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 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
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
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.
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
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
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 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).
(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.
(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 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 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 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 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 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.
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 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
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
XXXXXXX X. XXXXXXX
By: _______________________________
Xxxxxxx X. Xxxxxxx
Chairman, President and
Chief Executive Officer
DIME BANCORP, INC.
XXXXXXXX X. XXXX
By: _______________________________
Xxxxxxxx X. Xxxx
Chairman, President and
Chief Executive Officer
