Exhibit 2.3
MANDATORY PURCHASE AGREEMENT
This Mandatory Purchase Agreement (this "Agreement") is made as of
this __ day of , 2001 by and between CBNY Investment Services Corp., a New
York corporation (the "Company") and Xxxxxx Xxxxxx Xxxx (the
"Stockholder").
RECITALS
WHEREAS, the Stockholder is deemed to beneficially own
approximately 5.48% of the issued and outstanding shares of common stock
(the "CBNY Common Stock"), par value $5 per share, of Commercial Bank of
New York, a New York state chartered trust company ("CBNY");
WHEREAS, the Company is a wholly owned subsidiary of CBNY;
WHEREAS, the Company is offering (the "Rights Offering") up to
1,060,000 shares of common stock, par value $1.00 per share (the "Company
Common Stock"), of the Company to holders (the "Holders") of record of CBNY
Common Stock at the close of business on ________, 2001 (the "Record
Date"), pursuant to non-transferable subscription rights (the "Subscription
Rights"); and
WHEREAS, each Holder as of the Record Date will have the right to
purchase one share of Company Common Stock for every 5 shares of CBNY
Common Stock owned by such Holder on the Record Date (the "Basic
Subscription Right") and Holders are entitled to subscribe for all, or any
portion of, the shares of Company Common Stock relating to their Basic
Subscription Rights;
WHEREAS, each Holder who subscribes for all the shares of Company
Common Stock relating to such Holder's Basic Subscription Rights has a
right (the "Over-Subscription Right") to subscribe for additional shares
of Company Common Stock, if any, that are not subscribed for by other
Holders pursuant to their Basic Subscription Rights, subject to
availability and proration of such shares in accordance with the terms of
the Rights Offering;
NOW, THEREFORE, in consideration of the above premises and the
mutual promises set forth herein, the receipt and legal sufficiency of
which are hereby acknowledged, the Stockholder and the Company hereby agree
as follows:
1. Mandatory Subscription by Stockholder.
1.1 The Stockholder shall subscribe for all the shares of
Company Common Stock relating to her Basic Subscription Right in the Rights
Offering (the "Basic Shares") at a subscription price of $10.00 per share
(the "Subscription Price").
1.2 The Stockholder will exercise her Over-Subscription
Right to purchase additional shares of Company Common Stock in the Rights
Offering at the Subscription Price (the "Over-Subscription Shares") by the
expiration date of the Rights Offering (the "Expiration Date"). The
Stockholder will exercise such Over-Subscription Right by means of
providing to the Company a properly completed subscription certificate.
2. Time of Payment
2.1 Promptly following the Expiration Date, the Company
shall notify the Stockholder of the total number of shares of Company
Common Stock to be purchased by the Stockholder, which amount shall include
the number of Basic Shares and the Over-Subscription Shares, and the amount
payable by the Stockholder to the Company in respect of the purchase of
such shares (the "Subscription Amount").
2.2 By the later of (i) 2 Business Days after receiving
notice of the Subscription Amount from the Company in accordance with
Section 2.1 and (ii) the end of the Business Day following the
effectiveness of the merger (the "Merger") between CBNY and a subsidiary of
North Fork Bank, a New York State chartered trust company ("North Fork")
pursuant to the Plan of Reorganization (as defined below), the Stockholder
will wire the Subscription Amount in immediately available funds to an
account notified by the Company to the Stockholder. For the purposes of
this Section 2.2, "Business Day" means a day other than a Saturday or
Sunday or any day on which banking institutions in the city of New York are
authorized or obligated by law or executive order to close.
3. Conditions to the Purchase of The Basic Shares and The
Over-Subscription Shares. The Stockholder's obligation to purchase
the Basic Shares and the Over-Subscription Shares is conditioned
on the following: (a) the Rights Offering has been commenced
pursuant to an effective registration statement (the "Registration
Statement") filed on an appropriate form with the Securities and
Exchange Commission (the "SEC"); (b) no stop order suspending the
effectiveness of the Registration Statement having been issued and
no proceedings for that purpose have been initiated or threatened
by the SEC; and (c) the Merger pursuant to the Plan of
Reorganization (as defined below) has become effective.
4. Termination. This Agreement will terminate on the earlier to occur
of (i) _______, 2001, (ii) the payment by Stockholder of the
Subscription Amount; (iii) the termination of the Rights Offering
by the Company in accordance with its terms; or (iv) the
termination of the Agreement and Plan of Reorganization, dated
February 13, 2001 by and among North Fork Bancorporation, a
Delaware corporation, North Fork Bank and CBNY (the "Plan of
Reorganization"), by one of the parties to the Plan of
Reorganization in accordance with its terms.
5. Notices. Any notice or other communication hereunder must be in
writing and shall be deemed given if delivered personally, sent
via facsimile transmission and verbally confirmed, or mailed by
registered mail or certified mail (return receipt requested) or
delivered by an express courier (with confirmation),
(a) if to the Company, at:
CBNY Investment Services Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000,
(b) if to the Stockholder, at:
Xxxxxx Xxxxxx Xxxx
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: ______________,
or such other address or to the attention of such other person as
the recipient party shall have specified by prior written notice
to the sending party.
6. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision
or any other jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction to give the greatest
effect to the terms of this Agreement taken as a whole.
7. Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith
embody the complete agreement and understanding among the parties
and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way. Except
as specifically set forth herein, this Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and
their permitted assigns and nothing herein, express or implied, is
intended to or shall confer upon any other person or entity any
legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
8. Counterparts. This Agreement may be executed on separate
counterparts, each of which is deemed to be an original and all of
which taken together constitute one and the same agreement.
9. Successors and Assigns. This Agreement shall be enforceable by and
against and binding upon the respective legal successors and
assigns of the Company and the Stockholder; provided, however,
that neither the Company nor the Stockholder shall voluntarily
assign its obligations under this Agreement without the express
written consent of the other party.
10. Choice of Law. This Agreement shall be governed by the internal
law, and not the law of conflicts, of the State of New York; and
the Stockholder and the Company accept the nonexclusive
jurisdiction of the local courts of the State of New York and the
Federal courts located in the State of New York.
11. Remedies. Each of the parties to this Agreement will be entitled
to enforce its rights under this Agreement specifically, to
recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights existing in its favor.
The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to
any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.
12. Amendments and Waivers. Any provision of this Agreement may be
amended or waived only with the prior written consent of each of
the Company and the Stockholder.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
XXXXXX XXXXXX XXXX
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CBNY INVESTMENT SERVICES CORP.
By:
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Name:
Title:
