As filed with the Securities and Exchange Commission on May 21, 1999
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Form S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
---------------
HUDSON CITY BANCORP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 06-1497903
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR IDENTIFICATION NO.)
ORGANIZATION)
WEST 80 CENTURY ROAD
PARAMUS, NEW JERSEY 07652
(201) 967-1900
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
---------------
PROFIT INCENTIVE BONUS PLAN
OF HUDSON CITY SAVINGS BANK
(FULL TITLE OF THE PLAN)
---------------
Leonard S. Gudelski
Chairman of the Board and Chief Executive Officer
Hudson City Bancorp, Inc.
West 80 Century Road
Paramus, New Jersey 07652
(201) 967-1900
Copy to:
W. Edward Bright, Esq.
Thacher Proffitt & Wood
Two World Trade Center - 38th Floor
New York, New York 10048
(212) 912-7400
(NAME AND ADDRESS, INCLUDING ZIP CODE, TELEPHONE NUMBER AND AREA
CODE, OF AGENT FOR SERVICE)
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Amount to be Registered(1) Proposed Maximum Offering Proposed Maximum Amount of
Title of Securities to be Registered Price Per Share (2) Aggregate Offering Price Registration Fee
(2)
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 2,000,000 shares $10.00 $20,000,000 $5,560
Plan Participation Interests(3) -- -- -- --
====================================================================================================================================
</TABLE>
(1) Based on the estimated number of shares of common stock of Hudson City
Bancorp, Inc. ("Hudson") under the Profit Incentive Bonus Plan of
Hudson City Savings Bank (the "Plan") with the current assets of the
Plan and the projected contributions to the Plan through December
1, 2002.
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457(h) of the Securities Act of 1933, as amended
(the "Securities Act"), pursuant to which shares of common stock of
Hudson offered pursuant to the Plan are deemed to be offered at $10
per share, the price at which shares of Hudson common stock are being
offered to the public pursuant to the Registration Statement on Form
S-1, as amended (Registration No. 333-74383).
(3) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests
to be offered pursuant to the employee benefit plan described herein.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange
Commission (the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
Note: The document containing the information specified in
this Part I will be sent or given to employees as specified by Rule 428(b)(1).
Such document need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with
the Commission by the Registrant (File No. 333-74383) are incorporated by
reference in this registration statement:
(1) the Prospectus for Common Stock of Hudson City Bancorp, Inc.
dated May 14, 1999, which was filed with the Commission
pursuant to Rule 424(b) under the Securities Act
(Registration No. 333-74383); and
(2) the description of the Registrant's common stock (the "Common
Stock") contained in the Registrant's Registration Statement
on Form 8-A dated May 7, 1999, Registration No. 0-23896.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") subsequent to the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold are incorporated herein by
reference, and such documents shall be deemed to be a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated
<PAGE>
-2-
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
Hudson City Bancorp, Inc. will provide without charge to each
person to whom this Prospectus is delivered, upon request of any such person, a
copy of any or all of the foregoing documents incorporated herein by reference
(other than exhibits to such documents). Written requests should be directed to:
Douglas C. Yingling, Hudson City Bancorp, Inc., West 80 Century Road, Paramus,
NJ 07552. Telephone requests may be directed to (201) 967-0332 ext. 1233.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law "DGCL")
inter alia, empowers a Delaware corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
complete action, suit or proceeding (other than an action by or in the right of
the corporation ) by reason of the fact such person is or was a director,
officer, employee or agent of another corporation or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Similar indemnity is
authorized for such person against expenses (including attorneys' fees) actually
and reasonably incurred in connection with the defense or settlement of any such
threatened, pending or completed action or suit if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and provided further that (unless a court of
competent jurisdiction otherwise provides) such person shall not have been
adjudged liable to the corporation. Any such indemnification may be made only as
authorized
<PAGE>
-3-
in each specific case upon a determination by the shareholders or disinterested
directors or by independent legal counsel in a written opinion that
indemnification is proper because indemnitee has met the applicable standard of
conduct.
Section 145 further authorizes a corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against any liability asserted against him, and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him under Section 145.
Article IX of the Company's Certificate of Incorporation
provides that a director shall not be personally liable to the Company or its
stockholders for damages for breach of his fiduciary duty as a director, except
to the extent such exemption from liability or limitation thereof is expressly
prohibited by the DGCL. Article X of the Company's Certificate of Incorporation
requires the Company, among other things, to indemnify to the fullest extent
permitted by the DGCL, any person who is or was or has agreed to become a
director of officer of the Company, who was or is made a party to, or is
threatened to be made a party to, or has become a witness in, any threatened,
pending or completed action, suit or proceeding, including actions or suits by
or in the right of the Company, by reason of such agreement or service or the
fact that such person is, was or has agreed to serve as a director, officer,
employee or agent of another corporation or organization at the written request
of the Company.
Article X also empowers the Company to purchase and maintain
insurance to protect itself and its directors and officers, and those who were
or have agreed to become directors and officers, against any liability,
regardless of whether or not the Company would have the power to indemnify those
persons against such liability under the law or the provisions set forth in the
Certificate of Incorporation. The Company is also authorized by its Certificate
of Incorporation to enter into individual indemnification contracts with
directors and officers. The Company currently maintains directors' and officers'
liability insurance consistent with the provisions of the Certificate of
Incorporation.
The Company intends to enter into an Employment Agreement with
each of Leonard S. Gudelski, Ronald E. Hermance, Jr. and John M. Tassillo
pursuant to which it would undertake contractually to provide indemnification
and insurance coverage in the manner described above.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
<PAGE>
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ITEM 8. EXHIBITS.
4.1 The Profit Incentive Bonus Plan of Hudson City
Savings Bank, restated as of October 1, 1989, and as
amended through March 11, 1999, incorporated by
reference to Exhibit 10.2 to the Registrant's
Registration Statement on Form S-1, dated March 15,
1999, as amended, Registration No. 333- 74383, and
any amendments thereto.
4.2 Trust Agreement by and between Hudson City Savings
Bank and Bankers Trust Company made as of January 1,
1976 for the Profit Incentive Bonus Plan of Hudson
City Savings Bank.
4.3 Amendment adopted November 14, 1985 to Trust
Agreement dated January 1, 1976 by and between Hudson
City Savings Bank and Bankers Trust Company.
4.4 Certificate of Incorporation of Hudson City Bancorp
Inc., incorporated by reference to Exhibit 3.16, the
Registrant's Registration Statement on Form S-1,
dated March 15, 1999, as amended, Registration No.
333-74383, and any amendments thereto.
4.5 By-Laws of Hudson City Bancorp, Inc., incorporated by
reference to the Registrant's Registration Statement
on Form S-1, dated March 15, 1999, as amended,
Registration No. 333-74383, and any amendments
thereto.
5 Opinion of Thacher Proffitt & Wood, counsel for
Registrant, as to the legality of the securities
being registered, incorporated by reference to
Exhibit 5.1 to the Registrant's Registration
Statement on Form S-1, dated March 15, 1999, as
amended, Registration No. 333-74383, and any
amendments thereto.
23.1 Consent of Thacher Proffitt & Wood.
23.2 Consent of KPMG LLP.
ITEM 9. UNDERTAKINGS.
A. QUALIFICATION OF PLAN. The undersigned Registrant hereby undertakes
to submit the Plan and any amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and has made or will make all changes required by the
IRS in order to qualify the Plan under section 401(a) of the Internal Revenue
Code of 1986, as amended.
<PAGE>
-5-
B. RULE 415 OFFERING. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)) if, in the
aggregate, the changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
C. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report
<PAGE>
-6-
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
D. INCORPORATED ANNUAL AND QUARTERLY REPORTS. The undersigned
registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the latest
annual report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3 of Regulation S-X
are not set forth in the prospectus, to deliver, or cause to be delivered to
each person to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide such
interim financial information.
E. FILING OF REGISTRATION ON FORM S-8. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant for expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
<PAGE>
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of Bergen, State of New Jersey on the 21st of May
1999.
Hudson City Bancorp, Inc.
(Registrant)
By:/s/ Leonard S. Gudelski
-----------------------------------
Leonard S. Gudelski
Chairman of the Board, Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Leonard S. Gudelski Director, Chairman of the Board and May 21, 1999
- ------------------------------------- Chief Executive Officer ------------
Leonard S. Gudelski (Principal Executive Officer)
/s/ Ronald E. Hermance Director, President, and Chief May 21, 1999
- ------------------------------------- Operating Officer (Principal Financial ------------
Ronald E. Hermance Officer) Director
/s/ Verne S. Atwater Director May 21, 1999
- ------------------------------------- ------------
Verne S. Atwater
/s/ John D. Birchby Director May 21, 1999
- ------------------------------------- ------------
John D. Birchby
/s/ Kenneth L. Birchby Director May 21, 1999
- ------------------------------------- ------------
Kenneth L. Birchby
</TABLE>
<PAGE>
-8-
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Victoria H. Bruni Director May 21, 1999
- ------------------------------------- ------------
Victoria H. Bruni
/s/ William s. Cosgrove Director May 21, 1999
- ------------------------------------- ------------
William J. Cosgrove
/s/ Andrew J. Egner, Jr. Director May 21, 1999
- ------------------------------------- ------------
Andrew J. Egner, Jr.
/s/ John W. Klie Director May 21, 1999
- ------------------------------------- ------------
John W. Klie
/s/ Donald O. Quest Director May 21, 1999
- ------------------------------------- ------------
Donald O, Quest
/s/ Arthur V. Wynne, Jr. Director May 21, 1999
- ------------------------------------- ------------
Arthur V. Wynne, Jr.
</TABLE>
<PAGE>
-9-
Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the County of Bergen, State of New
Jersey, on May 21, 1999.
Profit Incentive Bonus Plan of
Hudson City Savings Bank
By: /s/ Douglas C. Yingling
------------------------------------
Douglas C. Yingling
Plan Administrator
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
4.1 The Profit Incentive Bonus Plan of Hudson City Savings Bank, restated
as of October 1, 1989, and as amended through March 11, 1999,
incorporated by reference to Exhibit 10.26 to the Registrant's
Registration Statement on Form S-1, dated March 15, 1999, as amended,
Registration No. 333-74383, and any amendments thereto.
4.2 Trust Agreement by and between Hudson City Savings Bank and
Bankers Trust Company made as of January 1, 1976 for the Profit
Incentive Bonus Plan of Hudson City Savings Bank.
4.3 Amendment adopted November 14, 1985 to Trust Agreement dated
January 1, 1976 by and between Hudson City Savings Bank and Bankers
Trust Company.
4.4 Certificate of Incorporation of Hudson City Bancorp Inc., incorporated
by reference to Exhibit 3.16 to the Registrant's Registration Statement
on Form S-1, dated March 15, 1999, as amended, Registration No. 333-
74383, and any amendments thereto.
4.5 By-Laws of Hudson City Bancorp, Inc., incorporated by reference to the
Registrant's Registration Statement on Form S-1, dated March 15, 1999,
as amended, Registration No. 333-74383, and any amendments thereto.
5 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as
to the legality of the securities being registered
incorporated by reference to Exhibit 5.1 to the Registrant's
Registration Statement on Form S-1, dated March 15, 1999, as
amended, Registration No. 333-74383, and any amendments
thereto.
23.1 Consent of Thacher Proffitt & Wood.
23.2 Consent of KPMG LLP.
</TABLE>
EXHIBIT 4.2
Trust Agreement by and between Hudson City Savings Bank and Bankers Trust
Company made as of January 1, 1976 for the Profit Incentive Bonus Plan of
Hudson City Savings Bank.
<PAGE>
TRUST AGREEMENT
between
HUDSON CITY SAVINGS BANK
and
BANKERS TRUST COMPANY
made as of January 1, 1976
<PAGE>
TRUST AGREEMENT, hereinafter referred to as the "Agreement",
made as of January 1, 1976, by and between HUDSON CITY SAVINGS BANK, a mutual
savings bank organized under the Laws of the State of New Jersey, hereinafter
referred to as the "Bank", and BANKERS TRUST COMPANY, a New York corporation,
hereinafter referred to as the "Trustee".
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS the Bank has heretofore adopted a Profit Incentive
Bonus Plan hereinafter referred to as the "Plan" (a copy of which is attached),
for the benefit of the members and their beneficiaries as therein defined;
WHEREAS, it is provided in the Plan that the contributions of
the members and contributions of the Bank shall be transferred to a trustee for
investment;
WHEREAS, the Bank and the Trustee entered into an Agreement of
Trust ("Agreement") as of January 1, 1974 which provides in Section 6.2 for
amendment thereto; and
WHEREAS the Bank and the Trustee are desirous of amending and
restating said Agreement from and after January 1, 1976 to read in its entirety
as hereinafter set forth.
NOW, THEREFORE, the Bank and Bankers Trust Company, as
Trustee, agree as follows:
SECTION l. The Bank hereby establishes with the Trustee a
trust consisting of such sums of money and such other property acceptable to the
Trustee, as shall from time to time be paid or delivered to the Trustee and the
earnings and profits thereon. All such money and property, all investments made
therewith and proceeds thereof and all earnings and profits thereon, less the
payments which at the time of reference shall have been made by the Trustee, as
authorized herein, are referred to herein as the "Fund". The Fund shall be held
by the Trustee, IN TRUST, and dealt
<PAGE>
with in accordance with the provisions of this Agreement. No part of the corpus
or income of the Fund shall be used for or diverted to purposes other than for
the exclusive benefit of members and their beneficiaries and for defraying
reasonable expenses of administering the Plan.
The Trustee shall have no responsibility or authority in
connection with the determination of the amounts to be transferred to it from
time to time on behalf of members or as contributions of the Bank, nor shall it
have any authority on behalf of the Fund or any member to bring any action or
proceeding to enforce the collection of any such amount.
No duties or obligations shall be imposed upon the Trustee
with respect to the Fund unless they have been specifically undertaken by the
Trustee by the express terms of this Agreement, or are otherwise imposed upon
the Trustee by applicable law.
SECTION 2. The Trustee shall maintain separate accounts for
each member to which shall be credited units of participation in the Fund in
accordance with the provisions of the Plan. The Trustee shall render a statement
at least annually, or more often if requested by the committee provided for in
the Plan (hereinafter referred to as the "Committee"), with respect to such
accounts in accordance with the Plan. The Committee shall certify to the Trustee
the names of members, the respective contributions to be credited to the account
of each, the directions of members, beneficiaries or legal representatives, and
other data required by the Trustee to maintain a record of the accounts of
members, to determine the amounts to be invested in the Fund, and to make
distributions therefrom. The Trustee may rely absolutely on all certifications
by the Committee and shall not be obligated to act on any information or
direction unless certified by the Committee. The Trustee shall be under no duty
or obligation to question such certification or to verify the accuracy of such
certification by reference to records of the Company or Committee. Nothing in
this
<PAGE>
Section 2 is intended to or shall be inferred to confer any other power or
responsibility, discretionary or otherwise, upon the Trustee, individually or as
Trustee, or upon any employee of the Trustee with respect to the administration
of the Plan by the Committee, or the determination of any member's rights
thereunder.
SECTION 3. It shall be the duty of the Trustee (a) to hold,
manage and invest the Fund as hereinafter provided, (b) to maintain member's
accounts pursuant to Section 2 and (c) to pay moneys on the orders certified by
the Committee as being in accordance with the Plan and not contrary to any
applicable provisions of law. Such orders need not specify the application of
any distribution so ordered. The making of such payments shall not be
interpreted to impose any responsibility on the Trustee in any way respecting
such application or for the Committee's administration of the Plan.
SECTION 4. The Trustee shall invest and reinvest the principal
and income of the Fund and keep the Fund invested without distinction between
principal and income, in the following Parts:
PART A: The Equity Fund shall be invested and reinvested in such common
or capital stocks, or bonds, debentures or preferred stocks convertible into
common or capital stock, or in other similar types of equity investments,
whether domestic or foreign, but excluding Company securities, as the Trustee in
its discretion may select.
PART B: The Savings Fund shall be invested in such savings accounts and
time or other interest bearing obligations of any one or more mutual savings
banks, including the Bank and in any note which is evidence of a member's
indebtedness with respect to a loan made pursuant to Section 9.5 of the Plan,
without regard to the proportion which the value of such property held in the
Savings Fund may bear to the value of the Savings Fund or the Fund.
PART C: The Fixed Income Fund shall be invested in. bonds, notes,
debentures, preferred stocks, equipment trust certificates, indebtedness,
acceptances, bills of exchange, Treasury bills, bank deposits, commercial paper,
personal property wherever situated, and in other property, investments and
securities, whether domestic or foreign, the return from which is fixed, limited
or
<PAGE>
determinable in advance by the terms of the contract, document or instrument
creating or evidencing such property or interest in property, or by the terms of
acquisition thereof, but excluding Bank securities, as the Trustee in its
discretion may select.
The Trustee shall treat each such Part as a separate fund, and
the income of each shall be accumulated and invested in its Part.
The Trustee may keep any portion of the Fund in cash or in
short-term obligations of the United States Government or agencies thereof or in
other types of short-term investments, including commercial paper (other than
obligations of the Bank or affiliates), as it may be from time to time deem to
be in the best interests of the Plan or Trust Fund.
Any investment limitation affecting Bank securities shall not
be applicable to the extent such Part may be invested in Trustee, or upon any
employee of the Trustee with respect to the administration of the Plan by the
Committee, or the determination of any participant's rights thereunder.
SECTION 3. It shall be the duty of the Trustee (a) to hold,
manage and invest the Fund as hereinafter provided, (b) to maintain member's
accounts pursuant to Section 2 and (c) to pay moneys on the orders certified by
the Committee as being in accordance with the Plan and not contrary to any
applicable provisions of law. Such orders need not specify the application of
any distribution so ordered. The making of such payments shall not be
interpreted to impose any responsibility on the Trustee in any way respecting
such application or for the Committee's administration of the Plan.
SECTION 4. The Trustee shall invest and reinvest the principal
and income of the Fund and keep the Fund invested without distinction between
principal and income, in the following Parts:
<PAGE>
PART A: The Equity Fund shall be invested and reinvested in such common
or capital stocks, or bonds, debentures or preferred stocks convertible into
common or capital stock, or in other similar types of equity investments,
whether domestic or foreign, but excluding Company securities, as the Trustee in
its discretion may select.
PART B: The Savings Fund shall be invested in such savings accounts and
time or other interest bearing obligations of any one or more mutual savings
banks, including the Bank and in note which is evidence of a participant's
indebtedness with respect to a loan made pursuant to Article ______ of the Plan,
without regard to the proportion which the value of such property held in the
Savings Fund may bear to the value of the Savings Fund or the Fund.
PART C: A fund invested in common or capital stocks, preferred stocks,
bonds, notes, debentures, equipment trust certificates, investment trust
certificates, certificates of indebtedness, acceptances, bills of exchange,
Treasury units of any commingled fund pursuant to Section 5 of this Agreement.
SECTION 5. Notwithstanding any provision of the Plan or this
Agreement to the contrary, the Trustee may in its discretion transfer from time
to time any part or all of the assets of the Part A and C of the Fund to the
Trustee of the General Employee Benefit Trust (hereinafter referred to as the
General Trust) created by Bankers Trust Company under Declaration of Trust,
dated May 28, 1956, as the same may have heretofore been or may hereafter be
amended, to be held subject to all of the provisions thereof, and to be
commingled with the assets of other trusts participating therein. To the extent
of the equitable share of the Fund in the General Trust, the General Trust shall
be part of the Plan pursuant to which this Trust is administered. In the event
of any conflict between the provisions of this Agreement and the General Trust,
the provisions of the General Trust shall control.
SECTION 6. Without in any way limiting the powers and
discretions conferred upon it by the other provisions of this Agreement or by
law, the Trustee is expressly authorized and empowered:
<PAGE>
(a) to sell, exchange, convey, transfer or otherwise dispose
of any property held by it, by private contract or at public auction, and no
person dealing with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the validity, expediency or propriety of any
such sale or other disposition;
(b) to enter into contracts or to make commitments either
alone or in company with others to sell at any future date any property acquired
for the Fund or to purchase any property which it may be authorized to acquire
under this Agreement;
(c) to vote upon any stocks, bonds or other securities; to
give general or special proxies or powers of attorney with or without power of
substitution; to exercise any conversion privileges, subscription rights or
other options and to make any payments incidental thereto; to consent to or
otherwise participate in corporate reorganizations or other changes affecting
corporate securities and to delegate discretionary powers and to pay any
assessments or charges in connection therewith; and generally to exercise any of
the powers of an owner with respect to stocks, bonds, securities, or other
property held in the Fund;
(d) to make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and any and all other instruments that may
be necessary or appropriate to carry out the powers herein granted;
(e) to register any investment held in the Fund in its own
name or in the name of a nominee and to hold any investment in bearer form, or
to combine certificates representing such investments with certificates of the
same issue held by the Trustee in other fiduciary capacities, or to deposit or
to arrange for the deposit of such securities in a qualified central depositary
even though, when so deposited such securities may be merged and held in bulk in
the name of the
<PAGE>
nominee of such depositary with other securities deposited therein by any other
person, or to deposit or to arrange for the deposit of any securities issued by
the United States Government, or any agency or instrumentality thereof, with a
federal reserve bank, but the books and records of the Trustee shall at all
times show that all such investments are part of the Fund.
(f) to employ suitable agents, depositaries and counsel,
domestic or foreign, and to charge their reasonable expenses and compensation as
provided in Section 7 of this Agreement;
(g) to borrow money from any source as may be necessary or
advisable to effectuate the purpose of the Trust on such terms and conditions as
the Trustee, in its absolute discretion, may deem advisable;
(h) to deposit any funds of the Trust in interest bearing
accounts maintained or savings certificates issued by the Trustee, in its
separate corporate capacity, or in any other banking institution affiliated with
the Trustee;
(i) to compromise or otherwise adjust all claims in favor of
or against the Fund [except that it will not exercise this power without the
consent of the Committee if the claim solely affects an interpretation of a
member's or his beneficiary's rights under the Plan];
(j) to hold and invest and reinvest the assets of the Fund in
common with the assets of qualified employee benefit plans of the Bank or its
affiliates held as separate trusts by the Trustee; provided, however, that the
Trustee's records shall at all times show the equitable share of the Fund in
such common fund; and
(k) to maintain cash balances to meet anticipated
distributions from or administrative expenses of the Fund without incurring any
obligation to pay interest thereon.
<PAGE>
SECTION 7. All taxes of any kind that may be assessed or
levied against or in respect of the Fund and all brokerage commissions incurred
by the Fund shall be paid from the Fund. All other expenses of the Plan and the
administration thereof, such as (but not limited to) the expenses incurred by
the Trustee in connection with the administration of this Trust, including fees
for legal services rendered to the Trustee (whether or not rendered in
connection with a judicial or administrative proceeding and whether or not
incurred while it is acting as Trustee), such com pensation to the Trustee as
may be agreed upon from time to time between the Trustee and the Committee and
all other proper charges and disbursements of the Trustee, shall be paid by the
Bank but until paid shall constitute a charge upon the Fund.
SECTION 8. The Trustee shall not be liable for any losses to
the Fund resulting from the disposition of any investment which shall have been
made by a predecessor trustee or for the retention thereof if the Trustee is
unable to dispose of such investment because of any Federal or State securities
laws restrictions or the unmarketable or illiquid nature of such investments or
if an orderly liquidation is difficult under prevailing conditions.
The Trustee may from time to time consult with counsel, who
may be counsel to the Bank, and shall be fully protected, to the extent
permitted by law, in acting upon the advice of counsel.
SECTION 9. The Trustee shall keep accurate and detailed
accounts of all investments, receipts, disbursements and other transactions
hereunder, and all accounts, books and records relating thereto shall be open to
inspection and audit at all reasonable times by any person designated by the
Committee.
<PAGE>
Within ninety (90) days following the close of each fiscal
year, and within ninety (90) days after the removal or resignation of the
Trustee as provided in Section 12 hereof, the Trustee shall file with the
Committee a written account setting forth all investments, receipts,
disbursements and other transactions effected by it during such fiscal year or
during the period from the close of the last fiscal year to the date of such
removal or resignation. Upon the expiration of ninety (90) days from the date of
filing such annual or other account, the Trustee shall be forever released and
discharged from all liability and accountability to the Bank the Committee and
any other person in privity with the Bank or the Committee under this agreement,
with respect to the propriety of its acts and transactions shown in such
account, except with respect to any such acts or transactions as to which the
Committee shall within such ninety-day period file with the Trustee written
objections.
SECTION 10. Except to the extent that Sections 502 and 504 of
the Employee Retirement Income Security Act of 1974 ("ERISA"), as the same may
be amended from time to time, may provide otherwise, in order to protect the
Fund against waste, no one other than the Bank or Committee may require the
Trustee to account or may institute an action or proceeding against the Trustee
or the Fund. However, nothing herein shall in any way limit the Trustee's right
to bring any action or proceeding to settle its account or for such other relief
as it may deem appropriate.
SECTION 11. To the extent required by the Plan or the
Committee, the Trustee shall value the Plan assets and any individual member's
account. In making such valuation the Trustee may rely upon market values or
reasonable appraisals. The Trustee's valuation shall be made and verified in
good faith and in accordance with prevailing practices of persons engaged in the
conduct of similar enterprises, and, to that extent, shall be binding and
conclusive upon all persons at any time interested in the Fund.
<PAGE>
SECTION 12. The Trustee may be removed by the Bank at any time
upon sixty (60) days' notice in writing to the Trustee and the Committee. The
Trustee may resign at any time upon sixty (60) days' notice in writing to the
Bank and the Committee. Upon such removal or resignation of the Trustee the Bank
shall appoint and designate a successor trustee who shall have the same powers
and duties as those conferred upon the Trustee hereunder, and upon acceptance of
such appointment by the successor trustee, the Trustee shall assign, transfer
and pay over to such successor trustee the funds and properties then
constituting the Fund. The Trustee is authorized, however, to reserve such sum
of money, as to it may deem advisable, for payment of its fees and expenses in
connection with the settlement of its account or otherwise, and any balance of
such reserve remaining after the payment of such fees and expenses shall be paid
over to the successor trustee. In lieu of such reserve the Bank may undertake,
pursuant to an agreement in form satisfactory to the Trustee, to hold the
Trustee harmless and free from loss against such fees and expenses.
If for any reason the Bank cannot or does not act in the event
of the resignation or removal of the Trustee, as hereinabove provided, the
Trustee may apply to a court of competent jurisdiction for the appointment of a
successor trustee or for instructions. Any expenses so incurred shall be treated
as an expense of administration.
SECTION 13. Any action by the Bank pursuant to any of the
provisions of this Agreement shall be evidenced by a resolution of its Board of
Managers certified to the Trustee over the signature of its Secretary or
Assistant Secretary under the corporate seal, and the Trustee shall be fully
protected in acting in accordance with such resolution so certified to it. All
certifications, orders, requests, instructions and objections of the Committee
to the Trustee shall be in writing
<PAGE>
signed by the Secretary or any member of the Committee, or by such other person
or persons as may be designated from time to time by the Committee in accordance
with the provisions of the Plan, and the Trustee shall act and shall be fully
protected in acting in accordance with such certifications, orders, requests,
and instructions. The Secretary of the Bank shall furnish the Trustee from time
to time with certified copies of extracts from the minutes of its Board of
Managers evidencing the appointment and termination of office of any members of
the Committee and the appointment of successors thereto, and with certified
copies of resolutions of the Committee evidencing appointment and termination of
office of its Secretary and the appointment of successors thereto. The Trustee
shall have the right to assume, in the absence of written notice to the
contrary, that no event causing a change in membership of the Committee or
terminating the authority of any person authorized to act on its behalf
hereunder, has occurred.
SECTION 14. The Bank reserves the right at any time and from time to
time to amend, in whole or in part, any or all of the provisions of this
Agreement by notice thereof in writing delivered to the Committee and the
Trustee; provided that no such amendment which affects the rights, duties or
responsibilities of the Trustee may be made without its consent, and provided
further that no such amendment shall authorize or permit any part of the corpus
or income of the Fund to be used for or diverted to purposes other than for the
exclusive benefit of members and their beneficiaries and for defraying the
reasonable expenses of administration of the Plan or permit any part of the Fund
under any circumstances to revert to the Bank (except as may otherwise be
permitted under Section 403(c) of ERISA).
SECTION 15. Upon the termination of the Plan or the
Trust, or upon the resignation or removal of the Trustee as hereinabove
provided, the Trustee shall continue to have and may
<PAGE>
exercise all the title, powers, discretions, rights and duties conferred or
imposed upon it by law or by this Agreement until the final distribution of such
Fund, or any portion thereof reserved by the Trustee pursuant to the foregoing
provisions of this Agreement.
SECTION 16. To the extent that State law shall not have been
preempted by the provisions of the Employee Retirement Income Security Act of
1974 or any other laws of the United States heretofore or hereafter enacted, as
the same may be amended from time to time, this Agreement shall be administered,
construed and enforced according to the laws of the State of New York.
SECTION 17. Anything hereinabove to the contrary
notwithstanding, the Trustee may condition its delivery, transfer or
distribution of any assets upon the Trustee's receiving assurances satisfactory
to it that the approval of appropriate governmental or other authorities has
been secured and that all notice and other procedures required by applicable law
have been complied with.
SECTION 18. The Bank shall provide the Trustee with copies of
all documents constituting the Plan at the time the Agreement is executed by the
Bank and all other documents amending or supplementing the Plan promptly upon
their adoption. No such supplement or amendment which affects the rights, duties
or responsibilities of the Trustee shall be made without prior notice to and
consent of the Trustee. The Trustee shall be entitled to rely upon the Bank's
attention to this obligation and shall be under no duty to inquire of the Bank
as to the existence of any documents not provided by the Bank hereunder.
SECTION 19. If Bankers Trust Company is at any time acting as
a successor Trustee with respect to any portion of the Fund or succeeds to
responsibilities hereunder for management
<PAGE>
of assets of the Fund, the Bank hereby agrees to hold Bankers Trust Company,
individually and as Trustee, harmless from and against all taxes, expenses
(including counsel fees), liabilities, claims, damages, actions, suits or other
charges incurred by or assessed against Bankers Trust Company, as a direct or
indirect result of any act or omission of a predecessor trustee or any other
person charged with responsibility with respect to such assets.
<PAGE>
IN WITNESS WHEREOF the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
and their corporate seals to be hereunto affixed and attested as of the day and
year first above written.
HUDSON CITY SAVINGS BANK
By /s/ Kenneth L. Birchby
--------------------------------
(Title) President
ATTEST /s/ Leonard S. Gudelski
------------------------------------
(Title) Executive Vice President
(Seal)
BANKERS TRUST COMPANY
By /s/ Robert F. Karsch
--------------------------------
(Title) Vice President
ATTEST /s/ R.N. Geeb
------------------------------------
(Title) Assistant Secretary
(Seal)
<PAGE>
STATE OF NEW JERSEY )
: ss.:
COUNTY OF HUDSON )
On this 20th of December, in the year 1976, before me
personally came Kenneth L. Birchby to be known, who, being by me, duly sworn,
did depose and say that he resides at Saddle River, New Jersey; that he is
President of Hudson City Savings Bank; the corporation described in and which
executed the above instrument; that he knows the seal of said corporation; that
the seal was affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
Joseph W. Donelan
------------------------------------
Notary Public
My Commission Expires May 13, 1977
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 11th day of December, in the year 1976, before me
personally came Robert F. Karsch to be known, who, being by me duly sworn, did
depose and say that he resides at Garden City, New York; that he is Vice
President of Bankers Trust Company, the corporation described in and which
executed the above instrument; that he knows the seal of said corporation; that
the seal was affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
Claire Olsen
------------------------------------
Notary Public
Claire Olson
Notary Public State of New York
No. 24-6762210
Qualified in Kings County
Certificate Filed in New York County
Commission Expires March 30, 1978
EXHIBIT 4.3
Amendment adopted November 14, 1985 to Trust Agreement dated January 1,
1976 by and between Hudson City Savings Bank and Bankers Trust Company.
<PAGE>
HUDSON CITY SAVINGS BANK
Amendment adopted November 14, 1985 to Trust Agreement dated January 1, 1976 by
and between Hudson City Savings Bank and Bankers Trust Co.
Page #4
- -------
Section 4
---------
Part B: The Savings Fund shall be invested in such savings accounts and
time or other interest bearing obligations of any one or more mutual savings
banks, including the Bank and in any note which is evidence of a member is
indebtedness with respect to a loan made pursuant to Section 9.06 of the Plan,
without regard to the proportion which the value of such property held in the
Savings Fund may bear to the value of the Savings Fund or the Fund.
Page #5
- -------
Section 5.
----------
Notwithstanding any provision of the Plan or this Agreement to the
contrary, the Trustee may in its discretion transfer from time to time any part
or all of the assets of the Part A, B and C of the Fund to the Trustee of the
General Employee Benefit Trust (hereinafter referred to as the General Trust)
created by Bankers Trust Company under Declaration of Trust, dated May 28, 1956,
as the same may have heretofore been or may hereafter be amended, to be held
subject to all of the provisions thereof and to be commingled with the assets of
other trusts participating therein. To the extent of the equitable share of the
Fund in the General Trust, the General Trust shall be part of the Plan pursuant
to which this Trust is administered. In the event of any conflict between the
provisions of this Agreement and the General Trust, the provisions of the
General Trust shall control.
<TABLE>
<CAPTION>
Hudson City Savings Bank
<S> <C>
ATTEST /s/ Joseph W. Donelan By /s/Leonard S. Gudelski
---------------------------------------- -----------------------------------------
Joseph W. Donelan, Secretary Leonard S. Gudelski, President and COO
Bankers Trust Co.
ATTEST /s/ Maria E. Gavris By /s/ Barbara Nicholson
---------------------------------------- -----------------------------------------
Maria E. Gavris, Asst. Treasurer Barbara Nicholson, Asst. Vice President
</TABLE>
EXHIBIT 23.1
Consent of Thacher Proffitt & Wood
<PAGE>
Thacher Proffitt & Wood
Two World Trade Center
New York, New York 10048
May 21, 1999
We hereby consent to the incorporation by reference in this Registration
Statement of Hudson City Bancorp, Inc. on Form S-8 of our opinion appearing as
Exhibit 5.1 in the Registration Statement of Hudson City Bancorp, Inc. on Form
S-1 dated March 15, 1999, Registration No. 333-74383, as amended by
Pre-Effective Amendment No.1 to Form S-1 dated April 28, 1999 and Pre-Effective
Amendment No.2 to Form S-1 dated May 7, 1999 and to the references to our Firm's
name in such Form S-8.
THACHER PROFFITT & WOOD
By: /s/ W. Edward Bright
------------------------
W. Edward Bright
EXHIBIT 23.2
Consent of KPMG LLP
<PAGE>
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Hudson City Bancorp, Inc.:
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated February 12, 1999, relating to the statements of
financial condition of Hudson City Savings Bank as of December 31, 1998 and 1997
and the related statements of income, changes in equity, and cash flows for each
of the years in three year period ended December 31, 1998, which report appears
in the Prospectus for Common Stock of Hudson City Bancorp, Inc. dated May 14,
1999, which was filed with the Securities and Exchange Commission pursuant to
Rule 424(b) and the Securities Act of 1933 (Registration No. 333-74383),
incorporated by reference herein.
/s/ KPMG LLP
Short Hills, New Jersey
May 21, 1999
