Exhibit 3
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Form of
Warrant Agreement
Dated as of
December [ ], 2000
among
Dime Bancorp, Inc.
EquiServe Trust Company, N.A.
and
EquiServe Limited Partnership
as the Warrant Agent
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TABLE OF CONTENTS
Article I
Defined Terms
Page
----
1.1 Definitions........................................................ 1
1.2 Other Definitions.................................................. 3
Article II
Warrant Certificates
2.1 Issuance of Warrant Certificates................................... 4
2.2 Form and Dating.................................................... 4
2.3 Execution and Countersignature..................................... 4
2.4 Certificate Register............................................... 5
2.5 Transfer and Exchange.............................................. 5
2.6 Replacement Certificates........................................... 6
2.7 Temporary Certificates............................................. 7
2.8 Cancellation....................................................... 7
2.9 Purchase of Warrants by the Company................................ 7
Article III
Exercise Terms
3.1 Number of Warrant Shares; Exercise Price........................... 7
3.2 Exercise Period.................................................... 7
3.3 Expiration......................................................... 8
3.4 Manner of Exercise................................................. 8
3.5 Issuance of Warrant Shares......................................... 8
3.6 Fractional Warrant Shares.......................................... 9
3.7 Reservation of Warrant Shares...................................... 9
3.8 Compliance with Law................................................ 9
3.9 Holders Not Entitled to Interest................................... 9
Article IV
Adjustments
Reclassifications, Redesignations or Reorganizations of Common
4.1 Stock.............................................................. 10
4.2 Combination........................................................ 10
4.3 Exercise Price Adjustment.......................................... 10
4.4 Other Events....................................................... 11
4.5 Notice of Certain Transactions..................................... 11
4.6 Adjustment to Warrant Certificate.................................. 11
Article V
Warrant Agent
5.1 Nature of Duties and Responsibilities Assumed...................... 11
5.2 Right to Consult Counsel........................................... 12
5.3 Compensation and Reimbursement..................................... 13
5.4 Indemnification.................................................... 13
5.5 Warrant Agent May Hold Company Securities.......................... 13
5.6 Change of Warrant Agent............................................ 13
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Article VI
Rights of Holders
Page
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6.1 Holders not Stockholders............................................ 13
6.2 Claims by Holders................................................... 14
6.3 Control of Litigation............................................... 14
6.4 Determination of Values............................................. 14
Article VII
Miscellaneous
7.1 Information......................................................... 14
7.2 Amendment........................................................... 14
7.3 Notices............................................................. 15
7.4 GOVERNING LAW....................................................... 15
7.5 WAIVER OF JURY TRIAL................................................ 15
7.6 Entire Agreement, Etc............................................... 16
7.7 Counterparts and Facsimile.......................................... 16
7.8 Captions............................................................ 16
7.9 Severability........................................................ 16
7.10 No Third Party Beneficiaries........................................ 16
7.11 Successors.......................................................... 16
EXHIBIT A--Form of Warrant Certificate
EXHIBIT B--Form of Election to Purchase Warrant Shares
EXHIBIT C--Certificate for Exchange of Global Warrant Certificate
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Warrant Agreement, dated as of December [ ], 2000 (this "Agreement"), among
Dime Bancorp, Inc., a Delaware corporation (the "Company") and EquiServe Trust
Company, N.A. and EquiServe Limited Partnership collectively as Warrant Agent
(in such capacity, the "Warrant Agent").
Recitals
A. The Board of Directors of the Company has authorized a distribution (the
"Distribution") of one Litigation Tracking Warrant(TM) (a "Warrant") for each
share of the Company's common stock, par value $0.01 per share ("Common
Stock"), outstanding as of the Close of Business (as defined below) on the
Record Date (as defined below). Each Warrant represents the right to purchase
shares or a portion of a share of Common Stock (subject to adjustment as
provided herein), upon the terms and subject to the conditions herein set
forth.
B. In order to issue Warrants in the Distribution and to issue Warrants to
holders of outstanding Convertible Securities (as defined herein) who exercise
or convert such Convertible Securities at any time and from time to time before
the occurrence of the Trigger (as defined herein), the Company has determined
to enter into this Agreement with the Warrant Agent.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties agree as follows:
Article I
Defined Terms
1.1 Definitions. As used in this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
"Adjusted Litigation Recovery" means an amount equal to 85% of the amount
obtained from the following equation: (a) the Amount Recovered minus (b) the
sum of the following: (i) the total of all expenses incurred by or on behalf of
the Bank and the Company in pursuing the Litigation and obtaining the Amount
Recovered (whether incurred before or after the date hereof), including,
without limitation, fees and expenses of counsel, witnesses, experts and
consultants, (ii) the total of all expenses incurred by the Company in
connection with the creation, issuance and trading of the Warrants, including,
without limitation, legal, financial advisory and accounting fees, the fees and
expenses of the Warrant Agent and printing and registration costs (whether
incurred before or after the date hereof) and (iii) an amount equal to the
Amount Recovered, less the expenses described in the preceding clauses (i) and
(ii), multiplied by the combined highest federal, New York State and New York
City income tax rates applicable to financial institutions in the year (or
years) in which the amount of the damages (in whole or in part) is fixed or
determinable (after taking into account the effect of the deductibility of such
taxes for federal and state income tax purposes).
"Adjusted Stock Price" means the average of the daily Closing Prices of a
share of Common Stock for the thirty consecutive Trading Days ending on and
including the Determination Date minus $0.01; provided, that if the context in
which this defined term is used is with respect to securities other than shares
of Common Stock, then "Adjusted Stock Price" means the average of the daily
Closing Prices of a unit of such securities for the thirty consecutive Trading
Days ending on and including the Determination Date minus the exercise price
determined for such securities in the manner described in Section 4.3; and
provided, further that if the context in which this defined term is used is
with respect to property other than publicly traded securities, then "Adjusted
Stock Price" means the Fair Market Value of the amount of such property
distributable in respect of one share of Common Stock.
"Amount Recovered" means the aggregate amount of any cash payment and the
Fair Market Value of any property or assets actually received by the Bank
pursuant to a final, nonappealable judgment in or final settlement of the
Litigation (including any post-judgment interest actually received by the Bank
on any Amount Recovered).
"Assistant Secretary" means any assistant secretary or person of similar
title of the Company.
"Bank" means The Dime Savings Bank of New York, FSB, a federally chartered
savings bank or any successor thereto.
"Board" means the Board of Directors of the Company or any committee thereof
duly authorized to act on behalf of such Board of Directors.
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
"Close of Business" on any given date means 5:00 P.M., New York City time,
on such date; provided, however, that if such date is not a Business Day it
will mean 5:00 P.M., New York City time, on the next succeeding Business Day.
"Closing Price" on any day means the closing sale price regular way (with
any relevant due bills attached) of a share of Common Stock on such day, or in
case no such sale takes place on such day, the average of the reported closing
bid and asked prices regular way (with any relevant due bills attached) of a
share of Common Stock, in each case on the NYSE Composite Tape (or any
successor composite tape reporting transactions on national securities
exchanges), or, if the Common Stock is not listed or admitted to trading on the
NYSE, on the principal national securities exchange on which the Common Stock
is listed or admitted to trading (which will be the national securities
exchange on which the greatest number of shares of Common Stock has been traded
during the five consecutive Trading Days ending on and including the
Determination Date), or, if not listed or admitted to trading on any national
securities exchange, the average of the closing bid and asked prices regular
way (with any relevant due bills attached) of a share of Common Stock on the
over-the-counter market on the day in question as reported by NASDAQ, or a
similar generally accepted reporting service, or if not so available as
determined in good faith by the Board, on the basis of such relevant factors as
it in good faith considers appropriate.
"Combination" means an event in which the Company consolidates with, merges
with or into, or sells all or substantially all its property and assets to
another Person.
"Determination Date" means the 30th calendar day before the date on which
the Bank receives the total amount of the Amount Recovered unless such date is
not a Trading Day, in which case the Determination Date will be the next
succeeding Trading Day. If the Amount Recovered is payable by the United States
Government in installments, the Determination Date will be the 30th calendar
day before the date on which the Bank receives the last installment of the
Amount Recovered unless such date is not a Trading Day, in which case the
Determination Date will be the next succeeding Trading Day.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means the fair market value of the relevant property on
the Determination Date as determined in good faith by the Board, on the basis
of such factors as it in good faith considers appropriate.
"Holder" means the duly registered holder of a Warrant under the terms of
this Agreement.
"Litigation" means the Bank's case against the United States Government in
the United States Court of Federal Claims entitled Anchor Savings Bank, FSB v.
United States, No. 95-39C, filed on January 13, 1995.
"NASDAQ" means the stock market and automated quotation system operated by
the National Association of Securities Dealers, Inc.
"NYSE" means the stock exchange operated by New York Stock Exchange, Inc.
"Officer" means the Chief Executive Officer, the President or any Executive
Vice President of the Company.
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"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Record Date" means the date fixed by the Board for the Distribution.
"SEC" means the Securities and Exchange Commission.
"Secretary" means the secretary of the Company.
"Securities Act" means the Securities Act of 1933, as amended.
"Trading Day" means a date on which the NYSE or NASDAQ (or any successor
thereto) is open for the transaction of business.
"Trigger" means the occurrence of all of the following events: (a) receipt
by the Bank of the Amount Recovered in full, (b) determination by the Bank of
the amount of the Adjusted Litigation Recovery and (c) receipt of all
regulatory approvals necessary to issue the shares of Common Stock to be issued
upon the exercise of the Warrants, including without limitation, the
effectiveness of a registration statement relating to the issuance of the
Warrant Shares under the Securities Act.
"Warrant Shares" means the shares of Common Stock of the Company issued and
received upon exercise of the Warrants.
1.2 Other Definitions
Defined in
Term Section
---- ----------
"Agent Members"................................................... 2.2(c)
"Certificate Register"............................................ 2.4
"Certificated Warrants"........................................... 2.2(a)
"Common Stock".................................................... Recitals
"Company"......................................................... Recitals
"Convertible Securities".......................................... 2.1(b)
"Distribution".................................................... Recitals
"DTC"............................................................. 2.2(b)
"Exercise Notice"................................................. 3.2
"Global Warrant".................................................. 2.2(b)
"Maximum Number of Warrants"...................................... 2.1(c)
"Number of Shortfall Shares"...................................... 3.7(b)
"Registrar"....................................................... 3.7(a)
"SARs"............................................................ 2.1(b)
"Stock Options"................................................... 2.1(b)
"Successor Company"............................................... 4.2(b)
"Termination Date"................................................ 3.3
"Termination Notice".............................................. 3.3
"Transfer Agent".................................................. 3.5
"Warrant"......................................................... Recitals
"Warrant Agent"................................................... Recitals
"Warrant Certificate"............................................. 2.1(a)
"Warrant Exercise Period"......................................... 3.2(b)
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Article II
Warrant Certificates
2.1 Issuance of Warrant Certificates. (a) As soon as practicable after the
Record Date, the Warrant Agent will prepare and execute, the Company will
countersign, and the Warrant Agent will send by first-class, postage-prepaid
mail or other means as required by the Warrant Agent's insurance, to each
record holder of Common Stock as of the Close of Business on the Record Date,
at the address of such holder shown on the records of the Company, one or more
Warrant Certificates, in substantially the form of Exhibit A hereto (a "Warrant
Certificate"), evidencing one Warrant for each share of Common Stock held.
(b) At any time and from time to time before the Trigger occurs, the Company
may cause the Warrant Agent to issue, in accordance with the provisions of this
Article 2, Warrants to holders of stock options of the Company (the "Stock
Options") that were outstanding on the Record Date, who exercise or convert
such Convertible Securities into shares of Common Stock and Warrants in
accordance with the terms and conditions of such Convertible Securities.
(c) The maximum number of Warrants (the "Maximum Number of Warrants") that
may be issued hereunder is equal to (i) the number of shares of Common Stock
outstanding on the Record Date plus (ii) the number of Warrants that holders of
Convertible Securities would be entitled to receive had such Convertible
Securities been exercised immediately before the Record Date.
2.2 Form and Dating. The Warrant Certificates will be substantially in the
form of Exhibit A, hereto. The Warrants may have such notations, legends or
endorsements as the Company may deem appropriate and as are not inconsistent
with the provisions hereof or as may be required by law, stock exchange or
stock market rule, agreements to which the Company is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). Each Warrant will be dated the date of its countersignature.
(a) Certificated Warrants. The Warrants may be issued in definitive form
represented by a physical Warrant Certificate (such certificate and all other
certificates representing physical delivery of Warrants in definitive form
being called "Certificated Warrants").
(b) Global Warrant. The Warrants may be issued in the form of one or more
fully registered global certificates with the global securities legend set
forth in Exhibit A hereto (the "Global Warrant"), which will be registered in
the name of the Warrant Agent on behalf of beneficial owners of Warrants and
deposited in an account with the Depository Trust Company (or with such other
custodian as it may direct) ("DTC") , and registered in the name of DTC or a
nominee of DTC, duly executed by the Company and countersigned by the Warrant
Agent as hereinafter provided. The number of Warrants represented by Global
Warrants may from time to time be increased or decreased by adjustments made on
the records of the Warrant Agent and DTC or its nominee as hereinafter
provided. Except as provided in Section 2.5, owners of beneficial interests in
a Global Warrant will not be entitled to receive physical delivery of
Certificated Warrants.
(c) Book-Entry Provisions. Members of, or participants in, DTC ("Agent
Members") will have no rights under this Agreement with respect to any Global
Warrant held on their behalf with DTC or by the Warrant Agent or under such
Global Warrant, and DTC may be treated by the Company, the Warrant Agent and
any agent of the Company or the Warrant Agent as the absolute owner of such
Global Warrant for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein will prevent the Company, the Warrant Agent or any agent of the
Company or the Warrant Agent from giving effect to any written certification,
proxy or other authorization furnished by DTC or impair, as between DTC and its
Agent Members, the operation of customary practices of DTC governing the
exercise of the rights of a holder of a beneficial interest in any Global
Warrant.
2.3 Execution and Countersignature. (a) With respect to any Global Warrant
to be issued hereunder, one Officer will sign, and the Secretary or any
Assistant Secretary will attest, such Global Warrant. The Warrant
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Agent, upon the written order of the Company signed by an Officer, will
countersign any Global Warrant certificate by manual or facsimile signature,
and such Global Warrant will be deposited in accordance with Section 2.2(b)
hereof.
(b) With respect to all other Warrants, an Officer will sign, and the
Company's Secretary or any of its Assistant Secretaries will attest, the
Warrant Certificates for the Company by manual or facsimile signature. The
Warrant Agent will countersign and deliver the Warrant Certificates for
original issue, in each case upon a written order of the Company signed by an
Officer of the Company. Such order will specify (in addition to the number of
Warrants) the date on which the original issue of Warrants is to be
countersigned.
(c) If an Officer whose signature is on a Warrant Certificate no longer
holds that office at the time the Warrant Agent countersigns the Warrant
Certificate, the Warrant will be valid nevertheless. A Warrant will not be
valid until an authorized signatory of the Warrant Agent manually countersigns
the Warrant Certificate. The signature will be conclusive evidence that the
Warrant Certificate has been countersigned under this Agreement.
(d) The Warrant Agent may appoint an agent reasonably acceptable to the
Company to countersign the Warrant Certificates. Unless limited by the terms of
such appointment, such agent may countersign Warrant Certificates whenever the
Warrant Agent may do so. Each reference in this Agreement to countersignature
by the Warrant Agent includes by such agent. Such agent will have the same
rights as the Warrant Agent for service of notices and demands.
2.4 Certificate Register. The Warrant Agent will keep a register (the
"Certificate Register") of the Warrant Certificates and of their transfer and
exchange which the Company may examine upon reasonable notice. The Certificate
Register will show the names and addresses of the respective Holders and the
date and number of Warrants evidenced on the face of each of the Warrant
Certificates. The Company and the Warrant Agent may deem and treat the Person
in whose name a Warrant Certificate is registered as the absolute owner of such
Warrant Certificate and neither the Company nor the Warrant Agent will be
affected by notice to the contrary.
2.5 Transfer and Exchange.
(a) Transfer and Exchange of Certificated Warrants. When Certificated
Warrants are presented to the Warrant Agent with a request to register the
transfer or exchange of such Certificated Warrants, the Warrant Agent will
register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the
Certificated Warrants surrendered for transfer or exchange will be duly
endorsed or accompanied by a written instrument of transfer in form reasonably
satisfactory to the Company and the Warrant Agent, duly executed by the Holder
thereof or its attorney duly authorized in writing.
(b ) Restrictions on Transfer of Certificated Warrants for a Beneficial
Interest in a Global Warrant. Certificated Warrants may not be exchanged for a
beneficial interest in a Global Warrant except upon satisfaction of the
requirements set forth below. Upon receipt by the Warrant Agent of Certificated
Warrants, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Warrant Agent, together with written instructions
directing the Warrant Agent to make, or to direct DTC to make, an adjustment on
its books and records with respect to such Global Warrants to reflect an
increase in the number of Warrants represented by the Global Warrant, then the
Warrant Agent will cancel such Certificated Warrants and cause, or direct DTC
to cause, in accordance with the standing instructions and procedures existing
between DTC and the Warrant Agent, the number of Warrants represented by the
Global Warrant to be increased accordingly.
(c) Transfer and Exchange of Global Warrants. The transfer and exchange of
beneficial interests in a Global Warrant will be effected through DTC, in
accordance with this Agreement and the procedures of DTC.
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(d) Restrictions on Transfer and Exchange of the Global
Warrant. Notwithstanding any other provisions of this Agreement, Global
Warrants may not be transferred as a whole except by DTC to a nominee of DTC or
by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such
nominee to a successor depositary or a nominee of such successor depositary.
(e) Authentication and Distribution of Certificated Warrants. If at any
time:
(i) DTC notifies the Company that DTC is unwilling or unable to continue
as depositary for Global Warrants and a successor depositary for Global
Warrants is not appointed by the Company within 90 calendar days after
delivery of such notice;
(ii) DTC ceases to be a clearing agency registered under the Exchange
Act; or
(iii) the Company, in its sole discretion, notifies the Warrant Agent in
writing that it elects to cause the issuance of Certificated Warrants under
this Agreement;
then, the Company will execute, and the Warrant Agent, upon receipt of a
written order of the Company signed by an Officer requesting the delivery of
Certificated Warrants to the holders of beneficial interests in the Global
Warrant, will countersign and deliver Certificated Warrants equal to the number
of Warrants represented by Global Warrants, in exchange for such Global
Warrants. Certificated Warrants issued in exchange for a beneficial interest in
a Global Warrant will be registered in such names and in such authorized
denominations as DTC, pursuant to instructions from its direct or indirect
participants or otherwise, will instruct the Warrant Agent. The Warrant Agent
will deliver such Certificated Warrants to the Persons in whose names such
Warrants are so registered in accordance with the instructions of DTC.
(f) Cancellation or Adjustment of Global Warrants. At such time as all
beneficial interests in Global Warrants have either been exchanged for
Certificated Warrants, redeemed, repurchased or canceled, such Global Warrant
will be returned to DTC for cancellation or retained and canceled by the
Warrant Agent. At any time before such cancellation, if any beneficial interest
in a Global Warrant is exchanged for Certificated Warrants, redeemed,
repurchased or canceled, the number of Warrants represented by such Global
Warrant will be reduced and an adjustment will be made on the books and records
of the Warrant Agent with respect to such Global Warrant, by the Warrant Agent
or DTC, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Warrants.
(i) To permit registrations of transfers and exchanges, the Company will
execute and the Warrant Agent will countersign Certificated Warrants and
Global Warrants as required pursuant to the provisions of this Section 2.5.
(ii) All Certificated Warrants and Global Warrants issued upon any
registration of transfer or exchange of Certificated Warrants will be the
valid obligations of the Company, entitled to the same benefits under this
Agreement as the Certificated Warrants or Global Warrants surrendered upon
such registration of transfer or exchange.
(iii) Before due presentment for registration of transfer of any
Warrant, the Warrant Agent and the Company may deem and treat the Person in
whose name any Warrant is registered as the absolute owner of such Warrant
and neither the Warrant Agent nor the Company will be affected by notice to
the contrary.
(iv) No service charge will be made to a Holder for any registration of
transfer or exchange upon surrender of any Warrant Certificate at the
office of the Warrant Agent maintained for that purpose. The Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer
or exchange of Warrant Certificates.
2.6 Replacement Certificates. If a mutilated Warrant Certificate is
surrendered to the Warrant Agent or if the Holder of a Warrant Certificate
claims that the Warrant Certificate has been lost, destroyed or wrongfully
taken, the Company will issue and the Warrant Agent will countersign a
replacement Warrant Certificate if the
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reasonable requirements of the Warrant Agent and of Section 8-405 of the
Uniform Commercial Code as in effect in the State of New York are met. If
required by the Warrant Agent or the Company, such Holder will furnish an
indemnity bond or other instrument sufficient in the judgment of the Company
and the Warrant Agent to protect the Company and the Warrant Agent from any
loss which either of them may suffer if a Warrant Certificate is replaced. The
Company and the Warrant Agent may charge the Holder for their expenses in
replacing a Warrant Certificate.
2.7 Temporary Certificates. Until definitive Warrant Certificates are ready
for delivery, the Company may prepare and the Warrant Agent will countersign
temporary Warrant Certificates. Temporary Warrant Certificates will be
substantially in the form of definitive Warrant Certificates but may have
variations that the Company considers appropriate for temporary Warrant
Certificates. Without unreasonable delay, the Company will prepare and the
Warrant Agent will countersign definitive Warrant Certificates and deliver them
in exchange for temporary Warrant Certificates.
2.8 Cancellation. (a) In the event the Company will purchase or otherwise
acquire Certificated Warrants, the same will thereupon be delivered to the
Warrant Agent for cancellation.
(b) The Warrant Agent and no one else will cancel and destroy all Warrant
Certificates surrendered for transfer, exchange, replacement, exercise or
cancellation and deliver a certificate of such destruction to the Company
unless the Company directs the Warrant Agent to deliver canceled Warrant
Certificates to the Company. The Company may not issue new Warrant Certificates
to replace Warrant Certificates to the extent they evidence Warrants that have
been exercised or Warrants that the Company has purchased or otherwise
acquired.
2.9 Purchase of Warrants by the Company. The Company will have the right,
except as limited by law or other agreement, to purchase or otherwise acquire
Warrants at such times, in such manner and for such consideration as it may
deem appropriate.
Article III
Exercise Terms
3.1 Number of Warrant Shares; Exercise Price. Each Warrant will, upon
exercise thereof as provided herein, initially entitle the Holder thereof to
purchase the number of shares of Common Stock having an Adjusted Stock Price
equal to the Adjusted Litigation Recovery divided by the Maximum Number of
Warrants at an exercise price per Warrant equal to the number of shares of
Common Stock for which the Warrant is exercisable multiplied by $0.01 (the
"Exercise Price"). All calculations made pursuant to this Section 3.1 will be
rounded to the nearest ten-thousandth. When exercising Warrants, a Holder shall
pay a total Exercise Price of $0.01 per each whole share of Common Stock the
Holder will receive upon such exercise.
3.2 Exercise Period. (a) The Company will provide notice, as described below
(the "Exercise Notice") to each Holder and the Warrant Agent, of the occurrence
of the Trigger not more than 15 calendar days after the occurrence thereof. If
the Amount Recovered is payable by the United States government in
installments, the Trigger will not be deemed to have occurred until the Bank
receives the last installment of the Amount Recovered. The Exercise Notice will
be dated the date it is first sent to Holders and will be provided by means of
a press release to one or more national news services and by mailing such
notice first class, postage prepaid, to each Holder at such Holder's address as
it appears on the Certificate Register; provided, however, that neither the
failure to give such notice by mail to any particular Holder nor any defect
therein will affect the validity of the Exercise Notice or the expiration of
all Warrants on the Close of Business on the last day of the Warrant Exercise
Period with respect to the other Holders. The Exercise Notice will contain the
following information:
(i) that the Trigger has occurred,
(ii) the total number of shares for which the Warrants are exercisable,
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(iii) the number of shares of Common Stock for which one Warrant is
exercisable,
(iv) the Exercise Price per Warrant,
(v) the manner in which the Warrants are exercisable, and
(vi) the date on which the Warrants will no longer be exercisable.
(b) Subject to the terms and conditions set forth herein, each Warrant will
be exercisable at any time or from time to time during the 60-day period
commencing on the date on which the Exercise Notice is first sent to Holders
pursuant to Section 3.2(a) (the "Warrant Exercise Period").
(c) No Warrant will be exercisable after the Close of Business on the last
day of the Warrant Exercise Period.
3.3 Expiration. A Warrant will terminate and become void as of the earlier
of the Close of Business on the last day of the Warrant Exercise Period, the
Close of Business on the date the Litigation has been disposed of in a manner
such that no shares of Common Stock or other securities or property will be
issuable under the terms of the Warrants (the "Termination Date") or the time
and date such Warrant is exercised. The Company will provide notice, as
described below (the "Termination Notice"), of the occurrence of the
Termination Date or the expiration of the Warrant Exercise Period not more than
60 calendar days after the occurrence thereof. The Termination Notice will be
dated the date it is first sent to Holders and will be provided by means of a
press release to one or more national news services and by mailing such notice
first class, postage prepaid, to each Holder at such Holder's address as it
appears on the Certificate Register. The Termination Notice will state the
following:
(i) that the Termination Date has occurred or the Warrant Exercise
Period has expired, as the case may be, and
(ii) that all outstanding Warrants have terminated and become void.
The Warrants will terminate and become void as provided herein notwithstanding
the Company's failure to give the Termination Notice.
3.4 Manner of Exercise. Warrants may be exercised upon (i) surrender to the
Warrant Agent of the Warrant Certificates, together with the form of election
to purchase Common Stock on the reverse thereof properly completed and validly
executed by the Holder thereof and (ii) payment to the Warrant Agent, for the
account of the Company, of the total Exercise Price for the number of Warrants
being exercised. Such payment will be made by certified or official bank check
or personal check payable to the order of the Company. Subject to Sections 3.2
and 3.3, the Warrants will be exercisable at the election of the Holders
thereof either in full at any time or from time to time in part. In the event
that a Warrant Certificate is surrendered for exercise in respect of less than
all the Warrant Shares purchasable on such exercise at any time before the
expiration of the Warrant Exercise Period a new Warrant Certificate exercisable
for the remaining Warrant Shares will be issued and its exercise will also be
subject to Sections 3.2 and 3.3. The Warrant Agent will countersign and deliver
the required new Warrant Certificates, and the Company, at the Warrant Agent's
request, will supply the Warrant Agent with Warrant Certificates duly signed on
behalf of the Company for such purpose. The Warrant Agent will account promptly
to the Company with respect to all Warrants exercised and concurrently pay to
the Company all moneys received by the Warrant Agent for the purchase of shares
of Common Stock through the exercise of such Warrants.
3.5 Issuance of Warrant Shares. Subject to Section 3.6, upon the surrender
of Warrant Certificates and payment of the Exercise Price in accordance with
Section 3.4, the Company will issue and cause the Warrant Agent or, if
appointed, a transfer agent for the Common Stock ("Transfer Agent") to
countersign and deliver to or upon the written order of the Holder and in such
name or names as the Holder may designate, a certificate or certificates for
the number of full Warrant Shares so purchased upon the exercise of such
Warrants or such other securities or property to which it is entitled, to the
Person or Persons entitled to receive the same, together
8
with cash as provided in Section 3.6 in respect of any fractional Warrant
Shares. Such certificate or certificates will be deemed to have been issued and
any Person so designated to be named therein will be deemed to have become a
holder of record of such Warrant Shares as of the date of the surrender of such
Warrant Certificates and payment of the Exercise Price.
3.6 Fractional Warrant Shares. The Company will not issue fractional Warrant
Shares. If any fraction of a Warrant Share would, except for this Section 3.6,
be issuable, the Company will pay an amount in cash equal to (a) the sum of (i)
the Adjusted Stock Price and (ii) $0.01 (the Exercise Price per whole Warrant
Share that would have been received), multiplied by (b) such fraction. Such
cash amount will be rounded to the nearest whole cent.
3.7 Reservation of Warrant Shares. (a) The Company will use its best efforts
to at all times keep reserved and available out of its authorized and unissued
shares of Common Stock or shares of Common Stock held in its treasury a number
of shares of Common Stock sufficient to provide for the exercise in full of all
Warrants then outstanding or reserved for issuance pursuant to Section 2.1. The
registrar for the Common Stock (the "Registrar") will at all times until the
Termination Date, or the time at which all Warrants have been exercised or
canceled, reserve such number of authorized shares as will be required for such
purpose. The Company will keep a copy of this Agreement on file with the
Registrar. The Company will supply such Registrar with duly executed stock
certificates for such purpose and will itself provide or otherwise make
available any cash which may be payable as provided in Section 3.6. The Company
will furnish to such Registrar a copy of all notices of adjustments and
certificates related thereto transmitted to each Holder.
(b) If, upon the Trigger, the number of shares of Common Stock authorized
but not issued plus the number of shares of Common Stock held in the Company's
treasury is less than the number of shares of Common Stock necessary to permit
the exercise in full of the Warrants then outstanding or reserved for issuance
pursuant to Section 2.1 (the number of shares of Common Stock comprising such
deficiency being the "Number of Shortfall Shares"), then the Company will
either (i) to the extent permitted by applicable law and any material
agreements then in effect to which the Company is a party, commence a tender
offer or buyback for the aggregate number of shares of Common Stock at least
equal to the Number of Shortfall Shares or (ii) call a special meeting of the
holders of Common Stock for the purpose of increasing the number of authorized
shares of Common Stock in an amount at least equal to the Number of Shortfall
Shares. In such an event, the Warrant Exercise Period will be automatically
extended to 60 calendar days after (A) the date on which the tender offer or
buyback referred to in clause (i) above is successfully completed or (B) the
effective date of the increase in the number of authorized shares of Common
Stock referred to in clause (ii) above.
(c) The Company covenants that all shares of Common Stock that may be issued
upon exercise of Warrants will, upon issue, be fully paid, nonassessable, free
of preemptive rights, free from all taxes, liens, charges and security
interests, created by or through the Company, with respect to the issue
thereof.
3.8 Compliance with Law. (a) Notwithstanding anything in this Agreement to
the contrary, in no event will a Holder be entitled to exercise a Warrant
unless (i) a registration statement filed under the Securities Act in respect
of the issuance of the Warrant Shares is then effective or (ii) an exemption
from such registration requirements is available to all Holders under the
Securities Act at the time of such exercise.
(b) If any shares of Common Stock required to be reserved for purposes of
exercise of Warrants require, under any other Federal or state law or
applicable governing rule or regulation of any national securities exchange or
stock market, registration with or approval of any governmental authority, or
listing on any such national securities exchange or stock market before such
shares may be issued upon exercise, the Company will cause such shares to be
duly registered or approved by such governmental authority or listed on the
relevant national securities exchange or stock market.
3.9 Holders Not Entitled to Interest. Notwithstanding anything to the
contrary, Holders will not be entitled to receive any interest or additional
shares of our common stock for any period, including, without limitation, the
period of time between the date on which the Bank receives the Amount Recovered
(in full or in part) and the date on which the Warrants become exercisable.
9
Article IV
Adjustments
4.1 Reclassifications, Redesignations or Reorganizations of Common
Stock. (a) In the event that at any time or from time to time after the date
hereof the Company will issue by reclassification, redesignation or
reorganization of the shares of Common Stock any shares of capital stock of the
Company then, in any such event, the Holders will have the right to receive
upon exercise of each Warrant the number of shares of such capital stock of the
Company equal to the Adjusted Litigation Recovery divided by the Maximum Number
of Warrants divided by the aggregate Adjusted Stock Price of the capital stock
of the Company that one share of Common Stock was exchanged for or converted
into as a result of such reclassification, redesignation or reorganization.
(b) The proportion and type of capital stock of the Company that the
Holders will have the right to receive in the circumstance set forth in Section
4.1(a) will be in the same proportion and type as one share of Common Stock was
exchanged for or converted into as a result of such reclassification,
redesignation or reorganization. Such adjustment will become effective
immediately after the effective date of such reclassification, redesignation or
reorganization. In the event of the occurrence of more than one of the
foregoing, such adjustments will be made successively.
4.2 Combination. (a) Except as provided in Section 4.2(c), in the event of a
Combination, the Holders will have the right to receive upon exercise of each
Warrant the number of shares of capital stock or other securities or an amount
of property equal to the Adjusted Litigation Recovery divided by the Maximum
Number of Warrants divided by the aggregate Adjusted Stock Price of the capital
stock, other securities or property that one share of Common Stock was
exchanged for or converted into as a result of such Combination.
(b) The proportion and type of capital stock, other securities or property
that the Holders will have the right to receive in the circumstance set forth
in Section 4.2(a) will be in the same proportion and type as one share of
Common Stock was exchanged for or converted into as a result of such
Combination. The provisions of this Section 4.2 will similarly apply to
successive Combinations involving the surviving or acquiring Person (the
"Successor Company") in any Combination.
(c) In the event of a Combination where consideration is payable to holders
of Common Stock in exchange for their shares solely in cash, the Holders will
have the right to receive upon exercise of each Warrant cash in an amount equal
to the Adjusted Litigation Recovery divided by the Maximum Number of Warrants,
less the Exercise Price. In case of any Combination described in this Section
4.2(c), the surviving or acquiring Person will promptly after the occurrence of
the Trigger deposit with the Warrant Agent the funds necessary to pay to the
Holders of the Warrants the amounts to which they are entitled as described
above. After such funds and the surrendered Warrant Certificates are received,
the Warrant Agent will make payment to the Holders by delivering a check in
such amount as is appropriate to such Person or Persons as it may be directed
in writing by the Holders surrendering such Warrants. No interest will accrue
to the Holders or the surviving or acquiring Person on such funds.
(d) The Company will provide that any Successor Company will enter into an
agreement with the Warrant Agent confirming the Holders' rights pursuant to
this Section 4.2 and providing for adjustments, which will be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article IV.
4.3 Exercise Price Adjustment. In case of any reclassification,
redesignation or reorganization described in Section 4.1 or any Combination
described in Section 4.2, the Exercise Price of one Warrant after such
reclassification, redesignation, reorganization or Combination will equal (i)
if the Warrants are exercisable into stock only or stock and any cash or
property other than cash which is received instead of any fractional share of
stock, the per share par value of such stock multiplied by the number of shares
of such stock into which one Warrant is exercisable and (ii) if the Warrants
are exercisable for cash or property only, $0.01. The Exercise Price may be
adjusted, to the extent permitted by law, in such manner, if any, and at such
time, as the Board may determine in good faith to be equitable in the
circumstances.
10
4.4 Other Events. If any event occurs as to which the foregoing provisions
of this Article IV are not strictly applicable or, if strictly applicable,
would not, in the good faith judgment of the Board, fairly and adequately
protect the purchase rights of the Holders of the Warrants in accordance with
the essential intent and principles of such provisions, then the Board may
make, without the consent of the Holders, such adjustments to the terms of this
Article IV, in accordance with such essential intent and principles, as will be
reasonably necessary, in the good faith opinion of such Board, to protect such
purchase rights as aforesaid.
4.5 Notice of Certain Transactions. In the event that the Company will
publicly announce a plan (a) to effect any reclassification, redesignation or
reorganization of its shares of Common Stock, (b) to effect any capital
reorganization, consolidation or merger or (c) to effect the voluntary or
involuntary dissolution, liquidation or winding-up of the Company, the Company
will within 5 calendar days after such public announcement send to the Warrant
Agent and the Warrant Agent will within 5 calendar days after receipt thereof
send the Holders a notice (in such form as will be furnished to the Warrant
Agent by the Company) of such proposed action, such notice to be mailed by the
Warrant Agent to the Holders at their addresses as they appear in the
Certificate Register, which notice will specify the expected date that such
issuance or event is to take place and the expected date of participation
therein by the holders of Common Stock and will briefly indicate the effect of
such action on the Common Stock and on the number and kind of any other shares
of stock and on other securities or property, if any, and the number of shares
of Common Stock and other securities or property, if any, purchasable upon
exercise of each Warrant and the Exercise Price after giving effect to any
adjustment which will be required as a result of such action.
4.6 Adjustment to Warrant Certificate. The form of Warrant Certificate need
not be changed because of any adjustment made pursuant to this Article IV, and
Warrant Certificates issued after such adjustment may have the same terms and
conditions as are stated in any Warrant Certificates issued prior to the
adjustment. The Company, however, may at any time in its sole discretion make
any change in the form of Warrant Certificate that it may deem appropriate to
give effect to such adjustments and that does not affect the substance of the
Warrant Certificate, and any Warrant Certificate thereafter issued or
countersigned, whether in exchange or substitution for an outstanding Warrant
Certificate or otherwise, may be in the form as so changed.
Article V
Warrant Agent
5.1 Nature of Duties and Responsibilities Assumed.
(a) Appointment. The Company hereby appoints the Warrant Agent to act as
agent of the Company as set forth in this Agreement. The Warrant Agent hereby
accepts the appointment as agent of the Company and agrees to perform that
agency upon the terms and conditions herein set forth, by all of which the
Company and the Warrant Holders, by their acceptance thereof, will be bound.
(b) Authorization. Whenever in the performance of its duties under this
Agreement, the Warrant Agent will deem it necessary or desirable that any fact
or matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by an Officer and delivered to
the Warrant Agent; and such certificate will be full authorization to the
Warrant Agent for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) Liability of Warrant Agent. The Warrant Agent will be liable hereunder
only for its own negligence, bad faith or willful misconduct. The Warrant Agent
will not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Warrant Certificates (except its
countersignature on the Warrant Certificates and such statements or recitals
describing the Warrant Agent or action taken or to be taken by it) or be
required to verify the same, but all such statements and recitals are and will
be deemed to have
11
been made by the Company only. The Warrant Agent will not have any liability or
responsibility in respect of the legality, validity or enforceability of this
Agreement or the execution and delivery hereof (except the due execution hereof
by the Warrant Agent) or in respect of the validity or execution of any Warrant
Certificate (except its countersignature thereof); nor will it be responsible
or liable for any breach by the Company of any covenant or condition contained
in this Agreement or in any Warrant Certificate; nor will it be responsible or
liable for the making of any change in the number of shares of Common Stock
required under the provisions of Article IV or responsible for the manner,
method or amount of any such change or the ascertaining of the existence of any
facts that would require any such adjustment or change; nor will it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock to be issued
pursuant to this Agreement or any Warrant Certificate or as to whether any
shares of Common Stock will, when issued, be validly issued, fully paid and
nonassessable. The Warrant Agent will not be responsible or liable for any
failure of the Company to comply with any of the covenants contained in this
Agreement or in the Warrant Certificates to be complied with by the Company.
The Warrant Agent will not incur any liability or responsibility to the Company
or to any Warrant Holder for any action taken, or any failure to take action,
in reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument reasonably believed by the Warrant Agent to
be genuine and to have been signed, sent or presented by the proper party or
parties.
(d) Litigation. The Warrant Agent will be under no obligation to institute
any action, suit or legal proceeding or take any other action likely to involve
expense unless the Company or one or more Holders of Warrants will furnish the
Warrant Agent with reasonable security and indemnity for any costs and expenses
which may be incurred. All rights of action under this Agreement or under any
of the Warrants may be enforced by the Warrant Agent without the possession of
any of the Warrants or the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the
Warrant Agent will be brought in its name as Warrant Agent and any recovery of
judgment will be for the ratable benefit of the Holders of the Warrants, as
their respective rights or interests may appear. The Warrant Agent will
promptly notify the Company in writing of any claim made or action, suit or
proceeding instituted against it arising out of or in connection with this
Agreement.
(e) Instructions from the Company. The Warrant Agent is hereby authorized
and directed to accept written instructions with respect to the performance of
its duties hereunder from an Officer, and to apply to any such Officer for
advice or instructions in connection with the Warrant Agent's duties, and it
will not be liable for any action taken or suffered to be taken or omitted by
it in good faith in accordance with the instructions of any such Officer.
(f) Agents. The Warrant Agent may execute and exercise any of the rights and
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, provided, however, reasonable care
has been exercised in the selection and in the continued employment of any such
attorney, agent or employee.
(g) Other Acts. The Company will perform, execute, acknowledge and deliver
or cause to be performed, executed, acknowledged and delivered all such further
acts, instruments and assurances as may reasonably be required by the Warrant
Agent in order to enable it to carry out or perform its duties under this
Agreement.
(h) Agreement as Source of Duties. The Warrant Agent will act hereunder
solely as agent of the Company in a ministerial capacity, and its duties will
be determined solely by the provisions hereof.
5.2 Right to Consult Counsel. The Warrant Agent may at any time consult with
legal counsel satisfactory to it (who may be legal counsel for the Company) and
the opinion of such counsel will be full and complete authorization and
protection to the Warrant Agent as to any action taken, suffered or omitted by
it in good faith in accordance with such opinion; provided, however, that the
Warrant Agent will have exercised reasonable care in the selection of such
counsel.
12
5.3 Compensation and Reimbursement. The Company agrees to pay to the Warrant
Agent from time to time compensation for all services rendered by it hereunder
as set forth in the attached Exhibit D, and to reimburse the Warrant Agent for
reasonable expenses and disbursements incurred in connection with the execution
and administration of this Agreement (including the reasonable compensation and
expenses of its counsel) except for expenses incurred as a result of the
Warrant Agent's negligence, bad faith or willful misconduct.
5.4 Indemnification. The Company agrees to indemnify the Warrant Agent for,
and to hold it harmless against, any loss, liability or expenses incurred
without negligence, bad faith or willful misconduct on its part, arising out of
or in connection with the acceptance and administration of this Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. In no case will either party be liable to the other party
for special, indirect, incidental or consequential loss or damages of any kind
whatsoever (including, but not limited to, lost profits), even if such party
has been advised of the possibility of such damages.
5.5 Warrant Agent May Hold Company Securities. The Warrant Agent and any
stockholder, director, officer or employee of the Warrant Agent may buy, sell
or deal in any of the Warrants or other securities of the Company or its
affiliates or have a pecuniary interest in any transaction in which the Company
or its affiliates may be interested, or contract with or lend money to the
Company or its affiliates or otherwise act as fully and freely as though it
were not the Warrant Agent under this Agreement. Nothing herein will preclude
the Company and its affiliates from engaging the Warrant Agent in any other
capacity.
5.6 Change of Warrant Agent. The Warrant Agent may resign and be discharged
from its duties under this Agreement upon 90 calendar days' prior notice in
writing mailed, by registered or certified mail, to the Company. The Company
may remove the Warrant Agent or any successor warrant agent upon 60 calendar
days' prior notice in writing, mailed to the Warrant Agent or successor warrant
agent, as the case may be, by registered or certified mail. Notwithstanding the
foregoing, if the Warrant Agent becomes incapable of acting or is adjudged a
bankrupt or insolvent or a receiver of the Warrant Agent or its property is
appointed or any public officer takes control of the Warrant Agent or its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Company may remove the Warrant Agent immediately. If the
Warrant Agent resigns or is removed or otherwise becomes incapable of acting,
the Company will appoint a successor to the Warrant Agent and will, within 30
calendar days following such appointment, give notice thereof in writing to
each registered holder of the Warrant Certificates. If the Company fails to
make such appointment within a period of 30 calendar days after giving notice
of such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent, then the Company
agrees to perform the duties of the Warrant Agent hereunder until a successor
warrant agent is appointed. After appointment, the successor warrant agent will
be vested with the same powers, rights, duties and responsibilities as if it
had been originally named as Warrant Agent without further act or deed; but the
former Warrant Agent will deliver and transfer to the successor Warrant Agent
any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for this purpose. Failure
to give any notice provided for in this Section, however, or any defect therein
will not affect the legality or validity of the resignation or removal of the
Warrant Agent or the appointment of the successor warrant agent, as the case
may be.
Article VI
Rights of Holders
6.1 Holders not Stockholders. No Holder, as such, will be entitled to vote
or to receive dividends or otherwise will be deemed to be the holder of shares
of Common Stock for any purpose, nor will anything contained herein or in any
Warrant Certificate be construed to confer upon any Holder, as such, any of the
rights of a stockholder of the Company or any right to vote upon or give or
withhold consent to any action of the Company (whether upon any reorganization,
issuance of securities, reclassification or conversion of
13
Common Stock, consolidation, merger, sale, lease, conveyance or otherwise),
receive notice of meetings or other action affecting stockholders (except for
notices expressly provided for in this Agreement) or receive dividends or
subscription rights, unless and until such Warrant Certificate will have been
surrendered for exercise as provided in this Agreement, payment in respect of
such exercise will have been received by the Warrant Agent, and shares of
Common Stock will have become issuable thereunder and such person will have
been deemed to have become a holder of record of such shares. No Holder will,
upon the exercise of Warrants, be entitled to any dividends if the record date
with respect to payment of such dividends will be a date prior to the date such
shares of Common Stock became issuable upon the exercise of such Warrants.
6.2 Claims by Holders. All rights of action in respect of the Warrants will
be vested in the respective Holders; provided, however, that no Holder will
have the right to enforce, institute or maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, the Warrants,
unless (a) such Holder has previously given written notice to the Company of
the substance of such dispute, and the Holders of at least 25% of the issued
and outstanding Warrants have given written notice to the Company of their
support for the institution of such proceeding to resolve such dispute, (b)
such Holder has previously given written notice to the Warrant Agent of the
substance of such dispute and of the support for the institution of such
proceeding and (c) the Warrant Agent has not instituted appropriate proceedings
with respect to such dispute within 30 days following the date of such written
notice to the Warrant Agent, it being understood and intended that the Warrant
Agent has no obligation to institute proceedings and that no one or more
Holders will have the right in any manner whatsoever to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any rights of the
Holders, except in the manner described in this Section 6.2 for the equal and
ratable benefit of all Holders. Except as described above, no Holder will have
the right to enforce, institute or maintain any suit, action or proceeding to
enforce, or otherwise act in respect of, the Warrants.
6.3 Control of Litigation. The Bank will retain sole and exclusive control
of the Litigation and will retain 100% of any recovery from the Litigation. The
Holders will not have any right to control or manage the course or disposition
of the Litigation or the proceeds of any recovery therefrom or any rights
against the Company for any decision regarding the conduct of the Litigation or
disposition of the Litigation for an amount less than the amount claimed in
damages in the Litigation, regardless of the effect on the value of the
Warrants.
6.4 Determination of Values. The determination of the Board of the Adjusted
Litigation Recovery, the number of shares of Common Stock issuable upon
exercise of a Warrant and the Exercise Price will be final, conclusive and
binding upon the Holders.
Article VII
Miscellaneous
7.1 Information. So long as any Warrant remains outstanding, the Company
will deliver to the Warrant Agent and the Holders its annual report to
stockholders and any other documents that the Company, in its discretion, deems
appropriate.
7.2 Amendment. This Agreement may be amended by the parties hereto without
the consent of any Holder for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective provision contained herein or
making any other provisions with respect to matters or questions arising under
this Agreement as the Company and the Warrant Agent may deem necessary or
desirable; provided, however, that such action will not affect adversely the
rights of the Holders. Any amendment or supplement to this Agreement that has
an adverse effect on the interests of the Holders will require the written
consent of the Holders of a majority of the then outstanding Warrants. The
consent of each Holder affected will be required for any amendment pursuant to
which the Exercise Price would be increased or the number of Warrant Shares
purchasable upon exercise of Warrants would be decreased (other than pursuant
to adjustments provided for
14
herein). In determining whether the Holders of the required number of Warrants
have concurred in any direction, waiver or consent, Warrants owned by the
Company or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company will be disregarded
and deemed not to be outstanding, except that, for the purpose of determining
whether the Warrant Agent will be protected in relying on any such direction,
waiver or consent, only Warrants which the Warrant Agent knows are so owned
will be so disregarded. Also, subject to the foregoing, only Warrants
outstanding at the time will be considered in any such determination.
7.3 Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the other will be in writing and will be deemed to
have been duly given (a) on the date of delivery if delivered personally, or by
telecopy or telefacsimile, upon confirmation of receipt, (b) on the first
business day following the date of dispatch if delivered by a recognized next-
day courier service, or (c) on the third business day following the date of
mailing if delivered by registered or certified mail, return receipt requested,
postage prepaid. All notices hereunder will be delivered as set forth below, or
pursuant to such other instructions as may be designated in writing by the
party to receive such notice.
(a) If to the Company:
Xxxxx X. Xxxxx, Esq.
General Counsel
Dime Bancorp, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
(b) If to Warrant Agent:
EquiServe Trust Company, N.A.
c/o EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Client Administration
Any notice or communication mailed to a Holder will be mailed to the Holder at
the Holder's address as it appears on the Certificate Register and will be
sufficiently given if so mailed within the time prescribed. Failure to mail a
notice or communication to a Holder or any defect in it will not affect its
sufficiency with respect to other Holders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not the
addressee receives it.
7.4 GOVERNING LAW. THIS AGREEMENT WILL 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 WITHIN SUCH STATE.
7.5 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15
7.6 Entire Agreement, Etc. (a) This Agreement constitutes the entire
agreement, and supersedes all other prior agreements, understandings,
representations and warranties, both written and oral, between the parties,
with respect to the subject matter hereof, and (b) this Agreement will not be
assignable by operation of law or otherwise (any attempted assignment in
contravention hereof being null and void).
7.7 Counterparts and Facsimile. For the convenience of the parties hereto,
this Agreement may be executed in any number of separate counterparts, each
such counterpart being deemed to be an original instrument, and all such
counterparts will together constitute the same agreement. Executed signature
pages to this Agreement may be delivered by facsimile and such facsimiles will
be deemed as sufficient as if actual signature pages had been delivered.
7.8 Captions. The Article, Section and paragraph captions herein are for
convenience of reference only, do not constitute part of this Agreement and
will not be deemed to limit or otherwise affect any of the provisions hereof.
7.9 Severability. If any provision of this Agreement or the application
thereof to any person (including, without limitation, the officers and
directors of the Warrant Agent and the Company) or circumstance is determined
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, will remain in full force and effect and will in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination, the parties will
negotiate in good faith in an effort to agree upon a suitable and equitable
substitute provision to effect the original intent of the parties.
7.10 No Third Party Beneficiaries. Nothing contained in this Agreement,
expressed or implied, is intended to confer upon any person or entity other
than the parties hereto, any benefit right or remedies.
7.11 Successors. All agreements of the Company in this Agreement and the
Warrant Certificates will bind its successors. All agreements of the Warrant
Agent in this Agreement will bind its successors.
16
In witness whereof, the parties have caused this Agreement to be duly
executed as of the date first written above.
Dime Bancorp, Inc.
By: _____________________
Name:
Title:
EquiServe Trust Company, N.A.
as Warrant Agent,
By: _____________________
Name:
Title:
EquiServe Limited Partnership
as Warrant Agent,
By: _____________________
Name:
Title:
17
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Unless and until it is exchanged in whole or in part for Warrants in
definitive form, this Warrant may not be transferred except as a whole by the
depositary to a nominee of the depositary or by a nominee of the depositary to
the depositary or another nominee of the depositary or by the depositary or any
such nominee to a successor depositary or a nominee of such successor
depositary. The Depository Trust Company ("DTC") (55 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx) will act as the depositary until a successor will be appointed by the
Company and the Warrant Agent. Unless this certificate is presented by an
authorized representative of DTC to the issuer or its agent for registration of
transfer, exchange or Amount Recovered, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of DTC (and any Amount Recovered is made to Cede &
Co. or such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.]*
Dime Bancorp, Inc.
Litigation Tracking Warrant
No.
Certificate for Litigation Tracking Warrants to
Purchase Shares of Common Stock
of Dime Bancorp, Inc.
THIS CERTIFIES THAT, , or registered assigns, is the registered holder
of the number of Litigation Tracking Warrants set forth above (the "Warrants").
Each Warrant entitles the holder thereof (the "Holder"), at its option and
subject to the provisions contained herein and in the Warrant Agreement
referred to below, to purchase from Dime Bancorp, Inc., a Delaware corporation
(the "Company"), the number of shares of Common Stock ("Warrant Shares"), par
value of $0.01 per share, of the Company (the "Common Stock") equal to the
Adjusted Litigation Recovery divided by the product of (1) the Adjusted Stock
Price multiplied by (2) the Maximum Number of Warrants, at an exercise price
per Warrant equal to the number of shares of Common Stock for which one Warrant
is exercisable multiplied by $0.01 (the "Exercise Price"). This Warrant
Certificate will terminate and become void on the earliest of (i) the Close of
Business on the last day of the Warrant Exercise Period, (ii) the Close of
Business on the date the Litigation has been disposed of in a manner such that
no shares of Common Stock or other securities or property will be issuable
under the terms of the Warrants and (iii) the time and date such Warrant is
exercised.
This Warrant Certificate and each Warrant represented hereby are issued
pursuant to and are subject in all respects to the terms and conditions
contained in a Warrant Agreement dated as of December [ ], 2000, as such
agreement may be amended from time to time (the "Warrant Agreement"), among the
Company and EquiServe Trust Company, N.A. and EquiServe Limited Partnership
collectively as Warrant Agent (in such capacity, the "Warrant Agent", which
term includes any successor Warrant Agent under the Warrant Agreement), to all
of which terms and provisions the Holder of this Warrant Certificate consents
by acceptance hereof. The Warrant Agreement is hereby incorporated herein by
reference and made a part hereof. Reference is hereby made to the Warrant
Agreement for a full statement of the respective rights, limitations of rights,
duties and obligations of the Company, the Warrant Agent and the Holders of the
Warrants. Capitalized terms used but not defined herein will have the meanings
ascribed thereto in the Warrant Agreement. A copy of the Warrant Agreement may
be obtained for inspection by the Holder hereof upon written request to the
Warrant Agent.
--------
* To be included only if the Warrant is in global form.
A-1
Subject to the terms of the Warrant Agreement, the Warrants may be exercised
in whole or in part by surrender of this Warrant Certificate with the form of
election to purchase Warrant Shares attached hereto duly executed and with the
simultaneous payment of the Exercise Price in cash (subject to adjustment) to
the Warrant Agent for the account of the Company at the office of the Warrant
Agent. Payment of the Exercise Price will be made by certified or official bank
check or personal check payable to the order of the Company or by wire transfer
of funds to an account designated by the Company for such purpose. No
fractional Warrant Shares will be issued upon the exercise of any Warrant, but
the Company will pay cash in lieu of a fractional share as provided in the
Warrant Agreement.
As provided in the Warrant Agreement and subject to the terms and conditions
therein set forth, each Warrant will be exercisable at any time from and from
time to time during the Warrant Exercise Period only and will not be
exercisable after the expiration of the Warrant Exercise Period.
The Warrant Agreement provides that upon the occurrence of certain events
the number of Warrant Shares may be, subject to certain conditions, adjusted.
The Company may require payment of a sum sufficient to pay all taxes,
assessments and other governmental charges in connection with the transfer or
exchange of the Warrant Certificates.
The holder in whose name the Warrant Certificate is registered may be deemed
and treated by the Company and the Warrant Agent as the absolute owner of the
Warrant Certificate for all purposes whatsoever and neither the Company nor the
Warrant Agent will be affected by notice to the contrary.
The Warrants represent a contingent right to purchase shares of Common Stock
with an aggregate value based on a portion of any proceeds that may be received
by the Bank from the Litigation. There can be no assurance as to when the
Litigation will be resolved or the amount of proceeds, if any, the Bank will
receive therefrom. The Holders will not have any right to control or manage the
course or disposition of the Litigation or the proceeds of any recovery
therefrom.
The Warrants do not entitle any holder hereof to any of the rights of a
holder of any Common Stock or Preferred Stock of the Company.
A-2
This Warrant Certificate will not be valid or obligatory for any purpose
until it will have been countersigned by the Warrant Agent.
DIME BANCORP, INC.
By __________________________________
[SEAL]
Attest: _____________________________
Secretary
DATED:
Countersigned: [_____________________]
as Warrant Agent,
by __________________________________
Authorized Signatory
A-3
EXHIBIT B
FORM OF ELECTION TO PURCHASE WARRANT SHARES
(to be executed only upon exercise of Warrants)
DIME BANCORP, INC.
The undersigned hereby irrevocably elects to exercise [ ] Warrants at an
exercise price per Warrant of $[ ] to acquire [ ] shares of Common Stock,
par value $0.01 per share, of Dime Bancorp, Inc. (the "Company"), on the terms
and conditions specified in the within Warrant Certificate and the Warrant
Agreement therein referred to, surrenders this Warrant Certificate and all
right, title and interest therein to the Company, and directs that the shares
of Common Stock deliverable upon the exercise of such Warrants be registered
and delivered in the name and at the address specified below and delivered
thereto.
Date: ,
-------------------------------------
(Signature of Owner)*
-------------------------------------
(Street Address)
-------------------------------------
(City) (State) (Zip Code)
-------------------------------------
Signature Guaranteed by:
Securities and/or check to be issued to:
Name: __________________________________________________________________________
Social security or Federal tax identification number: __________________________
Street Address:_________________________________________________________________
City, State and Zip Code:_______________________________________________________
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:______________________________________________________________________
Name:___________________________________________________________________________
Social security or Federal tax identification number:___________________________
Street Address:_________________________________________________________________
City, State and Zip Code:_______________________________________________________
--------
* The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a national bank
or trust company or by a member firm of any national securities exchange.
B-1
EXHIBIT C
The following exchanges of a part of this Global Warrant for definitive
Warrants have been made:
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF WARRANTS
Re: Warrants to Purchase Common Stock (the "Warrants") of Dime Bancorp,
Inc. (the "Company")
This Certificate relates to Warrants held in definitive form
by (the "Transferor").
The Transferor has requested the Warrant Agent by written order to exchange or
register the transfer of a Warrant or Warrants. The Warrant Agent and the
Company are entitled to rely upon this Certificate and are irrevocably
authorized to produce this Certificate or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[INSERT NAME OF TRANSFEROR]
by ___________________________________
Date:
C-1
