<PAGE> 1
As filed with the Securities and Exchange Commission on October 15, 1997
Registration No. 333-35565
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
POST EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DIME BANCORP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 11-3197414
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
589 Fifth Avenue, New York, New York 10017
(Address of Principal Executive Offices) (Zip Code)
DIME BANCORP, INC. INCENTIVE STOCK OPTION PLAN
(Full Title of the Plan)
GENE C. BROOKS, ESQ.
General Counsel
589 Fifth Avenue, New York, New York 10017
(Name and Address of Agent for Service)
(212) 326-6170
(Telephone Number, Including Area Code, of Agent For Service)
<PAGE> 2
This Post Effective Amendment No. 1 to the Registration Statement
relates to the registration of 1,954,653 shares of common stock, par value $.01
per share (the "Common Stock"), of Dime Bancorp, Inc. (the "Company"), to be
offered or sold pursuant to the assumption by the Company of the North American
Mortgage Company Incentive Stock Option Plan (the "Plan") upon the consummation
of the merger (the "Merger") of 47th St. Property Corporation, an indirect
subsidiary of the Company, with and into North American Mortgage Company
("NAMC"), such Merger to be effective on or after October 15, 1997.
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2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference:
(i) The Company's Registration Statement on Form 8-A as filed
with the Commission on January 10, 1995, which includes a description of the
Common Stock;
(ii) The Company's Annual Report on Form 10-K for the year
ended December 31, 1996;
(iii) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997 and June 30, 1997; and
(iv) The Company's Current Reports on Form 8-K filed with the
Commission on April 23 and 25, 1997, May 10, 1997, June 16, 23 and 27, 1997 and
July 25, 1997.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the filing of any post-effective
amendment which indicates that all stock offered has been sold or which
deregisters all stock then remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof from the
date of their filing. Any statement contained in a document 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 other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
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3
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Ira T. Wender is a director of The Dime Savings Bank of New York, FSB
("Dime Savings Bank") and the Company. Mr. Wender is the sole owner of Ira T.
Wender, P.C., which, commencing January 1, 1994, became Of Counsel at Patterson,
Belknap, Webb & Tyler LLP. During that period, the firm represented Dime Savings
Bank and the Company in certain legal matters. Fees paid to the firm in
connection with such representation for the years 1994, 1995 and 1996 were
$1,319,897, $1,636,723 and $1,164,875 respectively. The Company has retained the
firm to perform legal services during 1997. The firm will give an opinion on the
validity of the securities being registered.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated Certificate of Incorporation of the Company
(the "Certificate") contains provisions expressly permitted under Delaware law
that limit certain types of causes of action that can be maintained by a
corporation (or by stockholders on behalf of the corporation) against its
directors. Accordingly, in any action by the Company or its stockholders against
the directors of the Company, the directors will not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
directors, except for (a) any breach of the directors' duty of loyalty to the
Company or its stockholders, (b) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (c)
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4
improper dividends or distributions or (d) transactions involving improper
personal benefit.
The Certificate provides indemnification rights to any person who is
made or threatened to be made a party to any action (other than an action by or
in the right of the Company) by reason of the fact that such person has served
as a director or officer of the Company (or of any other entity, including Dime
Savings Bank, at the request of the Company) with respect to costs, expenses,
judgments, fines and amounts paid in settlement. Subject to applicable banking
laws and regulations, these indemnification provisions apply if such person
acted in good faith and in a manner he or she reasonably believed to be in (or
not opposed to) the best interests of the Company and, with respect to a
criminal action, if such person had no reasonable cause to believe that his or
her conduct was unlawful. The persons described in the preceding sentence are
entitled to indemnification rights in an action by or in the right of the
Company with respect to costs, expenses and amounts paid in settlement, subject
to the same standards, except where there is an adjudication of liability (in
which case indemnification is permitted only upon a court determination that
indemnification is, in view of all the circumstances, fair and reasonable). The
Certificate also provides for the Company to advance expenses of litigation
described in this paragraph on an on-going basis.
Under the Certificate, indemnification of the costs and expenses of
defending any action is required to be made to any director or officer who is
successful (on the merits or otherwise) in defending the action. Furthermore,
indemnification also is required to be made with respect to all amounts referred
to in the preceding paragraph, unless a determination is made by a majority of
disinterested directors (or if the disinterested directors so requested, or if a
quorum of disinterested directors does not
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exist, by independent counsel or by the stockholders) that indemnification is
not proper because the director or officer has not met the applicable standard
of conduct.
The Certificate also permits (but does not require) the Company to
indemnify and advance expenses to its non-officer employees and agents in
connection with any civil, criminal, administrative or investigative actions,
suits or proceedings.
The Certificate also provides that if the Delaware General Corporation
Law is amended to expand the permitted indemnification of directors and
officers, then the Company will indemnify directors and officers to the fullest
extent permitted by such amendment.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, employees and agents of the Company
pursuant to Delaware law, or otherwise, the Company 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 Company of expenses incurred or paid by a
director, officer, employee or agent of the Company in the successful defense of
any action, suit or proceeding) is asserted by such director, officer, employee
or agent in connection with the securities being registered, the Company 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 of 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.
Pursuant to the terms of the Agreement and Plan of Merger dated as of
July 6, 1994, by and between the Company and Anchor Bancorp, Inc. ("Anchor"), as
amended,
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the Company will also indemnify each present and former director and officer of
Anchor, the Company and their respective subsidiaries against certain actions.
The Company will not be permitted to prepay (which would include the
direct or indirect transfer of any funds or assets and any segregation thereof
for the purpose of making, or pursuant to any agreement to make, any payment
thereafter) any legal expenses or amounts of, or costs incurred in connection
with, any settlement of, or judgment or penalty with respect to, any claim,
proceeding or action, if made in contemplation of, or after, any insolvency of
the Company or Dime Savings Bank or with a view to, or having the result of,
preventing the proper application of the assets of Dime Savings Bank to
creditors or preferring one creditor over another. Further, the Federal Deposit
Insurance Corporation (the "FDIC") is authorized by statute to prohibit or
limit, by regulation or order, both the Company and Dime Savings Bank from
indemnifying officers, directors and employees for liability or legal expense
with regard to any administrative proceeding or civil action by the appropriate
banking agency which results in a final order pursuant to which such person is
assessed a civil money penalty, is removed or prohibited from participating in
the conduct of the affairs of the institution or is required to cease and desist
or take affirmative action ordered by the agency. The FDIC has issued
regulations that implement this statutory authority.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Copy of the Dime Bancorp, Inc.
Incentive Stock Option Plan
5.1 Opinion of Counsel regarding the Legality of the
Common Stock Being Registered by the Company
23.1 Consent of Counsel (included in Opinion of Counsel)
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7
23.2 Consent of KPMG Peat Marwick LLP
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering. The 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
(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-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission 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 any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(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 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 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 Exchange Act; 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) Indemnification. 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
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9
that a claim for indemnification against such liabilities (other than the
payment by the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
<PAGE> 11
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, 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 City of New York, State of New York, on this 14th day of
October, 1997.
DIME BANCORP, INC.
(Registrant)
By:/s/ Lawrence J. Toal
--------------------------------
Lawrence J. Toal
Chief Executive Officer, President
and Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the following
capacities as of October 14, 1997.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ Lawrence J. Toal Chief Executive Officer, President,
- ------------------------- Chief Operating Officer and a
Lawrence J. Toal Director (Principal Executive
Officer)
/s/ James M. Large, Jr. Chairman of the Board
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James M. Large, Jr.
/s/ Derrick D. Cephas A Director
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Derrick D. Cephas
/s/ Frederick C. Chen A Director
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Frederick C. Chen
/s/ J. Barclay Collins II A Director
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J. Barclay Collins II
/s/ Richard W. Dalrymple A Director
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Richard W. Dalrymple
/s/ James F. Fulton A Director
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James F. Fulton
/s/ Virginia M. Kopp A Director
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Virginia M. Kopp
/s/ John Morning A Director
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John Morning
</TABLE>
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<TABLE>
<S> <C>
/s/ Margaret G. Osmer-McQuade A Director
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Margaret G. Osmer-McQuade
/s/ Sally Hernandez-Pinero A Director
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Sally Hernandez-Pinero
/s/ Dr. Paul A. Qualben A Director
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Dr. Paul A. Qualben
/s/ Eugene G. Schulz, Jr. A Director
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Eugene G. Schulz, Jr.
/s/ Howard Smith A Director
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Howard Smith
/s/ Dr. Norman R. Smith A Director
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Dr. Norman R. Smith
/s/ Ira T. Wender A Director
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Ira T. Wender
/s/ Anthony R. Burriesci Chief Financial Officer
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Anthony R. Burriesci
/s/ Harold E. Reynolds Controller
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Harold E. Reynolds
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit No. Page
- ----------- ----
<S> <C>
4.1 Copy of the Dime Bancorp, Inc.
Incentive Stock Option Plan...............................................
5.1 Opinion of Counsel regarding the Legality of the Common
Stock Being Registered by the Company.....................................
23.1 Consent of Counsel (included in Exhibit 5.1)..............................
23.2 Consent of KPMG Peat Marwick LLP..........................................
</TABLE>
<PAGE> 1
DIME BANCORP, INC.
INCENTIVE STOCK OPTION PLAN
DESCRIPTION OF THE PLAN
1. Purpose of the Plan. The Dime Bancorp, Inc. Incentive Stock Option
Plan (the "Plan") maintained by Dime Bancorp, Inc. (the "Company") is intended
to promote the growth and general prosperity of the Company by offering
incentives to the employees of North American Mortgage Company, an indirect
subsidiary of the Company ("NAMC") who are primarily responsible for NAMC's
growth, and to attract and retain qualified employees and thereby benefit
shareholders of the Company based on the growth of NAMC. Options granted under
the Plan may be designated as "incentive stock options" intended to qualify
under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"),
or as "non-qualified options" not intended to so qualify. In addition, this Plan
provides for grants of non-qualified options to members of the Board of
Directors of NAMC who are not officers or other employees of NAMC ("Non-employee
Directors"), which are intended to provide an opportunity for Non-employee
Directors to increase their interest as shareholders of the Company, which
serves to align the interests of Non-employee Directors with other shareholders.
2. Shares of Stock Subject to the Plan. The shares of stock with
respect to which options may be granted shall be the common stock, par value
$0.01 ("Common Stock"), of the Company. Shares delivered on the exercise of
options may, at the election of the Board of Directors of the Company, be
authorized but previously unissued stock or stock reacquired by the Company, or
both. Subject to the provisions of Section 11, the maximum number of shares with
respect to which options may be granted under the Plan (including any
replacement options granted pursuant to Section 6) shall not exceed 1,954,653
shares of the Company's Common Stock, such number reduced by the maximum number
of shares then available for issuance pursuant to the North American Mortgage
Company Employee Stock Purchase Plan. The number of shares of Common Stock which
may be issued under options granted under options granted under this Plan to any
one individual in any year shall not exceed 205,500. Any shares subject to an
option under the Plan, which option for any reason expires or is terminated
unexercised as to such shares, shall again be available for the grant of other
options under the Plan.
3. Administration. Except with respect to options granted to
Non-employee Directors pursuant to Section 5(b) hereof, the Plan shall be
administered by a committee ("Committee") composed of not less than two members
of the Board of Directors of the Company, all of whom qualify as disinterested
persons for purposes of Rule 16b-3(c)(2)(i) promulgated by the Securities and
Exchange Commission and at least two of whom qualify as "Outside Directors" as
that term is defined in Section 162(m) of the Code. Subject to the provisions of
the Plan, the Committee shall have full discretion and the exclusive power (i)
to select the employees who will participate in the Plan and to grant options to
such employees,
<PAGE> 2
(ii) to determine the time at which such options shall be granted and any terms
and conditions with respect to such options as shall not be inconsistent with
the provisions of the Plan, and (iii) to resolve all questions relating to the
administration of the Plan other than the portion of the Plan applicable to
Non-employee Directors. The Committee may delegate such of its responsibilities
under this Section 3 as it may deem fit to officers of the Company to the extent
that the exercise of such responsibilities relates solely to employees of the
Company who are not subject to Section 16 of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
The interpretation and application by the Committee of any provision of
the Plan applicable to persons other than Non-employee Directors shall be final
and conclusive on all employees and other persons having, or claiming to have,
an interest under the Plan. The Committee may in its discretion establish such
rules and guidelines relating to options granted under the Plan to persons other
than Non-employee Directors as it may deem desirable.
The Committee may employ such legal counsel, consultants and agents as
it may deem desirable for the administration of the Plan and may rely upon any
opinion received from any such counsel or consultant and any computation
received from any such consultant or agent.
The Committee shall keep minutes of its actions under the Plan.
No member of the Board of Directors or the Committee shall be liable
for any action or determination made in good faith with respect to the Plan or
any options granted hereunder.
Participants in the Plan may obtain additional information about the
Plan and the Committee by contacting the Company at its principal executive
offices at 589 Fifth Avenue, New York, NY 10017; telephone: (212) 326-6170.
4. Eligibility. The individuals who shall be eligible to receive grants
of options under Section 5(a) of the Plan shall be officers, management and such
other key employees of NAMC (including such persons who also serve as directors
of NAMC) as the Committee may from time to time determine. An employee who has
been granted an option in one year shall not necessarily be entitled to be
granted options in subsequent years.
5. Granting of Options, Option Price and Terms of Options.
(a) Options Granted to Employees. The Committee, at any time
and from time to time, may grant options under this Section 5(a) of the Plan to
any eligible employee. Each option granted under this Section 5(a) of the Plan
shall be evidenced by a stock option agreement between the employee to whom the
option is granted and the Company, which shall indicate whether or not the
option is an incentive stock option, and shall set forth the option
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<PAGE> 3
price for each share of Common Stock subject to the option, the term over which
the option may be exercised, and such other terms and conditions (which may
include performance-based or other vesting requirements) not inconsistent with
the Plan as the Committee may deem appropriate.
The option price for each share of the Common Stock subject to
an option granted under this Section 5(a) of the Plan shall not be less than (i)
in the case of an option intended to qualify as an incentive stock option, 100
percent of the fair market value of such Common Stock on the date the option is
granted, and (ii) in the case of a non-qualified option, 85 percent of the fair
market value of such Common Stock on the date the option is granted. For
purposes of this Section 5(a) of the Plan, the fair market value of a share of
the Common Stock shall be (1) if the Common Stock is traded on an established
securities market, the mean between the high and low prices of such Common Stock
for the day on which the option is granted, as reported on the composite tape,
and (2) if the Common Stock is not so traded, an amount determined by the
Committee in good faith and based upon such factors as it deems relevant to such
determination.
The term over which an option granted under this Section 5(a)
of the Plan may be exercised, subject to earlier termination of such option as
provided in Section 7(a), shall not exceed ten years from the date on which such
option is granted.
6. Replacement Options. In connection with the grant of an option (the
"initial option"), under Section 5(a) of the Plan, the Committee may provide for
the conditional grant of one or more additional options ("replacement options")
each of which (i) shall be deemed to be granted on the date on which the
optionee exercises the initial option to which it relates, in whole or in part,
(ii) covers that number of shares of Common Stock covered by the portion of the
initial option so exercised (or any lesser number), and (iii) provides for (A)
an option price equal to 100 percent of the fair market value of a share of
Common Stock on the date of exercise of the initial option, (B) a term equal to
the remainder of the term over which the initial option could have been
exercised, and (C) such other terms and conditions not inconsistent with the
provisions of the Plan. In any case in which more than one replacement option
has been provided for with respect to an initial option, references in this
Section 6 (other than clause (B) above) to the initial option shall, with
respect to each replacement option other than the first such replacement option
deemed to be granted, be deemed to refer to the replacement option the exercise
of which causes such replacement options to be granted. Shares of Common Stock
issuable pursuant to the exercise of replacement options shall be applied toward
the maximum number of shares issuable under the Plan in accordance with Sections
2 and 11.
Notwithstanding the foregoing provisions of this Section 6, replacement
options may be granted with respect to incentive stock options only as permitted
by Section 422 of the Code.
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<PAGE> 4
7. Exercise of Options.
(a) Exercise by Employees. Options granted under Section 5(a)
of the Plan may be exercised by an optionee only while he is, and continuously
since the date the option was granted has been, an employee of NAMC or one of
its subsidiaries, except that (i) if the optionee's termination of employment is
other than for willful misconduct in the performance of his duties for NAMC or
subsidiary, any options held by the optionee may be exercised, to the extent
then exercisable, for a period of three months after the date of such
termination of employment; (ii) if such termination of employment is by reason
of retirement or disability, any options held by the optionee will become fully
and immediately exercisable and may be exercised for a period of twelve months
after the date of such termination of employment; (iii) in the event of the
death of the optionee after the termination of his employment pursuant to (i) or
(ii) above, the person or persons to whom the optionee's rights are transferred
by will or the laws of descent and distribution shall have a period of twelve
months from the date of termination of the optionee's employment to exercise any
options which the optionee could have exercised during such period; and (iv) in
the event of the death of an optionee while the optionee while employed, any
options then held by the optionee shall become fully and immediately exercisable
and may be exercised by the person or persons to whom the optionee's rights are
transferred by will or the laws of descent and distribution for a period of one
year after the optionee's death. Notwithstanding the previous sentence, options
granted under Section 5(a) of the Plan after May 7, 1993 may be exercised by an
optionee only while he is, and continuously since the date the option was
granted has been, an employee of NAMC or one of its subsidiaries, except that
(i) if the optionee's termination of employment is other than for willful
misconduct in the performance of his duties for NAMC or subsidiary, any options
held by the optionee may be exercised, to the extent then exercisable, for a
period of six months after the date of such termination of employment; (ii) if
such termination of employment is by reason of retirement or disability, any
options held by the optionee will become fully and immediately exercisable and
may be exercised for a period of twelve months after the date of such
termination of employment; (iii) in the event of the death of the optionee after
the termination of his employment pursuant to (i) or (ii) above, the person or
persons to whom the optionee's rights are transferred by will or the laws of
descent and distribution shall have a period of twelve months from the date of
termination of the optionee's employment to exercise any options which the
optionee could have exercised during such period; and (iv) in the event of the
death of an optionee while employed, any options then held by the optionee shall
become fully and immediately exercisable and may be exercised by the person or
persons to whom the optionee's rights are transferred by will or the laws of
descent and distribution for a period of one year after the optionee's death.
Notwithstanding the foregoing, the Committee may, in its discretion, allow any
such option to remain exercisable (and to continue to vest pursuant to its
original vesting schedule) following the optionee's termination of employment or
death. In no event, however, shall any option be exercisable after the date
specified in Section 5(a) or Section 9, as applicable.
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<PAGE> 5
(b) General. An option granted hereunder shall be exercisable,
in whole or in part, only by written notice delivered in person or by mail to
the Company at its principal office, specifying the number of shares to be
purchased and accompanied by payment therefore and otherwise in accordance with
the option agreement pursuant to which the option was granted.
The person exercising an option granted under Section 5(a) may
tender to the Company shares of Common Stock in partial or full payment of the
price of the shares to be purchased pursuant to the option. Such shares shall be
taken into account at their fair market value (as determined by the Committee in
accordance with Section 5(a)) on the date of the exercise of the option, and the
amount of cash required to be paid by the person exercising the option shall be
the amount, if any, by which the total price of the shares to be purchased
exceeds the fair market value of the shares tendered by the person exercising
the option.
8. Tax Withholding. The Committee may establish such rules and
procedures as it considers desirable in order to satisfy any obligation of the
Company or any subsidiary to withhold Federal income taxes or other taxes with
respect to the exercise of an option granted under Section 5(a) hereof,
including, without limitation, rules and procedures permitting an optionee to
elect that the Company withhold shares of Common Stock otherwise issuable upon
exercise of such option in order to satisfy such withholding obligation.
9. Incentive Stock Option Limitations. No employee may be granted
options intended to qualify as incentive stock options under Section 422 of the
Code under the Plan and all other incentive stock option plans of the Company
(and its parent corporation or subsidiary corporation, if any) which are
exercisable for the first time during any calendar year with respect to stock
having an aggregate fair market value (determined as of the time the option is
granted) greater than $100,000. To the extent that options granted to an
employee exceed the limitation set forth in the preceding sentence, the later
granted of such option shall be treated as options which are not incentive stock
options. Nothing herein contained shall be deemed to prevent the Committee from
granting to an employee in any year options which qualify as incentive stock
options and options which do not so qualify. For purposes of the Plan, the terms
"parent corporation" and "subsidiary corporation" shall have the respective
meanings set forth in Section 424 of the Code.
Notwithstanding the foregoing provisions of the Plan, if an incentive
stock option is granted to an individual who owns (within the meaning of Section
422(b)(6) of the Code), on the date the option is granted, stock possessing more
than ten percent of the total combined voting power of all classes of stock of
such individual's employer corporation or of its parent corporation or
subsidiary corporation, if any, then (i) the option price for each share of
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Common Stock subject to an incentive stock option granted to such individual
shall not be less than 110 percent of the fair market value of such Common Stock
on the date the option is granted, and (ii) the incentive stock option by its
terms shall not be exercisable after the expiration of five years from the date
the option is granted.
10. Change of Control; Limited Rights. In the event of a Change of
Control affecting the Company, then, notwithstanding any provision of the Plan
or any provisions of any stock option agreements entered into between the
Company and any optionee to the contrary, all options granted under Section 5(a)
of the Plan which have not expired and which are then held by any optionee (or
the person or persons to whom any deceased optionee's rights have been
transferred) shall, as of such Change of Control, become fully and immediately
exercisable and may be exercised for the remaining term of such options. In
addition, for the sixty-day period following a Change of Control affecting the
Company, each optionee who is not then subject to the restrictions of Section
16(b) of the Exchange Act (or the person or persons to whom any deceased
optionee's rights have been transferred) shall be entitled to elect to surrender
all or any portion of his options which were granted under Section 5(a) hereof
to the Company in consideration for a cash payment in an amount equal to, for
each share of Common Stock subject to the surrendered options, the excess of the
highest fair market value for the Common Stock during such sixty-day period (or,
if greater, the price offered for a share of Common Stock pursuant to a tender
offer pending such a period) over the option price for such share under the
surrendered options.
For the purposes of the Plan, a "Change of Control" affecting the
Company shall be deemed to have taken place upon (i) the acquisition by a third
person, including a "group" as defined in Section 13(d)(3) of the Exchange Act,
of shares of the Company having 15% or more of the total number of votes that
may be cast for the election of Directors of the Company, (ii) shareholder
approval of a transaction for the acquisition of the Company, or substantially
all of its assets, by another entity or for a merger, reorganization,
consolidation or other business combination to which the Company is a party or
(iii) the election during any period of 24 months or less of 50% or more of the
Directors of the Company where such Directors were not in office immediately
prior to such period; provided, however, that no "Change of Control" shall be
deemed to have taken place by reason of any event or occurrence described herein
if the Directors of the Company in office on the date of adoption of the Plan,
or their successors in office nominated by such Directors or Directors so
nominated, affirmatively approve a resolution to such effect within 30 days of
such event or occurrence.
11. Dilution or other Adjustment. If the Company is a party to any
merger or consolidation, or undergoes any separation, reorganization or
liquidation, the Board of Directors of the Company shall have the power to make
arrangement, which shall be binding upon the holders of unexpired options, for
(i) the substitution of new options for, or the assumption by another
corporation of, any unexpired options then outstanding hereunder, or (ii) the
cancellation of such outstanding options and the payment by the Company of an
amount determined by the Board of Directors of the Company in consideration
therefore. In the case
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of any incentive stock option, an action described in clause (i) of the
preceding sentence shall be taken only in the manner and to the extent permitted
by Sections 422 and 424 of the Code. In addition, in the event of a
reclassification, stock split, combination of shares, separation (including a
spin-off), dividend on shares of the Common Stock payable in stock, or other
similar change in capitalization or in the corporate structure of shares of the
Common Stock of the Company, the Board of Directors of the Company shall
conclusively determine the appropriate adjustment in the option prices of
outstanding options, in the number and kind of shares or other securities as to
which outstanding options shall be exercisable and in the aggregate number of
shares with respect to which options may be granted with a view toward
maintaining the proportionate interest of the optionee and preserving the value
of such options. In the case of any incentive stock option, any such adjustment
in the shares or other securities subject to the option (including any
adjustment in the option price) shall be made in such manner as not to
constitute a modification as defined by Section 424(h)(3) of the Code and only
to the extent permitted by Sections 422 and 424 of the Code.
12. Assignability. No option granted under this Plan shall be sold,
pledged, assigned or transferred other than by will or the laws of descent and
distribution, and during an optionee's lifetime an option shall be exercisable
only by him (or, in the event of the optionee's incapacity, by his duly
appointed guardian or legal representative).
13. Amendment or Termination. The Board of Directors of the Company may
at any time amend, suspend or terminate the Plan; provided, however, that (i) no
change in any options therefore granted may be made without the consent of the
holder thereof, and (ii) no amendment (other than an amendment authorized by
Section 11) may be made increasing the aggregate number of shares of the Common
Stock with respect to which options may be granted, reducing the minimum option
price at which options may be granted, extending the maximum period during which
options may be exercised or changing the class of persons eligible to receive
options hereunder, without the approval of the holders of a majority of the
outstanding voting shares of the Company. In addition, the provisions of this
Plan applicable to Non-employee Directors may not be amended more than once
every six months other than to comport with changes in the Code, the Employee
Retirement Income Security Act of 1974, or the rules thereunder.
14. General Provisions. No options may be exercised by the holder
thereof if such exercise, and the receipt of cash or stock thereunder, would be
contrary to law or the regulations of any duly constituted authority having
jurisdiction over the Plan.
Absence on leave approved by a duly constituted officer of the Company
or any of its subsidiaries shall not be considered interruption or termination
of service of any employee for any purposes of the Plan or options granted
hereunder, except that no options may be granted to an employee while he is
absent on leave.
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<PAGE> 8
No optionee shall have any rights as a shareholder with respect to any
shares subject to options granted to him under the Plan prior to the date as of
which he is actually recorded as the holder of such shares upon the stock
records of the Company.
Nothing contained in the Plan or in any options granted hereunder shall
confer upon any employee any right to continue in the employ of the Company or
any of its subsidiaries, or interfere in any way with the right of the Company
or any of its subsidiaries to terminate his employment at any time.
Any stock option agreement issued in connection with a grant of options
under Section 5(a) of the Plan may provide that stock issued upon exercise of
any options may be subject to such restrictions, including, without limitation,
restrictions as to transferability and restrictions constituting substantial
risks or forfeiture, as the Committee may determine at the time such option is
granted.
15. Effective Date. The effective date of the Plan is July 14, 1992.
16. Termination. The Plan shall terminate on the date preceding the
date which is ten years following the effective date specified in Section 15. No
option may be granted after the termination of the Plan, but options previously
granted may be exercised in accordance with their terms.
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<PAGE> 1
[PATTERSON, BELKNAP, WEBB & TYLER LLP LETTERHEAD]
October 15, 1997
Dime Bancorp, Inc.
589 Fifth Avenue
New York, New York 10017
Dear Sirs:
We have acted as counsel to Dime Bancorp, Inc., a Delaware
corporation (the "Company"), in connection with the proposed registration by
the Company under the Securities Act of 1933, as amended (the "Act"), of
1,954,653 shares (the "Shares") of the Company's Common Stock, par value $.01
per share (the "Common Stock"), pursuant to the Company's registration
statement on Post Effective Amendment No. 1 on Form S-8 to Form S-4
Registration Statement (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") on the date hereof.
In rendering this opinion we have examined the Company's Certificate
of Incorporation and Bylaws, each as amended to date, and the minutes of the
corporate proceedings taken by the Company in connection with the authorization
of the Shares. We have also examined the originals, or copies certified or
otherwise identified to us, of the corporate records of the Company,
certificates of public officials and representatives of the Company, and such
other documents and records, and have made such investigations of law, as we
have deemed necessary for purposes of this opinion. We have assumed the
genuineness of all signatures, the conformity to the original of all copies and
the factual accuracy of all certificates submitted to us.
<PAGE> 2
On the basis of the foregoing, we are of the opinion that the Shares
have been duly authorized by all necessary corporate action on the part of the
Company and when sold and delivered as contemplated by the Registration
Statement will constitute duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock.
We express no opinion as to laws other than the corporate laws of
the State of Delaware and the laws of the United States of America.
We hereby consent to the filing of this opinion with the Commission
as an exhibit to the Registration Statement. In furnishing this opinion and
giving this consent, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Act, or the rules and
regulations of the Commission thereunder.
PATTERSON, BELKNAP, WEBB & TYLER LLP
By: s/ Patterson, Belknap, Webb & Tyler LLP
---------------------------------------
A Member of the Firm
<PAGE> 1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Dime Bancorp, Inc.:
We consent to incorporation by reference in the Post Effective Amendment No. 1
on Form S-8 to the Form S-4 Registration Statement of Dime Bancorp, Inc. of our
report dated January 27, 1997, relating to the consolidated statements of
financial condition of Dime Bancorp, Inc. and subsidiaries as of December 31,
1996 and 1995, and the related consolidated statements of income, 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 Dime Bancorp, Inc. Our report included an
explanatory paragraph that described a change in the method of accounting for
goodwill, as discussed in the notes to those statements.
/s/ KPMG Peat Marwick LLP
New York, New York
October 14, 1997
