Exhibit 10.1
TERMINATION, OPTION CANCELLATION AND SETTLEMENT AGREEMENT
This Termination, Option Cancellation and Settlement Agreement, dated
as of April 28, 2000 (this "Agreement"), is between Xxxxxx United Bancorp, a New
Jersey Corporation ("Xxxxxx"), and Dime Bancorp, Inc., a Delaware corporation
("Dime").
RECITALS
A. Merger Agreement. Xxxxxx and Dime have entered into an Agreement and
Plan of Merger, dated as of September 15, 1999 as amended and restated on
December 27, 1999 (the "Merger Agreement"), pursuant to which Xxxxxx is to merge
with and into Dime (the "Merger").
B. Options. As a condition to entering into the Merger Agreement and in
consideration therefor, Xxxxxx granted to Dime an option (the "Xxxxxx Option")
to purchase approximately 19.9% of Xxxxxx'x authorized but unissued shares of
common stock, pursuant to a Stock Option Agreement, dated September 16, 1999
(the "Xxxxxx Option Agreement"), and Dime granted to Xxxxxx an option (the "Dime
Option" and, together with the Xxxxxx Option, the "Options" ) to purchase
approximately 19.9% of Dime's authorized but unissued shares of common stock,
pursuant to a Stock Option Agreement, dated September 16, 1999 (the "Dime Option
Agreement" and, together with the Xxxxxx Option Agreement, the "Option
Agreements").
C. Initial Triggering Event Under Dime Option Agreement. On March 5,
2000, prior to the scheduled special meetings of the shareholders of Dime and
Xxxxxx to vote on the Merger, North Fork Bancorporation, announced an
unsolicited hostile bid for Dime, which resulted in a delay of the special
meetings and which, when North Fork filed its exchange offer on March 14, 2000,
constituted an initial triggering event under the Dime Option Agreement. Under
the Dime Option Agreement, if there were to be a subsequent triggering event,
Xxxxxx will have the right to purchase from Dime 22,271,682 (the "Option
Number") shares of Dime's authorized but unissued common stock, par value $0.01
per share ("Common Stock"), at an exercise price of $17.75 per share (the
"Option Price").
D. Termination and Cancellation. The Boards of Directors of Xxxxxx and
Dime have mutually agreed it is in the best interests of their respective
corporations to mutually terminate the Merger Agreement and Option Agreements
and cancel their respective Options, subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Termination of Merger Agreement. Xxxxxx and Dime hereby mutually
terminate the Merger Agreement, without any liability or further obligation to
each other whatsoever in connection with the Merger Agreement, or the
obligations undertaken with respect to the Merger Agreement or the Merger,
except that the provisions of Section 6.8 of the Merger Agreement (excluding the
first sentence thereof and in all events subject to applicable law) shall
survive (including with respect to Xxxxxx'x or Dime's reasons for the
termination of the Merger Agreement or the Option Agreements), Section 6.10
shall survive solely with respect to the initial press release regarding the
termination of the Merger
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Agreement and the terms of this Agreement, and Section 6.12 shall survive. The
parties recognize and agree that they hereby are mutually releasing each other
from any and all claims for breach of the Merger Agreement and that Section
8.5(c) of the Merger Agreement shall have no further force or effect. Except as
set forth in this paragraph and except for the terms of this Agreement, neither
party shall have any obligation or liability to the other based upon, related
to, arising from or connected in any way with the Merger Agreement, the Option
Agreements, the Options or the confidentiality agreements.
2. Stock Option Agreements. Subject to the terms of this Agreement,
Xxxxxx hereby cancels and surrenders the Dime Option and Dime Option Agreement
to Dime. Dime agrees that the Xxxxxx Option has expired by its terms and hereby
cancels and surrenders the Xxxxxx Option and the Xxxxxx Option Agreement to
Xxxxxx.
3. Dime's Continuing Payment Obligations to Xxxxxx. In consideration of
Xxxxxx entering into this Agreement, Dime irrevocably and unconditionally agrees
to pay to Xxxxxx an Option Settlement Fee, which shall consist of a Subsequent
Transaction Fee, a Subsidiary Transaction Fee and/or an Expiration Fee, all as
set forth below. Such fees shall be paid to Xxxxxx by wire transfer to an
account designated by Xxxxxx on the due dates as hereafter set forth, except as
hereafter set forth.
3.1. Subsequent Transaction Fee.
(a) Amount and Obligation. If a Subsequent Transaction occurs
after the date hereof and before October 28, 2001 ("the Cut-Off Date") Dime
irrevocably and unconditionally agrees to pay Xxxxxx a Subsequent Transaction
Fee. The Subsequent Transaction Fee shall be not less than $50 million (the
"Floor") and not more than $92 million (the "Cap"), in each case less a credit
for any Subsidiary Transaction Fee paid to Xxxxxx
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hereunder, subject to Sections 3.1(b)(i) and (ii). (For the avoidance of doubt,
the terms "Floor" and "Cap" include the credits referred to in the preceding
sentence.) If after a Subsidiary Transaction and before the Cut-Off Date there
shall occur a Subsequent Transaction, Dime agrees to pay the Subsequent
Transaction Fee for such Subsequent Transaction, less a credit for any
Subsidiary Transaction Fee paid to Xxxxxx.
A Subsequent Transaction means: (i) Dime or any Dime Subsidiary (each
of the following is a "Dime Subsidiary": (A) any Significant Subsidiary (as
defined in Rule 1-02 of Regulation S-X promulgated by the Securities and
Exchange Commission (the "SEC")) of Dime, and (B) North American Mortgage
Company (whether or not North American Mortgage Company would be deemed a
Significant Subsidiary of Dime)) shall have entered into an agreement to engage
in an Acquisition Transaction (as hereinafter defined) with any person (the term
"person" for purposes of this Agreement having the meaning assigned thereto in
Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the rules and regulations thereunder) or the Board of
Directors of Dime (the "Board") shall have recommended that the stockholders of
Dime approve or accept any Acquisition Transaction. For purposes of this
Agreement, (a) "Acquisition Transaction" shall mean (x) a merger or
consolidation, or any similar transaction, involving Dime or any Dime Subsidiary
(other than mergers, consolidations or similar transactions involving solely
Dime and/or one or more wholly-owned Subsidiaries of Dime), (y) a purchase,
lease or other acquisition of assets or deposits of Dime or any Dime Subsidiary
in one or more transactions (other than the purchase and sale of portfolio
assets in the ordinary course of business and other than the purchase and sale
of investment securities), in which the assets have a value in excess of $4.0
billion or in which the deposits exceed $5.0 billion in amount (other than any
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assets or escrow deposits of the Dime Subsidiary included within a Subsidiary
Transaction), or (z) a purchase or other acquisition (including by way of
merger, consolidation, share exchange, spinoff to shareholders or otherwise) of
securities representing 25% or more of the voting power of Dime or any Dime
Subsidiary and (b) "Subsidiary" shall have the meaning set forth in Rule 12b-2
under the 1934 Act; or
(ii) Any person acquires (including by way of merger,
consolidation, share exchange or otherwise) beneficial ownership of 25% or more
of the then outstanding Common Stock of Dime (the term "beneficial ownership"
for purposes of this Agreement has the meaning assigned thereto in Section 13(d)
of the 1934 Act, and the rules and regulations thereunder).
Notwithstanding the foregoing, the following transactions, taken alone
or as a series of transactions (each, whether or not it would otherwise
constitute a Subsequent Transaction, is a "Subsidiary Transaction"), shall not
constitute a Subsequent Transaction:
(1) a merger or consolidation or similar transaction that involves
solely or predominantly the purchase or transfer of a Dime Subsidiary other than
The Dime Savings Bank of New York, FSB ("FSB");
(2) a purchase, lease or other acquisition involving solely or
predominantly all or a substantial part of the assets or deposits of any Dime
Subsidiary other than FSB; or
(3) a purchase or other acquisition (including by way of merger,
consolidation, share exchange, spinoff to shareholders or otherwise) of
securities representing 25% or more of the voting securities of any Dime
Subsidiary other than FSB.
For the avoidance of doubt, the occurrence of a Subsidiary Transaction
does not foreclose the possible (simultaneous or later) occurrence of a
Subsequent Transaction.
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Subject to the Floor and Cap, the Subsequent Transaction Fee will be an
amount equal to the amount by which (A) the market/offer price (as defined
below) exceeds (B) the Option Price, multiplied by the Option Number. The term
"market/offer price" shall mean the highest of (i) the price per share of Common
Stock at which a tender or exchange offer therefor has been made, (ii) the price
per share of Common Stock to be paid by any third party pursuant to an agreement
with Dime, (iii) the highest closing price for shares of Common Stock within the
six-month period immediately preceding the date of the consummation of the
Subsequent Transaction that gives Xxxxxx the right to the Subsequent Transaction
Fee, or (iv) in the event of one or more sales that alone or together would
constitute an Acquisition Transaction under clause (y) of the definition
thereof, the sum of (1) the net prices received in such sales and in any
Subsidiary Transaction (but only to the extent such net prices or proceeds
thereof are not part of the consolidated assets of Dime at the time of
determination) and (2) the current market value of the remaining net assets of
Dime as determined by a nationally recognized investment banking firm selected
by Xxxxxx, and reasonably acceptable to Dime, divided by the number of shares of
Common Stock of Dime outstanding at the time of such sale. In determining the
market/offer price, the value of consideration other than cash shall be
determined by a nationally recognized investment banking firm selected by
Xxxxxx, and reasonably acceptable to Dime.
The Option Number, Option Price and highest closing price referred to
in the prior paragraph shall be subject to adjustment from time to time as
provided in this paragraph. In the event of any change in Common Stock by reason
of a stock dividend, stock split, split-up, recapitalization, stock combination,
exchange of shares or similar transaction, the Option Number, the Option Price
and the highest closing price shall be adjusted appropriately. In
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addition, if Dime makes any distribution or dividend to its shareholders (other
than regular quarterly cash dividends as such may be increased from time to
time) which are not accounted for under this paragraph or the prior paragraph,
then the value of such distribution or dividend shall be added to the amount of
the "market/offer price" with the value of any non-cash distribution or dividend
determined by a nationally recognized investment banking firm selected by
Xxxxxx, and reasonably acceptable to Dime. Any such dividend or distribution
shall be viewed as accounted for under the prior paragraph if the ex-dividend
date for such dividend or distribution occurs no more than five months prior to
the date of the consummation of the Subsequent Transaction that gives Xxxxxx the
right to the Subsequent Transaction Fee. If such dividend or distribution would
have been viewed as accounted for under the prior paragraph but for the fact
that the ex-dividend date occurred more than five but less than six months prior
to the date of consummation of the relevant Subsequent Transaction, then the
six-month period referred to in clause (iii) of the definition of market/offer
price will be a five-month period and the second preceding sentence shall apply.
(b) Due Date of Subsequent Transaction Fee. The Subsequent
Transaction Fee shall be due to Xxxxxx as follows:
(i) Within two (2) business days after the signing by Dime or a Dime
Subsidiary of an agreement for an Acquisition Transaction, Dime or the acquiring
party shall pay Xxxxxx $15,000,000 by wire transfer to an account designated by
Xxxxxx, and $77,000,000 shall be deposited into an escrow account pursuant to an
escrow agreement and with an escrow agent reasonably acceptable to Xxxxxx, any
interest or earnings thereon being the property of Dime. In the event that Dime
or any Dime Subsidiary shall enter into an Acquisition Transaction and Dime does
not enter into the escrow agreement or make the
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payment or deposit provided for in the immediately preceding sentence (other
than a deposit delayed solely as a result of a delay by Xxxxxx in approving the
escrow agreement), the entire Subsequent Transaction Fee shall be due
immediately. On the date of the consummation of the Acquisition Transaction,
Dime shall cause the escrow agent to wire transfer the remainder of the
Subsequent Transaction Fee to Xxxxxx (and, if the escrow agent does not so wire
transfer the funds, Dime and the acquiror jointly and severally shall be
obligated to wire transfer such amount) and transmit any remainder of the escrow
deposit to Dime. In the event an Acquisition Transaction is entered into by Dime
or a Dime Subsidiary prior to the Cut-Off Date, the Subsequent Transaction Fee
for such transaction shall be due under this Section 3.1(b)(i) only if the
Acquisition Transaction closes. Xxxxxx nonetheless shall retain the initial
$15,000,000 payment; or
(ii) Within five (5) business days of Dime's learning that any person
has acquired beneficial ownership of 25% or more of the then outstanding Common
Stock of Dime, Dime shall pay to Xxxxxx $15,000,000 by wire transfer to an
account designated by Xxxxxx and $77,000,000 shall be deposited into an escrow
account pursuant to an escrow agreement and with an escrow agent reasonably
acceptable to Xxxxxx, any interest or earnings thereon being the property of
Dime. In the event that Dime does not enter into the escrow agreement or make
the payment or deposit provided for in the immediately preceding sentence (other
than a deposit delayed solely as a result of a delay by Xxxxxx in approving the
escrow agreement), the entire Subsequent Transaction Fee shall be due
immediately. On the date of the acquisition by such person of beneficial
ownership of 50% or more of the then outstanding Common Stock, Dime shall cause
the Escrow Agent to wire transfer to Xxxxxx the remainder of the Subsequent
Transaction Fee (and if the escrow agent fails to do so, Dime shall wire
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transfer such amount to Xxxxxx) and transmit any remainder of the escrow deposit
to Dime. In the event a person acquires beneficial ownership of 25% or more of
the then outstanding Common Stock of Dime but does not, prior to the Cut-Off
Date or within six months thereafter acquire beneficial ownership of 50% or more
of the then outstanding Common Stock of Dime, the Subsequent Transaction Fee for
the acquisition shall not be due under this Section 3.1(b)(ii), but Xxxxxx shall
retain the initial $15,000,000 payment.
(iii) Any obligation of Dime to make payments to Xxxxxx (or into an
escrow account for the benefit of Xxxxxx) pursuant to this Section 3.1(b) shall
be subject to a credit for amounts previously paid, either with respect to a
Subsidiary Transaction or an earlier Subsequent Transaction. Any such credit
will be applied first to the $15 million amounts set forth in Section 3.1(b)(i)
and (ii). Anything to the contrary not withstanding, the initial $15,000,000
payment set forth in Sections 3.1(b)(i), 3.1(b)(ii) and 3.2(b) shall only be
paid by Dime once.
(iv) For the avoidance of doubt, a Subsequent Transaction Fee may be
owed under the circumstances set forth in either Section 3.1(b)(i) and (ii). The
fact that a Subsequent Transaction Fee is not owed under Section 3.1(b)(ii) for
a set of circumstances does not preclude it from being owed under Section
3.1(b)(i) for the same set of circumstances (and vice versa).
3.2. Subsidiary Transaction.
(a) Amount and Obligation. If a Subsidiary Transaction (as defined
in Section 3.1) occurs after the date hereof and before the Cut-Off Date, Dime
irrevocably and unconditionally agrees to pay Xxxxxx a Subsidiary Transaction
Fee equal to $30,000,000, provided, such payment is subject to the second
paragraph in Section 3.2(b).
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(b) Due Date of Subsidiary Transaction Fee. The Subsidiary
Transaction Fee shall be due to Xxxxxx as follows: Within two (2) business days
after the signing by Dime or its Subsidiaries of an agreement for a Subsidiary
Transaction, Dime or the acquiring party shall pay Xxxxxx $15,000,000 by wire
transfer to an account designated by Xxxxxx, and $15,000,000 shall be deposited
into an escrow account pursuant to an escrow agreement and with an escrow agent
reasonably acceptable to Xxxxxx, any interest or earnings thereon being the
property of Dime. In the event that Dime or any of its Subsidiaries shall enter
into an Subsidiary Transaction and Dime does not enter into the escrow agreement
or make the payment or deposit provided for in the immediately preceding
sentence (other than a deposit delayed solely as a result of a delay by Xxxxxx
in approving the escrow agreement), the entire Subsidiary Transaction Fee shall
be due immediately. On the date of the consummation of the Subsidiary
Transaction, Dime shall cause the escrow agent to wire transfer the remainder of
the Subsidiary Transaction Fee to Xxxxxx (and, if the escrow agent does not so
wire transfer the funds, Dime and the acquiror jointly and severally shall be
obligated to wire transfer such amount).
In the event a Subsidiary Transaction is entered into by Dime or a Dime
Subsidiary prior to the Cut-Off Date, the Subsidiary Transaction Fee shall not
be due if the Subsidiary Transaction fails to close. Nonetheless, Xxxxxx shall
retain the initial $15,000,000 payment. In the event a Subsidiary Transaction
fails to close and Dime or a Dime Subsidiary enters into another agreement for a
Subsidiary Transaction prior to the Cut-Off Date, the second Subsidiary
Transaction will be subject to the Subsidiary Transaction Fee. Anything to the
contrary not withstanding, the initial $15,000,000 payment shall only be paid by
Dime once.
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(c) Credit for Earlier Payments. Any obligation of Dime to make
payments to Xxxxxx (or into an escrow account for the benefit of Xxxxxx)
pursuant to this Section 3.2 shall be subject to a credit for amounts previously
paid, either with respect to a Subsequent Transaction or an earlier Subsidiary
Transaction, which credit shall be applied first to the $15 million amount set
forth above.
3.3. Expiration Fee. If neither a Subsequent Transaction nor a
Subsidiary Transaction occurs prior to the Cut-Off Date, Dime irrevocably and
unconditionally agrees to pay to Xxxxxx, on the next business day after the
Cut-Off Date (the "Expiration Fee Payment Date"), $15,000,000 by wire transfer
to an account designated by Xxxxxx; provided, however, that at Dime's option and
with Xxxxxx'x consent Dime may pay the amount in Common Stock of Dime, on the
conditions and subject to the terms set forth in the next paragraph. If prior to
the Cut-Off Date Dime has paid Xxxxxx $15,000,000 by wire transfer pursuant to
Section 3.1 or 3.2, Xxxxxx shall retain the $15,000,000 and no Expiration Fee
shall be due.
In the event Dime elects to pay the Expiration Fee in Common Stock,
Dime shall irrevocably notify Xxxxxx of such election no less than sixty (60)
days and no more than ninety (90) days prior to the scheduled Expiration Fee
Payment Date. If Dime elects to pay the Expiration Fee in Common Stock, it shall
be valued at $0.50 below the lowest trading price of Dime's Common Stock on the
New York Stock Exchange during the ten (10) trading days prior to the Expiration
Fee Payment Date, as reported in the Wall Street Journal, Eastern Edition.
Immediately after notification to Xxxxxx, Dime shall promptly prepare, file and
keep current a registration statement under the Securities Act of 1933, as
amended, and the regulations thereunder covering such stock and shall cause such
registration statement to become effective as of or prior to the Expiration Fee
Payment Date and to remain current in
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order to permit the sale or other disposition of the Common Stock to be received
by Xxxxxx in accordance with any reasonable plan of disposition requested by
Xxxxxx. Dime will use its reasonable best efforts to cause such registration to
remain effective for a period of 180 days from the Expiration Fee Payment Date
or such shorter time as may be reasonably necessary to effect such sales or
other dispositions. Dime shall bear the costs of such registration (including,
but not limited to, Dime's attorneys' fees, printing costs and filing fees,
except for underwriting discounts or commissions, brokers' fees and the fees and
disbursements of Xxxxxx'x counsel related thereto). Xxxxxx shall provide all
information reasonably requested by Dime for inclusion in any registration
statement to be filed hereunder. If requested by Xxxxxx in connection with such
registration, Dime shall become a party to any underwriting agreement relating
to the sale of such shares of Common Stock, but only to the extent of obligating
itself in respect of representations, warranties, indemnities and other
agreements customarily included in such underwriting agreements for Dime.
3.4. Miscellaneous.
(a) Interest. If any Subsequent Transaction Fee, Subsidiary
Transaction Fee or Expiration Fee is not paid on the due date thereof, the
amount to be paid shall be increased by an amount equal to the interest that
would be earned on such amount for each day after the due date until such fee is
paid. The amount of interest shall be calculated at the rate of Xxxxxx'x prime
rate, announced from time to time, plus 2%, compounded daily using the actual
number of days elapsed and a 360 day year. The Cap shall not limit increases on
the amounts due pursuant to this Section 3.4(a).
(b) Legal Fees and Expenses. Xxxxxx shall be entitled to its
expenses, including but not limited to legal fees, incurred in connection with
the enforcement
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of its rights to payments hereunder. After giving 10 days' written notice to
Dime identifying Dime's failure to make any payment hereunder, Xxxxxx shall be
entitled to recover from Dime, monthly upon demand, any and all of its legal
fees and other expenses incurred in connection with the enforcement against Dime
of the terms of this Agreement.
(c) Increase in Cap and Floor. If Dime, its Subsidiaries, or
affiliates, or agents, or any person entering into an agreement with Dime or a
Dime Subsidiary with respect to an Acquisition Transaction or a Subsidiary
Transaction shall challenge or question in any court proceeding the Subsequent
Transaction Fee, the Subsidiary Transaction Fee or the Expiration Fee, then the
amount of each of the Floor, the Cap, the Subsidiary Transaction Fee and the
Expiration Fee shall all be increased by $20,000,000.
(d) No Reduction, Offset or Delay. No alleged or actual failure by
Xxxxxx to perform any covenant or obligation hereunder or under any other
agreement with Dime or any affiliate of Dime, and no breach of any
representation or warranty by Xxxxxx hereunder or under any other agreement with
Dime or any affiliate of Dime shall release Dime from or be reason for Dime to
reduce, offset against, or delay, the payment by Dime of any Subsequent
Transaction Fee, Subsidiary Transaction Fee or Expiration Fee which becomes due
hereunder; provided, however, that Dime shall retain its rights to bring claims
for damages or injunctive relief against Xxxxxx for breach of any
representation, warranty or covenant of Xxxxxx in this Agreement.
4. Representations and Warranties.
4.1. Dime hereby represents and warrants to Xxxxxx as follows: Dime has
the requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this
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Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by the Dime Board prior to the date hereof and no
other corporate proceedings on the part of Dime are necessary to authorize this
Agreement or to consummate the transactions so contemplated. This Agreement has
been duly and validly executed and delivered by Dime.
4.2 Xxxxxx hereby represents and warrants to Dime as follows: Xxxxxx
has the requisite corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution and delivery
of this Agreement by Xxxxxx and the performance of its obligations hereunder by
Xxxxxx have been duly and validly authorized by the Board of Directors of Xxxxxx
and no other corporate proceedings on the part of Xxxxxx are necessary to
authorize this Agreement or for Xxxxxx to perform its obligations hereunder.
This Agreement has been duly and validly executed and delivered by Xxxxxx. No
"Initial Triggering Event" has occurred under the Xxxxxx Option Agreement.
5. Covenants of Dime. Dime covenants that from and after the date
hereof until the earlier of the Cut-Off Date or the payment in full of any
Subsequent Transaction Fee (but not a Subsidiary Transaction Fee), if Dime
enters into an agreement to engage in an Acquisition Transaction, it shall
require that the acquiror agrees to pay or cause Dime to pay the Subsequent
Transaction Fee and, upon the consummation of the transaction, Dime and the
acquiror jointly and severally expressly assume the payment obligation.
6. Covenants of Xxxxxx. Xxxxxx covenants that from and after the date
hereof until the Cut-Off Date:
6.1. Xxxxxx shall vote or cause to be voted all shares of Common Stock
of Dime from time to time owned by it or its Subsidiaries for their own account
(the "Subject
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Shares") in accordance with the recommendations of Dime's Board of Directors or,
if the Board of Directors makes no recommendation on a matter, in proportion
with the votes casts by other stockholders thereto (provided that Xxxxxx may at
any time dispose of all or any part of the Subject Shares prior to a vote).
6.2. If Xxxxxx elects to dispose of all or a substantial part of the
Subject Shares (whether under Section 6.1 or otherwise), Xxxxxx shall notify
Dime of its election orally, with a faxed confirmation, before 10:00 A.M. on any
business day and pursuant to such notice such shares first shall be offered to
Dime for purchase at the closing price of Dime's Common Stock on the New York
Stock Exchange on the day before giving such notice for a period ending at 10:00
A.M. on the business day after giving such notice. Dime shall promptly respond
orally and via fax as to whether it accepts the offer (and if no fax is received
by Xxxxxx from Dime by 10:00 A.M. of the business day after giving such notice,
Xxxxxx shall thereafter be free to dispose of the Subject Shares). If Dime
Elects to purchase the Subject Shares, it shall notify Xxxxxx by 10:00 A.M. of
the business day after Xxxxxx gives such notice and pay for such shares by wire
transfer within 2 business days of giving Xxxxxx notice it will purchase the
shares.
6.3. Within 48 hours prior to the Expiration Fee Payment Date, if an
Expiration Fee Payment is due, Xxxxxx shall deliver to Dime a letter regarding
its compliance in all material respects with its covenants contained in this
Article 6.
7. Assignment. Neither of the parties hereto may assign any of its
rights or obligations under this Agreement (other than by operation by law).
8. Specific Performance. The parties hereto acknowledge that damages
may be an inadequate remedy for a breach of this Agreement by either party
hereto and that
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the obligations of the parties hereto shall be enforceable through injunctive or
other equitable relief. In connection therewith, both parties waive the posting
of any bond or similar requirement.
9. Severability. If any term, provision, covenant or restriction
contained in this Agreement is held by a court or a federal or state regulatory
agency of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions and covenants and restrictions contained in
this Agreement shall remain in full force and effect, and shall in no way be
affected, impaired or invalidated.
10. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by fax, telecopy, or by registered or certified mail (postage
prepaid, return receipt requested) at the respective addresses of the parties
set forth in the Merger Agreement.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely with such state.
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
13. Expenses. Except as otherwise expressly provided herein, each of
the parties hereto shall bear and pay all costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants and counsel.
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14. Entire Agreement; Third-Party Rights. Except as otherwise expressly
provided herein, this Agreement contains the entire agreement between the
parties with respect to the transactions contemplated hereunder and supersedes
all prior arrangements or understandings with respect thereof, written or oral.
The terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party, other
than the parties hereto, and their respective successors except as assignees,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided herein. This Agreement may not be
amended, superseded or rescinded except in a writing signed by both parties
hereto.
15. Releases. Xxxxxx and Dime hereby agree to mutual limited releases
as follows:
15.1. Xxxxxx and its past and/or present direct or indirect parents,
subsidiaries, affiliates, predecessors, successors and assigns, and its and
their officers, directors, shareholders, employees, administrators and
attorneys, but only in their respective capacities as such (collectively, the
"Xxxxxx Releasors"), hereby release and discharge Dime and its past and/or
present direct or indirect parents, subsidiaries, affiliates, predecessors,
successors and assigns, and its and their officers, directors, shareholders,
employees, administrators and attorneys, but only in their capacities as such
(collectively, the "Dime Releasees") from all actions, causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims and demands
whatsoever, in law, admiralty, equity, bankruptcy or otherwise, which the Xxxxxx
Releasors, or anyone claiming through or under any
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of them, ever had or now have, or may hereafter have or acquire, based upon,
related to, arising from, or connected in any way with the Merger Agreement;
provided, however, that nothing contained in this Release shall affect or
relieve the Dime Releasees of their obligations under Sections 6.8 (excluding
the first sentence thereof), 6.10 (solely with respect to the initial press
release regarding the termination of the merger agreement and the terms of this
Agreement) and 6.12 of the Merger Agreement or under this Termination, Option
Cancellation and Settlement Agreement, and provided, further, that nothing
contained in this Release shall affect the rights of the Xxxxxx Releasors,
solely in their capacities as shareholders of Dime, under any derivative or
class action suits brought on behalf of Dime shareholders and in which the
Xxxxxx Releasors are not active plaintiffs.
15.2. Dime and its past and/or present direct or indirect parents,
subsidiaries, affiliates, predecessors, successors and assigns, and its and
their officers, directors, shareholders, employees, administrators and
attorneys, but only in their respective capacities as such (collectively, the
"Dime Releasors"), hereby release and discharge Xxxxxx and its past and/or
present direct or indirect parents, subsidiaries, affiliates, predecessors,
successors and assigns, and its and their officers, directors, shareholders,
employees, administrators and attorneys, but only in their respective capacities
as such (collectively, the "Xxxxxx Releasees") from all actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims and
demands whatsoever, in law, admiralty, equity, bankruptcy or otherwise, which
the Dime Releasors, or anyone claiming through or under any of them, ever had or
now have, or may hereafter have or acquire, based upon, related to, arising
from, or connected in any way with the Merger Agreement; provided, however, that
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nothing contained in this Release shall affect or relieve the Xxxxxx Releasees
of their obligations under Sections 6.8 (excluding the first sentence thereof),
6.10 (solely with respect to the initial press release regarding the termination
of the merger agreement and the terms of this Agreement) and 6.12 of the Merger
Agreement or under this Termination, Option Cancellation and Settlement
Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
date first above written.
XXXXXX UNITED BANCORP
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
Chairman, President and
Chief Executive Officer
DIME BANCORP, INC.
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------
Xxxxxxxx X. Xxxx
Chairman, President and
Chief Executive Officer
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