<PAGE> 1
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): March 6, 2000
Dime Bancorp, Inc.
---------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware 001-13094 11-3197414
- ---------------- ------------- -----------------
(State or Other Jurisdiction) (Commission (IRS Employer
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) 326-6170
--------------
Not applicable
-----------------------------------
(Former Name or Former Address, if Changed Since Last Report)
<PAGE> 2
Item 5. Other Events.
------------
As previously announced, on March 5, 2000, North Fork Bancorporation
("North Fork") announced its intention to commence an offer to exchange each
outstanding share of common stock of Dime Bancorp. Inc. ("Dime") for 0.9302 of a
share of North Fork common stock and $2.00 in cash.
On March 6, 2000, North Fork filed a lawsuit in the Delaware Court of
Chancery against Dime, members of Dime's board of directors and Hudson United
Bancorp ("Hudson"), challenging a number of the provisions in the Dime-Hudson
merger agreement and alleging breaches of fiduciary duties by Dime's board of
directors. The complaint seeks, among other things, an order invalidating
certain provisions of the Dime-Hudson merger agreement.
Several class action lawsuits were also filed by stockholders of Dime
in the same court.
Dime intends to defend these actions vigorously and believes that they
are without merit.
-2-
<PAGE> 3
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
------------------------------------------------------------------
(a)-(b) Not applicable.
(c) Exhibits Required by Item 601 of Regulation S-K
Exhibit Number Description
-------------- -----------
99.1 Complaint, Brecher v. Toal, et.
al., Civil Action No. 17853NC
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.2 Complaint, Miller v. Toal, et.
al., Civil Action No. 17856
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.3 Complaint, Weiss v. Toal, et.
al., Civil Action No. 17857
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.4 Complaint, Susser v. Toal, et.
al., Civil Action No. 17858
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.5 Complaint, Lifshitz v. Toal, et.
al., Civil Action No. 17859
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.6 Complaint, Pill v. Toal, et.
al., Civil Action No. 17860
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.7 Complaint, Milite v. Toal, et.
al., Civil Action No. 17861
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.8 Complaint, Steiner v. Toal, et.
al., Civil Action No. 17862
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.9 Complaint, Shiry v. Toal, et.
al., Civil Action No. 17863
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.10 Complaint, Lewis v. Toal, et.
al., Civil Action No. 17864
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.11 Complaint, Coleman v. Toal, et.
al., Civil Action No. 17852NC
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.12 Complaint, North Fork
Bancorporation, Inc. v. Dime
Bancorp, Inc., et. al., Civil
Action No. 17850NC filed in the
Court of Chancery of the State
of Delaware in and for New
Castle County
-3-
<PAGE> 4
SIGNATURES
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/ Anthony Burriesci
------------------------------
Name: Anthony Burriesci
Title: Chief Financial Officer
Date: March 13, 2000
-4-
<PAGE> 5
EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
99.1 Complaint, Brecher v. Toal, et.
al., Civil Action No. 17853NC
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.2 Complaint, Miller v. Toal, et.
al., Civil Action No. 17856
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.3 Complaint, Weiss v. Toal, et.
al., Civil Action No. 17857
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.4 Complaint, Susser v. Toal, et.
al., Civil Action No. 17858
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.5 Complaint, Lifshitz v. Toal, et.
al., Civil Action No. 17859
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.6 Complaint, Pill v. Toal, et.
al., Civil Action No. 17860
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.7 Complaint, Milite v. Toal, et.
al., Civil Action No. 17861
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.8 Complaint, Steiner v. Toal, et.
al., Civil Action No. 17862
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.9 Complaint, Shiry v. Toal, et.
al., Civil Action No. 17863
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.10 Complaint, Lewis v. Toal, et.
al., Civil Action No. 17864
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.11 Complaint, Coleman v. Toal, et.
al., Civil Action No. 17852NC
filed in the Court of Chancery
of the State of Delaware in and
for New Castle County
99.12 Complaint, North Fork
Bancorporation, Inc. v. Dime
Bancorp, Inc., et. al., Civil
Action No. 17850NC filed in the
Court of Chancery of the State
of Delaware in and for New
Castle County
-5-
<PAGE> 1
Exhibit 99.1
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------x
JOSEPH BRECHER, | Civil Action No. 17853NC
|
Plaintiff, |
|
v. |
|
|
LAWRENCE TOAL; DERRICK D. CEPHAS; |
RICHARD W. DALRYMPLE; FRED B. KOONS; |
MARGARET OSMER-MCQUADE; HOWARD |
SMITH; FREDERICK C. CHEN; J. BARCLAY |
COLLINS II; JAMES F. FULTON; VIRGINIA |
M. KOPP; JAMES M. LARGE, JR.; JOHN |
MORNING; SALLY HERNANDEZ-PINERO; |
PAUL A. QUALBEN; EUGENE G. SCHULZ, JR.; |
NORMAN R. SMITH; IRA T. WENDER; |
DIME BANCORP, INC. and HUDSON |
UNITED BANCORP, |
|
Defendants. |
- --------------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Dime Bancorp,
Inc. ("Dime" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Dime is a corporation duly existing and organized under the laws of the
State of Delaware. Dime is a holding company for the Dime Savings Bank of New
York, FSB. The Company's business segments are retail banking, commercial
banking, mortgage banking, and
<PAGE> 2
investment portfolio.
3. Defendant Lawrence J. Toal is and at all times relevant hereto has been
President, Chairman of the Board, Chief Operating Officer and Chief Executive
Officer of Dime.
4. Defendants Derrick D. Cephas, Richard W. Dalrymple, Fred B. Koons,
Margaret Osmer-McQuade, Howard Smith, Ira T. Wender, Frederick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Paul A. Qualben, Eugene G. Schulz, Jr. and
Norman R. Smith are and at all times relevant hereto have been directors of
Dime.
5. The individual defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Dime, and owe plaintiff and the
other members of the class the highest obligations of good faith, fair dealing,
due care, loyalty and full and candid disclosure.
6. Hudson United Bankcorp ("Hudson") is a holding company for Hudson
United Bank, Lafayette American Bank and Bank of the Hudson.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
holders of Dime common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action because:
(a) The Class is so numerous that joinder of all members is
impracticable. There are approximately 110.9 million shares of Dime common stock
outstanding.
(b) There are questions of law and fact, including the following:
(1) whether the defendants have breached their fiduciary and
other
<PAGE> 3
common law duties owed by them to plaintiff and the other members of the Class;
and
(2) whether the Class is entitled to injunctive relief as a
result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
9. On or about September 15, 1999, Dime entered into a merger agreement
with Hudson which was subsequently restated and amended on or about December 27,
1999. Dime will be the surviving entity and will be renamed Dime United Bancorp,
Inc.
10. Under the terms of the merger agreement with Hudson, each Dime
stockholder will receive 0.60255 shares of Dime United stock for each share of
existing Dime stock. Hudson shareholders will receive 1.0 share of Dime United
stock for each share of Hudson common stock held. After the merger, Dime
stockholders will own 56% of Dime United and Hudson stockholders will own 44% of
the combined entity. Dime's shareholder meeting to vote upon the Hudson merger
agreement is set for March 15, 2000. Since the merger announcement in September
of 1999, Hudson's shares have declined in value by 31%.
11. In connection with the Hudson merger agreement, Dime and Hudson
entered into a
<PAGE> 4
Stock Option Agreement designed to discourage third party bids for Dime. Under
the Stock Option Agreement, Hudson can purchase up to 19.9% of Dime's common
stock for $17.75 per share (the "Lock-up Option"). The Lock-up Option is
generally triggered if (a) a third party acquires beneficial ownership of 25% or
more of Dime's outstanding common stock; or (b) Dime enters into a merger
agreement with a third party or the Company's board of directors recommends a
merger or similar transaction other than the Hudson transaction.
12. If Dime subsequently consummates an alternative transaction or over
50% of Dime is acquired by a third party, Hudson may force Dime to repurchase
the Lock-up Option and all or any part of the shares issued under the Option
from Hudson. In addition, Hudson may surrender the Lock-up Option and any shares
issued under the Lock-up Option for a cash fee to be paid by Dime equal to $50
million.
13. Moreover, in connection with the Hudson merger agreement, the
individual defendants will reap significant financial rewards. All outstanding
stock options issued under Dime's employee and director benefit plans that are
not exercisable will become exercisable because completion of the merger will
constitute a "change in control" under the terms of these plans. In addition,
any restrictions on restricted stock will also lapse at the completion of the
Hudson merger. The Dime options, stock appreciation rights, and restricted stock
that are expected to become exercisable or vest in connection with the Hudson
merger have a value estimated at $4.78 million.
14. Dime United will assume defendant Toal's employment agreement, which
was renegotiated after the merger agreement was executed. Toal's salary will be
at least $900,000 per year, with a target bonus of at least half that amount.
Toal will also be granted options to buy 150,000 shares of Dime United common
stock. Also, Dime's senior management will retain control of Dime United.
<PAGE> 5
15. In early March 2000, North Fork Bancorp ("North Fork") contacted Dime
to discuss an alternative proposal to purchase the Company. North Fork then
announced its intent to commence a $1.88 billion tender offer to acquire Dime in
a combination of cash and stock. Dime shareholders would get 0.9302 shares of
North Fork common stock and $2.00 in cash for each Dime share, or $17.00 based
upon North Fork's closing price on March 3, 2000. North Fork's proposal
represents over a 31% premium to Dime's closing price of March 3, 2000. In
addition, North Fork's offer represents a 41% premium to the consideration Dime
shareholders will receive under the Hudson merger. It is doubtful that Dime's
senior management would retain their offices if North Fork acquires Dime.
16. The individual defendants have rejected North Fork's offer. Defendant
Toal stated publicly "North Fork's offer is an attempt to destroy a transaction
that is in the best interests of Dime, its shareholders, and the communities it
serves. We are strongly committed to the [Hudson] transaction."
17. The Lock-up Option is designed to compensate Hudson in the event the
merger agreement is terminated pursuant to paragraph 11 above. Hudson's
potential profit from the Lock-up Option does not represent a reasonable
estimate of the damages it would incur as a result of the termination of the
merger agreement. The Lock-up Option is not designed to benefit Dime's
shareholders. Indeed, it may discourage North Fork from increasing its offer
because Hudson will benefit substantially from any such increase. The Lock-up
Option is unenforceable because, among other things, it inhibits the ability of
Dime's directors to negotiate with North Fork for a higher offer which will
enure to the benefit of Dime's shareholders.
18. In light of the North Fork offer, which is vastly superior to the
merger agreement with Hudson, the individual defendants have a fiduciary duty to
inform themselves fully about North
<PAGE> 6
Fork's offer and to negotiate with North Fork to improve its offer. By rejecting
North Fork's offer out-of-hand, the individual defendants have violated their
fiduciary duties of loyalty and due care which they owe to Dime's shareholders.
19. The individual defendants have refused to enter into any negotiations
with North Fork in an attempt to entrench themselves in their offices with the
Company and Dime United and to protect their substantial salaries and
prestigious positions. The individual defendants' placement of their own
interests ahead of the interests of Dime shareholders is in violation of their
fiduciary duties of loyalty and good faith.
20. Defendant Hudson has knowingly aided and abetted the breaches of
fiduciary duty committed by the other defendants to the detriment of Dime's
shareholders. Hudson is a party to and beneficiary of the unenforceable Lock-up
Option. Hudson and its stockholders are the intended beneficiaries of the wrongs
complained of herein and would be unjustly absent relief in this action.
21. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining fair consideration for
their shares of Dime common stock unless defendants are enjoined from committing
the wrongs complained of herein.
22. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) Declaring this to be a proper class action and designating plaintiff
as class representative;
(b) Rescinding the Lock-up Option granted to Hudson;
(c) Preliminarily and permanently enjoining defendants from taking any
steps to give effect to the Lock-up Option pending rescission
thereof;
<PAGE> 7
(d) Enjoining preliminarily and permanently the merger agreement between
Dime and Hudson;
(e) To the extent, if any, that the Hudson merger is consummated prior
to the entry of this Court's final judgment, rescinding the same or
awarding rescissory damages to the Class;
(f) Directing that defendants account to plaintiff and the Class for all
damages caused them and account for all profits and any special
benefits obtained by defendants as a result of their unlawful
conduct;
(g) Awarding plaintiff the costs and disbursements of this action,
including a reasonable allowance for the fees and expenses of
plaintiff's attorneys and experts; and
(h) Granting such other and further relief as the Court deems
appropriate.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Joseph A. Rosenthal
------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Of Counsel:
MILBERG WEISS BERSHAD HYNES &
LERACH LLP
One Pennsylvania Plaza
New York, NY 10119-0165
(212) 594-5300
<PAGE> 1
Exhibit 99.2
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------x
CHARLES MILLER, | Civil Action No. 17856
|
Plaintiff, |
|
v. |
|
|
LAWRENCE TOAL; DERRICK D. CEPHAS; |
RICHARD W. DALRYMPLE; FRED B. KOONS; |
MARGARET OSMER-MCQUADE; HOWARD |
SMITH; FREDERICK C. CHEN; J. BARCLAY |
COLLINS II; JAMES F. FULTON; VIRGINIA |
M. KOPP; JAMES M. LARGE, JR.; JOHN |
MORNING; SALLY HERNANDEZ-PINERO; |
PAUL A. QUALBEN; EUGENE G. SCHULZ, JR.; |
NORMAN R. SMITH; IRA T. WENDER; |
DIME BANCORP, INC. and HUDSON |
UNITED BANCORP, |
|
Defendants. |
- --------------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Dime Bancorp,
Inc. ("Dime" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Dime is a corporation duly existing and organized under the laws of the
State of Delaware. Dime is a holding company for the Dime Savings Bank of New
York, FSB. The Company's business segments are retail banking, commercial
banking, mortgage banking, and
<PAGE> 2
investment portfolio.
3. Defendant Lawrence J. Toal is and at all times relevant hereto has been
President, Chairman of the Board, Chief Operating Officer and Chief Executive
Officer of Dime.
4. Defendants Derrick D. Cephas, Richard W. Dalrymple, Fred B. Koons,
Margaret Osmer-McQuade, Howard Smith, Ira T. Wender, Frederick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Paul A. Qualben, Eugene G. Schulz, Jr. and
Norman R. Smith are and at all times relevant hereto have been directors of
Dime.
5. The individual defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Dime, and owe plaintiff and the
other members of the class the highest obligations of good faith, fair dealing,
due care, loyalty and full and candid disclosure.
6. Hudson United Bankcorp ("Hudson") is a holding company for Hudson
United Bank, Lafayette American Bank and Bank of the Hudson.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
holders of Dime common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action because:
(a) The Class is so numerous that joinder of all members is
impracticable. There are approximately 110.9 million shares of Dime common stock
outstanding.
(b) There are questions of law and fact, including the following:
(1) whether the defendants have breached their fiduciary and
other
<PAGE> 3
common law duties owed by them to plaintiff and the other members of the Class;
and
(2) whether the Class is entitled to injunctive relief as a
result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
9. On or about September 15, 1999, Dime entered into a merger agreement
with Hudson which was subsequently restated and amended on or about December 27,
1999. Dime will be the surviving entity and will be renamed Dime United Bancorp,
Inc.
10. Under the terms of the merger agreement with Hudson, each Dime
stockholder will receive 0.60255 shares of Dime United stock for each share of
existing Dime stock. Hudson shareholders will receive 1.0 share of Dime United
stock for each share of Hudson common stock held. After the merger, Dime
stockholders will own 56% of Dime United and Hudson stockholders will own 44% of
the combined entity. Dime's shareholder meeting to vote upon the Hudson merger
agreement is set for March 15, 2000. Since the merger announcement in September
of 1999, Hudson's shares have declined in value by 31%.
11. In connection with the Hudson merger agreement, Dime and Hudson
entered into a
<PAGE> 4
Stock Option Agreement designed to discourage third party bids for Dime. Under
the Stock Option Agreement, Hudson can purchase up to 19.9% of Dime's common
stock for $17.75 per share (the "Lock-up Option"). The Lock-up Option is
generally triggered if (a) a third party acquires beneficial ownership of 25% or
more of Dime's outstanding common stock; or (b) Dime enters into a merger
agreement with a third party or the Company's board of directors recommends a
merger or similar transaction other than the Hudson transaction.
12. If Dime subsequently consummates an alternative transaction or over
50% of Dime is acquired by a third party, Hudson may force Dime to repurchase
the Lock-up Option and all or any part of the shares issued under the Option
from Hudson. In addition, Hudson may surrender the Lock-up Option and any shares
issued under the Lock-up Option for a cash fee to be paid by Dime equal to $50
million.
13. Moreover, in connection with the Hudson merger agreement, the
individual defendants will reap significant financial rewards. All outstanding
stock options issued under Dime's employee and director benefit plans that are
not exercisable will become exercisable because completion of the merger will
constitute a "change in control" under the terms of these plans. In addition,
any restrictions on restricted stock will also lapse at the completion of the
Hudson merger. The Dime options, stock appreciation rights, and restricted stock
that are expected to become exercisable or vest in connection with the Hudson
merger have a value estimated at $4.78 million.
14. Dime United will assume defendant Toal's employment agreement, which
was renegotiated after the merger agreement was executed. Toal's salary will be
at least $900,000 per year, with a target bonus of at least half that amount.
Toal will also be granted options to buy 150,000 shares of Dime United common
stock. Also, Dime's senior management will retain control of Dime United.
<PAGE> 5
15. In early March 2000, North Fork Bancorp ("North Fork") contacted Dime
to discuss an alternative proposal to purchase the Company. North Fork then
announced its intent to commence a $1.88 billion tender offer to acquire Dime in
a combination of cash and stock. Dime shareholders would get 0.9302 shares of
North Fork common stock and $2.00 in cash for each Dime share, or $17.00 based
upon North Fork's closing price on March 3, 2000. North Fork's proposal
represents over a 31% premium to Dime's closing price of March 3, 2000. In
addition, North Fork's offer represents a 41% premium to the consideration Dime
shareholders will receive under the Hudson merger. It is doubtful that Dime's
senior management would retain their offices if North Fork acquires Dime.
16. The individual defendants have rejected North Fork's offer. Defendant
Toal stated publicly "North Fork's offer is an attempt to destroy a transaction
that is in the best interests of Dime, its shareholders, and the communities it
serves. We are strongly committed to the [Hudson] transaction."
17. The Lock-up Option is designed to compensate Hudson in the event the
merger agreement is terminated pursuant to paragraph 11 above. Hudson's
potential profit from the Lock-up Option does not represent a reasonable
estimate of the damages it would incur as a result of the termination of the
merger agreement. The Lock-up Option is not designed to benefit Dime's
shareholders. Indeed, it may discourage North Fork from increasing its offer
because Hudson will benefit substantially from any such increase. The Lock-up
Option is unenforceable because, among other things, it inhibits the ability of
Dime's directors to negotiate with North Fork for a higher offer which will
enure to the benefit of Dime's shareholders.
18. In light of the North Fork offer, which is vastly superior to the
merger agreement with Hudson, the individual defendants have a fiduciary duty to
inform themselves fully about North
<PAGE> 6
Fork's offer and to negotiate with North Fork to improve its offer. By rejecting
North Fork's offer out-of-hand, the individual defendants have violated their
fiduciary duties of loyalty and due care which they owe to Dime's shareholders.
19. The individual defendants have refused to enter into any negotiations
with North Fork in an attempt to entrench themselves in their offices with the
Company and Dime United and to protect their substantial salaries and
prestigious positions. The individual defendants' placement of their own
interests ahead of the interests of Dime shareholders is in violation of their
fiduciary duties of loyalty and good faith.
20. Defendant Hudson has knowingly aided and abetted the breaches of
fiduciary duty committed by the other defendants to the detriment of Dime's
shareholders. Hudson is a party to and beneficiary of the unenforceable Lock-up
Option. Hudson and its stockholders are the intended beneficiaries of the wrongs
complained of herein and would be unjustly absent relief in this action.
21. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining fair consideration for
their shares of Dime common stock unless defendants are enjoined from committing
the wrongs complained of herein.
22. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) Declaring this to be a proper class action and designating plaintiff
as class representative;
(b) Rescinding the Lock-up Option granted to Hudson;
(c) Preliminarily and permanently enjoining defendants from taking any
steps to give effect to the Lock-up Option pending rescission
thereof;
<PAGE> 7
(d) Enjoining preliminarily and permanently the merger agreement between
Dime and Hudson;
(e) To the extent, if any, that the Hudson merger is consummated prior
to the entry of this Court's final judgment, rescinding the same or
awarding rescissory damages to the Class;
(f) Directing that defendants account to plaintiff and the Class for all
damages caused them and account for all profits and any special
benefits obtained by defendants as a result of their unlawful
conduct;
(g) Awarding plaintiff the costs and disbursements of this action,
including a reasonable allowance for the fees and expenses of
plaintiff's attorneys and experts; and
(h) Granting such other and further relief as the Court deems
appropriate.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Joseph A. Rosenthal
------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Of Counsel:
BULL & LIFSHITZ, LLP
246 West 38th Street
New York, NY 10118
<PAGE> 1
Exhibit 99.3
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------x
JOSEPH WEISS, | Civil Action No. 17857
|
Plaintiff, |
|
v. |
|
|
LAWRENCE TOAL; DERRICK D. CEPHAS; |
RICHARD W. DALRYMPLE; FRED B. KOONS; |
MARGARET OSMER-MCQUADE; HOWARD |
SMITH; FREDERICK C. CHEN; J. BARCLAY |
COLLINS II; JAMES F. FULTON; VIRGINIA |
M. KOPP; JAMES M. LARGE, JR.; JOHN |
MORNING; SALLY HERNANDEZ-PINERO; |
PAUL A. QUALBEN; EUGENE G. SCHULZ, JR.; |
NORMAN R. SMITH; IRA T. WENDER; |
DIME BANCORP, INC. and HUDSON |
UNITED BANCORP, |
|
Defendants. |
- --------------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Dime Bancorp,
Inc. ("Dime" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Dime is a corporation duly existing and organized under the laws of the
State of Delaware. Dime is a holding company for the Dime Savings Bank of New
York, FSB. The Company's business segments are retail banking, commercial
banking, mortgage banking, and
<PAGE> 2
investment portfolio.
3. Defendant Lawrence J. Toal is and at all times relevant hereto has been
President, Chairman of the Board, Chief Operating Officer and Chief Executive
Officer of Dime.
4. Defendants Derrick D. Cephas, Richard W. Dalrymple, Fred B. Koons,
Margaret Osmer-McQuade, Howard Smith, Ira T. Wender, Frederick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Paul A. Qualben, Eugene G. Schulz, Jr. and
Norman R. Smith are and at all times relevant hereto have been directors of
Dime.
5. The individual defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Dime, and owe plaintiff and the
other members of the class the highest obligations of good faith, fair dealing,
due care, loyalty and full and candid disclosure.
6. Hudson United Bankcorp ("Hudson") is a holding company for Hudson
United Bank, Lafayette American Bank and Bank of the Hudson.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
holders of Dime common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action because:
(a) The Class is so numerous that joinder of all members is
impracticable. There are approximately 110.9 million shares of Dime common stock
outstanding.
(b) There are questions of law and fact, including the following:
(1) whether the defendants have breached their fiduciary and
other
<PAGE> 3
common law duties owed by them to plaintiff and the other members of the Class;
and
(2) whether the Class is entitled to injunctive relief as a
result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
9. On or about September 15, 1999, Dime entered into a merger agreement
with Hudson which was subsequently restated and amended on or about December 27,
1999. Dime will be the surviving entity and will be renamed Dime United Bancorp,
Inc.
10. Under the terms of the merger agreement with Hudson, each Dime
stockholder will receive 0.60255 shares of Dime United stock for each share of
existing Dime stock. Hudson shareholders will receive 1.0 share of Dime United
stock for each share of Hudson common stock held. After the merger, Dime
stockholders will own 56% of Dime United and Hudson stockholders will own 44% of
the combined entity. Dime's shareholder meeting to vote upon the Hudson merger
agreement is set for March 15, 2000. Since the merger announcement in September
of 1999, Hudson's shares have declined in value by 31%.
11. In connection with the Hudson merger agreement, Dime and Hudson
entered into a
<PAGE> 4
Stock Option Agreement designed to discourage third party bids for Dime. Under
the Stock Option Agreement, Hudson can purchase up to 19.9% of Dime's common
stock for $17.75 per share (the "Lock-up Option"). The Lock-up Option is
generally triggered if (a) a third party acquires beneficial ownership of 25% or
more of Dime's outstanding common stock; or (b) Dime enters into a merger
agreement with a third party or the Company's board of directors recommends a
merger or similar transaction other than the Hudson transaction.
12. If Dime subsequently consummates an alternative transaction or over
50% of Dime is acquired by a third party, Hudson may force Dime to repurchase
the Lock-up Option and all or any part of the shares issued under the Option
from Hudson. In addition, Hudson may surrender the Lock-up Option and any shares
issued under the Lock-up Option for a cash fee to be paid by Dime equal to $50
million.
13. Moreover, in connection with the Hudson merger agreement, the
individual defendants will reap significant financial rewards. All outstanding
stock options issued under Dime's employee and director benefit plans that are
not exercisable will become exercisable because completion of the merger will
constitute a "change in control" under the terms of these plans. In addition,
any restrictions on restricted stock will also lapse at the completion of the
Hudson merger. The Dime options, stock appreciation rights, and restricted stock
that are expected to become exercisable or vest in connection with the Hudson
merger have a value estimated at $4.78 million.
14. Dime United will assume defendant Toal's employment agreement, which
was renegotiated after the merger agreement was executed. Toal's salary will be
at least $900,000 per year, with a target bonus of at least half that amount.
Toal will also be granted options to buy 150,000 shares of Dime United common
stock. Also, Dime's senior management will retain control of Dime United.
<PAGE> 5
15. In early March 2000, North Fork Bancorp ("North Fork") contacted Dime
to discuss an alternative proposal to purchase the Company. North Fork then
announced its intent to commence a $1.88 billion tender offer to acquire Dime in
a combination of cash and stock. Dime shareholders would get 0.9302 shares of
North Fork common stock and $2.00 in cash for each Dime share, or $17.00 based
upon North Fork's closing price on March 3, 2000. North Fork's proposal
represents over a 31% premium to Dime's closing price of March 3, 2000. In
addition, North Fork's offer represents a 41% premium to the consideration Dime
shareholders will receive under the Hudson merger. It is doubtful that Dime's
senior management would retain their offices if North Fork acquires Dime.
16. The individual defendants have rejected North Fork's offer. Defendant
Toal stated publicly "North Fork's offer is an attempt to destroy a transaction
that is in the best interests of Dime, its shareholders, and the communities it
serves. We are strongly committed to the [Hudson] transaction."
17. The Lock-up Option is designed to compensate Hudson in the event the
merger agreement is terminated pursuant to paragraph 11 above. Hudson's
potential profit from the Lock-up Option does not represent a reasonable
estimate of the damages it would incur as a result of the termination of the
merger agreement. The Lock-up Option is not designed to benefit Dime's
shareholders. Indeed, it may discourage North Fork from increasing its offer
because Hudson will benefit substantially from any such increase. The Lock-up
Option is unenforceable because, among other things, it inhibits the ability of
Dime's directors to negotiate with North Fork for a higher offer which will
enure to the benefit of Dime's shareholders.
18. In light of the North Fork offer, which is vastly superior to the
merger agreement with Hudson, the individual defendants have a fiduciary duty to
inform themselves fully about North
<PAGE> 6
Fork's offer and to negotiate with North Fork to improve its offer. By rejecting
North Fork's offer out-of-hand, the individual defendants have violated their
fiduciary duties of loyalty and due care which they owe to Dime's shareholders.
19. The individual defendants have refused to enter into any negotiations
with North Fork in an attempt to entrench themselves in their offices with the
Company and Dime United and to protect their substantial salaries and
prestigious positions. The individual defendants' placement of their own
interests ahead of the interests of Dime shareholders is in violation of their
fiduciary duties of loyalty and good faith.
20. Defendant Hudson has knowingly aided and abetted the breaches of
fiduciary duty committed by the other defendants to the detriment of Dime's
shareholders. Hudson is a party to and beneficiary of the unenforceable Lock-up
Option. Hudson and its stockholders are the intended beneficiaries of the wrongs
complained of herein and would be unjustly absent relief in this action.
21. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining fair consideration for
their shares of Dime common stock unless defendants are enjoined from committing
the wrongs complained of herein.
22. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) Declaring this to be a proper class action and designating plaintiff
as class representative;
(b) Rescinding the Lock-up Option granted to Hudson;
(c) Preliminarily and permanently enjoining defendants from taking any
steps to give effect to the Lock-up Option pending rescission
thereof;
<PAGE> 7
(d) Enjoining preliminarily and permanently the merger agreement between
Dime and Hudson;
(e) To the extent, if any, that the Hudson merger is consummated prior
to the entry of this Court's final judgment, rescinding the same or
awarding rescissory damages to the Class;
(f) Directing that defendants account to plaintiff and the Class for all
damages caused them and account for all profits and any special
benefits obtained by defendants as a result of their unlawful
conduct;
(g) Awarding plaintiff the costs and disbursements of this action,
including a reasonable allowance for the fees and expenses of
plaintiff's attorneys and experts; and
(h) Granting such other and further relief as the Court deems
appropriate.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Joseph A. Rosenthal
------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Of Counsel:
BERNSTEIN LIEBHARD & LIFSHITZ, LLP
10 East 40th Street
New York, NY 10016
(212) 779-1414
<PAGE> 1
Exhibit 99.4
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------x
P.J. SUSSER, | Civil Action No. 17858
|
Plaintiff, |
|
v. |
|
|
LAWRENCE TOAL; DERRICK D. CEPHAS; |
RICHARD W. DALRYMPLE; FRED B. KOONS; |
MARGARET OSMER-MCQUADE; HOWARD |
SMITH; FREDERICK C. CHEN; J. BARCLAY |
COLLINS II; JAMES F. FULTON; VIRGINIA |
M. KOPP; JAMES M. LARGE, JR.; JOHN |
MORNING; SALLY HERNANDEZ-PINERO; |
PAUL A. QUALBEN; EUGENE G. SCHULZ, JR.; |
NORMAN R. SMITH; IRA T. WENDER; |
DIME BANCORP, INC. and HUDSON |
UNITED BANCORP, |
|
Defendants. |
- --------------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Dime Bancorp,
Inc. ("Dime" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Dime is a corporation duly existing and organized under the laws of the
State of Delaware. Dime is a holding company for the Dime Savings Bank of New
York, FSB. The Company's business segments are retail banking, commercial
banking, mortgage banking, and
<PAGE> 2
investment portfolio.
3. Defendant Lawrence J. Toal is and at all times relevant hereto has been
President, Chairman of the Board, Chief Operating Officer and Chief Executive
Officer of Dime.
4. Defendants Derrick D. Cephas, Richard W. Dalrymple, Fred B. Koons,
Margaret Osmer-McQuade, Howard Smith, Ira T. Wender, Frederick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Paul A. Qualben, Eugene G. Schulz, Jr. and
Norman R. Smith are and at all times relevant hereto have been directors of
Dime.
5. The individual defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Dime, and owe plaintiff and the
other members of the class the highest obligations of good faith, fair dealing,
due care, loyalty and full and candid disclosure.
6. Hudson United Bankcorp ("Hudson") is a holding company for Hudson
United Bank, Lafayette American Bank and Bank of the Hudson.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
holders of Dime common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action because:
(a) The Class is so numerous that joinder of all members is
impracticable. There are approximately 110.9 million shares of Dime common stock
outstanding.
(b) There are questions of law and fact, including the following:
(1) whether the defendants have breached their fiduciary and
other
<PAGE> 3
common law duties owed by them to plaintiff and the other members of the Class;
and
(2) whether the Class is entitled to injunctive relief as a
result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
9. On or about September 15, 1999, Dime entered into a merger agreement
with Hudson which was subsequently restated and amended on or about December 27,
1999. Dime will be the surviving entity and will be renamed Dime United Bancorp,
Inc.
10. Under the terms of the merger agreement with Hudson, each Dime
stockholder will receive 0.60255 shares of Dime United stock for each share of
existing Dime stock. Hudson shareholders will receive 1.0 share of Dime United
stock for each share of Hudson common stock held. After the merger, Dime
stockholders will own 56% of Dime United and Hudson stockholders will own 44% of
the combined entity. Dime's shareholder meeting to vote upon the Hudson merger
agreement is set for March 15, 2000. Since the merger announcement in September
of 1999, Hudson's shares have declined in value by 31%.
11. In connection with the Hudson merger agreement, Dime and Hudson
entered into a
<PAGE> 4
Stock Option Agreement designed to discourage third party bids for Dime. Under
the Stock Option Agreement, Hudson can purchase up to 19.9% of Dime's common
stock for $17.75 per share (the "Lock-up Option"). The Lock-up Option is
generally triggered if (a) a third party acquires beneficial ownership of 25% or
more of Dime's outstanding common stock; or (b) Dime enters into a merger
agreement with a third party or the Company's board of directors recommends a
merger or similar transaction other than the Hudson transaction.
12. If Dime subsequently consummates an alternative transaction or over
50% of Dime is acquired by a third party, Hudson may force Dime to repurchase
the Lock-up Option and all or any part of the shares issued under the Option
from Hudson. In addition, Hudson may surrender the Lock-up Option and any shares
issued under the Lock-up Option for a cash fee to be paid by Dime equal to $50
million.
13. Moreover, in connection with the Hudson merger agreement, the
individual defendants will reap significant financial rewards. All outstanding
stock options issued under Dime's employee and director benefit plans that are
not exercisable will become exercisable because completion of the merger will
constitute a "change in control" under the terms of these plans. In addition,
any restrictions on restricted stock will also lapse at the completion of the
Hudson merger. The Dime options, stock appreciation rights, and restricted stock
that are expected to become exercisable or vest in connection with the Hudson
merger have a value estimated at $4.78 million.
14. Dime United will assume defendant Toal's employment agreement, which
was renegotiated after the merger agreement was executed. Toal's salary will be
at least $900,000 per year, with a target bonus of at least half that amount.
Toal will also be granted options to buy 150,000 shares of Dime United common
stock. Also, Dime's senior management will retain control of Dime United.
<PAGE> 5
15. In early March 2000, North Fork Bancorp ("North Fork") contacted Dime
to discuss an alternative proposal to purchase the Company. North Fork then
announced its intent to commence a $1.88 billion tender offer to acquire Dime in
a combination of cash and stock. Dime shareholders would get 0.9302 shares of
North Fork common stock and $2.00 in cash for each Dime share, or $17.00 based
upon North Fork's closing price on March 3, 2000. North Fork's proposal
represents over a 31% premium to Dime's closing price of March 3, 2000. In
addition, North Fork's offer represents a 41% premium to the consideration Dime
shareholders will receive under the Hudson merger. It is doubtful that Dime's
senior management would retain their offices if North Fork acquires Dime.
16. The individual defendants have rejected North Fork's offer. Defendant
Toal stated publicly "North Fork's offer is an attempt to destroy a transaction
that is in the best interests of Dime, its shareholders, and the communities it
serves. We are strongly committed to the [Hudson] transaction."
17. The Lock-up Option is designed to compensate Hudson in the event the
merger agreement is terminated pursuant to paragraph 11 above. Hudson's
potential profit from the Lock-up Option does not represent a reasonable
estimate of the damages it would incur as a result of the termination of the
merger agreement. The Lock-up Option is not designed to benefit Dime's
shareholders. Indeed, it may discourage North Fork from increasing its offer
because Hudson will benefit substantially from any such increase. The Lock-up
Option is unenforceable because, among other things, it inhibits the ability of
Dime's directors to negotiate with North Fork for a higher offer which will
enure to the benefit of Dime's shareholders.
18. In light of the North Fork offer, which is vastly superior to the
merger agreement with Hudson, the individual defendants have a fiduciary duty to
inform themselves fully about North
<PAGE> 6
Fork's offer and to negotiate with North Fork to improve its offer. By rejecting
North Fork's offer out-of-hand, the individual defendants have violated their
fiduciary duties of loyalty and due care which they owe to Dime's shareholders.
19. The individual defendants have refused to enter into any negotiations
with North Fork in an attempt to entrench themselves in their offices with the
Company and Dime United and to protect their substantial salaries and
prestigious positions. The individual defendants' placement of their own
interests ahead of the interests of Dime shareholders is in violation of their
fiduciary duties of loyalty and good faith.
20. Defendant Hudson has knowingly aided and abetted the breaches of
fiduciary duty committed by the other defendants to the detriment of Dime's
shareholders. Hudson is a party to and beneficiary of the unenforceable Lock-up
Option. Hudson and its stockholders are the intended beneficiaries of the wrongs
complained of herein and would be unjustly absent relief in this action.
21. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining fair consideration for
their shares of Dime common stock unless defendants are enjoined from committing
the wrongs complained of herein.
22. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) Declaring this to be a proper class action and designating plaintiff
as class representative;
(b) Rescinding the Lock-up Option granted to Hudson;
(c) Preliminarily and permanently enjoining defendants from taking any
steps to give effect to the Lock-up Option pending rescission
thereof;
<PAGE> 7
(d) Enjoining preliminarily and permanently the merger agreement between
Dime and Hudson;
(e) To the extent, if any, that the Hudson merger is consummated prior
to the entry of this Court's final judgment, rescinding the same or
awarding rescissory damages to the Class;
(f) Directing that defendants account to plaintiff and the Class for all
damages caused them and account for all profits and any special
benefits obtained by defendants as a result of their unlawful
conduct;
(g) Awarding plaintiff the costs and disbursements of this action,
including a reasonable allowance for the fees and expenses of
plaintiff's attorneys and experts; and
(h) Granting such other and further relief as the Court deems
appropriate.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Joseph A. Rosenthal
------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Of Counsel:
ABBEY GARDY & SQUITIERI, LLP
212 East 39th Street
New York, NY 10016
(212) 889-3700
<PAGE> 1
Exhibit 99.5
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------x
DANIEL LIFSHITZ, | Civil Action No. 17859
|
Plaintiff, |
|
v. |
|
|
LAWRENCE TOAL; DERRICK D. CEPHAS; |
RICHARD W. DALRYMPLE; FRED B. KOONS; |
MARGARET OSMER-MCQUADE; HOWARD |
SMITH; FREDERICK C. CHEN; J. BARCLAY |
COLLINS II; JAMES F. FULTON; VIRGINIA |
M. KOPP; JAMES M. LARGE, JR.; JOHN |
MORNING; SALLY HERNANDEZ-PINERO; |
PAUL A. QUALBEN; EUGENE G. SCHULZ, JR.; |
NORMAN R. SMITH; IRA T. WENDER; |
DIME BANCORP, INC. and HUDSON |
UNITED BANCORP, |
|
Defendants. |
- --------------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Dime Bancorp,
Inc. ("Dime" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Dime is a corporation duly existing and organized under the laws of the
State of Delaware. Dime is a holding company for the Dime Savings Bank of New
York, FSB. The Company's business segments are retail banking, commercial
banking, mortgage banking, and
<PAGE> 2
investment portfolio.
3. Defendant Lawrence J. Toal is and at all times relevant hereto has been
President, Chairman of the Board, Chief Operating Officer and Chief Executive
Officer of Dime.
4. Defendants Derrick D. Cephas, Richard W. Dalrymple, Fred B. Koons,
Margaret Osmer-McQuade, Howard Smith, Ira T. Wender, Frederick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Paul A. Qualben, Eugene G. Schulz, Jr. and
Norman R. Smith are and at all times relevant hereto have been directors of
Dime.
5. The individual defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Dime, and owe plaintiff and the
other members of the class the highest obligations of good faith, fair dealing,
due care, loyalty and full and candid disclosure.
6. Hudson United Bankcorp ("Hudson") is a holding company for Hudson
United Bank, Lafayette American Bank and Bank of the Hudson.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
holders of Dime common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action because:
(a) The Class is so numerous that joinder of all members is
impracticable. There are approximately 110.9 million shares of Dime common stock
outstanding.
(b) There are questions of law and fact, including the following:
(1) whether the defendants have breached their fiduciary and
other
<PAGE> 3
common law duties owed by them to plaintiff and the other members of the Class;
and
(2) whether the Class is entitled to injunctive relief as a
result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
9. On or about September 15, 1999, Dime entered into a merger agreement
with Hudson which was subsequently restated and amended on or about December 27,
1999. Dime will be the surviving entity and will be renamed Dime United Bancorp,
Inc.
10. Under the terms of the merger agreement with Hudson, each Dime
stockholder will receive 0.60255 shares of Dime United stock for each share of
existing Dime stock. Hudson shareholders will receive 1.0 share of Dime United
stock for each share of Hudson common stock held. After the merger, Dime
stockholders will own 56% of Dime United and Hudson stockholders will own 44% of
the combined entity. Dime's shareholder meeting to vote upon the Hudson merger
agreement is set for March 15, 2000. Since the merger announcement in September
of 1999, Hudson's shares have declined in value by 31%.
11. In connection with the Hudson merger agreement, Dime and Hudson
entered into a
<PAGE> 4
Stock Option Agreement designed to discourage third party bids for Dime. Under
the Stock Option Agreement, Hudson can purchase up to 19.9% of Dime's common
stock for $17.75 per share (the "Lock-up Option"). The Lock-up Option is
generally triggered if (a) a third party acquires beneficial ownership of 25% or
more of Dime's outstanding common stock; or (b) Dime enters into a merger
agreement with a third party or the Company's board of directors recommends a
merger or similar transaction other than the Hudson transaction.
12. If Dime subsequently consummates an alternative transaction or over
50% of Dime is acquired by a third party, Hudson may force Dime to repurchase
the Lock-up Option and all or any part of the shares issued under the Option
from Hudson. In addition, Hudson may surrender the Lock-up Option and any shares
issued under the Lock-up Option for a cash fee to be paid by Dime equal to $50
million.
13. Moreover, in connection with the Hudson merger agreement, the
individual defendants will reap significant financial rewards. All outstanding
stock options issued under Dime's employee and director benefit plans that are
not exercisable will become exercisable because completion of the merger will
constitute a "change in control" under the terms of these plans. In addition,
any restrictions on restricted stock will also lapse at the completion of the
Hudson merger. The Dime options, stock appreciation rights, and restricted stock
that are expected to become exercisable or vest in connection with the Hudson
merger have a value estimated at $4.78 million.
14. Dime United will assume defendant Toal's employment agreement, which
was renegotiated after the merger agreement was executed. Toal's salary will be
at least $900,000 per year, with a target bonus of at least half that amount.
Toal will also be granted options to buy 150,000 shares of Dime United common
stock. Also, Dime's senior management will retain control of Dime United.
<PAGE> 5
15. In early March 2000, North Fork Bancorp ("North Fork") contacted Dime
to discuss an alternative proposal to purchase the Company. North Fork then
announced its intent to commence a $1.88 billion tender offer to acquire Dime in
a combination of cash and stock. Dime shareholders would get 0.9302 shares of
North Fork common stock and $2.00 in cash for each Dime share, or $17.00 based
upon North Fork's closing price on March 3, 2000. North Fork's proposal
represents over a 31% premium to Dime's closing price of March 3, 2000. In
addition, North Fork's offer represents a 41% premium to the consideration Dime
shareholders will receive under the Hudson merger. It is doubtful that Dime's
senior management would retain their offices if North Fork acquires Dime.
16. The individual defendants have rejected North Fork's offer. Defendant
Toal stated publicly "North Fork's offer is an attempt to destroy a transaction
that is in the best interests of Dime, its shareholders, and the communities it
serves. We are strongly committed to the [Hudson] transaction."
17. The Lock-up Option is designed to compensate Hudson in the event the
merger agreement is terminated pursuant to paragraph 11 above. Hudson's
potential profit from the Lock-up Option does not represent a reasonable
estimate of the damages it would incur as a result of the termination of the
merger agreement. The Lock-up Option is not designed to benefit Dime's
shareholders. Indeed, it may discourage North Fork from increasing its offer
because Hudson will benefit substantially from any such increase. The Lock-up
Option is unenforceable because, among other things, it inhibits the ability of
Dime's directors to negotiate with North Fork for a higher offer which will
enure to the benefit of Dime's shareholders.
18. In light of the North Fork offer, which is vastly superior to the
merger agreement with Hudson, the individual defendants have a fiduciary duty to
inform themselves fully about North
<PAGE> 6
Fork's offer and to negotiate with North Fork to improve its offer. By rejecting
North Fork's offer out-of-hand, the individual defendants have violated their
fiduciary duties of loyalty and due care which they owe to Dime's shareholders.
19. The individual defendants have refused to enter into any negotiations
with North Fork in an attempt to entrench themselves in their offices with the
Company and Dime United and to protect their substantial salaries and
prestigious positions. The individual defendants' placement of their own
interests ahead of the interests of Dime shareholders is in violation of their
fiduciary duties of loyalty and good faith.
20. Defendant Hudson has knowingly aided and abetted the breaches of
fiduciary duty committed by the other defendants to the detriment of Dime's
shareholders. Hudson is a party to and beneficiary of the unenforceable Lock-up
Option. Hudson and its stockholders are the intended beneficiaries of the wrongs
complained of herein and would be unjustly absent relief in this action.
21. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining fair consideration for
their shares of Dime common stock unless defendants are enjoined from committing
the wrongs complained of herein.
22. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) Declaring this to be a proper class action and designating plaintiff
as class representative;
(b) Rescinding the Lock-up Option granted to Hudson;
(c) Preliminarily and permanently enjoining defendants from taking any
steps to give effect to the Lock-up Option pending rescission
thereof;
<PAGE> 7
(d) Enjoining preliminarily and permanently the merger agreement between
Dime and Hudson;
(e) To the extent, if any, that the Hudson merger is consummated prior
to the entry of this Court's final judgment, rescinding the same or
awarding rescissory damages to the Class;
(f) Directing that defendants account to plaintiff and the Class for all
damages caused them and account for all profits and any special
benefits obtained by defendants as a result of their unlawful
conduct;
(g) Awarding plaintiff the costs and disbursements of this action,
including a reasonable allowance for the fees and expenses of
plaintiff's attorneys and experts; and
(h) Granting such other and further relief as the Court deems
appropriate.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Joseph A. Rosenthal
------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Of Counsel:
WECHSLER HARWOOD HALEBIAN & FEFFER LLP
488 Madison Avenue, 8th Floor
New York, NY 10022
(212) 935-7400
<PAGE> 1
Exhibit 99.6
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------x
SAMUEL PILL, | Civil Action No. 17860
|
Plaintiff, |
|
v. |
|
|
LAWRENCE TOAL; DERRICK D. CEPHAS; |
RICHARD W. DALRYMPLE; FRED B. KOONS; |
MARGARET OSMER-MCQUADE; HOWARD |
SMITH; FREDERICK C. CHEN; J. BARCLAY |
COLLINS II; JAMES F. FULTON; VIRGINIA |
M. KOPP; JAMES M. LARGE, JR.; JOHN |
MORNING; SALLY HERNANDEZ-PINERO; |
PAUL A. QUALBEN; EUGENE G. SCHULZ, JR.; |
NORMAN R. SMITH; IRA T. WENDER; |
DIME BANCORP, INC. and HUDSON |
UNITED BANCORP, |
|
Defendants. |
- --------------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Dime Bancorp,
Inc. ("Dime" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Dime is a corporation duly existing and organized under the laws of the
State of Delaware. Dime is a holding company for the Dime Savings Bank of New
York, FSB. The Company's business segments are retail banking, commercial
banking, mortgage banking, and
<PAGE> 2
investment portfolio.
3. Defendant Lawrence J. Toal is and at all times relevant hereto has been
President, Chairman of the Board, Chief Operating Officer and Chief Executive
Officer of Dime.
4. Defendants Derrick D. Cephas, Richard W. Dalrymple, Fred B. Koons,
Margaret Osmer-McQuade, Howard Smith, Ira T. Wender, Frederick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Paul A. Qualben, Eugene G. Schulz, Jr. and
Norman R. Smith are and at all times relevant hereto have been directors of
Dime.
5. The individual defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Dime, and owe plaintiff and the
other members of the class the highest obligations of good faith, fair dealing,
due care, loyalty and full and candid disclosure.
6. Hudson United Bankcorp ("Hudson") is a holding company for Hudson
United Bank, Lafayette American Bank and Bank of the Hudson.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
holders of Dime common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action because:
(a) The Class is so numerous that joinder of all members is
impracticable. There are approximately 110.9 million shares of Dime common stock
outstanding.
(b) There are questions of law and fact, including the following:
(1) whether the defendants have breached their fiduciary and
other
<PAGE> 3
common law duties owed by them to plaintiff and the other members of the Class;
and
(2) whether the Class is entitled to injunctive relief as a
result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
9. On or about September 15, 1999, Dime entered into a merger agreement
with Hudson which was subsequently restated and amended on or about December 27,
1999. Dime will be the surviving entity and will be renamed Dime United Bancorp,
Inc.
10. Under the terms of the merger agreement with Hudson, each Dime
stockholder will receive 0.60255 shares of Dime United stock for each share of
existing Dime stock. Hudson shareholders will receive 1.0 share of Dime United
stock for each share of Hudson common stock held. After the merger, Dime
stockholders will own 56% of Dime United and Hudson stockholders will own 44% of
the combined entity. Dime's shareholder meeting to vote upon the Hudson merger
agreement is set for March 15, 2000. Since the merger announcement in September
of 1999, Hudson's shares have declined in value by 31%.
11. In connection with the Hudson merger agreement, Dime and Hudson
entered into a
<PAGE> 4
Stock Option Agreement designed to discourage third party bids for Dime. Under
the Stock Option Agreement, Hudson can purchase up to 19.9% of Dime's common
stock for $17.75 per share (the "Lock-up Option"). The Lock-up Option is
generally triggered if (a) a third party acquires beneficial ownership of 25% or
more of Dime's outstanding common stock; or (b) Dime enters into a merger
agreement with a third party or the Company's board of directors recommends a
merger or similar transaction other than the Hudson transaction.
12. If Dime subsequently consummates an alternative transaction or over
50% of Dime is acquired by a third party, Hudson may force Dime to repurchase
the Lock-up Option and all or any part of the shares issued under the Option
from Hudson. In addition, Hudson may surrender the Lock-up Option and any shares
issued under the Lock-up Option for a cash fee to be paid by Dime equal to $50
million.
13. Moreover, in connection with the Hudson merger agreement, the
individual defendants will reap significant financial rewards. All outstanding
stock options issued under Dime's employee and director benefit plans that are
not exercisable will become exercisable because completion of the merger will
constitute a "change in control" under the terms of these plans. In addition,
any restrictions on restricted stock will also lapse at the completion of the
Hudson merger. The Dime options, stock appreciation rights, and restricted stock
that are expected to become exercisable or vest in connection with the Hudson
merger have a value estimated at $4.78 million.
14. Dime United will assume defendant Toal's employment agreement, which
was renegotiated after the merger agreement was executed. Toal's salary will be
at least $900,000 per year, with a target bonus of at least half that amount.
Toal will also be granted options to buy 150,000 shares of Dime United common
stock. Also, Dime's senior management will retain control of Dime United.
<PAGE> 5
15. In early March 2000, North Fork Bancorp ("North Fork") contacted Dime
to discuss an alternative proposal to purchase the Company. North Fork then
announced its intent to commence a $1.88 billion tender offer to acquire Dime in
a combination of cash and stock. Dime shareholders would get 0.9302 shares of
North Fork common stock and $2.00 in cash for each Dime share, or $17.00 based
upon North Fork's closing price on March 3, 2000. North Fork's proposal
represents over a 31% premium to Dime's closing price of March 3, 2000. In
addition, North Fork's offer represents a 41% premium to the consideration Dime
shareholders will receive under the Hudson merger. It is doubtful that Dime's
senior management would retain their offices if North Fork acquires Dime.
16. The individual defendants have rejected North Fork's offer. Defendant
Toal stated publicly "North Fork's offer is an attempt to destroy a transaction
that is in the best interests of Dime, its shareholders, and the communities it
serves. We are strongly committed to the [Hudson] transaction."
17. The Lock-up Option is designed to compensate Hudson in the event the
merger agreement is terminated pursuant to paragraph 11 above. Hudson's
potential profit from the Lock-up Option does not represent a reasonable
estimate of the damages it would incur as a result of the termination of the
merger agreement. The Lock-up Option is not designed to benefit Dime's
shareholders. Indeed, it may discourage North Fork from increasing its offer
because Hudson will benefit substantially from any such increase. The Lock-up
Option is unenforceable because, among other things, it inhibits the ability of
Dime's directors to negotiate with North Fork for a higher offer which will
enure to the benefit of Dime's shareholders.
18. In light of the North Fork offer, which is vastly superior to the
merger agreement with Hudson, the individual defendants have a fiduciary duty to
inform themselves fully about North
<PAGE> 6
Fork's offer and to negotiate with North Fork to improve its offer. By rejecting
North Fork's offer out-of-hand, the individual defendants have violated their
fiduciary duties of loyalty and due care which they owe to Dime's shareholders.
19. The individual defendants have refused to enter into any negotiations
with North Fork in an attempt to entrench themselves in their offices with the
Company and Dime United and to protect their substantial salaries and
prestigious positions. The individual defendants' placement of their own
interests ahead of the interests of Dime shareholders is in violation of their
fiduciary duties of loyalty and good faith.
20. Defendant Hudson has knowingly aided and abetted the breaches of
fiduciary duty committed by the other defendants to the detriment of Dime's
shareholders. Hudson is a party to and beneficiary of the unenforceable Lock-up
Option. Hudson and its stockholders are the intended beneficiaries of the wrongs
complained of herein and would be unjustly absent relief in this action.
21. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining fair consideration for
their shares of Dime common stock unless defendants are enjoined from committing
the wrongs complained of herein.
22. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) Declaring this to be a proper class action and designating plaintiff
as class representative;
(b) Rescinding the Lock-up Option granted to Hudson;
(c) Preliminarily and permanently enjoining defendants from taking any
steps to give effect to the Lock-up Option pending rescission
thereof;
<PAGE> 7
(d) Enjoining preliminarily and permanently the merger agreement between
Dime and Hudson;
(e) To the extent, if any, that the Hudson merger is consummated prior
to the entry of this Court's final judgment, rescinding the same or
awarding rescissory damages to the Class;
(f) Directing that defendants account to plaintiff and the Class for all
damages caused them and account for all profits and any special
benefits obtained by defendants as a result of their unlawful
conduct;
(g) Awarding plaintiff the costs and disbursements of this action,
including a reasonable allowance for the fees and expenses of
plaintiff's attorneys and experts; and
(h) Granting such other and further relief as the Court deems
appropriate.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Joseph A. Rosenthal
------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Of Counsel:
WOLF POPPER, LLP
845 Third Avenue
New York, NY 10022
(212) 759-4600
<PAGE> 1
Exhibit 99.7
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------x
ANTHONY MILITE, | Civil Action No. 17861
|
Plaintiff, |
|
v. |
|
|
LAWRENCE TOAL; DERRICK D. CEPHAS; |
RICHARD W. DALRYMPLE; FRED B. KOONS; |
MARGARET OSMER-MCQUADE; HOWARD |
SMITH; FREDERICK C. CHEN; J. BARCLAY |
COLLINS II; JAMES F. FULTON; VIRGINIA |
M. KOPP; JAMES M. LARGE, JR.; JOHN |
MORNING; SALLY HERNANDEZ-PINERO; |
PAUL A. QUALBEN; EUGENE G. SCHULZ, JR.; |
NORMAN R. SMITH; IRA T. WENDER; |
DIME BANCORP, INC. and HUDSON |
UNITED BANCORP, |
|
Defendants. |
- --------------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Dime Bancorp,
Inc. ("Dime" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Dime is a corporation duly existing and organized under the laws of the
State of Delaware. Dime is a holding company for the Dime Savings Bank of New
York, FSB. The Company's business segments are retail banking, commercial
banking, mortgage banking, and
<PAGE> 2
investment portfolio.
3. Defendant Lawrence J. Toal is and at all times relevant hereto has been
President, Chairman of the Board, Chief Operating Officer and Chief Executive
Officer of Dime.
4. Defendants Derrick D. Cephas, Richard W. Dalrymple, Fred B. Koons,
Margaret Osmer-McQuade, Howard Smith, Ira T. Wender, Frederick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Paul A. Qualben, Eugene G. Schulz, Jr. and
Norman R. Smith are and at all times relevant hereto have been directors of
Dime.
5. The individual defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Dime, and owe plaintiff and the
other members of the class the highest obligations of good faith, fair dealing,
due care, loyalty and full and candid disclosure.
6. Hudson United Bankcorp ("Hudson") is a holding company for Hudson
United Bank, Lafayette American Bank and Bank of the Hudson.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
holders of Dime common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action because:
(a) The Class is so numerous that joinder of all members is
impracticable. There are approximately 110.9 million shares of Dime common stock
outstanding.
(b) There are questions of law and fact, including the following:
(1) whether the defendants have breached their fiduciary and
other
<PAGE> 3
common law duties owed by them to plaintiff and the other members of the Class;
and
(2) whether the Class is entitled to injunctive relief as a
result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
9. On or about September 15, 1999, Dime entered into a merger agreement
with Hudson which was subsequently restated and amended on or about December 27,
1999. Dime will be the surviving entity and will be renamed Dime United Bancorp,
Inc.
10. Under the terms of the merger agreement with Hudson, each Dime
stockholder will receive 0.60255 shares of Dime United stock for each share of
existing Dime stock. Hudson shareholders will receive 1.0 share of Dime United
stock for each share of Hudson common stock held. After the merger, Dime
stockholders will own 56% of Dime United and Hudson stockholders will own 44% of
the combined entity. Dime's shareholder meeting to vote upon the Hudson merger
agreement is set for March 15, 2000. Since the merger announcement in September
of 1999, Hudson's shares have declined in value by 31%.
11. In connection with the Hudson merger agreement, Dime and Hudson
entered into a
<PAGE> 4
Stock Option Agreement designed to discourage third party bids for Dime. Under
the Stock Option Agreement, Hudson can purchase up to 19.9% of Dime's common
stock for $17.75 per share (the "Lock-up Option"). The Lock-up Option is
generally triggered if (a) a third party acquires beneficial ownership of 25% or
more of Dime's outstanding common stock; or (b) Dime enters into a merger
agreement with a third party or the Company's board of directors recommends a
merger or similar transaction other than the Hudson transaction.
12. If Dime subsequently consummates an alternative transaction or over
50% of Dime is acquired by a third party, Hudson may force Dime to repurchase
the Lock-up Option and all or any part of the shares issued under the Option
from Hudson. In addition, Hudson may surrender the Lock-up Option and any shares
issued under the Lock-up Option for a cash fee to be paid by Dime equal to $50
million.
13. Moreover, in connection with the Hudson merger agreement, the
individual defendants will reap significant financial rewards. All outstanding
stock options issued under Dime's employee and director benefit plans that are
not exercisable will become exercisable because completion of the merger will
constitute a "change in control" under the terms of these plans. In addition,
any restrictions on restricted stock will also lapse at the completion of the
Hudson merger. The Dime options, stock appreciation rights, and restricted stock
that are expected to become exercisable or vest in connection with the Hudson
merger have a value estimated at $4.78 million.
14. Dime United will assume defendant Toal's employment agreement, which
was renegotiated after the merger agreement was executed. Toal's salary will be
at least $900,000 per year, with a target bonus of at least half that amount.
Toal will also be granted options to buy 150,000 shares of Dime United common
stock. Also, Dime's senior management will retain control of Dime United.
<PAGE> 5
15. In early March 2000, North Fork Bancorp ("North Fork") contacted Dime
to discuss an alternative proposal to purchase the Company. North Fork then
announced its intent to commence a $1.88 billion tender offer to acquire Dime in
a combination of cash and stock. Dime shareholders would get 0.9302 shares of
North Fork common stock and $2.00 in cash for each Dime share, or $17.00 based
upon North Fork's closing price on March 3, 2000. North Fork's proposal
represents over a 31% premium to Dime's closing price of March 3, 2000. In
addition, North Fork's offer represents a 41% premium to the consideration Dime
shareholders will receive under the Hudson merger. It is doubtful that Dime's
senior management would retain their offices if North Fork acquires Dime.
16. The individual defendants have rejected North Fork's offer. Defendant
Toal stated publicly "North Fork's offer is an attempt to destroy a transaction
that is in the best interests of Dime, its shareholders, and the communities it
serves. We are strongly committed to the [Hudson] transaction."
17. The Lock-up Option is designed to compensate Hudson in the event the
merger agreement is terminated pursuant to paragraph 11 above. Hudson's
potential profit from the Lock-up Option does not represent a reasonable
estimate of the damages it would incur as a result of the termination of the
merger agreement. The Lock-up Option is not designed to benefit Dime's
shareholders. Indeed, it may discourage North Fork from increasing its offer
because Hudson will benefit substantially from any such increase. The Lock-up
Option is unenforceable because, among other things, it inhibits the ability of
Dime's directors to negotiate with North Fork for a higher offer which will
enure to the benefit of Dime's shareholders.
18. In light of the North Fork offer, which is vastly superior to the
merger agreement with Hudson, the individual defendants have a fiduciary duty to
inform themselves fully about North
<PAGE> 6
Fork's offer and to negotiate with North Fork to improve its offer. By rejecting
North Fork's offer out-of-hand, the individual defendants have violated their
fiduciary duties of loyalty and due care which they owe to Dime's shareholders.
19. The individual defendants have refused to enter into any negotiations
with North Fork in an attempt to entrench themselves in their offices with the
Company and Dime United and to protect their substantial salaries and
prestigious positions. The individual defendants' placement of their own
interests ahead of the interests of Dime shareholders is in violation of their
fiduciary duties of loyalty and good faith.
20. Defendant Hudson has knowingly aided and abetted the breaches of
fiduciary duty committed by the other defendants to the detriment of Dime's
shareholders. Hudson is a party to and beneficiary of the unenforceable Lock-up
Option. Hudson and its stockholders are the intended beneficiaries of the wrongs
complained of herein and would be unjustly absent relief in this action.
21. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining fair consideration for
their shares of Dime common stock unless defendants are enjoined from committing
the wrongs complained of herein.
22. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) Declaring this to be a proper class action and designating plaintiff
as class representative;
(b) Rescinding the Lock-up Option granted to Hudson;
(c) Preliminarily and permanently enjoining defendants from taking any
steps to give effect to the Lock-up Option pending rescission
thereof;
<PAGE> 7
(d) Enjoining preliminarily and permanently the merger agreement between
Dime and Hudson;
(e) To the extent, if any, that the Hudson merger is consummated prior
to the entry of this Court's final judgment, rescinding the same or
awarding rescissory damages to the Class;
(f) Directing that defendants account to plaintiff and the Class for all
damages caused them and account for all profits and any special
benefits obtained by defendants as a result of their unlawful
conduct;
(g) Awarding plaintiff the costs and disbursements of this action,
including a reasonable allowance for the fees and expenses of
plaintiff's attorneys and experts; and
(h) Granting such other and further relief as the Court deems
appropriate.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Joseph A. Rosenthal
------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Of Counsel:
FARUQI & FARUQI, LLP
320 east 39th Street
New York, NY 10016
(212) 983-9330
<PAGE> 1
Exhibit 99.8
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------x
WILLIAM STEINER, | Civil Action No. 17862
|
Plaintiff, |
|
v. |
|
|
LAWRENCE TOAL; DERRICK D. CEPHAS; |
RICHARD W. DALRYMPLE; FRED B. KOONS; |
MARGARET OSMER-MCQUADE; HOWARD |
SMITH; FREDERICK C. CHEN; J. BARCLAY |
COLLINS II; JAMES F. FULTON; VIRGINIA |
M. KOPP; JAMES M. LARGE, JR.; JOHN |
MORNING; SALLY HERNANDEZ-PINERO; |
PAUL A. QUALBEN; EUGENE G. SCHULZ, JR.; |
NORMAN R. SMITH; IRA T. WENDER; |
DIME BANCORP, INC. and HUDSON |
UNITED BANCORP, |
|
Defendants. |
- --------------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Dime Bancorp,
Inc. ("Dime" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Dime is a corporation duly existing and organized under the laws of the
State of Delaware. Dime is a holding company for the Dime Savings Bank of New
York, FSB. The Company's business segments are retail banking, commercial
banking, mortgage banking, and
<PAGE> 2
investment portfolio.
3. Defendant Lawrence J. Toal is and at all times relevant hereto has been
President, Chairman of the Board, Chief Operating Officer and Chief Executive
Officer of Dime.
4. Defendants Derrick D. Cephas, Richard W. Dalrymple, Fred B. Koons,
Margaret Osmer-McQuade, Howard Smith, Ira T. Wender, Frederick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Paul A. Qualben, Eugene G. Schulz, Jr. and
Norman R. Smith are and at all times relevant hereto have been directors of
Dime.
5. The individual defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Dime, and owe plaintiff and the
other members of the class the highest obligations of good faith, fair dealing,
due care, loyalty and full and candid disclosure.
6. Hudson United Bankcorp ("Hudson") is a holding company for Hudson
United Bank, Lafayette American Bank and Bank of the Hudson.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
holders of Dime common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action because:
(a) The Class is so numerous that joinder of all members is
impracticable. There are approximately 110.9 million shares of Dime common stock
outstanding.
(b) There are questions of law and fact, including the following:
(1) whether the defendants have breached their fiduciary and
other
<PAGE> 3
common law duties owed by them to plaintiff and the other members of the Class;
and
(2) whether the Class is entitled to injunctive relief as a
result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
9. On or about September 15, 1999, Dime entered into a merger agreement
with Hudson which was subsequently restated and amended on or about December 27,
1999. Dime will be the surviving entity and will be renamed Dime United Bancorp,
Inc.
10. Under the terms of the merger agreement with Hudson, each Dime
stockholder will receive 0.60255 shares of Dime United stock for each share of
existing Dime stock. Hudson shareholders will receive 1.0 share of Dime United
stock for each share of Hudson common stock held. After the merger, Dime
stockholders will own 56% of Dime United and Hudson stockholders will own 44% of
the combined entity. Dime's shareholder meeting to vote upon the Hudson merger
agreement is set for March 15, 2000. Since the merger announcement in September
of 1999, Hudson's shares have declined in value by 31%.
11. In connection with the Hudson merger agreement, Dime and Hudson
entered into a
<PAGE> 4
Stock Option Agreement designed to discourage third party bids for Dime. Under
the Stock Option Agreement, Hudson can purchase up to 19.9% of Dime's common
stock for $17.75 per share (the "Lock-up Option"). The Lock-up Option is
generally triggered if (a) a third party acquires beneficial ownership of 25% or
more of Dime's outstanding common stock; or (b) Dime enters into a merger
agreement with a third party or the Company's board of directors recommends a
merger or similar transaction other than the Hudson transaction.
12. If Dime subsequently consummates an alternative transaction or over
50% of Dime is acquired by a third party, Hudson may force Dime to repurchase
the Lock-up Option and all or any part of the shares issued under the Option
from Hudson. In addition, Hudson may surrender the Lock-up Option and any shares
issued under the Lock-up Option for a cash fee to be paid by Dime equal to $50
million.
13. Moreover, in connection with the Hudson merger agreement, the
individual defendants will reap significant financial rewards. All outstanding
stock options issued under Dime's employee and director benefit plans that are
not exercisable will become exercisable because completion of the merger will
constitute a "change in control" under the terms of these plans. In addition,
any restrictions on restricted stock will also lapse at the completion of the
Hudson merger. The Dime options, stock appreciation rights, and restricted stock
that are expected to become exercisable or vest in connection with the Hudson
merger have a value estimated at $4.78 million.
14. Dime United will assume defendant Toal's employment agreement, which
was renegotiated after the merger agreement was executed. Toal's salary will be
at least $900,000 per year, with a target bonus of at least half that amount.
Toal will also be granted options to buy 150,000 shares of Dime United common
stock. Also, Dime's senior management will retain control of Dime United.
<PAGE> 5
15. In early March 2000, North Fork Bancorp ("North Fork") contacted Dime
to discuss an alternative proposal to purchase the Company. North Fork then
announced its intent to commence a $1.88 billion tender offer to acquire Dime in
a combination of cash and stock. Dime shareholders would get 0.9302 shares of
North Fork common stock and $2.00 in cash for each Dime share, or $17.00 based
upon North Fork's closing price on March 3, 2000. North Fork's proposal
represents over a 31% premium to Dime's closing price of March 3, 2000. In
addition, North Fork's offer represents a 41% premium to the consideration Dime
shareholders will receive under the Hudson merger. It is doubtful that Dime's
senior management would retain their offices if North Fork acquires Dime.
16. The individual defendants have rejected North Fork's offer. Defendant
Toal stated publicly "North Fork's offer is an attempt to destroy a transaction
that is in the best interests of Dime, its shareholders, and the communities it
serves. We are strongly committed to the [Hudson] transaction."
17. The Lock-up Option is designed to compensate Hudson in the event the
merger agreement is terminated pursuant to paragraph 11 above. Hudson's
potential profit from the Lock-up Option does not represent a reasonable
estimate of the damages it would incur as a result of the termination of the
merger agreement. The Lock-up Option is not designed to benefit Dime's
shareholders. Indeed, it may discourage North Fork from increasing its offer
because Hudson will benefit substantially from any such increase. The Lock-up
Option is unenforceable because, among other things, it inhibits the ability of
Dime's directors to negotiate with North Fork for a higher offer which will
enure to the benefit of Dime's shareholders.
18. In light of the North Fork offer, which is vastly superior to the
merger agreement with Hudson, the individual defendants have a fiduciary duty to
inform themselves fully about North
<PAGE> 6
Fork's offer and to negotiate with North Fork to improve its offer. By rejecting
North Fork's offer out-of-hand, the individual defendants have violated their
fiduciary duties of loyalty and due care which they owe to Dime's shareholders.
19. The individual defendants have refused to enter into any negotiations
with North Fork in an attempt to entrench themselves in their offices with the
Company and Dime United and to protect their substantial salaries and
prestigious positions. The individual defendants' placement of their own
interests ahead of the interests of Dime shareholders is in violation of their
fiduciary duties of loyalty and good faith.
20. Defendant Hudson has knowingly aided and abetted the breaches of
fiduciary duty committed by the other defendants to the detriment of Dime's
shareholders. Hudson is a party to and beneficiary of the unenforceable Lock-up
Option. Hudson and its stockholders are the intended beneficiaries of the wrongs
complained of herein and would be unjustly absent relief in this action.
21. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining fair consideration for
their shares of Dime common stock unless defendants are enjoined from committing
the wrongs complained of herein.
22. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) Declaring this to be a proper class action and designating plaintiff
as class representative;
(b) Rescinding the Lock-up Option granted to Hudson;
(c) Preliminarily and permanently enjoining defendants from taking any
steps to give effect to the Lock-up Option pending rescission
thereof;
<PAGE> 7
(d) Enjoining preliminarily and permanently the merger agreement between
Dime and Hudson;
(e) To the extent, if any, that the Hudson merger is consummated prior
to the entry of this Court's final judgment, rescinding the same or
awarding rescissory damages to the Class;
(f) Directing that defendants account to plaintiff and the Class for all
damages caused them and account for all profits and any special
benefits obtained by defendants as a result of their unlawful
conduct;
(g) Awarding plaintiff the costs and disbursements of this action,
including a reasonable allowance for the fees and expenses of
plaintiff's attorneys and experts; and
(h) Granting such other and further relief as the Court deems
appropriate.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Joseph A. Rosenthal
------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Of Counsel:
GOODKIND LABATON RUDOFF &
SUCHAROW LLP
100 Park Avenue, 12th Floor
New York, NY 10017
(212) 907-0700
<PAGE> 1
Exhibit 99.9
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------x
SALIM SHIRY, | Civil Action No. 17863
|
Plaintiff, |
|
v. |
|
|
LAWRENCE TOAL; DERRICK D. CEPHAS; |
RICHARD W. DALRYMPLE; FRED B. KOONS; |
MARGARET OSMER-MCQUADE; HOWARD |
SMITH; FREDERICK C. CHEN; J. BARCLAY |
COLLINS II; JAMES F. FULTON; VIRGINIA |
M. KOPP; JAMES M. LARGE, JR.; JOHN |
MORNING; SALLY HERNANDEZ-PINERO; |
PAUL A. QUALBEN; EUGENE G. SCHULZ, JR.; |
NORMAN R. SMITH; IRA T. WENDER; |
DIME BANCORP, INC. and HUDSON |
UNITED BANCORP, |
|
Defendants. |
- --------------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Dime Bancorp,
Inc. ("Dime" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Dime is a corporation duly existing and organized under the laws of the
State of Delaware. Dime is a holding company for the Dime Savings Bank of New
York, FSB. The Company's business segments are retail banking, commercial
banking, mortgage banking, and
<PAGE> 2
investment portfolio.
3. Defendant Lawrence J. Toal is and at all times relevant hereto has been
President, Chairman of the Board, Chief Operating Officer and Chief Executive
Officer of Dime.
4. Defendants Derrick D. Cephas, Richard W. Dalrymple, Fred B. Koons,
Margaret Osmer-McQuade, Howard Smith, Ira T. Wender, Frederick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Paul A. Qualben, Eugene G. Schulz, Jr. and
Norman R. Smith are and at all times relevant hereto have been directors of
Dime.
5. The individual defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Dime, and owe plaintiff and the
other members of the class the highest obligations of good faith, fair dealing,
due care, loyalty and full and candid disclosure.
6. Hudson United Bankcorp ("Hudson") is a holding company for Hudson
United Bank, Lafayette American Bank and Bank of the Hudson.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
holders of Dime common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action because:
(a) The Class is so numerous that joinder of all members is
impracticable. There are approximately 110.9 million shares of Dime common stock
outstanding.
(b) There are questions of law and fact, including the following:
(1) whether the defendants have breached their fiduciary and
other
<PAGE> 3
common law duties owed by them to plaintiff and the other members of the Class;
and
(2) whether the Class is entitled to injunctive relief as a
result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
9. On or about September 15, 1999, Dime entered into a merger agreement
with Hudson which was subsequently restated and amended on or about December 27,
1999. Dime will be the surviving entity and will be renamed Dime United Bancorp,
Inc.
10. Under the terms of the merger agreement with Hudson, each Dime
stockholder will receive 0.60255 shares of Dime United stock for each share of
existing Dime stock. Hudson shareholders will receive 1.0 share of Dime United
stock for each share of Hudson common stock held. After the merger, Dime
stockholders will own 56% of Dime United and Hudson stockholders will own 44% of
the combined entity. Dime's shareholder meeting to vote upon the Hudson merger
agreement is set for March 15, 2000. Since the merger announcement in September
of 1999, Hudson's shares have declined in value by 31%.
11. In connection with the Hudson merger agreement, Dime and Hudson
entered into a
<PAGE> 4
Stock Option Agreement designed to discourage third party bids for Dime. Under
the Stock Option Agreement, Hudson can purchase up to 19.9% of Dime's common
stock for $17.75 per share (the "Lock-up Option"). The Lock-up Option is
generally triggered if (a) a third party acquires beneficial ownership of 25% or
more of Dime's outstanding common stock; or (b) Dime enters into a merger
agreement with a third party or the Company's board of directors recommends a
merger or similar transaction other than the Hudson transaction.
12. If Dime subsequently consummates an alternative transaction or over
50% of Dime is acquired by a third party, Hudson may force Dime to repurchase
the Lock-up Option and all or any part of the shares issued under the Option
from Hudson. In addition, Hudson may surrender the Lock-up Option and any shares
issued under the Lock-up Option for a cash fee to be paid by Dime equal to $50
million.
13. Moreover, in connection with the Hudson merger agreement, the
individual defendants will reap significant financial rewards. All outstanding
stock options issued under Dime's employee and director benefit plans that are
not exercisable will become exercisable because completion of the merger will
constitute a "change in control" under the terms of these plans. In addition,
any restrictions on restricted stock will also lapse at the completion of the
Hudson merger. The Dime options, stock appreciation rights, and restricted stock
that are expected to become exercisable or vest in connection with the Hudson
merger have a value estimated at $4.78 million.
14. Dime United will assume defendant Toal's employment agreement, which
was renegotiated after the merger agreement was executed. Toal's salary will be
at least $900,000 per year, with a target bonus of at least half that amount.
Toal will also be granted options to buy 150,000 shares of Dime United common
stock. Also, Dime's senior management will retain control of Dime United.
<PAGE> 5
15. In early March 2000, North Fork Bancorp ("North Fork") contacted Dime
to discuss an alternative proposal to purchase the Company. North Fork then
announced its intent to commence a $1.88 billion tender offer to acquire Dime in
a combination of cash and stock. Dime shareholders would get 0.9302 shares of
North Fork common stock and $2.00 in cash for each Dime share, or $17.00 based
upon North Fork's closing price on March 3, 2000. North Fork's proposal
represents over a 31% premium to Dime's closing price of March 3, 2000. In
addition, North Fork's offer represents a 41% premium to the consideration Dime
shareholders will receive under the Hudson merger. It is doubtful that Dime's
senior management would retain their offices if North Fork acquires Dime.
16. The individual defendants have rejected North Fork's offer. Defendant
Toal stated publicly "North Fork's offer is an attempt to destroy a transaction
that is in the best interests of Dime, its shareholders, and the communities it
serves. We are strongly committed to the [Hudson] transaction."
17. The Lock-up Option is designed to compensate Hudson in the event the
merger agreement is terminated pursuant to paragraph 11 above. Hudson's
potential profit from the Lock-up Option does not represent a reasonable
estimate of the damages it would incur as a result of the termination of the
merger agreement. The Lock-up Option is not designed to benefit Dime's
shareholders. Indeed, it may discourage North Fork from increasing its offer
because Hudson will benefit substantially from any such increase. The Lock-up
Option is unenforceable because, among other things, it inhibits the ability of
Dime's directors to negotiate with North Fork for a higher offer which will
enure to the benefit of Dime's shareholders.
18. In light of the North Fork offer, which is vastly superior to the
merger agreement with Hudson, the individual defendants have a fiduciary duty to
inform themselves fully about North
<PAGE> 6
Fork's offer and to negotiate with North Fork to improve its offer. By rejecting
North Fork's offer out-of-hand, the individual defendants have violated their
fiduciary duties of loyalty and due care which they owe to Dime's shareholders.
19. The individual defendants have refused to enter into any negotiations
with North Fork in an attempt to entrench themselves in their offices with the
Company and Dime United and to protect their substantial salaries and
prestigious positions. The individual defendants' placement of their own
interests ahead of the interests of Dime shareholders is in violation of their
fiduciary duties of loyalty and good faith.
20. Defendant Hudson has knowingly aided and abetted the breaches of
fiduciary duty committed by the other defendants to the detriment of Dime's
shareholders. Hudson is a party to and beneficiary of the unenforceable Lock-up
Option. Hudson and its stockholders are the intended beneficiaries of the wrongs
complained of herein and would be unjustly absent relief in this action.
21. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining fair consideration for
their shares of Dime common stock unless defendants are enjoined from committing
the wrongs complained of herein.
22. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) Declaring this to be a proper class action and designating plaintiff
as class representative;
(b) Rescinding the Lock-up Option granted to Hudson;
(c) Preliminarily and permanently enjoining defendants from taking any
steps to give effect to the Lock-up Option pending rescission
thereof;
<PAGE> 7
(d) Enjoining preliminarily and permanently the merger agreement between
Dime and Hudson;
(e) To the extent, if any, that the Hudson merger is consummated prior
to the entry of this Court's final judgment, rescinding the same or
awarding rescissory damages to the Class;
(f) Directing that defendants account to plaintiff and the Class for all
damages caused them and account for all profits and any special
benefits obtained by defendants as a result of their unlawful
conduct;
(g) Awarding plaintiff the costs and disbursements of this action,
including a reasonable allowance for the fees and expenses of
plaintiff's attorneys and experts; and
(h) Granting such other and further relief as the Court deems
appropriate.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Joseph A. Rosenthal
------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Of Counsel:
KIRBY MCINERNEY & SQUIRE, LLP
830 Third Avenue
10th Floor
New York, NY 10022
(212) 371-6600
<PAGE> 1
Exhibit 99.10
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------x
ROBERT LEWIS, | Civil Action No. 17864
|
Plaintiff, |
|
v. |
|
|
LAWRENCE TOAL; DERRICK D. CEPHAS; |
RICHARD W. DALRYMPLE; FRED B. KOONS; |
MARGARET OSMER-MCQUADE; HOWARD |
SMITH; FREDERICK C. CHEN; J. BARCLAY |
COLLINS II; JAMES F. FULTON; VIRGINIA |
M. KOPP; JAMES M. LARGE, JR.; JOHN |
MORNING; SALLY HERNANDEZ-PINERO; |
PAUL A. QUALBEN; EUGENE G. SCHULZ, JR.; |
NORMAN R. SMITH; IRA T. WENDER; |
DIME BANCORP, INC. and HUDSON |
UNITED BANCORP, |
|
Defendants. |
- --------------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Dime Bancorp,
Inc. ("Dime" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Dime is a corporation duly existing and organized under the laws of the
State of Delaware. Dime is a holding company for the Dime Savings Bank of New
York, FSB. The Company's business segments are retail banking, commercial
banking, mortgage banking, and
<PAGE> 2
investment portfolio.
3. Defendant Lawrence J. Toal is and at all times relevant hereto has been
President, Chairman of the Board, Chief Operating Officer and Chief Executive
Officer of Dime.
4. Defendants Derrick D. Cephas, Richard W. Dalrymple, Fred B. Koons,
Margaret Osmer-McQuade, Howard Smith, Ira T. Wender, Frederick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Paul A. Qualben, Eugene G. Schulz, Jr. and
Norman R. Smith are and at all times relevant hereto have been directors of
Dime.
5. The individual defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Dime, and owe plaintiff and the
other members of the class the highest obligations of good faith, fair dealing,
due care, loyalty and full and candid disclosure.
6. Hudson United Bankcorp ("Hudson") is a holding company for Hudson
United Bank, Lafayette American Bank and Bank of the Hudson.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
holders of Dime common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action because:
(a) The Class is so numerous that joinder of all members is
impracticable. There are approximately 110.9 million shares of Dime common stock
outstanding.
(b) There are questions of law and fact, including the following:
(1) whether the defendants have breached their fiduciary and
other
<PAGE> 3
common law duties owed by them to plaintiff and the other members of the Class;
and
(2) whether the Class is entitled to injunctive relief as a
result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
9. On or about September 15, 1999, Dime entered into a merger agreement
with Hudson which was subsequently restated and amended on or about December 27,
1999. Dime will be the surviving entity and will be renamed Dime United Bancorp,
Inc.
10. Under the terms of the merger agreement with Hudson, each Dime
stockholder will receive 0.60255 shares of Dime United stock for each share of
existing Dime stock. Hudson shareholders will receive 1.0 share of Dime United
stock for each share of Hudson common stock held. After the merger, Dime
stockholders will own 56% of Dime United and Hudson stockholders will own 44% of
the combined entity. Dime's shareholder meeting to vote upon the Hudson merger
agreement is set for March 15, 2000. Since the merger announcement in September
of 1999, Hudson's shares have declined in value by 31%.
11. In connection with the Hudson merger agreement, Dime and Hudson
entered into a
<PAGE> 4
Stock Option Agreement designed to discourage third party bids for Dime. Under
the Stock Option Agreement, Hudson can purchase up to 19.9% of Dime's common
stock for $17.75 per share (the "Lock-up Option"). The Lock-up Option is
generally triggered if (a) a third party acquires beneficial ownership of 25% or
more of Dime's outstanding common stock; or (b) Dime enters into a merger
agreement with a third party or the Company's board of directors recommends a
merger or similar transaction other than the Hudson transaction.
12. If Dime subsequently consummates an alternative transaction or over
50% of Dime is acquired by a third party, Hudson may force Dime to repurchase
the Lock-up Option and all or any part of the shares issued under the Option
from Hudson. In addition, Hudson may surrender the Lock-up Option and any shares
issued under the Lock-up Option for a cash fee to be paid by Dime equal to $50
million.
13. Moreover, in connection with the Hudson merger agreement, the
individual defendants will reap significant financial rewards. All outstanding
stock options issued under Dime's employee and director benefit plans that are
not exercisable will become exercisable because completion of the merger will
constitute a "change in control" under the terms of these plans. In addition,
any restrictions on restricted stock will also lapse at the completion of the
Hudson merger. The Dime options, stock appreciation rights, and restricted stock
that are expected to become exercisable or vest in connection with the Hudson
merger have a value estimated at $4.78 million.
14. Dime United will assume defendant Toal's employment agreement, which
was renegotiated after the merger agreement was executed. Toal's salary will be
at least $900,000 per year, with a target bonus of at least half that amount.
Toal will also be granted options to buy 150,000 shares of Dime United common
stock. Also, Dime's senior management will retain control of Dime United.
<PAGE> 5
15. In early March 2000, North Fork Bancorp ("North Fork") contacted Dime
to discuss an alternative proposal to purchase the Company. North Fork then
announced its intent to commence a $1.88 billion tender offer to acquire Dime in
a combination of cash and stock. Dime shareholders would get 0.9302 shares of
North Fork common stock and $2.00 in cash for each Dime share, or $17.00 based
upon North Fork's closing price on March 3, 2000. North Fork's proposal
represents over a 31% premium to Dime's closing price of March 3, 2000. In
addition, North Fork's offer represents a 41% premium to the consideration Dime
shareholders will receive under the Hudson merger. It is doubtful that Dime's
senior management would retain their offices if North Fork acquires Dime.
16. The individual defendants have rejected North Fork's offer. Defendant
Toal stated publicly "North Fork's offer is an attempt to destroy a transaction
that is in the best interests of Dime, its shareholders, and the communities it
serves. We are strongly committed to the [Hudson] transaction."
17. The Lock-up Option is designed to compensate Hudson in the event the
merger agreement is terminated pursuant to paragraph 11 above. Hudson's
potential profit from the Lock-up Option does not represent a reasonable
estimate of the damages it would incur as a result of the termination of the
merger agreement. The Lock-up Option is not designed to benefit Dime's
shareholders. Indeed, it may discourage North Fork from increasing its offer
because Hudson will benefit substantially from any such increase. The Lock-up
Option is unenforceable because, among other things, it inhibits the ability of
Dime's directors to negotiate with North Fork for a higher offer which will
enure to the benefit of Dime's shareholders.
18. In light of the North Fork offer, which is vastly superior to the
merger agreement with Hudson, the individual defendants have a fiduciary duty to
inform themselves fully about North
<PAGE> 6
Fork's offer and to negotiate with North Fork to improve its offer. By rejecting
North Fork's offer out-of-hand, the individual defendants have violated their
fiduciary duties of loyalty and due care which they owe to Dime's shareholders.
19. The individual defendants have refused to enter into any negotiations
with North Fork in an attempt to entrench themselves in their offices with the
Company and Dime United and to protect their substantial salaries and
prestigious positions. The individual defendants' placement of their own
interests ahead of the interests of Dime shareholders is in violation of their
fiduciary duties of loyalty and good faith.
20. Defendant Hudson has knowingly aided and abetted the breaches of
fiduciary duty committed by the other defendants to the detriment of Dime's
shareholders. Hudson is a party to and beneficiary of the unenforceable Lock-up
Option. Hudson and its stockholders are the intended beneficiaries of the wrongs
complained of herein and would be unjustly absent relief in this action.
21. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining fair consideration for
their shares of Dime common stock unless defendants are enjoined from committing
the wrongs complained of herein.
22. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) Declaring this to be a proper class action and designating plaintiff
as class representative;
(b) Rescinding the Lock-up Option granted to Hudson;
(c) Preliminarily and permanently enjoining defendants from taking any
steps to give effect to the Lock-up Option pending rescission
thereof;
<PAGE> 7
(d) Enjoining preliminarily and permanently the merger agreement between
Dime and Hudson;
(e) To the extent, if any, that the Hudson merger is consummated prior
to the entry of this Court's final judgment, rescinding the same or
awarding rescissory damages to the Class;
(f) Directing that defendants account to plaintiff and the Class for all
damages caused them and account for all profits and any special
benefits obtained by defendants as a result of their unlawful
conduct;
(g) Awarding plaintiff the costs and disbursements of this action,
including a reasonable allowance for the fees and expenses of
plaintiff's attorneys and experts; and
(h) Granting such other and further relief as the Court deems
appropriate.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Joseph A. Rosenthal
------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Of Counsel:
STULL, STULL & BRODY
6 East 45th Street
New York, NY 10017
(212) 687-7230
WEISS & YOURMAN
551 Fifth Avenue, Suite 1600
New York, NY 10176
(212) 682-3025
<PAGE> 1
Exhibit 99.11
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------x
ROBERT COLEMAN, | Civil Action No. 17852NC
|
Plaintiff, |
|
v. |
|
|
LAWRENCE TOAL; DERRICK D. CEPHAS; |
RICHARD W. DALRYMPLE; FRED B. KOONS; |
MARGARET OSMER-MCQUADE; HOWARD |
SMITH; FREDERICK C. CHEN; J. BARCLAY |
COLLINS II; JAMES F. FULTON; VIRGINIA |
M. KOPP; JAMES M. LARGE, JR.; JOHN |
MORNING; SALLY HERNANDEZ-PINERO; |
PAUL A. QUALBEN; EUGENE G. SCHULZ, JR.; |
NORMAN R. SMITH; IRA T. WENDER; |
DIME BANCORP, INC. and HUDSON |
UNITED BANCORP, |
|
Defendants. |
- --------------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Dime Bancorp,
Inc. ("Dime" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Dime is a corporation duly existing and organized under the laws of the
State of Delaware. Dime is a holding company for the Dime Savings Bank of New
York, FSB. The Company's business segments are retail banking, commercial
banking, mortgage banking, and
<PAGE> 2
investment portfolio.
3. Defendant Lawrence J. Toal is and at all times relevant hereto has been
President, Chairman of the Board, Chief Operating Officer and Chief Executive
Officer of Dime.
4. Defendants Derrick D. Cephas, Richard W. Dalrymple, Fred B. Koons,
Margaret Osmer-McQuade, Howard Smith, Ira T. Wender, Frederick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Paul A. Qualben, Eugene G. Schulz, Jr. and
Norman R. Smith are and at all times relevant hereto have been directors of
Dime.
5. The individual defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Dime, and owe plaintiff and the
other members of the class the highest obligations of good faith, fair dealing,
due care, loyalty and full and candid disclosure.
6. Hudson United Bankcorp ("Hudson") is a holding company for Hudson
United Bank, Lafayette American Bank and Bank of the Hudson.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of the
holders of Dime common stock (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation or other entity
related to or affiliated with any of the defendants.
8. This action is properly maintainable as a class action because:
(a) The Class is so numerous that joinder of all members is
impracticable. There are approximately 110.9 million shares of Dime common stock
outstanding.
(b) There are questions of law and fact, including the following:
(1) whether the defendants have breached their fiduciary and
other
<PAGE> 3
common law duties owed by them to plaintiff and the other members of the Class;
and
(2) whether the Class is entitled to injunctive relief as a
result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
9. On or about September 15, 1999, Dime entered into a merger agreement
with Hudson which was subsequently restated and amended on or about December 27,
1999. Dime will be the surviving entity and will be renamed Dime United Bancorp,
Inc.
10. Under the terms of the merger agreement with Hudson, each Dime
stockholder will receive 0.60255 shares of Dime United stock for each share of
existing Dime stock. Hudson shareholders will receive 1.0 share of Dime United
stock for each share of Hudson common stock held. After the merger, Dime
stockholders will own 56% of Dime United and Hudson stockholders will own 44% of
the combined entity. Dime's shareholder meeting to vote upon the Hudson merger
agreement is set for March 15, 2000. Since the merger announcement in September
of 1999, Hudson's shares have declined in value by 31%.
11. In connection with the Hudson merger agreement, Dime and Hudson
entered into a
<PAGE> 4
Stock Option Agreement designed to discourage third party bids for Dime. Under
the Stock Option Agreement, Hudson can purchase up to 19.9% of Dime's common
stock for $17.75 per share (the "Lock-up Option"). The Lock-up Option is
generally triggered if (a) a third party acquires beneficial ownership of 25% or
more of Dime's outstanding common stock; or (b) Dime enters into a merger
agreement with a third party or the Company's board of directors recommends a
merger or similar transaction other than the Hudson transaction.
12. If Dime subsequently consummates an alternative transaction or over
50% of Dime is acquired by a third party, Hudson may force Dime to repurchase
the Lock-up Option and all or any part of the shares issued under the Option
from Hudson. In addition, Hudson may surrender the Lock-up Option and any shares
issued under the Lock-up Option for a cash fee to be paid by Dime equal to $50
million.
13. Moreover, in connection with the Hudson merger agreement, the
individual defendants will reap significant financial rewards. All outstanding
stock options issued under Dime's employee and director benefit plans that are
not exercisable will become exercisable because completion of the merger will
constitute a "change in control" under the terms of these plans. In addition,
any restrictions on restricted stock will also lapse at the completion of the
Hudson merger. The Dime options, stock appreciation rights, and restricted stock
that are expected to become exercisable or vest in connection with the Hudson
merger have a value estimated at $4.78 million.
14. Dime United will assume defendant Toal's employment agreement, which
was renegotiated after the merger agreement was executed. Toal's salary will be
at least $900,000 per year, with a target bonus of at least half that amount.
Toal will also be granted options to buy 150,000 shares of Dime United common
stock. Also, Dime's senior management will retain control of Dime United.
<PAGE> 5
15. In early March 2000, North Fork Bancorp ("North Fork") contacted Dime
to discuss an alternative proposal to purchase the Company. North Fork then
announced its intent to commence a $1.88 billion tender offer to acquire Dime in
a combination of cash and stock. Dime shareholders would get 0.9302 shares of
North Fork common stock and $2.00 in cash for each Dime share, or $17.00 based
upon North Fork's closing price on March 3, 2000. North Fork's proposal
represents over a 31% premium to Dime's closing price of March 3, 2000. In
addition, North Fork's offer represents a 41% premium to the consideration Dime
shareholders will receive under the Hudson merger. It is doubtful that Dime's
senior management would retain their offices if North Fork acquires Dime.
16. The individual defendants have rejected North Fork's offer. Defendant
Toal stated publicly "North Fork's offer is an attempt to destroy a transaction
that is in the best interests of Dime, its shareholders, and the communities it
serves. We are strongly committed to the [Hudson] transaction."
17. The Lock-up Option is designed to compensate Hudson in the event the
merger agreement is terminated pursuant to paragraph 11 above. Hudson's
potential profit from the Lock-up Option does not represent a reasonable
estimate of the damages it would incur as a result of the termination of the
merger agreement. The Lock-up Option is not designed to benefit Dime's
shareholders. Indeed, it may discourage North Fork from increasing its offer
because Hudson will benefit substantially from any such increase. The Lock-up
Option is unenforceable because, among other things, it inhibits the ability of
Dime's directors to negotiate with North Fork for a higher offer which will
enure to the benefit of Dime's shareholders.
18. In light of the North Fork offer, which is vastly superior to the
merger agreement with Hudson, the individual defendants have a fiduciary duty to
inform themselves fully about North
<PAGE> 6
Fork's offer and to negotiate with North Fork to improve its offer. By rejecting
North Fork's offer out-of-hand, the individual defendants have violated their
fiduciary duties of loyalty and due care which they owe to Dime's shareholders.
19. The individual defendants have refused to enter into any negotiations
with North Fork in an attempt to entrench themselves in their offices with the
Company and Dime United and to protect their substantial salaries and
prestigious positions. The individual defendants' placement of their own
interests ahead of the interests of Dime shareholders is in violation of their
fiduciary duties of loyalty and good faith.
20. Defendant Hudson has knowingly aided and abetted the breaches of
fiduciary duty committed by the other defendants to the detriment of Dime's
shareholders. Hudson is a party to and beneficiary of the unenforceable Lock-up
Option. Hudson and its stockholders are the intended beneficiaries of the wrongs
complained of herein and would be unjustly absent relief in this action.
21. As a result of the actions of defendants, plaintiff and the other
members of the Class will be prevented from obtaining fair consideration for
their shares of Dime common stock unless defendants are enjoined from committing
the wrongs complained of herein.
22. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) Declaring this to be a proper class action and designating plaintiff
as class representative;
(b) Rescinding the Lock-up Option granted to Hudson;
(c) Preliminarily and permanently enjoining defendants from taking any
steps to give effect to the Lock-up Option pending rescission
thereof;
<PAGE> 7
(d) Enjoining preliminarily and permanently the merger agreement between
Dime and Hudson;
(e) To the extent, if any, that the Hudson merger is consummated prior
to the entry of this Court's final judgment, rescinding the same or
awarding rescissory damages to the Class;
(f) Directing that defendants account to plaintiff and the Class for all
damages caused them and account for all profits and any special
benefits obtained by defendants as a result of their unlawful
conduct;
(g) Awarding plaintiff the costs and disbursements of this action,
including a reasonable allowance for the fees and expenses of
plaintiff's attorneys and experts; and
(h) Granting such other and further relief as the Court deems
appropriate.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Joseph A. Rosenthal
------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Of Counsel:
SCHIFFRIN & BARROWAY, LLP
Marc A. Topaz
Gregory M. Castaldo
Three Bala Plaza East
Suite 400
Bala Cynwyd, PA 19004
(610) 667-7706
<PAGE> 1
Exhibit 99.12
COPY
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
NORTH FORK BANCORPORATION, INC., )
)
Plaintiff, )
) Civil Action No. 17850NC
v. )
)
DIME BANCORP, INC., a Delaware Corporation, )
RICHARD W. DALRYMPLE, FRED B. KOONS, )
MARGARET OSMER-MCQUADE, HOWARD )
SMITH, FREDRICK C. CHEN, J. BARCLAY )
COLLINS II, JAMES F. FULTON, VIRGINIA )
M. KOPP, JAMES M. LARGE, JR., JOHN )
MORNING, SALLY HERNANDEZ-PINERO, )
DR. PAUL A. QUALBEN, EUGENE 0. )
SCHULZ, JR., DR NORMAN R. SMITH )
LAWRENCE J. TOAL and HUDSON UNITED )
BANCORP., )
)
Defendants.
COMPLAINT
Plaintiff North Fork Bancorporation, Inc. ("North Fork"), by and through
its undersigned counsel, by and for its complaint, alleges upon knowledge as to
itself and upon information and belief as to all other matters, as follows:
1. Plaintiff North Fork has today announced its intention to commence an
exchange offer (the "Exchange Offer" or the "North Fork Exchange Offer") to
acquire all of the outstanding shares of Dime Bancorp, Inc. ("Dime") for 0.9302
shares of North Fork stock and $2.00 in cash for each Dime share, representing a
<PAGE> 2
41% premium over the implied value to Dime's shareholders of the Dime-Hudson
merger (as defined below), based on the closing prices of North Fork and Hudson
common stock on the New York Stock Exchange on March 3, 2000.
2. On September 15, 1999, defendants Dime and Hudson United Bancorp
("Hudson") entered into a Merger Agreement (the "Merger Agreement"), which
provided for the merger of Hudson with and into Dime (the "Dime-Hudson Merger"),
with the surviving entity remaining a Delaware corporation to be named "Dime
United Bancorp, Inc." ("Dime United").
3. Under the Merger Agreement, each Hudson stockholder would receive one
share of Dime United per Hudson share and each Dime stockholder would receive
0.60255 shares of Dime United per Dime share. According to public sources, if
the Merger is successfully completed, Dime stockholders will own 56%, and Hudson
stockholders will own 44%, respectively, of Dime United stock.
4. The Merger Agreement, by its express terms, prevents the Board of
Directors of Dime (the "Dime Board") from exercising their fiduciary duties
under Delaware law. Among other things, the Merger Agreement contains three
provisions designed to preclude, and which have the effect of precluding, the
Dime Board from becoming properly informed about whether or not to recommend the
North Fork Exchange Offer. These provisions are also unreasonably preclusive and
coercive, and are specifically designed by both parties to preclude other
alternatives and to
2
<PAGE> 3
coerce Dime shareholders into approving the Merger Agreement at the scheduled
special meeting on March 15, 2000.
5. Dime and Hudson agreed in their Merger Agreement that neither party,
under all circumstances and without any exceptions, would: (i) negotiate or have
any discussion with any other party regarding an acquisition proposal (the "No
Talk" provision); (ii) modify or withdraw its recommendation that its
stockholders approve the Dime-Hudson Merger (the "Affirmative Recommendation"
provision); or (iii) terminate the Merger Agreement before June 30, 2000 - even
if the shareholders of either company fail to approve the merger at special
shareholder meetings currently scheduled for March 15, 2000 (the "Termination"
provision) (collectively, the "Offending Provisions").
6. The Director Defendants failed to exercise due care when they
negotiated these terms and entered into the Merger Agreement.
7. North Fork's Exchange Offer is non-discriminatory, non-coercive, and
provides a substantial premium to Dime stockholders in exchange for their Dime
shares. Through the Exchange Offer and a proposed second step-merger, North Fork
intends to acquire control of, and ultimately the entire equity interest in,
Dime. However, the Exchange Offer is conditioned upon, among other things, the
valid termination of the Merger Agreement.
8. North Fork objects to the Offending Provisions because their effect is
to preclude the Dime Board from even considering whether or not to withdraw its
3
<PAGE> 4
recommendation of the Dime-Hudson merger. Moreover, because the No Talk
provision does not contain any "fiduciary out" or other exception, North Fork is
not even in the position to invite Dime to enter into discussions about North
Fork's Exchange Offer because of the possibility that Dime or Hudson could
allege that North Fork is improperly interfering with the Merger Agreement.
Accordingly, North Fork seeks, among other things, declaratory and injunctive
relief invalidating the Offending Provisions of the Merger Agreement
9. North Fork's Exchange Offer is not intended to, and will not,
improperly or tortiously interfere in any respect with the Merge Agreement.
THE PARTIES
10. Plaintiff North Fork is a publicly traded corporation organized and
existing under the laws of the State of Delaware. North Fork has been a
shareholder of Dime at all times relevant to this litigation.
11. Defendant Dime is a corporation organized and existing under the laws
of the State of Delaware.
12. Defendant Lawrence Toal is the Chairman, Chief Executive Officer,
President, and Chief Operating Officer of Dime.
13. The other directors of Dime include defendants Richard W. Dalrymple,
Fred B. Koons, Margaret Osmer-McQuade, Howard Smith, Fredrick C. Chen, J.
Barclay Collins II, James F. Fulton, Virginia M. Kopp, James M. Large, Jr., John
Morning, Sally Hernandez-Pinero, Dr. Paul A. Qualben, Eugene G. Schulz, Jr., and
4
<PAGE> 5
Dr. Norman R. Smith (collectively with Mr. Toal, the "Dime Board" or "Director
Defendants").
14. Defendant Hudson is a corporation organized and existing under the
laws of the State of New Jersey.
THE DIME-HUDSON MERGER AGREEMENT
15. On September 15, 1999, Dime and Hudson announced they had entered into
the Merger Agreement, under which Hudson and Dime agreed to merge to form Dime
United in a transaction valued at approximately $3.6 billion (representing the
combined market capitalization of both companies) at the time the agreement was
announced.
16. Under the Merger Agreement, each share of Hudson would be converted
into one Dime United share, and each share of Dime would be converted into
0.60255 Dime United shares. According to public sources, Dime's shareholders
would control approximately 56% of Dime United after the merger, while Hudson's
shareholders would control approximately 44%. The Board of Directors of the
combined Delaware company would consist of 13 former directors of Dime and 12
former directors of Hudson, with Mr. Toal (of Dime) as Chairman and CEO.
17. Special meetings of both Dime and Hudson stockholders have been
scheduled for March 15, 2000 for purposes of voting on the Merger Agreement.
5
<PAGE> 6
18. The effect of the No Talk, Affirmative Recommendation, and the
Termination provisions is to create a preclusive and coercive structural barrier
to an alternative transaction, such as North Fork's, in violation of Delaware
law.
19. Section 6.3 of the Merger Agreement contains the "No Talk" provision,
which provides that Dime and Hudson may not:
initiate, solicit or encourage, directly or indirectly, any inquiries or
the making or implementing of any proposal or offer with respect to a
merger, acquisition, consolidation or similar transaction involving, or
any purchase of all or substantially part of the assets or any equity
securities of, it or any of its subsidiaries (any such proposal or offer
being hereinafter referred to as an "Acquisition Proposal") or engage in
any negotiations concerning, or provide any confidential information or
data to, or have any discussions with, any such person relating to an
Acquisition Proposal.
(emphasis added). Notably absent is any provision that would permit the Dime
Board to exercise its fiduciary duties under Delaware law to make an informed
judgment about whether or not to negotiate with third-party suitors it the
circumstances so warranted. Because the No Talk provision does not contain any
"fiduciary out" or other exception, North Fork is not even in the position to
invite Dime to enter into discussions about North Fork's Exchange Offer because
of the possibility that Dime or Hudson could allege that North Fork is
improperly interfering with the Merger Agreement.
20. Section 6.3 of the Merger Agreement creates the legal equivalent of
willful blindness on the part of the Director Defendants. The Director
Defendants have contracted away their duty to be informed of all material
information reason-
6
<PAGE> 7
ably available, thus completely foreclosing the opportunity to discuss
alternative transactions with third party suitors. This provision, together with
the Affirmative Recommendation provision, prevents the Dime Board from
exercising its fiduciary duty to make an informed judgment whether or not to
withdraw its recommendation of the Dime-Hudson merger.
21. Section 6.4 of the Merger Agreement contains an unqualified
contractual obligation to recommend the Merger Agreement notwithstanding any
future developments and provides that:
The Board of Directors of each of Dime and Hudson will recommend ...
adoption [of the Dime-Hudson Merger], and each of Dime and Hudson will
take all reasonable action to solicit such adoption by its respective
stockholders....
(emphasis added). This covenant also contains no provision that would permit the
Dime Board to exercise its fiduciary duties wider Delaware law to withdraw,
modify, or amend its recommendation that Dime shareholders approve the
Dime-Hudson Merger if the circumstances require.
22. Section 6.4 creates an unqualified, affirmative obligation on the part
of the Dime Board to recommend the Merger Agreement, notwithstanding the
emergence of facts or circumstances which cause the Dime Board to conclude that
the Merger Agreement is no longer advisable. As such, this provision violates
Section 252(c) of the Delaware General Corporation Law, which incorporates the
provisions of Section 251(c), specifying that: "[t]he terms of the agreement may
7
<PAGE> 8
require that the agreement be submitted to the stockholders whether or not the
board of directors determines at any time subsequent to declaring its
advisability that the agreement is no longer advisable and recommends that the
stockholders reject it." (Emphasis added). Section 6.4 prevents the Dime Board
from exercising its fiduciary duty to make an informed judgment whether or not
to withdraw its recommendation of the Dime-Hudson Merger.
23. The Director Defendants have also purportedly agreed not to terminate
the Merger Agreement -- even in the event of a stockholder vote rejecting the
Merger Agreement -- until June 30, 2000. Section 12 provides that:
"[t]his Agreement may be terminated and the Merger may be abandoned by
action of the Board of Directors of either Dime or Hudson if the Merger
shall not have been consummated by June 30, 2000..."
The practical effect of this provision is to prevent Dime from seriously
considering the North Fork Exchange Offer until on or after June 30, 2000.
24. Section 6.2 violates Delaware law and the Dime Board's fiduciary
duties to Dime and its shareholders.
25. Taken separately or collectively, the No Talk (Section 6.3),
Affirmative Recommendation (Section 6.4), and Termination (Section 8.2)
provisions fail to account for the Dime Board's obligation under Delaware law to
use informed judgment with respect to even considering whether or not to
withdraw its recommendation of the Dime-Hudson Merger. These provisions are not
reasonable in relation to any perceived threat, are coercive and preclusive, and
fall outside the range of
8
<PAGE> 9
reasonableness. Moreover, the Dime Board, in permitting these and other
provisions in the Merger Agreement, failed to negotiate with care to retain
sufficient flexibility to ensure that Dime shareholders would not be unfairly
coerced into accepting a less than optimal exchange for their shares.
26. Subject to certain conditions set forth in North Fork's publicly
available filings, North Fork's Exchange Offer is to acquire each outstanding
Dime share for 0.9302 shares of North Fork stock and $2.00 in cash.
IRREPARABLE INJURY
27. Defendants' conduct has irreparably harmed and, unless enjoined, will
continue to irreparably harm North Fork by depriving it of the unique
opportunity to acquire Dime. North Fork's resulting injury is not compensable in
monetary damages and, therefore, it has no adequate remedy at law.
COUNT I
28. North Fork repeats and realleges each of the preceding paragraphs as
if fully set forth here.
29. By virtue of their positions as directors of Dime, the Director
Defendants owe fiduciary duties to Dime and its shareholders, which include the
obligation to make fully informed decisions on behalf of Dime and its
shareholders, conduct the affairs of Dime with loyalty and care, and not to take
unreasonable defensive measures that are disproportionate to any perceived
threat posed to Dime
9
<PAGE> 10
30. The Offending Provisions of the Merger Agreement violate both Delaware
common and statutory law.
31. The Offending Provisions of the Merger Agreement are unreasonable in
relation to any threat perceived by the Dime Board, are coercive and preclusive
in their effect, and fall outside the range of reasonableness.
32. The Director Defendants breached their duties of care and loyalty by
entering into the Merger Agreement, specifically by agreeing with Hudson to
include the Offending Provisions.
33. The Director Defendants have breached and are threatening further to
breach their fiduciary duties to Dime and its shareholders by failing to inform
themselves of all material information reasonably available, thereby preventing
themselves from making an informed decision with respect to even considering
whether or not to withdraw its recommendation of the Dime-Hudson merger.
34. The Director Defendants have further breached their fiduciary duties
by purposefully engaging in a course of conduct with Hudson intended to coerce
Dime shareholders to vote in favor of the Dime Board's preferred transaction
with Hudson despite the superiority of the North Fork Exchange Offer. The
Director Defendants' conduct was not the product of a reasonable inquiry and
investigation, and unreasonably precludes a transaction offering superior value
to Dime shareholders.
35. Unless enjoined by this Court, the Director Defendants will continue
10
<PAGE> 11
to breach their fiduciary duties and violate Delaware law to the detriment of
Dime and its shareholders and North Fork, and will continue to improperly employ
the Offending Provisions and pursue the Merger Agreement with Hudson.
36. North Fork has no adequate remedy at law.
COUNT II
37. North Fork repeats and realleges each of the preceding paragraphs as
if fully set forth here.
38. By virtue of their positions as directors of Dime, the Director
Defendants owe fiduciary duties to the shareholders of Dime, which include, but
are not limited to, the duty to negotiate terms of a merger agreement with due
care and loyalty, to make informed decisions on behalf of Dime, and to not take
unreasonable defensive measures that are disproportionate to any perceived
threat posed to Dime.
39. As stated above, the Director Defendants have breached their fiduciary
duties to the detriment of Dime and its shareholders and North Fork, and will
continue to do so.
40. Hudson has purposefully availed itself of Delaware law and has
knowingly participated in the Dime Board's breach of its fiduciary duties by
insisting upon and agreeing to the Offending Provisions in the Merger Agreement
which were specifically designed by Hudson and Dime to preclude any other bids,
and to coerce Dime shareholders into approving the Merger Agreement.
11
<PAGE> 12
41. Unless enjoined, Hudson will continue to aid and abet the Dime Board's
breaches of its fiduciary duties to Dime and its shareholders.
42. North Fork has no adequate remedy at law.
WHEREFORE, North Fork prays for judgment as follows:
(i) Declaring that the Offending Provisions of the Merger Agreement are
invalid and unenforceable;
(ii) Temporarily, preliminarily and permanently enjoining Dime and the
Dime Board from taking any steps to enforce the Offending Provisions of the
Merger Agreement.
(iii) Enjoining Hudson from aiding and abetting the Dime Board's breaches
of its fiduciary duties of loyalty and care;
(iv) Granting plaintiffs the costs of this action, including reasonable
attorneys' fees; and
(v) Awarding such further relief and declaration of the rights and legal
relations of the parties to this action as the Court may deem appropriate.
BOUCHARD MARGULES &
FRIEDLANDER
/s/ David J. Margules
----------------------------------------
David J. Margules (ID. No. 2254)
Joanne P. Pinckney (ID. No. 3344)
222 Delaware Avenue, Suite 1102
Wilmington, DE 19801
(302) 573-3500
Attorneys for Plaintiff North Fork
Bancorporation, Inc.
Dated: March 6, 2000
12
