AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 29, 1997
REGISTRATION NOS. 333-34675 AND 333-34675-01
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NEW YORK BANCORP CAPITAL TRUST
NEW YORK BANCORP INC. (Exact name of registrant as specified in its declaration of
(Exact name of registrant as specified in its charter) trust)
------------------------
DELAWARE DELAWARE
(State or other jurisdiction of incorporation or organization) (State or other jurisdiction of incorporation or organization)
6035
(Primary standard industrial classification code number) (Primary standard industrial classification code number)
11-2869250 APPLIED FOR
(l.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
C/O NEW YORK BANCORP INC.
241-02 NORTHERN BOULEVARD 241-02 NORTHERN BOULEVARD
DOUGLASTON, NEW YORK 11362 DOUGLASTON, NEW YORK 11362
(718) 631-8100 (718) 631-8100
(Address, including zip code, and telephone number, including (Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices) area code, of registrant's principal executive offices)
MICHAEL A. MCMANUS, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
NEW YORK BANCORP INC.
241-02 NORTHERN BOULEVARD
DOUGLASTON, NEW YORK 11362
(718) 631-8100
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
Copies to:
FRANK M. CONNER, III, ESQ.
DENNIS J. BLOCK, ESQ. ALSTON & BIRD LLP
WEIL, GOTSHAL & MANGES LLP 601 PENNSYLVANIA AVENUE, N.W.
767 FIFTH AVENUE NORTH BUILDING, SUITE 250
NEW YORK, NEW YORK 10153 WASHINGTON, D.C. 20004-2601
(212) 310-8000 (202) 508-3300
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or reinvestment plans, please check the following box. [ ]
If any of the securities being registered on the Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered in connection with dividend or interest
reinvestment plans, please check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE OR UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
________________________________________________________________________________
SUBJECT TO COMPLETION, DATED SEPTEMBER 29, 1997
PROSPECTUS
UP TO 2,000,000 CAPITAL SECURITIES
NEW YORK BANCORP CAPITAL TRUST
8.00% CONVERTIBLE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25.00 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
NEW YORK BANCORP INC.
The 8.00% Convertible Trust Preferred Securities (the 'Capital Securities')
offered hereby represent preferred undivided beneficial interests in the assets
of New York Bancorp Capital Trust, a statutory business trust created under the
laws of the State of Delaware (the 'Trust'). New York Bancorp Inc., a Delaware
corporation (the 'Company'), will be the owner of all the beneficial interests
represented by the common securities of the Trust (the 'Common Securities' and,
together with the Capital Securities, the 'Trust Securities'). The Trust exists
for the sole purpose of issuing the Trust Securities and investing the proceeds
thereof in 8.00% Junior Convertible Subordinated Debentures (the 'Junior
Subordinated Debentures') to be issued by the Company. The Junior Subordinated
Debentures will mature on October 31, 2027 (the 'Stated Maturity Date'). The
Capital Securities will have a preference over the Common Securities under
certain circumstances with respect to cash distributions and amounts payable on
liquidation, redemption or otherwise. See 'Description of Capital Securities --
Subordination of Common Securities.' The Company intends to apply to have the
Capital Securities approved for listing on the New York Stock Exchange, Inc.
('NYSE'), subject to official notice of issuance.
Each Capital Security is convertible in the manner described herein at the
option of the holder thereof, at any time prior to the earlier of (i) 5:00 p.m.
(New York City time) on the Business Day (as defined herein) immediately
preceding the date of repayment of such Capital Security, whether at maturity or
upon redemption, and (ii) 5:00 p.m. (New York City time) on the Conversion
Termination Date (as defined herein), if any, into a number of shares of the
Company's common stock, par value $.01 per share (the 'Common Stock') that
equals the quotient obtained by dividing (i) $25.00 by (ii) $
(representing 110% of the average of the daily last reported sale prices of the
Common Stock for the 10 consecutive trading days immediately preceding the date
of this Prospectus or, in the event all of the Capital Securities offered in the
Subscription Offering (as defined herein) are sold in such Subscription
Offering, for the 10 consecutive trading days immediately preceding the
Subscription Offering Expiration Date (as defined herein), in each case as
reported on the NYSE Composite Tape), subject to adjustment in certain
circumstances. See 'Description of Capital Securities -- Conversion Rights.' The
Common Stock is listed on the NYSE under the symbol 'NYB.' On September 26,
1997, the last reported sale price of the Common Stock on the NYSE Composite
Tape was $29.875 per share.
The Capital Securities are initially being offered in a subscription
offering (the 'Subscription Offering'), by means of a prospectus dated September
22, 1997 (the 'Subscription Offering Prospectus'), through nontransferable
subscription rights ('Subscription Rights') granted to holders of record of the
Common Stock on September 18, 1997 ('Eligible Subscribers'). The Subscription
Offering is being made by The Bank of New York, as sales agent (the 'Sales
Agent'). All Capital Securities offered and not sold in the Subscription
Offering, if any, are being offered hereby in a public offering (the 'Public
Offering' and, together with the Subscription Offering, the 'Offerings') by
Keefe, Bruyette & Woods, Inc., as underwriter (the 'Underwriter'). See 'The
Offerings.'
(continued on next page)
- ----------------------------------------------------------
FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY
PROSPECTIVE INVESTORS IN EVALUATING AN INVESTMENT IN THE CAPITAL SECURITIES, SEE
'RISK FACTORS' BEGINNING ON PAGE 8 OF THIS PROSPECTUS.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE SECURITIES OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS OR DEPOSITS AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
UNDERWRITING DISCOUNT AND PROCEEDS TO
OFFERING PRICE AGENT FEES(1) THE TRUST(2)(3)
Per Capital Security............ $25.00 (2) $25.00
Total........................... $50,000,000 (2) $50,000,000
(1) The Company and the Trust have agreed to indemnify the Sales Agent in the
Subscription Offering and the Underwriter in the Public Offering against
certain liabilities under the Securities Act of 1933, as amended (the
'Securities Act'). See 'The Offerings.'
(2) As the proceeds of the sale of the Capital Securities will be invested in
the Junior Subordinated Debentures, the Company has agreed to pay to the
Sales Agent and the Underwriter certain fees for their services in the
Subscription Offering and the Public Offering. For a discussion of the fees
to be paid to the Sales Agent and the Underwriter, see 'The Offerings.'
(3) Before deducting expenses of the Offerings which are payable by the Company,
estimated at $1,020,000.
------------------------
The Capital Securities offered hereby are offered subject to receipt and
acceptance by the Underwriter, to prior sale and to the Underwriter's right to
reject any order in whole or in part and to withdraw, cancel or modify the offer
without notice. It is expected that delivery of the Capital Securities will be
made at the offices of Keefe, Bruyette & Woods, Inc., Two World Trade Center,
New York, New York, on or about , 1997, against payment therefor in
immediately available funds.
------------------------
KEEFE, BRUYETTE & WOODS, INC.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1997.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT AND POST-EFFECTIVE AMENDMENT THERETO RELATING TO THESE
SECURITIES HAVE BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE
SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED IN THE PUBLIC
OFFERING DESCRIBED IN THIS PROSPECTUS PRIOR TO THE TIME THE POST-EFFECTIVE
AMENDMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO
SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
SUCH STATE.
(continued from cover)
Except as described herein, the Capital Securities to be issued in the
Public Offering will be represented by global Capital Securities in fully
registered form, deposited with a custodian for and registered in the name of a
nominee of The Depository Trust Company ('DTC'). Beneficial interests in such
Capital Securities will be shown on, and transfers thereof will be effected
through, records maintained by DTC and its participants.
All Capital Securities offered in the Subscription Offering and, if
applicable, the Public Offering will be offered at the 'Offering Price,' equal
to the liquidation amount of $25.00 per Capital Security (the 'Liquidation
Amount'). No Eligible Subscriber is required to subscribe for Capital Securities
in the Subscription Offering. The nontransferable Subscription Rights will
expire unless exercised by not later than 5:00 p.m. (New York City time) on
October 14, 1997, unless otherwise extended by the Company. See 'The Offerings.'
Holders of the Capital Securities will be entitled to receive cumulative
cash distributions, accumulating from the original date of issuance of the
Capital Securities (the 'Issue Date') and payable quarterly in arrears on
January 31, April 30, July 31 and October 31 of each year, commencing January
31, 1998, at the annual rate of 8.00% of the Liquidation Amount of $25.00 per
Capital Security ('Distributions'). So long as no Debenture Event of Default (as
defined herein) has occurred and is continuing, the Company will have the right
to defer payments of interest on the Junior Subordinated Debentures at any time
and from time to time for a period not exceeding 20 consecutive quarters with
respect to each deferral period (each, an 'Extension Period'), provided that no
Extension Period may end on a day other than an Interest Payment Date (as
defined herein) or extend beyond the Stated Maturity Date. Upon the termination
of any such Extension Period and the payment of all amounts then due, the
Company may elect to begin a new Extension Period, subject to the requirements
set forth herein. If and for so long as interest payments on the Junior
Subordinated Debentures are so deferred, Distributions on the Trust Securities
also will be deferred and the Company will not be permitted, subject to certain
exceptions described herein, to declare or pay any cash distributions with
respect to the Company's capital stock or to make any payment with respect to
debt securities of the Company that rank pari passu with or junior to the Junior
Subordinated Debentures. During an Extension Period, interest on the Junior
Subordinated Debentures will continue to accrue (and the amount of Distributions
to which holders of the Trust Securities are entitled will continue to
accumulate) at the rate of 8.00% per annum, compounded quarterly (to the extent
permitted by applicable law), and holders of Trust Securities will be required
to accrue interest income for United States federal income tax purposes prior to
receipt of cash payments attributable to such interest income. See 'Description
of Junior Convertible Subordinated Debentures -- Option to Extend Interest
Payment Date' and 'Certain Federal Income Tax Considerations -- Interest,
Original Issue Discount, Premium and Market Discount.'
The Company will, through the Guarantee, the Common Guarantee, the
Declaration, the Junior Subordinated Debentures and the Indenture (each as
defined herein), taken together, fully, irrevocably and unconditionally
guarantee all of the Trust's obligations under the Trust Securities. See
'Relationship Among the Capital Securities, the Junior Subordinated Debentures
and the Guarantee -- Full and Unconditional Guarantee.' The Guarantee and the
Common Guarantee will guarantee payments of distributions and payments on
liquidation or redemption of the Trust Securities, but in each case only to the
extent that the Trust holds funds on hand legally available therefor and has
failed to make such payments, as described herein. See 'Description of the
Guarantee.' If the Company fails to make a required payment on the Junior
Subordinated Debentures, the Trust will not have sufficient funds to make the
related payments, including distributions, on the Trust Securities. The
Guarantee and the Common Guarantee will not cover any such payment when the
Trust does not have sufficient funds on hand legally available therefor. In such
event, a holder of Capital Securities may institute a legal proceeding directly
against the Company to enforce payment to such holder of accrued but unpaid
interest on the Junior Subordinated Debentures with a principal amount equal to
the Liquidation Amount of the Capital Securities held by such holder. See
'Description of Junior Convertible Subordinated Debentures -- Enforcement of
Certain Rights by Holders of Capital Securities.' The obligations of the Company
under the Junior Subordinated Debentures, the Guarantee and the
(ii)
Common Guarantee will be unsecured and subordinate and rank junior in right of
payment to all Senior Indebtedness (as defined herein) of the Company to the
extent and in the manner set forth in the Indenture and the Guarantees. See
'Description of Junior Convertible Subordinated Debentures -- Subordination.'
The Trust Securities will be subject to mandatory redemption in a Like
Amount (as defined herein), (i) in whole but not in part, on the Stated Maturity
Date upon repayment of the Junior Subordinated Debentures at a redemption price
equal to the principal amount of, plus accrued and unpaid interest on, the
Junior Subordinated Debentures (the 'Maturity Redemption Price'), (ii) in whole
but not in part, at any time, contemporaneously with the optional prepayment of
all of the Junior Subordinated Debentures, upon the occurrence and continuation
of a Special Event (as defined herein), at a redemption price equal to the
Special Event Prepayment Price (as defined herein) (the 'Special Event
Redemption Price'), and (iii) in whole or in part, on or after October 31, 2001
(the 'Initial Optional Prepayment Date'), contemporaneously with the optional
prepayment by the Company of all or a part of the Junior Subordinated
Debentures, at a redemption price equal to the Optional Prepayment Price (as
defined herein) (the 'Optional Redemption Price'). Any of the Maturity
Redemption Price, the Special Event Redemption Price and the Optional Redemption
Price may be referred to herein as the 'Redemption Price.' See 'Description of
Capital Securities -- Redemption.'
The Junior Subordinated Debentures will be prepayable prior to the Stated
Maturity Date at the option of the Company (i) on or after the Initial Optional
Prepayment Date, in whole or in part, at a prepayment price (the 'Optional
Prepayment Price') equal to 100% of the principal amount thereof plus accrued
and unpaid interest thereon to the date of prepayment, or (ii) at any time, in
whole but not in part, upon the occurrence and continuation of a Special Event,
at a prepayment price (the 'Special Event Prepayment Price') equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of prepayment. Either of the Optional Prepayment Price or the Special Event
Prepayment Price may be referred to herein as the 'Prepayment Price.' See
'Description of Junior Convertible Subordinated Debentures -- Optional
Prepayment' and ' -- Special Event Prepayment.'
In addition to the rights of the Company to redeem the Capital Securities
under the circumstances described in this Prospectus, the Company also will have
the right to terminate the convertibility of the Capital Securities into Common
Stock as described in this paragraph. If for at least 20 trading days within any
period of 30 consecutive trading days ending on or after October 31, 2001,
including the last trading day of such period, the Closing Price (as defined
herein) of the Common Stock exceeds 110% of the then applicable Conversion Price
of the Capital Securities, the Company may, at its option, terminate the right
to convert the Junior Subordinated Debentures into Common Stock, in which case
the right to convert the Capital Securities into Common Stock will likewise
terminate. To exercise this conversion termination option, the Company must
cause the Trust to issue a press release announcing the date upon which
conversion rights will expire (the 'Conversion Termination Date'), prior to the
opening of business on the second trading day after a period in which the
condition in the preceding sentence has been met, but in no event may such press
release be issued prior to October 31, 2001. The Conversion Termination Date
shall be a Business Day not less than 30 and not more than 60 days following the
date of the press release. See 'Description of Capital Securities -- Conversion
Rights.'
The Company, as the holder of the outstanding Common Securities, will have
the right at any time to dissolve the Trust and after satisfaction of
liabilities to creditors of the Trust as required by applicable law, cause a
Like Amount of the Junior Subordinated Debentures to be distributed to the
holders of the Trust Securities in liquidation of the Trust, subject to the
Company having received an opinion of counsel to the effect that such
distribution will not be a taxable event to holders of the Capital Securities.
Unless the Junior Subordinated Debentures are distributed to the holders of the
Trust Securities, in the event of a liquidation of the Trust as described
herein, after satisfaction of liabilities to creditors of the Trust as required
by applicable law, the holders of the Capital Securities generally will be
entitled to receive a Liquidation Amount of $25.00 per Capital Security plus
accumulated and unpaid Distributions thereon to the date of payment. See
'Description of Capital Securities -- Liquidation of the Trust and Distribution
of Junior Subordinated Debentures' and 'Certain Federal Income Tax
(iii)
Considerations -- Receipt of Junior Subordinated Debentures Upon Liquidation of
the Trust' and ' -- Sale or Redemption of Capital Securities.'
As used herein, (i) the 'Indenture' means the Indenture, to be dated on or
prior to the Issue Date, as amended and supplemented from time to time, between
the Company and The Bank of New York, as trustee (the 'Debenture Trustee'),
relating to the Junior Subordinated Debentures, (ii) the 'Declaration' means the
Amended and Restated Declaration of Trust relating to the Trust, to be dated on
or prior to the Issue Date, among the Company, as Sponsor, The Bank of New York,
as Property Trustee (the 'Property Trustee'), The Bank of New York (Delaware),
as Delaware Trustee (the 'Delaware Trustee' and, collectively with the Property
Trustee, the 'Issuer Trustees'), the Administrators named therein (the
'Administrators') and the holders from time to time of the Trust Securities,
(iii) the 'Guarantee' means the Guarantee Agreement relating to the Capital
Securities, to be dated on or prior to the Issue Date, between the Company and
The Bank of New York, as trustee (the 'Guarantee Trustee') and (iv) the 'Common
Guarantee' means the Guarantee Agreement relating to the Common Securities by
the Company, to be dated on or prior to the Issue Date.
------------------------
IN CONNECTION WITH THE PUBLIC OFFERING, THE UNDERWRITER MAY OVER-ALLOT OR
EFFECT TRANSACTIONS THAT STABILIZE OR MAINTAIN THE MARKET PRICE OF THE CAPITAL
SECURITIES AND OF THE COMPANY'S COMMON STOCK AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE
NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
(iv)
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
'Commission') a Registration Statement on Form S-3 under the Securities Act of
1933, as amended (the 'Securities Act'), with respect to the securities offered
by this Prospectus. This Prospectus does not contain all the information set
forth in the Registration Statement and exhibits thereto. In addition, certain
documents filed by the Company with the Commission have been incorporated in
this Prospectus by reference. See 'Incorporation of Certain Documents by
Reference.' For further information with respect to the Company and the
securities offered hereby, reference is made to the Registration Statement,
including the exhibits thereto, and the documents incorporated herein by
reference. Statements contained in this Prospectus as to the contents of any
instrument, agreement or other document do not purport to be complete and in
each instance reference is made to the copy of such instrument, agreement or
other document, copies of which are available from the Company as described
below, each such statement being qualified in all respects by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the 'Exchange Act'), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Reports, proxy statements and other information concerning the
Company can be inspected and copied at prescribed rates at the Commission's
Public Reference Room, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, as well as the following Regional Offices of the Commission: 7 World
Trade Center, 13th Floor, New York, New York 10048; and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material may be obtained by
mail from the Commission's Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. If available, such reports and
other information may also be accessed through the Commission's electronic data
gathering, analysis and retrieval system ('EDGAR') via electronic means,
including the Commission's web site on the Internet (http://www.sec.gov). Such
reports, proxy statements and other information may also be inspected at the
offices of the NYSE, 20 Broad Street, New York, New York 10005.
No separate financial statements of the Trust have been included herein.
Neither the Company nor the Trust consider that such financial statements would
be material to holders of the Capital Securities because (i) all of the voting
securities of the Trust will be owned, directly or indirectly, by the Company, a
reporting company under the Exchange Act, (ii) the Trust has no independent
operations but exists for the sole purpose of issuing securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in Junior Subordinated Debentures issued by the Company, and
(iii) the Company's obligations described herein to provide certain indemnities
in respect of, and be responsible for, certain costs, expenses, debts and
liabilities of the Trust under the Indenture and any supplemental indenture
thereto and pursuant to the Declaration of the Trust, the Guarantee issued with
respect to the Capital Securities issued by the Trust, the Junior Subordinated
Debentures purchased by the Trust and the related Indenture, taken together,
constitute a full and unconditional guarantee of payments due on the Capital
Securities. See 'Description of Junior Convertible Subordinated Debentures' and
'Description of the Guarantee.' In addition, the Company does not expect that
the Trust will file reports, proxy statements and other information under the
Exchange Act with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company pursuant
to Sections 13 and 14 of the Exchange Act are incorporated by reference in this
Prospectus:
(1) Annual Report on Form 10-K for the fiscal year ended September 30,
1996;
(2) Quarterly Reports on Form 10-Q for the quarters ended December 31,
1996, March 31, 1997 and June 30, 1997, respectively; and
(3) Current Report on Form 8-K, dated January 2, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the securities offered hereby shall be deemed
to be incorporated by reference in this Prospectus, and to be
a part hereof from the date of filing of such documents. Any statement contained
in this Prospectus or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus or any supplement thereto to the extent that a statement
contained herein or therein (or in any subsequently filed document that also is
or is deemed to be incorporated by reference herein or therein) modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
As used herein, the terms 'Prospectus' and 'herein' mean this Prospectus,
including the documents incorporated or deemed to be incorporated herein by
reference, as the same may be amended, supplemented or otherwise modified from
time to time. Statements contained in this Prospectus as to the contents of any
contract or other document referred to herein do not purport to be complete, and
where reference is made to the particular provisions of such contract or other
document, such provisions are qualified in all respects by reference to all of
the provisions of such contract or other document. The Company will provide
without charge to each person to whom a copy of this Prospectus has been
delivered, upon the written or oral request of such person, a copy of any or all
of the documents referred to above which have been or may be incorporated by
reference herein (other than exhibits to such documents unless such exhibits are
specifically incorporated by reference in such documents), as well as a copy of
the Declaration, the Indenture, the Junior Subordinated Debentures, the
Guarantee and the other documents described herein. Requests for such copies
should be directed to New York Bancorp Inc., 241-02 Northern Boulevard,
Douglaston, New York 11362, Attention: Linda Bishop, Telephone (718) 631-8100.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain of the statements contained in this Prospectus and in documents
incorporated herein by reference that are not historical facts, including,
without limitation, statements of future expectations, projections of results of
operations and financial condition, statements of future economic performance
and other forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995, are subject to known and unknown
risks, uncertainties and other factors which may cause the actual results,
performance or achievements of the Company to differ materially from those
contemplated in such forward-looking statements. In addition to the specific
matters referred to herein, including, without limitation, those noted under the
caption 'Risk Factors,' important factors which may cause actual results to
differ from those contemplated in such forward-looking statements include: (i)
the results of the Company's efforts to implement its business strategy; (ii)
the effect of economic conditions and the performance of borrowers; (iii)
actions of the Company's competitors and the Company's ability to respond to
such actions; (iv) the cost of the Company's capital, which may depend in part
on the Company's portfolio quality, ratings, prospects and outlook; (v) changes
in governmental regulation, tax rates and similar matters; and (vi) other risks
detailed in the Company's other filings with the Commission.
2
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in, or incorporated by reference into, this
Prospectus.
NEW YORK BANCORP INC.
The Company is a Delaware chartered savings and loan holding company,
headquartered in Douglaston, New York. Through its wholly-owned subsidiary, Home
Federal Savings Bank, a federally chartered stock savings bank (the 'Bank'), the
Company operates 31 banking offices (of which five are supermarket branches and
26 are stand-alone branches) and seven loan production offices. At June 30,
1997, the Company had total consolidated assets of approximately $3.3 billion,
deposits of approximately $1.7 billion, and stockholders' equity of
approximately $166.9 million.
The directors and executive officers of the Company own in the aggregate
approximately 26% of the outstanding Common Stock. Management's strategy is
focused on enhancing stockholder value by expanding the customer base of the
Bank and increasing the market penetration of the Bank within its existing
markets. Since 1991, expansion of the franchise has been achieved through the
acquisition of three institutions or the assets thereof, which combined, added
approximately $1.5 billion in assets and 18 branch offices. As acquisition
premiums have reached historic highs in recent years, the Company has, in lieu
of building the franchise through acquisitions, instead focused on expanding the
branch network through the opening of supermarket branches. Currently, the Bank
maintains five supermarket branches and has plans to establish six additional
supermarket branches during fiscal 1998. By expanding its branch network through
the establishment of supermarket branches, the Company will be able to penetrate
further its market area on an accelerated basis and with much lower levels of
capital investment and ongoing operating expense relative to opening and
operating stand-alone branch offices.
As a result of the focus of management on enhancing stockholder value, the
Company has enjoyed superior performance measures. For the year ended September
30, 1996, the Company's return on average assets and return on average
stockholders' equity (after recording a Savings Association Insurance Fund
('SAIF') recapitalization charge of approximately $9.4 million) were 1.16% and
20.26%, respectively. For the nine months ended June 30, 1997, the Company's
return on average assets and stockholder's equity were 1.61% and 31.08%,
respectively. Contributing to the superior performance of the institution is the
Company's focus on net interest income and fee income and aggressive control of
expenses, as evidenced by its efficiency ratios of 42.96% and 38.15% for the
year ended September 30, 1996 and the nine months ended June 30, 1997,
respectively.
NEW YORK BANCORP CAPITAL TRUST
The Trust is a statutory business trust created under Delaware law pursuant
to (i) a declaration of trust, executed by the Company, as Sponsor, The Bank of
New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee and Stan I. Cohen, as Initial Trustee, and (ii) the filing of a
certificate of trust with the Delaware Secretary of State on August 28, 1997.
The Trust's affairs will be conducted by the Property Trustee and the Delaware
Trustee, and by the Administrators who are employees or officers of or
affiliated with the Company. The Trust exists for the exclusive purposes of (i)
issuing and selling the Trust Securities, (ii) using the proceeds from the sale
of the Trust Securities to acquire the Junior Subordinated Debentures, and (iii)
engaging in only those other activities necessary, advisable or incidental
thereto (such as registering the transfer of the Capital Securities).
Accordingly, the Junior Subordinated Debentures will be the sole assets of the
Trust, and payments under the Junior Subordinated Debentures will be the sole
revenue of the Trust. All of the Common Securities will be owned by the Company.
3
THE CAPITAL SECURITIES
Securities Offered........................ Up to 2,000,000 8.00% Capital Securities (Liquidation Amount $25.00
per Capital Security), which represent preferred undivided
beneficial interests in the assets of the Trust. The Junior
Subordinated Debentures held by the Trust will mature on October
31, 2027. All Capital Securities not sold in the Subscription
Offering, if any, are being offered hereby to the public in the
Public Offering by the Underwriter.
Offering Price............................ $25.00 per Capital Security.
Distribution Dates........................ January 31, April 30, July 31 and October 31 of each year, commencing
January 31, 1998.
Extension Periods......................... So long as no Debenture Event of Default has occurred and is
continuing, Distributions on Capital Securities may be deferred for
the duration of any Extension Period elected by the Company with
respect to the payment of interest on the Junior Subordinated
Debentures. No Extension Period will exceed 20 consecutive quarters
or extend beyond the Stated Maturity Date. See 'Description of
Junior Convertible Subordinated Debentures -- Option to Extend
Interest Payment Date' and 'Certain Federal Income Tax
Considerations -- Interest, Original Issue Discount, Premium and
Market Discount.'
Ranking................................... The Capital Securities will rank pari passu, and payments thereon
will be made pro rata, with the Common Securities except as
described under 'Description of Capital Securities -- Subordination
of Common Securities.' The Junior Subordinated Debentures will rank
pari passu with all other junior subordinated debentures issued by
the Company ('Other Debentures'), which will be issued and sold (if
at all) to other trusts established by the Company (if any), in
each case similar to the Trust ('Other Trusts'), and will be
unsecured and subordinate and rank junior in right of payment to
all Senior Indebtedness of the Company to the extent and in the
manner set forth in the Indenture. See 'Description of Junior
Convertible Subordinated Debentures.' There are currently no other
securities that would constitute Other Debentures. The Guarantee
will constitute an unsecured obligation of the Company and will be
subordinate and rank junior in right of payment to all Senior
Indebtedness of the Company to the extent and in the manner set
forth in the Guarantee Agreement. In addition, because the Company
is a holding company, the Company's obligations under the Junior
Subordinated Debentures and the Guarantee effectively will be
subordinated to all existing and future liabilities, including
indebtedness, of the Company's subsidiaries, including the Bank's
deposit liabilities. See 'Description of the Guarantee' and 'Risk
Factors -- Ranking of Subordinate Obligations Under the Guarantee
and Junior Subordinated Debentures.'
4
Conversion into Common Stock.............. Each Capital Security is convertible at the option of the holder
thereof, at any time prior to the earlier of (i) 5:00 p.m. (New
York City time) on the Business Day immediately preceding the date
of repayment of such Capital Security, whether at maturity or upon
redemption, and (ii) 5:00 p.m. (New York City time) on the
Conversion Termination Date (if any) into a number of shares of
Common Stock that equals the quotient obtained by dividing (i)
$25.00 by (ii) $ (representing 110% of the average of the
daily last reported sale prices of the Common Stock for the 10
consecutive trading days immediately preceding the date of this
Prospectus or, in the event all of the Capital Securities offered
in the Subscription Offering are sold in such Subscription
Offering, for the 10 consecutive trading days immediately preceding
the Subscription Offering Expiration Date, in each case as reported
on the NYSE Composite Tape), subject to adjustment in certain
circumstances (such denominator being referred to herein as the
'Conversion Price'). In connection with any conversion of a Capital
Security, the Conversion Agent (as defined herein) will exchange
such Capital Security for the appropriate principal amount of
Junior Subordinated Debentures held by the Trust and immediately
convert such Junior Subordinated Debentures into shares of Common
Stock. No fractional shares of Common Stock will be issued as a
result of conversion, but in lieu thereof such fractional interest
will be paid by the Company in cash. See 'Description of Capital
Securities -- Conversion Rights.' Holders of Capital Securities at
5:00 p.m. (New York City time) on a Distribution Record Date (as
defined herein) will be entitled to receive the Distribution
payable upon such Capital Securities on the corresponding
Distribution Date notwithstanding the conversion of such Capital
Securities following such Distribution Record Date but on or prior
to such Distribution Date.
Termination of Conversion Rights.......... In addition to the rights of the Company to redeem the Capital
Securities under the circumstances described in this Prospectus,
the Company also will have the right to terminate the
convertibility of the Capital Securities into Common Stock as
described in this paragraph. If for at least 20 trading days within
any period of 30 consecutive trading days ending on or after
October 31, 2001, including the last trading day of such period,
the Closing Price of the Common Stock exceeds 110% of the then
applicable Conversion Price of the Capital Securities, the Company
may, at its option, terminate the right to convert the Junior
Subordinated Debentures into Common Stock, in which case the right
to convert the Capital Securities into Common Stock will likewise
terminate. To exercise this conversion termination option, the
Company must cause the Trust to issue a press release announcing
the Conversion Termination Date, prior to the opening of business
on the second trading day after a period in which the condition in
the preceding sentence has been
5
met, but in no event may such press release be issued prior to
October 31, 2001. Notice of termination of conversion rights will
be given by first-class mail to the holders of the Capital
Securities not more than four Business Days after the Trust issues
the press release. The Conversion Termination Date shall be a
Business Day not less than 30 and not more than 60 days following
the date of the press release described above. See 'Description of
Capital Securities -- Conversion Rights.'
Redemption................................ The Trust Securities will be subject to mandatory redemption in a
Like Amount, (i) in whole but not in part, on the Stated Maturity
Date upon repayment of the Junior Subordinated Debentures, (ii) in
whole but not in part, at any time, contemporaneously with the
optional prepayment of all of the Junior Subordinated Debentures by
the Company upon the occurrence and continuation of a Special Event
and (iii) in whole or in part, on or after the Initial Optional
Prepayment Date, contemporaneously with the optional prepayment by
the Company of all or a part of the Junior Subordinated Debentures,
in each case at the applicable Redemption Price. See 'Description
of Capital Securities -- Redemption.'
ERISA Considerations...................... Prospective purchasers should consider the restrictions on purchase
set forth under 'ERISA Considerations.'
Absence of Market for the Capital
Securities.............................. The Capital Securities will be a new issue of securities for which
there currently is no market. Although the Company intends to apply
to have the Capital Securities approved for listing on the NYSE,
there can be no assurance that such application will be approved,
that an active trading market for the Capital Securities will
develop or, if one does develop, that it will be maintained.
Accordingly, there can be no assurance as to the development or
liquidity of any market for the Capital Securities.
THE SUBSCRIPTION OFFERING
Subscription Rights....................... The Subscription Rights entitle each Eligible Subscriber to purchase
up to the same percentage of the Capital Securities offered in the
Subscription Offering (rounded down to the nearest whole Capital
Security) as the percentage of the outstanding shares of Common
Stock owned of record by the Eligible Subscriber as of the
Subscription Offering Record Date (as defined herein) (such
entitlement being referred to as an Eligible Subscriber's 'Pro Rata
Subscription Right'). Each Eligible Subscriber also is being given
the opportunity to purchase, in the event the Subscription Offering
is not fully subscribed pursuant to the Pro Rata Subscription
Rights, Capital Securities in excess of those allotted to him
pursuant to his Pro Rata Subscription Rights (the 'Excess
Subscription Rights').
6
Expiration of Subscription Offering....... The Subscription Offering will expire at 5:00 p.m. (New York City
time) on October 14, 1997, unless extended in the sole discretion
of the Company (as such date may be so extended, the 'Subscription
Offering Expiration Date').
Management Subscriptions.................. Certain of the directors and executive officers of the Company owning
in the aggregate approximately 24% of the Common Stock have
informed the Company that they presently intend to exercise their
Pro Rata Subscription Rights and also may exercise Excess
Subscription Rights.
USE OF PROCEEDS
All of the proceeds to the Trust from the sale of the Trust Securities will
be invested by the Trust in the Junior Subordinated Debentures. The net proceeds
from the sale of the Junior Subordinated Debentures will be available to the
Company for general corporate purposes, including, without limitation, the
purchase, from time to time, in the open market or in privately-negotiated
transactions, of outstanding shares of the Common Stock and the making of
advances and capital contributions to the Bank, as well as in connection with
one or more possible future acquisitions by the Company. Initially, the net
proceeds may be used to make short-term investments. Under current policy, the
Office of Thrift Supervision (the 'OTS') does not impose any capital adequacy
requirements on the Company, but rather imposes such capital adequacy
requirements on the Bank. To the extent the Company contributes a portion of the
net proceeds received from the sale of the Capital Securities to the Bank, such
proceeds would qualify as Tier 1 capital at the Bank level under the current
capital adequacy guidelines of the OTS. See 'Use of Proceeds.'
RISK FACTORS
Prospective investors should carefully consider the matters set forth under
'Risk Factors.'
7
RISK FACTORS
Prospective purchasers of Capital Securities should carefully review the
information contained elsewhere in this Prospectus and should particularly
consider the following matters.
RANKING OF SUBORDINATE OBLIGATIONS UNDER THE GUARANTEE AND JUNIOR SUBORDINATED
DEBENTURES
The obligations of the Company under the Guarantee and under the Junior
Subordinated Debentures will be unsecured and subordinate and rank junior in
right of payment to all present and future Senior Indebtedness of the Company to
the extent and in the manner set forth in the Guarantee and the Indenture,
respectively. No payment may be made of the principal of, or premium, if any, or
interest on the Junior Subordinated Debentures, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Junior Subordinated
Debentures, or under the Guarantee, at any time when (i) there shall have
occurred and be continuing a default in any payment in respect of any Senior
Indebtedness, or there has been an acceleration of the maturity thereof because
of a default or (ii) in the event of the acceleration of the maturity of the
Junior Subordinated Debentures, until payment has been made on all Allocable
Amounts (as defined herein) of Senior Indebtedness. At June 30, 1997, the
Company did not have any outstanding Senior Indebtedness. None of the Guarantee,
the Indenture, the Common Guarantee or the Declaration places any limitation on
the amount of secured or unsecured debt, including Senior Indebtedness, that may
be incurred by the Company in the future. The Company expects from time to time
to incur additional indebtedness constituting Senior Indebtedness. See
'Description of Junior Subordinated Debentures -- Subordination' and
'Description of the Guarantee -- Status.'
The ability of the Trust to pay amounts due on the Capital Securities is
wholly dependent upon the Company making payments on the Junior Convertible
Subordinated Debentures as and when required.
HOLDING COMPANY STRUCTURE
Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise (and thus the ability of
holders of the Capital Securities to benefit indirectly from such distribution)
is subject to the prior claims of creditors of that subsidiary (including
depositors in the case of the Bank), except to the extent that the Company may
itself be recognized as a creditor of that subsidiary. At June 30, 1997, the
subsidiaries of the Company had total liabilities (excluding liabilities owed to
the Company) of approximately $3.1 billion, including deposits, in the case of
the Bank. Accordingly, the Capital Securities will be effectively subordinated
to all existing and future liabilities of the Company's subsidiaries, and
holders of Capital Securities should look only to the assets of the Company for
payments on the Capital Securities. None of the Guarantee, the Indenture, the
Common Guarantee or the Declaration places any limitation on the amount of
secured or unsecured debt that may be incurred by the Company's subsidiaries in
the future. See 'Description of Junior Convertible Subordinated
Debentures -- General' and 'Description of the Guarantee -- General.'
In addition, as the Company is a non-operating holding company, almost all
of the operating assets of the Company are owned by the Company's subsidiaries.
The Company relies primarily on dividends from such subsidiaries to meet its
obligations for payment of principal and interest on its outstanding debt
obligations, if any, and corporate expenses. The Bank is subject to certain
restrictions imposed by federal law on any extensions of credit to, and certain
other transactions with, the Company and certain other affiliates, and on
investments in stock or other securities thereof. Such restrictions prevent the
Company and such other affiliates from borrowing from the Bank unless the loans
are secured by various types of collateral. Further, such secured loans, other
transactions and investments by the Bank are generally limited in amount as to
the Company and as to each of such other affiliates to 10% of the Bank's capital
and surplus and as to the Company and all of such other affiliates to an
aggregate of 20% of the Bank's capital and surplus. In addition, payment of
dividends to the Company by the Bank is subject to ongoing review by banking
regulators and is subject to various statutory limitations and in certain
circumstances requires prior approval by banking regulatory authorities. In
addition, in 1988 the Bank issued Series A and Series B subordinated capital
notes, and the agreements governing such notes
8
restrict the amounts which the Bank can pay to the Company by way of cash
dividends. Under current OTS regulations and restrictions imposed by the Bank's
subordinated indebtedness referred to above, on July 1, 1997, the Bank could
have declared dividends to the Company of approximately $11.5 million, of which
approximately $8.0 million has been subsequently declared and paid to the
Company. Federal and state regulatory agencies also have the authority to limit
further the Bank's payment of dividends based on other factors, such as the
maintenance of adequate capital for the Bank, which could reduce the amount of
dividends otherwise payable.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSIDERATIONS
So long as no Debenture Event of Default shall have occurred and be
continuing, the Company will have the right under the Indenture to defer
payments of interest on the Junior Subordinated Debentures at any time or from
time to time for a period not exceeding 20 consecutive quarters with respect to
each Extension Period, provided that no Extension Period may extend beyond the
Stated Maturity Date. Upon any such deferral, quarterly Distributions on the
Capital Securities by the Trust will be deferred (and the amount of
Distributions to which holders of the Capital Securities are entitled will
accumulate additional Distributions thereon at the rate of 8.00% per annum,
compounded quarterly (to the extent permitted by applicable law)) from the
relevant payment date for such Distributions during any such Extension Period.
The Company may extend any existing Extension Period, provided that such
extension does not cause such Extension Period to exceed 20 consecutive quarters
or to extend beyond the Stated Maturity Date. Upon the expiration of any
Extension Period and the payment of all interest then accrued and unpaid on the
Junior Subordinated Debentures (together with interest thereon at the annual
rate of 8.00%, compounded quarterly, to the extent permitted by applicable law),
the Company may elect to begin a new Extension Period, subject to the above
requirements. There is no limitation on the number of times that the Company may
elect to begin an Extension Period. See 'Description of Capital
Securities -- Distributions' and 'Description of Junior Convertible Subordinated
Debentures -- Option to Extend Interest Payment Period.'
The Company believes that, as a result of its inability to pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, its Common Stock during an Extension Period
and the additional restrictions imposed upon it to the extent described under
'Description of Junior Convertible Subordinated Debentures -- Option to Extend
Interest Payment Date,' the likelihood of its exercising its right to defer
payments of interest is remote. However, should the Company exercise its rights
to defer payments of interest by extending the interest payment period or should
the Junior Subordinated Debentures be deemed to have been issued with original
issue discount ('OID'), each holder of Capital Securities will be required to
accrue income (as OID) for United States federal income tax purposes in respect
of the deferred interest allocable to its Capital Securities. As a result,
holders of Capital Securities will recognize income for United States federal
income tax purposes in advance of the receipt of cash and will not receive the
cash from the Trust related to such income if such holder disposes of its
Capital Securities prior to the record date for the date on which Distributions
of such amounts are made. The Company has no current intention of exercising its
right to defer payments of interest by extending the interest payment period on
the Junior Subordinated Debentures. However, should the Company determine to
exercise such right in the future, the market price of the Capital Securities is
likely to be affected. A holder that disposes of its Capital Securities during
an Extension Period, therefore, might not receive the same return on its
investment as a holder that continues to hold its Capital Securities. In
addition, as a result of the existence of the Company's rights to defer interest
payments, the market price of the Capital Securities (which represents a
preferred undivided beneficial interest in the Junior Subordinated Debentures)
may be more volatile than other securities on which OID accrues that do not have
such rights. See 'Certain Federal Income Tax Considerations -- Interest,
Original Issue Discount, Premium and Market Discount' and ' -- Sales or
Redemption of Capital Securities.'
9
REDEMPTION OR DISTRIBUTION
Upon the occurrence and continuation of a Special Event (including a Tax
Event, a Regulatory Capital Event or an Investment Company Event, in each case
as defined under 'Description of Junior Convertible Subordinated
Debentures -- Special Event Prepayment'), the Company will have the right to
prepay the Junior Subordinated Debentures, in whole, but not in part, at the
Special Event Prepayment Price within 90 days following the occurrence of such
Special Event and therefore cause a mandatory redemption of the Capital
Securities at the Special Event Redemption Price. On or after the Initial
Optional Prepayment Date, the Company may prepay the Junior Subordinated
Debentures, in whole or in part, for any reason and thereby cause an optional
redemption of the Capital Securities, in whole or in part, at the Optional
Redemption Price. See 'Description of Capital Securities -- Redemption' and
' -- Liquidation of the Trust and Distribution of Junior Subordinated
Debentures.'
The Company will have the right at any time to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust as required by
applicable law, cause the Junior Subordinated Debentures to be distributed to
the holders of the Trust Securities in liquidation of the Trust. Such right is
subject to the Company having received an opinion of counsel to the effect that
such distribution will not be a taxable event to holders of Capital Securities.
Under current United States federal income tax law, a distribution of Junior
Subordinated Debentures upon the dissolution of the Trust would not be a taxable
event to holders of the Capital Securities. If, however, the Trust is
characterized for United States federal income tax purposes as an association
taxable as a corporation at the time of dissolution of the Trust, the
distribution of the Junior Subordinated Debentures may constitute a taxable
event to holders of Capital Securities. Moreover, upon the occurrence of a
Special Event, a dissolution of the Trust in which holders of the Capital
Securities receive cash would be a taxable event to such holders. See 'Certain
Federal Income Tax Considerations -- Receipt of Junior Subordinated Debentures
Upon Liquidation of the Trust.'
The Company believes that under current law it is entitled to deduct the
interest accruing on the Junior Subordinated Debentures. Under the Taxpayer
Relief Act of 1997, enacted on August 5, 1997, issuers of certain convertible
debt instruments are not entitled to deduct interest thereon. For example,
interest is not deductible if the debt instrument is convertible into equity of
the issuer (or a related party) at the option of the holder and there is a
substantial certainty that the holder will exercise the conversion option.
Similarly, interest is not deductible if the debt instrument is part of an
arrangement which is reasonably expected to result in a conversion at the option
of the issuer (or a related party). The Company believes that this legislation
should not apply to the Junior Subordinated Debentures. The Internal Revenue
Service (the 'Service'), however, has not yet issued any guidance regarding its
interpretation of the new legislation. There can be no assurance that the
Service will not take the position that interest on the Junior Subordinated
Debentures is not deductible. Accordingly, there can be no assurance that an
audit or future interpretation by the Service of the new legislation will not
result in a Tax Event and an early redemption of the Capital Securities before,
or after, October 31, 2001 at the Special Event Redemption Price.
In addition, in recent years, there have been several proposals to adopt
legislation which, if enacted and made applicable to the Junior Subordinated
Debentures, would preclude the Company from deducting interest thereon. The most
recent proposal was made by the Clinton Administration on March 19, 1997. Such
proposals have not been adopted by Congress, but there can be no assurance that
similar proposals will not be adopted in the future and made applicable to the
Junior Subordinated Debentures. Accordingly, there can be no assurance that any
such legislation will not result in a Tax Event which would permit the Company
to cause a redemption of the Capital Securities before, or after, October 31,
2001 at the Special Event Redemption Price.
Under current law, the Bank is a federal savings association, and the
Company is a savings and loan holding company that is not subject to regulation
as a bank holding company under the Bank Holding Company Act of 1956, as
amended. However, legislation currently pending in Congress, known as the
Financial Services Competition Act of 1997, provides for the termination of
federal savings association charters and their conversion into national bank
charters. This legislation also provides for the registration of bank holding
companies resulting from conversions of savings association to national banks.
In the event that this legislation is adopted, the Company could be required to
register, and
10
become subject to regulation, as a bank holding company. Bank holding companies,
unlike savings and loan holding companies such as the Company, are subject to
consolidated regulatory capital adequacy requirements. Currently, the Company is
not subject to any consolidated regulatory capital adequacy requirements.
However, as a bank holding company, the Company would be subject to consolidated
capital adequacy requirements and the amount of the proceeds received from the
Offerings would only be includible in calculating the Company's consolidated
capital adequacy requirements to an amount not exceeding 25% of the Company's
Tier 1 capital. There can be no assurance that the adoption of this or any other
similar legislation in the future will not result in a Regulatory Capital Event
(as defined herein) which would permit the Company to cause a redemption of the
Capital Securities at any time before, or after, October 31, 2001 at the Special
Event Redemption Price.
See 'Description of Capital Securities -- Redemption,' 'Description of
Junior Convertible Subordinated Debentures -- Special Event Prepayment' and
'Certain Federal Income Tax Considerations -- Sale or Redemption of Capital
Securities.'
TERMINATION OF CONVERSION RIGHTS
On and after October 31, 2001, the Company may, subject to certain
conditions including advance public notice, at its option, cause the conversion
rights of holders of Junior Subordinated Debentures to terminate, provided that
the Closing Price of the Common Stock exceeds 110% of the then applicable
Conversion Price of the Capital Securities for a specified period, in which case
the right to convert the Capital Securities into Common Stock will likewise
terminate. See 'Description of Capital Securities -- Conversion
Rights -- Termination of Conversion Rights.'
POSSIBLE ADVERSE EFFECT ON MARKET PRICES
There can be no assurance as to the market prices for the Capital
Securities or, if a termination of the Trust were to occur, for the Junior
Subordinated Debentures distributed to the holders of Capital Securities.
Accordingly, the Capital Securities or the Junior Subordinated Debentures may
trade at a discount from the price that the investor paid to purchase the
Capital Securities offered hereby. Because holders of Capital Securities may
receive Junior Subordinated Debentures in liquidation of the Trust and because
Distributions are otherwise limited to payments on the Junior Subordinated
Debentures, prospective purchasers of Capital Securities are also making an
investment decision with regard to the Junior Subordinated Debentures and should
carefully review all the information regarding the Junior Subordinated
Debentures contained herein. See 'Description of Junior Convertible Subordinated
Debentures.'
RIGHTS UNDER THE GUARANTEE
The Bank of New York will act as Guarantee Trustee and will hold the
Guarantee for the benefit of the holders of the Capital Securities. The Bank of
New York also will act as Property Trustee and as Debenture Trustee under the
Indenture. The Bank of New York (Delaware) will act as Delaware Trustee under
the Declaration. The Guarantee will guarantee to the holders of the Capital
Securities the following payments, to the extent not paid by the Trust: (i) any
accumulated and unpaid Distributions required to be paid on the Capital
Securities, to the extent that the Trust has funds on hand legally available
therefor; (ii) the applicable Redemption Price with respect to any Capital
Securities called for redemption, to the extent that the Trust has funds on hand
legally available therefor; and (iii) upon a voluntary or involuntary
dissolution, winding up or liquidation of the Trust (unless the Junior
Subordinated Debentures are distributed to holders of the Capital Securities),
the lesser of (a) the aggregate of the Liquidation Amount and all accumulated
and unpaid Distributions to the date of payment, to the extent that the Trust
has funds on hand legally available therefor on such date and (b) the amount of
assets of the Trust remaining available for distribution to holders of the
Capital Securities on such date. The holders of a majority in Liquidation Amount
of the Capital Securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of the Guarantee or to direct the exercise of any trust power
conferred upon the Guarantee Trustee. Any holder of the Capital Securities may
institute a
11
legal proceeding directly against the Company to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Trust, the
Guarantee Trustee or any other person or entity. If the Company defaults on its
obligation to pay amounts payable under the Junior Subordinated Debentures, the
Trust will not have sufficient funds for the payment of Distributions or amounts
payable on redemption of the Capital Securities or otherwise, and, in such
event, holders of the Capital Securities will not be able to rely upon the
Guarantee for payment of such amounts. Instead, in the event a Debenture Event
of Default shall have occurred and be continuing and such event is attributable
to the failure of the Company to pay principal of or premium, if any, or
interest on the Junior Subordinated Debentures on the payment date on which such
payment is due and payable, then a holder of Capital Securities may institute a
legal proceeding directly against the Company for enforcement of payment to such
holder of the principal of or premium, if any, or interest on such Junior
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Capital Securities of such holder (a 'Direct Action').
Notwithstanding any payments made to a holder of Capital Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of and premium, if any, and interest on the Junior
Subordinated Debentures, and the Company shall be subrogated to the rights of
the holder of such Capital Securities with respect to payments on the Capital
Securities to the extent of any payments made by the Company to such holder in
any Direct Action. Except as described herein, holders of Capital Securities
will not be able to exercise directly any other remedy available to the holders
of the Junior Subordinated Debentures or to assert directly any other rights in
respect of the Junior Subordinated Debentures. See 'Description of Junior
Convertible Subordinated Debentures -- Enforcement of Certain Rights by Holders
of Capital Securities' and ' -- Debenture Events of Default' and 'Description of
the Guarantee.' The Declaration will provide that each holder of Capital
Securities by acceptance thereof agrees to the provisions of the Indenture.
LIMITED VOTING RIGHTS
Holders of Capital Securities generally will have voting rights relating
only to the modification of the terms of the Capital Securities and the exercise
of the Trust's rights as holder of the Junior Subordinated Debentures. Holders
of Capital Securities will not be entitled to vote to appoint, remove or
replace, or to increase or decrease the number of, the Issuer Trustees or
Administrators, which voting rights are vested exclusively in the holder of the
Common Securities, except as described under 'Description of Capital
Securities -- Removal of Issuer Trustees and Administrators.' See 'Description
of Capital Securities -- Voting Rights; Amendment of the Declaration.'
TRADING PRICE
The Capital Securities may trade at a price that does not fully reflect the
value of accrued but unpaid interest with respect to the underlying Junior
Subordinated Debentures. A holder using the accrual method of accounting (and a
cash method holder, during and after an Extension Period or if the Junior
Subordinated Debentures are deemed to have been issued with OID) who disposes of
its Capital Securities between Distribution Record Dates (as defined herein)
will be required to include accrued but unpaid interest (or OID) on the Junior
Subordinated Debentures through the date of disposition in income as ordinary
income and to add such amount to its adjusted tax basis in its share of the
underlying Junior Subordinated Debentures deemed disposed of. To the extent the
selling price is less than the holder's adjusted tax basis, a holder will
recognize a capital loss. Subject to certain limited exceptions, capital losses
cannot be applied to offset ordinary income for United States federal income tax
purposes. See 'Certain Federal Income Tax Considerations -- Interest, Original
Issue Discount, Premium and Market Discount' and ' -- Sale or Redemption of
Capital Securities.'
ABSENCE OF PUBLIC MARKET AND TRANSFER RESTRICTIONS
There is no existing market for the Capital Securities and there can be no
assurance as to the liquidity of any markets that may develop for the Capital
Securities, the ability of the holders to sell their Capital Securities or at
what price holders of the Capital Securities will be able to sell their Capital
Securities, as the case may be. Future trading prices of the Capital Securities
will depend on many
12
factors including, among other things, prevailing interest rates, the Company's
operating results, and the market for similar securities. Although the Company
intends to apply to have the Capital Securities approved for listing on the
NYSE, there can be no assurance that such application will be approved, that an
active trading market for the Capital Securities will develop or, if one does
develop, that it will be maintained. In addition, notwithstanding the
registration of the Capital Securities, holders who are 'affiliates' of the
Company or the Trust as defined under Rule 405 of the Securities Act may
publicly offer for sale or resell the Capital Securities only in compliance with
the provisions of Rule 144 under the Securities Act.
13
NEW YORK BANCORP INC.
The Company is a Delaware chartered savings and loan holding company,
headquartered in Douglaston, New York. Through its wholly-owned subsidiary, the
Bank, a federally-chartered stock savings bank, the Company operates 31 banking
offices (of which five are supermarket branches and 26 are stand-alone branches)
and seven loan production offices. At June 30, 1997, the Company had total
consolidated assets of approximately $3.3 billion, deposits of approximately
$1.7 billion, and stockholders' equity of approximately $166.9 million.
The Bank's principal business consists of attracting deposits from the
general public and investing those deposits, together with funds generated from
operations and borrowings, in the origination and purchase of residential,
multifamily, and commercial mortgage loans, cooperative apartment loans and
consumer loans. In addition, the Bank invests in mortgage-backed and related
securities, securities issued by the U.S. government and agencies thereof, and
other investments in which the Bank is permitted to invest under federal laws
and regulations.
The Bank has been, and intends to continue to be, a community bank offering
a variety of deposit and lending services designed to meet the needs of the
communities it serves. The Bank's deposit customer base is drawn primarily from
Kings, Queens, Richmond, Nassau, and Suffolk Counties, while its loan
origination activities are conducted primarily in the five boroughs of New York
City, Nassau, Suffolk and Westchester Counties, as well as certain areas of
Connecticut and New Jersey.
The directors and executive officers of the Company own in the aggregate
approximately 26% of the outstanding Common Stock. Management's strategy is
focused on enhancing stockholder value by expanding the customer base of the
Bank and increasing the market penetration of the Bank within its existing
markets. Since 1991, expansion of the franchise has been achieved through the
acquisition of three institutions or the assets thereof, which combined, added
approximately $1.5 billion in assets and 18 branch offices. As acquisition
premiums have reached historic highs in recent years, the Company has, in lieu
of building the franchise through acquisitions, instead focused on expanding the
branch network through the opening of supermarket branches. Currently, the Bank
maintains five supermarket branches and has plans to establish six additional
supermarket branches during fiscal 1998. By expanding its branch network through
the establishment of supermarket branches, the Company will be able to penetrate
further its market area on an accelerated basis and with much lower levels of
capital investment and ongoing operating expense relative to opening and
operating stand-alone branch offices.
In addition to expanding its branch office network, the Bank has also
devoted considerable resources to developing a sales culture within its branch
system, through additional training and an incentive compensation system which
provides bonuses for successful sales efforts. The Bank has also developed a
variety of deposit and loan products, including new checking accounts, life
insurance and annuity products.
As a result of the focus of management on enhancing stockholder value, the
Company has enjoyed superior performance measures. For the year ended September
30, 1996, the Company's return on average assets and return on average
stockholders' equity (after recording a SAIF recapitalization charge of
approximately $9.4 million) were 1.16% and 20.26%, respectively. For the nine
months ended June 30, 1997, the Company's return on average assets and
stockholder's equity were 1.61% and 31.08%, respectively. Contributing to the
superior performance of the institution is the Company's focus on net interest
income and fee income and aggressive control of expenses, as evidenced by its
efficiency ratios of 42.96% and 38.15% for the year ended September 30, 1996 and
the nine months ended June 30, 1997, respectively.
The Bank was organized in 1935 as a federally-chartered savings and loan
association, changed its charter in 1983 to a federal savings bank, and
converted, in February 1988, from mutual to stock form in connection with its
acquisition by the Company. The Company's principal executive offices are
located at 241-02 Northern Boulevard, Douglaston, New York 11362, and its
telephone number at such address is (718) 631-8100.
14
USE OF PROCEEDS
The proceeds to the Trust from the Offerings of the Capital Securities will
be $50,000,000. All of the proceeds from the sale of Capital Securities
(together with the proceeds of the Common Securities) will be invested by the
Trust in the Junior Subordinated Debentures. The estimated net proceeds from the
sale of the Junior Subordinated Debentures of approximately $48,530,000, after
deducting the underwriting discount (assuming 50% of the Capital Securities will
be sold in each of the Subscription Offering and the Public Offering,
respectively) and estimated offering expenses, will be available to the Company
for general corporate purposes, including, without limitation, the purchase,
from time to time, in the open market or in privately-negotiated transactions,
of outstanding shares of the Common Stock and the making of advances and capital
contributions to the Bank, as well as in connection with one or more possible
future acquisitions by the Company. Initially, the net proceeds may be used to
make short-term investments. Under current policy, the OTS does not impose any
capital adequacy requirements on the Company, but rather imposes such capital
adequacy requirements on the Bank. To the extent the Company contributes a
portion of the net proceeds received from the sale of the Capital Securities to
the Bank, such proceeds would qualify as Tier 1 capital at the Bank level under
the current capital adequacy guidelines of the OTS.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth for the respective periods indicated the
ratios of the Company's consolidated earnings to fixed charges. For purposes of
computing the ratio, earnings represent pretax income before extraordinary item
and cumulative effect of change in accounting principles plus fixed charges.
Fixed charges, excluding interest on deposits, include interest expense (other
than on deposits) and the proportion deemed representative of the interest
factor of rent expense, net of income from subleases. Fixed charges, including
interest on deposits, include all interest expense and the proportion deemed
representative of the interest factor of rent expense, net of income from
subleases.
NINE MONTHS ENDED
JUNE 30, YEAR ENDED SEPTEMBER 30,
--------------------- ---------------------------------------
1997 1996 1996 1995(1) 1994 1993 1992
-------- --------- ---- ------- ---- ---- ----
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits................ 2.36x 2.41x 2.21x 1.78x 3.09x 4.25x 2.33x
Including interest on deposits................ 1.72x 1.60x 1.53x 1.31x 1.61x 1.64x 1.39x
- ------------
(1) The decline in the ratio of earnings to fixed charges for the year ended
September 30, 1995, is primarily attributable to certain non-recurring
merger-related and restructuring expenses of approximately $19.0 million
incurred by the Company in connection with the acquisition of Hamilton
Bancorp, Inc. ('Hamilton').
15
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization of
the Company and its consolidated subsidiaries at June 30, 1997, and as adjusted
to give effect to the sale of the Capital Securities offered hereby and the
application of the estimated net proceeds therefrom as described under 'Use of
Proceeds.' The table should be read in conjunction with the historical
consolidated financial statements of the Company and related notes included in
Annual Report on Form 10-K for the year ended September 30, 1996 and the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. See
'Available Information' and 'Incorporation of Certain Documents by Reference.'
AS OF JUNE 30, 1997
-----------------------
ACTUAL ADJUSTED(1)
-------- -----------
(IN THOUSANDS)
Subordinated Bank debt due in fiscal 1999............................................... $ 7,600 $ 7,600
Variable rate reverse repurchase agreement due in fiscal 1998........................... 100,000 100,000
Fixed rate reverse repurchase agreement due in fiscal 1999.............................. 73,300 73,300
Fixed rate reverse repurchase agreements due in fiscal 2000............................. 137,000 137,000
Fixed rate reverse repurchase agreement due in fiscal 2001.............................. 79,000 79,000
Fixed rate reverse repurchase agreement due in fiscal 2002.............................. 40,000 40,000
-------- -----------
Total long-term debt.......................................................... 436,900 436,900
-------- -----------
Company obligated, mandatorily redeemable, convertible preferred securities of
subsidiary trust holding solely subordinated debentures of the Company................ -- 50,000
-------- -----------
Shareholders' equity:
Common stock, $.01 par value, 30,000,000 shares authorized; 29,493,425 shares
issued; 21,591,247 shares outstanding............................................. 295 295
Additional paid-in capital.............................................................. 66,502 66,502
Retained earnings, substantially restricted............................................. 171,847 171,847
Treasury stock, at cost, 7,902,178 shares............................................... (72,480) (72,480)
Unrealized appreciation on securities available for sale, net of tax benefit............ 708 708
-------- -----------
Total shareholders' equity.................................................... 166,872 166,872
-------- -----------
Total capitalization..................................................... $603,772 $ 653,772
-------- -----------
-------- -----------
- ------------
(1) Reflects the issuance of the Capital Securities. The Trust is a subsidiary
of the Company and will hold the Junior Subordinated Debentures as its sole
asset.
16
SELECTED CONSOLIDATED FINANCIAL AND OTHER DATA
The selected consolidated financial data below under the caption 'Operating
Data' and 'Financial Condition Data' for, and as of the end of, each of the
years in the five-year period ended September 30, 1996 are derived from the
consolidated financial statements of the Company, which consolidated financial
statements have been audited by KPMG Peat Marwick LLP, independent certified
public accountants. The consolidated financial statements as of September 30,
1996 and 1995, and for each of the years in the three-year period ended
September 30, 1996, and the report thereon, are incorporated herein by
reference. See 'Available Information' and 'Incorporation of Certain Documents
by Reference.' The selected consolidated financial data below under the caption
'Operating Data' and 'Financial Condition Data' for the nine-month periods ended
June 30, 1997 and 1996, and as of June 30, 1997 and 1996, are derived from the
unaudited consolidated financial statements of the Company incorporated herein
by reference. Such interim unaudited data reflect, in the opinion of management
of the Company, all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of such data. Results for the
nine months ended June 30, 1997 are not necessarily indicative of results which
may be expected for any other interim period or for the year as a whole. The
information presented below under the caption 'Selected Financial Ratios and
Other Data' and 'Customer Service Facilities' is unaudited.
NINE MONTHS ENDED
JUNE 30, YEAR ENDED SEPTEMBER 30,
------------------- ------------------------------
1997 1996 1996 1995 1994(1)
-------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
OPERATING DATA:
Interest income...................................................... $176,402 $153,142 $207,491 $196,972 $175,530
Interest expense..................................................... 87,357 79,218 106,746 101,730 79,948
-------- -------- -------- -------- --------
Net interest income.................................................. 89,045 73,924 100,745 95,242 95,582
Provision for possible loan losses................................... (1,800) (900) (1,200) (1,700) (2,650)
-------- -------- -------- -------- --------
Net interest income after provision for possible loan losses......... 87,245 73,024 99,545 93,542 92,932
-------- -------- -------- -------- --------
Non-interest income:
Loan fees and service charges.................................... 2,254 2,094 2,770 2,566 3,292
Banking service fees............................................. 4,726 3,862 5,323 3,944 3,108
Fees from sale of investment products............................ 1,422 1,069 1,376 617 615
Net loss on financial futures transactions....................... -- -- -- -- --
Net gain (loss) on the sale of mortgage loans and securities
available for sale............................................. 747 2,778 4,750 (1,088) 214
Other............................................................ 4,689 368 448 573 771
-------- -------- -------- -------- --------
Total non-interest income.................................... 13,838 10,171 14,667 6,612 8,000
-------- -------- -------- -------- --------
General and administrative expenses.................................. 37,240 35,255 47,535 48,968 50,845
-------- -------- -------- -------- --------
Merger and restructuring expense..................................... -- -- -- 19,024 --
-------- -------- -------- -------- --------
Real estate operations, net.......................................... 899 340 463 883 880
-------- -------- -------- -------- --------
SAIF recapitalization expense........................................ -- -- 9,432 -- --
-------- -------- -------- -------- --------
Income before income tax expense, extraordinary item and cumulative
effect of change in accounting principle........................... 62,944 47,600 56,782 31,279 49,207
Income tax expense................................................... (25,603) (20,966) (24,776) (19,717) (21,740)
Extraordinary item, early extinguishment of debt..................... -- -- -- -- --
Cumulative effect of change in accounting for income taxes........... -- -- -- -- 5,685
-------- -------- -------- -------- --------
Net income........................................................... $ 37,341 $ 26,634 $ 32,006 $ 11,562 $ 33,152
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
Per Share Data:
Income before extraordinary item and cumulative effect of change in
accounting principle(3)............................................ $1.63 $1.10 $1.34 $.43 $1.01
Net income(3)........................................................ 1.63 1.10 1.34 .43 1.22
(table continued on next page)
1993(1) 1992(1)
-------- --------
OPERATING DATA:
Interest income...................................................... $160,752 $152,417
Interest expense..................................................... 71,385 84,415
-------- --------
Net interest income.................................................. 89,367 68,002
Provision for possible loan losses................................... (4,700) (8,404)
-------- --------
Net interest income after provision for possible loan losses......... 84,667 59,598
-------- --------
Non-interest income:
Loan fees and service charges.................................... 3,341 3,196
Banking service fees............................................. 3,753 1,608
Fees from sale of investment products............................ 536 371
Net loss on financial futures transactions....................... (495) --
Net gain (loss) on the sale of mortgage loans and securities
available for sale............................................. 3,857 13,185
Other............................................................ 192 625
-------- --------
Total non-interest income.................................... 11,184 18,985
-------- --------
General and administrative expenses.................................. 48,455 42,374
-------- --------
Merger and restructuring expense..................................... -- --
-------- --------
Real estate operations, net.......................................... 1,296 3,413
-------- --------
SAIF recapitalization expense........................................ -- --
-------- --------
Income before income tax expense, extraordinary item and cumulative
effect of change in accounting principle........................... 46,100 32,796
Income tax expense................................................... (20,912) (15,346)
Extraordinary item, early extinguishment of debt..................... -- (570)
Cumulative effect of change in accounting for income taxes........... -- --
-------- --------
Net income........................................................... $ 25,188 $ 16,880
-------- --------
-------- --------
Per Share Data:
Income before extraordinary item and cumulative effect of change in
accounting principle(3)............................................ $N/M(5) $N/M(5)
Net income(3)........................................................ N/M(5) N/M(5)
17
(table continued from previous page)
AT OR FOR THE NINE AT OR FOR THE YEAR ENDED SEPTEMBER
MONTHS ENDED JUNE 30, 30,
----------------------- ------------------------------------
1997 1996 1996 1995 1994(1)
---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
FINANCIAL CONDITION DATA:
Total assets............................................... $3,283,653 $2,918,120 $2,940,907 $2,731,592 $2,583,982
First mortgage loans....................................... 1,769,701 1,580,451 1,603,769 1,389,776 1,158,604
Other loans................................................ 254,425 275,733 268,779 296,439 299,455
Allowance for possible loan losses......................... (19,613) (19,735) (19,386) (21,272) (25,705)
Loans receivable, net...................................... 2,004,513 1,836,449 1,853,162 1,664,943 1,432,354
Mortgage-backed securities held to maturity................ 602,828 562,785 550,817 664,726 785,593
Mortgage-backed securities available for sale.............. 397,118 295,042 280,429 206,794 171,983
Debt securities held to maturity........................... 606 1,155 643 21,179 52,984
Debt and equity securities available for sale.............. 135,553 93,910 136,133 46,273 180
Federal Home Loan Bank stock............................... 52,641 30,944 27,938 20,288 17,409
Money market investments................................... -- 6,500 10,700 13,915 21,844
Trading account securities................................. -- -- -- 2,003 12,939
Deposits................................................... 1,690,993 1,746,975 1,715,959 1,748,874 1,791,514
Borrowed funds............................................. 1,347,230 958,912 1,008,786 767,138 578,897
Shareholders' equity....................................... 166,872 158,374 151,903 156,386 171,291
SELECTED FINANCIAL RATIOS AND OTHER DATA:
Return on average assets................................... 1.61% 1.31% 1.16% .44%(2) 1.35%
Return on average shareholders' equity..................... 31.08 22.39 20.26 6.81(2) 20.13
Shareholders' equity to assets............................. 5.08 5.43 5.17 5.73 6.63
Net interest rate spread................................... 3.68 3.45 3.47 3.43 3.73
Net interest margin........................................ 3.91 3.69 3.71 3.68 3.95
Efficiency ratio........................................... 38.15 43.36 42.96 47.57 49.19
Nonaccrual loans and real estate owned, net, as a
percentage of total assets............................... .99 1.02 .98 1.18 1.64
Allowance for possible loan losses as a percentage of
nonaccrual loans......................................... 69.08 72.90 75.87 70.04 70.23
Average interest-earning assets to average interest-bearing
liabilities.............................................. 105.88% 105.95% 105.86% 106.47% 106.82%
Book value per share(3).................................... $7.73 $6.89 $6.84 $6.44 $6.48
Dividends per share(3)(4).................................. .375 .30 .40 .40 .39
Dividend payout ratio(3)(4)................................ 23.01% 27.27% 29.85% 76.92% 24.84%
CUSTOMER SERVICE FACILITIES:
Full service............................................... 30 29 29 27 26
Loan production offices.................................... 7 7 7 6 6
Executive office........................................... 1 1 1 1 1
CAPITAL RATIOS(7)(8):
Core capital............................................... 4.75% 4.89% 4.71% 5.33% 4.79%
Tangible capital........................................... 4.75 4.89 4.71 5.33 4.79
Risk-Based capital......................................... 11.18 11.00 11.24 12.24 10.56
1993(1) 1992(1)
---------- ----------
FINANCIAL CONDITION DATA:
Total assets............................................... $2,250,605 $2,153,861
First mortgage loans....................................... 1,103,575 992,864
Other loans................................................ 311,670 326,354
Allowance for possible loan losses......................... (26,828) (19,455)
Loans receivable, net...................................... 1,388,417 1,299,763
Mortgage-backed securities held to maturity................ 439,605 448,296
Mortgage-backed securities available for sale.............. 234,236 76,707
Debt securities held to maturity........................... 4,662 26,620
Debt and equity securities available for sale.............. -- 67
Federal Home Loan Bank stock............................... 21,734 20,876
Money market investments................................... 77,261 192,758
Trading account securities................................. 12,487 12,242
Deposits................................................... 1,758,102 1,782,764
Borrowed funds............................................. 293,693 222,850
Shareholders' equity....................................... 153,769 99,933(6)
SELECTED FINANCIAL RATIOS AND OTHER DATA:
Return on average assets................................... 1.16% .89%
Return on average shareholders' equity..................... 18.74 17.81
Shareholders' equity to assets............................. 6.83 4.64
Net interest rate spread................................... 3.99 3.47
Net interest margin........................................ 4.23 3.68
Efficiency ratio........................................... 49.86 57.42
Nonaccrual loans and real estate owned, net, as a
percentage of total assets............................... 2.02 2.08
Allowance for possible loan losses as a percentage of
nonaccrual loans......................................... 69.02 54.87
Average interest-earning assets to average interest-bearing
liabilities.............................................. 107.04% 104.67%
Book value per share(3).................................... $5.87 $N/M(5)
Dividends per share(3)(4).................................. .32 .23
Dividend payout ratio(3)(4)................................ 29.36% 25.71%
CUSTOMER SERVICE FACILITIES:
Full service............................................... 26 29
Loan production offices.................................... 6 7
Executive office........................................... 1 1
CAPITAL RATIOS(7)(8):
Core capital............................................... 4.82% 4.29%
Tangible capital........................................... 4.82 4.29
Risk-Based capital......................................... 10.23 9.92
- ------------
(1) On January 27, 1995, Hamilton was merged with and into the Company. The
merger was accounted for as a pooling of interests and, accordingly, all
prior periods include the consolidated results of Hamilton.
(2) Reflect certain non-recurring merger-related and restructuring expenses of
approximately $19.0 million incurred by the Company during the fiscal year
ended September 30, 1995, in connection with the acquisition of Hamilton.
(3) Per share amounts have been calculated to fully reflect the 4-for-3 stock
split effective July 24, 1997, the 3-for-2 stock splits effective January
23, 1997, July 29, 1993 and October 22, 1992 and the ten percent stock
dividend effective February 14, 1994.
(4) Dividends per share and the dividend payout ratio have not been restated for
the merger with Hamilton.
(5) N/M -- Hamilton converted to stock ownership on April 1, 1993. Accordingly,
restated per share data is not meaningful.
(6) Includes only the retained earnings of Hamilton Federal Savings, F.A., which
converted from mutual to stock ownership on April 1, 1993.
(7) Capital ratios prior to the merger with Hamilton on January 27, 1995, are
those of Home Federal Savings Bank.
(8) Under current capital adequacy guidelines of the OTS, to remain 'adequately
capitalized,' the Bank is required to maintain a Total Risk-Based capital
ratio of 8.0% or greater, a Tier 1 Risk-Based capital ratio of 4.0% or
greater, and a Tier 1 (core) capital ratio of 4.0% or greater.
18
THE TRUST
The Trust is a statutory business trust created under Delaware law pursuant
to (i) a declaration of trust, dated as of August 28, 1997, executed by the
Company, as Sponsor, the Initial Trustee, the Delaware Trustee and the Property
Trustee named therein (the 'Initial Declaration'), and (ii) the filing of a
certificate of trust with the Secretary of State of the State of Delaware on
August 28, 1997. The Initial Declaration will be replaced by the Declaration.
The Trust exists for the exclusive purposes of
(i) issuing and selling the Trust Securities, which represent undivided
beneficial interests in the assets of the Trust, (ii) investing the gross
proceeds from the sale of the Trust Securities in the Junior Subordinated
Debentures and (iii) engaging in only those other activities necessary,
advisable or incidental thereto. Accordingly, the Junior Subordinated Debentures
will be the sole assets of the Trust and payments under the Junior Subordinated
Debentures will be the sole revenues of the Trust. All of the Common Securities
will be owned directly by the Company. The Common Securities will rank pari
passu, and payments will be made thereon pro rata, with the Capital Securities,
except that upon the occurrence and during the continuance of an Event of
Default (as defined herein), the rights of the Company as holder of the Common
Securities to payments in respect of distributions and payments upon
liquidation, redemption or otherwise will be subordinated and rank junior to the
rights of the holders of the Capital Securities. See 'Description of Capital
Securities -- Subordination of Common Securities.' The Company will acquire
Common Securities in a Liquidation Amount equal to approximately, but not less
than, 3% of the total capital of the Trust. The Trust has a term of 31 years,
but may dissolve earlier as provided in the Declaration. The Trust's business
and affairs will be conducted by the Issuer Trustees and the Administrators,
appointed by the Company as the direct holder of the Common Securities. The
Issuer Trustees will be The Bank of New York, as the Property Trustee, and The
Bank of New York (Delaware), as the Delaware Trustee. The Bank of New York, as
Property Trustee, will act as sole indenture trustee under the Declaration. The
Bank of New York also will act as trustee under the Guarantee and the Indenture.
See 'Description of the Guarantee' and 'Description of Junior Convertible
Subordinated Debentures.' The holder of the Common Securities or, if an Event of
Default under the Declaration has occurred and is continuing, the holders of a
majority in Liquidation Amount of the Capital Securities, will be entitled to
appoint, remove or replace the Property Trustee and/or the Delaware Trustee. In
no event will the holders of the Capital Securities have the right to vote to
appoint, remove or replace the Administrators; such voting rights will be vested
exclusively in the holder of the Common Securities. The duties and obligations
of each Issuer Trustee and the Administrators are governed by the Declaration.
The Company will pay directly all fees, expenses, debts and obligations (other
than the Trust Securities) related to the Trust and the offering of the Capital
Securities, including all ongoing costs, expenses and liabilities of the Trust.
The principal executive office of the Trust is New York Bancorp Capital Trust,
c/o New York Bancorp Inc., 241-02 Northern Boulevard, Douglaston, New York
11362, Attention: Chief Executive Officer. Under the Declaration, all parties to
the Declaration will agree, and the holders of the Capital Securities upon
purchase of their Capital Securities will be deemed to have agreed, for United
States income tax purposes, to treat the Trust as a grantor trust, the Junior
Subordinated Debentures as indebtedness and the Capital Securities as evidence
of indirect beneficial ownership in the Junior Subordinated Debentures.
DESCRIPTION OF CAPITAL SECURITIES
The Capital Securities will represent preferred undivided beneficial
interests in the assets of the Trust and the holders thereof will be entitled to
a preference over the Common Securities in certain circumstances with respect to
Distributions and amounts payable on redemption of the Trust Securities or
liquidation of the Trust. See ' -- Subordination of Common Securities' below.
The Declaration will be qualified as an indenture under the Trust Indenture Act
of 1939, as amended (the 'Trust Indenture Act'). The following description does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, the Declaration and the Trust Indenture Act. Certain
capitalized terms used herein are defined in the Declaration.
19
GENERAL
The Capital Securities will be limited to $50,000,000 aggregate Liquidation
Amount at any one time outstanding. The Capital Securities will rank pari passu,
and payments will be made thereon pro rata, with the Common Securities except as
described under ' -- Subordination of Common Securities' below. Legal title to
the Junior Subordinated Debentures will be held by the Property Trustee in trust
for the benefit of the holders of the Capital Securities and the Common
Securities. The Guarantee will not guarantee payment of Distributions or amounts
payable on redemption of the Capital Securities or liquidation of the Trust when
the Trust does not have funds on hand legally available for such payments. See
'Description of the Guarantee.'
DISTRIBUTIONS
Distributions on the Capital Securities will be cumulative, will accumulate
from the Issue Date and will be payable quarterly in arrears on January 31,
April 30, July 31 and October 31 of each year, commencing January 31, 1998, at
the annual rate of 8.00% of the Liquidation Amount to the holders of the Capital
Securities on the relevant record dates. The record dates will be the fifteenth
day of the month in which the relevant Distribution Date (as defined herein)
falls (each, a 'Distribution Record Date'). The amount of Distributions payable
for any period will be computed on the basis of a 360-day year of twelve 30-day
months and, for any period of less than a full calendar month, the number of
days elapsed in such month. In the event that any date on which Distributions
are payable on the Capital Securities is not a Business Day (as defined herein),
payment of the Distributions payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect to any such delay), with the same force and effect as if made on the
date such payment was originally payable (each date on which Distributions are
payable in accordance with the foregoing, a 'Distribution Date'). A 'Business
Day' shall mean any day other than a Saturday or a Sunday, or a day on which
banking institutions in New York, New York or Douglaston, New York are
authorized or required by law or executive order to close.
So long as no Debenture Event of Default shall have occurred and be
continuing, the Company will have the right under the Indenture to elect to
defer the payment of interest on the Junior Subordinated Debentures at any time
and from time to time for a period not exceeding 20 consecutive quarters with
respect to each Extension Period, provided that no Extension Period will end on
a day other than an interest payment date for the Junior Subordinated Debentures
or extend beyond the Stated Maturity Date. Upon any such election, quarterly
Distributions on the Capital Securities will be deferred by the Trust during
such Extension Period. Distributions to which holders of the Capital Securities
are entitled during any such Extension Period will accumulate additional
Distributions thereon at the rate per annum of 8.00% thereof, compounded
quarterly from the relevant Distribution Date, to the extent permitted by
applicable law. The term 'Distributions,' as used herein, shall include any such
additional Distributions.
During any such Extension Period, the Company may extend such Extension
Period, provided that such extension does not cause such Extension Period to
exceed 20 consecutive quarters or to extend beyond the Stated Maturity Date.
Upon the termination of any such Extension Period and the payment of all amounts
then due, and subject to the foregoing limitations, the Company may elect to
begin a new Extension Period. The Company must give the Property Trustee, the
Administrators and the Debenture Trustee notice of its election of any Extension
Period or any extension thereof at least five Business Days prior to the earlier
of (i) the date the Distributions on the Capital Securities would have been
payable except for the election to begin or extend such Extension Period and
(ii) the date the Administrators are required to give notice to any securities
exchange or to holders of the Capital Securities of the Distribution Record Date
or the date such Distributions are payable, but in any event not less than five
Business Days prior to such record date. There is no limitation on the number of
times that the Company may elect to begin an Extension Period. See 'Description
of Junior Convertible Subordinated Debentures -- Option to Extend Interest
Payment Date' and 'Certain Federal Income Tax Considerations -- Interest,
Original Issue Discount, Premium and Market Discount.'
During any such Extension Period, the Company may not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of
20
the Company's capital stock or (ii) make any payment of principal of or premium,
if any, or interest on or repay, repurchase or redeem any debt securities of the
Company (including Other Debentures) that rank pari passu with or junior in
right of payment to the Junior Subordinated Debentures or (iii) make any
guarantee payments with respect to any guarantee by the Company of any
securities of any subsidiary of the Company (including guarantees issued with
respect to capital securities to Other Trusts ('Other Guarantees')) if such
guarantee ranks pari passu with or junior in right of payment to the Junior
Subordinated Debentures, other than (a) dividends or distributions in shares of,
or options, warrants or rights to subscribe for or purchase shares of, Common
Stock or preferred stock of the Company, (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the
Guarantee, (d) as a direct result of, and only to the extent required in order
to avoid the issuance of fractional shares of capital stock following, a
reclassification of the Company's capital stock or the exchange or conversion of
one class, or series of the Company's capital stock for another class or series
of the Company's capital stock, (e) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
and (f) purchases of Common Stock related to the issuance of Common Stock or
rights under any of the Company's benefit plans for its directors, officers or
employees or any of the Company's dividend reinvestment plans.
The Company believes that, as a result of its inability to pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, its Common Stock during an Extension Period
and the additional restrictions imposed upon it to the extent described under
'Description of Junior Convertible Subordinated Debentures -- Option to Extend
Interest Payment Date,' the likelihood of its exercising its right to defer
payments of interest is remote and it has no such current intention. However,
the Company reserves the right in the future to exercise its option to defer
payments of interest on the Junior Subordinated Debentures. See 'Risk
Factors -- Option to Extend Interest Payment Period; Tax Considerations.'
The revenue of the Trust available for distribution to holders of the
Capital Securities will be limited to payments under the Junior Subordinated
Debentures in which the Trust will invest the proceeds from the issuance and
sale of the Trust Securities. See 'Description of Junior Convertible
Subordinated Debentures -- General.' If the Company does not make interest
payments on the Junior Subordinated Debentures, the Property Trustee will not
have funds available to pay Distributions on the Capital Securities. The payment
of Distributions (if and only to the extent the Trust has funds on hand legally
available for the payment of such Distributions) will be guaranteed by the
Company on a limited basis as set forth herein under 'Description of the
Guarantee.'
CONVERSION RIGHTS
General. Capital Securities will be convertible at any time prior to the
earlier of (i) 5:00 p.m. (New York City time) on the Business Day immediately
preceding the date of repayment of such Capital Securities, whether at maturity
or upon redemption, and (ii) 5:00 p.m. (New York City time) on the Conversion
Termination Date (if any), at the option of the holders thereof and in the
manner described below, into a number of shares of Common Stock that equals the
quotient obtained by dividing (i) $25.00 by (ii) the Conversion Price referred
to on the cover page of this Prospectus, subject to adjustment as described
below under ' -- Conversion Price Adjustments.' The Trust will covenant in the
Declaration not to convert Junior Subordinated Debentures held by it except
pursuant to a conversion request delivered to the Property Trustee, as initial
conversion agent (the 'Conversion Agent'), by a holder of Capital Securities.
A holder of Capital Securities wishing to exercise its conversion right
will be required to deliver an irrevocable conversion request, together, if the
Capital Security is evidenced by a physical certificate (a 'Certificated Capital
Security') with such Certificated Capital Security, to the Conversion Agent
which will exchange such Capital Security for an equivalent amount of the Junior
Subordinated Debentures (based on an exchange ratio of $25.00 principal amount
of Junior Subordinated Debentures for each $25.00 Liquidation Amount of Capital
Securities) on behalf of such holder and immediately convert such Junior
Subordinated Debentures into Common Stock. Holders may obtain copies of the
required
21
form of the conversion request from the Conversion Agent. So long as a
book-entry system for the Capital Securities is in effect, however, procedures
for converting book-entry Capital Securities into shares of Common Stock will
differ, as described under ' -- Form, Denomination, Book-Entry Procedures and
Transfer.'
Holders of Capital Securities at 5:00 p.m. (New York City time) on a
Distribution Record Date will be entitled to receive the Distribution payable on
such Capital Securities on the corresponding Distribution Date notwithstanding
the conversion of such Capital Securities following such Distribution Record
Date but on or prior to such Distribution Date. Except as provided in the
immediately preceding sentence, neither the Trust nor the Company will make, or
be required to make, any payment, allowance or adjustment for accumulated and
unpaid Distributions, whether or not in arrears, on converted Capital
Securities; provided, however, that if notice of redemption of Capital
Securities is mailed or otherwise given to holders of Capital Securities or the
Trust issues a press release announcing a Conversion Termination Date, then, if
any holder of Capital Securities converts any Capital Securities into Common
Stock on any date on or after the date on which such notice of redemption is
mailed or otherwise given or the date of such press release, as the case may be,
and if such date of conversion falls on any day from and including the first day
of an Extension Period and on or prior to the Distribution Date upon which such
Extension Period ends, such converting holder shall be entitled to receive
either (i) if the date of such conversion falls after a Distribution Record Date
and on or prior to the next succeeding Distribution Date, all accrued and unpaid
Distributions on such Capital Securities (including interest thereon, if any, to
the extent permitted by applicable law) to such Distribution Date or (ii) if the
date of such conversion does not fall on a date described in clause (i) above,
all accrued and unpaid Distributions on such Capital Securities (including
interest thereon, if any, to the extent permitted by applicable law) to the most
recent Distribution Date prior to the date of such conversion, which
Distributions shall, in either such case, be paid to such converting holder
unless the date of conversion of such Capital Securities is on or prior to the
Distribution Date upon which such Extension Period ends and after the
Distribution Record Date for such Distribution Date, in which case such
Distributions shall be paid to the person who was the holder of such Capital
Securities (or one or more predecessor Capital Securities) at 5:00 p.m. (New
York City time) on such Distribution Record Date. The Company will make no
payment or allowance for distributions on the shares of Common Stock issued upon
such conversion, except to the extent that such shares of Common Stock are held
of record on the record date for any such distributions. Each conversion will be
deemed to have been effected immediately prior to 5:00 p.m. (New York City time)
on the day on which the related conversion request was received by the
Conversion Agent.
No fractional shares of Common Stock will be issued as a result of
conversion, but in lieu thereof such fractional interest will be paid by the
Company in cash based on the Closing Price of the Common Stock on the date such
Capital Securities are converted.
Conversion Price Adjustments -- General. The Conversion Price is subject to
adjustment in certain events, including (a) the issuance after the Issue Date of
shares of Common Stock as a dividend or a distribution with respect to Common
Stock, (b) subdivisions, combinations and reclassification of Common Stock
effected after the Issue Date, (c) the issuance to all holders of Common Stock
after the Issue Date of rights or warrants entitling them (for a period not
exceeding 45 days) to subscribe for or purchase shares of Common Stock at less
than the then Current Market Price (as defined below) of the Common Stock, (d)
the distribution to all holders of Common Stock after the Issue Date of
evidences of indebtedness, capital stock, cash or assets (including securities,
but excluding those rights, warrants, dividends and distributions referred to
above and dividends and distributions paid exclusively in cash), (e) the payment
of dividends (and other distributions) on Common Stock after the Issue Date paid
exclusively in cash, excluding cash dividends if the annualized per share amount
thereof does not exceed 15% of the Current Market Price of Common Stock as of
the trading day immediately preceding the date of declaration of such dividend,
and (f) payment to holders of Common Stock after the Issue Date in respect of a
tender or exchange offer (other than an odd-lot offer) by the Company for Common
Stock at a price in excess of 110% of the then Current Market Price of Common
Stock as of the trading day next succeeding the last date tenders or exchanges
may be made pursuant to such tender or exchange offer.
22
'Current Market Price' means, in general, the average of the daily Closing
Prices (as defined below) for the five consecutive trading days selected by the
Company commencing not more than 20 trading days before, and ending not later
than, the earlier of the day in question or, if applicable, the day before the
'ex' date (as defined) with respect to the issuance or distribution in question.
The Company from time to time may reduce the conversion price of the Junior
Subordinated Debentures (and thus the Conversion Price of the Capital
Securities) by any amount selected by the Company for any period of at least 20
days, in which case the Company shall give at least 15 days' notice of such
reduction. The Company may, at its option, make such reductions in the
Conversion Price, in addition to those set forth above, as the Company deems
advisable to avoid or diminish any income tax to holders of Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes. See 'Certain
Federal Income Tax Considerations -- Adjustment of Conversion Price.'
No adjustment of the Conversion Price will be made upon the issuance of any
shares of Common Stock pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on securities of the Company and
the investment of additional optional amounts in shares of Common Stock under
any such plan, or upon the issuance of any shares of Common Stock or options or
rights pursuant to any employee benefit plan or program, or pursuant to any
option, warrant, right or any exercisable, exchangeable or convertible security
outstanding as of the date on which the Junior Subordinated Debentures are first
issued. No adjustment of the Conversion Price will be made upon the issuance of
rights under any shareholder rights plan. No adjustment in the Conversion Price
will be required unless adjustment would require a change of at least one
percent (1%) in the price then in effect; provided, however, that any adjustment
that would not be required to be made shall be carried forward and taken into
account in any subsequent adjustment. If any action would require adjustment of
the Conversion Price pursuant to more than one of the provisions described
above, only one adjustment shall be made with respect to that action and such
adjustment shall be the amount of adjustment that has the highest absolute value
to the holder of the Capital Securities.
Conversion Price Adjustment -- Merger, Consolidation or Sale of Assets of
the Company. In the event that the Company shall be a party to any transaction,
including, without limitation, and with certain exceptions, (a) a
recapitalization or reclassification of the Common Stock, (b) consolidation of
the Company with, or merger of the Company into, any other person, or any merger
of another person into the Company, (c) any sale, transfer or lease of all or
substantially all of the assets of the Company or (d) any compulsory share
exchange pursuant to which the Common Stock is converted into the right to
receive other securities, cash or other property (each of the foregoing being
referred to as a 'Transaction'), then the holders of Capital Securities then
outstanding will have the right to convert the Capital Securities into the kind
and amount of securities, cash or other property receivable upon the
consummation of such Transaction by a holder of the number of shares of Common
Stock issuable upon conversion of such Capital Securities immediately prior to
such Transaction.
In the case of a Transaction, each Capital Security would become
convertible into the securities, cash or property receivable by a holder of the
number of shares of the Common Stock into which such Capital Security was
convertible immediately prior to such Transaction. This change could
substantially lessen or eliminate the value of the conversion privilege
associated with the Capital Securities in the future. For example, if the
Company were acquired in a cash merger, each Capital Security would become
convertible solely into cash and would no longer be convertible into securities
which value would vary depending on the future prospects of the Company and
other factors.
Conversion Price adjustments or omissions in making such adjustments may,
under certain circumstances, be deemed to be distributions that could be taxable
as dividends to holders of Capital Securities or to the holders of Common Stock.
See 'Certain Federal Income Tax Considerations -- Adjustment of Conversion
Price.'
Termination of Conversion Rights. In addition to the rights of the Company
to redeem the Capital Securities under the circumstances described in this
Prospectus, the Company also will have the right to terminate the convertibility
of the Capital Securities into Common Stock as described in this paragraph. On
and after October 31, 2001 and provided the Trust is current in the payment of
Distributions on the Capital Securities (except to the extent that the payment
of Distributions may have been duly deferred
23
as the result of an Extension Period), the Company may, at its option, terminate
the right to convert the Junior Subordinated Debentures into Common Stock, in
which case the right to convert the Capital Securities into Common Stock will
likewise terminate. The Company may exercise this option only if for at least 20
trading days within any period of 30 consecutive trading days ending on or after
October 31, 2001, including the last trading day of such period, the Closing
Price of the Common Stock exceeds 110% of the then applicable Conversion Price
of the Capital Securities. To exercise this conversion termination option, the
Company must cause the Trust to issue a press release for publication on the Dow
Jones News Service or on a comparable news service announcing the Conversion
Termination Date prior to the opening of business on the second trading day
after a period in which the condition in the preceding sentence has been met,
but in no event may such press release be issued prior to October 31, 2001. The
press release shall announce the Conversion Termination Date and provide the
Conversion Price and the Closing Price of the Capital Securities and the Common
Stock, in each case as of the close of business on the trading day next
preceding the date of the press release.
Notice of the termination of conversion rights will be given by first-class
mail to the holders of the Capital Securities not more than four Business Days
after the Trust issues the press release. The Conversion Termination Date will
be a Business Day selected by the Company not less than 30 nor more than 60 days
after the date on which the Trust issues the press release announcing its
intention to terminate conversion rights of Capital Security holders. In the
event that the Company exercises its conversion termination option, conversion
rights will expire at 5:00 p.m. (New York City time) on the Conversion
Termination Date. In the event the Company has not exercised its conversion
termination option and the Capital Securities are otherwise called for
redemption, the Capital Securities will be convertible at any time prior to 5:00
p.m. (New York City time) on the Business Day immediately preceding the date of
such redemption.
'Closing Price' of any security on any day means the last reported sale
price, regular way, on such day or, if no sale takes place on such day, the
average of the reported closing bid and asked prices on such day, regular way,
in either case as reported on the NYSE Composite Tape, or, if such security is
not listed or admitted to trading on the NYSE, on the principal national
securities exchange on which such security is listed or admitted to trading, or
if such security is not listed or admitted to trading on a national securities
exchange, on the National Market System of the National Association of
Securities Dealers, Inc. or, if such security is not quoted or admitted to
trading on such quotation system, on the principal quotation system on which
such security is listed or admitted to trading or quoted, or, if not listed or
admitted to trading or quoted on any national securities exchange or quotation
system, the average of the closing bid and asked prices of such security in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available in such manner, as furnished by any NYSE member
firm selected from time to time by the Board of Directors of the Company for
that purpose or, if not so available in such manner, as otherwise determined in
good faith by the Board of Directors of the Company.
REDEMPTION
Upon the repayment on the Stated Maturity Date or prepayment prior to the
Stated Maturity Date of the Junior Subordinated Debentures, the proceeds from
such repayment or prepayment shall be applied by the Property Trustee to redeem
a Like Amount (as defined below) of the Trust Securities, upon not less than 30
nor more than 60 days' notice of a date of redemption (the 'Redemption Date') at
the applicable Redemption Price, which shall be equal to (i) in the case of the
repayment of the Junior Subordinated Debentures on the Stated Maturity Date, the
Maturity Redemption Price (equal to the principal of and accrued and unpaid
interest on the Junior Subordinated Debentures), (ii) in the case of the
optional prepayment of the Junior Subordinated Debentures upon the occurrence
and continuation of a Special Event, the Special Event Redemption Price (equal
to the Special Event Prepayment Price in respect of the Junior Subordinated
Debentures) and (iii) in the case of the optional prepayment of the Junior
Subordinated Debentures other than as contemplated in clause (ii) above, the
Optional Redemption Price (equal to the Optional Prepayment Price in respect of
the Junior
24
Subordinated Debentures). See 'Description of Junior Convertible Subordinated
Debentures -- Optional Prepayment' and ' -- Special Event Prepayment.'
'Like Amount' means (i) with respect to a redemption of the Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Junior Subordinated Debentures to be paid in accordance with their
terms and (ii) with respect to a distribution of Junior Subordinated Debentures
upon the liquidation of the Trust, Junior Subordinated Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
holder to whom such Junior Subordinated Debentures are distributed.
The Company will have the option to prepay the Junior Subordinated
Debentures, (i) in whole or in part, on or after the Initial Optional Prepayment
Date, at the applicable Optional Prepayment Price and (ii) in whole but not in
part, at any time, upon the occurrence of a Special Event, at the Special Event
Prepayment Price.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
The Company will have the right at any time to dissolve the Trust and cause
the Junior Subordinated Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust, subject to satisfaction of liabilities
to creditors of the Trust as provided by applicable law. Such right is subject
to the receipt by the Company of any required regulatory approval and to the
Company having received an opinion of counsel to the effect that such
distribution will not be a taxable event to holders of Capital Securities.
The Trust shall automatically dissolve upon the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Company or the
Trust, (ii) the distribution of a Like Amount of the Junior Subordinated
Debentures to the holders of the Trust Securities, if the Company, as holder of
the Common Securities, has given written direction to the Property Trustee to
dissolve the Trust (which direction is optional and, except as described above,
wholly within the discretion of the Company, as holder of the Common
Securities), (iii) redemption of all of the Trust Securities as described under
' -- Redemption' above, (iv) expiration of the term of the Trust and (v) the
entry of an order for the dissolution of the Trust by a court of competent
jurisdiction.
If a dissolution occurs as described in clause (i), (ii), (iv), or (v) of
the preceding paragraph, the Trust will be liquidated by the Administrators as
expeditiously as practicable by distributing, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, to the holders of the
Trust Securities a Like Amount of the Junior Subordinated Debentures, in which
event such holders will be entitled to receive out of the assets of the Trust
legally available for distribution to holders, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, an amount equal to the
aggregate of the Liquidation Amount plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the 'Liquidation
Distribution'). If the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets on hand legally available to pay in full the
aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Capital Securities and the Common Securities shall be paid on a pro
rata basis, except that if a Debenture Event of Default has occurred and is
continuing, the Capital Securities shall have a priority over the Common
Securities. See ' -- Subordination of Common Securities' below.
After the liquidation date is fixed for any distribution of Junior
Subordinated Debentures to holders of the Trust Securities, (i) the Trust
Securities will no longer be deemed to be outstanding, (ii) each registered
global certificate, if any, representing Trust Securities and held by DTC or its
nominee will receive a registered global certificate or certificates
representing the Junior Subordinated Debentures to be delivered upon such
distribution, and (iii) any certificates representing Trust Securities not held
by DTC or its nominee will be deemed to represent Junior Subordinated Debentures
having a principal amount equal to the Liquidation Amount of such Trust
Securities, and bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Trust Securities until such
certificates are presented to the Administrators or their agent for
cancellation, whereupon the Company will issue to such holder, and the Debenture
Trustee will authenticate, a certificate representing such Junior Subordinated
Debentures.
25
There can be no assurance as to the market prices for the Capital
Securities or, if a dissolution and liquidation of the Trust were to occur, for
the Junior Subordinated Debentures that may be distributed in exchange for the
Trust Securities. Accordingly, the Capital Securities that an investor may
purchase, or the Junior Subordinated Debentures that the investor may receive on
dissolution and liquidation of the Trust, may trade at a discount to the price
that the investor paid to purchase the Capital Securities.
REDEMPTION PROCEDURES
If applicable, Trust Securities shall be redeemed at the applicable
Redemption Price with the proceeds from the contemporaneous repayment or
prepayment of the Junior Subordinated Debentures. Any redemption of Trust
Securities shall be made and the applicable Redemption Price shall be payable on
the Redemption Date only to the extent that the Trust has funds legally
available for the payment of such applicable Redemption Price. See also
' -- Subordination of Common Securities' below.
If the Trust gives a notice of redemption in respect of the Capital
Securities, then, by 12:00 noon (New York City time) on the Redemption Date, to
the extent funds are legally available, with respect to the Capital Securities
held by DTC or its nominees, the Property Trustee will pay or cause the Paying
Agent (as defined herein) to pay the Redemption Price to DTC. See ' -- Form,
Denomination, Book-Entry Procedures and Transfer' below. With respect to the
Capital Securities held in certificated form, the Property Trustee, to the
extent funds are legally available, will give irrevocable instructions and
authority to the Paying Agent and will irrevocably deposit with the Paying Agent
for the Capital Securities funds sufficient to pay or cause the Paying Agent to
pay the applicable Redemption Price to the holders thereof upon surrender of
their certificates evidencing the Capital Securities. See ' -- Payment and
Paying Agency' below. Distributions payable on or prior to the Redemption Date
shall be payable to the holders of such Capital Securities on the relevant
Distribution Record Dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited with the Property Trustee
to pay the Redemption Price for the Capital Securities called for redemption,
then all rights of the holders of such Capital Securities will cease, except the
right of the holders of such Capital Securities to receive the applicable
Redemption Price (without interest on such Redemption Price) or to convert the
holder's Capital Securities into Common Stock as described under ' -- Conversion
Rights' above and such Capital Securities will cease to be outstanding. In the
event that any Redemption Date is not a Business Day, then the applicable
Redemption Price payable on such date will be paid on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay). In the event that payment of the applicable Redemption Price is
improperly withheld or refused and not paid either by the Trust or by the
Company pursuant to the Guarantee as described under 'Description of the
Guarantee,' (i) Distributions on Capital Securities called for redemption will
accumulate on the Redemption Price at the then applicable rate, from the
Redemption Date originally established by the Trust to the date such applicable
Redemption Price is actually paid, and (ii) the actual payment date will be the
Redemption Date for purposes of calculating the applicable Redemption Price.
Subject to applicable law (including, without limitation, United States
federal securities law and the regulations of the OTS), the Company or its
subsidiaries may at any time and from time to time purchase outstanding Capital
Securities by tender, in the open market or by private agreement.
Notice of any redemption will be mailed at least 30 days but not more than
60 days prior to the Redemption Date to each holder of Trust Securities at its
registered address. Unless the Company defaults in payment of the applicable
Prepayment Price on, or in the repayment of, the Junior Subordinated Debentures,
on and after the Redemption Date Distributions will cease to accrue on the Trust
Securities called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Capital
Securities and the Common Securities, as applicable, shall be made pro rata
based on the Liquidation Amount of the Capital Securities and Common Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default shall have occurred and be continuing, no payment of
any
26
Distribution on, or applicable Redemption Price of, any of the Common
Securities, and no other payment on account of the redemption, liquidation or
other acquisition of the Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions on all of the outstanding
Capital Securities for all Distribution periods terminating on or prior thereto
or, in the case of Capital Securities called for redemption on a Redemption Date
on or prior thereto, the full amount of the Redemption Price therefor, shall
have been made or provided for, and all funds available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions on,
or Redemption Price of, the Capital Securities then due and payable.
In the case of any Event of Default, the Company as holder of the Common
Securities will be deemed to have waived any right to act with respect to such
Event of Default until the effect of such Event of Default shall have been
cured, waived or otherwise eliminated. Until any such Event of Default has been
so cured, waived or otherwise eliminated, the Property Trustee shall act solely
on behalf of the holders of the Capital Securities and not on behalf of the
Company as holder of the Common Securities, and only the holders of the Capital
Securities will have the right to direct the Property Trustee to act on their
behalf.
EVENTS OF DEFAULT; NOTICE
The occurrence of a Debenture Event of Default (see 'Description of Junior
Convertible Subordinated Debentures -- Debenture Events of Default') constitutes
an 'Event of Default' under the Declaration.
Within 10 business days after the occurrence of any Event of Default
actually known to the Company, the Company shall transmit notice of such Event
of Default to the holders of the Capital Securities, the Administrators and the
Property Trustee, unless such Event of Default shall have been cured or waived.
The Company, as Sponsor, and the Administrators are required to file annually
with the Property Trustee a certificate as to whether or not they are in
compliance with all the conditions and covenants applicable to them under the
Declaration.
If a Debenture Event of Default has occurred and is continuing, the Capital
Securities shall have a preference over the Common Securities as described under
' -- Liquidation of the Trust and Distribution of Junior Subordinated
Debentures' and ' -- Subordination of Common Securities' above.
REMOVAL OF ISSUER TRUSTEES AND ADMINISTRATORS
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee or Administrator may be removed at any time by the holder of
the Common Securities. If a Debenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed at such
time by the holders of a majority in Liquidation Amount of the outstanding
Capital Securities. In no event will the holders of the Capital Securities have
the right to vote to appoint, remove or replace the Administrators, which voting
rights are vested exclusively in the Company as the holder of the Common
Securities. No resignation or removal of an Issuer Trustee or Administrator and
no appointment of a successor trustee or administrator shall be effective until
the acceptance of appointment by the successor trustee or administrator in
accordance with the provisions of the Declaration.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES AND ADMINISTRATORS
Any entity into which the Property Trustee, the Delaware Trustee or any
Administrator that is not a natural person may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Issuer Trustee or Administrator shall
be a party, or any entity succeeding to all or substantially all the corporate
trust business of such Issuer Trustee or Administrator, shall be the successor
of such Issuer Trustee or Administrator under the Declaration, provided such
entity shall be otherwise qualified and eligible.
27
MERGERS, CONVERSIONS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The Trust may not merge or convert with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other Person,
except as described below or as otherwise described in ' -- Liquidation of the
Trust and Distribution of Junior Subordinated Debentures.' The Trust may, at the
request of the Company, as holder of the Common Securities, but without the
consent of the holders of the Capital Securities, merge or convert with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to a trust
organized as such under the laws of any State; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Capital Securities or (b) substitutes for the Capital Securities
other securities having substantially the same terms as the Capital Securities
(the 'Successor Securities') so long as the Successor Securities rank the same
as the Capital Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the Company expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee with respect to the Junior Subordinated
Debentures, (iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the Capital Securities are
then listed or quoted, if any, (iv) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Capital Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Capital Securities (including any Successor Securities) in any
material respect (other than any dilution of such holders' interests in the new
entity), (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Company has
received an opinion from independent counsel to the Trust experienced in such
matters to the effect that (a) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Capital
Securities (including any Successor Securities) in any material respect (other
than any dilution of such holders' interests in the new entity), and (b)
following such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor such successor entity will
be required to register as an investment company under the Investment Company
Act of 1940, as amended (the 'Investment Company Act'), and (viii) the Company
or any permitted successor or assignee owns all of the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
holders of 100% in Liquidation Amount of the Trust Securities, consolidate,
amalgamate, merge or convert with or into, or be replaced by or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge or convert with or into, or replace it if such consolidation,
amalgamation, merger, conversion, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity not to be classified as a grantor
trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF THE DECLARATION
Except as provided below and under ' -- Mergers, Conversions,
Consolidations, Amalgamations or Replacements of the Trust' above and
'Description of the Guarantee -- Amendments and Assignment' and as otherwise
required by law and the Declaration, the holders of the Capital Securities will
have no voting rights.
The Declaration may be amended from time to time by the Company, the
Property Trustee and the Administrators, without the consent of the holders of
the Trust Securities (i) to cure any ambiguity, correct or supplement any
provisions in the Declaration that may be inconsistent with any other provision,
or to make any other provisions with respect to matters or questions arising
under the Declaration, which shall not be inconsistent with the other provisions
of the Declaration, or (ii) to
28
modify, eliminate or add to any provisions of the Declaration to such extent as
shall be necessary to ensure that the Trust will be classified for United States
federal income tax purposes as a grantor trust at all times that any Trust
Securities are outstanding or to ensure that the Trust will not be required to
register as an 'investment company' under the Investment Company Act; provided,
however, that in the case of clause (i), such action shall not adversely affect
in any material respect the interests of the holders of the Trust Securities.
Any amendments of the Declaration pursuant to the foregoing shall become
effective when notice thereof is given to the holders of the Trust Securities.
The Declaration may be amended by the Issuer Trustees, the Administrators and
the Company (i) with the consent of holders representing a majority (based upon
Liquidation Amount) of the outstanding Trust Securities, and (ii) upon receipt
by the Issuer Trustees and the Administrators of an opinion of counsel to the
effect that such amendment or the exercise of any power granted to the Issuer
Trustees or Administrators in accordance with such amendment will not affect the
Trust's status as a grantor trust for United States federal income tax purposes
or the Trust's exemption from status as an 'investment company' under the
Investment Company Act, provided that, without the consent of each holder of
Trust Securities, the Declaration may not be amended to (i) change the amount or
timing of any Distribution or other payment on the Trust Securities or otherwise
adversely affect the amount of any Distribution or other payment required to be
made in respect of the Trust Securities as of a specified date or (ii) restrict
the right of a holder of Trust Securities to institute suit for the enforcement
of any such payment on or after such date.
So long as any Junior Subordinated Debentures are held by the Property
Trustee, the Issuer Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with respect to
the Junior Subordinated Debentures, (ii) waive certain past defaults under the
Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Junior Subordinated
Debentures or (iv) consent to any amendment, modification or termination of the
Indenture or the Junior Subordinated Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the holders of
a majority in Liquidation Amount of all outstanding Capital Securities;
provided, however, that where a consent under the Indenture would require the
consent of each holder of Junior Subordinated Debentures affected thereby, no
such consent shall be given by the Property Trustee without the prior approval
of each holder of the Capital Securities. The Issuer Trustees shall not revoke
any action previously authorized or approved by a vote of the holders of the
Capital Securities except by subsequent vote of such holders. The Property
Trustee shall notify each holder of Capital Securities of any notice of default
with respect to the Junior Subordinated Debentures. In addition to obtaining the
foregoing approvals of such holders of the Capital Securities, prior to taking
any of the foregoing actions, the Issuer Trustees shall obtain an opinion of
counsel experienced in such matters to the effect that such action will not
affect the Trust's status as a grantor trust for United States federal income
tax purposes.
Any required approval of holders of Capital Securities may be given at a
meeting of such holders convened for such purpose or pursuant to written
consent. The Property Trustee will cause a notice of any meeting at which
holders of Capital Securities are entitled to vote, or of any matter upon which
action by written consent of such holders is to be taken, to be given to each
holder of record of Capital Securities in the manner set forth in the
Declaration.
No vote or consent of the holders of Capital Securities will be required
for the Trust to redeem and cancel the Capital Securities in accordance with the
Declaration.
Notwithstanding that holders of the Capital Securities are entitled to vote
or consent under any of the circumstances described above, any of the Capital
Securities that are owned by the Company or any affiliate of the Company shall,
for purposes of such vote or consent, be treated as if they were not
outstanding.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
The Capital Securities to be issued in the Public Offering may be
transferred or exchanged in the manner and at the offices described below.
29
The Capital Securities to be issued in the Public Offering initially will
be represented by one or more Capital Securities in registered, global form
(collectively, the 'Global Capital Securities'). The Global Capital Securities
will be deposited upon issuance with the Property Trustee as custodian for DTC,
in New York, New York, and registered in the name of DTC or its nominee, in each
case for credit to an account of a direct or indirect participant in DTC, as
described below.
Except as set forth below, the Global Capital Securities may be
transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the Global Capital
Securities may not be exchanged for Certificated Capital Securities except in
the limited circumstances described under ' -- Exchange of Book-Entry Capital
Securities for Certificated Capital Securities' below. In addition, transfer of
beneficial interests in the Global Capital Securities will be subject to the
applicable rules and procedures of DTC and its direct or indirect participants,
which may change from time to time.
DEPOSITARY PROCEDURES
DTC has advised the Trust and the Company that DTC is a limited-purpose
trust company created to hold securities for its participating organizations
(collectively, the 'Participants') and to facilitate the clearance and
settlement of transactions in those securities between Participants through
electronic book-entry changes in accounts of its Participants. The Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. Access to DTC's system is also
available to other entities such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a Participant,
either directly or indirectly (collectively, the 'Indirect Participants').
Persons who are not Participants may beneficially own securities held by or on
behalf of DTC only through the Participants or the Indirect Participants. The
ownership interest and transfer of ownership interest of each actual purchaser
of each security held by or on behalf of DTC are recorded on the records of the
Participants and Indirect Participants.
DTC has also advised the Trust and the Company that, pursuant to procedures
established by it, (i) upon deposit of the Global Capital Securities, DTC will
credit the accounts of Participants on behalf of purchasers of the Capital
Securities with portions of the Liquidation Amount of the Global Capital
Securities and (ii) ownership of such interests in the Global Capital Securities
will be shown on, and the transfer of ownership thereof will be effected only
through, records maintained by DTC (with respect to the Participants) or by the
Participants and the Indirect Participants (with respect to other owners of
beneficial interests in the Global Capital Securities).
Investors in the Global Capital Securities may hold their interests therein
directly through DTC if they are Participants in such system, or indirectly
through organizations which are Participants in such system. All interests in a
Global Capital Security may be subject to the procedures and requirements of
DTC. The laws of some states require that certain persons take physical delivery
in certificated form of securities that they own. Consequently, the ability to
transfer beneficial interests in a Global Capital Security to such persons will
be limited to that extent. Because DTC can act only on behalf of Participants,
which in turn act on behalf of Indirect Participants and certain banks, the
ability of a person having beneficial interests in a Global Capital Security to
pledge such interests to persons or entities that do not participate in the DTC
system, or otherwise take actions in respect of such interests, may be affected
by the lack of a physical certificate evidencing such interests. For certain
other restrictions on the transferability of the Capital Securities, see
' -- Exchange of Book-Entry Capital Securities for Certificated Capital
Securities.'
Except as described below, owners of interests in the Global Capital
Securities will not have Capital Securities registered in their name, will not
receive physical delivery of Certificated Capital Securities and will not be
considered the registered owners or holders thereof under the Declaration for
any purpose.
Payments in respect of the Global Capital Security registered in the name
of DTC or its nominee will be payable by the Property Trustee to DTC in its
capacity as the registered holder under the Declaration. Under the terms of the
Declaration, the Property Trustee will treat the persons in whose names the
Capital Securities, including the Global Capital Securities, are registered as
the owners
30
thereof for the purpose of receiving such payments and for any and all other
purposes whatsoever. Consequently, neither the Property Trustee nor any agent
thereof has or will have any responsibility or liability for (i) any aspect of
DTC's records or any Participant's or Indirect Participant's records relating to
or payments made on account of beneficial ownership interests in the Global
Capital Securities, or for maintaining, supervising or reviewing any of DTC's
records or any Participant's or Indirect Participant's records relating to the
beneficial ownership interests in the Global Capital Securities or (ii) any
other matter relating to the actions and practices of DTC or any of its
Participants or Indirect Participants. DTC has advised the Trust and the Company
that its current practice, upon receipt of any payment in respect of securities
such as the Capital Securities, is to credit the accounts of the relevant
Participants with the payment on the payment date, in amounts proportionate to
their respective holdings in Liquidation Amount of beneficial interests in the
relevant security as shown on the records of DTC unless DTC has reason to
believe it will not receive payment on such payment date. Payments by the
Participants and the Indirect Participants to the beneficial owners of Capital
Securities will be governed by standing instructions and customary practices and
will be the responsibility of the Participants or the Indirect Participants and
will not be the responsibility of DTC, the Property Trustee, the Trust or the
Company. Neither the Trust nor the Company or the Property Trustee will be
liable for any delay by DTC or any of its Participants in identifying the
beneficial owners of the Capital Securities, and the Trust or the Company and
the Property Trustee may conclusively rely on and will be protected in relying
on instructions from DTC or its nominee for all purposes.
Beneficial owners of Capital Securities who desire to convert their Capital
Securities into Common Stock should contact their brokers or other Participants
or Indirect Participants to obtain information on procedures, including proper
forms and cut-off times, for submitting such requests. See ' -- Conversion
Rights.'
DTC has advised the Trust and the Company that it will take any action
permitted to be taken by a holder of Capital Securities only at the direction of
one or more Participants to whose account with DTC interests in the Global
Capital Securities are credited and only in respect of such portion of the
Liquidation Amount of the Capital Securities as to which such Participant or
Participants has or have given such direction. However, if there is an Event of
Default under the Declaration, DTC reserves the right to exchange the Global
Capital Securities for Certificated Capital Securities and to distribute such
Capital Securities to its Participants.
The information in this section concerning DTC and book-entry systems has
been obtained from sources that the Trust and the Company believe to be
reliable, but neither the Trust nor the Company takes responsibility for the
accuracy thereof.
EXCHANGE OF BOOK-ENTRY CAPITAL SECURITIES FOR CERTIFICATED CAPITAL SECURITIES
A Global Capital Security is exchangeable for Certificated Capital
Securities if (i) DTC (x) notifies the Company that it is unwilling or unable to
continue as depositary for the Global Capital Security and the Company thereupon
fails to appoint a successor depositary within 90 days or (y) has ceased to be a
clearing agency registered under the Exchange Act and the Company thereupon
fails to appoint a successor depositary within 90 days, (ii) the Company in its
sole discretion elects to cause the issuance of the Capital Securities in
certificated form or (iii) there shall have occurred and be continuing an Event
of Default or any event which after notice or lapse of time or both would be an
Event of Default under the Declaration. In addition, beneficial interests in a
Global Capital Security may be exchanged for Certificated Capital Securities
upon request but only upon at least 20 days prior written notice given to the
Property Trustee by or on behalf of DTC in accordance with customary procedures.
In all cases, Certificated Capital Securities delivered in exchange for any
Global Capital Security or beneficial interests therein will be registered in
the names, and issued in any approved denominations, requested by or on behalf
of DTC (in accordance with its customary procedures).
PAYMENT AND PAYING AGENCY
Payments in respect of the Capital Securities held in global form shall be
made to DTC, which shall credit the relevant accounts at DTC on the applicable
Distribution Dates or, in respect of the Capital
31
Securities that are not held by DTC, such payments shall be made by check mailed
to the address of the holder entitled thereto as such address shall appear on
the register. The paying agent (the 'Paying Agent') shall initially be the
Property Trustee and any co-paying agent chosen by the Property Trustee and
acceptable to the Company, as holder of the Common Securities. The Paying Agent
shall be permitted to resign as Paying Agent upon 30 days written notice to the
Property Trustee and the Company. In the event that the Property Trustee shall
no longer be the Paying Agent, the Company, as holder of the Common Securities,
shall appoint a successor (which shall be a bank or trust company) to act as
Paying Agent.
REGISTRAR, TRANSFER AGENT AND CONVERSION AGENT
The Property Trustee will act as registrar, transfer agent and Conversion
Agent for the Capital Securities.
Registration of transfers of the Capital Securities will be effected
without charge by or on behalf of the Trust but upon payment of any tax or other
governmental charges that may be imposed in connection with any transfer or
exchange. The Trust will not be required to register or cause to be registered
the transfer of any Capital Securities (i) during the period starting 15 days
before the mailing of a notice of redemption and ending on the date of such
mailing and (ii) after they have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee is under no obligation to exercise any of the powers
vested in it by the Declaration at the request of any holder of Trust Securities
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred thereby. If no Event of Default has occurred
and is continuing and the Property Trustee is required to decide between
alternative causes of action, construe ambiguous provisions in the Declaration
or is unsure of the application of any provision of the Declaration, and the
matter is not one on which holders of the Capital Securities or the Common
Securities are entitled under the Declaration to vote, then the Property Trustee
shall take such action as is directed by the Company and, if not so directed,
shall take such action as it deems advisable and in the best interests of the
holders of the Trust Securities and will have no liability except for its own
bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrators are authorized and directed to conduct the affairs of
and to operate the Trust in such a way that the Trust will not be deemed to be
an 'investment company' required to be registered under the Investment Company
Act, so that the Trust will be classified for United States federal income tax
purposes as a grantor trust and so that the Junior Subordinated Debentures will
be treated as indebtedness of the Company for United States federal income tax
purposes. In this connection, the Company and the Administrators are authorized
to take any action, not inconsistent with applicable law, the certificate of
trust of the Trust or the Declaration, that the Company and the Administrators
determine in their discretion to be necessary or desirable for such purposes, as
long as such action does not materially adversely affect the interests of the
holders of the Trust Securities.
Holders of the Trust Securities have no preemptive or similar rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge any
of its assets.
DESCRIPTION OF JUNIOR CONVERTIBLE SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued under an Indenture (the
'Indenture'), between the Company and The Bank of New York, as trustee (the
'Debenture Trustee'). The Indenture will be qualified under the Trust Indenture
Act. This summary of certain terms and provisions of the Junior Subordinated
Debentures and the Indenture does not purport to be complete and, where
reference is made to particular provisions of the Indenture, such provisions,
including the
32
definitions of certain terms, some of which are not otherwise defined herein,
are qualified in their entirety by reference to all of the provisions of the
Indenture and the Trust Indenture Act.
GENERAL
Concurrently with the issuance of the Capital Securities, the Trust will
invest the proceeds thereof, together with the consideration paid by the Company
for the Common Securities, in Junior Subordinated Debentures issued by the
Company. The Junior Subordinated Debentures will bear interest at the annual
rate of 8.00% of the principal amount thereof, payable quarterly in arrears on
January 31, April 30, July 31 and October 31 of each year (each, an 'Interest
Payment Date'), commencing January 31, 1998, to the person in whose name each
Junior Subordinated Debenture is registered, subject to certain exceptions, at
the close of business on the fifteenth day of the month in which the relevant
Interest Payment Date falls (each, a 'Payment Record Date'). It is anticipated
that, until the liquidation, if any, of the Trust, each Junior Subordinated
Debenture will be held in the name of the Property Trustee in trust for the
benefit of the holders of Trust Securities. The amount of interest payable for
any period will be computed on the basis of a 360-day year of twelve 30-day
months and, for any period of less than a full calendar month, the number of
days elapsed in such month. In the event that any date on which interest is
payable on the Junior Subordinated Debentures is not a Business Day, then
payment of the interest payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in respect
of any such delay), with the same force and effect as if made on the date such
payment was originally payable. Accrued interest that is not paid on the
applicable Interest Payment Date will bear additional interest on the amount
thereof (to the extent permitted by law) at the rate per annum of 8.00% thereof,
compounded quarterly. The term 'interest,' as used herein, shall include
quarterly interest payments, interest on quarterly interest payments not paid on
the applicable Interest Payment Date and Additional Sums (as defined herein), as
applicable. The Junior Subordinated Debentures will mature on October 31, 2027
(the 'Stated Maturity Date').
The Junior Subordinated Debentures will rank pari passu with all Other
Debentures and will be unsecured and subordinate and rank junior in right of
payment to the extent and in the manner set forth in the Indenture to all Senior
Indebtedness of the Company. See ' -- Subordination' below. Because the Company
is a holding company, the right of the Company to participate in any
distribution of assets of any subsidiary upon such subsidiary's liquidation or
reorganization or otherwise (and thus the ability of holders of the Capital
Securities to benefit indirectly from such distribution) is subject to the prior
claims of creditors of that subsidiary (including depositors in the case of the
Bank), except to the extent that the Company may itself be recognized as a
creditor of that subsidiary. At June 30, 1997, the subsidiaries of the Company
had total liabilities (excluding liabilities owed to the Company) of
approximately $3.1 billion, including deposits, in the case of the Bank.
Accordingly, the Capital Securities will be effectively subordinated to all
existing and future liabilities of the Company's subsidiaries, and holders of
Capital Securities should look only to the assets of the Company for payments on
the Capital Securities. The Indenture does not limit the incurrence or issuance
of other secured or unsecured debt of the Company, including Senior
Indebtedness, whether under any other indenture that the Company may enter into
in the future or otherwise, and does not limit the incurrence or issuance of
secured or unsecured debt by the Company's subsidiaries. See ' -- Subordination'
below.
In addition, as the Company is a non-operating holding company, almost all
of the operating assets of the Company are owned by the Company's subsidiaries.
The Company relies primarily on dividends from such subsidiaries to meet its
obligations for payment of principal and interest on its outstanding debt
obligations, if any, and corporate expenses. The Bank is subject to certain
restrictions imposed by federal law on any extensions of credit to, and certain
other transactions with, the Company and certain other affiliates, and on
investments in stock or other securities thereof. Such restrictions prevent the
Company and such other affiliates from borrowing from the Bank unless the loans
are secured by various types of collateral. Further, such secured loans, other
transactions and investments by the Bank are generally limited in amount as to
the Company and as to each of such other affiliates to 10% of the Bank's capital
and surplus and as to the Company and all of such other affiliates to an
aggregate of 20% of the Bank's capital and surplus. In addition, payment of
dividends to the Company by the Bank is
33
subject to ongoing review by banking regulators and is subject to various
statutory limitations and in certain circumstances requires prior approval by
banking regulatory authorities. In addition, in 1988 the Bank issued Series A
and Series B subordinated capital notes, and the agreements governing such notes
restrict the amounts which the Bank can pay to the Company by way of cash
dividends. Under current OTS regulations and restrictions imposed by the Bank's
subordinated indebtedness referred to above, at July 1, 1997, the Bank could
have declared dividends to the Company of approximately $11.5 million, of which
approximately $8.0 million has been subsequently declared and paid to the
Company. Federal and state regulatory agencies also have the authority to limit
further the Bank's payment of dividends based on other factors, such as the
maintenance of adequate capital for the Bank, which could reduce the amount of
dividends otherwise payable.
FORM, REGISTRATION AND TRANSFER
If the Junior Subordinated Debentures are distributed to the holders of the
Capital Securities issued in the Public Offering, the Junior Subordinated
Debentures may be represented by one or more global certificates registered in
the name of Cede & Co. as the nominee of DTC. The depositary arrangements for
such Junior Subordinated Debentures are expected to be substantially similar to
those in effect for the Capital Securities issued in the Public Offering. For a
description of DTC and the terms of the depositary arrangements relating to
payments, transfers, voting rights, redemptions and other notices and other
matters, see 'Description of Capital Securities -- Form, Denomination,
Book-Entry Procedures and Transfer.'
PAYMENT AND PAYING AGENTS
Payment of principal of and premium, if any, and any interest on Junior
Subordinated Debentures will be made at the office of the Debenture Trustee in
The City of New York or at the office of such Paying Agent or Paying Agents as
the Company may designate from time to time, except that at the option of the
Company payment of any interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the register for
Junior Subordinated Debentures or (ii) by transfer to an account maintained by
the Person entitled thereto as specified in such register, provided that proper
transfer instructions have been received by the relevant Record Date. Payment of
any interest on any Junior Subordinated Debenture will be made to the Person in
whose name such Junior Subordinated Debenture is registered at the close of
business on the Payment Record Date for such interest, except in the case of
defaulted interest. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent; however, the Company will
at all times be required to maintain a Paying Agent in each place of payment for
the Junior Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or
then held by the Company in trust, for the payment of the principal of and
premium, if any, or interest on any Junior Subordinated Debenture and remaining
unclaimed for two years after such principal and premium, if any, or interest
has become due and payable shall, at the request of the Company, be repaid to
the Company and the holder of such Junior Subordinated Debenture shall
thereafter look, as a general unsecured creditor, only to the Company for
payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no Debenture Event of Default has occurred and is continuing,
the Company will have the right under the Indenture at any time during the term
of the Junior Subordinated Debentures to defer the payment of interest at any
time or from time to time for a period not exceeding 20 consecutive quarters
with respect to each Extension Period, provided that no Extension Period will
end on a day other than an Interest Payment Date for the Junior Subordinated
Debentures or extend beyond the Stated Maturity Date. At the end of an Extension
Period, the Company must pay all interest then accrued and unpaid (together with
interest thereon accrued at the annual rate of 8.00%, compounded quarterly, to
the extent permitted by applicable law). During an Extension Period, interest
will continue to accrue and, if the Junior Subordinated Debentures have been
distributed to holders of the Trust Securities, holders of Junior Subordinated
Debentures (or holders of the Trust Securities while Trust
34
Securities are outstanding) will be required to accrue OID in respect of the
stated interest on the Capital Securities for United States federal income tax
purposes prior to the receipt of cash attributable to such income. See 'Certain
Federal Income Tax Considerations -- Interest, Original Issue Discount, Premium
and Market Discount.'
During any such Extension Period, the Company may not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock, (ii)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company (including any Other
Debentures) that rank pari passu with or junior in right of payment to the
Junior Subordinated Debentures or (iii) make any guarantee payments with respect
to any guarantee by the Company of any securities of any subsidiary of the
Company (including Other Guarantees) if such guarantee ranks pari passu with or
junior in right of payment to the Junior Subordinated Debentures, other than (a)
dividends or distributions in shares of or options, warrants or rights to
subscribe for or purchase shares of, Common Stock or preferred stock of the
Company, (b) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Guarantee, (d) as a direct result of, and only to the
extent required in order to avoid the issuance of fractional shares of capital
stock following, a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock, (e) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (f) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees or any of the Company's dividend
reinvestment plans.
Prior to the termination of any such Extension Period, the Company may
further extend such Extension Period, provided that such extension does not
cause such Extension Period to exceed 20 consecutive quarters or to extend
beyond the Stated Maturity Date. Upon the termination of any such Extension
Period and the payment of all amounts then due on any Interest Payment Date, the
Company may elect to begin a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an Extension Period,
except at the end thereof. The Company must give the Property Trustee, the
Administrators and the Debenture Trustee notice of its election of any Extension
Period (or an extension thereof) at least five Business Days prior to the
earlier of (i) the date the Distributions on the Trust Securities would have
been payable except for the election to begin or extend such Extension Period or
(ii) the date the Administrators are required to give notice to any securities
exchange or to holders of Capital Securities of the Distribution Record Date or
the date such Distributions are payable, but in any event not less than five
Business Days prior to such record date. The Debenture Trustee shall give notice
of the Company's election to begin or extend a new Extension Period to the
holders of the Capital Securities. There is no limitation on the number of times
that the Company may elect to begin an Extension Period.
OPTIONAL PREPAYMENT
The Junior Subordinated Debentures will be prepayable, in whole or in part,
at the option of the Company, on or after the Initial Optional Prepayment Date,
at a prepayment price (the 'Optional Prepayment Price') equal to 100% of the
outstanding principal amount of the Junior Subordinated Debentures to be
prepaid, plus accrued interest thereon to the date of prepayment.
SPECIAL EVENT PREPAYMENT
If a Special Event shall occur and be continuing, the Company may, at any
time prior to or after the Initial Optional Prepayment Date, within 90 days
after the occurrence of the Special Event, at its option, prepay the Junior
Subordinated Debentures in whole, but not in part, at a prepayment price (the
'Special Event Prepayment Price') equal to 100% of the principal amount of such
Junior Subordinated Debentures plus accrued and unpaid interest thereon to the
date of prepayment.
35
A 'Special Event' means a Tax Event, a Regulatory Capital Event or an
Investment Company Event, as the case may be.
A 'Tax Event' means (a) the receipt by the Company and the Trust of an
opinion of Weil, Gotshal & Manges LLP or any other nationally recognized tax
counsel experienced in such matters, to the effect that as a result of (i) any
amendment to, clarification of, or change (including any announced prospective
change) in, the laws or any regulations thereunder of the United States or any
political subdivision or taxing authority thereof or therein, (ii) any amendment
to, clarification of, or change in, an interpretation or application of any such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination or the
publication of an explanation of legislation by the staff of the Joint Committee
on Taxation), (iii) any interpretation or pronouncement that provides for a
position with respect to such laws or regulations that differs from the
theretofore generally accepted position or (iv) any judicial decision,
administrative pronouncement, ruling, regulatory procedure, notice, announcement
(including any notice or announcement of intent to adopt procedures or
regulations) or any other actions taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case, on or after the Issue Date, there is more
than an insubstantial risk that (x) the Trust is or within 90 days will be
subject to United States federal income tax with respect to income received or
accrued on the Junior Subordinated Debentures, (y) interest payable by the
Company on the Junior Subordinated Debentures is not or within 90 days will not
be deductible by the Company, in whole or in part, for United States federal
income tax purposes, or (z) the Trust is or within 90 days will be subject to
more than a de minimis amount of other taxes, duties or other governmental
charges, or (b) a proposed audit adjustment by a taxing authority which, if
sustained, would result in any of the events described in clauses (x), (y) or
(z) above (without regard to the 90-day period referred to therein).
A 'Regulatory Capital Event' means the receipt by the Company and the Trust
of an opinion of Weil, Gotshal & Manges LLP or any other independent bank
regulatory counsel experienced in such matters, to the effect that, as a result
of (a) any amendment to, or change (including any announced prospective change)
in, the laws (or any regulations thereunder) of the United States or any rules,
guidelines or policies of the OTS, the Board of Governors of the Federal Reserve
System (the 'Federal Reserve') or any other federal bank regulatory agency or
(b) any official administrative pronouncement or judicial decision interpreting
or applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the Issue Date, (i) the
Company is or within 90 days will be subject to capital adequacy requirements
and such requirements do not or will not permit the Capital Securities to
constitute, subject to limitations on inclusion of the Capital Securities as
Tier 1 capital imposed by Federal Reserve capital guidelines in effect as of the
date of this Prospectus, Tier 1 capital (or its then-equivalent) or (ii) the
amount of net proceeds received from the sale of the Capital Securities and
contributed by the Company to the Bank does not or within 90 days will not
constitute Tier 1 (core) capital (or its then-equivalent).
An 'Investment Company Event' means the receipt by the Company and the
Trust of an opinion of Weil, Gotshal & Manges LLP or any other nationally
recognized counsel experienced in such matters, to the effect that (a) as a
result of any amendment to, or change (including any announced prospective
change) in, the laws or any regulations thereunder of the United States or any
political subdivision or authority thereof or therein or (b) any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the Issue Date, there is more
than an insubstantial risk that the Trust is or within 90 days will be
considered an 'investment company' that is required to be registered under the
Investment Company Act.
'Additional Sums' means such additional amounts as may be necessary in
order that the amount of Distributions then due and payable by the Trust on the
outstanding Capital Securities and Common Securities shall not be reduced as a
result of any additional taxes, duties or other governmental charges to which
the Trust has become subject as a result of a Tax Event.
36
Notice of any prepayment will be mailed at least 30 days but not more than
60 days before the prepayment date to each holder of Junior Subordinated
Debentures to be prepaid at its registered address. Unless the Company defaults
in payment of the prepayment price, on and after the prepayment date interest
ceases to accrue on such Junior Subordinated Debentures called for prepayment.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Company will pay as
additional amounts on the Junior Subordinated Debentures the Additional Sums.
CERTAIN COVENANTS OF THE COMPANY
If (1) a Debenture Event of Default occurs (other than solely a default as
described in paragraph (iii) under ' -- Debenture Events of Default' below), (2)
there shall have occurred any event of which the Company has actual knowledge
that (a) with the giving of notice or the lapse of time, or both, would be, a
Debenture Event of Default (other than solely a default as described in
paragraph (iii) under ' -- Debenture Events of Default') and (b) in respect of
which the Company shall not have taken reasonable steps to cure, (3) the Company
shall be in default with respect to its payment of any obligations under the
Guarantee or (4) the Company shall have given notice of its election of an
Extension Period, or any extension thereof, as provided in the Indenture and
shall not have rescinded such notice, and such Extension Period, or any
extension thereof, shall have commenced, then the Company will not (i) declare
or pay any dividends or distributions on, or redeem, purchase, acquire, or make
a liquidation payment with respect to, any of the Company's capital stock or
(ii) make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Company (including Other
Debentures) that rank pari passu with or junior in right of payment to the
Junior Subordinated Debentures or (iii) make any guarantee payments with respect
to any guarantee by the Company of any securities of any subsidiary of the
Company (including Other Guarantees) if such guarantee ranks pari passu or
junior in right of payment to the Junior Subordinated Debentures, other than (a)
dividends or distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, Common Stock or preferred stock of the
Company, (b) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Guarantee, (d) as a direct result of, and only to the
extent required in order to avoid the issuance of fractional shares of capital
stock following, a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock, (e) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (f) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees or any of the Company's dividend
reinvestment plans.
The Company will also covenant to (i) maintain 100% ownership of the Common
Securities; provided, however, that any permitted successor of the Company under
the Indenture may succeed to the Company's ownership of the Common Securities,
(ii) use its reasonable efforts to cause the Trust (a) to remain a statutory
business trust, except in connection with the distribution of Junior
Subordinated Debentures to the holders of Trust Securities in liquidation of the
Trust, the redemption of all of the Trust Securities of the Trust, or certain
mergers, consolidations or amalgamations, each as permitted by the Declaration
of the Trust, and (b) to continue not to be classified as an association taxable
as a corporation or a partnership for United States federal income tax purposes
and (iii) use its reasonable efforts to cause each holder of Trust Securities to
be treated as owning an undivided beneficial interest in the Junior Subordinated
Debentures.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Junior Subordinated Debentures constitutes a
'Debenture Event of Default' (whatever the reason for such Debenture Event of
Default and whether it shall be voluntary or involuntary or be effected by
37
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) failure for 30 days to pay any interest on the Junior Subordinated
Debentures or any Other Debentures, when due (subject to the deferral of
any due date in the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on the Junior
Subordinated Debentures or any Other Debentures when due whether at
maturity, upon redemption, by declaration of acceleration of maturity or
otherwise; or
(iii) failure to observe or perform in any material respect certain
other covenants contained in the Indenture for 90 days after written notice
to the Company from the Debenture Trustee or the holders of at least 25% in
aggregate outstanding principal amount of Junior Subordinated Debentures;
or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Company.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Debenture
Trustee. The Debenture Trustee or the holders of not less than 25% in aggregate
outstanding principal amount of the Junior Subordinated Debentures may declare
the principal due and payable immediately upon a Debenture Event of Default. The
holders of a majority in aggregate outstanding principal amount of the Junior
Subordinated Debentures may annul such declaration and waive the default if the
default (other than the nonpayment of the principal of the Junior Subordinated
Debentures which has become due solely by such acceleration) has been cured and
a sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures affected thereby may, on behalf of the holders of
all the Junior Subordinated Debentures, waive any past default except a default
in the payment of principal of or premium, if any, or interest on, the Junior
Subordinated Debentures (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and premium, if any, and principal
due otherwise than by acceleration has been deposited with the Debenture
Trustee) or a default in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of the holder of
each outstanding Junior Subordinated Debenture.
The Indenture requires the annual filing by the Company with the Debenture
Trustee of a certificate as to the absence of certain defaults under the
Indenture.
The Indenture provides that the Debenture Trustee may withhold notice of a
Debenture Event of Default from the holders of the Junior Subordinated
Debentures (except a Debenture Event of Default in payment of principal of, or
of interest or premium on, the Junior Subordinated Debentures) if the Debenture
Trustee considers it in the interest of such holders to do so.
CONVERSION OF THE JUNIOR SUBORDINATED DEBENTURES
Junior Subordinated Debentures will be convertible at any time prior to the
earlier of (i) 5:00 p.m. (New York City time) on the Business Day immediately
preceding the date of repayment of such Junior Subordinated Debentures, whether
at maturity or upon prepayment, and (ii) 5:00 p.m. (New York City time) on the
Conversion Termination Date (if any), into Common Stock at the option of the
holders of the Junior Subordinated Debentures at the Conversion Price referred
to on the cover page of this Prospectus, subject to the Conversion Price
adjustments described under 'Description of Capital Securities -- Conversion
Rights.' The Trust will covenant not to convert Junior Subordinated Debentures
held by it except pursuant to a conversion request delivered to the Conversion
Agent by a holder of Capital Securities. Upon surrender of a Capital Security to
the Conversion Agent for conversion, the Trust will distribute $25.00 principal
amount of the Junior Subordinated Debentures to the Conversion Agent on behalf
of the holder of the Capital Security so converted, whereupon the Conversion
Agent will convert such Junior Subordinated Debentures into Common Stock on
behalf of
38
such holder. The Company's delivery to the holders of the Junior Subordinated
Debentures (through the Conversion Agent) of the fixed number of shares of
Common Stock into which the Junior Subordinated Debentures are convertible
(together with the cash payment, if any, in lieu of fractional shares) will be
deemed to satisfy the Company's obligation to pay the principal amount of the
Junior Subordinated Debentures so converted, and the accrued and unpaid interest
thereon attributable to the period from the last date to which interest has been
paid or duly provided for; provided, however, that if any Junior Subordinated
Debenture is converted after a Payment Record Date, the interest payable on the
related Interest Payment Date with respect to such Junior Subordinated Debenture
shall be paid to the Trust (which will distribute such interest to the holder of
such Junior Subordinated Debentures on the Payment Record Date) or other holder
of such Junior Subordinated Debenture on the Payment Record Date, as the case
may be, despite such conversion; provided, further, that if notice of prepayment
of Junior Subordinated Debentures is mailed or otherwise given to holders of
Junior Subordinated Debentures or the Trust issues a press release announcing a
Conversion Termination Date, then, if any holder of Junior Subordinated
Debentures converts any Junior Subordinated Debentures into Common Stock on any
date on or after the date on which such notice of prepayment is mailed or
otherwise given or the date of such press release, as the case may be, and if
such date of conversion falls on any day from and including the first day of an
Extension Period and on or prior to the Interest Payment Date on which such
Extension Period ends, such converting holder shall be entitled to receive
either (i) if the date of such conversion falls after a Payment Record Date and
on or prior to the next succeeding Interest Payment Date, all accrued and unpaid
interest on such Junior Subordinated Debentures to such Interest Payment Date or
(ii) if the date of such conversion does not fall on a date described in clause
(i) above, all accrued and unpaid interest on such Junior Subordinated
Debentures to the most recent Interest Payment Date prior to the date of such
conversion, which interest shall, in either such case, be paid to such
converting holder, unless the date of conversion of such Junior Subordinated
Debentures is on or prior to the Interest Payment Date upon which such Extension
Period ends and after the Payment Record Date for such Interest Payment Date, in
which case such interest shall be paid to the person who was the holder of such
Junior Subordinated Debentures (or one or more predecessor Junior Subordinated
Debentures) at 5:00 p.m. (New York City time) on such Payment Record Date, which
amount shall be simultaneously distributed to the holders of the Capital
Securities so that any holder of Capital Securities who delivers such Capital
Securities for conversion (or who held such converted Capital Securities at 5:00
p.m. (New York City time) on the Payment Record Date for the Interest Payment
Date upon which such Extension Period ends, as the case may be) under the
circumstances and during the periods described above will be entitled to receive
accumulated and unpaid Distributions in a corresponding amount. See 'Description
of Capital Securities -- Conversion Rights' and ' -- Redemption.'
On and after October 31, 2001, the Company may, at its option, terminate
the conversion rights of holders of the Junior Subordinated Debentures if (i)
the Company is then current in the payment of interest on the Junior
Subordinated Debentures (except to the extent that the payment of interest has
been duly deferred as the result of an Extension Period) and (ii) for at least
20 trading days within any period of 30 consecutive trading days ending on or
after October 31, 2001, including the last trading day of such period, the
Closing Price of the Common Stock shall have exceeded 110% of the then
applicable Conversion Price of the Junior Subordinated Debentures. In order to
exercise this conversion termination option, the Company must cause the Trust to
issue (or, if the Junior Subordinated Debentures shall have been distributed to
holders of the Capital Securities following a Special Event, the Company must
issue) a press release for publication on the Dow Jones News Service or on a
comparable news service announcing the Conversion Termination Date prior to the
opening of business on the second trading day after a period in which the
condition in the preceding sentence has been met, but in no event prior to
October 31, 2001. The press release shall announce the Conversion Termination
Date and provide the Conversion Price and the Closing Price of the Capital
Securities and the Common Stock, in each case as of the close of business on the
trading day next preceding the date of the press release. The Company is also
required to give notice by first-class mail to holders of the Junior
Subordinated Debentures in the manner provided for holders of Capital Securities
under 'Description of Capital Securities -- Conversion Rights -- Termination of
Conversion Rights.' The Conversion Termination Date will be a Business Day
selected by the Company which is not less than 30
39
nor more than 60 calendar days after the date on which such press release is
issued. In the event that the Company exercises its conversion termination
option, conversion rights will expire at 5:00 p.m. (New York City time) on the
Conversion Termination Date. In the event that the Company has not exercised its
conversion termination option and the Junior Subordinated Debentures are
otherwise called for prepayment, the Junior Subordinated Debentures will be
convertible at any time prior to 5:00 p.m. (New York City time) on the Business
Day immediately preceding the date of such prepayment and in any other case at
any time prior to 5:00 p.m. (New York City time) on the Business Day immediately
preceding the Stated Maturity Date of the Junior Subordinated Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Debenture Event of Default shall have occurred and be continuing and
shall be attributable to the failure of the Company to pay interest or premium,
if any, on or principal of the Junior Subordinated Debentures on the due date, a
holder of Capital Securities may institute a Direct Action. A holder of Capital
Securities may, to the fullest extent permitted by law, also institute an action
to enforce the rights of the Property Trustee if the Property Trustee fails to
enforce its rights as the holder of the Junior Subordinated Debentures. The
Company may not amend the Indenture to remove the foregoing right to bring a
Direct Action without the prior written consent of the holders of all of the
Capital Securities. Notwithstanding any payments made to a holder of Capital
Securities by the Company in connection with a Direct Action, the Company shall
remain obligated to pay the principal of or premium, if any, or interest on, the
Junior Subordinated Debentures, and the Company shall be subrogated to the
rights of the holder of such Capital Securities with respect to payments on the
Capital Securities to the extent of any payments made by the Company to such
holder in any Direct Action.
The holders of the Capital Securities will not be able to exercise directly
any remedies, other than those set forth in the preceding paragraph, available
to the holders of the Junior Subordinated Debentures. See 'Description of
Capital Securities -- Events of Default; Notice.'
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Company shall not consolidate with or merge
into any other Person or convey, transfer or lease its properties and assets as
an entirety or substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to the
Company, unless: (i) in case the Company consolidates with or merges into
another Person or conveys or transfers its properties and assets substantially
as an entirety to any Person, the successor Person is organized under the laws
of the United States or any State or the District of Columbia, and such
successor Person expressly assumes the Company's obligations on the Junior
Subordinated Debentures, (ii) immediately after giving effect thereto, no
Debenture Event of Default, and no event which, after notice or lapse of time or
both, would become a Debenture Event of Default, shall have occurred and be
continuing, and (iii) certain other conditions as prescribed in the Indenture
are met.
The general provisions of the Indenture do not afford holders of the Junior
Subordinated Debentures protection in the event of a highly leveraged or other
transaction involving the Company that may adversely affect holders of the
Junior Subordinated Debentures.
MODIFICATION OF THE INDENTURE
From time to time the Company and the Debenture Trustee may, without the
consent of the holders of Junior Subordinated Debentures, amend, waive or
supplement the Indenture for specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies; provided that, in any such case,
such action does not materially adversely affect the interest of the holders of
Junior Subordinated Debentures. The Indenture contains provisions permitting the
Company and the Debenture Trustee, with the consent of the holders of a majority
in principal amount of the Junior Subordinated Debentures, to modify the
Indenture in a manner affecting the rights of the holders of Junior Subordinated
Debentures; provided that no such modification may, without the consent of the
holders of each outstanding Junior Subordinated Debenture so affected, (i)
change the Stated Maturity
40
Date, or reduce the principal amount of the Junior Subordinated Debentures or
reduce the rate or extend the time of payment of interest thereon or (ii) reduce
the percentage of principal amount of Junior Subordinated Debentures the holders
of which are required to consent to any such modification of the Indenture.
SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation (i) have become due and payable or (ii) will become due and payable
at maturity within one year, and the Company deposits or causes to be deposited
with the Debenture Trustee funds, in trust, for the purpose and in an amount
sufficient to pay and discharge the entire indebtedness on the Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation, for the principal and premium, if any, and interest to the date of
the deposit or to the Stated Maturity Date, as the case may be, then the
Indenture will cease to be of further effect (except as to the Company's
obligations to pay all other sums due pursuant to the Indenture and to provide
the officers' certificates and opinions of counsel described therein), and the
Company will be deemed to have satisfied and discharged the Indenture.
SUBORDINATION
In the Indenture, the Company has agreed that any Junior Subordinated
Debentures issued thereunder will be subordinate and junior in right of payment
to all Senior Indebtedness to the extent provided in the Indenture. Upon any
payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Company, the holders of Senior Indebtedness will
first be entitled to receive payment in full of all Allocable Amounts (as
defined below) in respect of such Senior Indebtedness before the holders of
Junior Subordinated Debentures will be entitled to receive or retain any payment
in respect thereof.
In the event of the acceleration of the maturity of Junior Subordinated
Debentures, the holders of all Senior Indebtedness outstanding at the time of
such acceleration will first be entitled to receive payment in full of all
Allocable Amounts due in respect of such Senior Indebtedness before the holders
of Junior Subordinated Debentures will be entitled to receive or retain any
payment in respect of the Junior Subordinated Debentures.
No payments on account of principal or premium, if any, or interest, if
any, in respect of the Junior Subordinated Debentures may be made if there shall
have occurred and be continuing a default in any payment with respect to Senior
Indebtedness, or an event of default with respect to any Senior Indebtedness
resulting in the acceleration of the maturity thereof, or if any judicial
proceeding shall be pending with respect to any such default.
'Allocable Amounts,' when used with respect to any Senior Indebtedness,
means all amounts due or to become due on such Senior Indebtedness less, if
applicable, any amount which would have been paid to, and retained by, the
holders of such Senior Indebtedness (whether as a result of the receipt of
payments by the holders of such Senior Indebtedness from the Company or any
other obligor thereon or from any holders of, or trustee in respect of, other
indebtedness that is subordinate and junior in right of payment to such Senior
Indebtedness pursuant to any provision of such indebtedness for the payment over
of amounts received on account of such indebtedness to the holders of such
Senior Indebtedness or otherwise) but for the fact that such Senior Indebtedness
is subordinate or junior in right of payment to (or subject to a requirement
that amounts received on such Senior Indebtedness be paid over to obligees on)
trade accounts payable or accrued liabilities arising in the ordinary course of
business.
'Indebtedness' means (i) any obligation of, or any obligation guaranteed
by, the Company for the repayment of borrowed money, whether or not evidenced by
bonds, debentures, notes or other written instruments and any deferred
obligation for the payment of the purchase price of property or assets acquired
other than in the ordinary course of business and (ii) all indebtedness of the
Company for
41
claims in respect of derivative products such as interest and foreign exchange
rate contracts, commodity contracts and similar arrangements, whether
outstanding on the date of execution of the Indenture or thereafter created,
assumed or incurred. For purposes of this definition 'claim' has the meaning
assigned in Section 101(5) of the Bankruptcy Code of 1978, as amended and in
effect on the date of the execution of the Indenture.
'Indebtedness Ranking on a Parity with the Junior Subordinated Debentures'
means Indebtedness, whether outstanding on the date of execution of the
Indenture or thereafter created, assumed or incurred, which specifically by its
terms ranks equally with and not prior to the Junior Subordinated Debentures in
the right of payment upon the happening of the dissolution or winding-up or
liquidation or reorganization of the Company. The securing of any Indebtedness,
otherwise constituting Indebtedness Ranking on a Parity with the Junior
Subordinated Debentures, shall not be deemed to prevent such Indebtedness from
constituting Indebtedness Ranking on a Parity with the Junior Subordinated
Debentures.
'Indebtedness Ranking Junior to the Junior Subordinated Debentures' means
any Indebtedness, whether outstanding on the date of execution of the Indenture
or thereafter created, assumed or incurred, which specifically by its terms
ranks junior to and not equally with or prior to the Junior Subordinated
Debentures (and any other Indebtedness Ranking on a Parity with the Junior
Subordinated Debentures) in right of payment upon the happening of the
dissolution or winding-up or liquidation or reorganization of the Company. The
securing of any Indebtedness, otherwise constituting Indebtedness Ranking Junior
to the Junior Subordinated Debentures, shall not be deemed to prevent such
Indebtedness from constituting Indebtedness Ranking Junior to the Junior
Subordinated Debentures.
'Senior Indebtedness' means all Indebtedness, whether outstanding on the
date of execution of the Indenture or thereafter created, assumed or incurred,
except Indebtedness Ranking on a Parity with the Junior Subordinated Debentures
or Indebtedness Ranking Junior to the Junior Subordinated Debentures, and any
deferrals, renewals or extensions of such Senior Indebtedness.
The Indenture places no limitation on the amount of additional Senior
Indebtedness that may be incurred by the Company in the future. The Company
expects from time to time to incur additional indebtedness constituting Senior
Indebtedness.
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by
and construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Debenture Trustee is under no
obligation to exercise any of the powers vested in it by the Indenture at the
request of any holder of Junior Subordinated Debentures, unless offered
reasonable indemnity by such holder against the costs, expenses and liabilities
which might be incurred thereby. The Debenture Trustee is not required to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of its duties.
DESCRIPTION OF THE GUARANTEE
The Guarantee will be executed and delivered by the Company concurrently
with the issuance by the Trust of the Capital Securities for the benefit of the
holders from time to time of the Capital Securities. The Bank of New York will
act as indenture trustee ('Guarantee Trustee') under the Guarantee. The
Guarantee will be qualified under the Trust Indenture Act. This summary of
certain provisions of the Guarantee does not purport to be complete and is
subject to, and qualified in its entirety by reference to, all of the provisions
of the Guarantee, including the definitions therein of
42
certain terms, and the Trust Indenture Act. The Guarantee Trustee will hold the
Guarantee for the benefit of the holders of the Capital Securities.
GENERAL
The Company will irrevocably agree to pay in full on a subordinated basis,
to the extent set forth herein, the Guarantee Payments (as defined below) to the
holders of the Capital Securities, as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert other than
the defense of payment. The following payments with respect to the Capital
Securities, to the extent not paid by or on behalf of the Trust (the 'Guarantee
Payments'), will be subject to the Guarantee: (i) any accumulated and unpaid
Distributions required to be paid on Capital Securities, to the extent the Trust
has funds on hand legally available therefor, (ii) the Redemption Price with
respect to any Capital Securities called for redemption, to the extent that the
Trust has funds on hand legally available therefor, or (iii) upon a voluntary or
involuntary dissolution and liquidation of the Trust (unless the Junior
Subordinated Debentures are distributed to holders of the Capital Securities),
the lesser of (a) the Liquidation Distribution and (b) the amount of assets of
the Trust remaining available for distribution to holders of Capital Securities.
The Company's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of the Capital
Securities or by causing the Trust to pay such amounts to such holders.
The Guarantee will rank subordinate and junior in right of payment to all
Senior Indebtedness to the extent provided therein. See ' -- Status' below.
Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of any subsidiary, including the Bank,
upon such subsidiary's liquidation or reorganization or otherwise (and thus the
ability of holders of the Capital Securities to benefit indirectly from such
distribution) is subject to the prior claims of creditors of such subsidiary,
except to the extent the Company may itself be recognized as a creditor of such
subsidiary. Accordingly, the Company's obligations under the Guarantee
effectively will be subordinated to all existing and future liabilities of its
subsidiaries, including the Bank, and claimants should look only to the assets
of the Company for payments thereunder. See 'Description of Junior Convertible
Subordinated Debentures -- General.' The Guarantee does not limit the incurrence
or issuance of other secured or unsecured debt of the Company, including Senior
Indebtedness, whether under the Indenture, any other indenture that the Company
may enter into in the future or otherwise, and does not limit the incurrence or
issuance of secured or unsecured debt by the Company's subsidiaries.
The Company will, through the Guarantee, the Declaration, the Junior
Subordinated Debentures and the Indenture, taken together, fully, irrevocably
and unconditionally guarantee all of the Trust's obligations under the Capital
Securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the Trust's obligations under the
Capital Securities. See 'Relationship Among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee.'
STATUS
The Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior Indebtedness
in the same manner as the Junior Subordinated Debentures.
The Guarantee will rank pari passu with the Junior Subordinated Debentures
and with all other guarantees (if any) issued by the Company after the Issue
Date with respect to capital securities (if any) issued by Other Trusts. The
Guarantee will constitute a guarantee of payment and not of collection (i.e.,
the guaranteed party may institute a legal proceeding directly against the
Company to enforce its rights under the Guarantee without first instituting a
legal proceeding against any other person or entity). The Guarantee will be held
for the benefit of the holders of the Capital Securities. The Guarantee will not
be discharged except by payment of the Guarantee Payments in full to the extent
not paid by the Trust or upon distribution to the holders of the Capital
Securities of the Junior Subordinated Debentures. The Guarantee does not place a
limitation on the amount of additional Senior Indebtedness that may
43
be incurred by the Company in the future. The Company expects from time to time
to incur additional indebtedness constituting Senior Indebtedness.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder. The
holders of a majority in Liquidation Amount of the Capital Securities will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee in respect of the Guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under the Guarantee.
Any holder of the Capital Securities may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Trust, the Guarantee Trustee or
any other person or entity.
The Company, as guarantor, will be required to file annually with the
Guarantee Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
CERTAIN COVENANTS OF THE COMPANY
The Guarantee will provide that, so long as any Capital Securities remain
outstanding, if there shall have occurred any event that would constitute an
event of default under the Guarantee or the Declaration (other than solely a
default as described in paragraph (iii) under 'Description of Junior Convertible
Subordinated Debentures -- Debenture Events of Default'), then the Company will
not (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock, (ii) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company (including
any Other Debentures) that rank pari passu with or junior in right of payment to
the Junior Subordinated Debentures or (iii) make any guarantee payments with
respect to any guarantee by the Company of any securities of any subsidiary of
the Company (including Other Guarantees) if such guarantee ranks pari passu with
or junior in right of payment to the Junior Subordinated Debentures, other than
(a) dividends or distributions in shares of or options, warrants or rights to
subscribe for or purchase shares of, Common Stock or preferred stock of the
Company, (b) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Guarantee, (d) as a direct result of, and only to the
extent required in order to avoid the issuance of fractional shares of capital
stock following, a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock, (e) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (f) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees or any of the Company's dividend
reinvestment plans.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of the Capital Securities (in which case no vote will be
required), the Guarantee may not be amended without the prior approval of the
holders of a majority of the Liquidation Amount of such outstanding Capital
Securities. The manner of obtaining any such approval will be as set forth under
'Description of Capital Securities -- Voting Rights; Amendment of the
Declaration.' All guarantees and agreements contained in the Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Company and shall inure to the benefit of the holders of the Capital
Securities then outstanding.
44
TERMINATION
The Guarantee will terminate and be of no further force and effect upon
full payment of the applicable Redemption Price of the Capital Securities, upon
full payment of the Liquidation Amount payable upon liquidation of the Trust or
upon distribution of the Junior Subordinated Debentures to the holders of the
Capital Securities. The Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the Capital
Securities must restore payment of any sums paid under the Capital Securities or
the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee is under no obligation to exercise any of the powers
vested in it by the Guarantee at the request of any holder of Capital
Securities, unless offered reasonable indemnity against the costs, expenses and
liabilities which might be incurred thereby. The Guarantee Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if it reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
GOVERNING LAW
The Guarantee will be governed by, and construed in accordance with, the
internal laws of the State of New York.
RELATIONSHIP AMONG THE CAPITAL SECURITIES, THE JUNIOR
SUBORDINATED DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Capital Securities
(to the extent the Trust has funds on hand legally available for the payment of
such Distributions) will be irrevocably guaranteed by the Company as and to the
extent set forth under 'Description of the Guarantee.' Taken together, the
Company's obligations under the Junior Subordinated Debentures, the Indenture,
the Declaration and the Guarantee will provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of Distributions and other
amounts due on the Capital Securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
such guarantee. It is only the combined operation of these documents that has
the effect of providing a full, irrevocable and unconditional guarantee of the
Trust's obligations under the Capital Securities. If and to the extent that the
Company does not make the required payments on the Junior Subordinated
Debentures, the Trust will not have sufficient funds to make the related
payments, including Distributions, on the Capital Securities. The Guarantee will
not cover any such payment when the Trust does not have sufficient funds on hand
legally available therefor. In such event, the remedy of a holder of Capital
Securities is to institute a Direct Action. The obligations of the Company under
the Guarantee will be subordinate and junior in right of payment to all Senior
Indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debentures, such payments will be sufficient to cover
Distributions and other payments due on the Capital Securities, primarily
because: (i) the aggregate principal amount or Prepayment Price of the Junior
Subordinated Debentures will be equal to the sum of the Liquidation Amount or
Redemption Price, as applicable, of the Capital Securities and Common
Securities; (ii) the interest rate and interest and other payment dates on the
Junior Subordinated Debentures will match the Distribution rate and Distribution
and other payment dates for the Trust Securities; (iii) the Company shall pay
for all and any costs, expenses and liabilities of the Trust except the Trust's
obligations to holders of Trust Securities under such Trust Securities; and (iv)
the Declaration will provide that the Trust is not authorized to engage in any
activity that is not consistent with the limited purposes thereof.
45
ENFORCEMENT OF RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any Capital Security may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee, the Trust or any
other person or entity.
A default or event of default under any Senior Indebtedness would not
constitute a default or Event of Default under the Declaration. However, in the
event of payment defaults under, or acceleration of, Senior Indebtedness, the
subordination provisions of the Indenture will provide that no payments may be
made in respect of the Junior Subordinated Debentures until such Senior
Indebtedness has been paid in full or any payment default thereunder has been
cured or waived. Failure to make required payments on Junior Subordinated
Debentures would constitute an Event of Default under the Declaration.
LIMITED PURPOSE OF THE TRUST
The Capital Securities will represent preferred beneficial interests in the
Trust, and the Trust exists for the sole purpose of issuing and selling the
Trust Securities, using the proceeds from the sale of the Trust Securities to
acquire the Junior Subordinated Debentures and engaging in only those other
activities necessary, advisable or incidental thereto.
RIGHTS UPON DISSOLUTION
Unless the Junior Subordinated Debentures are distributed to holders of the
Trust Securities, upon any voluntary or involuntary dissolution and liquidation
of the Trust, after satisfaction of liabilities to creditors of the Trust as
required by applicable law, the holders of the Trust Securities will be entitled
to receive, out of assets held by the Trust, the Liquidation Distribution in
cash. See 'Description of Capital Securities -- Liquidation of the Trust and
Distribution of Junior Subordinated Debentures.' Upon any voluntary or
involuntary liquidation or bankruptcy of the Company, the Property Trustee, as
holder of the Junior Subordinated Debentures, would be a subordinated creditor
of the Company, subordinated in right of payment to all Senior Indebtedness as
set forth in the Indenture, but entitled to receive payment in full of principal
(and premium, if any) and interest, before any stockholders of the Company
receive payments or distributions. Since the Company will be the guarantor under
the Guarantee and will agree to pay for all costs, expenses and liabilities of
the Trust (other than the Trust's obligations to the holders of its Trust
Securities), the positions of a holder of Capital Securities and a holder of
Junior Subordinated Debentures relative to other creditors and to stockholders
of the Company in the event of liquidation or bankruptcy of the Company are
expected to be substantially the same.
DESCRIPTION OF NEW YORK BANCORP INC. CAPITAL STOCK
GENERAL
The Company's authorized capital stock consists of 30,000,000 shares of
Common Stock and 2,000,000 shares of preferred stock, par value $.01 per share
(the 'Preferred Stock').
COMMON STOCK
Subject to any prior rights of the Preferred Stock then outstanding,
holders of Common Stock are entitled to such dividends as may be declared from
time to time by the Company's Board of Directors (the 'Company Board') out of
funds legally available therefor.
Each holder of Common Stock is entitled to one vote for each share owned by
him or her on all matters submitted to a vote of the stockholders of the
Company. Such shares are not entitled to any cumulative voting rights. In the
event of any liquidation, dissolution or winding up of the Company, the holders
of Common Stock are entitled to share equally and ratably in any assets
remaining after the payment of all debts and liabilities, subject to the prior
rights, if any, of holders of Preferred Stock. Holders of Common Stock have no
preemptive or other subscription or conversion rights. The Common Stock is not
subject to redemption and the outstanding shares are fully paid and
nonassessable.
46
The Common Stock is listed on the NYSE under the symbol 'NYB.' On September
26, 1997, the last reported sale price of the Common Stock on the NYSE Composite
Tape was $29.875 per share.
PREFERRED STOCK
No shares of Preferred Stock are outstanding as of the date hereof. The
Company Board has the authority to issue shares of Preferred Stock in one or
more series and to fix the designation, powers, preferences and rights and
qualifications, limitations or restrictions thereon of any such series of
Preferred Stock.
CERTAIN ANTI-TAKEOVER PROVISIONS
This section sets forth a brief discussion of the reasons for, and the
operation and effects of, certain provisions of the Company's Certificate of
Incorporation (the 'Company Certificate') and the Company's Bylaws (the 'Company
Bylaws') which may have certain anti-takeover effects. This section also
summarizes certain provisions of federal law and Delaware law which may have
anti-takeover effects.
THE COMPANY CERTIFICATE AND BYLAWS
General. A number of provisions of the Company Certificate and Bylaws
pertain to matters of corporate governance and certain rights of stockholders.
Certain of those provisions may be deemed to have and may have the effect of
making more difficult, costly or time consuming, and thereby discouraging, a
merger, tender offer, proxy contest or other attempt to assume control of the
Company and/or change incumbent management and in certain circumstances may
prevent a change in control of the Company even if such a change in control is
desired by a majority of the Company's stockholders.
Authorized Shares of Capital Stock. The Company Certificate permits the
Company Board to issue, without the approval of stockholders but subject to the
Company Board's fiduciary duties and the availability of authorized but unissued
shares, additional shares of Common Stock or shares of Preferred Stock. While
the availability of such shares provides the Company with flexibility in
structuring financings and acquisitions and meeting other corporate needs, it
may also, as more fully described below, impede the completion of a transaction
to which the Company Board or management is opposed.
Uncommitted authorized but unissued shares of Common Stock and Preferred
Stock may be issued from time to time to such persons and for such consideration
as the Company Board may determine and holders of the then-outstanding shares of
Common Stock or Preferred Stock may or may not be given the opportunity to vote
thereon, depending upon the nature of any such transactions, applicable law, the
rules and policies of the NYSE and the judgment of the Company Board regarding
the submission of such issuance to the Company's stockholders. The Company's
stockholders have no preemptive rights to subscribe to newly issued shares by
the Company.
Moreover, it is possible that additional shares of Common Stock or shares
of Preferred Stock may be issued for the purpose of making an acquisition by an
unwanted suitor of a controlling interest in the Company more difficult,
time-consuming or costly or to otherwise discourage an attempt to acquire
control of the Company. Under such circumstances, the availability of authorized
and unissued shares of Common Stock and Preferred Stock may make it more
difficult for the Company's stockholders to obtain a premium for their shares.
Such authorized and unissued shares could be used to create voting or other
impediments or to frustrate a person seeking to obtain control of the Company
through a merger, tender offer, proxy contest or other means. Such shares could
be privately placed with purchasers who might cooperate with the Company in
opposing such an attempt by a third party to gain control of the Company. The
issuance of shares of Common Stock or Preferred Stock could also be used to
dilute ownership of a person or entity seeking to obtain control of the Company.
Although the Company does not currently contemplate taking such action, shares
of Common Stock or one or more series of Preferred Stock could be issued for the
purposes and effects described above and the Company Board reserves its rights
to issue such stock for such purposes.
47
Classified Board of Directors and Removal of Directors. The Company
Certificate states that the Company Board is to be divided into three classes,
which shall be as nearly equal in number as possible. The directors of the
Company in each class hold office for a term of three years. The Company
Certificate provides that a director may be removed only for cause and then only
by the affirmative vote of the holders of at least 80% of the voting power of
the then outstanding shares of capital stock of the Company entitled to vote
generally in the election of directors, voting together as a single class.
A classified board of directors could make it more difficult for
stockholders to force an immediate change in the composition of a majority of
the Company Board. Since the terms of approximately one-third of the incumbent
directors expire each year, at least two annual elections are necessary for the
stockholders to replace a majority of the board, whereas a majority of a
non-classified board may be replaced in one year.
Management of the Company believes that the staggered election of directors
helps to promote the continuity of management because approximately one-third of
the Company Board is subject to election each year. Staggered terms help to
assure that in the ordinary course of business approximately two-thirds of the
directors, or more, at any one time have had at least one year's experience as
directors, and moderate the pace of changes in the Company Board by extending
the minimum time required to elect a majority of directors from one to two
years.
Stockholder Vote Required to Approve Business Combinations with Principal
Stockholders. In connection with certain 'Business Combinations' (as defined
below) and related transactions between the Company and an 'Interested
Stockholder' (as defined below), the Company Certificate requires the approval
of the holders of at least 80% of the voting power of the then outstanding
shares of capital stock of the Company entitled to vote generally in the
election of directors, voting together as a single class, unless the transaction
is approved by the affirmative vote of at least a majority of the directors who
are not affiliated with the Interested Stockholder and who were directors at the
time the Interested Stockholder became such or unless certain fair price
criteria are met. The Company Certificate defines the term 'Interested
Stockholder' generally to include any individual or entity which, together with
its affiliates, owns beneficially or controls, directly or indirectly, 10% or
more of the outstanding shares of voting stock of the Company.
The Company Certificate defines 'Business Combination' as: (a) any merger
or consolidation of the Company or any of its subsidiaries with (i) any
Interested Stockholder or (ii) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation would
be, an affiliate of an Interested Stockholder; (b) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition (in one transaction or a series
of transactions) to or with any Interested Stockholder, or any affiliate of any
Interested Stockholder, of 25% or more of the combined assets of the Company and
its subsidiaries; (c) the issuance or transfer by the Company or any of its
subsidiaries (in one transaction or a series of transactions) of any securities
of the Company or any of its subsidiaries to any Interested Stockholder or any
affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate fair market value
equalling or exceeding 25% of the combined assets of the Company and its
subsidiaries except pursuant to an employee benefit plan of the Company or any
of its subsidiaries; (d) the adoption of any plan or proposal for the
liquidation or dissolution of the Company proposed by or on behalf of any
Interested Stockholder; or (e) any reclassification of securities (including any
reverse stock split), or recapitalization of the Company, or any merger or
consolidation of the Company with any of its subsidiaries or any other
transaction (whether or not with or into or otherwise involving an Interested
Stockholder) which has the effect, directly or indirectly, of increasing the
proportionate shares of the outstanding shares of any class of equity or
convertible securities of the Company or any of its subsidiaries which is
directly or indirectly owned by any Interested Stockholder or any affiliate of
any Interested Stockholder.
Under Delaware law, absent such a supermajority voting provision, business
combinations, including mergers, consolidations and sales of substantially all
of the assets of the Company must be approved by the vote of the holders of a
majority of the outstanding shares of Common Stock, subject to certain
exceptions. See ' -- Delaware Law' below. The increased stockholder vote
required to approve a Business Combination may have the effect of foreclosing
mergers and other business
48
combinations which a majority of stockholders deem desirable and may place the
power to prevent such a merger or combination in the hands of a minority of
stockholders.
Provisions Relating to Meetings of Stockholders. The Company Certificate
and Bylaws provide that special meetings of stockholders may only be called by a
resolution of the Company Board adopted by a majority of the total number of
directors which the Company would have if there were no vacancies on the Company
Board (the 'Whole Board'). The Company Certificate also provides that
stockholder action may be taken only at a special or an annual meeting of
stockholders and not by written consent. Although management of the Company
believes that these provisions will discourage stockholder attempts to disrupt
the business of the Company between annual meetings of stockholders, an
additional effect may be to deter hostile takeovers by making it more difficult
for a person or entity to obtain immediate control of the Company between annual
meetings. These provisions may also prevent stockholders from using a special
meeting as a forum to address certain other matters and may discourage takeovers
which are desired by stockholders.
Restriction of Maximum Number of Directors and Filling Vacancies on the
Company's Board of Directors. The Company Certificate provides that the number
of directors of the Company shall be fixed from time to time exclusively by the
Company Board pursuant to a resolution adopted by a majority of the Whole Board.
The power to fill vacancies, whether occurring by reason of an increase in the
number of directors or by resignation, is vested in the Company Board acting by
a vote of a majority of directors then in office, even if less than a quorum.
The ability of the Company Board to increase the size of the Company Board and
to fill vacancies resulting from newly created directorships could allow the
Company Board to retain control of the Company and to prevent a person or entity
from immediately acquiring control of the Company by creating new directorships
and filling the vacancies created thereby.
Advance Notice Requirements for Presentation of New Business and
Nominations of Directors at Meetings of Stockholders. The Company Bylaws
generally provide that any stockholder desiring to make a proposal for new
business at an annual meeting of stockholders must submit written notice which
must be received at the principal executive offices of the Company at least 30
days in advance of the meeting. In addition, the Company Bylaws do not permit
stockholders to make a proposal for new business at special meetings of
stockholders. The Company Bylaws also provide that stockholders wishing to
nominate candidates for election as directors must deliver written notice to the
secretary of the Company at least 30 days prior to the date of the annual
meeting of stockholders. Adequate advance notice of stockholder proposals and
nominations gives management time to evaluate such proposals and nominations and
to determine whether to recommend to the stockholders that such proposals be
adopted. In certain instances such provisions could make it more difficult to
oppose management's proposals or nominations if stockholders believe such
proposals or nominations are not in their best interests.
Supermajority Voting Requirement for Amendment of Certain Provisions of the
Company Certificate. The Company Certificate may be amended only if first
approved by at least a majority of the Whole Board at a duly constituted meeting
called expressly for that purpose and thereafter approved by the vote of the
holders of a majority of the outstanding shares of Common Stock, except that the
provisions of the Company Certificate governing (i) the Company's internal
affairs, (ii) calling special meetings, (iii) indemnification and (iv) approval
of Business Combinations must be approved by the affirmative vote of the holders
of at least 80% of the total votes eligible to be cast on such matters. This
provision is intended to prevent the holders of less than 80% of the outstanding
shares of the Company from circumventing any of the foregoing provisions by
amending the Company Certificate to delete or modify any one of such provisions.
This provision would enable the holders of more than 20% of the Company's voting
stock to prevent amendments to the Company Certificate even if they were favored
by the holders of a majority of the voting stock.
FEDERAL LAW
Federal law provides that no person or company, directly or indirectly or
acting in concert with one or more persons or companies, or through one or more
subsidiaries, or through one or more transactions, may acquire 'control' of a
savings association (which for these purposes includes a holding
49
company thereof) at any time without the prior approval of, or, in the case of
individuals, written notice to (and no objection by), the OTS. Any company that
acquires such control becomes a 'savings and loan holding company' subject to
registration, examination and regulation as a savings and loan holding company.
Control of a savings association or any other company under federal statute
includes, generally, ownership of, control of or holding irrevocable proxies (or
any combination of irrevocable proxies and voting stock) representing more than
25% of any class of voting stock, control in any manner of the election of a
majority of the savings association's directors, or a determination by the OTS
(after notice and opportunity for a hearing) that the acquiror has the power to
direct, or directly or indirectly to exercise a controlling influence over, the
management or policies of the institution. Among other things, direct or
indirect acquisition of more than 10% of any class of a savings association's
voting stock, if the acquiror also is subject to any one of eight 'control
factors,' constitutes a rebuttable determination of control under the OTS
regulations. Such control factors include, among other things, the acquiror
being one of the two largest stockholders of any class of voting stock, holding
more than 25% of the total stockholders' equity and 35% of the combined debt
securities and stockholders' equity. The determination of control may be
rebutted by submission to the OTS, prior to the acquisition of stock or the
occurrence of any other circumstances giving rise to such determination, of a
statement setting forth facts and circumstances which would support a finding
that no control relationship will exist and containing certain undertakings.
Thus, any person or company that intends to acquire more than 25% of the Common
Stock, or that is subject to a 'control factor' as described in the federal
regulations and intends to acquire more than 10% of the Common Stock, may need
to notify the OTS and seek prior approval, non-objection or acceptance of a
rebuttal statement.
DELAWARE LAW
Section 203 of the Delaware General Corporation Law (the 'DGCL') may have
the effect of significantly delaying a purchaser's acquisition of the entire
equity interest in the Company and, accordingly, could delay or discourage
certain takeover attempts. In general, Section 203 of the DGCL prevents an
'Interested Stockholder' (defined generally as a person holding 15% or more of a
corporation's outstanding voting stock) from engaging in a 'Business
Combination' (defined to include a variety of transactions, including mergers,
as set forth below) with a Delaware corporation such as the Company for three
years following the date such person became an Interested Stockholder unless:
(i) before such person became an Interested Stockholder, the board of directors
of the corporation approved either the Business Combination or the transaction
in which the Interested Stockholder became an Interested Stockholder; (ii) upon
consummation of the transaction which resulted in the Interested Stockholder
becoming an Interested Stockholder, the Interested Stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commenced (excluding stock owned by directors who are also officers
and employee stock plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan will be
tendered); or (iii) following the transaction in which such person became an
Interested Stockholder, the Business Combination is (A) approved by the board of
directors of the corporation and (B) authorized at a meeting of stockholders by
the affirmative vote of the holders of 66 % of the outstanding voting stock of
the corporation not owned by the Interested Stockholder. The restrictions
imposed on Interested Stockholders under DGCL Section 203 do not apply under
certain limited circumstances set forth therein, including certain Business
Combination proposed by an Interested Stockholder following the announcement or
notification of certain extraordinary transactions involving the corporation and
a person who had not been an Interested Stockholder during the previous three
years or who became an Interested Stockholder with the approval of a majority of
the corporation's directors.
Section 203 of the DGCL provides that during such three-year period, the
corporation may not merge or consolidate with an Interested Stockholder or any
affiliate or associate thereof, and also may not engage in certain other
transactions with an Interested Stockholder or any affiliate or associate
thereof, including, without limitation, (i) any merger or consolidation of the
corporation or a direct or indirect majority-owned subsidiary of the corporation
with (A) the Interested Stockholder, or (B) with any other corporation if the
merger or consolidation is caused by the Interested Stockholder and as a result
of such merger or consolidation the above limitations of Section 203 are not
applicable to the
50
surviving corporation; (ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (except proportionately as a stockholder of the
corporation) to or with the Interested Stockholder of assets having an aggregate
market value equal to 10% or more of the aggregate market value of all assets of
the corporation determined on a consolidated basis or the aggregate market value
of all the outstanding stock of a corporation; (iii) any transaction which
results in the issuance or transfer by the corporation or by any majority owned
subsidiary thereof of any stock of the corporation or such subsidiary to the
Interested Stockholder, except, among other things, pursuant to a transaction
which effects a pro rata distribution to all stockholders of the corporation;
(iv) any transaction involving the corporation or any majority owned subsidiary
thereof which has the effect of increasing the proportionate share of the stock
of any class or series, or securities convertible into the stock of any class or
series, of the corporation or any such subsidiary which is owned by the Interest
Stockholder (except, among other things, as a result of immaterial changes due
to fractional share adjustments); or (v) any receipt by the Interested
Stockholder of the benefit (except proportionately as a stockholder of such
corporation) of any loans, advances, guarantees, pledges or other financial
benefits provided by or through the corporation.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain of the principal United States
federal income tax consequences of the purchase, ownership and disposition of
the Capital Securities to a holder that is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized under
the laws of the United States or any state thereof or the District of Columbia
or an estate or trust the income of which is subject to United States federal
income taxation regardless of source or a trust with respect to which a court
within the United States is able to exercise primary supervision over its
administration and one or more United States fiduciaries have the authority to
control all of its substantial decisions (a 'U.S. Holder'). This summary does
not address the United States federal income tax consequences to persons other
than U.S. Holders who purchase Capital Securities upon their initial issuance.
This summary is based on the United States federal income tax laws,
regulations and rulings and decisions now in effect, all of which are subject to
change, possibly on a retroactive basis. This summary does not address the tax
consequences applicable to investors that may be subject to special tax rules
such as banks, thrifts, real estate investment trusts, regulated investment
companies, insurance companies, dealers in securities or currencies, tax-exempt
investors or persons that will hold the Capital Securities as a position in a
'straddle,' as part of a 'synthetic security' or 'hedge,' 'conversion
transaction' or other integrated investment or as other than a capital asset.
This summary also does not address the tax consequences to persons that have a
functional currency other than the U.S. dollar or the tax consequences to
shareholders, partners or beneficiaries of a holder of Capital Securities.
Further, it does not include any description of any alternative minimum tax
consequences or the tax laws of any state or local government or of any foreign
government that may be applicable to the Capital Securities.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS IN
LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE FEDERAL TAX CONSEQUENCES
OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF CAPITAL SECURITIES, AS WELL AS THE
EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
The Company intends to take the position that, under current law, the
Junior Subordinated Debentures constitute indebtedness for federal income tax
purposes and, by acceptance of a Capital Security, each holder covenants to
treat the Junior Subordinated Debentures as indebtedness and the Capital
Securities as evidence of an indirect beneficial interest in the Junior
Subordinated Debentures. No assurances can be given, however, that such position
of the Company will not be challenged by the Internal Revenue Service (the
'Service') or, if challenged, that such challenge will not be successful. The
remainder of this discussion assumes that the Junior Subordinated Debentures are
classified as indebtedness for federal income tax purposes.
51
CLASSIFICATION OF THE TRUST
Upon the issuance of the Capital Securities, Weil, Gotshal & Manges LLP
will issue its opinion (the 'Tax Opinion') to the effect that, under then
current law and assuming full compliance with the terms of the Declaration (and
certain other documents), and based on certain facts and assumptions contained
in such opinion, the Trust will be classified, for United States federal income
tax purposes, as a grantor trust and not as an association taxable as a
corporation. As a result, each holder of Capital Securities will be treated as
owning an undivided beneficial interest in the Junior Subordinated Debentures
and each holder will be required to include in its gross income the items of
income realized with respect to its allocable share of those Junior Subordinated
Debentures. Investors should be aware that the Tax Opinion does not address any
other issue and is not binding on the Service or the courts.
INTEREST, ORIGINAL ISSUE DISCOUNT, PREMIUM AND MARKET DISCOUNT
Final Treasury Regulations issued on June 16, 1996 generally provide that
stated interest on a debt instrument is not 'qualified stated interest' and,
therefore, will give rise to OID unless such interest is unconditionally payable
in cash or in property (other than debt instruments of the issuer) at least
annually at a single fixed rate. Interest is considered to be unconditionally
payable only if reasonable legal remedies exist to compel timely payment or the
debt instrument otherwise provides terms and conditions that make the likelihood
of late payment (other than late payment that occurs within a reasonable grace
period) or non-payment a 'remote contingency.'
The Company has the right, at any time and from time to time during the
term of the Junior Subordinated Debentures, to defer payments of interest by
extending the interest payment period for a period not exceeding 20 consecutive
quarters, provided that no Extension Period may extend beyond the Stated
Maturity of the Junior Subordinated Debentures. During any Extension Period, the
Company may not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Company's capital stock, (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company (including any Other Debentures) that rank pari passu with or junior in
right of payment to the Junior Subordinated Debentures or (iii) make any
guarantee payments with respect to any guarantee by the Company of any
securities of any subsidiary of the Company (including Other Guarantees) if such
guarantee ranks pari passu with or junior in right of payment to the Junior
Subordinated Debentures, other than (a) dividends or distributions in shares of
or options, warrants or rights to subscribe for or purchase shares of, Common
Stock or preferred stock of the Company, (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the
Guarantee, (d) as a direct result of, and only to the extent required in order
to avoid the issuance of fractional shares of capital stock following, a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock, (e) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
and (f) purchases of Common Stock related to the issuance of Common Stock or
rights under any of the Company's benefit plans for its directors, officers or
employees or any of the Company's dividend reinvestment plans. See 'Description
of Junior Convertible Subordinated Debentures -- Option to Extend Interest
Payment Date.' The Company believes that the adverse impact that the imposition
of such restrictions would have on the Company and the value of its equity
securities makes the likelihood of its exercising its right to defer payments of
interest on the Junior Subordinated Debentures remote. Accordingly, the Company
believes, and this discussion assumes, that the stated interest on the
Subordinated Debentures should be considered unconditionally payable and that
the Junior Subordinated Debentures should not be considered to have been issued
with OID. If so, stated interest paid or payable prior to the exercise, if any,
by the Company, of its right to defer interest payments, will be taxable to a
holder as ordinary interest income, generally at the time it is received or
accrued, in accordance with such holder's regular method of accounting for
federal income tax purposes. There can be no assurance that the Service will
agree with the Company's position.
52
Moreover, if, notwithstanding the foregoing, the Company does exercise its
right to defer payments of interest thereon, the Junior Subordinated Debentures
will be considered to be retired and reissued for their adjusted issue price at
such time, and the Junior Subordinated Debentures thereafter will be considered
to have been issued with OID. In such case, all the interest payments thereafter
payable will be treated as OID. If the payments were treated as OID (either
because the Company exercises the right to defer interest payments or because
the likelihood of exercise of such right was not remote at the time of
issuance), holders must include that discount in income on an economic accrual
basis before the receipt of cash attributable to the interest, regardless of
their method of tax accounting, and any holders who dispose of Capital
Securities prior to the Distribution Record Date for payment of Distributions
thereon following such Extension Period will include OID in gross income but
will not receive any cash related thereto from the Trust. The amount of OID that
accrues in any quarterly period will approximately equal the amount of the
interest that accrues in that period at the stated interest rate. In the event
that the interest payment period is extended, holders will accrue OID
approximately equal to the amount of the interest payment due at the end of the
extended interest payment period on an economic accrual basis over the length of
the extended interest period.
Holders of Capital Securities will not be entitled to a dividends-received
deduction with respect to any income earned on the Capital Securities.
Holders of Capital Securities other than a holder who purchased the Capital
Securities upon original issuance may be considered to have acquired their
undivided interests in the Junior Subordinated Debentures with market discount
or acquisition premium, as such phrases are defined for United States federal
income tax purposes. Such holders are advised to consult their tax advisors as
to the income tax consequences of the acquisition, ownership and disposition of
Capital Securities.
RECEIPT OF JUNIOR SUBORDINATED DEBENTURES UPON LIQUIDATION OF THE TRUST
As described under 'Description of Capital Securities -- Liquidation of the
Trust and Distribution of Junior Subordinated Debentures,' Junior Subordinated
Debentures may be distributed to holders in exchange for the Capital Securities
and in liquidation of the Trust. Under current law, such a distribution would be
treated as a non-taxable event to each holder and each holder's aggregate tax
basis in the Junior Subordinated Debentures would be equal to such holder's
aggregate tax basis in its Capital Securities. A holder's holding period in the
Junior Subordinated Debentures so received in liquidation of the Trust would
include the period for which the Capital Securities were held by such holder.
If, however, the liquidation of the Trust were to occur because the Trust is
subject to United States federal income tax with respect to income accrued or
received on the Junior Subordinated Debentures, the distribution of Junior
Subordinated Debentures to the holders of Capital Securities by the Trust would
be a taxable event to the Trust and a holder of Capital Securities would
recognize gain or loss as if such holder had exchanged its Capital Securities
for the Junior Subordinated Debentures it received upon the liquidation of the
Trust. A holder will be taxable on OID (if any) in respect of Junior
Subordinated Debentures received from the Trust in the manner described above
under ' -- Interest, Original Issue Discount, Premium and Market Discount.'
SALE OR REDEMPTION OF CAPITAL SECURITIES
A holder that sells Capital Securities (including a redemption for cash)
will recognize gain or loss equal to the difference between the amount realized
on the sale (other than amounts attributable to accrued but unpaid interest
which has not yet been included in income, which will be treated as ordinary
income) and its adjusted tax basis in the securities sold or redeemed. A
holder's adjusted tax basis in the Capital Securities generally will be its
initial purchase price increased by OID (if any) previously includible in such
holder's gross income to the date of disposition (and the accrual of market
discount, if any, if an election to accrue market discount in income currently
is made) and decreased by payments received on the Capital Securities (other
than payments of qualified stated interest). Except to the extent noted above
and subject to the market discount rules of the Internal Revenue Code of 1986,
as amended (the 'Code'), any such gain or loss generally will be short-term,
mid-term or long-term capital gain or loss depending on the length of time the
Capital Securities were held.
53
The Capital Securities may trade at a price that does not fully reflect the
value of accrued but unpaid interest with respect to the underlying Junior
Subordinated Debentures. A holder who uses the accrual method of accounting (and
a cash method holder, during and after an Extension Period or if the Junior
Subordinated Debentures are deemed to have been issued with OID) and who
disposes of its Capital Securities between Distribution Record Dates will be
required to include accrued but unpaid interest (or OID) on the Junior
Subordinated Debentures through the date of disposition in income as ordinary
income, and to add such amount to its adjusted tax basis in its Capital
Securities disposed of. To the extent the selling price (which may not fully
reflect the value of accrued but unpaid interest or OID) is less than such
holder's adjusted tax basis, a holder will recognize a capital loss. Subject to
certain limited exceptions, capital losses cannot be applied to offset ordinary
income for United States federal income tax purposes.
CONVERSION OF CAPITAL SECURITIES
A holder of Capital Securities generally will not recognize income, gain or
loss upon the conversion, through the Conversion Agent, of its Capital
Securities into Common Stock. A holder will, however, recognize gain upon the
receipt of cash in lieu of a fractional share of Common Stock equal to the
amount of cash received less the holder's tax basis in such fractional share. A
holder's tax basis in the Common Stock received upon exchange and conversion
will generally be equal to the holder's tax basis in the Capital Securities
delivered to the Conversion Agent for exchange less that basis allocated to any
fractional share for which cash is received, and a holder's holding period in
the Common Stock received upon exchange and conversion will generally begin on
the date the holder acquired the Capital Securities delivered to the Conversion
Agent for exchange.
ADJUSTMENT OF CONVERSION PRICE
Treasury Regulations promulgated under Section 305 of the Code would treat
holders of Capital Securities as having received a constructive distribution
from the Company in the event the Conversion Price of the Junior Subordinated
Debentures were adjusted if (i) as a result of such adjustment, the
proportionate interest (measured by the quantum of Common Stock into or for
which the Junior Subordinated Debentures are convertible or exchangeable) of the
holders of the Capital Securities in the assets or earnings and profits of the
Company were increased, and (ii) the adjustment was not made pursuant to a bona
fide, reasonable antidilution formula. An adjustment in the Conversion Price
would not be considered made pursuant to such a formula if the adjustment was
made to compensate for certain taxable distributions with respect to the Common
Stock. Thus, under certain circumstances, a reduction in the Conversion Price
for the holders may result in deemed dividend income to holders to the extent of
the current or accumulated earnings and profits of the Company. Holders of the
Capital Securities would be required to include their allocable share of such
deemed dividend income in gross income but would not receive any cash related
thereto.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
Subject to the qualifications discussed below, income on the Capital
Securities will be reported to holders on Forms 1099, which forms are expected
to be mailed to holders of Capital Securities by January 31 following each
calendar year.
The Trust will be obligated to report annually to the holders of record of
the Capital Securities, the interest (or OID) related to the Junior Subordinated
Debentures for that year. The Trust currently intends to report such information
on Form 1099 prior to January 31 following each calendar year even though the
Trust is not legally required to report to record holders until April 15
following each calendar year. Under current law, holders of Capital Securities
who hold as nominees for beneficial holders will not have any obligation to
report information regarding the beneficial holders to the Trust. The Trust,
moreover, will not have any obligation to report to beneficial holders who are
not also record holders.
Payments made on, and proceeds from the sale of, the Capital Securities may
be subject to a 'backup' withholding tax of 31% unless the holder complies with
certain identification requirements.
54
Any withheld amounts will be allowed as a credit against the holder's federal
income tax liability, provided the required information is provided to the
Service.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED
FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S
PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO
THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
CAPITAL SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER THE ALTERNATIVE MINIMUM
TAX AND THE STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF
CHANGES IN UNITED STATES FEDERAL OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
The Company, the obligor with respect to the Junior Subordinated Debentures
held by the Trust and the Guarantee, the Issuer Trustees and the Guarantee
Trustee may from time to time provide services directly or through subsidiaries
to many employee benefit plans within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ('ERISA'),
individual retirement accounts or other plans within the meaning of Section 4975
of the Code, or persons which are treated as using assets of such employee
benefit plans, accounts or plans (collectively, 'Plans'). As a result, the
Company, the Issuer Trustees and the Guarantee Trustee may each be considered a
'party in interest' or a 'disqualified person' (as defined in ERISA or Section
4975 of the Code, respectively) to which the prohibited transaction provisions
of ERISA or Section 4975 of the Code apply. Any direct or indirect loan or other
extension of credit between the Company and any Plan with respect to which the
Company is a party in interest or disqualified person may constitute a
prohibited transaction unless a statutory or administrative exemption applies.
The Company expects that, subject to the approval for listing of the Capital
Securities on the NYSE, the Capital Securities will qualify as 'publicly offered
securities' within the meaning of the Department of Labor 'plan assets'
regulations, 29 F.R. 'SS' 2510.3-101, such that the Junior Subordinated
Debentures held by the Trust would not be treated as plan assets of Plans that
acquire Capital Securities. Notwithstanding that the Capital Securities are
expected to be publicly offered securities, the Junior Subordinated Debentures
might be treated as an indirect extension of credit to the Company by any Plan
acquiring Capital Securities because of the specific purpose of the Trust and
thereby might constitute a prohibited transaction unless an exemption applies.
Accordingly, any purchaser proposing to acquire Capital Securities with assets
of any Plan should consult with its counsel, particularly with respect to the
applicability of such prohibited transaction provisions, and no Plan should
acquire or hold any Capital Securities unless one of the following exemptions
from such provisions applies: Prohibited Transaction Class Exemption ('PTCE')
84-14 (an exemption for certain transactions determined by an independent
qualified professional asset manager), PTCE 90-1 (an exemption for certain
transactions involving insurance company pooled separate accounts), PTCE 91-38
(an exemption for certain transactions involving bank collective investment
funds), PTCE 95-60 (an exemption for transactions involving certain insurance
company general accounts) or PTCE 96-23 (an exception for certain transactions
determined by an in-house asset manager). In particular, to avoid the occurrence
of a non-exempt prohibited transaction, no individual retirement account as to
which the beneficiary directs the investment thereof and the Company serves as
custodian should acquire or hold any Capital Securities pursuant to the
investment direction of the beneficiary.
In addition, a Plan fiduciary considering the purchase of Capital
Securities should be aware that the assets of the Trust may be considered 'plan
assets' of Plans holding Capital Securities for purposes of ERISA and Section
4975 of the Code. In such event, service providers with respect to the assets of
the Trust may become parties in interest or disqualified persons with respect to
investing Plans, and any discretionary authority exercised with respect to the
Junior Subordinated Debentures by such persons could be deemed to constitute or
give rise to a prohibited transaction under ERISA or the Code. In order to avoid
such prohibited transactions, each investing Plan, by purchasing the Capital
Securities, will be deemed to have directed the Trust to invest in the Junior
Subordinated Debentures, to enter into the Guarantee and to have appointed the
Issuer Trustees.
55
A fiduciary with respect to a Plan subject to ERISA (excludes individual
retirement accounts) should consider whether the purchase of Capital Securities
could result in a delegation of fiduciary authority to the Property Trustee,
and, if so, whether such a delegation of authority is permissible under the
Plan's governing instrument or any investment management agreement with the
Plan. In making such determination, a Plan fiduciary should note that the
Property Trustee is a U.S. bank qualified to be an investment manager (within
the meaning of section 3(38) of ERISA) to which such delegation of authority
generally would be permissible under ERISA. Further, prior to an Event of
Default with respect to the Junior Subordinated Debentures, the Property Trustee
will have only limited custodial and ministerial authority with respect to Trust
assets.
Each fiduciary with respect to a Plan who is responsible for the
acquisition of Capital Securities by such Plan shall be deemed to have
represented and warranted for the benefit of the Company, the Issuer Trustees
and the Guarantee Trustee that the acquisition and holding of Capital Securities
by such Plan does not result in or give rise to a non-exempt prohibited
transaction by reason of the application of one or more of PTCE 84-14, 90-1,
91-38, 95-60 or 96-23.
THE OFFERINGS
Up to 2,000,000 Capital Securities are being offered for sale in the
Subscription Offering pursuant to the Subscription Offering Prospectus, as
described below. The Subscription Offering is being made to Eligible
Subscribers, who are the holders of record of the Common Stock of the Company as
of the close of business on September 18, 1997, the date chosen by the Company's
Board of Directors as the record date for purposes of determining stockholders
eligible to receive notice of and participate in the Subscription Offering (the
'Subscription Offering Record Date'). All Capital Securities offered in the
Subscription Offering and not sold to Eligible Subscribers, if any, are being
offered in the Public Offering by the Underwriter by means of this Prospectus.
See ' -- The Public Offering' below.
THE SUBSCRIPTION OFFERING
Nontransferable Subscription Rights to purchase up to 2,000,000 Capital
Securities are being issued pursuant to the Subscription Offering Prospectus at
no cost to all Eligible Subscribers. The Subscription Rights are
nontransferable. No person is required to subscribe for any Capital Securities
in the Subscription Offering. The Subscription Offering will expire at 5:00 p.m.
(New York City time) on the Subscription Offering Expiration Date.
The Subscription Rights entitle each Eligible Subscriber to purchase up to
the same percentage of the Capital Securities offered in the Subscription
Offering (rounded down to the nearest whole Capital Security) as the percentage
of the outstanding shares of Common Stock owned of record by the Eligible
Subscriber as of the Subscription Offering Record Date (such entitlement being
referred to as an Eligible Subscriber's 'Pro Rata Subscription Right'). Each
Eligible Subscriber also is being given the opportunity to purchase, in the
event the Subscription Offering is not fully subscribed pursuant to the Pro Rata
Subscription Rights, Capital Securities in excess of those allotted to him
pursuant to his Pro Rata Subscription Rights (the 'Excess Subscription Rights').
Certain directors and executive officers of the Company owning in the
aggregate approximately 24% of the Common Stock have informed the Company that
they presently intend to exercise their Pro Rata Subscription Rights and also
may exercise Excess Subscription Rights.
The Subscription Offering is not conditioned upon the sale of a minimum
Liquidation Amount of the Capital Securities and, further, is not conditioned
upon the completion of the Public Offering. The Subscription Offering may be
modified or terminated at any time and for any reason in the sole discretion of
the Company, on or prior to the Subscription Offering Expiration Date, by notice
to that effect delivered to the Sales Agent, followed by public notice.
The Company has retained the services of the Sales Agent in connection with
the Subscription Offering. For its services, the Company has agreed to pay the
Sales Agent a fee in the amount of $5,000. The Company also has agreed to
indemnify the Sales Agent and the Underwriter under certain circumstances
against certain liabilities and expenses, including liabilities under the
Securities Act. The
56
Company also has agreed to pay the Underwriter a financial advisory fee in an
amount equal to 1.2% of the aggregate Liquidation Amount of Capital Securities
offered in the Subscription Offering.
THE PUBLIC OFFERING
All Capital Securities not sold in the Subscription Offering, if any, are
being offered hereby to the public in the Public Offering by the Underwriter.
The price for the Capital Securities in the Public Offering will be the same as
in the Subscription Offering.
For its services, the Company has agreed to pay the Underwriter a fee in an
amount equal to 1.8% of the aggregate Liquidation Amount of Capital Securities
sold in the Public Offering. This fee is in addition to any financial advisory
fee paid in connection with the Subscription Offering, as described above. The
Company also has agreed to indemnify the Underwriter and certain other persons
under certain circumstances against certain liabilities and expenses, including
liabilities under the Securities Act and will contribute payments the
Underwriter may be required to make in respect thereof.
The Company has agreed, subject to certain exceptions, not to sell any
Common Stock or Capital Securities within 120 days from the date of the
commencement of the Public Offering without the written consent of the
Underwriter.
The Public Offering is being made by the Underwriter pursuant to the
requirements of Section 2810 of the Conduct Rules of the National Association of
Securities Dealers, Inc.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Capital
Securities will be passed upon on behalf of the Company and the Trust by
Richards, Layton & Finger P.A., special Delaware counsel to the Company and the
Trust. The validity under New York law of the Junior Subordinated Debentures and
the Guarantee will be passed upon for the Company and the Trust by Weil, Gotshal
& Manges LLP, New York, New York. Certain legal matters will be passed upon for
the Underwriter by Alston & Bird LLP, Washington, D.C. Weil, Gotshal & Manges
LLP will rely on Richards, Layton & Finger P.A. as to certain matters of
Delaware law.
EXPERTS
The consolidated financial statements of the Company as of September 30,
1996 and 1995 and for each of the years in the three-year period ended September
30, 1996, have been incorporated by reference herein and in the Registration
Statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
57
[This Page Intentionally Left Blank]
______________________________ _____________________________
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN CONTAINED OR INCORPORATED
BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY NEW YORK BANCORP INC., NEW YORK
BANCORP CAPITAL TRUST OR THE UNDERWRITER. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE
AFFAIRS OF NEW YORK BANCORP INC. OR NEW YORK BANCORP CAPITAL TRUST SINCE THE
DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY
ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER IS NOT QUALIFIED TO DO SO OR TO ANYONE TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
PAGE
----
Available Information......................... 1
Incorporation of Certain Documents by
Reference................................... 1
Prospectus Summary............................ 3
Risk Factors.................................. 8
New York Bancorp Inc.......................... 14
Use of Proceeds............................... 15
Ratios of Earnings to Fixed Charges........... 15
Capitalization................................ 16
Selected Consolidated Financial and Other
Data........................................ 17
The Trust..................................... 19
Description of Capital Securities............. 19
Description of Junior Convertible Subordinated
Debentures.................................. 32
Description of the Guarantee.................. 42
Relationship Among the Capital Securities, the
Junior Subordinated Debentures and the
Guarantee................................... 45
Description of New York Bancorp Inc. Capital
Stock....................................... 46
Certain Federal Income Tax Considerations..... 51
ERISA Considerations.......................... 55
The Offerings................................. 56
Legal Matters................................. 57
Experts....................................... 57
______________________________ _____________________________
______________________________ _____________________________
NEW YORK BANCORP
CAPITAL TRUST
UP TO 2,000,000
8.00% CONVERTIBLE TRUST PREFERRED
SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED,
TO THE EXTENT SET FORTH HEREIN, BY
NEW YORK BANCORP INC.
-------------------------
PROSPECTUS
-------------------------
KEEFE, BRUYETTE &
WOODS, INC.
, 1997
______________________________ _____________________________
PART II -- INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated amounts of the expenses of and related to the Offerings are
as follows:
Registration Fee -- Securities and Exchange Commission.................................... $ 15,152
NASD Fee.................................................................................. 5,500
NYSE Fee.................................................................................. 29,500
Printing and engraving expenses........................................................... 100,000
Underwriter's Subscription Offering advisory fee.......................................... 600,000
Accounting fees and expenses.............................................................. 27,000
Legal fees and expenses................................................................... 200,000
Trustees' and Sales Agent's fees and expenses............................................. 19,000
Information Agent's fee................................................................... 9,500
Miscellaneous............................................................................. 14,348
----------
Total................................................................................ $1,020,000
----------
----------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Certificate of Incorporation of the Company (the 'Company
Certificate') provides, as permitted be Section 102(b)(7) of the Delaware
General Corporation Law (the 'DGCL'), that a director of the Company shall not
be personally liable to the Company or its stockholders for monetary damages for
breach of a fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or
(iv) for any transaction from which the director derived an improper personal
benefit.
The Company Certificate further provides that each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative ('Proceeding'), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such Proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Company to the fullest extent authorized by
the DGCL, against all expenses, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that the
Company shall indemnify any such person seeking indemnity in connection with a
Proceeding (or part thereof) initiated by such person only if such Proceeding
(or part thereof) was authorized by the Company's Board of Directors.
Section 145 of the DGCL empowers a Delaware corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of such corporation or is or was serving at
the request of such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise. Such
indemnification may include expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding, provided that such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe such
person's conduct was unlawful. A Delaware corporation is permitted to indemnify
directors, officers, employees and other agents of such corporation in an action
by or in the right of the corporation under the same conditions, except
II-1
that no indemnification is permitted without judicial approval if the person to
be indemnified has been adjudged to be liable to the corporation. Where a
director, officer, employee or agent of the corporation is successful on the
merits or otherwise in the defense of any action, suit or proceeding referred to
above or in defense of any claim, issue or matter therein, the corporation must
indemnify such person against the expenses (including attorneys' fees) which he
or she actually and reasonably incurred in connection therewith.
ITEM 16. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- --------------------------------------------------------------------------------------------------------
1.1 --Form of Underwriting Agreement.*
4.1 --Restated Certificate of Incorporation of the Company.(1)
4.2 --Bylaws of the Company, as amended.(2)
4.3 --Certificate of Trust of New York Bancorp Capital Trust (the 'Trust'), dated August 28, 1997.(3)
4.4 --Form of Amended and Restated Declaration of Trust of the Trust, among the Company, as sponsor, the
Administrators party thereto, The Bank of New York (Delaware), as Delaware Trustee, The Bank of New
York, as Property Trustee and the holders from time to time of undivided interests in the assets of
the Trust.(3)
4.5 --Form of Indenture, between the Company and The Bank of New York, as Trustee.(3)
4.6 --Form of Capital Security Certificate (included in the Declaration filed as Exhibit 4.4 to this
Registration Statement).(3)
4.7 --Form of Junior Subordinated Debenture (included in the Indenture filed as Exhibit 4.5 to this
Registration Statement).(3)
4.8 --Form of Capital Securities Guarantee Agreement, between the Company and The Bank of New York, as
Guarantee Trustee.(3)
4.9 --Subscription Form and related letters.(3)
5.1 --Opinion of Richards, Layton & Finger P.A. as to validity of the Capital Securities.(3)
5.2 --Opinion of Weil, Gotshal & Manges LLP as to validity of the Junior Subordinated Debentures, the
Guarantee to be issued by the Company and the Common Stock issuable upon conversion of the Capital
Securities.(3)
8.1 --Opinion of Weil, Gotshal & Manges LLP as to certain federal income tax matters.(3)
12.1 --Statement of Computation of Ratios of Earnings to Fixed Charges.(3)
23.1 --Consent of KPMG Peat Marwick LLP, independent public accountants for the Company.
23.2 --Consent of Richards, Layton & Finger P.A. (included in the opinion filed as Exhibit 5.1 to this
Registration Statement).(3)
23.3 --Consent of Weil, Gotshal & Manges LLP (included in the opinion filed as Exhibit 5.2 to this
Registration Statement).(3)
23.4 --Consent of Weil, Gotshal & Manges LLP (included in the opinion filed as Exhibit 8.1 to this
Registration Statement).(3)
24.1 --Powers of Attorney.(3)
25.1 --Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the Declaration.(3)
25.2 --Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the Indenture.(3)
25.3 --Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the Guarantee.(3)
99.1 --Form of Letter to Stockholders.(3)
99.2 --Securities Offering Questions and Answers relating to the Subscription Offering.(3)
- ------------
* To be filed by amendment.
(1) Previously filed as Exhibit 3.1 to the Company's Annual Report on Form 10-K
for the year ended September 30, 1996 and incorporated herein by reference.
(2) Previously filed as Exhibit 3 to the Company's Annual Report on Form 10-K
for the year ended September 30, 1992 and incorporated herein by reference.
(3) Previously filed.
II-2
ITEM 17. UNDERTAKINGS.
(a) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, as amended (the 'Securities Act'),
each filing of the Company's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(c) The Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that if has reasonable grounds to believe that it meets all the
requirements for Filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Douglaston, State of New
York, on this 29th day of September, 1997.
NEW YORK BANCORP INC.
By: /S/ MICHAEL A. MCMANUS, JR.
.................................
MICHAEL A. MCMANUS, JR.
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to the Registration Statement has been signed
below by the following persons on behalf of the Company and in the capacities
indicated, on the date set forth above.
SIGNATURE TITLE DATE
- ------------------------------------------ -------------------------------------------- -------------------
* Chairman of the Board September 29, 1997
.........................................
(PATRICK E. MALLOY, III)
/s/ MICHAEL A. MCMANUS, JR. President and Chief Executive Officer September 29, 1997
...............................................
(MICHAEL A. MCMANUS, JR.)
* Senior Vice President, Controller, September 29, 1997
............................................... Secretary and Director (principal
(STAN I. COHEN) financial and accounting officer)
* Director September 29, 1997
...............................................
(JOSIAH T. AUSTIN)
* Director September 29, 1997
...............................................
(GERALDINE A. FERRARO)
* Director September 29, 1997
...............................................
(PETER D. GOODSON)
* Director September 29, 1997
...............................................
(JOHN E.D. GRUNOW)
* Director September 29, 1997
...............................................
(WALTER R. RUDDY)
* Director September 29, 1997
...............................................
(GENE A. WASHINGTON)
*By: /S/ MICHAEL A. MCMANUS, JR. September 29, 1997
...............................................
MICHAEL A. MCMANUS, JR.
ATTORNEY-IN-FACT
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, New York
Bancorp Capital Trust certifies that if has reasonable grounds to believe that
it meets all the requirements for Filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Douglaston,
State of New York on this 29th day of September 1997.
NEW YORK BANCORP CAPITAL TRUST
By: NEW YORK BANCORP INC.,
as Sponsor
By: /S/ MICHAEL A. MCMANUS, JR.
.................................
MICHAEL A. MCMANUS, JR.
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
II-5
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ---------------------------------------------------------------------------------------------------------
1.1 -- Form of Underwriting Agreement.*
4.1 -- Restated Certificate of Incorporation of the Company.(1)
4.2 -- Bylaws of the Company, as amended.(2)
4.3 -- Certificate of Trust of New York Bancorp Capital Trust (the 'Trust'), dated August 28, 1997.(3)
4.4 -- Form of Amended and Restated Declaration of Trust of the Trust, among the Company, as sponsor, the
Administrators party thereto, The Bank of New York (Delaware), as Delaware Trustee, The Bank of New
York, as Property Trustee and the holders from time to time of undivided interests in the assets of the
Trust.(3)
4.5 -- Form of Indenture, between the Company and The Bank of New York, as Trustee.(3)
4.6 -- Form of Capital Security Certificate (included in the Declaration filed as Exhibit 4.4 to this
Registration Statement).(3)
4.7 -- Form of Junior Subordinated Debenture (included in the Indenture filed as Exhibit 4.5 to this
Registration Statement).(3)
4.8 -- Form of Capital Securities Guarantee Agreement, between the Company and The Bank of New York, as
Guarantee Trustee.(3)
4.9 -- Subscription Form and related letters.(3)
5.1 -- Opinion of Richards, Layton & Finger P.A. as to validity of the Capital Securities.(3)
5.2 -- Opinion of Weil, Gotshal & Manges LLP as to validity of the Junior Subordinated Debentures, the
Guarantee to be issued by the Company and the Common Stock issuable upon conversion of the Capital
Securities.(3)
8.1 -- Opinion of Weil, Gotshal & Manges LLP as to certain federal income tax matters.(3)
12.1 -- Statement of Computation of Ratios of Earnings to Fixed Charges.(3)
23.1 -- Consent of KPMG Peat Marwick LLP, independent public accountants for the Company.
23.2 -- Consent of Richards, Layton & Finger P.A. (included in the opinion filed as Exhibit 5.1 to this
Registration Statement).(3)
23.3 -- Consent of Weil, Gotshal & Manges LLP (included in the opinion filed as Exhibit 5.2 to this
Registration Statement).(3)
23.4 -- Consent of Weil, Gotshal & Manges LLP (included in the opinion filed as Exhibit 8.1 to this
Registration Statement).(3)
24.1 -- Powers of Attorney.(3)
25.1 -- Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the Declaration.(3)
25.2 -- Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the Indenture.(3)
25.3 -- Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the Guarantee.(3)
99.1 -- Form of Letter to Stockholders.(3)
99.2 -- Securities Offering Questions and Answers relating to the Subscription Offering.(3)
- ------------
* To be filed by amendment.
(1) Previously filed as Exhibit 3.1 to the Company's Annual Report on Form 10-K
for the year ended September 30, 1996 and incorporated herein by reference.
(2) Previously filed as Exhibit 3 to the Company's Annual Report on Form 10-K
for the year ended September 30, 1992 and incorporated herein by reference.
(3) Previously filed.
STATEMENT OF DIFFERENCES
------------------------
The section symbol shall be expressed as...................'SS'