As filed with the Securities and Exchange Commission on April 19, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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New York Community Bancorp, Inc. Delaware 06-1377322
New York Community Capital Trust I Delaware Applied for
New York Community Capital Trust II Delaware Applied for
New York Community Capital Trust III Delaware Applied for
New York Community Capital Trust IV Delaware Applied for
New York Community Capital Trust V Delaware Applied for
(Exact name of registrants as (State or other jurisdiction of (I.R.S. Employer
specified in its charter) incorporation or organization) Identification No.)
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615 Merrick Avenue
Westbury, New York 11590
(516) 683-4100
(Address, including zip code, and telephone number, including area code, of
registrants' principal executive offices)
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Joseph R. Ficalora
President and Chief Executive Officer
New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
(516) 683-4100
(Name, address, including zip code, and telephone numbers, including area
code, of agent for service)
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Copies to:
Douglas P. Faucette
Victor L. Caragelosi, Esquire
Muldoon Murphy & Faucette LLP
5101 Wisconsin Avenue, N.W.
Washington, D.C. 20016
(202) 362-0840
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement as determined by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this 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 only in connection with dividend or interest
reinvestment plans, check the following box. [X]
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, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
(See next page)
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The registrants hereby amend this registration statement on such date or dates
as may be necessary to delay its effective date 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 Commission, acting pursuant to said Section 8(a),
may determine.
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of each class Amount to be offering price aggregate offering registration
of securities to be registered registered per unit(1) price(2) fee
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Debt Securities of New York Community Bancorp,
Inc.(3) ......................................... (5) (5) (5) (6)
Common Stock, including attached preferred share
purchase rights(4) .............................. (5) (5) (5) (6)
Preferred Securities of New York Community
Capital Trust I(6) .............................. (5) (5) (5) (6)
Preferred Securities of New York Community
Capital Trust II(6) ............................. (5) (5) (5) (6)
Preferred Securities of New York Community
Capital Trust III(6) ............................ (5) (5) (5) (6)
Preferred Securities of New York Community
Capital Trust IV(6) ............................. (5) (5) (5) (6)
Preferred Securities of New York Community
Capital Trust V(6) .............................. (5)
Guarantees by New York Community Bancorp, Inc. of
the above-referenced preferred securities(7) .... (5) (5) (5) (6)
Junior Subordinated Debentures of New York
Community Bancorp, Inc.(7) ...................... (5) (5) (5) (6)
Units(8) ........................................... (5) (5) (5) (6)
Warrants to purchase Common Stock of New York
Community Bancorp, Inc.(9) ...................... (5) (5) (5) (6)
Common Stock reserved for issuance upon exercise
of Warrants to purchase Common Stock(10) ........ (5) (5) (5) (6)
Total .............................................. $400,000,000(11) 100% $400,000,000(11) $36,800
(1) The proposed maximum offering price per unit will be determined from time
to time by the registrants in connection with the issuance by the
registrants of the securities registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933.
(3) Subject to note (11) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from time
to time, by New York Community Bancorp, Inc. ("NYCB").
(4) Subject to Note 11 below, there is being registered hereunder an
indeterminate number of shares of NYCB Common Stock, par value $0.01, as
from time to time may be issued at indeterminate prices. Each share of
Common Stock includes a right to purchase shares of NYCB participating
preferred stock, referenced to as the "rights." Prior to the occurrence of
certain events, none of which have occurred as of the date hereof, the
rights will not be exercisable or evidenced separately from the Common
Stock.
(5) Not applicable pursuant to General Instructions II.D. of Form S-3.
(6) Subject to note (11) below, there is being registered hereunder an
indeterminate number of Preferred Securities of New York Community Capital
Trust I, New York Community Capital Trust II, New York Community Capital
Trust III, New York Community Capital Trust IV and New York Community
Capital Trust V (collectively, the "Trusts") and an indeterminate principal
amount of Junior Subordinated Debentures of NYCB. A like principal amount
of Junior Subordinated Debentures may be issued and sold by NYCB to any of
the Trusts, in which event such Junior Subordinated Debentures may later be
distributed for no additional consideration to the holders of the Preferred
Securities of such Trust upon a dissolution of such Trust and the
distribution of the assets thereof.
(7) Includes the rights of holders of the Preferred Securities under the
Guarantees and certain back-up undertakings, comprised of the obligations
of NYCB under the Declaration of Trust of each Trust as borrower under the
Junior Subordinated Debentures, to provide certain indemnities in respect
of, and pay and be responsible for certain costs, expenses, debts and
liabilities of, each Trust (other than with respect to the Preferred
Securities) and such obligations of NYCB as set forth in the Declaration of
Trust of each Trust and the Subordinated Indenture, in each case as amended
from time to time and as further described in the Registration Statement.
The Guarantees, when taken together with NYCB's obligations under the
Junior Subordinated Debentures, the related Indenture and the Declaration
of Trust, will provide a full and unconditional guarantee on a subordinated
basis by NYCB of payments due on the Preferred Securities. No separate
consideration will be received for any Guarantees or such back-up
obligations.
(8) The Units consist of one preferred security of New York Community Capital
Trust V and a Warrant to purchase NYCB Common Stock.
(9) Subject to Note 11 below, there is being registered hereunder an
indeterminate number of Warrants as from time to time may be issued by NYCB
at indeterminate prices such warrants may be issued together with Preferred
Securities of the Trusts as described in Note 8 above.
(10) The Common Stock being registered consists of shares of underlying
Warrants. In accordance with Rule 416 under the Securities Act, this
registration statement also covers such indeterminate number of additional
shares as may become issuable upon the exercise of such Warrants to prevent
dilution from stock splits or stock dividends or similar transactions.
(11) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement exceed
$400,000,000 or the equivalent thereof in one or more foreign currencies,
foreign currency units, or composite currencies. If Debt Securities are
issued at original issue discount, NYCB may issue such higher principal
amount as may be sold for an initial public offering price of up to
$400,000,000 (less the dollar amount of any securities previously issued
hereunder), or the equivalent thereof in one or more foreign currencies,
foreign currency units, or composite currencies. The securities registered
hereunder may be sold separately or as units with other securities
registered hereunder.
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EXPLANATORY NOTE
This registration statement contains three forms of prospectus: (a) one to
be used in connection with the offering and sale of debt securities and common
stock, (b) one to be used in connection with the offering and sale of preferred
securities issued by Delaware statutory business trusts, the common securities
of which are owned by NYCB and (c) one to be used in connection with the
offering and sale of Units which are comprised of preferred securities and
warrants to purchase common stock.
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The information in this prospectus is not complete and may be changed. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission and has not yet been declared effective. The
securities may not be sold until the registration statement has been declared
effective. This prospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
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SUBJECT TO COMPLETION, DATED APRIL 19, 2002
PROSPECTUS
New York Community Bancorp, Inc.
Debt Securities
Common Stock
We may offer and sell from time to time, in one or more series, our
unsecured debt securities, which may consist of notes, debentures, or other
evidences of indebtedness, and shares of our common stock. This prospectus
provides you with a general description of the debt securities and the common
stock we may offer. Each time we offer debt securities and/or common stock, we
will provide you with a prospectus supplement, and, if necessary, a pricing
supplement, that will describe the specific amounts, prices and terms of the
securities being offered. These supplements may also add, update or change
information contained in this prospectus. To understand the terms of our debt
securities and our common stock, you should carefully read this prospectus with
the applicable supplements, which together provide the specific terms of the
debt securities and common stock that we are offering.
These securities are not deposits or obligations of a bank or savings
association and are not insured or guaranteed by the Federal Deposit Insurance
Corporation or any other governmental agency.
This prospectus may be used to offer and sell securities only if
accompanied by the prospectus supplement for those securities.
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Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined that this prospectus or the accompanying prospectus supplement is
truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is ,2002
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IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We may provide information to you about the securities we are offering
in three separate documents that progressively provide more detail:
. this prospectus, which provides general information, some of
which may not apply to your securities;
. the accompanying prospectus supplement, which describes the terms
of the securities, some of which may not apply to your
securities; and
. if necessary, a pricing supplement, which describes the specific
terms of your securities.
If the terms of your securities vary among the pricing supplement, the
prospectus supplement and the accompanying prospectus, you should rely on the
information in the following order of priority:
. the pricing supplement, if any;
. the prospectus supplement; and
. the prospectus.
2
We include cross-references in this prospectus and the accompanying
prospectus supplement to captions in these materials where you can find further
related discussions. The following Table of Contents and the Table of Contents
included in the accompanying prospectus supplement provide the pages on which
these captions are located.
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Unless indicated in the applicable prospectus supplement, we have not
taken any action that would permit us to publicly sell these securities in any
jurisdiction outside the United States. If you are an investor outside the
United States, you should inform yourself about and comply with any restrictions
as to the offering of the securities and the distribution of this prospectus.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS.......................................................
WHERE YOU CAN FIND MORE INFORMATION.........................................
FORWARD-LOOKING STATEMENTS..................................................
NEW YORK COMMUNITY BANCORP, INC.............................................
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES............................
USE OF PROCEEDS.............................................................
REGULATION AND SUPERVISION..................................................
DESCRIPTION OF DEBT SECURITIES..............................................
SENIOR DEBT SECURITIES......................................................
SUBORDINATED DEBT SECURITIES................................................
DESCRIPTION OF COMMON STOCK.................................................
PLAN OF DISTRIBUTION........................................................
LEGAL OPINIONS..............................................................
EXPERTS.....................................................................
3
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, the "SEC," utilizing a "shelf"
registration process. Under this shelf registration process, we may from time to
time sell the debt securities and/or common stock described in this prospectus
in one or more offerings, up to a total dollar amount of $400,000,000. We may
also sell other securities under the registration statement that will reduce the
total dollar amount of securities that we may sell under this prospectus. This
prospectus provides you with a general description of the debt securities and
common stock we may offer. Each time we sell debt securities and/or common
stock, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
Unless otherwise indicated or unless the context requires otherwise,
all references in this prospectus to "NYCB," "we," "us," "our" or similar
references mean New York Community Bancorp, Inc. and references to the "Bank"
means New York Community Bank.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the
Securities Act of 1933 that registers, among other securities, the offer and
sale of the securities offered by this prospectus. The registration statement,
including the attached exhibits and schedules included or incorporated by
reference in the registration statement, contains additional relevant
information about us. The rules and regulations of the SEC allow us to omit
certain information included in the registration statement from this prospectus.
In addition, we file reports, proxy statements and other information
with the SEC under the Securities Exchange Act of 1934, as amended, the
"Exchange Act". You may read and copy this information at the following
locations of the SEC:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
Northeast Regional Office
The Woolworth Building
233 Broadway
New York, New York 10279
Midwest Regional Office
500 West Madison Street
Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers like us who file
electronically with the SEC. The address of that site is:
http://www.sec.gov
The SEC allows us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document that we file separately with the SEC. The
information incorporated by reference is considered to be a part of this
prospectus, except for any information that is superseded by information that is
included directly in this document or in a more recent incorporated document.
4
This prospectus incorporates by reference the documents listed below
that we have previously filed with the SEC.
SEC Filings Period or Date (as applicable)
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Annual Report on Form 10-K Year ended December 31, 2001, as filed on
April 1, 2002
Quarterly Reports on Form 10-Q ------
Current Reports on Form 8-K ------
In addition, we also incorporate by reference all future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of our initial registration statement relating to the securities
until the completion of the distribution of the debt securities and common stock
covered by this prospectus. These documents include periodic reports, such as
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports
on Form 8-K (other than Current Reports furnished under Item 9 of Form 8-K), as
well as proxy statements.
The information incorporated by reference contains information about
us and our financial condition and is an important part of this prospectus.
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You can obtain any of the documents incorporated by reference in this
document through us, or from the SEC through the SEC's Internet world wide web
site at www.sec.gov. Documents incorporated by reference are available from us
without charge, excluding any exhibits to those documents, unless the exhibit is
specifically incorporated by reference as an exhibit in this prospectus. You can
obtain documents incorporated by reference in this prospectus by requesting them
in writing or by telephone from us at the following address:
Investor Relations Department
New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
(516) 683-4100
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, those
contained in this prospectus or in any of the materials that we have
incorporated into this prospectus. If anyone does give you information of this
sort, you should not rely on it. If you are in a jurisdiction where offers to
sell, or solicitations of offers to purchase, the securities offered by this
document are unlawful, or if you are a person to whom it is unlawful to direct
these types of activities, then the offer presented in this document does not
extend to you. The information contained in this document speaks only as of the
date of this document unless the information specifically indicates that another
date applies.
5
FORWARD-LOOKING STATEMENTS
This prospectus, including information included or incorporated by
reference, contains statements which are not historical facts but
"forward-looking statements" with respect to our financial condition, results of
operations, plans, objectives, future performance and business, as that term is
defined in the Private Securities Litigation Reform Act of 1995. These
forward-looking statements are subject to risks and uncertainties which could
cause actual results to differ materially from those currently anticipated due
to a number of factors, which include, but are not limited to, factors discussed
in documents that we file with the SEC from time to time.
These forward-looking statements may be identified by the use of such
words as "believe," "expect," "anticipate," "should," "planned," "estimated,"
"intend" and "potential." Examples of forward looking statements include, but
are not limited to, estimates with respect to our financial condition, expected
or anticipated revenue, results of operations and our business, including with
respect to:
. earnings growth (on both a generally accepted accounting
principles, or "GAAP," and cash basis);
. revenue growth in retail banking, lending and other areas;
. origination volume in our multi-family, consumer, commercial and
other lending businesses;
. current and future capital management programs;
. non-interest income levels, including fees from services and
product sales;
. tangible capital generation;
. market share;
. expense levels; and
. other business operations and strategies,
each of which are subject to various factors which could cause actual results to
differ materially from these estimates. Our ability to predict results or the
actual effect of future plans or strategies is inherently uncertain.
Factors which could have a material adverse effect on our operations
and those of our subsidiaries include, but are not limited to, changes in:
. interest rates;
. general economic conditions;
. monetary and fiscal policies of the U.S. Government, including
policies of the U.S. Treasury and the Federal Reserve Board;
. war or terrorist activities;
. the quality or composition of the loan or investment portfolios;
. demand for loan products;
. deposit flows;
. real estate values;
. the level of defaults;
. losses and prepayments on loans held by us in portfolio or sold
in the secondary markets;
. demand for financial services in our market area;
. competition;
. changes in accounting principles, policies, practices or
guidelines;
. changes in legislation or regulation; and
. other economic, competitive, governmental, regulatory, and
technological factors affecting our operations, pricing, products
and services.
These forward-looking statements are made as of the date of the
applicable document, and, except as required by applicable law, we assume no
obligation to update the forward-looking statements or to update the reasons why
actual results could differ from those projected in the forward-looking
statements.
You should consider these risks and uncertainties in evaluating
forward-looking statements and you should not place undue reliance on these
statements.
6
NEW YORK COMMUNITY BANCORP, INC.
New York Community Bancorp, Inc., formerly known as Queens County
Bancorp, Inc., was incorporated in the State of Delaware on July 20, 1993 as the
holding company for New York Community Bank, formerly known as Queens County
Savings Bank, the first savings bank chartered by the State of New York in the
Borough of Queens, on April 14, 1859. NYCB acquired all of the stock of the Bank
upon its conversion from a New York State-chartered mutual savings bank to a New
York State-chartered stock form savings bank on November 23, 1993.
On November 21, 2000, the Company changed its name from Queens County
Bancorp, Inc. to New York Community Bancorp, Inc., in anticipation of its
acquisition of Haven Bancorp, Inc. ("Haven"), parent company of CFS Bank. On
November 30, 2000, Haven was merged with and into the Company, and on January
31, 2001, CFS Bank merged with and into New York Community Bank.
On July 31, 2001, the Company completed a merger-of-equals with
Richmond County Financial Corp. ("Richmond County"), parent company of Richmond
County Savings Bank. At the same time, Richmond County Savings Bank merged with
and into the Bank.
The Bank currently serves its customers through a network of 114
banking offices including 53 traditional branches, 60 in-store branch offices
and one convenience center in New York City, Long Island, Rockland and
Westchester counties, and New Jersey, and operates through six divisions: Queens
County Savings Bank, Richmond County Savings Bank, CFS Bank, First Savings Bank
of New Jersey, Ironbound Bank, and South Jersey Bank. The Bank is in the process
of opening a new branch on Staten Island, New York and a new branch in Nassau
County. The Bank also expects its sale of seven New Jersey and Rockland County
branches to be completed in May 2002.
In addition to operating the largest supermarket banking franchise in
the metro New York region, the Bank is the second largest producer of
multi-family mortgage loans in the City of New York.
NYCB recorded total assets of $9.3 billion at March 31, 2002,
including total loans of $5.5 billion, and total deposits of $5.4 billion,
including core deposits of $3.2 billion.
The Bank is subject to comprehensive regulation, examination and
supervision by the New York State Banking Department, the "NYSBD," and the
Federal Deposit Insurance Corporation, the "FDIC". NYCB is subject to
regulation, examination and supervision by the Federal Reserve Board, the "FRB,"
as a bank holding company.
NYCB's principal executive offices are located at 615 Merrick Avenue,
Westbury, New York 11590 and its telephone number is (516) 683-4100.
Additional information about New York Community Bancorp, Inc. and its
subsidiaries is included in documents incorporated by reference in this
prospectus. See "Where You Can Find More Information" on page 4 of this
prospectus.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges were as follows
for the periods presented:
Three Months
Ended March 31, Year Ended December 31,
--------------- --------------------------------
2002 2001 2000 1999 1998 1997
--------------- ---- ---- ---- ---- ----
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits .......... 3.28 3.25 1.90 2.72 3.10 4.43
Including Interest on Deposits .......... 2.15 1.80 1.44 1.70 1.68 1.68
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For the purpose of computing the ratio of earnings to fixed charges,
"earnings" consist of income before income taxes and extraordinary item plus
fixed charges, excluding capitalized interest. "Fixed charges" consist of
interest on short-term and long-term debt, including interest related to
capitalized leases and capitalized interest, and one-third of rent expense,
which approximates the interest component of that expense. In addition, where
indicated, fixed charges include interest on deposits.
7
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities for
general corporate purposes unless otherwise indicated in the prospectus
supplement or pricing supplement relating to a specific issue of securities. Our
general corporate purposes may include repurchasing our outstanding common
stock, financing possible acquisitions of branches or other financial
institutions or financial service companies, extending credit to, or funding
investments in, our subsidiaries and repaying, reducing or refinancing
indebtedness.
The precise amounts and the timing of our use of the net proceeds will
depend upon market conditions, our subsidiaries' funding requirements, the
availability of other funds and other factors. Until we use the net proceeds
from the sale of any of our securities for general corporate purposes, we will
use the net proceeds to reduce our indebtedness or for temporary investments. We
expect that we will, on a recurrent basis, engage in additional financings as
the need arises to finance our corporate strategies, to fund our subsidiaries,
to finance acquisitions or otherwise.
8
REGULATION AND SUPERVISION
Our principal subsidiary, New York Community Bank, is a New York
State-chartered savings bank and is subject to regulation and supervision by the
NYSBD, its chartering agency, and by the FDIC. As the holding company for New
York Community Bank, NYCB is a bank holding company subject to regulation and
supervision by the FRB.
Because we are a holding company, our rights and the rights of our
creditors, including the holders of the debt securities and common stock we are
offering under this prospectus, to participate in the assets of any of our
subsidiaries upon the subsidiary's liquidation or reorganization will be subject
to the prior claims of the subsidiary's creditors, except to the extent that we
may ourselves be a creditor with recognized claims against the subsidiary.
In addition, dividends, loans and advances from New York Community
Bank are restricted by federal and state statutes and regulations. Under
applicable banking statutes, at March 31, 2002, the Bank could have declared
additional dividends of approximately $195.1 million without further regulatory
approval. The FDIC, the FRB and the NYSBD 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 such subsidiary bank.
In addition, there are various statutory and regulatory limitations on
the extent to which New York Community Bank can finance or otherwise transfer
funds to us or to our nonbanking subsidiaries, whether in the form of loans,
extensions of credit, investments or asset purchases. These general extensions
of credit by New York Community Bank to us or a nonbanking subsidiary are
limited in amount to 10% of its capital and surplus and, with respect to us and
all such nonbanking subsidiaries, to an aggregate of 20% of its capital and
surplus. Furthermore, loans and extensions of credit are required to be secured
in specified amounts and are required to be on terms and conditions consistent
with safe and sound banking practices.
For a discussion of the material elements of the regulatory framework
applicable to bank holding companies and their subsidiaries, and specific
information relevant to us, you should refer to our Annual Report on Form 10-K
for the year ended December 31, 2001, and any other subsequent reports filed by
us with the SEC, which are incorporated by reference in this prospectus. This
regulatory framework is intended primarily for the protection of depositors and
the deposit insurance funds that insure deposits of banks, rather than for the
protection of security holders. A change in the statutes, regulations or
regulatory policies applicable to us or our subsidiaries may have a material
effect on our business.
Changes to the laws and regulations can affect the operating
environment of bank holding companies and their subsidiaries in substantial and
unpredictable ways. We cannot accurately predict whether those changes in laws
and regulations will occur, and, if those changes occur, the ultimate effect
they would have upon our or our subsidiaries' financial condition or results of
operations.
9
DESCRIPTION OF DEBT SECURITIES
We may issue senior debt securities or subordinated debt securities.
Senior debt securities will be issued under an indenture, dated as of ,
------
2002, the "senior indenture," between us and Wilmington Trust Company, as senior
trustee. Subordinated debt securities will be issued under an indenture, dated
as of , 2002, the "subordinated indenture," between us and Wilmington
------
Trust Company, as subordinated trustee. A copy of each of these indentures are
exhibits to the registration statement of which this prospectus is a part.
The senior debt securities will be unsecured and will rank equally
with all of our other unsecured and senior indebtedness. The subordinated debt
securities will be unsecured and will be subordinated to all of our existing and
future senior indebtedness and other financial obligations, as described under
"Subordinated Debt Securities -- Subordination" beginning on page 17.
The following describes the general terms and provisions of the debt
securities to be offered by any prospectus supplement. The particular terms of
the debt securities offered by any prospectus supplement and the extent, if any,
to which these general provisions may apply to the debt securities so offered,
will be described in the prospectus supplement relating to those securities. The
following descriptions of the indentures are not complete and are subject to,
and are qualified in their entirety by reference to, all the provisions of the
respective indentures.
General
The indentures permit us to issue the debt securities from time to
time, without limitation as to aggregate principal amount and in one or more
series. Also, we may from time to time to incur additional indebtedness which
may be senior to the debt securities. Neither the indentures nor the debt
securities will limit or otherwise restrict the amount of other indebtedness
which we may incur or other securities which we or our subsidiaries may issue,
including indebtedness which may rank senior to the debt securities. In this
regard, nothing in the subordinated indenture or in the terms of the
subordinated debt securities will prohibit the issuance of securities
representing subordinated indebtedness that is senior or junior to the
subordinated debt securities.
We may issue debt securities if the conditions contained in the
indentures are satisfied. These conditions include the adoption of resolutions
by our board of directors and a certificate of an authorized officer that
establishes the terms of the debt securities being issued. Any resolution or
officer's certificate approving the issuance of any issue of debt securities
will include the terms of that issue of debt securities, including:
. the title and series designation;
. the aggregate principal amount and the limit, if any, on the
aggregate principal amount or initial issue price of the debt
securities which may be issued under the applicable indenture;
. the principal amount payable, whether at maturity or upon earlier
acceleration;
. whether the principal amount payable will be determined with
reference to an index, formula or other method which may be
calculated, by using, among other measurements, the value of
currencies, securities or baskets of securities, commodities, or
indices to which any such amount payable is linked;
. whether the debt securities will be issued as original issue
discount securities (as defined below);
. the date or dates on which the principal of the debt securities
is payable;
. any fixed or variable interest rate or rates per annum or the
method or formula for determining an interest rate;
. the date from which any interest will accrue;
. any interest payment dates;
. whether the debt securities are senior or subordinated, and if
subordinated, the terms of the subordination if different from
that summarized in this prospectus;
. the price or prices at which the debt securities will be issued,
which may be expressed as a percentage of the aggregate principal
amount of those debt securities;
. the stated maturity date;
. whether the debt securities are to be
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issued in global form;
. any sinking fund requirements;
. any provisions for redemption, the redemption price and any
remarketing arrangements;
. the minimum denominations;
. whether the debt securities are denominated or payable in United
States dollars or a foreign currency or units of two or more
foreign currencies;
. any restrictions on the offer, sale and delivery of the debt
securities;
. information with respect to book-entry procedures;
. the place or places where payments or deliveries on the debt
securities will be made and may be presented for registration of
transfer or exchange;
. whether any of the debt securities will be subject to defeasance
in advance of the date for redemption or the stated maturity
date;
. whether and how we may satisfy our obligations with regard to
payment upon maturity, any redemption, required repurchase, any
exchange provisions or interest payment through the delivery to
holders of other securities, which may or may not be issued by
us, or a combination of cash, securities and/or property,
"maturity consideration";
. the terms, if any, upon which the debt securities are convertible
into other securities of ours or another issuer and the terms and
conditions upon which any conversion will be effected, including
the initial conversion price or rate, the conversion period and
any other provisions in addition to or instead of those described
in this prospectus; and
. any other terms of the debt securities which are not inconsistent
with the provisions of the applicable indenture.
The debt securities may be issued as "original issue discount
securities" which bear no interest or interest at a rate which at the time of
issuance is below market rates and which will be sold at a substantial discount
below their principal amount. If the maturity of any original issue discount
security is accelerated, the amount payable to the holder of the security will
be determined by the applicable prospectus supplement, the terms of the security
and the relevant indenture, but will be an amount less than the amount payable
at the maturity of the principal of that original issue discount security.
Special federal income tax and other considerations relating to original issue
discount securities will be described in the applicable prospectus supplement.
Please see the accompanying prospectus supplement or pricing
supplement you have received or will receive for the terms of the specific debt
securities we are offering.
You should be aware that special U.S. Federal income tax, accounting
and other considerations may apply to the debt securities. The prospectus
supplement relating to an issue of debt securities will describe these
considerations.
Registration and Transfer
Unless otherwise indicated in the applicable prospectus supplement, we
will issue each series of debt securities in registered form only, without
coupons.
Holders may present debt securities in registered form for transfer or
exchange for other debt securities of the same series at the offices of the
trustee according to the terms of the applicable indenture.
Unless otherwise indicated in the applicable prospectus supplement,
the debt securities issued in fully registered form will be issued without
coupons and in denominations of (1) $1,000 or integral multiples of $1,000 for
any senior debt security and (2) $100,000 or any integral multiple of $100,000
in excess of $ for any subordinated debt security.
------
No service charge will be required for any transfer or exchange of the
debt securities but we may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection with any transfer or
exchange.
Payment and Place of Payment
We will pay or deliver principal, maturity consideration and any
premium and interest in the manner, at the places and subject to the
restrictions set forth in the applicable indenture, the debt securities and the
applicable prospectus supplement. However, at our option, we may pay any
interest by
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check mailed to the holders of registered debt securities at their registered
addresses.
Global Securities
Each indenture provides that we may issue debt securities in global
form. If any series of debt securities is issued in global form, the prospectus
supplement will describe any circumstances under which beneficial owners of
interests in any of those global debt securities may exchange their interests
for debt securities of that series and of like tenor and principal amount in any
authorized form and denomination.
Events of Default
The following are events of default under the senior indenture with
respect to the senior debt securities:
. default in the payment of any principal or premium on senior debt
securities when due;
. default in the payment of any interest on senior debt securities
when due, which continues for 30 days;
. default in the delivery or payment of the maturity consideration
on senior debt securities when due;
. default in the deposit of any sinking fund payment on senior debt
securities when due;
. default in the performance of any other obligation contained in
the applicable indenture for the benefit of that series or in the
senior debt securities of that series, which continues for 60
days after written notice;
. default in the payment of any of our other indebtedness or the
indebtedness of any principal constituent bank (as defined below)
(whether currently existing or created in the future) having an
original or principal amount of $5,000,000 or more which results
in acceleration of that indebtedness and we have not made that
payment or the obligation to make that payment has not been
waived or extended within 30 days of default or any acceleration
has not been rescinded or annulled within 30 days of the related
declaration;
. specified events in bankruptcy, insolvency or reorganization of
us or any principal constituent bank; and
. any other event of default provided with respect to senior debt
securities of any series.
If an event of default (other than an event of default arising from
specified events in bankruptcy of us or any principal constituent bank) occurs
and is continuing for any series of senior debt securities, the senior trustee
or the holders of not less than 25% in aggregate principal amount or issue price
of the outstanding securities of that series may declare all amounts, or any
lesser amount provided for in the senior debt securities of that series, to be
due and payable or deliverable immediately.
The following are the only events of default under the subordinated
indenture with respect to the subordinated debt securities:
. specified events in bankruptcy, insolvency or reorganization; and
. any other event of default provided with respect to subordinated
debt securities of any series.
If an event of default occurs and is continuing for any series of
subordinated debt securities, the subordinated trustee or the holders of not
less than 25% in aggregate principal amount or issue price of the outstanding
securities of that series may declare all amounts, or any lesser amount provided
for in the subordinated debt securities of that series, to be due and payable or
deliverable immediately; provided, however, the subordinated trustee and the
holders of subordinated debt securities will not be entitled to accelerate the
maturity of the subordinated debt securities in the case of a default in the
performance of any covenant with respect to the subordinated debt securities,
including the payment of interest and principal or the delivery of the maturity
consideration.
If a default occurs and is continuing under the subordinated
indenture, the subordinated trustee may, in its discretion and subject to
certain conditions, seek to enforce its rights and the rights of the holders of
the subordinated debt securities by appropriate judicial proceedings. The
following are defaults under the subordinated indenture with respect to
subordinated debt securities of any series:
. any event of default with respect to subordinated debt securities
of that series;
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. default in the payment of any principal or premium on
subordinated debt securities of that series when due;
. default in the payment of any interest or subordinated debt
securities of that series when due, which continues for 30 days;
. default in the delivery or payment of the maturity consideration
on subordinated debt securities of that series when due;
. default in the performance of any other obligation contained in
the applicable indenture for the benefit of that series or in the
subordinated debt securities of that series, which continues for
60 days after written notice; and
. any other default provided with respect to subordinated debt
securities of that series.
At any time after the trustee or the holders have accelerated a series
of debt securities, but before the trustee has obtained a judgment or decree for
payment of money due or delivery of the maturity consideration, the holders of a
majority in aggregate principal amount or issue price of outstanding debt
securities of that series may rescind and annul that acceleration and its
consequences, provided that all payments and/or deliveries due, other than those
due as a result of acceleration, have been made and all events of default have
been remedied or waived.
The holders of a majority in principal amount or aggregate issue price
of the outstanding debt securities of any series may waive any default with
respect to that series, except a default:
. in the payment of any amounts due and payable or deliverable
under the debt securities of that series; or
. in an obligation contained in, or a provision of, an indenture
which cannot be modified under the terms of that indenture
without the consent of each holder of each series of debt
securities affected.
The holders of a majority in principal amount or issue price of the
outstanding debt securities of a series may direct the time, method and place of
conducting any proceeding for any remedy available to the applicable trustee or
exercising any trust or power conferred on the trustee with respect to debt
securities of that series, provided that any direction is not in conflict with
any rule of law or the indenture. Subject to the provisions of the indenture
relating to the duties of the trustee, before proceeding to exercise any right
or power under the indenture at the direction of the holders, the trustee is
entitled to receive from those holders reasonable security or indemnity against
the costs, expenses and liabilities which it might incur in complying with any
direction.
A holder of any debt security of any series will have the right to
institute a proceeding with respect to the indenture or for any remedy under the
indenture, if:
. that holder previously gives to the trustee written notice of a
continuing event of default with respect to debt securities of
that series;
. the holders of not less than 25% for any senior debt security, or
a majority for any subordinated debt security, in aggregate
principal amount or issue price of the outstanding debt
securities of that series also will have made written request and
offered the trustee indemnity satisfactory to the trustee to
institute that proceeding as trustee;
. the trustee will not have received from the holders of a majority
in principal amount or issue price of the outstanding debt
securities of that series a direction inconsistent with the
request; and
. the trustee will have failed to institute the proceeding within
60 days.
However, any holder of a debt security has the absolute right to
institute suit for any defaulted payment after the due dates for payment under
that debt security.
We are required to furnish to the trustees annually a statement as to
the performance of our obligations under the indentures and as to any default in
that performance.
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Modification and Waiver
We and the applicable trustee may amend and modify each indenture with
the consent of holders of at least 66 2/3% in principal amount or issue price of
each series of debt securities issued under that indenture affected. However,
without the consent of each holder of any debt security issued under the
applicable indenture, we may not amend or modify that indenture to:
. change the stated maturity date of the principal or maturity
consideration of, or any installment of principal or interest on,
any debt security issued under that indenture;
. reduce the principal amount or maturity consideration of, the
rate of interest on, or any premium payable upon the redemption
of any debt security issued under that indenture;
. reduce the amount of principal or maturity consideration of an
original issue discount security issued under that indenture
payable upon acceleration of its maturity;
. change the place or currency of payment of principal or maturity
consideration of, or any premium or interest on, any debt
security issued under that indenture;
. impair the right to institute suit for the enforcement of any
payment or delivery on or with respect to any debt security
issued under that indenture;
. reduce the percentage in principal amount or issue price of debt
securities of any series issued under that indenture, the consent
of whose holders is required to modify or amend the indenture or
to waive compliance with certain provisions of the indenture;
. make any change relating to the subordination of the debt
securities in a manner adverse to the holders of those debt
securities or, in the case of subordinated debt securities, in a
manner adverse to holders of senior indebtedness, unless the
holders of senior indebtedness consent to that change under the
terms of that senior indebtedness; or
. reduce the percentage in principal amount or issue price of debt
securities of any series issued under that indenture, the consent
of whose holders is required to waive any past default.
The holders of at least a majority in principal amount or issue price
of the outstanding debt securities of any series issued under that indenture
may, with respect to that series, waive past defaults under the indenture,
except as described under "-- Events of Default" beginning on page 12.
We and the trustee may also amend and modify each indenture without
the consent of any holder for any of the following purposes:
. to evidence the succession of another person to us;
. to add to our covenants for the benefit of the holders of all or
any series of securities;
. to add events of default;
. to add or change any provisions of the indentures to facilitate
the issuance of bearer securities;
. to change or eliminate any of the provisions of the applicable
indenture, so long as any such change or elimination will become
effective only when there is no outstanding security of any
series which is entitled to the benefit of that provision;
. to establish the form or terms of debt securities of any series;
. to evidence and provide for the acceptance of appointment by a
successor trustee;
. to cure any ambiguity, to correct or supplement any provision in
the applicable indenture, or to make any other provisions with
respect to matters or questions arising under that indenture, so
long as the interests of holders of debt securities of any series
are not adversely affected in any material respect under that
indenture;
. to convey, transfer, assign, mortgage or pledge any property to
or with the trustee securing the debt securities; or
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. to provide for conversion rights of the holders of the debt
securities of any series to enable those holders to convert those
securities into other securities.
Consolidation, Merger and Sale of Assets
Unless otherwise indicated in the applicable prospectus supplement, we
may consolidate or merge with or into any other corporation, and we may sell,
lease or convey all or substantially all of our assets to any corporation,
provided that:
. the resulting corporation, if other than us, is a corporation
organized and existing under the laws of the United States of
America or any U.S. state and assumes all of our obligations to:
. pay or deliver the principal or maturity consideration of, and
any premium, or interest on, the debt securities; and
. perform and observe all of our other obligations under the
indentures; and
. we are not, or any successor corporation, as the case may be, is
not, immediately after any consolidation or merger, in default
under the indentures.
Neither of the indentures provides for any right of acceleration in
the event of a consolidation, merger, sale of all or substantially all of the
assets, recapitalization or change in our stock ownership. In addition, the
indentures do not contain any provision which would protect the holders of debt
securities against a sudden and dramatic decline in credit quality resulting
from takeovers, recapitalizations or similar restructurings.
Regarding the Trustee
The trustee provides trust services to us and our affiliates in
connection with certain trust preferred securities that we currently have
outstanding.
The occurrence of any default under either the senior indenture, the
subordinated indenture or the indenture between us and the trustee relating to
our junior subordinated debentures, which may also be issued under this
registration statement, could create a conflicting interest for the trustee
under the Trust Indenture Act. If that default has not been cured or waived
within 90 days after the trustee has or acquired a conflicting interest, the
trustee would generally be required by the Trust Indenture Act to eliminate that
conflicting interest or resign as trustee with respect to the debt securities
issued under the senior indenture or the subordinated indenture, or with respect
to the junior subordinated debentures issued to certain Delaware statutory
business trusts of ours under a separate indenture. If the trustee resigns, we
are required to promptly appoint a successor trustee with respect to the
affected securities.
The Trust Indenture Act also imposes certain limitations on the right
of the trustee, as a creditor of us, to obtain payment of claims in certain
cases, or to realize on certain property received in respect to any cash claim
or otherwise. The trustee will be permitted to engage in other transactions with
us, provided that, if it acquires a conflicting interest within the meaning of
Section 310 of the Trust Indenture Act, it must generally either eliminate that
conflict or resign.
International Offering
If specified in the applicable prospectus supplement, we may issue
debt securities outside the United States. Those debt securities will be
described in the applicable prospectus supplement. In connection with any
offering outside the United States, we will designate paying agents, registrars
or other agents with respect to the debt securities, as specified in the
applicable prospectus supplement.
We will describe in the applicable prospectus supplement whether our
debt securities issued outside the United States: (1) may be subject to certain
selling restrictions; (2) may be listed on one or more foreign stock exchanges;
and (3) may have special United States tax and other considerations applicable
to an offering outside the United States.
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SENIOR DEBT SECURITIES
The senior debt securities will be our direct, unsecured obligations
and will rank equally with all of our other outstanding senior indebtedness.
Restrictive Covenants
Disposition of Voting Stock of Certain Subsidiaries. We may not sell
or otherwise dispose of, or permit the issuance of, any voting stock or any
security convertible or exercisable into voting stock of a "principal
constituent bank" of ours or any subsidiary of ours which owns a controlling
interest in a principal constituent bank. A "principal constituent bank" is a
bank subsidiary that has total assets equal to 30% or more of our assets.
Currently, our only principal constituent bank is New York Community Bank. Any
designation of a banking subsidiary as a principal constituent bank with respect
to senior debt securities of any series will remain effective until the senior
debt securities of that series have been repaid. As of the date of this
prospectus, no banking subsidiaries other than New York Community Bank have been
designated as principal constituent banks with respect to any series of debt
securities.
This restriction does not apply to dispositions made by us or any
subsidiary:
. acting in a fiduciary capacity for any person other than us or
any subsidiary;
. to us or any of our wholly-owned subsidiaries;
. if required by law for the qualification of directors;
. to comply with an order of a court or regulatory authority;
. in connection with a merger of, or consolidation of, a principal
constituent bank with or into a wholly-owned subsidiary or a
majority-owned banking subsidiary, as long as we hold, directly
or indirectly, in the entity surviving that merger or
consolidation, not less than the percentage of voting stock we
held in the principal constituent bank prior to that action;
. if that disposition or issuance is for fair market value as
determined by our board of directors, and, if after giving effect
to that disposition or issuance and any potential dilution, we
and our wholly-owned subsidiaries will own directly not less than
80% of the voting stock of that principal constituent bank or any
subsidiary which owns a principal constituent bank;
. if a principal constituent bank sells additional shares of voting
stock to its stockholders at any price, if, after that sale, we
hold directly or indirectly not less than the percentage of
voting stock of that principal constituent bank we owned prior to
that sale; or
. if we or a subsidiary pledges or creates a lien on the voting
stock of a principal constituent bank to secure a loan or other
extension of credit by a majority-owned banking subsidiary
subject to Section 23A of the Federal Reserve Act.
Limitation upon Liens on Certain Capital Stock. We may not at any
time, directly or indirectly, create, assume, incur or permit to exist any
mortgage, pledge, encumbrance or lien or charge of any kind upon:
. any shares of capital stock of any principal constituent bank,
other than directors' qualifying shares; or
. any shares of capital stock of a subsidiary which owns capital
stock of any principal constituent bank.
This restriction does not apply to:
. liens for taxes, assessments or other governmental charges or
levies which are not yet due or are payable without penalty or
which we are contesting in good faith by appropriate proceedings
so long as we have set aside on our books adequate reserves to
cover the contested amount; or
. the lien of any judgment, if that judgment is discharged, or
stayed on appeal or otherwise, within 60 days.
Defeasance
We may terminate or "defease" our obligations under the senior
indenture with respect to the senior debt securities of any series by taking the
following steps:
(1) depositing irrevocably with the senior
16
trustee an amount which through the payment of interest, principal or
premium, if any, will provide an amount sufficient to pay the entire
amount of the senior debt securities:
. in the case of senior debt securities denominated in U.S.
dollars, U.S. dollars or U.S. government obligations;
. in the case of senior debt securities denominated in a foreign
currency, money in that foreign currency or foreign government
obligations of the foreign government or governments issuing that
foreign currency; or
. a combination of money and U.S. government obligations or foreign
government obligations;
(2) delivering:
. an opinion of independent counsel that the holders of the senior
debt securities of that series will have no federal income tax
consequences as a result of that deposit and termination;
. if the senior debt securities of that series are then listed on a
national or regional securities exchange in the United States, an
opinion of counsel that those senior debt securities will not be
delisted as a result of the exercise of this defeasance option;
. an opinion of counsel as to certain other matters;
. officers' certificates certifying as to compliance with the
senior indenture and other matters; and
. paying all amounts due under the senior indenture.
Further, the defeasance cannot cause an event of default under the
senior indenture or any other agreement or instrument and no default under the
senior indenture or any such other agreement or instrument can exist at the time
the defeasance occurs.
SUBORDINATED DEBT SECURITIES
The subordinated debt securities will be our direct, unsecured
obligations. Unless otherwise specified in the applicable prospectus supplement,
the subordinated debt securities will rank equally with all of our outstanding
subordinated indebtedness that is not specifically stated to be junior to the
subordinated debt securities.
Subordination
The subordinated debt securities will be subordinated in right of
payment to all "senior indebtedness," as defined below. In certain circumstances
relating to our liquidation, dissolution, winding up, reorganization, insolvency
or similar proceedings, the holders of all senior indebtedness will first be
entitled to receive payment in full before the holders of the subordinated debt
securities will be entitled to receive any payment on the subordinated debt
securities.
If the maturity of any debt securities is accelerated, we will have to
repay all senior indebtedness before we can make any payment on the subordinated
debt securities.
In addition, we may make no payment on the subordinated debt
securities in the event:
. there is a default in any payment or delivery with respect to any
senior indebtedness; or
. there is an event of default with respect to any senior
indebtedness which permits the holders of that senior
indebtedness to accelerate the maturity of the senior
indebtedness.
By reason of this subordination in favor of the holders of senior
indebtedness, in the event of an insolvency, our creditors who are not holders
of senior indebtedness or the subordinated debt securities may recover less,
proportionately, than holders of senior indebtedness and may recover more,
proportionately, than holders of the subordinated debt securities.
Unless otherwise specified in the prospectus supplement relating to
the particular series of subordinated debt securities, "senior indebtedness" is
defined in the subordinated indenture as:
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. the principal of, premium, if any, and interest on all of our
"indebtedness for money borrowed," as defined below, except (A)
other subordinated debt securities issued under the subordinated
indenture, (B) any indebtedness which is expressly stated to be
junior in right of payment to the subordinated debt securities
and (C) indebtedness which is expressly stated to rank equally
with the subordinated debt securities;
. all of our obligations to make payment pursuant to the terms of
financial instruments, such as (A) securities contracts and
foreign currency exchange contracts, (B) derivative instruments,
such as swap agreements, including interest rate and foreign
exchange rate swap agreements, cap agreements, floor agreements,
collar agreements, interest rate agreements, foreign exchange
rate agreements, options, commodity futures contracts, commodity
option contracts, and (C) similar financial instruments, other
than obligations on account of senior indebtedness and
obligations on account of indebtedness for money borrowed ranking
equally with or subordinate to the subordinated debt securities;
and
. any deferrals, renewals or extensions of any senior indebtedness.
The term "indebtedness for money borrowed" means:
. any of our obligations or any obligation we have guaranteed for
the repayment of borrowed money, whether or not evidenced by
bonds, debentures, notes or other written instruments; and
. any of our deferred payment obligations or any such obligation we
have guaranteed for the payment of the purchase price of property
or assets evidenced by a note or similar instrument.
As of March 31, 2002, we had no subordinated debt outstanding.
However, as of March 31, 2002, NYCB has fully and unconditionally guaranteed the
obligations of $190.6 million in trust preferred securities issued by trust
subsidiaries of NYCB.
The subordinated indenture does not limit or prohibit the incurrence
of additional senior indebtedness, which may include indebtedness that is senior
to the subordinated debt securities, but subordinate to our other obligations.
Any prospectus supplement relating to a particular series of subordinated debt
securities will set forth the aggregate amount of our indebtedness senior to the
subordinated debt securities as of a recent practicable date.
The subordinated debt securities will rank equally in right of payment
with each other.
The prospectus supplement may further describe the provisions, if any,
which may apply to the subordination of the subordinated debt securities of a
particular series.
Restrictive Covenants
The subordinated indenture does not contain any significant
restrictive covenants. The prospectus supplement relating to a series of
subordinated debt securities may describe certain restrictive covenants, if any,
to which we may be bound under the subordinated indenture.
DESCRIPTION OF COMMON STOCK
Company
NYCB, which is incorporated under the General Corporation Law of the
State of Delaware, is authorized to issue 150,000,000 shares of its common
stock, $0.01 par value, of which 102,182,204 shares were issued and outstanding
as of March 31, 2002. NYCB's board of directors may at any time, without
additional approval of the holders of common stock, issue additional authorized
but previously unissued shares of common stock.
Voting Rights
The holders of common stock are entitled to one vote per share on all
matters presented to shareholders. Holders of common stock are not entitled to
cumulate their votes in the election of directors.
No Preemptive or Conversion Rights
The holders of common stock do not have preemptive rights to subscribe
for a proportionate share of any additional securities issued by NYCB before
such securities are offered to others. The absence of preemptive rights
increases NYCB's flexibility to issue additional shares of common stock in
connection with NYCB's acquisitions, employee benefit plans and for other
purposes, without
18
affording the holders of common stock a right to subscribe for their
proportionate share of those additional securities. The holders of common stock
are not entitled to any redemption privileges, sinking fund privileges or
conversion rights.
Dividends
Holders of common stock are entitled to receive dividends ratably
when, as and if declared by NYCB's board of directors from assets legally
available therefor, after payment of all dividends on preferred stock, if any is
outstanding. Under Delaware Law, NYCB may pay dividends out of surplus or net
profits for the fiscal year in which declared and/or for the preceding fiscal
year, even if its surplus accounts are in a deficit position. Dividends paid by
its subsidiary Bank are the primary source of funds available to NYCB for
payment of dividends to its stockholders and for other needs. NYCB's board of
directors intends to maintain its present policy of paying regular quarterly
cash dividends. The declaration and amount of future dividends will depend on
circumstances existing at the time, including NYCB's earnings, financial
condition and capital requirements, as well as regulatory limitations and such
other factors as NYCB's board of directors deems relevant. See "Regulation and
Supervision " on page 9.
NYCB's principal assets and sources of income consist of investments
in its operating subsidiaries, which are separate and distinct legal entities.
Liquidation
Upon liquidation, dissolution or the winding up of the affairs of
NYCB, holders of common stock are entitled to receive their pro rata portion of
the remaining assets of NYCB after the holders of NYCB's preferred stock have
been paid in full any sums to which they may be entitled.
Certain Charter and Bylaw Provisions Affecting Stock
NYCB's Certificate of Incorporation and Bylaws contain several
provisions that may make NYCB a less attractive target for an acquisition of
control by anyone who does not have the support of NYCB's board of directors.
Such provisions include, among other things, the requirement of a supermajority
vote of stockholders or directors to approve certain business combinations and
other corporate actions, a minimum price provision, several special procedural
rules, a staggered board of directors, and the limitation that stockholders
actions without a meeting may only be taken by unanimous written stockholder
consent. The foregoing is qualified in its entirely by reference to NYCB's
Certificate of Incorporation, as amended, and Bylaws both of which are on file
with the SEC.
Restrictions on Ownership
The Bank Holding Company Act of 1956, the "BHC Act," generally would
prohibit any company that is not engaged in banking activities and activities
that are permissible for a bank holding company or a financial holding company
from acquiring control of NYCB. "Control" is generally defined as ownership of
25% or more of the voting stock or other exercise of a controlling influence. In
addition, any existing bank holding company would need the prior approval of the
FRB before acquiring 5% or more of the voting stock of NYCB. In addition, the
Change in Bank Control Act of 1978, as amended, prohibits a person or group of
persons from acquiring control of a bank holding company unless the FRB has been
notified and has not objected to the transaction. Under a rebuttable presumption
established by the FRB, the acquisition of 10% or more of a class of voting
stock of a bank holding company with a class of securities registered under
Section 12 of the Exchange Act, such as NYCB, would, under the circumstances set
forth in the presumption, constitute acquisition of control of the bank holding
company.
NYCB Stockholder Protection Rights Agreement
The following is a description of the rights issued under the NYCB
stockholder protection rights agreement, as amended. This description is subject
to, and is qualified in its entirety by reference to, the text of the rights
agreement. A description of the rights agreements specifying the terms of the
rights has been included in reports filed by NYCB under the Securities Exchange
Act. See "Where You Can Find More Information" on page 4.
Each issued share of NYCB common stock has attached to it one right
issued pursuant to a Stockholder Protection Rights Agreement, dated as of
January 16, 1996 and amended on March 27, 2001, between NYCB and Mellon Investor
Services L.L.C., as rights agent. Each right entitles its holder to purchase one
one-hundredth of a share of participating preferred stock of NYCB at an exercise
price of $120, subject to adjustment, after the separation time, which means
after the close of business on the earlier of:
. the tenth business day after commencement of a tender or exchange
offer that, if consummated, would result in the offeror becoming
an "acquiring person," which is defined in the rights agreement
as a person
19
beneficially owning 10% or more of the outstanding shares of NYCB
common stock; and
. the tenth business day after the first date of public
announcement that a person has become an acquiring person, which
is also called the flip-in date.
The rights are not exercisable until the business day following the
separation time. The rights expire on the earlier of
. the close of business on January 16, 2006;
. redemption, as described below;
. an exchange for common stock, as described below; or
. the merger of NYCB into another corporation pursuant to an
agreement entered into prior to a flip-in date.
The NYCB board of directors may, at any time prior to the occurrence
of a flip-in date, redeem all the rights at a price of $0.01 per right.
If a flip-in date occurs, each right, other than those held by the
acquiring person or any affiliate or associate of the acquiring person or by any
transferees of any of these persons, will constitute the right to purchase
shares of NYCB common stock having an aggregate market price equal to $240 in
cash, subject to adjustment. In addition, the NYCB board of directors may, at
any time between a flip-in date and the time that an acquiring person becomes
the beneficial owner of more than 50% of the outstanding shares of NYCB common
stock, elect to exchange the rights for shares of NYCB common stock at an
exchange ratio of one share of NYCB common stock per right.
Under the rights agreement, after a flip-in date occurs, NYCB may not
consolidate or merge, or engage in other similar transactions, with an acquiring
person without entering into a supplemental agreement with the acquiring person
providing that, upon consummation or occurrence of the transaction, each right
shall thereafter constitute the right to purchase common stock of the acquiring
person having an aggregate market price equal to $240 in cash, subject to
adjustment.
These rights may not prevent a takeover of NYCB. The rights, however,
may have antitakeover effects. The rights may cause substantial dilution to a
person or group that acquires 10% or more of the outstanding NYCB common stock
unless the rights are first redeemed by the NYCB board of directors.
On March 27, 2001, NYCB and Mellon amended the rights agreement to
substantially prevent the merger agreement with Richmond County, the stock
option agreements with Richmond County, and the merger with Richmond County from
triggering the provisions of the rights agreement.
PLAN OF DISTRIBUTION
We may sell securities:
. to the public through a group of underwriters managed or
co-managed by one or more underwriters;
. through one or more agents; or
. directly to purchasers.
The distribution of the securities may be effected from time to time
in one or more transactions:
. at a fixed price, or prices, which may be changed from time to
time;
. at market prices prevailing at the time of sale;
. at prices related to those prevailing market prices; or
. at negotiated prices.
Each prospectus supplement will describe the method of distribution of
the securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a
particular series will describe the terms of the offering of the securities,
including the following:
. the name of the agent or the name or names of any underwriters;
20
. the public offering or purchase price;
. any discounts and commissions to be allowed or paid to the agent
or underwriters;
. all other items constituting underwriting compensation;
. any discounts and commissions to be allowed or paid to dealers;
and
. any exchanges on which the securities will be listed.
We may agree to enter into an agreement to indemnify the agents and
the several underwriters against certain civil liabilities, including
liabilities under the Securities Act or to contribute to payments the agents or
the underwriters may be required to make.
If so indicated in the applicable prospectus supplement, we will
authorize underwriters or other persons acting as our agents to solicit offers
by certain institutions to purchase debt securities from us pursuant to delayed
delivery contracts providing for payment and delivery on the date stated in the
prospectus supplement. Each contract will be for an amount not less than, and
the aggregate amount of securities sold pursuant to those contracts will be
equal to, the respective amounts stated in the prospectus supplement.
Institutions with whom the contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions, but
will in all cases be subject to our approval. Delayed delivery contracts will
not be subject to any conditions except that:
. the purchase by an institution of the debt securities covered
under that contract will not at the time of delivery be
prohibited under the laws of the jurisdiction to which that
institution is subject; and
. if the debt securities are also being sold to underwriters acting
as principals for their own account, the underwriters will have
purchased those debt securities not sold for delayed delivery.
The underwriters and other persons acting as our agents will not
have any responsibility in respect of the validity or performance
of delayed delivery contracts.
Certain of the underwriters and their associates and affiliates may be
customers of, have borrowing relationships with, engage in other transactions
with, and/or perform services, including investment banking services, for, us or
one or more of our affiliates in the ordinary course of business.
LEGAL OPINIONS
The validity of the securities offered hereby will be passed upon for
us by Muldoon Murphy & Faucette LLP, Washington, D.C.
EXPERTS
The consolidated financial statements of NYCB and subsidiaries as of
December 31, 2001 and December 31, 2000 and for each of the years in the
three-year period ended December 31, 2001 have been incorporated by reference
herein in reliance upon the report, also incorporated by reference herein, of
KPMG LLP, independent certified public accountants, and upon the authority of
said firm as experts in accounting and auditing. The report of KPMG LLP refers
to changes, in 2001, in NYCB's methods of accounting for goodwill and intangible
assets resulting from business combinations consummated after June 30, 2001.
21
[LOGO]
New York Community Bancorp, Inc.
$400,000,000
DEBT SECURITIES
COMMON STOCK
------------------
PROSPECTUS
, 2002
------
------------------
================================================================================
********************************************************************************
The information in this prospectus is not complete and may be changed. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission and has not yet been declared effective. The
securities may not be sold until the registration statement has been declared
effective. This prospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
********************************************************************************
SUBJECT TO COMPLETION, DATED APRIL 19, 2002
PROSPECTUS
[logo]
New York Community Capital Trust I
New York Community Capital Trust II
New York Community Capital Trust III
New York Community Capital Trust IV
Preferred Securities
fully and unconditionally guaranteed, as described in this prospectus and the
accompanying prospectus supplement, by
New York Community Bancorp, Inc.
The Trusts:
The trusts are Delaware business trusts. Each trust may:
. sell preferred securities representing undivided beneficial interests
in the trust to the public;
. sell common securities representing undivided beneficial interests in
the trust to New York Community Bancorp, Inc.;
. use the proceeds from these sales to buy an equal principal amount of
junior subordinated debentures of New York Community Bancorp, Inc.;
and
. distribute the cash payments it receives on the junior subordinated
debentures it owns to the holders of the preferred and common
securities.
Distributions:
. For each preferred security that you own, you will receive cumulative
cash distributions on the liquidation amount of the preferred
security. The rate at which cash distributions will be paid and the
liquidation amount per preferred security will be set forth in the
accompanying prospectus supplement.
New York Community Bancorp, Inc.:
. New York Community Bancorp, Inc. will fully and unconditionally
guarantee the payment by the trust of the preferred securities as
described in this prospectus.
This prospectus provides you with a general description of the preferred
securities each trust may offer. Each time a trust offers preferred securities,
we will provide you with a prospectus supplement that will describe the specific
amounts, prices and terms of the preferred securities being offered. These
supplements may also add, update or change information contained in this
prospectus. To understand the terms of the preferred securities, you should
carefully read this prospectus with the applicable supplements, which together
provide the specific terms of the preferred securities that the trusts are
offering.
These securities are not deposits or obligations of a bank or savings
association and are not insured or guaranteed by the Federal Deposit Insurance
Corporation or any other governmental agency.
This prospectus may be used to offer and sell securities, only if
accompanied by the prospectus supplement for those securities.
----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus or the accompanying prospectus supplement is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2002
------
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We provide information to you about the securities we are offering in two
separate documents that progressively provide more detail:
... this prospectus, which provides general information, some of which may not
apply to your securities; and
... the accompanying prospectus supplement, which describes the specific and
final terms of your securities.
If the terms of your securities vary between the prospectus supplement and
the accompanying prospectus, you should rely on the information in the following
order of priority:
... the prospectus supplement; and
... the prospectus.
We include cross-references in this prospectus and the accompanying
prospectus supplement to captions in these materials where you can find further
related discussions. The following Table of Contents and the Table of Contents
included in the accompanying prospectus supplement provide the pages on which
these captions are located.
----------
Unless indicated in the applicable prospectus supplement, we have not
taken any action that would permit us to publicly sell these securities in any
jurisdiction outside the United States. If you are an investor outside the
United States, you should inform yourself about and comply with any restrictions
as to the offering of the securities and the distribution of this prospectus.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS ..........................................................
WHERE YOU CAN FIND MORE INFORMATION ............................................
FORWARD-LOOKING STATEMENTS .....................................................
NEW YORK COMMUNITY BANCORP, INC. ...............................................
THE TRUSTS .....................................................................
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES ...............................
USE OF PROCEEDS ................................................................
REGULATION AND SUPERVISION .....................................................
DESCRIPTION OF THE PREFERRED SECURITIES ........................................
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES .............................
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES ..............................
EFFECT OF OBLIGATIONS UNDER THE JUNIOR SUBORDINATED DEBENTURES
AND THE PREFERRED SECURITIES GUARANTEES .....................................
PLAN OF DISTRIBUTION ...........................................................
LEGAL MATTERS ..................................................................
EXPERTS ........................................................................
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, the "SEC," utilizing a "shelf"
registration process. Under this shelf registration process, we may from time to
time sell the preferred securities described in this prospectus in one or more
offerings up to a total dollar amount of $400,000,000. We may also sell other
securities under the registration statement that will reduce the total dollar
amount of securities that we may sell under this prospectus. This prospectus
provides you with a general description of the securities we may offer. Each
time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with the additional information described under the heading "Where You
Can Find More Information."
Unless otherwise indicated or unless the context requires otherwise,
all references in this prospectus to "NYCB," "we," "us," "our" or similar
references mean New York Community Bancorp, Inc. and references to the "Bank"
means New York Community Bank.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the
Securities Act of 1933 that registers, among other securities, the offer and
sale of the securities offered by this prospectus. The registration statement,
including the attached exhibits and schedules included or incorporated by
reference in the registration statement, contains additional relevant
information about us. The rules and regulations of the SEC allow us to omit
certain information included in the registration statement from this prospectus.
In addition, we file reports, proxy statements and other information
with the SEC under the Securities Exchange Act of 1934, as amended, the
"Exchange Act". You may read and copy this information at the following
locations of the SEC:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
Northeast Regional Office
The Woolworth Building
233 Broadway
New York, New York 10279
Midwest Regional Office
500 West Madison Street
Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers like us who file
electronically with the SEC. The address of that site is:
http://www.sec.gov
------------------
The SEC allows us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document that we file separately with the SEC. The
information incorporated by reference is considered to be a part of this
prospectus, except for any information that is superseded by information that is
included directly in this document or in a more recent incorporated document.
2
This prospectus incorporates by reference the documents listed below
that we have previously filed with the SEC.
SEC Filings Period or Date (as applicable)
----------- ------------------------------
Annual Report on Form 10-K Year ended December 31, 2001, as filed on
April 1, 2002
Quarterly Reports on Form 10-Q
-------------------------------------------
Current Reports on Form 8-K
-------------------------------------------
In addition, we also incorporate by reference all future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of our initial registration statement relating to the securities
until the completion of the distribution of the securities covered by this
prospectus. These documents include periodic reports, such as Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K (other
than Current Reports furnished under Item 9 of Form 8-K), as well as proxy
statements.
The information incorporated by reference contains information about
us and our financial condition and is an important part of this prospectus.
----------
You can obtain any of the documents incorporated by reference in this
document through us, or from the SEC through the SEC's Internet world wide web
site at www.sec.gov. Documents incorporated by reference are
available from us without charge, excluding any exhibits to those documents,
unless the exhibit is specifically incorporated by reference as an exhibit in
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Investor Relations Department
New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
(516) 683-4100
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, those
contained in this prospectus or in any of the materials that we have
incorporated into this prospectus. If anyone does give you information of this
sort, you should not rely on it. If you are in a jurisdiction where offers to
sell, or solicitations of offers to purchase, the securities offered by this
document are unlawful, or if you are a person to whom it is unlawful to direct
these types of activities, then the offer presented in this document does not
extend to you. The information contained in this document speaks only as of the
date of this document unless the information specifically indicates that another
date applies.
We have not included separate financial statements for each of the
trusts in this prospectus. We do not believe that holders of the preferred
securities would find these financial statements meaningful because:
. all of the voting securities of each of the trusts will be owned,
directly or indirectly, by NYCB, a reporting company under the
Exchange Act;
. each of the trusts has no independent assets, operations,
revenues or cash flows and exists for the sole purpose of issuing
the preferred securities and investing the proceeds in junior
subordinated debentures issued by NYCB;
. NYCB's obligations described in this prospectus and in any
accompanying prospectus supplement constitute a full and
unconditional guarantee of payments due on the preferred
securities; and
. The trusts do not file reports with the SEC.
3
FORWARD-LOOKING STATEMENTS
This prospectus, including information included or incorporated by
reference, contains statements which are not historical facts but
"forward-looking statements" with respect to our financial condition, results of
operations, plans, objectives, future performance and business, as that term is
defined in the Private Securities Litigation Reform Act of 1995. These
forward-looking statements are subject to risks and uncertainties which could
cause actual results to differ materially from those currently anticipated due
to a number of factors, which include, but are not limited to, factors discussed
in documents that we file with the SEC from time to time.
These forward-looking statements may be identified by the use of such
words as "believe," "expect," "anticipate," "should," "planned," "estimated,"
"intend" and "potential." Examples of forward looking statements include, but
are not limited to, estimates with respect to our financial condition, expected
or anticipated revenue, results of operations and our business, including with
respect to:
. earnings growth (on both a generally accepted accounting
principles, or "GAAP," and cash basis);
. revenue growth in retail banking, lending and other areas;
. origination volume in our multi-family, consumer, commercial and
other lending businesses;
. current and future capital management programs;
. non-interest income levels, including fees from services and
product sales;
. tangible capital generation;
. market share;
. expense levels; and
. other business operations and strategies,
each of which are subject to various factors which could cause actual results to
differ materially from these estimates. Our ability to predict results or the
actual effect of future plans or strategies is inherently uncertain.
Factors which could have a material adverse effect on our operations
and those of our subsidiaries include, but are not limited to, changes in:
. interest rates;
. general economic conditions;
. monetary and fiscal policies of the U.S. Government, including
policies of the U.S. Treasury and the Federal Reserve Board;
. war or terrorist activities;
. the quality or composition of the loan or investment portfolios;
. demand for loan products;
. deposit flows;
. real estate values;
. the level of defaults;
. losses and prepayments on loans held by us in portfolio or sold
in the secondary markets;
. demand for financial services in our market area;
. competition;
. changes in accounting principles, policies, practices or
guidelines;
. changes in legislation or regulation; and
. other economic, competitive, governmental, regulatory, and
technological factors affecting our operations, pricing, products
and services.
These forward-looking statements are made as of the date of the
applicable document, and, except as required by applicable law, we assume no
obligation to update the forward-looking statements or to update the reasons why
actual results could
4
differ from those projected in the forward-looking statements.
You should consider these risks and uncertainties in evaluating
forward-looking statements and you should not place undue reliance on these
statements.
NEW YORK COMMUNITY BANCORP, INC.
New York Community Bancorp, Inc. ("NYCB"), formerly known as Queens
County Bancorp, Inc., was incorporated in the State of Delaware on July 20, 1993
as the holding company for New York Community Bank, formerly known as Queens
County Savings Bank, the first savings bank chartered by the State of New York
in the Borough of Queens, on April 14, 1859. NYCB acquired all of the stock of
the Bank upon its conversion from a New York State-chartered mutual savings bank
to a New York State-chartered stock form savings bank on November 23, 1993.
On November 21, 2000, the Company changed its name from Queens County
Bancorp, Inc. to New York Community Bancorp, Inc., in anticipation of its
acquisition of Haven Bancorp, Inc. ("Haven"), parent company of CFS Bank. On
November 30, 2000, Haven was merged with and into the Company, and on January
31, 2001, CFS Bank merged with and into New York Community Bank.
On July 31, 2001, the Company completed a merger-of-equals with
Richmond County Financial Corp. ("Richmond County"), parent company of Richmond
County Savings Bank. At the same time, Richmond County Savings Bank merged with
and into the Bank.
The Bank currently serves its customers through a network of 114
banking offices including 53 traditional branches, 60 in-store branch offices
and one convenience center in New York City, Long Island, Rockland and
Westchester counties, and New Jersey, and operates through six divisions: Queens
County Savings Bank, Richmond County Savings Bank, CFS Bank, First Savings Bank
of New Jersey, Ironbound Bank, and South Jersey Bank. The Bank is in the process
of opening a new branch on Staten Island, New York and a new branch in Nassau
County. The Bank also expects its sale of seven New Jersey and Rockland County
branches to be completed in May 2002.
In addition to operating the largest supermarket banking franchise in
the metro New York region, the Bank is the second largest producer of
multi-family mortgage loans in the City of New York.
The Company recorded total assets of $9.3 billion at March 31, 2002,
including total loans of $5.5 billion, and total deposits of $5.4 billion,
including core deposits of $3.2 billion.
The Bank is subject to comprehensive regulation, examination and
supervision by the New York State Banking Department, the "NYSBD," and the
Federal Deposit Insurance Corporation, the "FDIC". NYCB is subject to
regulation, examination and supervision by the Federal Reserve Board, the "FRB,"
as a bank holding company.
NYCB's principal executive offices are located at 615 Merrick Avenue,
Westbury, New York 11590 and its telephone number is (516) 683-4100.
Additional information about New York Community Bancorp, Inc. and its
subsidiaries is included in documents incorporated by reference in this
prospectus. See "Where You Can Find More Information" on page 2 of this
prospectus.
THE TRUSTS
Each of the trusts is a statutory business trust formed under Delaware
law pursuant to a declaration of trust, each an "initial declaration," executed
by NYCB, as sponsor for the trusts, and the NYCB capital trustees, as defined
below, for the trusts, and the filing of a certificate of trust with the
Delaware Secretary of State.
Each trust exists for the exclusive purposes of:
. issuing the preferred securities and common securities
representing undivided beneficial interests in the assets of the
trust;
. investing the gross proceeds of the preferred securities and the
common securities, together the "trust securities," in junior
subordinated debentures issued by NYCB; and
5
. engaging in only those other activities necessary or incidental
to the activities described in the previous two bullets.
All of the common securities will be directly or indirectly owned by
NYCB. The common securities of each trust will rank equally, and payments will
be made pro rata, with the preferred securities of that trust, except that upon
an event of default under the declaration (as defined below, the rights of the
holders of the common securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise will be subordinated to the
rights of the holders of the preferred securities. NYCB will, directly or
indirectly, purchase common securities of each trust in an aggregate liquidation
amount equal to at least 3% of the total capital of each trust.
Each trust's business and affairs will be conducted by the trustees,
the "NYCB capital trustees." Unless an event of default has occurred and is
continuing, as a direct or indirect holder of all the common securities, NYCB
will be entitled to appoint, remove or replace any of, or increase or reduce the
number of, the NYCB capital trustees of a trust. The duties and obligations of
the NYCB capital trustees will be governed by the declaration of that NYCB
capital trust. One or more of the NYCB capital trustees for each trust will be
persons who are employees or officers of or persons affiliated with NYCB, the
"administrative trustees." One NYCB capital trustee of each trust will be a
financial institution which will be unaffiliated with NYCB and which will act as
property trustee under the declaration and as indenture trustee for purposes of
the Trust Indenture Act of 1939, as amended, the "Trust Indenture Act," pursuant
to the terms set forth in a prospectus supplement. In addition, unless the
property trustee maintains a principal place of business in Delaware, and
otherwise meets the requirements of applicable law, one NYCB capital trustee of
each trust will have its principal place of business or reside in the State of
Delaware.
Each NYCB capital trust has a term of approximately 55 years, but may
dissolve earlier as provided in the applicable declaration.
NYCB will pay all fees and expenses related to the NYCB capital trusts
and the offering of trust securities.
The office of the Delaware trustee for each trust in Delaware, and its
principal place of business is Wilmington Trust Company, Attention: Corporate
Trust Administration, Rodney Square North 1100 North Market Street, Wilmington,
Delaware 19890. The principal place of business of each trust will be c/o New
York Community Bancorp, Inc., 615 Merrick Avenue, Westbury, New York 11590.
6
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
NYCB's consolidated ratios of earnings to fixed charges were as
follows for the periods presented:
Three Months
Ended March 31, Year Ended December 31,
--------------- --------------------------------
2002 2001 2000 1999 1998 1997
---- ---- ---- ---- ---- ----
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits .... 3.28 3.25 1.90 2.72 3.10 4.43
Including Interest on Deposits .... 2.15 1.80 1.44 1.70 1.68 1.68
- ----------
For the purpose of computing the ratio of earnings to fixed charges,
"earnings" consist of income before income taxes and extraordinary item plus
fixed charges, excluding capitalized interest. "Fixed charges" consist of
interest on short-term and long-term debt, including interest related to
capitalized leases and capitalized interest, and one-third of rent expense,
which approximates the interest component of that expense. In addition, where
indicated, fixed charges include interest on deposits.
7
USE OF PROCEEDS
Each trust will use the proceeds of the sale of the trust securities
to acquire junior subordinated debentures from NYCB. NYCB intends to use the net
proceeds from the sale of the junior subordinated debentures for general
corporate purposes unless otherwise indicated in the prospectus supplement.
NYCB's general corporate purposes may include repurchasing its outstanding
common stock, financing possible acquisitions of branches or other financial
institutions or financial service companies, extending credit to, or funding
investments in, its subsidiaries and repaying, reducing or refinancing
indebtedness. The precise amounts and the timing of NYCB's use of the net
proceeds will depend upon market conditions, its subsidiaries' funding
requirements, the availability of other funds and other factors. Until NYCB uses
the net proceeds for general corporate purposes, it will use the net proceeds to
reduce its indebtedness or for temporary investments. NYCB expects that it will,
on a recurrent basis, engage in additional financings as the need arises to
finance its corporate strategies, to fund its subsidiaries, to finance
acquisitions or otherwise.
REGULATION AND SUPERVISION
Our principal subsidiary, New York Community Bank, is a New York
State-chartered savings bank and is subject to regulation and supervision by the
NYSBD, its chartering agency, and by the FDIC. As the holding company for New
York Community Bank, NYCB is a bank holding company subject to regulation and
supervision by the FRB.
Because we are a holding company, our rights and the rights of our
creditors, including the holders of the securities we are offering under this
prospectus, to participate in the assets of any of our subsidiaries upon the
subsidiary's liquidation or reorganization will be subject to the prior claims
of the subsidiary's creditors, except to the extent that we may ourselves be a
creditor with recognized claims against the subsidiary.
In addition, dividends, loans and advances from New York Community
Bank are restricted by federal and state statutes and regulations. Under
applicable banking statutes, at March 31, 2002, the Bank could have declared
additional dividends of approximately $195.1 million without further regulatory
approval. The FDIC, the FRB and the NYSBD 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 such subsidiary bank.
In addition, there are various statutory and regulatory limitations on
the extent to which New York Community Bank can finance or otherwise transfer
funds to us or to our nonbanking subsidiaries, whether in the form of loans,
extensions of credit, investments or asset purchases. These general extensions
of credit by New York Community Bank to us or a nonbanking subsidiary are
limited in amount to 10% of its capital and surplus and, with respect to us and
all such nonbanking subsidiaries, to an aggregate of 20% of its capital and
surplus. Furthermore, loans and extensions of credit are required to be secured
in specified amounts and are required to be on terms and conditions consistent
with safe and sound banking practices.
For a discussion of the material elements of the regulatory framework
applicable to bank holding companies and their subsidiaries, and specific
information relevant to us, you should refer to our Annual Report on Form 10-K
for the year ended December 31, 2001 and any other subsequent reports filed by
us with the SEC, which are incorporated by reference in this prospectus. This
regulatory framework is intended primarily for the protection of depositors and
the deposit insurance funds that insure deposits of banks, rather than for the
protection of security holders. A change in the statutes, regulations or
regulatory policies applicable to us or our subsidiaries may have a material
effect on our business.
Changes to the laws and regulations can affect the operating
environment of bank holding companies and their subsidiaries in substantial and
unpredictable ways. We cannot accurately predict whether those changes in laws
and regulations will occur, and, if those changes occur, the ultimate effect
they would have upon our or our subsidiaries' financial condition or results of
operations.
DESCRIPTION OF THE PREFERRED SECURITIES
Each trust may issue only one series of preferred securities having
terms described in the accompanying prospectus supplement. Each series of
preferred securities will be issued pursuant to the
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terms of an amended and restated declaration of trust, a "declaration." Each
declaration will be qualified as an indenture under the Trust Indenture Act.
Wilmington Trust Company will act as trustee under the declaration for purposes
of compliance with the provisions of the Trust Indenture Act.
The preferred securities will have those terms, including
distribution, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as will be set forth in
the declaration or made part of the declaration by the Trust Indenture Act. The
terms of the preferred securities will mirror the terms of the junior
subordinated debentures of NYCB in which the applicable trust invests the
proceeds from the sale of preferred securities. The terms of the preferred
securities and the junior subordinated debentures are described in the
accompanying prospectus supplement and may include:
. the distinctive designation of the preferred securities;
. the number of preferred securities issuable by the trust;
. the annual distribution rate, or method of determining that rate,
for preferred securities and the date or dates upon which those
distributions will be payable;
. whether distributions on preferred securities will be cumulative,
and, if so, the date or dates or method of determining the date
or dates from which distributions on preferred securities will be
cumulative;
. the amount or amounts which will be paid out of the assets of the
applicable trust to the holders of preferred securities upon
voluntary or involuntary dissolution, winding-up or termination
of that trust;
. the obligation, if any, of the applicable trust to purchase or
redeem preferred securities issued by that trust and the price or
prices at which, the period or periods within which, and the
terms and conditions upon which, preferred securities issued by
that trust will be purchased or redeemed, in whole or in part,
pursuant to that obligation;
. the voting rights, if any, of holders of preferred securities in
addition to those required by law or described in this prospectus
supplement, including the number of votes per preferred security
and any requirement for the approval by the holders of preferred
securities, or of preferred securities issued by one or more
other trusts, or of both, as a condition to specified action or
amendments to the declaration of the trust;
. the terms and conditions, if any, upon which NYCB can redeem the
junior subordinated debentures prior to the first optional
redemption date, if any;
. the terms and conditions, if any, upon which the junior
subordinated debentures owned by the trust may be distributed to
holders of preferred securities;
. if applicable, any securities exchange upon which the preferred
securities will be listed; and
. any other relevant rights, preferences, privileges, limitations
or restrictions of preferred securities not inconsistent with the
declaration or with applicable law.
All preferred securities will be guaranteed by NYCB to the extent set
forth below under "Description of the Preferred Securities Guarantees."
Certain United States federal income tax considerations applicable to
any offering of preferred securities will be described in the prospectus
supplement relating to the offering.
Deferral of Distributions of Preferred Securities
NYCB may, on one or more occasions, defer payments of interest on the
junior subordinated debentures as described under "Description of Junior
Subordinated Debentures." In the event NYCB elects to defer interest payments on
any series of its junior subordinated debentures, the applicable trust will also
defer distributions on its preferred securities. During this deferral period,
distributions will continue to accrue at the rate specified in the applicable
prospectus supplement. If NYCB elects to defer interest payments on the junior
subordinated debentures, it will be restricted from making
9
payments on its capital stock and other capital instruments as described in the
applicable prospectus supplement.
Voting Rights
Except as described in this prospectus, under the Delaware Business
Trust Act, the Trust Indenture Act, under "Description of the Preferred
Securities Guarantees--Modification of the Preferred Securities Guarantees;
Assignment" in this prospectus, and under any prospectus supplement relating to
the issuance of a series of preferred securities, and as otherwise required by
law and the declarations, the holders of the preferred securities will have no
voting rights.
The holders of a majority in aggregate liquidation amount, in a
specified series, of the preferred securities have the right to direct any
proceeding for any remedy available to the property trustee so long as the
property trustee receives the tax opinion discussed below. The holders also have
the right to direct the property trustee under the declaration to:
(1) direct any proceeding for any remedy available to the trustee of
the indenture under which the junior subordinated debentures will be
issued and purchased by the applicable trust, or exercising any trust
or power conferred on the debenture trustee;
(2) waive any past indenture event of default that is waivable under
the indenture;
(3) exercise any right to rescind or annul an acceleration of the
maturity of the junior subordinated debentures; or
(4) consent to any amendment, modification or termination where that
consent is required.
If there is an event of default on the preferred securities, and that
default is a result of a payment default under the junior subordinated
debentures, the holders of the preferred securities may also sue NYCB directly,
a "direct action," to enforce payment of the principal of, or interest on, the
junior subordinated debentures having a principal amount equal to the aggregate
liquidation amount of the preferred securities of the holder on or after the due
date specified in the junior subordinated debentures.
Where a consent or action under the indenture would require the
consent or act of holders of more than a majority in principal amount of the
junior subordinated debentures, called a "super majority," then only a super
majority may direct the property trustee to give that consent or take that
action. Where a consent or action under the indenture would require the consent
or act of holders of more than a majority in principal amount of the junior
subordinated debentures, then only a majority may direct the property trustee to
give that consent or take that action. Where a consent or action under the
indenture would require the consent or act of individual holders of the junior
subordinated debentures, then only those individual holders may direct the
property trustee to give that consent or take that action. If the property
trustee fails to enforce its rights under the junior subordinated debentures, to
the fullest extend permitted by law, any record holder of preferred securities
may directly sue NYCB to enforce the property trustee's rights under the junior
subordinated debentures. The record holder does not have to sue the property
trustee or any other person or entity before enforcing his or her rights.
The property trustee is required to notify all holders of the
preferred securities of any notice of default received from the indenture
trustee. The notice is required to state that the event of default also
constitutes a declaration event of default. Except for directing the time,
method and place of conducting a proceeding for a remedy available to the
property trustee, the property trustee will not take any of the actions
described in clauses (1), (2), (3) or (4) above unless the property trustee
receives an opinion of counsel, experienced in such matters stating that, as a
result of that action, the trust will not fail to be classified as a grantor
trust for United States federal income tax purposes.
If the consent of the property trustee is required under the indenture
for any amendment, modification or termination of the indenture, the property
trustee is required to request the written direction of the holders of the trust
securities. In that case, the property trustee will vote as directed by a
majority in liquidation amount of the trust securities voting together as a
single class. Where any amendment, modification or termination under the
indenture would require the consent of a super majority or an individual holder,
however, the property trustee may only give that consent at the direction of the
holders of the same super majority of the holders of the trust securities or
that individual holder, as applicable. The property trustee is not required to
take any such action in accordance with the directions of the holders of the
trust securities unless the property trustee has obtained a tax opinion
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to the effect described above.
A waiver of an indenture event of default by the property trustee at
the direction of the holders of the preferred securities will constitute a
waiver of the corresponding declaration event of default.
Holders of the preferred securities may give any required approval or
direction at a separate meeting of holders of preferred securities convened for
that purpose, at a meeting of all of the holders of trust securities or by
written consent. The administrative trustees will mail to each holder of record
of preferred securities a notice of any meeting at which those holders are
entitled to vote, or of any matter upon which action by written consent of those
holders is to be taken.
No vote or consent of the holders of preferred securities will be
required for a trust to redeem and cancel preferred securities or distribute
junior subordinated debentures in accordance with the declaration.
Despite the fact that holders of preferred securities are entitled to
vote or consent under the circumstances described above, any of the preferred
securities that are owned at the time by NYCB or any entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, NYCB, will not be entitled to vote or consent. Instead, these
preferred securities will be treated as if they were not outstanding.
Holders of the preferred securities generally will have no rights to
appoint or remove the administrative trustees. Instead, the trustees may be
appointed, removed or replaced solely by NYCB as the indirect or direct holder
of all of the common securities.
Common Securities
In connection with the issuance of preferred securities, each trust
will issue one series of common securities having the terms (including
distributions, redemption, voting, liquidation rights or such restrictions) as
will be set forth in the prospectus supplement. Except for voting rights, the
terms of the common securities will be substantially identical to the terms of
the preferred securities. The common securities will rank equally, and payments
will be made on the common securities pro rata, with the preferred securities,
except that, upon an event of default, the rights of the holders of the common
securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the preferred securities. Unless an event of default has occurred and is
continuing, the common securities of a trust carry the right to vote and to
appoint, remove or replace any of the trustees of that trust. All of the common
securities of each trust will be directly or indirectly owned by NYCB.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the preferred
securities guarantees which will be executed and delivered by NYCB for the
benefit of the holders from time to time of preferred securities. Each preferred
securities guarantee will be qualified as an indenture under the Trust Indenture
Act. Wilmington Trust Company will act as the guarantee trustee for purposes of
the Trust Indenture Act. The terms of each preferred securities guarantee will
be those set forth in the preferred securities guarantee and those made part of
the preferred securities guarantee by the Trust Indenture Act. The summary of
the material terms of the preferred securities guarantees is not intended to be
complete and is qualified in all respects by the provisions of the form of
preferred securities guarantee which is filed as an exhibit to the registration
statement which contains this prospectus, and the Trust Indenture Act. Each
preferred securities guarantee will be held by the guarantee trustee for the
benefit of the holders of the preferred securities of the applicable trust.
General
NYCB will irrevocably and unconditionally agree, to the extent set
forth in the preferred securities guarantee, to pay in full to the holders of
the preferred securities, the guarantee payments, as defined below, except to
the extent paid by the trust, as and when due, regardless of any defense, right
of set-off or counterclaim which the trust may have or assert, other than the
defense of payment. The following payments, which are referred to as "guarantee
payments," will be guaranteed by NYCB, without duplication:
. any accrued and unpaid distributions that are required to be paid
on the preferred securities, to the extent the trust has funds
available for distributions;
. the redemption price, plus all accrued
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and unpaid distributions, to the extent the trust has funds
available for redemptions, relating to any preferred securities
called for redemption by the trust; and
. upon a voluntary or involuntary dissolution, winding-up or
termination of the trust, other than in connection with the
distribution of junior subordinated debentures to the holders of
preferred securities or the redemption of all of the preferred
securities, the lesser of:
(1) the aggregate of the liquidation amount and all accrued and
unpaid distributions on the preferred securities to the date of
payment; or
(2) the amount of assets of the trust remaining for distribution to
holders of the preferred securities in liquidation of the trust.
The redemption price and liquidation amount will be fixed at the time
the preferred securities are issued.
NYCB's obligation to make a guarantee payment may be satisfied by
direct payment of the required amounts by NYCB to the holders of preferred
securities or by causing the trust to pay those amounts to those holders.
The preferred securities guarantees will not apply to any payment of
distributions, except to the extent a trust will have funds available for those
payments. If NYCB does not make interest payments on the junior subordinated
debentures held by a trust for any period, the trust will not pay distributions
on the preferred securities for the corresponding period and will not have funds
available for those payments.
The preferred securities guarantees, when taken together with NYCB's
obligations under the junior subordinated debentures, the indentures and the
declarations, including its obligations to pay costs, expenses, debts and
liabilities of the trusts, other than those relating to trust securities, will
provide a full and unconditional guarantee on a subordinated basis by NYCB of
payments due on the preferred securities.
NYCB has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the trusts with respect to the common securities to
the same extent as the preferred securities guarantees, except that upon an
event of default under the indenture, holders of preferred securities will have
priority over holders of common securities with respect to distributions and
payments on liquidation, redemption or otherwise.
Certain Covenants of NYCB
NYCB will agree that, so long as any preferred securities of a trust
remain outstanding, if any event occurs that would constitute an event of
default under the preferred securities guarantee or the indenture related to
that trust, or if NYCB has exercised its option to defer interest payments on
the junior subordinated debentures by extending the interest payment period and
that period or extension of that period is continuing, then:
NYCB will not declare or pay any dividend on, make any distributions
relating to, or redeem, purchase, acquire or make a liquidation
payment relating to, any of its capital stock or make any guarantee
payment with respect thereto and will not make any payment of
interest, principal or premium, if any, on, or repay, repurchase or
redeem any debt securities issued by NYCB which rank equally with or
junior to the junior subordinated debenture other than:
. repurchases, redemptions or other acquisitions of shares of
capital stock of NYCB in connection with any employee benefit
plans or any other contractual obligation of NYCB, other than a
contractual obligation ranking equally with or junior to the
junior subordinated debentures;
. as a result of an exchange or conversion of any class or series
of NYCB's capital stock for any other class or series of NYCB's
capital stock; or
. the purchase of fractional interests in shares of NYCB's capital
stock pursuant to the conversion or exchange provisions of that
NYCB capital stock or the security being converted or exchanged;
and
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Modification of the Preferred Securities Guarantees; Assignment
The preferred securities guarantee may be amended only with the prior
approval of the holders of not less than a majority in aggregate liquidation
amount of the outstanding preferred securities. No vote will be required,
however, for any changes that do not adversely affect the rights of holders of
preferred securities in any material respect. All guarantees and agreements
contained in the preferred securities guarantee will bind the successors,
assignees, receivers, trustees and representatives of NYCB and will be for the
benefit of the holders of the preferred securities then outstanding.
Termination
Each preferred securities guarantee will terminate upon:
. full payment of the redemption price of all preferred securities;
. distribution of the junior subordinated debentures to the holders
of the trust securities; or
. full payment of the amounts payable in accordance with the
declaration upon liquidation of that trust.
Each preferred securities guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any holder of preferred
securities must restore payment of any sums paid under the preferred securities
or the preferred securities guarantee.
Events of Default
An event of default under a preferred securities guarantee will occur
upon the failure of NYCB to perform any of its payment or other obligations
under the preferred securities guarantee.
The holders of a majority in liquidation amount of the preferred
securities 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
preferred securities guarantee or to direct the exercise of any trust or power
conferred upon the guarantee trustee under the preferred securities guarantee.
Any holder of preferred securities may institute a legal proceeding directly
against NYCB to enforce the guarantee trustee's rights and the obligations of
NYCB under the preferred securities guarantee, without first instituting a legal
proceeding against the relevant trust, the guarantee trustee or any other person
or entity.
Status of the Preferred Securities Guarantees
Unless otherwise specified in the applicable prospectus supplement,
the preferred securities guarantees will constitute unsecured obligations of
NYCB and will rank:
. subordinate and junior in right of payment to all other
liabilities of NYCB, except those made equal or subordinate by
their terms;
. equally with the most senior preferred or preference stock now or
hereafter issued by NYCB and with any guarantee now or hereafter
entered into by NYCB in respect of any preferred or preference
stock of any affiliate of NYCB; and
. senior to NYCB common stock.
The terms of the preferred securities provide that each holder of
preferred securities by acceptance of those securities agrees to the
subordination provisions and other terms of the preferred securities guarantee.
The preferred securities guarantees will constitute a guarantee of
payment and not of collection. This means that the guaranteed party may sue the
guarantor to enforce its rights under the guarantee without suing any other
person or entity.
Information Concerning the Guarantee Trustee
Prior to the occurrence of a default relating to a preferred
securities guarantee, the guarantee trustee undertakes to perform only those
duties as are specifically set forth in the preferred securities guarantee.
After default, the guarantee trustee will exercise the same degree of care as a
prudent individual would exercise in the conduct of his or her own affairs.
Provided that the foregoing requirements have been met, the guarantee trustee is
under no obligation to exercise any of the powers vested in it by a preferred
securities guarantee at the request of any holder of preferred securities,
unless offered indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred thereby.
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The trustee provides trust services to us and our affiliates in
connection with certain trust preferred Securities that we currently have
outstanding.
Governing Law
The preferred securities guarantees will be governed by, and construed
in accordance with, the laws of the State of New York.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
NYCB may issue junior subordinated debentures from time to time in one
or more series under an indenture, between NYCB and Wilmington Trust Company, as
trustee, the "debenture trustee." The terms of the junior subordinated
debentures will include those stated in the indenture and those made part of the
indenture by reference to the Trust Indenture Act.
Set forth below is a description of the general terms of the junior
subordinated debentures in which the trusts will invest the proceeds from the
issuance and sale of the trust securities. The particular terms of the junior
subordinated debentures will be described in the prospectus supplement relating
to the particular preferred securities being offered. The following description
is not intended to be complete and is qualified by the indenture, the form of
which is filed as an exhibit to the registration statement which contains this
prospectus, and by the Trust Indenture Act.
General
The junior subordinated debentures will be unsecured debt of NYCB. The
junior subordinated debentures will be fully subordinated as described in the
accompanying prospectus supplement under "Description of the Junior Subordinated
Debentures--Subordination." The indenture does not limit the aggregate principal
amount of junior subordinated debentures which may be issued and provides that
the junior subordinated debentures may be issued from time to time in one or
more series.
The prospectus supplement relating to the particular junior
subordinated debentures being offered will describe the terms of those
securities, which may include:
. the designation of the junior subordinated debentures;
. the aggregate principal amount of the junior subordinated
debentures;
. the percentage of their principal amount at which the junior
subordinated debentures will be issued;
. the date or dates on which the junior subordinated debentures
will mature and the right, if any, to shorten or extend the
maturity date or dates;
. the rate or rates, if any, per annum, at which the junior
subordinated debentures will bear interest, or the method of
determination of the interest rate or rates;
. the date or dates from which interest will accrue and the
interest payment and record dates;
. any right to extend the interest payment periods and the duration
of that extension;
. any provisions for redemption; and
. any other specific terms of the junior subordinated debentures.
Additional Interest
If, at any time, a trust is required to pay any taxes, duties,
assessments or governmental charges of whatever nature, other than withholding
taxes, imposed by the United States, or any other taxing authority, then NYCB
will be required to pay additional interest on the junior subordinated
debentures. The amount of any additional interest will be an amount sufficient
so that the net amounts received and retained by the trust after paying any such
taxes, duties, assessments or other governmental charges will be not less than
the amounts that the trust would have received had no such taxes, duties,
assessments or other governmental charges been imposed. This means that the
trust will be in the same position it would have been in if it did not have to
pay those taxes, duties, assessments or other charges.
Form, Exchange, Registration, Transfer and Payment
Unless otherwise indicated in the applicable prospectus supplement,
NYCB will issue the junior
14
subordinated debentures in registered form only, without coupons and in
denominations of $1,000 and multiples of $1,000. No service charge will be made
for any transfer or exchange of the junior subordinated debentures. However,
NYCB or the debenture trustee may require a holder to pay an amount sufficient
to cover any tax or other governmental charge payable in connection with a
transfer or exchange.
NYCB will pay or deliver principal and any premium and interest in the
manner, at the places and subject to the restrictions set forth in the indenture
and the prospectus supplement. However, at NYCB's option, it may pay any
interest by check mailed to the registered holders of junior subordinated
debentures at their registered addresses.
Global Junior Subordinated Debentures
The indenture provides that NYCB may issue junior subordinated
debentures in global form. The applicable prospectus supplement will describe
any circumstances under which beneficial owners of interests in any global
junior subordinated debentures may exchange their interest for junior
subordinated debentures of that series and of like tenor and principal amount in
any authorized form and denomination.
Subordination
The junior subordinated debentures will be subordinated and junior in
right of payment to other indebtedness of NYCB as described in the applicable
prospectus supplement.
Certain Covenants of NYCB
If junior subordinated debentures are issued to a trust or a trustee
of a trust in connection with the issuance of trust securities and:
. an event of default has occurred and is continuing;
. NYCB is in default relating to its payment of any obligations
under the preferred securities guarantee; or
. NYCB has given notice of its election to defer payments of
interest on the junior subordinated debentures by extending the
interest payment period and that period, or any extension of that
period, is continuing;
then
. NYCB will not declare or pay any dividend on, make any
distributions relating to, or redeem, purchase, acquire or make a
liquidation payment relating to, any of its capital stock or make
any payment with respect to its preferred securities guarantee
other than:
(1) repurchases, redemptions or other acquisitions of shares of
capital stock of NYCB in connection with any employee
benefit plans or any other contractual obligation of NYCB,
other than a contractual obligation ranking equally with or
junior to the junior subordinated debentures;
(2) as a result of an exchange or conversion of any class or
series of NYCB's capital stock for any other class or series
of NYCB's capital stock; or
(3) the purchase of fractional interests in shares of NYCB's
capital stock pursuant to the conversion or exchange
provisions of that NYCB capital stock or the security being
converted or exchanged; and
. NYCB will not make any payment of interest, principal or premium,
if any, on or repay, repurchase or redeem any debt securities
issued by NYCB which rank equally with or junior to the junior
subordinated debentures.
So long as the junior subordinated debentures remain outstanding, NYCB will
covenant to:
. directly or indirectly maintain 100% ownership of the common
securities of the trust, unless a permitted successor of NYCB
succeeds to its ownership of the common securities;
. use its reasonable efforts to cause the applicable trust to:
(1) 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
mergers,
15
consolidations or amalgamations, each as permitted by the
declaration which established the trust; and
(2) otherwise continue to be classified as a grantor trust for
United States federal income tax purposes; and
. 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.
Consolidation, Mergers and Sales of Assets
Unless otherwise indicated in the applicable prospectus supplement,
NYCB may consolidate or merge with or into any other corporation, and may sell,
lease or convey all or substantially all of its assets to any corporation,
provided that:
. the resulting corporation, if other than NYCB, is a corporation
organized and existing under the laws of the United States of
America or any U.S. state and assumes all of our obligations to:
(1) pay or deliver the principal or maturity consideration of,
and any premium, or interest on, the junior subordinated
debentures; and
(2) perform and observe all of our other obligations under the
indenture; and
. neither NYCB nor any successor corporation, as the case may be,
is, immediately after any consolidation or merger, in default
under the indenture.
The indenture does not provide for any right of acceleration in the
event of a consolidation, merger, sale of all or substantially all of the
assets, recapitalization or change in our stock ownership. In addition, the
indenture does not contain any provision which would protect the holders of the
junior subordinated debentures against a sudden and dramatic decline in credit
quality resulting from takeovers, recapitalizations or similar restructurings.
Events of Default, Waiver and Notice
The indenture provides that the following are events of default
relating to the junior subordinated debentures:
. default in the payment of the principal of, or premium, if any,
on, any junior subordinated debenture when due;
. default in the payment of any interest on any junior subordinated
debenture when due, which continues for 30 days; provided,
however, a valid extension of an interest payment by NYCB will
not constitute an event of default;
. default in the performance of any other covenant or obligation in
respect of the junior subordinated debenture, which continues for
90 days after written notice; and
. specified events of bankruptcy, insolvency or reorganization of
NYCB or, with certain exceptions, the applicable trust.
If an indenture event of default occurs and is continuing, the
debenture trustee or the holders of not less than 25% in aggregate principal
amount of the junior subordinated debentures of that series then outstanding may
declare the principal of all junior subordinated debentures of that series to be
due and payable immediately.
The holders of a majority in aggregate outstanding principal amount of
that series of junior subordinated debentures may annul the declaration and
waive the default if the default has been cured and a sum sufficient to pay all
matured installments of interest and principal due other than by acceleration
has been deposited with the debenture trustee. The majority holders may not
waive a payment default on the junior subordinated debentures which has become
due solely by acceleration.
The holders of a majority in principal amount of the junior
subordinated debentures of any series affected may direct the time, method and
place of conducting any proceeding for any remedy available to the debenture
trustee under the indenture or exercising any trust or power conferred on the
debenture trustee with respect to that series, provided that any direction is
not in conflict with any rule of law or the indenture. Subject to the provisions
of the indenture relating to the duties of the trustee, before proceeding to
exercise any right or power under the indenture at the direction of the holders,
the trustee is entitled to receive from those holders reasonable security or
indemnity against the costs, expenses and liabilities which it might incur in
complying with any direction.
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The indenture requires the annual filing by NYCB with the debenture
trustee of a certificate as to the absence of certain defaults under the
indenture.
The debenture trustee may withhold notice of any event of default from
the holders of the junior subordinated debentures, except in the payment of
principal, interest or premium, if the trustee considers it in the interest of
those holders to do so.
Distribution of the Junior Subordinated Debentures
Under circumstances discussed more fully in the prospectus supplement
involving the dissolution of a trust, after satisfaction of liabilities to
creditors of the trust, junior subordinated debentures may be distributed to the
holders of the trust securities in liquidation of that trust. See "Description
of the Preferred Securities" in the accompanying prospectus supplement.
If the junior subordinated debentures are distributed to the holders
of the preferred securities, NYCB will use its best efforts to have the junior
subordinated debentures listed on the Nasdaq National Market or on such other
national securities exchange or similar organization on which the preferred
securities are then listed or quoted.
Modification of the Indenture
Modifications and amendments to the indenture may be made by NYCB and
the debenture trustee with the consent of the holders of a majority in aggregate
principal amount of the junior subordinated debentures at the time outstanding.
However, no such modification or amendment may, without the consent of the
holder of each junior subordinated debenture affected:
. modify the payment terms of the junior subordinated debentures;
or
. reduce the percentage of holders of junior subordinated
debentures necessary to modify or amend the indenture or waive
compliance by NYCB with any covenant or past default.
If the junior subordinated debentures are held by a trust or a trustee
of a trust, the supplemental indenture will not be effective until the holders
of a majority in liquidation amount of trust securities of that trust have
consented to the supplemental indenture. However, if the consent of the holder
of each outstanding junior subordinated debenture is required, the supplemental
indenture will not be effective until each holder of the trust securities of
that trust, has consented to the supplemental indenture.
We and the debenture trustee may also amend and modify the indenture
without the consent of any holder under certain circumstances described in the
indenture.
Defeasance and Discharge
The indenture provides that NYCB, at its option:
(1) will be discharged from all obligations in respect of the junior
subordinated debentures of a series, except for obligations to
register the transfer or exchange of junior subordinated
debentures, replace stolen, lost or mutilated junior subordinated
debentures, maintain paying agencies and hold moneys for payment
in trust; or
(2) need not comply with specified restrictive covenants of the
indenture;
in each case if NYCB deposits, in trust, money or U.S. government obligations in
an amount sufficient to pay all the principal of, and interest and premium, if
any, on, the junior subordinated debentures when those payments are due.
To exercise any such option, NYCB is required to deliver an opinion of
counsel that:
. the deposit and related defeasance would not cause the holders of
the junior subordinated debentures of that series to recognize
income, gain or loss for U.S. federal income tax purposes and, in
the case of a discharge pursuant to clause (1) above, the opinion
will be accompanied by a private letter ruling to that effect
received by NYCB from the United States Internal Revenue Service
or a revenue ruling pertaining to a comparable form of
transaction to that effect published by the United States
Internal Revenue Service; and
. if listed on any national securities exchange, the junior
subordinated debentures would not be delisted from that exchange
as a result of the exercise
17
of the defeasance option.
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.
The Debenture Trustee
The trustee provides trust services to us and our affiliates in
connection with certain trust preferred securities that we currently have
outstanding.
The occurrence of any default under either of the indenture or the
senior or subordinated indentures between NYCB and the debenture trustee
relating to NYCB's senior and subordinated debt securities, which may also be
issued under this registration statement, could create a conflicting interest
for the debenture trustee under the Trust Indenture Act. If that default has not
been cured or waived within 90 days after the debenture trustee has acquired a
conflicting interest, the debenture trustee would generally be required by the
Trust Indenture Act to eliminate the conflicting interest or resign as trustee
with respect to the debt securities issued under the senior indenture or the
subordinated indenture or with respect to the junior subordinated debentures
issued under the indenture. If the debenture trustee resigns, NYCB is required
to promptly appoint a successor trustee with respect to the affected securities.
The Trust Indenture Act also imposes certain limitations on the right
of the debenture trustee, as a creditor of NYCB, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any cash
claim or otherwise. The debenture trustee will be permitted to engage in other
transactions with NYCB, provided that if it acquires a conflicting interest
within the meaning of section 310 of the Trust Indenture Act, it must generally
either eliminate that conflict or resign.
EFFECT OF OBLIGATIONS UNDER THE JUNIOR SUBORDINATED
DEBENTURES AND THE PREFERRED SECURITIES GUARANTEES
As set forth in the declaration, the sole purpose of the trusts are to
issue the trust securities and to invest the proceeds from that issuance and
sale in the junior subordinated debentures.
As long as payments of interest and other payments are made by NYCB
when due on the junior subordinated debentures, those payments will be
sufficient to cover the distributions and payments due on the trust securities.
This is due to the following factors:
. the aggregate principal amount of junior subordinated debentures
will be equal to the sum of the aggregate stated liquidation
amount of the trust securities;
. the interest rate and the 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;
. under the indenture, NYCB will pay, and the trusts will not be
obligated to pay, directly or indirectly, all costs, expenses,
debts and obligations of the trusts, other than those relating to
the trust securities; and
. the declaration further provides that the NYCB capital trustees
may not cause or permit the trusts to engage in any activity
that is not consistent with the purposes of the trusts.
Payments of distributions, to the extent there are available funds,
and other payments due on the preferred securities, to the extent there are
available funds, are guaranteed by NYCB to the extent described in this
prospectus. If NYCB does not make interest payments on the junior subordinated
debentures, the trust will not have sufficient funds to pay distributions on the
preferred securities. Each preferred securities guarantee is a subordinated
guarantee in relation to the preferred securities. The preferred securities
guarantee does not apply to any payment or distributions unless the trust has
sufficient funds for the payment of those distributions. See "Description of the
Preferred Securities Guarantees."
The preferred securities guarantees cover the payment of distributions
and other payments on the preferred securities only if and to the extent that
NYCB has made a payment of interest or principal or other payments on the junior
subordinated debentures. The preferred securities guarantees, when taken
together with NYCB's obligations under the junior subordinated debentures and
the indenture
18
and its obligations under the declaration, will provide a full and unconditional
guarantee of distributions, redemption payments and liquidation payments on the
preferred securities.
If NYCB fails to make interest or other payments on the junior
subordinated debentures when due, taking account of any extension period, the
declaration allows the holders of the preferred securities to direct the
property trustee to enforce its rights under the junior subordinated debentures.
If the property trustee fails to enforce these rights, to the fullest extent
permitted by law, any holder of preferred securities may directly sue NYCB to
enforce these rights without first suing the property trustee or any other
person or entity. See "Description of the Preferred Securities -- Book Entry
Only Issuance -- The Depository Trust Company" and "-- Voting Rights" in the
accompanying prospectus supplement.
A holder of preferred securities may institute a direct action if a
declaration event of default has occurred and is continuing and that event is
attributable to the failure of NYCB to pay interest or principal on the junior
subordinated debentures on the date the interest or principal is otherwise
payable. A direct action may be brought without first (1) directing the property
trustee to enforce the terms of the junior subordinated debentures or (2) suing
NYCB to enforce the property trustee's rights under the junior subordinated
debentures. In connection with that direct action, NYCB will be subrogated to
the rights of the holder of preferred securities under the declaration to the
extent of any payment made by NYCB to that holder of preferred securities.
Consequently, NYCB will be entitled to payment of amounts that a holder of
preferred securities receives in respect of an unpaid distribution to the extent
that the holder receives or has already received full payment relating to that
unpaid distribution from a trust.
NYCB acknowledges that the guarantee trustee will enforce the
preferred securities guarantees on behalf of the holders of the preferred
securities. If NYCB fails to make payments under the preferred securities
guarantees, the preferred securities guarantees allow the holders of the
preferred securities to direct the guarantee trustee to enforce its rights
thereunder. If the guarantee trustee fails to enforce the preferred securities
guarantees, any holder of preferred securities may directly sue NYCB to enforce
the guarantee trustee's rights under the preferred securities guarantees. The
holder need not first sue the trust, the guarantee trustee, or any other person
or entity. A holder of preferred securities may also directly sue NYCB to
enforce the holder's right to receive payment under the preferred securities
guarantees. The holder need not first (1) direct the guarantee trustee to
enforce the terms of the preferred securities guarantee or (2) sue the trust or
any other person or entity.
NYCB and the trusts believe that the above mechanisms and obligations,
taken together, are equivalent to a full and unconditional guarantee by NYCB of
payments due on the preferred securities. See "Description of the Preferred
Securities Guarantees -- General."
PLAN OF DISTRIBUTION
NYCB may sell the junior subordinated debentures and any trust may
sell preferred securities:
. directly to purchasers;
. through agents; or
. through underwriters or dealers.
Offers or sales of those securities may include secondary market
transactions by affiliates of NYCB.
Offers to purchase preferred securities may be solicited directly by
NYCB and/or any trust, as the case may be, or by agents designated by NYCB
and/or any trust, as the case may be, from time to time. Any such agent, who may
be deemed to be an underwriter as that term is defined in the Securities Act,
involved in the offer or sale of the preferred securities in respect of which
this prospectus is delivered will be named, and any commissions payable by NYCB
to that agent will be set forth, in the prospectus supplement. Unless otherwise
indicated in the prospectus supplement, any such agency will be acting on a best
efforts basis for the period of its appointment which is ordinarily five
business days or less. Agents, dealers and underwriters may be customers of,
engage in transactions with, or perform services for NYCB in the ordinary course
of business.
If an underwriter or underwriters are utilized in the sale, NYCB will
execute an underwriting agreement with those underwriters at the time of sale to
them and the names of the underwriters and the terms of the transaction will be
set forth in the prospectus supplement, which will be used by the underwriters
to make releases of the preferred
19
securities in respect of which this prospectus is delivered to the public.
If a dealer is utilized in the sale of the preferred securities in
respect of which this prospectus is delivered, NYCB and/or any trust, as the
case may be, will sell those preferred securities to the dealer, as principal.
The dealer may then resell those preferred securities to the public at varying
prices to be determined by that dealer at the time of resale. The name of the
dealer and the terms of the transaction will be set forth in the prospectus
supplement. Agents, underwriters, and dealers may be entitled under the relevant
agreements to indemnification by NYCB and/or any trust, as the case may be,
against certain liabilities, including liabilities under the Securities Act.
Underwriters, agents or their controlling persons may engage in
transactions with and perform services for NYCB in the ordinary course of
business.
Certain of the underwriters may use this prospectus and the
accompanying prospectus supplement for offers and sales related to market-making
transactions in the securities. These underwriters may act as principal or agent
in these transactions, and the sales will be made at prices related to
prevailing market prices at the time of sale.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the
preferred securities will be passed upon on behalf of each of the trusts by
Morris, James, Hitchens & Williams LLP, Wilmington, Delaware, special Delaware
counsel to the trusts. The validity of the junior subordinated debentures and
the preferred securities guarantee and certain matters relating thereto will be
passed upon for NYCB and certain United States federal income taxation matters
will be passed upon for NYCB and the trusts by Muldoon Murphy & Faucette LLP,
Washington, D.C.
EXPERTS
The consolidated financial statements of NYCB and subsidiaries as of
December 31, 2001 and December 31, 2000 and for each of the years in the
three-year period ended December 31, 2001 have been incorporated by reference
herein in reliance upon the report, also incorporated by reference herein, of
KPMG LLP, independent certified public accountants, and upon the authority of
said firm as experts in accounting and auditing. The Report of KPMG LLP refers
to changes, in 2001, in NYCB's methods of accounting for goodwill and intangible
assets resulting from business combinations consummated after June 30, 2001.
20
================================================================================
[Logo]
New York Community Capital Trust I
New York Community Capital Trust II
New York Community Capital Trust III
New York Community Capital Trust IV
Preferred Securities
fully and unconditionally guaranteed, as described in this prospectus and
the accompanying prospectus supplement, by
New York Community Bancorp, Inc.
--------------------
PROSPECTUS
, 2002
------
--------------------
================================================================================
********************************************************************************
The information in this prospectus is not complete and may be changed. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission and has not yet been declared effective. The
securities may not be sold until the registration statement has been declared
effective. This prospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
********************************************************************************
SUBJECT TO COMPLETION, DATED APRIL 19, 2002
PROSPECTUS
[logo]
New York Community Bancorp, Inc.
New York Community Capital Trust V
Equity Redeemable Preferred
Securities Units
The Units:
Each unit being offered consists of:
. a preferred security issued by New York Community Capital Trust V (the
"trust"); and
. a warrant to purchase shares of common stock of New York Community
Bancorp, Inc.
The Trust:
The trust is a Delaware business trust that:
. sells preferred securities representing undivided beneficial interests
in the trust to the public;
. sells common securities representing undivided beneficial interests in
the trust to New York Community Bancorp, Inc.;
. uses the proceeds from these sales to buy an equal principal amount of
junior subordinated debentures of New York Community Bancorp, Inc.;
and
. distributes the cash payments it receives on the junior subordinated
debentures it owns to the holders of the preferred and common
securities.
Distributions:
. For each unit that you own, you will receive cumulative cash
distributions on the liquidation amount of the preferred security. The
rate at which cash distributions will be paid and the liquidation
amount per preferred security will be set forth in the accompanying
prospectus supplement.
New York Community Bancorp, Inc.:
. New York Community Bancorp, Inc. will fully and unconditionally
guarantee the payment by the trust of the preferred securities as
described in this prospectus.
This prospectus provides you with a general description of the units we may
offer. Each time we offer securities, we will provide you with a prospectus
supplement that will describe the specific amounts, prices and terms of the
securities being offered. These supplements may also add, update or change
information contained in this prospectus. To understand the terms of the
securities, you should carefully read this prospectus with the applicable
supplements, which together provide the specific terms of the securities that we
are offering.
These securities are not deposits or obligations of a bank or savings
association and are not insured or guaranteed by the Federal Deposit Insurance
Corporation or any other governmental agency.
This prospectus may be used to offer and sell securities, only if
accompanied by the prospectus supplement for those securities.
----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus or the accompanying prospectus supplement is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2002
------
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We provide information to you about the securities we are offering in two
separate documents that progressively provide more detail:
... this prospectus, which provides general information, some of which may not
apply to your securities; and
... the accompanying prospectus supplement, which describes the specific and
final terms of your securities.
If the terms of your securities vary between the prospectus supplement and
the accompanying prospectus, you should rely on the information in the following
order of priority:
... the prospectus supplement; and
... the prospectus.
We include cross-references in this prospectus and the accompanying
prospectus supplement to captions in these materials where you can find further
related discussions. The following Table of Contents and the Table of Contents
included in the accompanying prospectus supplement provide the pages on which
these captions are located.
----------
Unless indicated in the applicable prospectus supplement, we have not
taken any action that would permit us to publicly sell these securities in any
jurisdiction outside the United States. If you are an investor outside the
United States, you should inform yourself about and comply with any restrictions
as to the offering of the securities and the distribution of this prospectus.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS ..........................................................
WHERE YOU CAN FIND MORE INFORMATION ............................................
FORWARD-LOOKING STATEMENTS .....................................................
NEW YORK COMMUNITY BANCORP, INC. ...............................................
THE TRUST ......................................................................
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES ...............................
USE OF PROCEEDS ................................................................
REGULATION AND SUPERVISION .....................................................
DESCRIPTION OF UNITS ...........................................................
DESCRIPTION OF WARRANTS ........................................................
DESCRIPTION OF COMMON STOCK ....................................................
DESCRIPTION OF THE PREFERRED SECURITIES ........................................
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE ..............................
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES ..............................
EFFECT OF OBLIGATIONS UNDER THE JUNIOR SUBORDINATED DEBENTURES
AND THE PREFERRED SECURITIES GUARANTEE ......................................
PLAN OF DISTRIBUTION ...........................................................
LEGAL MATTERS ..................................................................
EXPERTS ........................................................................
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, the "SEC," utilizing a "shelf"
registration process. Under this shelf registration process, we may from time to
time sell the units described in this prospectus in one or more offerings up to
a total dollar amount of $400,000,000. We may also sell other securities under
the registration statement that will reduce the total dollar amount of
securities that we may sell under this prospectus. This prospectus provides you
with a general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
Unless otherwise indicated or unless the context requires otherwise,
all references in this prospectus to "NYCB," "we," "us," "our" or similar
references mean New York Community Bancorp, Inc., references to the "Bank" mean
New York Community Bank, and references to the "trust" mean New York Community
Capital Trust V.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the
Securities Act of 1933 that registers, among other securities, the offer and
sale of the securities offered by this prospectus. The registration statement,
including the attached exhibits and schedules included or incorporated by
reference in the registration statement, contains additional relevant
information about us. The rules and regulations of the SEC allow us to omit
certain information included in the registration statement from this prospectus.
In addition, we file reports, proxy statements and other information
with the SEC under the Securities Exchange Act of 1934, as amended, the
"Exchange Act". You may read and copy this information at the following
locations of the SEC:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
Northeast Regional Office
The Woolworth Building
233 Broadway
New York, New York 10279
Midwest Regional Office
500 West Madison Street
Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers like us who file
electronically with the SEC. The address of that site is:
http://www.sec.gov
------------------
The SEC allows us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document that we file separately with the SEC. The
information incorporated by reference is considered to be a part of this
prospectus, except for any information that is superseded by information that is
included directly in this document or in a more recent incorporated document.
2
This prospectus incorporates by reference the documents listed below
that we have previously filed with the SEC.
SEC Filings Period or Date (as applicable)
----------- ------------------------------
Annual Report on Form 10-K Year ended December 31, 2001, as filed on April
1, 2002
Quarterly Reports on Form 10-Q
-----------------------------------------------
Current Reports on Form 8-K
-----------------------------------------------
In addition, we also incorporate by reference all future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of our initial registration statement relating to the securities
until the completion of the distribution of the units covered by this
prospectus. These documents include periodic reports, such as Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K (other
than Current Reports furnished under Item 9 of Form 8-K), as well as proxy
statements.
The information incorporated by reference contains information about
us and our financial condition and is an important part of this prospectus.
----------
You can obtain any of the documents incorporated by reference in this
document through us, or from the SEC through the SEC's Internet world wide web
site at www.sec.gov. Documents incorporated by reference are available from us
without charge, excluding any exhibits to those documents, unless the exhibit is
specifically incorporated by reference as an exhibit in this prospectus. You can
obtain documents incorporated by reference in this prospectus by requesting them
in writing or by telephone from us at the following address:
Investor Relations Department
New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
(516) 683-4100
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, those
contained in this prospectus or in any of the materials that we have
incorporated into this prospectus. If anyone does give you information of this
sort, you should not rely on it. If you are in a jurisdiction where offers to
sell, or solicitations of offers to purchase, the securities offered by this
document are unlawful, or if you are a person to whom it is unlawful to direct
these types of activities, then the offer presented in this document does not
extend to you. The information contained in this document speaks only as of the
date of this document unless the information specifically indicates that another
date applies.
We have not included separate financial statements for the trust in
this prospectus. We do not believe that holders of the units would find these
financial statements meaningful because:
. all of the voting securities of the trust will be owned, directly
or indirectly, by NYCB, a reporting company under the Exchange
Act;
. the trust has no independent assets, operations, revenues or cash
flows and exists for the sole purpose of issuing the preferred
securities and investing the proceeds in junior subordinated
debentures issued by NYCB;
. NYCB's obligations described in this prospectus and in any
accompanying prospectus supplement constitute a full and
unconditional guarantee of payments due on the preferred
securities; and
. The trust does not file reports with the SEC.
3
FORWARD-LOOKING STATEMENTS
This prospectus, including information included or incorporated by
reference, contains statements which are not historical facts but
"forward-looking statements" with respect to our financial condition, results of
operations, plans, objectives, future performance and business, as that term is
defined in the Private Securities Litigation Reform Act of 1995. These
forward-looking statements are subject to risks and uncertainties which could
cause actual results to differ materially from those currently anticipated due
to a number of factors, which include, but are not limited to, factors discussed
in documents that we file with the SEC from time to time.
These forward-looking statements may be identified by the use of such
words as "believe," "expect," "anticipate," "should," "planned," "estimated,"
"intend" and "potential." Examples of forward looking statements include, but
are not limited to, estimates with respect to our financial condition, expected
or anticipated revenue, results of operations and our business, including with
respect to:
. earnings growth (on both a generally accepted accounting
principles, or "GAAP," and cash basis);
. revenue growth in retail banking, lending and other areas;
. origination volume in our multi-family, consumer, commercial and
other lending businesses;
. current and future capital management programs;
. non-interest income levels, including fees from services and
product sales;
. tangible capital generation;
. market share;
. expense levels; and
. other business operations and strategies,
each of which are subject to various factors which could cause actual results to
differ materially from these estimates. Our ability to predict results or the
actual effect of future plans or strategies is inherently uncertain.
Factors which could have a material adverse effect on our operations
and those of our subsidiaries include, but are not limited to, changes in:
. interest rates;
. general economic conditions;
. monetary and fiscal policies of the U.S. Government, including
policies of the U.S. Treasury and the Federal Reserve Board;
. war or terrorist activities;
. the quality or composition of the loan or investment portfolios;
. demand for loan products;
. deposit flows;
. real estate values;
. the level of defaults;
. losses and prepayments on loans held by us in portfolio or sold
in the secondary markets;
. demand for financial services in our market area;
. competition;
. changes in accounting principles, policies, practices or
guidelines;
. changes in legislation or regulation; and
. other economic, competitive, governmental, regulatory, and
technological factors affecting our operations, pricing, products
and services.
These forward-looking statements are made as of the date of the
applicable document, and, except as required by applicable law, we assume no
obligation to update the forward-looking statements or to update the reasons why
actual results could
4
differ from those projected in the forward-looking statements.
You should consider these risks and uncertainties in evaluating
forward-looking statements and you should not place undue reliance on these
statements.
NEW YORK COMMUNITY BANCORP, INC.
New York Community Bancorp, Inc. ("NYCB"), formerly known as Queens
County Bancorp, Inc., was incorporated in the State of Delaware on July 20, 1993
as the holding company for New York Community Bank, formerly known as Queens
County Savings Bank, the first savings bank chartered by the State of New York
in the Borough of Queens, on April 14, 1859. NYCB acquired all of the stock of
the Bank upon its conversion from a New York State-chartered mutual savings bank
to a New York State-chartered stock form savings bank on November 23, 1993.
On November 21, 2000, the Company changed its name from Queens County
Bancorp, Inc. to New York Community Bancorp, Inc., in anticipation of its
acquisition of Haven Bancorp, Inc. ("Haven"), parent company of CFS Bank. On
November 30, 2000, Haven was merged with and into the Company, and on January
31, 2001, CFS Bank merged with and into New York Community Bank.
On July 31, 2001, the Company completed a merger-of-equals with
Richmond County Financial Corp. ("Richmond County"), parent company of Richmond
County Savings Bank. At the same time, Richmond County Savings Bank merged with
and into the Bank.
The Bank currently serves its customers through a network of 114
banking offices including 53 traditional branches, 60 in-store branch offices
and one convenience center in New York City, Long Island, Rockland and
Westchester counties, and New Jersey, and operates through six divisions: Queens
County Savings Bank, Richmond County Savings Bank, CFS Bank, First Savings Bank
of New Jersey, Ironbound Bank, and South Jersey Bank. The Bank is in the process
of opening a new branch on Staten Island, New York and a new branch in Nassau
County. The Bank also expects its sale of seven New Jersey and Rockland County
branches to be completed in May 2002.
In addition to operating the largest supermarket banking franchise in
the metro New York region, the Bank is the second largest producer of
multi-family mortgage loans in the City of New York.
The Company recorded total assets of $9.3 billion at March 31, 2002,
including total loans of $5.5 billion, and total deposits of $5.4 billion,
including core deposits of $3.2 billion.
The Bank is subject to comprehensive regulation, examination and
supervision by the New York State Banking Department, the "NYSBD," and the
Federal Deposit Insurance Corporation, the "FDIC". NYCB is subject to
regulation, examination and supervision by the Federal Reserve Board, the "FRB,"
as a bank holding company.
NYCB's principal executive offices are located at 615 Merrick Avenue,
Westbury, New York 11590 and its telephone number is (516) 683-4100.
Additional information about New York Community Bancorp, Inc. and its
subsidiaries is included in documents incorporated by reference in this
prospectus. See "Where You Can Find More Information" on page 2 of this
prospectus.
THE TRUST
The trust is a statutory business trust formed under Delaware law
pursuant to a declaration of trust, the "initial declaration," executed by NYCB,
as sponsor for the trust, and the NYCB capital trustees, as defined below, for
the trust, and the filing of a certificate of trust with the Delaware Secretary
of State.
The trust exists for the exclusive purposes of:
. issuing the preferred securities and common securities
representing undivided beneficial interests in the assets of the
trust;
. investing the gross proceeds of the preferred securities and the
common
5
securities, together the "trust securities," in junior
subordinated debentures issued by NYCB; and
. engaging in only those other activities necessary or incidental
to the activities described in the previous two bullets.
All of the common securities will be directly or indirectly owned by
NYCB. The common securities of the trust will rank equally, and payments will be
made pro rata, with the preferred securities of other similar trusts, except
that upon an event of default under the declaration (as defined below), the
rights of the holders of the common securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the preferred securities. NYCB
will, directly or indirectly, purchase common securities of the trust in an
aggregate liquidation amount equal to at least 3% of the total capital of the
trust.
The trust's business and affairs will be conducted by the trustees,
the "NYCB capital trustees." Unless an event of default has occurred and is
continuing, as a direct or indirect holder of all the common securities, NYCB
will be entitled to appoint, remove or replace any of, or increase or reduce the
number of, the NYCB capital trustees of the trust. The duties and obligations of
the NYCB capital trustees will be governed by the declaration of the trust. One
or more of the NYCB capital trustees for the trust will be persons who are
employees or officers of or persons affiliated with NYCB, the "administrative
trustees." One NYCB capital trustee of the trust will be a financial institution
which will be unaffiliated with NYCB and which will act as property trustee
under the declaration and as indenture trustee for purposes of the Trust
Indenture Act of 1939, as amended, the "Trust Indenture Act," pursuant to the
terms set forth in a prospectus supplement. In addition, unless the property
trustee maintains a principal place of business in Delaware, and otherwise meets
the requirements of applicable law, one NYCB capital trustee of the trust will
have its principal place of business or reside in the State of Delaware.
The trust has a term of approximately 40 years, but may dissolve
earlier as provided in the applicable declaration.
NYCB will pay all fees and expenses related to the trust and the
offering of trust securities.
The office of the Delaware trustee for each trust in Delaware, and its
principal place of business is Wilmington Trust Company, Attention: Corporate
Trust Administration, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890. The principal place of business of the trust will be c/o New
York Community Bancorp, Inc., 615 Merrick Avenue, Westbury, New York 11590.
6
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
NYCB's consolidated ratios of earnings to fixed charges were as
follows for the period presented:
Three Months
Ended March 31, Year Ended December 31,
--------------- --------------------------------
2002 2001 2000 1999 1998 1997
--------------- ---- ---- ---- ---- ----
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits .... 3.28 3.25 1.90 2.72 3.10 4.43
Including Interest on Deposits .... 2.15 1.80 1.44 1.70 1.68 1.68
- ----------
For the purpose of computing the ratio of earnings to fixed charges,
"earnings" consist of income before income taxes and extraordinary item plus
fixed charges, excluding capitalized interest. "Fixed charges" consist of
interest on short-term and long-term debt, including interest related to
capitalized leases and capitalized interest, and one-third of rent expense,
which approximates the interest component of that expense. In addition, where
indicated, fixed charges include interest on deposits.
7
USE OF PROCEEDS
The trust will use the proceeds of the sale of the trust securities to
acquire junior subordinated debentures from NYCB. NYCB intends to use the net
proceeds from the sale of the junior subordinated debentures for general
corporate purposes unless otherwise indicated in the prospectus supplement.
NYCB's general corporate purposes may include repurchasing its outstanding
common stock, financing possible acquisitions of branches or other financial
institutions or financial service companies, extending credit to, or funding
investments in, its subsidiaries and repaying, reducing or refinancing
indebtedness. The precise amounts and the timing of NYCB's use of the net
proceeds will depend upon market conditions, its subsidiaries' funding
requirements, the availability of other funds and other factors. Until NYCB uses
the net proceeds for general corporate purposes, it will use the net proceeds to
reduce its indebtedness or for temporary investments. NYCB expects that it will,
on a recurrent basis, engage in additional financings as the need arises to
finance its corporate strategies, to fund its subsidiaries, to finance
acquisitions or otherwise.
REGULATION AND SUPERVISION
Our principal subsidiary, New York Community Bank, is a New York
State-chartered savings bank and is subject to regulation and supervision by the
NYSBD, its chartering agency, and by the FDIC. As the holding company for New
York Community Bank, NYCB is a bank holding company subject to regulation and
supervision by the FRB.
Because we are a holding company, our rights and the rights of our
creditors, including the holders of the securities we are offering under this
prospectus, to participate in the assets of any of our subsidiaries upon the
subsidiary's liquidation or reorganization will be subject to the prior claims
of the subsidiary's creditors, except to the extent that we may ourselves be a
creditor with recognized claims against the subsidiary.
In addition, dividends, loans and advances from New York Community
Bank are restricted by federal and state statutes and regulations. Under
applicable banking statutes, at March 31, 2002, the Bank could have declared
additional dividends of approximately $195.1 million without further regulatory
approval. The FDIC, the FRB and the NYSBD 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 such subsidiary bank.
In addition, there are various statutory and regulatory limitations on
the extent to which New York Community Bank can finance or otherwise transfer
funds to us or to our nonbanking subsidiaries, whether in the form of loans,
extensions of credit, investments or asset purchases. These general extensions
of credit by New York Community Bank to us or a nonbanking subsidiary are
limited in amount to 10% of its capital and surplus and, with respect to us and
all such nonbanking subsidiaries, to an aggregate of 20% of its capital and
surplus. Furthermore, loans and extensions of credit are required to be secured
in specified amounts and are required to be on terms and conditions consistent
with safe and sound banking practices.
For a discussion of the material elements of the regulatory framework
applicable to bank holding companies and their subsidiaries, and specific
information relevant to us, you should refer to our Annual Report on Form 10-K
for the year ended December 31, 2001 and any other subsequent reports filed by
us with the SEC, which are incorporated by reference in this prospectus. This
regulatory framework is intended primarily for the protection of depositors and
the deposit insurance funds that insure deposits of banks, rather than for the
protection of security holders. A change in the statutes, regulations or
regulatory policies applicable to us or our subsidiaries may have a material
effect on our business.
Changes to the laws and regulations can affect the operating
environment of bank holding companies and their subsidiaries in substantial and
unpredictable ways. We cannot accurately predict whether those changes in laws
and regulations will occur, and, if those changes occur, the ultimate effect
they would have upon our or our subsidiaries' financial condition or results of
operations.
8
DESCRIPTION OF UNITS
We may issue units comprised of a warrant to purchase common stock and
a preferred security. The warrants and preferred securities that comprise the
units are further described in "Description of Warrants" and "Description of the
Preferred Securities." Units will be issued under a unit agreement with a unit
agent designated in the appropriate prospectus supplement. The following summary
of the provisions of the unit agreement is not complete and is subject to, and
is qualified in its entirety by reference to, all the provisions of the unit
agreement. The unit agreement will be filed as an exhibit to or incorporated by
reference in the registration statement. We urge you to read the unit agreement
and the form of the unit, and the warrant agreement (including the definitions
of terms) because they, and not this description, define the rights of holders
of the units.
If units are offered, the appropriate prospectus supplement will
describe the terms of the units, including the following:
... all terms of the units and of the warrants and preferred securities
comprising the units, including whether and under what circumstances
the securities comprising the units may or may not be traded
separately, distributions to which unitholders will be entitled and
circumstances under which distributions will be paid;
... effects of a change in control of NYCB on the unitholders;
... a description of the terms of any agreement to be entered into between
us and a bank or trust company as unit agent governing the units; and
... a description of the provisions for the payment, settlement, transfer
or exchange of the units.
We and the unit agent may amend the terms of the unit agreement
without the consent of the unitholders for the purpose of curing any ambiguity
or correcting or supplementing any inconsistent provision therein or in any
other manner we deem necessary or desirable and which will not adversely affect
the interests of the affected holders. In addition, the unit agreement will
contain provisions permitting us and the unit agent, with the consent of the
holders of a majority of the outstanding units to modify the rights of the
unitholders and the terms of the unit agreement, except that no modification
may, without the consent of the holder of each outstanding unit affected
thereby:
... materially adversely affect the holders' rights under any unit; or
... reduce the aforesaid percentage of outstanding units the consent of
holders of which is required for the modification or amendment of the
provisions of the unit agreement.
DESCRIPTION OF WARRANTS
We may issue units comprised of a warrant and a preferred security.
The warrant to be issued in connection with the units will be convertible into
shares of NYCB common stock. The warrant and the related preferred security may
be separated and traded separately from each other. Warrants will be issued
under a warrant agreement with a warrant agent designated in the appropriate
prospectus supplement. The following summary of the provisions of the warrant
agreement and form of warrant is not complete and is subject to, and is
qualified in its entirety by reference to, all the provisions of the warrant
agreement and the form of warrant. The warrant agreement and the form of warrant
will be filed as exhibits to or incorporated by reference in the registration
statement. We urge you to read the warrant agreement, including the form of the
warrant (including the definitions of terms) because they, and not this
description, define the rights of holders of the warrants (including as a
component of the units).
If units are offered, the prospectus supplement relating to the units
will describe the terms of the warrants offered in connection with the units and
the warrant agreement relating to the warrant, including the following:
... the offering price;
... the number of shares of common stock purchasable upon exercise of the
warrant and the price at which such number of shares of common stock
may be purchased upon such exercise;
... if applicable, the designation and terms of the series of common stock
with which such warrants are being offered and the number
9
of such warrants being offered with each share of common stock;
... the dates on which the right to exercise such warrants shall commence
and expire;
... any applicable anti-dilution provisions;
... any applicable redemption or call provisions;
... the circumstances under which the warrant exercise price may be
adjusted;
... the terms of the preferred security with which the warrant is issued;
... the extent to which the warrant and the related preferred security
will be separately transferable;
... if applicable, a discussion of certain Federal income tax
consequences;
... whether the warrant or related preferred security will be listed on
any securities exchange;
... the warrant agent; and
... any other terms of such warrants. Warrants will be offered and
exercisable for U.S. dollars only and will be in registered form only.
Exercise of Warrants
Each warrant will entitle the holder thereof to purchase such shares
of common stock at the exercise price set forth in the prospectus supplement
relating to the warrants. After the close of business on the expiration date of
the warrants, or such later date to which such expiration date may be extended,
unexercised warrants will become void.
Warrants may be exercised by delivering to the warrant agent the
warrant certificate and payment as provided in the applicable prospectus
supplement of the amount required to purchase such shares of common stock. The
date on which such warrant certificate and payment are received by the warrant
agent shall be the date on which the warrant is exercised and common stock
issued. If fewer than all of the warrants represented by the warrant certificate
are exercised, a new warrant certificate will be issued for the remaining amount
of warrants.
Modification
We and the warrant agent may amend the terms of any warrant agreement
and the warrants without the consent of the holders for the purpose of curing
any ambiguity or correcting any inconsistent provision therein or in any other
manner we deem necessary or desirable and which will not adversely affect the
interests of the holders in any respect. In addition, we may amend the warrant
agreement and the terms of the warrants with the consent of the owners of a
majority of the outstanding unexercised warrants affected. However, any
modification to the warrants cannot change the exercise price, reduce the
amounts receivable upon exercise, cancellation or expiration, shorten the time
period during which the warrants may be exercised or otherwise materially and
adversely affect the rights of the owners of the warrants or reduce the
percentage of outstanding warrants required to modify or amend the warrant
agreement or the terms of the warrants, without the consent of the affected
owners.
Enforceability of Rights of Warrantholders; Governing Law
The warrant agent will act solely as our agent and will not assume any
obligation or relationship of agency or trust with the holders of the warrants.
Any record holder or beneficial owner of a warrant may, without anyone else's
consent, enforce by appropriate legal action, on its own behalf, its right to
exercise the warrant in the manner provided therein or in the warrant agreement.
A warrantholder will not be entitled to any of the rights of a holder of the
common stock or other securities purchasable upon the exercise of the warrant
before exercising the warrant.
Unsecured Obligations
The warrants are our unsecured contractual obligations and will rank
equally with all of our other unsecured contractual obligations and our
unsecured and unsubordinated debt. Since most of our assets are owned by our
subsidiaries, our rights and the rights of our creditors, including
warrantholders, to participate in the distribution or recapitalization will be
subject to the prior claim of that subsidiary's creditors.
10
DESCRIPTION OF COMMON STOCK
Company
NYCB, which is incorporated under the General Corporation Law of the
State of Delaware, is authorized to issue 150,000,000 shares of its common
stock, $0.01 par value, of which 102,182,204 shares were issued and outstanding
as of March 31, 2002. NYCB's board of directors may at any time, without
additional approval of the holders of common stock, issue additional authorized
but previously unissued shares of common stock.
Voting Rights
The holders of common stock are entitled to one vote per share on all
matters presented to shareholders. Holders of common stock are not entitled to
cumulate their votes in the election of directors.
No Preemptive or Conversion Rights
The holders of common stock do not have preemptive rights to subscribe
for a proportionate share of any additional securities issued by NYCB before
such securities are offered to others. The absence of preemptive rights
increases NYCB's flexibility to issue additional shares of common stock in
connection with NYCB's acquisitions, employee benefit plans and for other
purposes, without affording the holders of common stock a right to subscribe for
their proportionate share of those additional securities. The holders of common
stock are not entitled to any redemption privileges, sinking fund privileges or
conversion rights.
Dividends
Holders of common stock are entitled to receive dividends ratably
when, as and if declared by NYCB's board of directors from assets legally
available therefor, after payment of all dividends on preferred stock, if any is
outstanding. Under Delaware Law, NYCB may pay dividends out of surplus or net
profits for the fiscal year in which declared and/or for the preceding fiscal
year, even if its surplus accounts are in a deficit position. Dividends paid by
its subsidiary Bank are the primary source of funds available to NYCB for
payment of dividends to its stockholders and for other needs. NYCB's board of
directors intends to maintain its present policy of paying regular quarterly
cash dividends. The declaration and amount of future dividends will depend on
circumstances existing at the time, including NYCB's earnings, financial
condition and capital requirements, as well as regulatory limitations and such
other factors as NYCB's board of directors deems relevant. See "Regulation and
Supervision."
NYCB's principal assets and sources of income consist of investments
in its operating subsidiaries, which are separate and distinct legal entities.
Liquidation
Upon liquidation, dissolution or the winding up of the affairs of
NYCB, holders of common stock are entitled to receive their pro rata portion of
the remaining assets of NYCB after the holders of NYCB's preferred stock have
been paid in full any sums to which they may be entitled.
Certain Charter and Bylaw Provisions Affecting Stock
NYCB's Certificate of Incorporation and Bylaws contain several
provisions that may make NYCB a less attractive target for an acquisition of
control by anyone who does not have the support of NYCB's board of directors.
Such provisions include, among other things, the requirement of a supermajority
vote of stockholders or directors to approve certain business combinations and
other corporate actions, a minimum price provision, several special procedural
rules, a staggered board of directors, and the limitation that stockholders
actions without a meeting may only be taken by unanimous written stockholder
consent. The foregoing is qualified in its entirely by reference to NYCB's
Certificate of Incorporation, as amended, and Bylaws both of which are on file
with the SEC.
Restrictions on Ownership
The Bank Holding Company Act of 1956, "the BHC Act," generally would
prohibit any company that is not engaged in banking activities and activities
that are permissible for a bank holding company or a financial holding company
from acquiring control of NYCB. "Control" is generally defined as ownership of
25% or more of the voting stock or other exercise of a controlling influence. In
addition, any existing bank holding company would need the prior approval of the
FRB before acquiring 5% or more of the voting stock of NYCB. In addition, the
Change in Bank Control Act of 1978, as amended, prohibits a person or group of
persons from acquiring control of a bank holding company unless the FRB has been
notified and has not objected to the transaction. Under a rebuttable
11
presumption established by the FRB, the acquisition of 10% or more of a class of
voting stock of a bank holding company with a class of securities registered
under Section 12 of the Exchange Act, such as NYCB, would, under the
circumstances set forth in the presumption, constitute acquisition of control of
the bank holding company.
NYCB Stockholder Protection Rights Agreement
The following is a description of the rights issued under the NYCB
stockholder protection rights agreement, as amended. This description is subject
to, and is qualified in its entirety by reference to, the text of the rights
agreement. A description of the rights agreement specifying the terms of the
rights has been included in reports filed by NYCB under the Securities Exchange
Act. See "Where You Can Find More Information" on Page 2.
Each issued share of NYCB common stock has attached to it one right
issued pursuant to a Stockholder Protection Rights Agreement, dated as of
January 16, 1996 and amended on March 27, 2001, between NYCB and Mellon Investor
Services L.L.C., as rights agent. Each right entitles its holder to purchase one
one-hundredth of a share of participating preferred stock of NYCB at an exercise
price of $120, subject to adjustment, after the separation time, which means
after the close of business on the earlier of
. the tenth business day after commencement of a tender or exchange
offer that, if consummated, would result in the offeror becoming
an "acquiring person," which is defined in the rights agreement
as a person beneficially owning 10% or more of the outstanding
shares of NYCB common stock; and
. the tenth business day after the first date of public
announcement that a person has become an acquiring person, which
is also called the flip-in date.
The rights are not exercisable until the business day following the
separation time. The rights expire on the earlier of
. the close of business on January 16, 2006;
. redemption, as described below;
. an exchange for common stock, as described below; or
. the merger of NYCB into another corporation pursuant to an
agreement entered into prior to a flip-in date.
The NYCB board of directors may, at any time prior to the occurrence
of a flip-in date, redeem all the rights at a price of $0.01 per right.
If a flip-in date occurs, each right, other than those held by the
acquiring person or any affiliate or associate of the acquiring person or by any
transferees of any of these persons, will constitute the right to purchase
shares of NYCB common stock having an aggregate market price equal to $240 in
cash, subject to adjustment. In addition, the NYCB board of directors may, at
any time between a flip-in date and the time that an acquiring person becomes
the beneficial owner of more than 50% of the outstanding shares of NYCB common
stock, elect to exchange the rights for shares of NYCB common stock at an
exchange ratio of one share of NYCB common stock per right.
Under the rights agreement, after a flip-in date occurs, NYCB may not
consolidate or merge, or engage in other similar transactions, with an acquiring
person without entering into a supplemental agreement with the acquiring person
providing that, upon consummation or occurrence of the transaction, each right
shall thereafter constitute the right to purchase common stock of the acquiring
person having an aggregate market price equal to $240 in cash, subject to
adjustment.
These rights may not prevent a takeover of NYCB. The rights, however,
may have antitakeover effects. The rights may cause substantial dilution to a
person or group that acquires 10% or more of the outstanding NYCB common stock
unless the rights are first redeemed by the NYCB board of directors.
On March 27, 2001, NYCB and Mellon amended the rights agreement to
substantially prevent the merger agreement with Richmond County, the stock
option agreements, and the merger with Richmond County from triggering the
provisions of the rights agreement.
12
DESCRIPTION OF THE PREFERRED SECURITIES
The preferred securities, which form a part of the units and which,
under certain circumstances, will trade separately from the warrants also
forming a part of the units, will be issued pursuant to the declaration (as
described below). The trust may issue only one series of preferred securities
having terms described in the accompanying prospectus supplement. The series of
preferred securities will be issued pursuant to the terms of an amended and
restated declaration of trust, a "declaration." The declaration will be
qualified as an indenture under the Trust Indenture Act. Wilmington Trust
Company will act as trustee under the declaration for purposes of compliance
with the provisions of the Trust Indenture Act.
The preferred securities will have those terms, including
distribution, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as will be set forth in
the declaration or made part of the declaration by the Trust Indenture Act. The
terms of the preferred securities will mirror the terms of the junior
subordinated debentures of NYCB in which the trust invests the proceeds from the
sale of preferred securities. The terms of the preferred securities and the
junior subordinated debentures are described in the accompanying prospectus
supplement and may include:
. the distinctive designation of the preferred securities;
. the number of preferred securities issuable by the trust;
. the right of the unitholders to have the preferred securities in
certain circumstances remarketed;
. the annual distribution rate, or method of determining that rate
(including the adjustment that would occur upon remarketing), for
preferred securities and the date or dates upon which those
distributions will be payable;
. whether distributions on preferred securities will be cumulative,
and, if so, the date or dates or method of determining the date
or dates from which distributions on preferred securities will be
cumulative;
. when a remarketing event will occur;
. when a failed remarketing has occurred;
. the amount or amounts which will be paid out of the assets of the
trust to the holders of preferred securities upon voluntary or
involuntary dissolution, winding-up or termination of that trust;
. the obligation, if any, of the trust to purchase (including when
the unit holder exercises its warrants or when a change of
control occurs) or redeem preferred securities issued by that
trust and the price or prices at which, the period or periods
within which, and the terms and conditions upon which, preferred
securities issued by that trust will be purchased or redeemed, in
whole or in part, pursuant to that obligation;
. the voting rights, if any, of holders of preferred securities in
addition to those required by law or described in this prospectus
supplement, including the number of votes per preferred security
and any requirement for the approval by the holders of preferred
securities, as a condition to specified action or amendments to
the declaration of the trust;
. the terms and conditions, if any, upon which NYCB can redeem the
junior subordinated debentures prior to the first optional
redemption date, if any;
. the terms and conditions, if any, upon which the junior
subordinated debentures owned by the trust may be distributed to
holders of preferred securities;
if applicable, any securities exchange upon which the preferred
securities will be listed; and
any other relevant rights, preferences, privileges, limitations or
restrictions of preferred securities not inconsistent with the declaration or
with applicable law.
All preferred securities will be guaranteed by NYCB to the extent set
forth below under "Description of the Preferred Securities Guarantees."
13
Certain United States federal income tax considerations applicable to
any offering of preferred securities will be described in the prospectus
supplement relating to the offering.
Deferral of Distributions of Preferred Securities
So long as NYCB is not in default of interest on the junior
subordinated debentures, and so long as a failed remarketing has not occurred.
NYCB may, on one or more occasions, defer payments of interest on the junior
subordinated debentures as described under "Description of Junior Subordinated
Debentures--Deferral of Distributions of Purchased Securities." In the event
NYCB elects to defer interest payments on any series of its junior subordinated
debentures, the trust will also defer distributions on its preferred securities.
During this deferral period, distributions will continue to accrue at the rate
specified in the prospectus supplement. If NYCB elects to defer interest
payments on the junior subordinated debentures, it will be restricted from
making payments on its capital stock and other capital instruments as described
in the prospectus supplement.
Voting Rights
Except as described in this prospectus, under the Delaware Business
Trust Act, the Trust Indenture Act, under "Description of the Preferred
Securities Guarantees -- Modification of the Preferred Securities Guarantees;
Assignment" in this prospectus, and under any prospectus supplement relating to
the issuance of a series of preferred securities, and as otherwise required by
law and the declarations, the holders of the preferred securities will have no
voting rights.
The holders of a majority in aggregate liquidation amount of the
preferred securities have the right to direct any proceeding for any remedy
available to the property trustee so long as the property trustee receives the
tax opinion discussed below. The holders also have the right to direct the
property trustee under the declaration to:
(1) direct any proceeding for any remedy available to the trustee of
the indenture under which the junior subordinated debentures will be
issued and purchased by the trust, or exercising any trust or power
conferred on the debenture trustee;
(2) waive any past indenture event of default that is waivable under
the indenture;
(3) consent to any amendment, modification or termination where that
consent is required.
If there is an event of default on the preferred securities, and that
default is a result of a payment default under the junior subordinated
debentures, the holders of the preferred securities may also sue NYCB directly,
a "direct action," to enforce payment of the principal of, or interest on, the
junior subordinated debentures having a principal amount equal to the aggregate
liquidation amount of the preferred securities of the holder on or after the due
date specified in the junior subordinated debentures.
Where a consent or action under the indenture would require the
consent or act of holders of more than a majority in principal amount of the
junior subordinated debentures, called a "super majority," then only a super
majority may direct the property trustee to give that consent or take that
action. Where a consent or action under the indenture would require the consent
or act of individual holders of the junior subordinated debentures, then only
those individual holders may direct the property trustee to give that consent or
take that action. If the property trustee fails to enforce its rights under the
junior subordinated debentures, to the fullest extend permitted by law, any
record holder of preferred securities may directly sue NYCB to enforce the
property trustee's rights under the junior subordinated debentures. The record
holder does not have to sue the property trustee or any other person or entity
before enforcing his or her rights.
The property trustee is required to notify all holders of the
preferred securities of any notice of default received from the indenture
trustee. The notice is required to state that the event of default also
constitutes a declaration event of default. Except for directing the time,
method and place of conducting a proceeding for a remedy available to the
property trustee, the property trustee will not take any of the actions
described in clauses (1), (2) or (3) above unless the property trustee receives
an opinion of a nationally recognized independent tax counsel stating that, as a
result of that action, the trust will not fail to be classified as a grantor
trust for United States federal income tax purposes.
If the consent of the property trustee is required under the indenture
for any amendment, modification or termination of the indenture, the property
trustee is required to request the written
14
direction of the holders of the trust securities. In that case, the property
trustee will vote as directed by a majority in liquidation amount of the trust
securities voting together as a single class. Where any amendment, modification
or termination under the indenture would require the consent of a super majority
or an individual holder, however, the property trustee may only give that
consent at the direction of the holders of the same super majority of the
holders of the trust securities or that individual holder, as applicable. The
property trustee is not required to take any such action in accordance with the
directions of the holders of the trust securities unless the property trustee
has obtained a tax opinion to the effect described above.
A waiver of an indenture event of default by the property trustee at
the direction of the holders of the preferred securities will constitute a
waiver of the corresponding declaration event of default.
Holders of the preferred securities may give any required approval or
direction at a separate meeting of holders of preferred securities convened for
that purpose, at a meeting of all of the holders of trust securities or by
written consent. The administrative trustees will mail to each holder of record
of preferred securities a notice of any meeting at which those holders are
entitled to vote, or of any matter upon which action by written consent of those
holders is to be taken. Each such notice will include a statement setting forth
the following information:
. the date of the meeting or the date by which the action is to be
taken;
. a description of any resolution proposed for adoption at the
meeting on which those holders are entitled to vote or of the
matter upon which written consent is sought; and
. instructions for the delivery of proxies or consents.
No vote or consent of the holders of preferred securities will be
required for the trust to redeem and cancel preferred securities or distribute
junior subordinated debentures in accordance with the declaration.
Despite the fact that holders of preferred securities are entitled to
vote or consent under the circumstances described above, any of the preferred
securities that are owned at the time by NYCB or any entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, NYCB, will not be entitled to vote or consent. Instead, these
preferred securities will be treated as if they were not outstanding.
Holders of the preferred securities generally will have no rights to
appoint or remove the NYCB capital trustees. Instead, the trustees may be
appointed, removed or replaced solely by NYCB as the indirect or direct holder
of all of the common securities.
Common Securities
In connection with the issuance of preferred securities, the trust
will issue one series of common securities having the terms (including
distributions, redemption, voting, liquidation rights or such restrictions) as
will be set forth in the prospectus supplement. Except for voting rights, the
terms of the common securities will be substantially identical to the terms of
the preferred securities. The common securities will rank equally, and payments
will be made on the common securities pro rata, with the preferred securities,
except that, upon an event of default, the rights of the holders of the common
securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the preferred securities. Unless an event of default has occurred and is
continuing, the common securities NYCB capital carry the right to vote and to
appoint, remove or replace any of the trustees. All of the common securities of
the trust will be directly or indirectly owned by NYCB.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the preferred
securities guarantee which will be executed and delivered by NYCB for the
benefit of the holders from time to time of preferred securities. The preferred
securities guarantee will be qualified as an indenture under the Trust Indenture
Act. Wilmington Trust Company will act as the guarantee trustee for purposes of
the Trust Indenture Act. The terms of the preferred securities guarantee will be
those set forth in the preferred securities guarantee and those made part of the
preferred securities guarantee by the Trust Indenture Act. The summary of the
material terms of the preferred securities guarantee is not intended to be
complete and is qualified in all respects by the provisions of the form of
preferred securities guarantee which is filed as an exhibit to the registration
statement which contains this prospectus, and the Trust Indenture Act. The
preferred securities guarantee will be held by the
15
guarantee trustee for the benefit of the holders of the preferred securities of
the trust.
General
NYCB will irrevocably and unconditionally agree, to the extent set
forth in the preferred securities guarantee, to pay in full to the holders of
the preferred securities, the guarantee payments, as defined below, except to
the extent paid by the trust, as and when due, regardless of any defense, right
of set-off or counterclaim which the trust may have or assert, other than the
defense of payment. The following payments, which are referred to as "guarantee
payments," will be guaranteed by NYCB, without duplication:
. any accrued and unpaid distributions that are required to be paid
on the preferred securities, to the extent the trust has funds
available for distributions;
. the redemption price, plus all accrued and unpaid distributions,
to the extent the trust has funds available for redemptions,
relating to any preferred securities called for redemption by the
trust; and
. upon a voluntary or involuntary dissolution, winding-up or
termination of the trust, other than in connection with the
distribution of junior subordinated debentures to the holders of
preferred securities or the redemption of all of the preferred
securities, the lesser of:
(1) the aggregate accreted value of the preferred securities and all
accrued and unpaid distributions on the preferred securities to the
date of payment; or
(2) the amount of assets of the trust remaining for distribution to
holders of the preferred securities in liquidation of the trust.
(3) NYCB's obligation to make a guarantee payment may be satisfied by
direct payment of the required amounts by NYCB to the holders of
preferred securities or by causing the trust to pay those amounts to
those holders.
(4) The preferred securities guarantee will not apply to any payment
of distributions, except to the extent the trust will have funds
available for those payments. If NYCB does not make interest payments
on the junior subordinated debentures held by the trust for any
period, the trust will not pay distributions on the preferred
securities for the corresponding period and will not have funds
available for those payments.
(5) The preferred securities guarantee, when taken together with
NYCB's obligations under the junior subordinated debenture, the
indenture and the declaration, including its obligations to pay costs,
expenses, debts and liabilities of the trust, other than those
relating to trust securities, will provide a full and unconditional
guarantee on a subordinated basis by NYCB of payments due on the
preferred securities.
(6) NYCB has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the trust with respect to the common
securities to the same extent as the preferred securities guarantee,
except that upon an event of default under the indenture, holders of
preferred securities will have priority over holders of common
securities with respect to distributions and payments on liquidation,
redemption or otherwise.
Certain Covenants of NYCB
NYCB will agree that, so long as any preferred securities of the trust
remain outstanding, if any event occurs that would constitute an event of
default under the preferred securities guarantee or the indenture, or if NYCB
has exercised its option to defer interest payments on the junior subordinated
debentures by extending the interest payment period and that period or extension
of that period is continuing, then:
. NYCB will not declare or pay any dividend on, make any
distributions relating to, or redeem, purchase, acquire or make a
liquidation payment relating to, any of its capital stock or make
any guarantee payment with respect thereto and will not make any
payment of interest, principal or premium, if any, on, or repay,
repurchase or redeem any debt securities issued by NYCB which
rank equally with or junior to the junior subordinated debentures
other than:
16
. repurchases, redemptions or other acquisitions of shares of
capital stock of NYCB in connection with any employee benefit
plans or any other contractual obligation of NYCB;
. as a result of an exchange or conversion of any class or series
of NYCB's capital stock for any other class or series of NYCB's
capital stock; or
. the purchase of fractional interests in shares of NYCB's capital
stock pursuant to the conversion or exchange provisions of that
NYCB capital stock or the security being converted or exchanged.
Modification of the Preferred Securities Guarantee; Assignment
The preferred securities guarantee may be amended only with the prior
approval of the holders of not less than a majority in aggregate liquidation
amount of the outstanding preferred securities. No vote will be required,
however, for any changes that do not adversely affect the rights of holders of
preferred securities in any material respect. All guarantees and agreements
contained in the preferred securities guarantee will bind the successors,
assignees, receivers, trustees and representatives of NYCB and will be for the
benefit of the holders of the preferred securities then outstanding.
Termination
The preferred securities guarantee will terminate upon:
. full payment of the redemption price of all preferred securities;
. distribution of the junior subordinated debentures to the holders
of the trust securities; or
. full payment of the amounts payable in accordance with the
declaration upon liquidation of the trust.
The preferred securities guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any holder of preferred
securities must restore payment of any sums paid under the preferred securities
or the preferred securities guarantee.
Events of Default
An event of default under the preferred securities guarantee will
occur upon the failure of NYCB to perform any of its payment or other
obligations under the preferred securities guarantee.
The holders of a majority in liquidation amount of the preferred
securities 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
preferred securities guarantee or to direct the exercise of any trust or power
conferred upon the guarantee trustee under the preferred securities guarantee.
Any holder of preferred securities may institute a legal proceeding directly
against NYCB to enforce the guarantee trustee's rights and the obligations of
NYCB under the preferred securities guarantee, without first instituting a legal
proceeding against the trust, the guarantee trustee or any other person or
entity.
Status of the Preferred Securities Guarantee
Unless otherwise specified in the prospectus supplement, the preferred
securities guarantee will constitute an unsecured obligation of NYCB and will
rank:
. subordinate and junior in right of payment to all other
liabilities of NYCB, except those made equal or subordinate by
their terms;
. equally with the most senior preferred or preference stock now or
hereafter issued by NYCB and with any guarantee now or hereafter
entered into by NYCB in respect of any preferred or preference
stock of any affiliate of NYCB; and
. senior to NYCB common stock.
The terms of the preferred securities provide that each holder of
preferred securities by acceptance of those securities agrees to the
subordination provisions and other terms of the preferred securities guarantee.
The preferred securities guarantee will constitute a guarantee of
payment and not of collection. This means that the guaranteed party may sue the
guarantor to enforce its rights under the guarantee without suing any other
person or entity.
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Information Concerning the Guarantee Trustee
Prior to the occurrence of a default relating to the preferred
securities guarantee, the guarantee trustee undertakes to perform only those
duties as are specifically set forth in the preferred securities guarantee.
After default, the guarantee trustee will exercise the same degree of care as a
prudent individual would exercise in the conduct of his or her own affairs.
Provided that the foregoing requirements have been met, the guarantee trustee is
under no obligation to exercise any of the powers vested in it by the preferred
securities guarantee at the request of any holder of preferred securities,
unless offered indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred thereby.
Governing Law
The preferred securities guarantees will be governed by, and construed
in accordance with, the laws of the State of New York.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
NYCB may issue junior subordinated debentures from time to time in one
or more series under an indenture, between NYCB and Wilmington Trust Company, as
trustee, the "debenture trustee," as supplemented by a supplemental indenture or
a resolution of NYCB's board of directors or a special committee appointed by
the board of directors. The indenture, as supplemented by the supplemental
indenture, is called the "indenture." The terms of the junior subordinated
debentures will include those stated in the indenture and those made part of the
indenture by reference to the Trust Indenture Act.
Set forth below is a description of the general terms of the junior
subordinated debentures in which the trust will invest the proceeds from the
issuance and sale of the trust securities. The particular terms of the junior
subordinated debentures will be described in the prospectus supplement relating
to the preferred securities being offered. The following description is not
intended to be complete and is qualified by the indenture, the form of which is
filed as an exhibit to the registration statement which contains this
prospectus, and by the Trust Indenture Act.
General
The junior subordinated debentures will be unsecured debt of NYCB. The
junior subordinated debentures will be fully subordinated as described in the
accompanying prospectus supplement under "Description of the Junior Subordinated
Debentures--Subordination." The indenture does not limit the aggregate principal
amount of junior subordinated debentures which may be issued and provides that
the junior subordinated debentures may be issued from time to time in one or
more series.
The prospectus supplement relating to the particular junior
subordinated debentures being offered will describe the terms of those
securities, which may include:
. the designation of the junior subordinated debentures;
. the aggregate principal amount of the junior subordinated
debentures;
. the percentage of their principal amount at which the junior
subordinated debentures will be issued;
. the date or dates on which the junior subordinated debentures
will mature and the right, if any, to shorten or extend the
maturity date or dates;
. the rate or rates, if any, per annum, at which the junior
subordinated debentures will bear interest, or the method of
determination of the interest rate or rates (including the
adjustment that would occur upon remarketing of the preferred
securities);
. the date or dates from which interest will accrue and the
interest payment and record dates;
. any right to extend the interest payment periods and the duration
of that extension;
. any provisions for redemption or purchase of the
junior-subordinated debentures (including when, as described in
the declaration, the unit holder exercises its warrants or when a
change of control occurs); and
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. any other specific terms of the junior subordinated debentures.
If the junior subordinated debentures will be denominated in a
currency or currency unit other than United States dollars, the prospectus
supplement will also specify the denomination in which the junior subordinated
debentures will be issued and the coin or currency in which the principal,
premium, if any, and interest, if any, on the junior subordinated debentures
will be payable, which may be United States dollars based upon the exchange rate
for that other currency or currency unit existing on or about the time a payment
is due.
Additional Interest
If, at any time, the trust is required to pay any taxes, duties,
assessments or governmental charges of whatever nature, other than withholding
taxes, imposed by the United States, or any other taxing authority, then NYCB
will be required to pay additional interest on the junior subordinated
debentures. The amount of any additional interest will be an amount sufficient
so that the net amounts received and retained by the trust after paying any such
taxes, duties, assessments or other governmental charges will be not less than
the amounts that the trust would have received had no such taxes, duties,
assessments or other governmental charges been imposed. This means that the
trust will be in the same position it would have been in if it did not have to
pay those taxes, duties, assessments or other charges.
Form, Exchange, Registration, Transfer and Payment
Unless otherwise indicated in the applicable prospectus supplement,
NYCB will issue the junior subordinated debentures in registered form only,
without coupons and in denominations of $1,000 and multiples of $1,000. No
service charge will be made for any transfer or exchange of the junior
subordinated debentures. However, NYCB or the debenture trustee may require a
holder to pay an amount sufficient to cover any tax or other governmental charge
payable in connection with a transfer or exchange.
NYCB will pay or deliver principal and any premium and interest in the
manner, at the places and subject to the restrictions set forth in the indenture
and the prospectus supplement. However, at NYCB's option, it may pay any
interest by check mailed to the registered holders of junior subordinated
debentures at their registered addresses.
Global Junior Subordinated Debentures
The indenture provides that NYCB may issue junior subordinated
debentures in global form. The applicable prospectus supplement will describe
any circumstances under which beneficial owners of interests in any global
junior subordinated debentures may exchange their interest for junior
subordinated debentures of that series and of like tenor and principal amount in
any authorized form and denomination.
Subordination
The junior subordinated debentures will be subordinated and junior in
right of payment to other indebtedness of NYCB as described in the prospectus
supplement.
Certain Covenants of NYCB
If junior subordinated debentures are issued to a trust or a trustee
of a trust in connection with the issuance of trust securities and:
. an event of default has occurred and is continuing;
. NYCB has given notice of its election to defer payments of
interest on the junior subordinated debentures by extending the
interest payment period and that period, or any extension of that
period, is continuing;
then
. NYCB will not declare or pay any dividend on, make any
distributions relating to, or redeem, purchase, acquire or make a
liquidation payment relating to, any of its capital stock or make
any payment with respect to any guarantee by NYCB of the debt
securities of any subsidiary of NYCB if such guarantee ranks on a
parity with or junior in interest to the junior subordinated
debentures and will not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any debt
securities issued by NYCB which rank equally with or junior to
the junior subordinated debentures other than:
(1) repurchases, or acquisitions of shares of capital stock of
NYCB in connection with any employee
19
benefit plans or any other contractual obligation of NYCB;
(2) dividends or distributions in capital stock (or rights to
acquire capital stock) of NYCB; or
(3) payments under the preferred securities guarantee; or
(4) any declarations of a dividend in connection with the
implementation of a shareholders' rights plan, or the
issuances of stock under any such plan in the future, or
redemptions or repurchases of any rights pursuant to a
rights agreement; and
(5) repurchases of capital stock of NYCB in connection with the
satisfaction by NYCB of its obligations pursuant to any
acquisition of business made by NYCB (which repurchases are
made in connection with the satisfaction of indemnification
obligations of the seller of such businesses).
So long as the junior subordinated debentures remain outstanding, NYCB will
covenant to:
. directly or indirectly maintain 100% ownership of the common
securities of the trust, unless a permitted successor of NYCB
succeeds to its ownership of the common securities;
. use its reasonable efforts to cause the trust to:
(1) 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
mergers, consolidations or amalgamations, each as permitted
by the declaration; and
(2) otherwise continue to be classified as a grantor trust for
United States federal income tax purposes; and
. 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.
Consolidation, Mergers and Sales of Assets
Unless otherwise indicated in the prospectus supplement, NYCB may
consolidate or merge with or into any other corporation, and may sell, lease or
convey all or substantially all of its assets to any corporation, provided that:
. the resulting corporation, if other than NYCB, is a corporation
organized and existing under the laws of the United States of
America or any U.S. state and assumes all of our obligations to:
(1) pay or deliver the principal or maturity consideration of,
and any premium, or interest on, the junior subordinated
debentures; and
(2) perform and observe all of our other obligations under the
indenture, and
. neither NYCB nor any successor corporation, as the case may be,
is, immediately after any consolidation or merger, in default
under the indenture.
The indenture does not provide for any right of acceleration in the
event of a consolidation, merger, sale of all or substantially all of the
assets, recapitalization or change in our stock ownership. In addition, the
indenture does not contain any provision which would protect the holders of the
junior subordinated debentures against a sudden and dramatic decline in credit
quality resulting from takeovers, recapitalizations or similar restructurings.
Events of Default, Waiver and Notice
The indenture provides that the following are events of default
relating to the junior subordinated debentures:
. default in the payment of the principal of, or premium, if any,
on, any junior subordinated debenture when due;
. default in the payment of any interest on any junior subordinated
debenture when due, which continues for 30 days; provided,
however, a valid extension of an interest payment by NYCB will
not constitute an event of default;
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. default in the performance of any other covenant or obligation in
respect of the junior subordinated debenture, which continues for
90 days after written notice;
. specified events of bankruptcy, insolvency or reorganization of
NYCB or, with certain exceptions, the trust.
If an indenture event of default occurs and is continuing, the
debenture trustee or the holders of not less than 25% in aggregate principal
amount of the junior subordinated debentures of that series then outstanding may
declare the principal of all junior subordinated debentures of that series to be
due and payable immediately.
The holders of a majority in aggregate outstanding principal amount of
that series of junior subordinated debentures may annul the declaration and
waive the default if the default has been cured and a sum sufficient to pay all
matured installments of interest and principal due other than by acceleration
has been deposited with the debenture trustee. The majority holders may not
waive a payment default on the junior subordinated debentures which has become
due solely by acceleration.
The holders of a majority in principal amount of the junior
subordinated debentures of any series affected may direct the time, method and
place of conducting any proceeding for any remedy available to the debenture
trustee under the indenture or exercising any trust or power conferred on the
debenture trustee with respect to that series, provided that any direction is
not in conflict with any rule of law or the indenture. Subject to the provisions
of the indenture relating to the duties of the trustee, before proceeding to
exercise any right or power under the indenture at the direction of the holders,
the trustee is entitled to receive from those holders reasonable security or
indemnity against the costs, expenses and liabilities which it might incur in
complying with any direction.
The indenture requires the annual filing by NYCB with the debenture
trustee of a certificate as to the absence of certain defaults under the
indenture.
The debenture trustee may withhold notice of any event of default from
the holders of the junior subordinated debentures, except in the payment of
principal, interest or premium, if the trustee considers it in the interest of
those holders to do so.
Distribution of the Junior Subordinated Debentures
Under circumstances discussed more fully in the prospectus supplement
involving the dissolution of the trust, after satisfaction of liabilities to
creditors of the trust, junior subordinated debentures may be distributed to the
holders of the trust securities in liquidation of that trust. See "Description
of the Preferred Securities -- Distribution of the Junior Subordinated
Debentures" in the accompanying prospectus supplement.
Modification of the Indenture
Modifications and amendments to the indenture may be made by NYCB and
the debenture trustee with the consent of the holders of a majority in aggregate
principal amount of the junior subordinated debentures at the time outstanding.
However, no such modification or amendment may, without the consent of the
holder of each junior subordinated debenture affected:
. modify the payment terms of the junior subordinated debentures;
or
. reduce the percentage of holders of junior subordinated
debentures necessary to modify or amend the indenture or waive
compliance by NYCB with any covenant or past default.
If the junior subordinated debentures are held by a trust or a trustee
of a trust, the supplemental indenture will not be effective until the holders
of 66 2/3% in aggregate stated liquidation amount of trust securities of that
trust have consented to the supplemental indenture. However, if the consent of
the holder of each outstanding junior subordinated debenture is required, the
supplemental indenture will not be effective until each holder of the trust
securities of that trust, has consented to the supplemental indenture.
We and the debenture trustee may also amend and modify the indenture
without the consent of any holder under certain circumstances described in the
indenture.
Defeasance and Discharge
The indenture provides that NYCB, at its option:
(1) will be discharged from all obligations in respect of the junior
subordinated
21
debentures of a series, except for obligations to register the
transfer or exchange of junior subordinated debentures, replace
stolen, lost or mutilated junior subordinated debentures,
maintain paying agencies and hold moneys for payment in trust; or
(2) need not comply with specified restrictive covenants of the
indenture;
in each case if NYCB deposits, in trust, money or U.S. government obligations in
an amount sufficient to pay all the principal of, and interest and premium, if
any, on, the junior subordinated debentures when those payments are due.
To exercise any such option, NYCB is required to deliver an opinion of
counsel that:
. the deposit and related defeasance would not cause the holders of
the junior subordinated debentures of that series to recognize
income, gain or loss for U.S. federal income tax purposes and, in
the case of a discharge pursuant to clause (1) above, the opinion
will be accompanied by a private letter ruling to that effect
received by NYCB from the United States Internal Revenue Service
or a revenue ruling pertaining to a comparable form of
transaction to that effect published by the United States
Internal Revenue Service; and
. if listed on any national securities exchange, the junior
subordinated debentures would not be delisted from that exchange
as a result of the exercise of the defeasance option.
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.
The Debenture Trustee
The occurrence of any default under either of the indenture or the
senior or subordinated indentures between NYCB and the debenture trustee
relating to NYCB's senior and subordinated debt securities, which may also be
issued under this registration statement, could create a conflicting interest
for the debenture trustee under the Trust Indenture Act. If that default has not
been cured or waived within 90 days after the debenture trustee has acquired a
conflicting interest, the debenture trustee would generally be required by the
Trust Indenture Act to eliminate the conflicting interest or resign as trustee
with respect to the debt securities issued under the senior indenture or the
subordinated indenture or with respect to the junior subordinated debentures
issued under the indenture. If the debenture trustee resigns, NYCB is required
to promptly appoint a successor trustee with respect to the affected securities.
The Trust Indenture Act also imposes certain limitations on the right
of the debenture trustee, as a creditor of NYCB, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any cash
claim or otherwise. The debenture trustee will be permitted to engage in other
transactions with NYCB, provided that if it acquires a conflicting interest
within the meaning of section 310 of the Trust Indenture Act, it must generally
either eliminate that conflict or resign.
EFFECT OF OBLIGATIONS UNDER THE JUNIOR SUBORDINATED DEBENTURES AND THE PREFERRED
SECURITIES GUARANTEES
As set forth in the declaration, the sole purposes of the trust are to
issue the trust securities and to invest the proceeds from that issuance and
sale in the junior subordinated debentures.
As long as payments of interest and other payments are made by NYCB
when due on the junior subordinated debentures, those payments will be
sufficient to cover the distributions and payments due on the trust securities.
This is due to the following factors:
. the aggregate principal amount of junior subordinated debentures
will be equal to the sum of the aggregate stated liquidation
amount of the trust securities;
. the interest rate and the interest and other payment dates on the
junior
22
subordinated debentures will match the distribution rate and
distribution and other payment dates for the trust securities;
. under the indenture, NYCB will pay, and the trust will not be
obligated to pay, directly or indirectly, all costs, expenses,
debts and obligations of the trust, other than those relating to
the trust securities; and
. the declaration further provides that the NYCB trustees may not
cause or permit the trust to engage in any activity that is not
consistent with the purposes of the trust.
Payments of distributions, to the extent there are available funds,
and other payments due on the preferred securities, to the extent there are
available funds, are guaranteed by NYCB to the extent described in this
prospectus. If NYCB does not make interest payments on the junior subordinated
debentures, the trust will not have sufficient funds to pay distributions on the
preferred securities. Each preferred securities guarantee is a subordinated
guarantee in relation to the preferred securities. The preferred securities
guarantee does not apply to any payment or distributions unless the trust has
sufficient funds for the payment of those distributions. See "Description of the
Preferred Securities Guarantees."
The preferred securities guarantee covers the payment of distributions
and other payments on the preferred securities only if and to the extent that
NYCB has made a payment of interest or principal or other payments on the junior
subordinated debentures. The preferred securities guarantee, when taken
together with NYCB's obligations under the junior subordinated debentures and
the indenture and its obligations under the declaration, will provide a full and
unconditional guarantee of distributions, redemption payments and liquidation
payments on the preferred securities.
If NYCB fails to make interest or other payments on the junior
subordinated debentures when due, taking account of any extension period, the
declaration allows the holders of the preferred securities to direct the
property trustee to enforce its rights under the junior subordinated debentures.
If the property trustee fails to enforce these rights, to the fullest extent
permitted by law, any holder of preferred securities may directly sue NYCB to
enforce these rights without first suing the property trustee or any other
person or entity. See "Description of the Preferred Securities -- Book Entry
Only Issuance -- The Depository Trust Company" and "-- Voting Rights" in the
accompanying prospectus supplement.
A holder of preferred securities may institute a direct action if a
declaration event of default has occurred and is continuing and that event is
attributable to the failure of NYCB to pay interest or principal on the junior
subordinated debentures on the date the interest or principal is otherwise
payable. A direct action may be brought without first (1) directing the property
trustee to enforce the terms of the junior subordinated debentures or (2) suing
NYCB to enforce the property trustee's rights under the junior subordinated
debentures. In connection with that direct action, NYCB will be subrogated to
the rights of the holder of preferred securities under the declaration to the
extent of any payment made by NYCB to that holder of preferred securities.
Consequently, NYCB will be entitled to payment of amounts that a holder of
preferred securities receives in respect of an unpaid distribution to the extent
that the holder receives or has already received full payment relating to that
unpaid distribution from a trust.
NYCB acknowledges that the guarantee trustee will enforce the
preferred securities guarantee on behalf of the holders of the preferred
securities. If NYCB fails to make payments under the preferred securities
guarantee, the preferred securities guarantee allows the holders of the
preferred securities to direct the guarantee trustee to enforce its rights
thereunder. If the guarantee trustee fails to enforce the preferred securities
guarantee, any holder of preferred securities may directly sue NYCB to enforce
the guarantee trustee's rights under the preferred securities guarantee. The
holder need not first sue the trust, the guarantee trustee, or any other person
or entity. A holder of preferred securities may also directly sue NYCB to
enforce the holder's right to receive payment under the preferred securities
guarantee. The holder need not first (1) direct the guarantee trustee to enforce
the terms of the preferred securities guarantee or (2) sue the trust or any
other person or entity.
NYCB and the trust believe that the above mechanisms and obligations,
taken together, are equivalent to a full and unconditional guarantee by NYCB of
payments due on the preferred securities. See "Description of the Preferred
Securities Guarantees -- General."
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PLAN OF DISTRIBUTION
NYCB may sell the junior subordinated debentures and the trust may
sell preferred securities:
. directly to purchasers;
. through agents; or
. through underwriters or dealers.
Offers or sales of those securities may include secondary market
transactions by affiliates of NYCB.
Offers to purchase preferred securities may be solicited directly by
NYCB and/or the trust, as the case may be, or by agents designated by NYCB
and/or the trust, as the case may be, from time to time. Any such agent, who may
be deemed to be an underwriter as that term is defined in the Securities Act,
involved in the offer or sale of the preferred securities in respect of which
this prospectus is delivered will be named, and any commissions payable by NYCB
to that agent will be set forth, in the prospectus supplement. Unless otherwise
indicated in the prospectus supplement, any such agency will be acting on a best
efforts basis for the period of its appointment which is ordinarily five
business days or less. Agents, dealers and underwriters may be customers of,
engage in transactions with, or perform services for NYCB in the ordinary course
of business.
If an underwriter or underwriters are utilized in the sale, NYCB will
execute an underwriting agreement with those underwriters at the time of sale to
them and the names of the underwriters and the terms of the transaction will be
set forth in the prospectus supplement, which will be used by the underwriters
to make releases of the preferred securities in respect of which this prospectus
is delivered to the public.
If a dealer is utilized in the sale of the preferred securities in
respect of which this prospectus is delivered, NYCB and/or the trust, as the
case may be, will sell those preferred securities to the dealer, as principal.
The dealer may then resell those preferred securities to the public at varying
prices to be determined by that dealer at the time of resale. The name of the
dealer and the terms of the transaction will be set forth in the prospectus
supplement. Agents, underwriters, and dealers may be entitled under the relevant
agreements to indemnification by NYCB and/or the trust, as the case may be,
against certain liabilities, including liabilities under the Securities Act.
Underwriters, agents or their controlling persons may engage in
transactions with and perform services for NYCB in the ordinary course of
business.
Certain of the underwriters may use this prospectus and the
accompanying prospectus supplement for offers and sales related to market-making
transactions in the securities. These underwriters may act as principal or agent
in these transactions, and the sales will be made at prices related to
prevailing market prices at the time of sale.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the
preferred securities will be passed upon on behalf of the trust by Morris,
James, Hitchens & Williams LLP, Wilmington, Delaware, special Delaware counsel
to the trust. The validity of the junior subordinated debentures and the
preferred securities guarantee and certain matters relating thereto will be
passed upon for NYCB and certain United States federal income taxation matters
will be passed upon for NYCB and the trust by Muldoon Murphy & Faucette LLP,
Washington, D.C.
EXPERTS
The consolidated financial statements of NYCB and subsidiaries as of
December 31, 2001 and December 31, 2000 and for each of the years in the
three-year period ended December 31, 2001 have been incorporated by
reference herein in reliance upon the report, also incorporated by reference
herein, of KPMG LLP, independent certified public accountants, and upon the
authority of said firm as experts in accounting and auditing. The report of
KPMG LLP refers to changes in 2001, in NYCB's methods of accounting for goodwill
and intangible assets resulting from business combinations consummated after
June 30, 2001.
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[Logo]
New York Community Bancorp, Inc.
New York Community Capital Trust V
Equity Redeemable Preferred Securities Units
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PROSPECTUS
, 2002
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation, are:
Filing Fee for Registration Statement ............................... $ 36,800
Listing Fees ........................................................ 25,000
Legal Fees and Expenses ............................................. 375,000
Accounting Fees and Expenses ........................................ 50,000
Printing and Engraving Fees ......................................... 75,000
Trustee's expenses .................................................. 25,000
Fees of rating agencies ............................................. 150,000
Miscellaneous ....................................................... 5,000
--------
Total ............................................................... $741,800
========
Item 15. Indemnification of Directors and Officers.
NYCB's Certificate of Incorporation, Article 10, provides that each person
who was or is made a party or is threatened to be made a party to or is
otherwise involved in any proceeding, by reason of the fact that he or she is or
was a director or an officer of NYCB or is or was serving at the request of NYCB
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 an employee benefit plan, 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 NYCB to the fullest extent authorized
by the Delaware General Corporation Law ("DGCL") against all expense, liability
and loss (including attorney's fees, judgements, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or suffered by
such person in connection therewith; provided, however, that, except with
respect to proceedings to enforce rights to indemnification, NYCB shall
indemnify such person in connection with a proceeding initiated by such person
only if such proceeding was authorized by NYCB's board of directors. The DGCL
permits a 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 the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, or other enterprise, against expenses (including attorney's
fees), judgments, fines, and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the 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 the
person's conduct was unlawful. However, indemnity may not be granted in respect
of a claim, issue or matter as to which a person has been adjudged to be liable
to the corporation unless and only to the extent that the Delaware Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper. NYCB's Certificate of Incorporation provides that such rights
to indemnification are contract rights and that the expenses incurred by such
person will be
1
paid in advance of a final disposition of any proceeding, provided, however,
that if required under the DGCL, an advancement of expenses incurred by an
person in his or her capacity as a director or officer shall be made only upon
delivery to NYCB of an undertaking, by or on behalf of such person, to repay the
amounts so advanced if it shall ultimately be determined by final adjudication
that such person is not entitled to be indemnified for such expenses under
Article 10, Section B of NYCB's Certificate of Incorporation or otherwise.
With respect to possible indemnification of directors, officers and
controlling persons of NYCB for liabilities arising under the Securities Act of
1933 (the "Act") pursuant to such provisions, NYCB is aware that the Securities
and Exchange Commission has publicly taken the position that such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
The Declaration of each Trust limits the liability to the Trust and certain
other persons, and provides for the indemnification by the Trust or NYCB of the
trustees, their officers, directors and employees and certain other persons.
Item 16. Exhibits
Exhibits
- --------
1(a) -- Form of Underwriting Agreement for offering of Debt
Securities. (The form of such agreement will be filed as an
exhibit to a Current Report on Form 8-K and incorporated
herein by reference.)
1(b) -- Form of Underwriting Agreement for offering of Preferred
Securities. (The form of such agreement will be filed as an
exhibit to a Current Report on Form 8-K and incorporated
herein by reference.)
1(c) -- Form of Underwriting Agreement for offering of Common Stock.
(The form of such agreement will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.)
1(d) -- Form of Underwriting Agreement for offering of Units and
Warrants. (The form of such agreement will be filed as an
exhibit to a Current Report on Form 8-K and incorporated
herein by reference.)
4(a) -- Form of Senior Indenture. *
4(b) -- Form of Note for Senior Debt Securities. *
4(c) -- Form of Subordinated Indenture. *
4(d) -- Form of Note for Subordinated Debt Securities. *
4(e) -- Certificate of Incorporation of New York Community Bancorp,
Inc., as amended (incorporated by reference to Exhibit 3.1
to the Registration Statement on Form S-1 filed with the
Securities and Exchange Commission, Registration No.
33-66852).
4(f)(i) -- Certificate of Trust of New York Community Capital Trust I.*
4(f)(ii) -- Certificate of Trust of New York Community Capital Trust
II.*
2
Exhibits
- --------
4(f)(iii) -- Certificate of Trust of New York Community Capital Trust
III.*
4(f)(iv) -- Certificate of Trust of New York Community Capital Trust
IV.*
4(f)(v) -- Certificate of Trust of New York Community Capital Trust V.*
4(g)(i) -- Declaration of Trust of New York Community Capital Trust I.*
4(g)(ii) -- Declaration of Trust of New York Community Capital Trust
II.*
4(g)(iii) -- Declaration of Trust of New York Community Capital Trust
III.*
4(g)(iv) -- Declaration of Trust of New York Community Bank Capital
Trust IV.*
4(g)(v) -- Declaration of Trust of New York Community Capital Trust V.*
4(h)(i) -- Form of Amended and Restated Declaration of Trust to be used
in connection with the issuance of the Preferred
Securities.*
4(h)(ii) -- Form of Amended and Restated Declaration of Trust to be used
in connection with issuance of the Units. (The form of such
agreement will be filed as an exhibit to a Current Report on
Form 8-K and incorporated herein by reference.)
4(i)(i) -- Form of Indenture relating to Junior Subordinated
Debentures.*
4(i)(ii) -- Form of Indenture relating to Junior Subordinated Debentures
issued in connection with Units.*
4(j) -- Form of Supplemental Indenture to be used in connection with
the issuance of the Junior Subordinated Debentures and
Preferred Securities issued in connection with Units.*
4(k)(i) -- Form of Preferred Security (included in Exhibit 4(h)(i)).*
4(k)(ii) -- Form of Preferred Security (included in Exhibit 4(h)(ii))
issued in connection with Units.*
4(l)(i) -- Form of Junior Subordinated Debenture (included in Exhibit
4(i)(i)).*
4(l)(ii) -- Form of Junior Subordinated Debenture issued in connection
with Units (included in Exhibit 4(i)(ii).*
4(l)(iii) -- Form of Warrant (included in Exhibit 4(p)).
4(l)(iv) -- Form of Unit Certificate (included in Exhibit 4(o)).
4(1)(v) -- Specimen Common Stock Certificate (incorporated by reference
to Exhibits filed with the Registration Statement on Form
S-1, Registration No. 33-66852).
4(m)(i) -- Form of Preferred Securities Guarantee.*
3
Exhibits
- --------
4(m)(ii) -- Form of Preferred Securities Guarantee issued in connection
with Units.*
4(n)(i) -- Shareholder Protection Rights Agreement, dated as of January
16, 1996 and amended on March 27, 2001, between New York
Community Bancorp, Inc. and Register and Transfer Company,
as Rights Agent (incorporated by reference to Exhibit 4 of
New York Community Bancorp, Inc.'s Form 8-A filed with the
Securities and Exchange Commission on January 24, 1996,
amended as reflected in Exhibit 4.2 to the Registration
Statement on Form S-4 filed with the Commission on April 25,
2001).
4(o) -- Form of Unit Agreement between New York Community Bancorp,
Inc., New York Community Capital Trust V and as
------
Warrant Agent, Property Trustee and Agent. The form of such
agreement will be filed as an exhibit to a Current Report on
Form 8-K and incorporated herein by reference.
4(p) -- Form of Warrant Agreement between New York Community
Bancorp, Inc. and . The form of such agreement will be
------
filed as an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
5(a)(i) -- Opinion of Muldoon Murphy & Faucette LLP as to legality of
Debt Securities, Junior Subordinated Debentures Common Stock
and Warrants.*
5(b)(i) -- Opinion of Morris, James, Hitchens & Williams LLP, as to
legality of the Preferred Securities - New York Community
Capital Trust I.*
5(b)(ii) -- Opinion of Morris, James, Hitchens & Williams LLP, as to
legality of the Preferred Securities - New York Community
Capital Trust II.*
5(b)(iii) -- Opinion of Morris, James, Hitchens & Williams LLP, as to
legality of the Preferred Securities - New York Community
Capital Trust III.*
5(b)(iv) -- Opinion of Morris, James, Hitchens & Williams LLP, as to
legality of the Preferred Securities - New York Community
Capital Trust IV.*
5(b)(v) -- Opinion of Morris, James, Hitchens & Williams LLP, as to
legality of the Preferred Securities - New York Community
Capital Trust V. This opinion will be filed as an exhibit to
a Current Report on Form 8-K and incorporated by reference
herein.
12 -- Computation of Consolidated Ratio of Earnings to Fixed
Charges.*
23(a) -- Consent of KPMG LLP.*
23(b) -- Consent of Muldoon Murphy & Faucette LLP (included in
Exhibit 5(a)).
23(c) -- Consents of Morris, James, Hitchens & Williams LLP (included
in Exhibits 5(b)(i)-(v)).
24(a) -- Power of Attorney of certain officers and directors of New
York Community Bancorp, Inc. (included on pages II-6 through
II-7).*
4
Exhibits
- --------
25(a) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Senior Trustee.*
25(b) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Subordinated Trustee.*
25(c) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Trustee under the Junior Subordinated Debenture Indenture
relating to New York Community Capital Trust I, New York
Community Capital Trust II, New York Community Capital Trust
III and New York Community Capital Trust IV and New York
Community Capital Trust V.*
25(d) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Trustee under the Amended and Restated Declaration of Trust
of New York Community Capital Trust I.*
25(e) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Trustee under the Amended and Restated Declaration of Trust
of New York Community Capital Trust II.*
25(f) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Trustee under the Amended and Restated Declaration of Trust
of New York Community Capital Trust III.*
25(g) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Trustee under the Amended and Restated Declaration of Trust
of New York Community Capital Trust IV.*
25(h) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Trustee under the Amended and Restated Declaration of Trust
of New York Community Capital Trust V.*
25(h)(i) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Trustee under the Preferred Securities Guarantee relating to
New York Community Capital Trust I.*
25(j) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Trustee under the Preferred Securities Guarantee relating to
New York Community Capital Trust II.*
25(k) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Trustee under the Preferred Securities Guarantee relating to
New York Community Capital Trust III.*
25(l) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Trustee under the Preferred Securities Guarantee relating to
New York Community Capital Trust IV.*
5
Exhibits
- --------
25(m) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Wilmington Trust Company, as
Trustee under the Preferred Securities Guarantee relating to
New York Community Capital Trust V.*
* filed herewith
6
Item 17. Undertakings
The undersigned registrants hereby undertake:
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement; (i) to include any
prospectus required by Section 10(a) (3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement (notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement); and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that (a) (1) (i) and (a) (1) (ii) do not apply if
the information required to be included in a post-effective amendment by those
items is contained in periodic reports filed by the registrants pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant'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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrants pursuant to the foregoing provisions, or otherwise, the registrants
have been advised that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in said Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by a registrant of expenses incurred or
paid by a director, officer or controlling person of such registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, such registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against policy as expressed in the Act and will be governed by the final
adjudication of such issue.
7
The undersigned registrants hereby undertake that:
For purposes of determining any liability under the Securities Act of 1933,
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 file by the registrants pursuant to Rule 424(b)(1) or (4)or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
For the purpose of determining any liability under the Securities Act of
1933, 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.
8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused this Form S-3
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Westbury, and the State of New York, on April 19,
2002.
NEW YORK COMMUNITY BANCORP, INC.
By:/s/Joseph R. Ficalora
----------------------------------
Joseph R. Ficalora
President and Chief Executive Officer
Each person whose signature appears below hereby constitutes and appoints
Joseph R. Ficalora and Thomas R. Cangemi, or any of them, acting alone, as his
or her true and lawful attorney-in-fact, with full power and authority to
execute in the name, place and stead of each such person in any and all
capacities and to file, an amendment or amendments to the Registration Statement
(and all exhibits thereto) and any documents relating thereto, which amendments
may make such changes in the Registration Statement as said officer or officers
so acting deem(s) advisable.
Pursuant to the requirements of the Securities Act of 1933, this Form S-3
Registration Statement has been signed by the following persons in the
capacities indicated on April 19, 2002.
Signature Title
--------- -----
/s/ Joseph R. Ficalora President and Chief Executive Officer
- ----------------------------------------------
Joseph R. Ficalora
/s/ Michael F. Manzulli Chairman of the Board
- ----------------------------------------------
Michael F. Manzulli
/s/ Robert Wann Executive Vice President and Chief Financial Officer
- ---------------------------------------------- (Principal Financial and Accounting Officer)
Robert Wann
/s/ Donald M. Blake Director
- ----------------------------------------------
Donald M. Blake
/s/ Anthony E. Burke Director
- ----------------------------------------------
Anthony E. Burke
/s/ Dominick Ciampa Director
- ----------------------------------------------
Dominick Ciampa
/s/ Robert S. Farrell Director
- ----------------------------------------------
Robert S. Farrell
/s/ Dr. William C. Frederick Director
- ----------------------------------------------
Dr. William C. Frederick
/s/ Max L. Kupferberg Director
- ----------------------------------------------
Max L. Kupferberg
/s/ Howard C. Miller Director
- ----------------------------------------------
Howard C. Miller
Pursuant to the requirements of the Securities Act of 1933, each Trust has
duly caused this Form S-3 Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized in the City of Westbury, and the
State of New York, on April 19, 2002.
New York Community Capital Trust I
New York Community Capital Trust II
New York Community Capital Trust III
New York Community Capital Trust IV
New York Community Capital Trust V
By:/s/ Joseph R. Ficalora
-----------------------------------------
Joseph R. Ficalora
Trustee
By:/s/ Robert Wann
-------------------------------------
Robert Wann
Trustee
By:/s/ Thomas R. Cangemi
-----------------------------------------
Thomas R. Cangemi
Trustee
INDEX TO EXHIBITS
Exhibits
- --------
1(a) -- Form of Underwriting Agreement for offering of Debt Securities.
(The form of such agreement will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.)
1(b) -- Form of Underwriting Agreement for offering of Preferred
Securities. (The form of such agreement will be filed as an
exhibit to a Current Report on Form 8-K and incorporated herein
by reference.)
1(c) -- Form of Underwriting Agreement for offering of Common Stock.
(The form of such agreement will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.)
1(d) -- Form of Underwriting Agreement for offering of Units and
Warrants. (The form of such agreement will be filed as an
exhibit to a Current Report on Form 8-K and incorporated herein
by reference.)
4(a) -- Form of Senior Indenture. *
4(b) -- Form of Note for Senior Debt Securities. *
4(c) -- Form of Subordinated Indenture. *
4(d) -- Form of Note for Subordinated Debt Securities. *
4(e) -- Certificate of Incorporation of New York Community Bancorp,
Inc., as amended (incorporated by reference to Exhibit 3.1 to
the Registration Statement on Form S-1 filed with the
Securities and Exchange Commission, Registration No. 33-66852).
4(f)(i) -- Certificate of Trust of New York Community Capital Trust I.*
4(f)(ii) -- Certificate of Trust of New York Community Capital Trust II.*
4(f)(iii) -- Certificate of Trust of New York Community Capital Trust III.*
4(f)(iv) -- Certificate of Trust of New York Community Capital Trust IV.*
4(f)(v) -- Certificate of Trust of New York Community Capital Trust V.*
4(g)(i) -- Declaration of Trust of New York Community Capital Trust I.*
4(g)(ii) -- Declaration of Trust of New York Community Capital Trust II.*
4(g)(iii) -- Declaration of Trust of New York Community Capital Trust III.*
4(g)(iv) -- Declaration of Trust of New York Community Bank Capital Trust
IV.*
4(g)(v) -- Declaration of Trust of New York Community Capital Trust V.*
Exhibits
- --------
4(h)(i) -- Form of Amended and Restated Declaration of Trust to be used in
connection with the issuance of the Preferred Securities.*
4(h)(ii) -- Form of Amended and Restated Declaration of Trust to be used in
connection with issuance of the Units. The form of such
agreement will be filed as an exhibit to a Current Report on
Form 8-K and incorporated herein by reference.
4(i)(i) -- Form of Indenture relating to Junior Subordinated Debentures.*
4(i)(ii) -- Form of Indenture relating to Junior Subordinated Debentures
issued in connection with Units.*
4(j) -- Form of Supplemental Indenture to be used in connection with
the issuance of the Junior Subordinated Debentures and
Preferred Securities issued in connection with Units.*
4(k)(i) -- Form of Preferred Security (included in Exhibit 4(h)(i)).*
4(k)(ii) -- Form of Preferred Security (included in Exhibit 4(h)(ii))
issued in connection with Units.*
4(l)(i) -- Form of Junior Subordinated Debenture (included in Exhibit
4(i)(i)).*
4(l)(ii) -- Form of Junior Subordinated Debenture issued in connection with
Units (included in Exhibit 4(i)(ii).*
4(l)(iii) -- Form of Warrant (included in Exhibit 4(p)).
4(l)(iv) -- Form of Unit Certificate (included in Exhibit 4(o)).
4(1)(v) -- Specimen Common Stock Certificate (incorporated by reference to
Exhibits filed with the Registration Statement on Form S-1,
Registration No. 33-66852)
4(m)(i) -- Form of Preferred Securities Guarantee.*
4(m)(ii) -- Form of Preferred Securities Guarantee issued in connection
with Units.*
4(n)(i) -- Shareholder Protection Rights Agreement, dated as of January
16, 1996 and amended on March 27, 2001, between New York
Community Bancorp, Inc. and Registrar and Transfer Company, as
Rights Agent (incorporated by reference to Exhibit 4 of New
York Community Bancorp, Inc.'s Form 8-A filed with the
Securities and Exchange Commission on January 24, 1996, amended
as reflected in Exhibit 4.2 to the Registration Statement on
Form S-4 filed with the Commission on April 25, 2001).
4(o) -- Form of Unit Agreement between New York Community Bancorp,
Inc., New York Community Capital Trust V and as Warrant
------
Agent, Property Trustee and Agent. The form of such agreement
will be filed as an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
4(p) -- Form of Warrant Agreement between New York Community Bancorp,
Inc. and . The form of such agreement will be filed as an
------
exhibit to a Current Report on Form 8-K and incorporated herein
by reference.
Exhibits
- --------
5(a)(i) -- Opinion of Muldoon Murphy & Faucette LLP as to legality of Debt
Securities, Junior Subordinated Debentures, Common Stock and
Warrants.*
5(b)(i) -- Opinion of Morris, James, Hitchens & Williams LLP, as to
legality of the Preferred Securities - New York Community
Capital Trust I.*
5(b)(ii) -- Opinion of Morris, James, Hitchens & Williams LLP, as to
legality of the Preferred Securities - New York Community
Capital Trust II.*
5(b)(iii) -- Opinion of Morris, James, Hitchens & Williams LLP, as to
legality of the Preferred Securities - New York Community
Capital Trust III.*
5(b)(iv) -- Opinion of Morris, James, Hitchens & Williams LLP, as to
legality of the Preferred Securities - New York Community
Capital Trust IV.*
5(b)(v) -- Opinion of Morris, James, Hitchens & Williams LLP, as to
legality of the Preferred Securities - New York Community
Capital Trust V. This opinion will be filed as an exhibit to a
Current Report on Form 8-K and incorporated by reference
herein.
12 -- Computation of Consolidated Ratio of Earnings to Fixed
Charges.*
23(a) -- Consent of KPMG LLP.*
23(b) -- Consent of Muldoon Murphy & Faucette LLP (included in Exhibit
5(a)).
23(c) -- Consents of Morris, James, Hitchens & Williams LLP (included in
Exhibits 5(b)(i)-(v)).
24(a) -- Power of Attorney of certain officers and directors of New York
Community Bancorp, Inc. (included on pages II-6 through II-7).*
25(a) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Senior
Trustee.*
25(b) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as
Subordinated Trustee.*
25(c) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Trustee
under the Junior Subordinated Debenture Indenture relating to
New York Community Capital Trust I, New York Community Capital
Trust II, New York Community Capital Trust III and New York
Community Capital Trust IV and New York Community Capital Trust
V.*
25(d) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Trustee
under the Amended and Restated Declaration of Trust of New York
Community Capital Trust I.*
25(e) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Trustee
under the Amended and Restated Declaration of Trust of New York
Community Capital Trust II.*
Exhibits
- --------
25(f) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Trustee
under the Amended and Restated Declaration of Trust of New York
Community Capital Trust III.*
25(g) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Trustee
under the Amended and Restated Declaration of Trust of New York
Community Capital Trust IV.*
25(h) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Trustee
under the Amended and Restated Declaration of Trust of New York
Community Capital Trust V.*
25(h)(i) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Trustee
under the Preferred Securities Guarantee relating to New York
Community Capital Trust I.*
25(j) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Trustee
under the Preferred Securities Guarantee relating to New York
Community Capital Trust II.*
25(k) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Trustee
under the Preferred Securities Guarantee relating to New York
Community Capital Trust III.*
25(l) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Trustee
under the Preferred Securities Guarantee relating to New York
Community Capital Trust IV.*
25(m) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as Trustee
under the Preferred Securities Guarantee relating to New York
Community Capital Trust V.*
* filed herewith