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EXHIBIT 4(h)(iii)
Amendment No. 1
to the
Amended and Restated Declaration of Trust, dated as of November 4, 2002
of
New York Community Capital Trust V
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This Amendment No. 1 (this "Amendment No. 1") to the Amended and
Restated Declaration of Trust dated as of November 4, 2002 (the "Declaration"),
of New York Community Capital Trust V ("the Trust") is made and entered into as
of April 15, 2003.
WITNESSETH:
ARTICLE I
WHEREAS, the Company, as Sponsor, the Administrative Trustees named in
the Declaration, the Holders from time to time of undivided beneficial
interests in the assets of the Trust issued pursuant to the Declaration, and
Wilmington Trust Company, as Property Trustee and as Delaware Trustee
established the Trust pursuant to a Declaration of Trust dated as of April 18,
2002 (the "Original Declaration") and amended and restated the Declaration as
of November 4, 2002, for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust, investing the proceeds in certain Debentures of the Company and engaging
in only those activities necessary, advisable or incidental thereto;
WHEREAS, Section 11.1(c) of the Declaration provides that any
amendment that would adversely affect the powers, preferences or special rights
of the Securities, shall not be effective except with the approval of a 66 2/3%
in Liquidation Amount of the Holders of the class of Securities affected
thereby;
WHEREAS, all capitalized terms used in this Amendment No. 1 and not
specifically defined herein shall have the meaning ascribed to such terms in
the Declaration;
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Administrative Trustees agree that the
Declaration shall be amended by amending the definition of "Change of Control"
under Section 1.2 of the Declaration to read in its entirety as follows:
"Change of Control" shall be deemed to have occurred upon the
occurrence of any of the following:
(1) the acquisition (other than open market purchases on any national
securities exchange or the Nasdaq National Market on which the
Company's capital stock is traded) by any person, including any
syndicate or group deemed to be a "person" under Section 13(d)(3)
of the Exchange Act, of beneficial ownership, directly or
indirectly, through a purchase, merger or other acquisition
transaction or series of purchase, merger or other acquisition
transactions of shares of the Company's capital stock entitling
that person to exercise 50% or more of the total voting power of
all shares of the Company's capital stock entitled to vote
generally in elections of directors, other than any such
acquisition by the Company, any of the Company's subsidiaries or
any of the Company's employee benefit plans; or
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(2) the consolidation or merger of the Company with or into any other
Person, any merger of another Person into the Company, or any
conveyance, transfer, sale, lease or other disposition of all or
substantially all of the Company's properties and assets to
another Person, other than:
(a) any transaction (i) that does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of the Company's capital stock and (ii)
notwithstanding such transaction, during any period of two
consecutive years after such transaction individuals who at the
beginning of such period constituted the board of directors of the
Company (together with any new directors whose election or
appointment by such board or whose nomination for election by the
shareholders of the Company was approved by a vote of not less
than two-thirds of the directors then still in office who were
either directors at the beginning of such period or whose election
or nomination for election was previously so approved) continue to
constitute at least 50% of the board of directors of the Company
then in office; or
(b) any merger solely for the purpose of changing the Company's
jurisdiction of incorporation and resulting in a reclassification,
conversion or exchange of outstanding shares of common stock
solely into shares of common stock of the surviving entity;
PROVIDED, HOWEVER, that a Change of Control shall not be deemed to have
occurred if:
(i) the closing sale price per share of the Company's common stock
for any five Trading Days within the period of 10 consecutive
Trading Days ending immediately after the later of the Change of
Control or the public announcement of the Change of Control, in
the case of a Change of Control under clause (1) above, or the
period of 10 consecutive Trading Days ending immediately before
the Change of Control, in the case of a Change of Control under
clause (2) above, equals or exceeds 110% of the Conversion Price;
or
(ii)at least 90% of the consideration in the transaction or
transactions constituting a Change of Control consists of shares
of common stock (or, in the case of a foreign issuer, depositary
shares) traded or to be traded immediately following such Change
of Control on a national securities exchange or the Nasdaq
National Market and, as a result of such transaction or
transactions, the Warrants become
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exercisable solely into such common stock (and any rights attached
thereto); or
(iii) either the Company or the bank holding company resulting
from or surviving the Change of Control:
(A) is not well-capitalized, as defined in 12
C.F.R. 225.2(r) or any successor provision, or
(B) is not otherwise in compliance with the capital
adequacy requirements of the Federal Reserve, or
(C) has not received prior approval of the Federal
Reserve to redeem the Warrants or the Preferred
Securities; or
(iv) any depository institution of the Company or of the bank
holding company resulting from or surviving the Change of
Control is not well capitalized under the prompt corrective
action regulations of the applicable regulatory authority.
For the purposes of the foregoing, a beneficial owner of shares
of the Company's capital stock shall be determined in accordance with Rule
13d-3 promulgated by the Commission under the Exchange Act.
ARTICLE II
2.1 Effectiveness. This Amendment No. 1 shall become effective
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immediately upon its execution and delivery by the Company and the majority of
the Administrative Trustees.
2.2 Confirmation. This Amendment No. 1 and the Declaration shall
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henceforth be read together. Except as expressly set forth herein, the
Declaration shall remain unchanged and is in all respect confirmed and
preserved.
2.3 Counterparts. This Amendment No. 1 may be executed in
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
2.4 Governing Law. This Amendment No. 1 and the rights of the
parties hereunder shall be governed by, and construed in accordance with, the
laws of the State of Delaware without regard to conflict of laws principles
thereof.
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IN WITNESS WHEREOF, New York Community Bancorp, Inc., a majority
of the Administrative Trustees, the Property Trustee and the Delaware Trustee
have duly authorized and executed this Amendment No. 1 as of the day and year
first written above.
NEW YORK COMMUNITY BANCORP,
INC.
By: /s/ Anthony E. Burke
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Name: Anthony E. Burke
Title: Senior Executive Vice President
and Chief Operating Officer
ROBERT WANN, as Administrative Trustee
/s/ Robert Wann
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THOMAS R. CANGEMI, as Administrative
Trustee
/s/ Thomas R. Cagemi
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WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Property Trustee
By: /s/ Christopher J. Slaybaugh
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Name: Christopher J. Slaybaugh
Title: Financial Services Officer
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Delaware Trustee
By: /s/ Christopher J. Slaybaugh
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Name: Christopher J. Slaybaugh
Title: Financial Services Officer