY RESORT, INC.
STANDARD OF GEORGIA INSURANCE AGENCY, INC.
VILLAGE LINC CORP.(13)
300 WEST LINC. CORP
YELLOWSTONE VENTURE, INC.
- -------------
(11) F/K/A 78 NEW LINC CORP.
(12) F/K/A 1441 GRANT LINC, INC.
(13) F/K/A LINCOLN VILLAGE WALK CORPORATION
-2-
<PAGE>
WHOLLY-OWNED "DIME" SUBSIDIARIES
(AS OF MAY 15, 1996)
555 BILTMORE INC.(1)
445 CEDARHURST, INC.
COLONIAL BRISTOL INC.
DIME AGENCY, INC., THE
DIME FLORIDA CONSOLIDATION CORP.(2)
DIME METRO INTERCHANGE, INC., THE
DIME MORTGAGE, INC.(3)
DIME MORTGAGE OF ARIZONA, INC.
DIME MORTGAGE OF NEW JERSEY, INC.(4)
DIME MORTGAGE OF VIRGINIA, INC.
DIME REAL ESTATE SERVICES--CONNECTICUT, INC., THE
DIME SECURITIES OF NEW YORK, INC.(5)
DNJ AGENCY, INC.
F.C. LTD.
GARDEN MANAGEMENT CO., INC.
GRANNY ROAD LAND CORP.
HIGH STREET INC.
LAWRENCE AVENUE CORP.(6)
MEDFORD ASSOCIATES, INC.
MIDWAY HOLDINGS INC.(7)
NICKEL PURCHASING COMPANY, INC.
NIFTY CORP.
NORTHEAST APPRAISALS, INC.
NORTHSHORE CONSOLIDATION CORP.(8)
685 PARKER STREET INC.
PEMBROKE AND LIVINGSTON, INC.
PLAINVIEW INN, INC.
PRINCE FARMS DEVELOPMENT CORP.(9)
RESERVOIR AVENUE MANAGEMENT, INC.
299 SHORE LEE CORP.
SOMERSET CONSOLIDATION CORPORATION
UNIONDALE HOLDINGS INC.
VANDERVENTER CORP.
4400 V.M.H. CORP.
952 W. THIRD ST. CORP.(10)
WACCABORO CORP.
WAPPINGERS FALLS DEVELOPMENT CORP.
WINDY RIDGE CORP.
- -------------
(1) FORMERLY KNOWN AS ALHAMBRA CIRCLE, INC.
(2) FORMERLY KNOWN AS DIME MORTGAGE COMPANY, INC. WHICH WAS
FORMERLY KNOWN AS THE DIME REAL ESTATE SERVICES, INC.
(3) FORMERLY KNOWN AS DIME MORTGAGE OF GEORGIA, INC.
(4) FORMERLY KNOWN AS DIME OF NEW JERSEY, INC.
(5) FORMERLY KNOWN AS TDA SECURITIES INC.
(6) FORMERLY KNOWN AS 220 CENTRAL AVENUE CORP. WHICH WAS
FORMELY KNOWN AS HICKS STREET, INC.
(7) FORMERLY KNOWN AS MIDWAY GREEN INC.
(8) FORMERLY KNOWN AS DIME CONSOLIDATION COMPANY, INC.
(9) FORMERLY KNOWN AS PEARL PLAZA INC. WHICH WAS FORMERLY
KNOWN AS PARK LANE SOUTH CORP.
(10) FORMERLY KNOWN AS MACARTHUR INC.
-3-
