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 7, 2000
Dime Bancorp, Inc.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 001-13094 11-3197414
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(State or Other Jurisdiction) (Commission (IRS Employer
File Number) Identification No.)
589 Fifth Avenue
New York, New York 10017
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (212) 326-6170
Not applicable
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
As previously disclosed in a Current Report on Form 8-K filed by Dime
on March 13, 2000, several complaints have been filed in the Delaware Court of
Chancery against Dime and members of Dime's board of directors.
This current report on Form 8-K includes two additional complaints, one
filed in the Delaware Court of Chancery on March 7, 2000 and the other filed in
the Supreme Court of the State of New York County of Queens on March 8, 2000.
Dime believes that these actions are without merit and intends to
defend them vigorously.
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, Great Neck Capital Appreciation
Partnership v. Dime Bancorp, Inc., et. al., Civil
Action No. 17866 filed in the Court of Chancery of
the State of Delaware in and for New Castle County
99.2 Complaint, Silverberg v. Dime Bancorp, Inc., et.
al., Civil Action No. 5535/2000 filed in the
Supreme Court of the State of New York County of
Queens
-2-
<PAGE>
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 14, 2000
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EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
99.1 Complaint, Great Neck Capital Appreciation Partnership v.
Dime Bancorp, Inc., et. al., Civil Action No. 17866 filed in
the Court of Chancery of the State of Delaware in and for New
Castle County
99.2 Complaint, Silverberg v. Dime Bancorp, Inc., et. al., Civil
Action No. 5535/2000 filed in the Supreme Court of the State
of New York County of Queens
-4-
Exhibit 99.1
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
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GREAT NECK CAPITAL APPRECIATION, :
PARTNERSHIP, :
:
Plaintiff, :
:
v. : Civil Action No. 17866
:
DIME BANCORP., INC., LAWRENCE J. TOAL, :
DERRICK D. CEPHAS, FRED B. KOONS, :
FREDERICK C. CHEN, J. BARCLAY COLLINS :
II, RICHARD W. DALRYMPLE, JAMES F. :
FULTON, SALLY HERNANDEZ-PINERO, :
VIRGINIA M. KOPP, JAMES M. LARGE, Jr., :
JOHN MORNING, MARGARET OSMER-MCQUADE, :
PAUL A. QUALBEN, EUGENE G. SCHULZ, Jr., :
NORMAN R. SMITH, HOWARD SMITH; and :
IRA T. WENDER :
:
Defendants. :
:
- ----------------------------------------x
COMPLAINT
Plaintiff, by and through his attorneys alleges upon information and
belief except as to himself and his actions, which he alleges upon knowledge, as
follows:
SUMMARY OF ACTION
1. This action arises from breaches of fiduciary duties by the board of
directors of Dime Bancorp Inc. ("Dime"). On or about September 15, 1999 Dime and
Hudson United Bancorp ("Hudson") entered into a merger agreement. On March 3,
2000, it was reported that North Fork Bancorp has proposed acquiring Dime in a
transaction which represents an approximate 41% premium to Dime Shareholders
over
<PAGE>
the proposed merger with Hudson. On March 7, it was reported that the Dime Board
of Directors rejected Hudson's offer. Plaintiff alleges that he and other public
shareholders of Dime common stock are entitled to enjoin the proposed
transaction with Hudson or, alternatively, to recover damages in the event that
the transaction is consummated. Plaintiff brings this action on behalf of the
public holders of the outstanding common shares of Dime for injunctive and other
relief in connection with structured merger conceived by defendants hereinafter
described.
THE PARTIES
2. Plaintiff is an owner of Dime common stock.
3. Defendant Dime is a Delaware corporation with its principal
executive offices located at 589 Fifth Avenue, New York, New York 10017. Dime is
the parent holding company of The Dime Savings Bank of New York, the largest
thrift on the East Coast. Dime currently has over 110 million shares of common
stock outstanding held by approximately 20,000 shareholders of record.
4. Defendant Lawrence J. Toal is Chairman of the Board, President,
Chief Executive Officer, and Chief Operating Officer.
5. The other individual defendants Derrick D. Cephas, Fred B. Koons,
Frederick C. Chen, J. Barclay Collins II, Richard W. Dalrymple, James F. Fulton,
Sally Hernandez-Pinero, Virginia M. Kopp, James M. Large, Jr., John Morning,
Margaret Osmer-Moquade, Paul A. Qualben, Eugene G. Schulz, Jr., Norman R. Smith,
Howard Smith And Ira T. Wender with defendant Dime.
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6. The individual defendants, as directors of Dime, owe fiduciary
duties of good faith, loyalty, fair dealing, due care, and full disclosure to
plaintiff and the other members of the Class (as defined below).
7. Hudson is a New Jersey corporation with its principal executive
offices in Mahwah, New Jersey.
8. North Fork, with its principal executive offices in Melville, New
York, is the parent holding company of North Fork Bank and Superior Savings of
New Haven.
CLASS ACTION ALLEGATIONS
9. Plaintiff brings this action pursuant to Rule 23 of the Rules of
this Court, on behalf of themselves and all other shareholders of Dime as of
March 6, 2000 (except the defendants herein and any persons, firm, trust,
corporation, or other entity related to or affiliated with them and their
successors in interest), who are or will be threatened with injury arising from
defendants' actions, as is more fully described herein (the "Class").
10. This action is properly maintainable as a class action for the
following reasons:
a. The Class is so numerous that joinder of all members is
impracticable. There are approximately 20,000 record shareholders of Dime stock
and many more beneficial owners who are members of the Class.
b. Members of the Class are scattered throughout the United States
and are so numerous that it is impracticable to bring them all before this
Court.
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c. There are questions of law and fact that are common to the Class
and that predominate over questions affecting any individual class member. The
common questions include, inter alia, the following:
(1) Whether defendants have violated their fiduciary duties;
(2) Whether the individual defendants, as directors of Dime
have fulfilled, and are capable of fulfilling, their fiduciary duties to
plaintiff and the other members of the Class, including their duties of entire
fairness, loyalty, due care, and
(3) Whether plaintiff and the other members of the Class would
be irreparably damaged were defendants not enjoined from the conduct described
herein.
d. The claims of plaintiff is typical of the claims of the other
members of the Class in that all members of the Class will be damaged by
defendants' actions.
e. Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff
is adequate representatives of the Class.
f. A class action is superior to any other method available for the
fair and efficient adjudication of this controversy since it would be
impractical and undesirable for each of the members of the Class, who has
suffered or will suffer damages, to bring separate actions in various parts of
the country.
g. The prosecution of separate actions by individual members of the
Class would create a risk of inconsistent or varying adjudications with respect
to
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<PAGE>
individual members of the Class which would establish incompatible standards of
conduct for the party opposing the Class.
SUBSTANTIVE ALLEGATIONS
11. On or about September 15, 1999, Dime and Hudson entered into a
merger agreement to effect a transaction pursuant to which Dime will the
surviving corporation in the merger. Immediately following the proposed merger
with Hudson, Dime stockholders would own 56% of the outstanding shares of the
corporation. Hudson stockholders would own 44% of the outstanding shares. Dime
stockholders would receive .60255 of a share of stock in the new entity for each
share of Dime stock. The proposed merger of Dime and Hudson is subject to a
shareholder vote which is scheduled to occur March 15, 2000.
12. On March 6, 2000, it was reported that Northfork Bancorp has made a
proposal to apply Dime in a cash and stock offer in a total amount of $1.89
billion, representing approximately 41% premium for Dime shareholders over the
proposed Dime and Hudson merger. On March 7, it was reported that the Board of
Directors of Dime rejected the North Fork offer.
13. The individual defendants were and are under a continuing duty to
fully inform themselves before taking action, or agreeing to refrain from taking
action, to elicit, promote, consider and evaluate reasonable and bona fide
offers for Dime, to assure that a "level playing field" exists when more than
one bidder for the Company emerges, and not to favor one bidder over another,
unless it is designed to assure and is reasonably related to achieving the best
transaction for the Dime shareholders. The
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individual defendants breached their fiduciary duty by, among other matters,
failing to fully inform themselves about available alternatives to the
transaction, including a transaction with North Fork, and without fully
informing themselves about the value of Dime. Dime also has a shareholder rights
plan unfairly impeding any alternative to the proposed merger with Hudson.
14. If the breaches of fiduciary duty described herein are permitted to
continue, the Dime shareholders will forever lose the opportunity to have the
value of their Company arrived at through competitive bidding on a level playing
field and the opportunity to consider any other bidders which may come forward.
15. By reason of the foregoing acts, practices and course of conduct of
defendants, plaintiff and the other members of the Class have been and will be
damaged because they will not receive their fair proportion of the value of
Dime's assets and business, which far exceeds (and could very well be negotiated
to an even higher level) the transaction consideration, in the unfair
transaction at issue, have been and will be prevented from making an informed
decision whether to approve the transaction, and will wrongfully impede
consideration of any other third party offer for greater consideration,
including the North Fork offer or any improved offer from North Fork.
16. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the Class and will consummate the
transaction with Hudson to the irreparable harm of plaintiff and the Class.
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17. Plaintiff and the other members of the Class have no adequate
remedy at law.
WHEREFORE, plaintiff demands judgment as follows:
a. Declaring this to be a proper class action and naming plaintiff
as Class representative and his attorneys as Class counsel;
b. Ordering defendants to fulfill their fiduciary duties to
plaintiff and the other members of the Class, including those of duty of care,
loyalty, full disclosure, and entire fairness, and properly to consider all bona
fide offers for Dime;
c. Granting preliminary and permanent injunctive relief against the
consummation of the Transaction as described herein;
d. Declaring devices such as Dime's rights plan void to the extent
they unlawfully impede the exercise of fiduciary duties and the rights of Dime
shareholders;
e. Ordering the individual defendants to explore alternatives and
to negotiate in good faith with all interested persons, including but not
limited to North Fork;
f. In the event the Hudson merger is consummated, rescinding the it
and awarding rescissory damages;
g. Ordering defendants, jointly and severally, to pay to plaintiff
and to other members of the Class all damages suffered and to be suffered by
them as the result of the acts alleged herein;
h. Ordering defendants, jointly and severally, to account to
plaintiff and the Class for all profits realized and to be realized by them as a
result of the actions
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complained of and, pending such accounting, to hold such profits in a
constructive trust for the benefit of plaintiff and other members of the Class;
i. Awarding plaintiff the costs and disbursements of the action
including allowances for plaintiff's reasonable attorneys and experts fees; and
j. Granting such other and further relief as may be just and proper
in the premises.
Dated: March 7, 2000 CHIMICLES & TIKELLIS LLP
/s/
------------------------------------
Pamela S. Tikellis
James C. Strum
Robert J. Kriner, Jr.
Timothy R. Dudderar
One Rodney Square
P.O. Box 1035
Wilmington, Delaware 19899
OF COUNSEL:
WOLF, HALDENSTEIN, ADLER, FREEMAN
& HERZ, LLP
270 Madison Avenue
New York, NY 10016
(212) 545-4600
Exhibit 99.2
IN THE SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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:
HERBERT SILVERBERG, : Civil Action No. 5535/2000
:
Plaintiff, :
:
v. :
:
DIME BANCORP., INC.; HUDSON UNITED :
BANCORP; 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; and IRA :
T. WENDER, :
:
Defendants. :
:
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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. Plaintiff is a
resident of Queens County, New York.
2. Dime is a Delaware corporation with its executive offices at 589
Fifth Avenue, New York, New York. Dime is a holding company for the Dime Savings
Bank of New York,
<PAGE>
JSB, which engages in banking activities in the State of New York. The Company's
business segments are retail banking, commercial banking, mortgage banking, and
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 Bancorp ("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 New York Civ. Prac. Laws & R.ss. 901, 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.
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(b) There are common questions of law and fact, including the
following:
(1) Whether the defendants have breached their fiduciary and
other 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 thee 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 reach 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
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<PAGE>
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 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 either (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.
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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.
15. In early March 2000, North Fork Bancorp ("North Fork"), a holding
company for North Fork Bank, which operates full-service branches in the New
York metropolitan area, 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 on 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 is serves. We are strongly committed to the [Hudson] transaction."
17. On March 7, 2000, Bloomberg reported that North Fork has filed suit
against Dime and Hudson over the planned merger. The article states:
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Melville, New York-based North Fork, which has
offered to buy Dime for about $1.79 billion in stock and cash,
says in the suit that its bid represents "a 41-percent premium
over the implied value" to Dime shareholders of the
Dime-Hudson merger, but that a so-called "no-talk" agreement
with Hudson precludes Dime's directors from negotiating with
anyone else.
"North Fork is not even in the position to invite
Dime to enter into discussions (because of) the possibility
that Dime or Hudson could allege that North Fork is improperly
interfering with the merger agreement," North Fork says in the
suit.
The company contends Dime directors are in violation
of their duties to shareholders by ignoring the better offer.
North Fork is seeking a court order invalidating the "no-talk"
provision of the merger agreement. Dime stock owners will vote
on the merger March 15.
18. 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.
19. 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 Fork's offer and to negotiate with North
Fork to improve the offer. By rejecting North Fork's offer out-of-hand, the
individual defendants have violated their fiduciary duties of loyalty and due
care owed to Dime's shareholders.
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20. 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.
21. 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 enriched absent relief in this
action.
22. 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.
23. 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;
D. Enjoining preliminarily and permanently the merger agreement
between Dime and Hudson;
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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.
Dated: New York, New York
March 8, 2000
THE LAW FIRM OF HARVEY GREENFIELD
By: /s/ Harvey Greenfield
---------------------------------
Harvey Greenfield (HG5746)
Laura M. Perrone (LP9918)
60 East 42nd Street, Suite 2001
New York, New York 10165
(212) 949-5500
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