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EXHIBIT 1(c) UNDERWRITING AGREEMENT
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5,100,000 SHARES
NEW YORK COMMUNITY BANCORP, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
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May 8, 2002
LEHMAN BROTHERS INC.
SALOMON SMITH BARNEY INC.
SANDLER O'NEILL & PARTNERS, L.P.
ADVEST, INC.
JANNEY MONTGOMERY SCOTT LLC
KEEFE, BRUYETTE & WOODS, INC.
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
New York Community Bancorp, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell 5,100,000 shares (the "FIRM STOCK") of
the Company's Common Stock, par value $0.01 per share (the "COMMON STOCK"). In
addition, the Company proposes to grant to the Underwriters named in Schedule I
hereto (the "UNDERWRITERS") an option to purchase up to an additional 765,000
shares of the Common Stock on the terms and for the purposes set forth in
Section 2 (the "OPTION STOCK"). The Firm Stock and the Option Stock, if
purchased, are hereinafter collectively called the "STOCK." This is to confirm
the agreement concerning the purchase of the Stock from the Company by the
Underwriters.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the "COMMISSION") a registration statement on Form
S-3 (File No. 333-86682), including a prospectus, relating to, among
other securities, the Stock and the offering thereof from time to time
in accordance with the requirements of the Securities Act of 1933, as
amended (the "SECURITIES ACT"), and the rules and regulations of the
Commission thereunder (the "SECURITIES ACT RULES AND Regulations").
Such registration statement has been declared effective by the
Commission. Copies of such registration statement and any amendments
and supplements thereto, have been delivered to you. As used in this
Agreement, "EFFECTIVE TIME" means the date and the time as of which
such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"EFFECTIVE DATE" means the date of the Effective Time; "PRELIMINARY
PROSPECTUS" means each prospectus and preliminary prospectus supplement
included in such registration statement, or amendments thereof, before
it became effective under the Securities Act; "REGISTRATION STATEMENT"
means such registration statement, as amended at the Effective Time,
including any documents incorporated by reference therein at such time
and all information contained in the
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final prospectus filed with the Commission pursuant to Rule 424(b) of
the Securities Act Rules and Regulations in accordance with Section
5(a) hereof and deemed to be a part of the registration statement as of
the Effective Time pursuant to paragraph (b) of Rule 430A of the
Securities Act Rules and Regulations; and "PROSPECTUS" means the
prospectus and any supplements thereto first used to confirm sales of
Stock. If the Company has filed a post-effective amendment or an
abbreviated registration statement to register additional shares of
Common Stock pursuant to Rule 462(b) under the Securities Act which
becomes effective prior to the Delivery Date (as defined herein), then
the term "Registration Statement" shall include any such registration
statement. Reference made herein to any Preliminary Prospectus or to
the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Rule 411 of the
Securities Act Rules and Regulations and Item 12 of Form S-3 under the
Securities Act, as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any document filed under the United
States Securities Exchange Act of 1934 (the "EXCHANGE ACT") after the
date of such Preliminary Prospectus or the Prospectus, as the case may
be, and incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment to
the Registration Statement shall be deemed to include any annual report
of the Company filed with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act after the Effective Time that is incorporated
by reference in the Registration Statement. The Commission has not
issued any order preventing or suspending the use of any Preliminary
Prospectus.
(b) The Company meets the requirements for use of Form S-3 under
the Securities Act.
(c) The Registration Statement complies in all material respects,
and the Prospectus and any further amendments to the Registration
Statement or supplements to the Prospectus, when they become effective
or are filed with the Commission, as the case may be, will comply in
all material respects with the requirements of the Securities Act and
the Securities Act Rules and Regulations and do not and will not, as of
the applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date and any
Delivery Date (as to the Prospectus and any supplement thereto) contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading, and the documents
incorporated by reference in the Prospectus complied in all material
respects as of their respective filing dates with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder (the "EXCHANGE ACT RULES AND REGULATIONS"); PROVIDED that no
representation or warranty is made as to (i) information contained or
incorporated in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein and (ii) those parts of the
Registration Statement constituting the Statements of Eligibility and
Qualifications of Wilmington Trust Company under the Trust Indenture
Act of 1939, as amended.
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(d) The Company and each of its subsidiaries (as defined in
Section 15 hereof) have been duly organized and are validly existing as
corporations or limited liability companies, as the case may be, in
good standing under the laws of their respective jurisdictions of
organization, are duly qualified to do business and are in good
standing as foreign corporations or limited liability companies in each
jurisdiction in which their respective ownership or lease of property
or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified or in good
standing would not have a material adverse effect on the general
affairs, management, consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and
its subsidiaries (a "MATERIAL ADVERSE EFFECT"), and have all power and
authority necessary to own or hold their respective properties and to
conduct their respective businesses as described in the Prospectus,
except as would not have a Material Adverse Effect; none of the
subsidiaries of the Company other than New York Community Bank (the
"BANK"), is a "significant subsidiary," as such term is defined in Rule
405 of the Securities Act Rules and Regulations; and the entities
listed on Schedule II hereto (each a "OTHER SUBSIDIARY") are the only
other subsidiaries of the Company, none of which is material to the
business and operations of the Company.
(e) The Company has an authorized capitalization as set forth in
the Prospectus under the caption "Description of Common Stock," and all
of the outstanding shares of capital stock of the Company are, and any
shares of capital stock issuable upon exercise, purchase or exchange
all outstanding options, warrants and other rights to purchase or
exchange any securities for shares of the Company's capital stock will
be, duly authorized, validly issued, fully paid and non-assessable and
such capital stock, options, warrants or other rights conform in all
material respects to the description thereof contained or incorporated
by reference in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all security
interests, liens, encumbrances, equities or claims.
(f) The shares of Stock to be issued and sold by the Company to
the Underwriters hereunder have been duly authorized and, when issued
and delivered against payment therefor in accordance with this
Agreement, will be validly issued, fully paid and non-assessable, and
the Stock will conform in all material respects to the description
thereof contained or incorporated by reference in the Prospectus. Upon
payment for and delivery of the Stock to be sold by the Company
pursuant to this Agreement, the Underwriters will acquire good and
valid title to such Stock, in each case free and clear of all liens,
encumbrances, equities, preemptive rights, subscription rights, voting
or transfer restrictions and other claims.
(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
hereby will not (1) conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of
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the property or assets of the Company or any of its subsidiaries is
subject, (2) result in any violation of the provisions of the charter
or by-laws of the Company or any of its subsidiaries, or (3) result in
a violation of any statute or any order, rule or regulation of any
court, regulatory authority or governmental agency or body (each a
"GOVERNMENTAL Entity") having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets; and except for
the registration of the Stock under the Securities Act and such
consents, approvals, authorization, registrations or qualifications as
may be required under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution of the
Stock by the Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such Governmental Entity is
required for the execution, delivery or performance of this Agreement
by it and the consummation by it of the transactions contemplated
hereby and thereby.
(i) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Securities Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(j) The Company has not and will not have as of any Delivery Date
sold or issued any shares of Common Stock, other equity securities or
debt securities during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act, other than securities issued
pursuant to employee benefit plans, qualified stock options plans or
other employee compensation plans or pursuant to outstanding options,
rights or warrants, and other than as disclosed in the Prospectus.
(k) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since such
date, there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations, business or
prospects of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus.
(l) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly
the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved except as noted therein.
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(m) KPMG LLP, who have certified certain financial statements of
the Company, whose report is incorporated by reference in the
Registration Statement and who have delivered the initial letter
referred to in Section 6(f) hereof, are independent public accountants
as required by the Securities Act and Rule 2-01 of Regulation S-X under
the Securities Act.
(n) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as do
not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries; and all assets held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries.
(o) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value
of their respective properties and as is customary for companies
engaged in similar businesses in similar industries.
(p) The Company and each of its subsidiaries own, possess or can
acquire on reasonable terms, adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights and
licenses necessary for the conduct of their respective businesses and
have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any
claim of conflict with, any such rights of others.
(q) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse
Effect; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others.
(r) There are no contracts or other documents which are required
by the Securities Act Rules and Regulations to be described in the
Prospectus or filed as exhibits to the Registration Statement by the
Securities Act or by the Securities Act Rules and Regulations or which
are required by the Exchange Act or the Exchange Act Rules and
Regulations to be described in or filed as exhibits to any document
incorporated by reference in the Prospectus which have not been
described in the Prospectus or described in or filed as exhibits to
documents so incorporated by reference.
(s) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is
required by the Securities Act Rules and Regulations to be described in
the Prospectus and which is not so described.
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(t) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which could be
expected to have a Material Adverse Effect.
(u) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and
has paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries which
has had (nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or any of its
subsidiaries, could have) a Material Adverse Effect.
(v) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed or referred to in the Prospectus, the Company has not (i)
issued or granted any securities, (ii) incurred any liability or
obligation, direct or contingent, other than non-material liabilities
and obligations incurred in the ordinary course of business, (iii)
entered into any transaction not in the ordinary course of business or
(iv) declared or paid any dividend on its capital stock.
(w) Each of the Company and each of its subsidiaries (i) makes
and keeps accurate books and records and (ii) maintains internal
accounting controls which provide reasonable assurance that (A)
transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in
accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(x) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws or (ii) is in default in any
material respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject.
(y) Neither the Company nor any of its subsidiaries is, or will
be after the offering and application of the proceeds therefrom, an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
(z) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to the termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "CODE"); and each
"pension plan" for which the Company would have any liability
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that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification.
(aa) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended, and each of the
Company and each of its subsidiaries (i) is in compliance, in all
material respects, in the conduct of its business, with all applicable
federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders or decrees applicable thereto or
to the employees conducting such businesses, including the Equal Credit
Opportunity Act, the Fair Housing Act, the Community Reinvestment Act,
the Home Mortgage Disclosure Act, all other applicable fair lending
laws or other laws relating to discrimination and the Bank Secrecy Act,
and, as of the date hereof, each of its subsidiaries that is an insured
depository institution has a Community Reinvestment Act rating of
"satisfactory" or better; (ii) has all permits, licenses, franchises,
certificates of authority, orders, and approvals of, and has made all
filings, applications, and registrations with, all Governmental
Entities that are required in order to permit the Company or such
subsidiary to carry on its business as currently conducted; (iii) has
not received any communication from any Governmental Entity (including
the Federal Reserve Board and any other bank, insurance or securities
regulatory authority) (A) asserting that the Company or any of its
subsidiaries is not in compliance with any statutes, regulations or
ordinances, (B) threatening to revoke any permit, license, franchise,
certificate of authority or other governmental authorization, or (C)
threatening or contemplating revocation or limitation of, or which
would have the effect of revoking or limiting, Federal Deposit
Insurance Corporation ("FDIC") deposit insurance; and (iv) is not a
party to or subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter,
supervisory letter or similar submission to, any Governmental Entity
charged with the supervision or regulation of depository institutions
or engaged in the insurance of deposits (including the FDIC) or the
supervision or regulation of it or any of its subsidiaries and neither
it nor any of its subsidiaries has been advised by any such
Governmental Entity that such Governmental Entity is contemplating
issuing or requesting (or is considering the appropriateness of issuing
or requesting) any such order, decree, agreement, memorandum of
understanding, commitment letter, supervisory letter or similar
submission.
(bb) The Bank is duly organized and is validly existing as a stock
savings bank under the laws of the State of New York; the Bank is a
member in good-standing of the Federal Homes Loan Bank of New York, and
the deposit accounts of the Bank are insured up to the applicable
limits by the FDIC.
(cc) There are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim
against the Company or any Underwriter for a brokerage commission,
finder's fee or other like payment in connection with the offering of
the Stock, other than as contemplated by this Agreement.
(dd) The statistical and market related data contained in the
Prospectus and Registration Statement are based on or derived from
sources which the Company believes are reliable and accurate.
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(ee) The Company is subject to Section 13 or 15(d) of the Exchange
Act and files reports with the Commission on the Electronic Data
Gathering, Analysis and Retrieval (EDGAR) system.
2. PURCHASE OF THE STOCK BY THE UNDERWRITERS. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 5,100,000 shares of
the Firm Stock to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set forth opposite that Underwriter's name in Schedule I hereto. The
respective purchase obligations of the Underwriters with respect to the Firm
Stock shall be rounded among the Underwriters to avoid fractional shares, as
Lehman Brothers Inc. and Salomon Smith Barney Inc. may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 765,000 shares of Option Stock. Such option is granted solely for
the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 4 hereof. Shares of Option Stock shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Firm Stock set opposite the name of such Underwriters in
Schedule I hereto. The respective purchase obligations of each Underwriter with
respect to the Option Stock shall be adjusted by Lehman Brothers Inc. and
Salomon Smith Barney Inc. so that no Underwriter shall be obligated to purchase
Option Stock other than in 100 share amounts. The price of both the Firm Stock
and any Option Stock shall be $27.84 per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on any Delivery Date (as hereinafter defined) except upon payment for
all the Stock to be purchased on such Delivery Date as provided herein.
3. OFFERING OF STOCK BY THE UNDERWRITERS. Upon authorization by Lehman
Brothers Inc. and Salomon Smith Barney Inc. of the release of the Firm Stock,
the several Underwriters propose to offer the Firm Stock for sale upon the terms
and conditions set forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE STOCK. (a) Delivery of and payment
for the Stock shall be made at the office of Weil, Gotshal & Manges LLP, 767
Fifth Avenue, New York, New York 10153, at 10:00 A.M., New York City time, on
the third full business day (unless postponed in accordance with the provisions
of this Agreement) following the date of this Agreement, or the fourth business
day if this Agreement is executed after 4:30 p.m. New York City time, or at such
other date or place as shall be determined by agreement between the Underwriters
and the Company. This date and time are sometimes referred to as the "FIRST
DELIVERY DATE." On the First Delivery Date, the Company shall deliver or cause
to be delivered certificates representing the Firm Stock to Lehman Brothers Inc.
and Salomon Smith Barney Inc. for the account of each Underwriter against
payment to or upon the order of the Company of the purchase price by wire
transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified herein is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, the Firm Stock shall be
registered in such names and in such denominations as Lehman Brothers Inc. and
Salomon Smith Barney Inc. shall request in writing not less than two full
business days prior to the First Delivery Date.
(b) The option granted in Section 2 with respect to the Option Stock
will expire 30 days after the date of this Agreement and may be exercised in
whole or in part from time to time by written notice being given to the Company
by Lehman Brothers Inc. and Salomon Smith Barney Inc.
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Such notice shall set forth the aggregate number of shares of Option Stock as to
which the option is being exercised, the names in which the shares of Option
Stock are to be registered, the denominations in which the shares of Option
Stock are to be issued and the date and time, as determined by Lehman Brothers
Inc. and Salomon Smith Barney Inc., when the shares of Option Stock are to be
delivered; PROVIDED, HOWEVER, that this date and time shall not be earlier than
the First Delivery Date nor earlier than the second business day after the date
on which the option shall have been exercised nor later than the fifth business
day after the date on which the option shall have been exercised. The date and
time the shares of Option Stock are delivered are sometimes referred to as a
"SECOND DELIVERY DATE" and the First Delivery Date and any Second Delivery Date
are sometimes each referred to as a "DELIVERY DATE."
(c) Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between Lehman
Brothers Inc. and Salomon Smith Barney Inc. and the Company) at 10:00 A.M., New
York City time, on such Second Delivery Date. On such Second Delivery Date, the
Company shall deliver or cause to be delivered the certificates representing the
Option Stock to Lehman Brothers Inc. and Salomon Smith Barney Inc. for the
account of each Underwriter against payment to or upon the order of the Company
of the purchase price by wire transfer in immediately available funds. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement shall be a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Option Stock shall be registered in
such names and in such denominations as the Underwriters shall request in the
aforesaid written notice.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company covenants and
agrees:
(a) To prepare the Prospectus in a form approved by Lehman
Brothers Inc. and Salomon Smith Barney Inc., on behalf of the
Underwriters, and to file such Prospectus (including any prospectus
supplement) pursuant to Rule 424(b) under the Securities Act, not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Securities Act; to make no further amendment or supplement to
the Registration Statement (including any post-effective amendment) or
any supplement to the Prospectus except as permitted herein, to advise
the Underwriters, promptly after receiving notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus has been filed
and to furnish the Underwriters with copies thereof; to advise the
Underwriters, promptly after receiving notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of
the suspension of the qualification of the Stock for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending any
such qualification, to promptly use its best efforts to obtain its
withdrawal;
(b) To furnish promptly to each of the Underwriters and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith;
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(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the computation of per share
earnings) and (ii) each Preliminary Prospectus and the Prospectus and,
if the delivery of a prospectus supplement is required at any time
after the Effective Time in connection with the offering or sale of the
Stock or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the Prospectus as then
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary to supplement the Prospectus in
order to comply with the Securities Act, to notify the Underwriters
and, upon their request, to file such document and prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as the Underwriters may from time to time reasonably
request of a Prospectus so supplemented which will correct such
statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company, Lehman Brothers
Inc. and Salomon Smith Barney Inc., be required by the Securities Act
or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus pursuant to Rule
424 of the Securities Act Rules and Regulations, to furnish a copy
thereof to the Underwriters and counsel for the Underwriters and obtain
the consent of Lehman Brothers Inc. and Salomon Smith Barney Inc. to
the filing (which consent shall not be unreasonably withheld);
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver to
the Underwriters an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Securities Act Rules and Regulations
(including, at the option of the Company, Rule 158);
(g) Promptly to take such action as the Underwriters may from
time to time reasonably request to qualify the Stock for offering and
sale under the securities laws of such jurisdictions as the
Underwriters may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Stock;
PROVIDED that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(h) For a period of 90 days from the date of this Underwriting,
not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose (or enter any transaction or device which is designed
to, or could be expected to, result in the disposition) of any shares
of Common Stock or securities convertible into or exchangeable for
Common Stock (other than the Stock and shares issued pursuant to
employee benefit plans, qualified stock option plans or other employee
compensation plans existing on the date hereof or pursuant to currently
outstanding options,
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warrants or rights), or sell or grant options, rights or warrants with
respect to any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the grant of options pursuant
to option plans existing on the date hereof), or (2) enter into any
swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of
such shares of Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or
other securities, in cash or otherwise, or (3) publicly disclose an
intention to make any such offer, sale, pledge, hedge, swap or other
transaction, in each case without the prior written consent of Lehman
Brothers Inc. and Salomon Smith Barney Inc. on behalf of the
Underwriters; and to cause each executive officer and director of the
Company to furnish to Lehman Brothers Inc. and Salomon Smith Barney
Inc., prior to the First Delivery Date, a letter or letters, in form
and substance satisfactory to counsel for the Underwriters, pursuant to
which each such person shall agree not to, directly or indirectly, (1)
offer for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of)
any shares of Common Stock including, without limitation, shares of
Common Stock that may be deemed to be beneficially owned by such party
in accordance with the Securities Act Rules and Regulations and shares
of Common Stock that may be issued upon exercise of any option or
warrant) or securities convertible into or exchangeable for Common
Stock owned by such party (other than the Stock) on the date the letter
is completed and the Effective Date or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of
Common Stock, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, in each case for a period of 90 days
from the date of the final Prospectus relating to the Offering, without
the prior written consent of Lehman Brothers Inc. and Salomon Smith
Barney Inc. on behalf of the Underwriters;
(i) To apply the net proceeds from the issue and sale of the
Stock as set forth in the Prospectus; and
(j) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "INVESTMENT
COMPANY" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission thereunder.
6. EXPENSES. The Company agrees to pay all expenses incident to the
performance of its obligations under this Agreement, including (a) the costs
incident to the authorization, issuance, sale and delivery of the Stock and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any supplement thereto and any
document incorporated by reference therein, all as provided in this Agreement;
(d) the costs of producing and distributing this Agreement and any other related
documents in connection with the offering, purchase, sale and delivery of the
stock; (e) any applicable listing or other fees; (f) the fees and expenses of
qualifying the Stock under the securities laws of the several jurisdictions as
provided in Section 5(h) and of preparing, printing and distributing a Blue Sky
Memorandum and Canadian private placement offering memorandum (including, in
each case,
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related reasonable fees and expenses of counsel to the Underwriters); (g) the
costs and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering of the
Stock, including, without limitation, expenses associated with the production of
road show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered in
connection with the road show; and (h) all other costs and expenses incident to
the performance of the obligations of the Company under this Agreement; PROVIDED
that, except as provided in this Section 6 and in Section 11 the Underwriters
shall pay their own costs and expenses, including the costs and expenses of
their counsel, any transfer taxes on the Stock which they may sell and the
expenses of advertising any offering of the Stock made by the Underwriters.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains or contained an untrue statement of a fact which, in the
opinion of Weil, Gotshal & Manges LLP, counsel for the Underwriters, is
material or omits or omitted to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Stock, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement, and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to the
Underwriters, and the Company shall have furnished to the Underwriters
and their counsel all documents and information that they may
reasonably request in connection therewith.
(d) Muldoon Murphy & Faucette LLP shall have furnished to the
Underwriters their written opinion, as counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Underwriters, to the effect
that:
(i) Each of the Company and the Bank is validly existing as
corporation and stock savings bank, respectively, in good standing
under the laws of its jurisdiction of organization; the Company is duly
qualified to do business and is in good standing as a foreign
corporation in the State of New York; and each of the Company, the Bank
and, to the best of such counsel's
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knowledge, each of the Other Subsidiaries has all corporate or other
power and authority necessary to own or hold its property and conduct
its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus under the caption "Description of Common Stock;" the
shares of Stock have been duly and authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and non-assessable, and,
assuming that the Underwriters will be "protected purchasers" (as
defined in Section 8-303 of the Uniform Commercial Code in effect in
the State of New York) when the Stock is issued and delivered, the
Underwriters will acquire such Stock free of any adverse claim (as
defined in Section 8-102(a)(1) of the Uniform Commercial Code in effect
in the State of New York); and all of the issued shares of capital
stock of each of the Bank and, to the best of such counsel's knowledge,
each Other Subsidiary of the Company have been duly authorized and
validly issued and are fully paid, non-assessable and are owned
directly or indirectly by the Company;
(iii) There are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the voting or transfer of, any
shares of the Stock pursuant to the Company's certificate of
incorporation or by-laws or any agreement or other instrument known to
such counsel;
(iv) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the Securities Act Rules and Regulations specified in
such opinion on the date specified therein and no stop order suspending
the effectiveness of the Registration Statement has been issued and, to
the knowledge of such counsel, no proceeding for that purpose is
pending or threatened by the Commission;
(v) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior to
such Delivery Date (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the Securities Act Rules and Regulations and the
documents incorporated by reference in the Prospectus comply as to form
in all material respects with the requirements of the Exchange Act and
Exchange Act Rules and Regulations;
(vi) To the best of such counsel's knowledge, there are no
contracts or other documents that are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by the
Securities Act or by the Securities Act Rules and Regulations, that
have not been so described or filed, and there are no contracts or
other documents that are required by the Exchange Act or the Exchange
Act Rules and Regulations to be described in or filed as exhibits to
any document incorporated by reference in the Prospectus that have not
been so described or filed;
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(vii) This Agreement has been duly authorized, executed and
delivered by the Company;
(viii) The issue and sale of the shares of Stock being delivered
on such Delivery Date by the Company and the execution and delivery of
this Agreement, compliance by the Company with all of the provisions
hereof and consummation of the transactions contemplated hereby will
not (A) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which any of the Company, the Bank
or, to the best of such counsel's knowledge, any Other Subsidiary, is a
party or by which the Company, the Bank or, to the best of such
counsel's knowledge, any Other Subsidiary, is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, or (B) result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets; except, with respect to clauses (A) and (B) as such clauses
apply to the Other Subsidiaries, for those defaults, breaches or
violations that would not reasonably be expected to have a Material
Adverse Effect; and, except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state or foreign securities laws in connection with
the purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by the Company
and the consummation of the transactions contemplated hereby;
(ix) To the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right (other than rights which have
been waived or satisfied) to require the Company to file a registration
statement under the Securities Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Securities Act;
(x) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, might have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of
the Company and its subsidiaries, including without limitation (A) any
communication from any Governmental Entity (including the Federal
Reserve Board and any other bank, insurance or securities regulatory
authority) (1) asserting that the Company or any of its
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subsidiaries is not in compliance with any statutes, regulations or
ordinances, (2) threatening to revoke any permit, license, franchise,
certificate of authority or other governmental authorization, or (3)
threatening or contemplating revocation or limitation of, or which
would have the effect of revoking or limiting, Federal Deposit
Insurance Corporation ("FDIC") deposit insurance, and (B) any order,
decree, agreement, memorandum of understanding or similar arrangement
with, or a commitment letter, supervisory letter or similar submission
to, any Governmental Entity charged with the supervision or regulation
of depository institutions or engaged in the insurance of deposits
(including the FDIC) or the supervision or regulation of the Company or
any of its subsidiaries, or any notice that such Governmental Entity is
contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, commitment letter, supervisory
letter or similar submission; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
Governmental Entities or threatened by others;
(xi) To the best of such counsel's knowledge after reasonable
inquiry, the Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended, and each of the
Company and each of its subsidiaries, is, to the best of such counsel's
knowledge, in compliance, in all material respects, in the conduct of
its business with the Bank Holding Company Act of 1956, as amended, the
Federal Deposit Insurance Act and the banking laws of the State of New
York, as applicable.
(xii) The Bank is a member in good standing of the Federal Home
Loan Bank of New York, and the deposit accounts of the Bank are insured
up to the applicable limits by the FDIC.
(xiii) The statements contained in each of the Prospectus and the
Company's most recent annual report on Form 10-K under the caption
"Regulation and Supervision," and in the Prospectus under the caption
"Description of Common Stock," insofar as they describe federal
statutes, rules and regulations and other legal matters constitute a
fair summary thereof.
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of
America, the General Corporation Law of the State of Delaware and the laws
of the State of New York. Such counsel shall also have furnished to the
Underwriters a written statement, addressed to the Underwriters and dated
such Delivery Date, in form and substance satisfactory to the Underwriters,
to the effect that (x) such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statement, and (y) based
on the foregoing, no facts have come to the attention of such counsel which
lead them to believe that either (I) the Registration Statement, as of the
Effective Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Prospectus, as of
its date and as of such Delivery Date, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in
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order to make the statements therein, in light of the circumstances under
which they were made, not misleading or (II) any document incorporated by
reference in the Prospectus or any further amendment or supplement to any
such incorporated document made by the Company prior to such Delivery Date,
when they became effective or were filed with the Commission, as the case
may be, contained, in the case of a registration statement which became
effective under the Securities Act, any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or, in the
case of other documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(e) The Underwriters shall have received from Weil, Gotshal & Manges
LLP, counsel for the Underwriters, such opinion or opinions, dated such
Delivery Date, with respect to the issuance and sale of the Stock, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, the Underwriters shall
have received from KPMG LLP a letter, in form and substance satisfactory to
the Underwriters, addressed to the Underwriters and dated the date hereof
(i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission and (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date hereof),
the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants' "COMFORT
LETTERS" to underwriters in connection with registered public offerings.
(g) With respect to the letter of KPMG LLP referred to in the preceding
paragraph and delivered to the Underwriters concurrently with the execution
of this Agreement (the "INITIAL LETTER"), the Company shall have furnished
to the Underwriters a letter (the "BRING-DOWN LETTER") of such accountants,
addressed to the Underwriters and dated such Delivery Date (i) confirming
that they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, (ii) stating, as of the date of the bring-down letter
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of the
bring-down letter), the conclusions and findings of such firm with respect
to the financial information and other matters covered by the initial letter
and (iii) confirming in all material respects the conclusions and findings
set forth in the initial letter.
(h) The Company shall have furnished to the Underwriters a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
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(i) The representations, warranties and agreements of the Company
in Section 1 are true and correct as of such Delivery Date; the Company
has complied with all its agreements contained herein; and the
conditions set forth in Subsections (a) and (i) of this Section 7 have
been fulfilled; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (A) as of the Delivery Date, the
Registration Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or amendment
to the Registration Statement or the Prospectus.
(i)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
in, or incorporated by reference in, the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus and (ii) since such date there shall not have been any change in
the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus,
the effect of which, in any such case described in clause (i) or (ii), is,
in the judgment of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Stock being delivered on such Delivery Date on the terms and
in the manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the Nasdaq National Market or in
the over-the-counter market, or trading in any securities of the Company on
any exchange or in the over-the-counter market, shall have been suspended or
the settlement of such trading generally shall have been materially
disrupted or minimum prices shall have been established on any such exchange
or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state authorities,
(iii) the United States shall have become engaged in hostilities, there
shall have been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by the
United States or other calamity or crisis involving the United States or
(iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such),
including without limitation, as a result of terrorist activities occurring
after the date hereof, as to make it, in the judgment of the Underwriters
impracticable or inadvisable to proceed with the public offering or delivery
of the Stock being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
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All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each
Underwriter, its directors, officers, partners, agents and employees
and each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Stock), to which that
Underwriter, director, officer, partner, employee, agent or controlling
person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of,
or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in (A) any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) any materials or information provided to
investors by, or with the approval of, the Company in connection with
the marketing of the offering of the Stock, including any roadshow or
investor presentations made to investors by the Company (whether in
person or electronically) (the "MARKETING MATERIALS"), (ii) the
omission or alleged omission to state in the Prospectus, any
Preliminary Prospectus, the Registration Statement or in any amendment
or supplement thereto, or in any Marketing Materials any material fact
required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or
relating in any manner to, the Stock or the offering contemplated
hereby, and which is included as part of or referred to in any loss,
claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company shall
not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly
from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its gross negligence, bad faith or willful
misconduct), and shall reimburse each Underwriter and each such
director, officer, partner, employee, agent or controlling person
promptly upon demand for any legal or other expenses reasonably
incurred by that Underwriter, director, officer, partner, employee,
agent or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Prospectus, any Preliminary
Prospectus, the Registration Statement, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company by or on behalf of
any Underwriter specifically for inclusion therein which information
consists solely of the information specified in Section 8(e). The
foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any director,
officer, partner, employee, agent or controlling person of that
Underwriter.
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(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, its officers and employees, each of its
directors and each person, if any, who controls the Company within the
meaning of the Securities Act, from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer or controlling person
may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereto or in the Prospectus or any supplement thereto or any
Preliminary Prospectus or (ii) the omission or alleged omission to
state in the Registration Statement or any amendment thereto or in the
Prospectus or any supplement thereto or in any Preliminary Prospectus
any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Underwriter
furnished to the Company by or on behalf of that Underwriter
specifically for inclusion therein, which information is limited to the
information set forth in Section 8(e), and shall reimburse the Company
and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced
by such failure and, PROVIDED FURTHER, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 8. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that the Underwriters shall have the
right to employ counsel to represent jointly the Underwriters and their
respective officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company under
this Section 8 if, in the reasonable judgment of the Underwriters, it
is advisable for the Underwriters and those directors, officers,
partners, employees and controlling persons to be jointly represented
by separate counsel, and in that event the
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fees and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding and does not include a statement as to, or
an admission of, fault, culpability or a failure to act by or on behalf
of an indemnified party, or (ii) be liable for any settlement of any
such action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability
by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the
offering of the Stock or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock purchased under this Agreement
(before deducting expenses) received by the Company, on the one hand,
and the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Stock purchased under
this Agreement, on the other hand, bear to the total gross proceeds
from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8 were to be
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability,
or action in respect thereof, referred to above in this Section 8 shall
be deemed to include, for purposes of this Section 8(d), any legal or
other expenses
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reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8(d), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the shares of Stock underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 8(d) are several in proportion
to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company
acknowledges that the statements set forth on in paragraphs 4, 8, 9, 16
and 17 under "UNDERWRITING" in the Prospectus are the only information
furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the
Prospectus.
9. DEFAULTING UNDERWRITERS.
If, on any Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Stock which the
defaulting Underwriter agreed but failed to purchase on such Delivery Date in
the respective proportions which the number of shares of the Firm Stock set
opposite the name of each remaining non-defaulting Underwriter in Schedule I
hereto bears to the total number of shares of the Firm Stock set opposite the
names of all the remaining non-defaulting Underwriters in Schedule I hereto;
PROVIDED, HOWEVER, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Stock on such Delivery Date if the total number
of shares of the Stock which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds 9.09% of the total number of shares
of the Stock to be purchased on such Delivery Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of shares of the Stock which it agreed to purchase on such Delivery
Date pursuant to the terms of Section 4. If the foregoing maximums are exceeded,
the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Underwriters who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, all the Stock to be purchased on such Delivery Date. If the remaining
Underwriters or other underwriters satisfactory to the Underwriters do not elect
to purchase the shares which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such Delivery Date, this Agreement (or, with respect
to the Second Delivery Date, the obligation of the Underwriters to purchase, and
of the Company to sell, the Option Stock) shall terminate without liability on
the part of any non-defaulting Underwriter or the Company, except that the
Company will continue to be liable for the payment of expenses to the extent set
forth in Sections 6 and 11. As used in this Agreement, the term "UNDERWRITER"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule I hereto who, pursuant to this
Section 9, purchases Firm Stock which a defaulting Underwriter agreed but failed
to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default. If
other underwriters are obligated or agree to purchase the Stock of a defaulting
or withdrawing Underwriter, either the Underwriters or the Company may postpone
the Delivery Date for up to seven full business days in order to effect any
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changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement.
10. TERMINATION. The obligations of the Underwriters hereunder may
be terminated by the Underwriters by notice given to and received by the Company
prior to delivery of and payment for the Firm Stock if, prior to that time, any
of the events described in Sections 7(i) or 7(j), shall have occurred or if the
Underwriters shall decline to purchase the Stock for any reason permitted under
this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the Company
shall fail to tender the Stock for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or (b) any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Stock, and upon demand the Company shall pay the full amount thereof to the
Underwriters. If this Agreement is terminated pursuant to Section 9 by reason of
the default of one or more Underwriters, the Company shall not be obligated to
reimburse any defaulting Underwriter on account of those expenses.
12. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Lehman Brothers Inc., 745
Seventh Avenue, New York, New York 10019, Attention: Syndicate
Department (Fax: (212) 526-6588), with a copy, in the case of any
notice pursuant to Section 10(d), to the Director of Litigation,
Office of the General Counsel, Lehman Brothers Inc., 745 Seventh
Avenue, New York, NY 10019 and to Jeremy W. Dickens, Esq., Weil,
Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153 (Fax:
(212) 310-8007);
(b) if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Chief Executive Officer
(Fax: (516) 683-8385) with a copy to Douglas P. Faucette, Esq.,
Muldoon Murphy & Faucette LLP, 5101 Wisconsin Avenue, N.W.,
Washington, D.C. 20016 (Fax: (202) 966-9409);
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled
to act and rely upon any request, consent, notice or agreement given or made by
the Underwriters on behalf of the Underwriters.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the directors,
officers and partners of each Underwriter and the person or persons, if any, who
control any Underwriter within the meaning of Section 15 of the Securities Act
and (B) the indemnity agreement of the Underwriters contained in
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Section 8(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 13 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 13, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Stock and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
15. DEFINITION OF "BUSINESS DAY" AND "SUBSIDIARY." For purposes of
this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close and (b)
"SUBSIDIARY" has the meaning set forth in Rule 405 of the Securities Act Rules
and Regulations.
16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between
the Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
NEW YORK COMMUNITY BANCORP, INC.
By /s/ Joseph R. Ficalora
------------------------------
NAME: Joseph R. Ficalora
TITLE: President and Chief
Executive Officer
Accepted:
LEHMAN BROTHERS INC.
SALOMON SMITH BARNEY INC.
SANDLER O'NEILL & PARTNERS, L.P.
ADVEST, INC.
JANNEY MONTGOMERY SCOTT LLC
KEEFE, BRUYETTE & WOODS, INC.
LEHMAN BROTHERS INC.
By /s/ Mark Burton
---------------------------------------
NAME: Mark Burton
TITLE: Managing Director
SALOMON SMITH BARNEY INC.
By /s/ Jack D. McSpadden
---------------------------------------
NAME: Jack D. McSpadden
TITLE: Managing Director
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SCHEDULE I
Underwriters Number of Shares
- ------------ ----------------
Lehman Brothers Inc................................... 1,683,000
Salomon Smith Barney Inc.............................. 1,683,000
Sandler O'Neill & Partners, L.P....................... 1,308,660
Advest Inc............................................ 141,780
Janney Montgomery Scott LLC........................... 141,780
Keefe, Bruyette & Woods, Inc.......................... 141,780
----------------
Total............................................ 5,100,000
================
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SCHEDULE II
CFS Investments, Inc.
Queens County Capital Management, Inc.
Richmond County Capital Corp.
RCBK Mortgage Corp.
Main Omni Realty Corp.
RCSB Corporation
Peter B. Cannell & Co., Inc.
Richmond Investment Corp.
Ironbound Investment Corp.
Columbia Preferred Capital Corp.
Queens Realty Trust, Inc.,
CFS Investments New Jersey, Inc.
Pacific Urban Renewal Corp.,
MFO Holding Corp.
Columbia Resources Corp.
Columbia Funding Corporation
Bayonne Service Corp.
Haven Capital Trust I
Haven Capital Trust II
Queens Capital Trust I
NYCB Capital Trust I
New York Community Statutory Trust I
Queens County Statutory Trust I
New York Community Statutory Trust II
Columbia Travel Services, Inc.
Richmond Enterprises Inc.
New York Community Capital Trust I
New York Community Capital Trust II
New York Community Capital Trust III
New York Community Capital Trust IV
New York Community Capital Trust V