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Exhibit 1.1
DRAFT OF NOVEMBER 21, 1996
600,000 Shares
NORTH FORK BANCORPORATION, INC.
(a Delaware corporation)
Common Stock
(Par Value $2.50 Per Share)
UNDERWRITING AGREEMENT
, 1996
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Two World Trade Center
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
North Fork Bancorporation, Inc., a Delaware corporation (the "Company"),
confirms its agreement with Xxxxx, Xxxxxxxx & Xxxxx, Inc., (the "Underwriter")
with respect to the sale by the Company and the purchase by the Underwriter of
600,000 shares of the Company's common stock, par value $2.50 per share (the
"Common Stock"). The aforesaid 600,000 shares of Common Stock are hereinafter
referred to as the "Shares". As used herein "you" and "your," unless the
context otherwise requires, shall mean Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Offerings of Shares will be made through you. The Company will enter
into an agreement (the "Pricing Agreement") providing for the sale of such
Shares (the "Offered Shares") to, and the purchase and offering thereof by,
you. The Pricing Agreement relating to the Offered Shares shall specify the
number of Offered Shares which you agree to purchase, the price at which the
Offered Shares are to be purchased by you from the Company and the initial
public offering price of the Offered Shares. The Pricing Agreement, which
shall be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between you and the
Company. The offering of Shares through you will be governed by this
Agreement, as supplemented by the Pricing Agreement, and this Agreement and
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the Pricing Agreement shall inure to the benefit of and be binding upon the
Company and you.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-11985), including a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933 (the "Securities Act"), and has prepared and filed such
amendments thereto, if any, and such amended preliminary prospectuses, if any,
as may have been required to the date hereof, and will file such additional
amendments thereto and such amended prospectuses as may hereafter be required.
If the registration statement has been declared effective under the Securities
Act by the Commission, the Company will promptly file with the Commission the
information omitted from the registration statement pursuant to Rule 430A(a) of
the rules and regulations of the Commission under the Securities Act (the
"Securities Act Regulations") as part of a prospectus pursuant to Rule 424(b)
of the Securities Act Regulations or as part of a post-effective amendment to
the registration statement (including an amended prospectus). The registration
statement as amended at the time it became or becomes effective (including the
documents incorporated by reference therein, and if the Company has omitted
information from the registration statement pursuant to Rule 430A(a) of the
Securities Act Regulations, the information deemed to be a part of the
registration statement at the time it became effective pursuant to Rule 430A(b)
of the Securities Act Regulations), as the case may be, is hereinafter called
the "Registration Statement," except that, if the Company files a
post-effective amendment to such registration statement which becomes effective
prior to the Closing Time (as defined below), "Registration Statement" shall
refer to such registration statement as so amended. The prospectus on file
with the Commission at the time the Registration Statement became or becomes
effective (including the documents incorporated by reference therein) is
hereinafter called the "Prospectus," except that, if any revised prospectus
shall be provided to you by the Company for use in connection with the offering
of the Shares which differs from the Prospectus on file at the Commission at
the time the Registration Statement becomes effective (whether or not such
revised prospectus is required to be filed with the Commission by the Company
pursuant to Rule 424(b) of the Securities Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to you for such use.
The Company has entered into an Agreement and Plan of Merger, as
amended, dated as of July 15, 1996 (the "Merger Agreement"), by and among the
Company, North Fork Bank, a wholly owned subsidiary of the Company (the
"Bank"), and North Side Savings Bank ("North Side"). Pursuant to the Merger
Agreement, subject to the terms and conditions contained therein, North Side
will merge (the "Merger") with and into the Bank, with the Bank surviving the
Merger as a wholly owned subsidiary of the Company.
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The Company understands that you propose to make a public offering of the
Shares as soon as you deem advisable after the execution and delivery of this
Agreement upon the terms set forth herein and in the Prospectus.
SECTION 1. Representations and Warranties. The Company represents and
warrants to you as follows:
(a) At the time the Registration Statement became or
becomes effective, as the case may be, the Registration Statement
complied or will comply in all material respects with the requirements
of the Securities Act and the Securities Act Regulations and did not
or will not, as the case may be, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and at the time the Registration Statement became or becomes effective
(unless the term "Prospectus" refers to a prospectus which has been
provided to you by the Company for use in connection with the offering
of the Shares which differs from the Prospectus on file at the
Commission at the time the Registration Statement becomes effective,
in which case at the time it is first provided to you for such use),
as the case may be, at the Closing Time (as defined below), the
Prospectus did not or will not, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company herein or otherwise in
writing by you expressly for use in the Registration Statement or the
Prospectus.
(b) The documents (including any amendments thereto)
incorporated by reference into the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations of the Commission under the Exchange Act (the "Exchange
Act Regulations"), and, when read together and with the other
information included in or incorporated by reference in the
Prospectus, at the time the Registration Statement became or becomes
effective, as the case may be, at the Closing Time did not or will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and there are no contracts or documents of
the Company or of any of the
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subsidiaries of the Company (each a "Subsidiary" and collectively the
"Subsidiaries") which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Securities Act
Regulations which have not been so filed or incorporated by reference.
(c) The accountants who certified the financial
statements and supporting schedules of the Company and its
consolidated Subsidiaries included or incorporated by reference in the
Registration Statement are independent public accountants as required
by the Securities Act and the Securities Act Regulations.
(d) The financial statements of the Company, including
the notes thereto, and supporting schedules included or incorporated
by reference in the Prospectus and Registration Statement present
fairly the financial position of the Company and its consolidated
Subsidiaries as at the dates indicated and the results of their
operations for the periods specified and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis. The pro forma financial statements of the Company
and its Subsidiaries and the related notes thereto included and
incorporated by reference in the Registration Statement and the
Prospectus present fairly in accordance with generally accepted
accounting principles the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(e) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (i) there has been no material adverse
change or event which is reasonably likely to result in a prospective
material adverse change in the financial condition, earnings or
business of the Company and its Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
(ii) there have been no material transactions entered into by the
Company or any of its Subsidiaries other than those in the ordinary
course of business, and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock (other than regular quarterly dividends).
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and
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authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and to enter into
and perform its obligations under this Agreement and the Pricing
Agreement; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction, if
any, in which its ownership or leasing of properties or the conduct of
its business requires such qualification, except where the failure to
so qualify would not have a material adverse effect or prospective
material adverse effect on the financial condition, earnings or
business of the Company and its Subsidiaries considered as one
enterprise; and the Company is duly registered as bank holding company
under the Bank Holding Company Act of 1956, as amended.
(g) Each subsidiary of the Company has been duly
incorporated and is validly existing either as a New York State
chartered stock bank, or as a corporation in good standing under the
laws of the jurisdiction of its incorporation and is duly qualified as
a foreign corporation to transact business and is in good standing in
each jurisdiction, if any, in which its ownership or leasing of
properties or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a material
adverse effect or prospective material adverse effect on the financial
condition, earnings or business of the Company and its Subsidiaries
considered as one enterprise; except as previously disclosed to you in
writing (which writing shall be deemed to constitute part of this
representation) all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and validly issued and is
fully paid and non-assessable, and is owned by the Company, directly
or through another Subsidiary, free and clear of any mortgage, pledge,
lien, encumbrance or claim whatsoever.
(h) The Company is not aware of any facts or
circumstances other than the satisfaction of conditions to the
consummation of the Merger which have occurred or may occur which
could prevent the consummation of the Merger or which lead the Company
to believe that the consummation is not reasonably likely to occur.
There are no material disagreements between the parties to the Merger
Agreement regarding the terms of the Merger Agreement or the
interpretation thereof.
(i) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus under the caption
"Capitalization" as of the date specified therein (except for
subsequent issuances, if any, pursuant to reservations, agreements or
employee stock option plans); the shares of issued and outstanding
Common Stock set forth
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therein have been duly authorized and validly issued and are fully
paid, non-assessable and free of preemptive rights; the Common Stock
conforms to all statements relating thereto contained in the
Prospectus and the Shares, when issued and delivered in accordance
with this Agreement, will be duly and validly issued, fully paid and
non-assessable.
(j) Neither the Company nor any of its Subsidiaries is in
violation of its articles of incorporation or by laws or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company
or any of its Subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets of the Company
or any of its Subsidiaries is subject, the effect of which in the
aggregate would result in a material adverse change or prospective
material adverse change in the financial condition, earnings or
business of the Company and its Subsidiaries considered as one
enterprise; the execution, delivery and performance of this Agreement,
the Pricing Agreement and the consummation of the transactions herein
and therein contemplated and the compliance by the Company with its
obligations hereunder have been duly authorized by all necessary
corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its Subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, except as would not
have a material adverse effect on the Company and its Subsidiaries
considered as one enterprise; nor will such action result in any
violation on the part of the Company or any of its Subsidiaries of any
applicable law, administrative regulation or administrative or court
decree that would have a material adverse effect on the Company and
its Subsidiaries considered as one enterprise, or of the provisions of
the articles of incorporation, bylaws or other corresponding
organizational documents of the Company or any of its Subsidiaries.
(k) No labor dispute with the employees of the Company or
any of its Subsidiaries exists or, to the knowledge of the Company, is
imminent which might be expected to result in a material adverse
change or prospective material adverse change in the financial
condition, earnings or business of the Company and its Subsidiaries
considered as one enterprise.
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(l) Except as otherwise described in the Registration
Statement, there is no action, suit or proceeding before or by any
court or governmental agency or body now pending, or, to the knowledge
of the Company, threatened against the Company or any of its
Subsidiaries or North Side or any of its subsidiaries, which is
required to be disclosed in the Registration Statement or which is
reasonably anticipated to result in any material adverse change or
prospective material adverse change in the financial condition,
earnings or business of the Company and its Subsidiaries considered as
one enterprise, or is reasonably anticipated to materially and
adversely affect the properties or assets thereof, taken as a whole,
or is reasonably anticipated to materially and adversely affect the
consummation of this Agreement or the Pricing Agreement; all pending
legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their property is the subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, considered in
the aggregate, are not reasonably anticipated to have a material
adverse effect on the Company and its Subsidiaries considered as one
enterprise.
(m) The Company and its Subsidiaries possess adequate
certificates, authorities or permits issued by the appropriate State
or Federal regulatory agencies or bodies necessary to conduct any
material businesses now operated by them, and neither the Company nor
any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit, except where, as to such possession or
proceedings, the failure to have any such certificate, authority or
permit would not have a material adverse effect or prospective
material adverse effect on the business, financial condition, earnings
or business of the Company and its Subsidiaries considered as one
enterprise.
(n) No authorization, approval or consent of any court or
governmental authority or agency is required to be obtained by the
Company or its Subsidiaries in connection with the offering, issuance
or sale of the Shares hereunder or the consummation by the Company of
any of the other transactions contemplated hereby, except such as may
be required under the Securities Act, the Securities Act Regulations
or state securities laws.
(o) This Agreement has been, and prior to the Closing
Date the Pricing Agreement will have been, duly executed and delivered
by the Company.
(p) The Company and the Subsidiaries have good and
marketable title to, or valid and enforceable leasehold
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estates in, all items of real and personal property which are stated
in the Registration Statement and Prospectus to be owned or leased by
them, in each case free and clear of all liens, encumbrances, claims,
security interests and defects, other than those the aggregate amount
of which are referred to in the Registration Statement and the
Prospectus or which would not have a material adverse effect on the
business, financial condition or earnings of the Company and the
Subsidiaries considered as one enterprise.
(q) The Company and each Subsidiary have filed all
Federal, state, local and foreign tax returns which are required to be
filed by any of them or have requested extensions thereof and have
paid all taxes shown on such returns and all assessments received by
any of them to the extent that the same have become due, except where
the failure to file such returns or pay such taxes could not be
reasonably expected to have a material adverse effect on the Company
and its Subsidiaries considered as one enterprise.
(r) The Company has not been advised by North Side or
otherwise been made aware of any change or event having the effects
described by Section 6.11 of the Merger Agreement.
SECTION 2. Sale and Delivery to You; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth,
the Company agrees to sell to you and you agree to purchase from the
Company, at the price per share set forth in the Pricing Agreement,
the Shares.
(i) If the Company has elected not to rely upon
Rule 430A of the Securities Act Regulations, the initial
public offering price and the purchase price per share to be
paid by you for the Shares have each been determined as set
forth in the Pricing Agreement, dated the date hereof, and an
amendment to the Registration Statement and the Prospectus
will be filed before the Registration Statement becomes
effective.
(ii) If the Company has elected to rely upon Rule
430A of the Securities Act Regulations, the purchase price per
share to be paid by you for the Shares shall be an amount
equal to the initial public offering price, less an amount per
share to be determined by agreement between you and the
Company. The initial public offering price per share of the
Shares shall be a fixed price to be determined by agreement
between you and the Company. The initial public offering
price and the purchase price, when so determined, shall be set
forth in the Pricing Agreement. In the event that such prices
have not been
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agreed upon and the Pricing Agreement has not been executed
and delivered by all parties thereto by the close of business
on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without
liability of any party to any other party, unless otherwise
agreed to by the Company and you.
(b) Payment of the purchase price for, and delivery of
certificates for, the Shares shall be made at the offices of Brown &
Wood, One World Trade Center, New York, New York or at such other
place as shall be agreed upon by you and the Company, at 9:00 a.m.,
local time in New York on the third business day following the date of
the Pricing Agreement, or such other time not later than ten business
days after such date as shall be agreed upon by you and the Company
(such time and date of payment and delivery being herein called
"Closing Time"). Payment shall be made to the Company by wire
transfer or by certified or official bank check or checks drawn in New
York Clearing House funds or similar next day funds (unless the
Company requests payment in same day funds, in which case the Company
shall pay you for any costs associated with settlement in same day
funds) payable to the order of the Company, against delivery to you in
New York City of certificates for the Shares to be purchased by it.
The certificates for the Shares shall be in such denominations and
registered in such names as you may request in writing at least two
full business days before Closing Time. The certificates for the
Shares will be made available for examination and packaging by you in
New York City not later than 2:00 p.m., local time in New York City,
on the last business day prior to Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with you
as follows:
(a) If the Company omitted information from the registration
statement relating to the Shares at the time it was originally
declared effective in reliance upon Rule 430A(a) of the Securities Act
Regulations, the Company shall provide evidence satisfactory to you
and your counsel that the Prospectus contains such information and has
been filed with the Commission pursuant to subparagraph (1) or (4) of
Rule 424(b) or as part of a post-effective amendment to such
registration statement as originally declared effective which has been
declared effective by the Commission. The Company will notify you
immediately, and confirm the notice in writing, (i) of the
effectiveness of the Registration Statement and any amendment thereto
(including any post-effective amendment) and, if Rule 430A of the
Securities Act Regulations is being relied upon, of the filing of the
Prospectus pursuant to Rule 430A, (ii) of the receipt of any
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comments from the Commission, (iii) of any request by the Commission
for any amendment to such Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) The Company will give you notice of its intention to
prepare or file any amendment to the Registration Statement relating
to the Shares (including any post-effective amendment) or any
amendment or supplement to the Prospectus (including documents deemed
to be incorporated by reference into the Prospectus and including any
revised prospectus which the Company proposes for use by you in
connection with the offering of the Shares which differs from the
prospectus on file at the Commission at the time the Registration
Statement becomes effective, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of the Securities Act
Regulations), will furnish you with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing
or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which you or your counsel
shall reasonably object.
(c) The Company will deliver to you as many signed copies
of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated
by reference therein and including documents incorporated by reference
into the Prospectus, but without exhibits to such incorporated
documents) and such number of conformed copies of the registration
statement as originally filed and of each amendment thereto (including
documents incorporated by reference into the Prospectus but without
exhibits) as you may reasonably request.
(d) The Company will furnish to you, from time to time
during the period when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act, such number of copies of
the Prospectus (as amended or supplemented, if applicable) as you may
reasonably request for the purposes contemplated by the Securities Act
or the Exchange Act or the respective applicable rules and regulations
of the Commission thereunder.
(e) After the Closing Time and for so long as the
Prospectus is required to be delivered under the Securities Act or the
Exchange Act, if any event shall occur as a result
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of which it is necessary, in the reasonable opinion of your counsel,
to amend or supplement the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, the Company will forthwith amend or
supplement the Prospectus (in form and substance reasonably
satisfactory to your counsel) so that, as so amended or supplemented,
the Prospectus will not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the
time it is delivered to a purchaser, not misleading, and the Company
will furnish to you a reasonable number of copies of such amendment or
supplement.
(f) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act or the Exchange Act,
will file promptly all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act
subsequent to the time the Registration Statement becomes effective.
(g) The Company will use its reasonable efforts, in
cooperation with you and your counsel, to qualify the Shares for
offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as you may reasonably
designate provided that no such qualification shall be required in any
jurisdiction where, as a result thereof, the Company would be subject
to service of general process or taxation or be required to qualify to
do business as a foreign corporation where it is not now so qualified.
The Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in
effect for as long as may be required for the distribution of the
Shares.
(h) The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days
after the close of the period covered thereby, an earnings statement,
which need not be audited (in form complying with the provisions of
Rule 158 of the Securities Act Regulations) covering a twelve-month
period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(i) The Company will use the net proceeds received by it
from the sale of the Shares in the manner specified in the Prospectus
under "Use of Proceeds."
(j) If, at the time that the Registration Statement
becomes effective, any information shall have been omitted therefrom
in reliance upon Rule 430A of the Securities Act
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Regulations, then immediately following the execution of the Pricing
Agreement, the Company will prepare, and file or transmit for filing
with the Commission in accordance with such Rule 430A and Rule 424(b)
of the Securities Act Regulations, copies of the Prospectus, or, if
required by such Rule 430A, a post-effective amendment to the
Registration Statement (including an amended Prospectus), containing
all information so omitted.
(k) During a period of 90 days from the date hereof, the
Company will not, without your prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any securities that are of the same or a similar
class or series as the Shares (except for Common Stock or options
issued pursuant to reservations, agreements, including, without
limitation, the Merger Agreement, employee benefit plans, stock option
plans or dividend reinvestment and stock purchase plans).
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement (including exhibits)
as originally filed and of each amendment thereto (including exhibits), (ii)
the preparation, issuance and delivery of the certificates for the Shares to
you, (iii) the fees and disbursements of the Company's counsel and accountants,
(iv) the qualification of the Shares under state securities and "blue sky" laws
in accordance with the provisions of Section 3(g) hereof, including filing fees
and reasonable fees and disbursements of your counsel in connection therewith
and in connection with the preparation of the Blue Sky Survey, (v) the delivery
to you of copies of the Registration Statement as originally filed (including
exhibits) and of each amendment thereto, of the preliminary prospectuses, and
of the Prospectus and any amendments or supplements thereto (including
exhibits), (vi) the fees, if any, of the New York Stock Exchange ("NYSE")
relating to the listing of the Shares on the NYSE and (viii) the examination
fee of the National Association of Securities Dealers, Inc. in connection with
its review of the arrangements, terms and conditions of the offering of the
Shares. You shall pay all expenses incident to the performance of your
obligations under this Agreement, including without limitation, fees of your
counsel, except as set forth in (iv) above.
If this Agreement is terminated by you because the Closing conditions set
forth in Section 5 have not been satisfied (unless the failure to perform any
condition set forth in Section 5 is due to the default or omission of you or
your counsel), or Section 9(a)(i), then the Company shall reimburse you for all
of your documented reasonable out-of-pocket expenses, including the reasonable
fees and disbursements of your counsel.
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SECTION 5. Conditions of Your Obligations. Your obligations
hereunder are subject to the accuracy of the representations and warranties of
the Company herein contained at and as of the date hereof and the Closing Time,
to the performance by the Company of its obligations hereunder, and to the
following further conditions:
(a) The Registration Statement, including any
post-effective amendments required pursuant to Rule 430A(a), shall
have become effective not later than 5:30 p.m., local time in New York
City, on the date hereof or, with your consent, at a later time and
date, not later, however, than 5:30 p.m., local time in New York City,
on the first business day following the date hereof, or at such later
time and date as you may approve; if the Prospectus or any amendment
or supplement thereto is required to be filed pursuant to Rule 424(b)
of the Securities Act Regulations, the prospectus and any such
amendment or supplement shall be filed in the manner and within the
time period specified by Rule 424(b) of the Securities Act
Regulations; and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the Securities Act or proceedings therefor initiated or
threatened by the Commission; if the Company has elected to rely upon
Rule 430A of the Securities Act Regulations, the price of the Shares
and any price-related information previously omitted from the
effective Registration Statement pursuant to such Rule 430A shall have
been transmitted to the Commission for filing pursuant to Rule 424(b)
of the Securities Act Regulations within the prescribed time period,
and prior to Closing Time the Company shall have provided evidence
satisfactory to you of such timely filing, or a post-effective
amendment providing such information shall have been promptly filed
and declared effective in accordance with the requirements of Rule
430A of the Securities Act Regulations; and there shall not have come
to your attention any facts that would cause you to believe that the
Prospectus at the time it was required to be delivered to a purchaser
of the Shares, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such
time, not misleading.
(b) At Closing Time you shall have received:
(1) The favorable opinion, dated the Closing Time, of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the
Company, in form and substance set forth in Annex A to this Agreement.
(2) The favorable opinion, dated as of the Closing Time,
of Xxxxx & Xxxx, your counsel, to the effect that:
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(i) This Agreement and the Pricing Agreement have
each been duly authorized, executed, and delivered by or on
behalf of the Company;
(ii) The Registration Statement is effective under
the Securities Act and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act or
proceedings therefor initiated or threatened by the
Commission;
(iii) At the time the Registration Statement became
effective, the Registration Statement (other than the
financial statements, notes thereto, supporting schedules and
other financial and statistical data included or incorporated
by reference therein, as to which no opinion need be rendered)
complied as to form in all material respects with the
requirements of the Securities Act and the Securities Act
Regulations; and
(iv) The Shares conform in all material respects to
the description thereof set forth in the Prospectus under the
caption "Description of Capital Stock".
(3) In giving their opinions required by subsections (b)(1)
and (b)(2) of this Section, Skadden, Arps, Slate Xxxxxxx & Xxxx LLP and Brown &
Wood shall additionally state that in connection with the preparation of the
Registration Statement and the Prospectus, they participated in conferences
with officers and other representatives of the Company, counsel for the
Company, representatives of the independent certified public accountants for
the Company, representatives of the Underwriter and representatives of their
counsel, at which conferences the contents of the Registration Statement and
Prospectus and related matters were discussed, and, although such counsel has
not independently verified and is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, except as set forth in
such counsel's respective opinion, and has made no independent verification or
check thereof, nothing has have come to their attention that would cause them
to believe that the Registration Statement (other than the financial
statements, notes thereto, supporting schedules and other financial and
statistical information and data included or incorporated by reference therein
or omitted therefrom, as to which no view need be expressed), at the time it
became effective, or if an amendment to the Registration Statement has been
filed by the Company with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time of the most recent such filing,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus
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(other than the financial statements, notes thereto, supporting schedules and
other financial and statistical information and data included or incorporated
by reference therein or omitted therefrom, as to which no view need be
expressed), as amended or supplemented at the date of the Pricing Agreement and
at Closing Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP shall further
state that to such counsel's knowledge, (A) there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits thereto other than described or referred to therein or filed or
incorporated by reference as exhibits thereto; and (B) the descriptions thereof
or references thereto are correct in all material respect.
(c) At Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or event
which is reasonably likely to result in any prospective material adverse change
in the financial condition, earnings or business of the Company and its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and you shall have received a certificate of the
Chief Executive Officer and of the Chief Financial Officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1
are true and correct with the same force and effect as though expressly made at
and as of Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(d) There shall not have been any change after the date of this
Agreement in the articles of incorporation or by-laws of the Company adversely
affecting the rights of the holders of the Shares.
(e) At the time of the execution of this Agreement, you shall have
received from KPMG Peat Marwick LLP a letter dated such date, in form and
substance satisfactory to you, to the effect that (i) they are independent
public accountants with respect to the Company and its Subsidiaries within the
meaning of the Securities Act and the Securities Act Regulations; (ii) it is
their opinion that the financial statements included or incorporated by
reference in the Registration Statement and covered by their opinion or
opinions therein comply as to form in all material respects with the
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applicable accounting requirements of the Securities Act and the Securities Act
Regulations; (iii) based upon limited procedures set forth in detail in such
letter, nothing has come to their attention which causes them to believe that
(A) the unaudited consolidated financial statements of the Company and the
Subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act and the
Exchange Act Regulations or are not presented in conformity with generally
accepted accounting principles applied on a basis substantially consistent with
that of the audited consolidated financial statements included or incorporated
by reference in the Registration Statement, or (B) at the date of the most
recently available internal unaudited financial statements of the Company,
there has been any change in the capital stock of the Company or any increase
in the consolidated long term debt of the Company and the Subsidiaries or any
decrease in total assets of the Company and the Subsidiaries, in each case as
compared with the amounts shown in the September 30, 1996 balance sheet
included or incorporated by reference in the Registration Statement or, during
the period from September 30, 1996 to the date of the most recently available
internal unaudited financial statements of the Company, there were any
decreases, as compared with the corresponding period in the preceding year, in
total interest income, net interest income, net interest income after provision
for loan losses, net income or net income per share, except in all instances
for changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur: (iv) in addition to the
examination referred to in their opinions and the limited procedures referred
to in clause (iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by the
Underwriter, and have found such amounts, percentages and financial information
to be in agreement with the relevant accounting, financial and other records of
the Company and the Subsidiaries identified in such letter; and (v) based upon
limited procedures set forth in their letter, nothing has come to their
attention which causes them to believe that the unaudited pro forma
consolidated condensed financial statements of the Company and the Subsidiaries
included or incorporated by reference in the Prospectus and the Registrations
Statement do not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act Regulations and the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements.
(f) At Closing Time, you shall have received from KPMG Peat
Marwick LLP a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (e)
of this Section, except that the specified date
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referred to shall be a date not more than five days prior to Closing Time.
(g) At Closing Time, you shall have received from KPMG Peat
Marwick LLP a letter, dated as of Closing Time, in form and substance
satisfactory to you, to the effect that (i) they are independent public
accountants with respect to North Side and its Subsidiaries within the meaning
of the Securities Act and the Securities Act Regulations; (ii) it is their
opinion that the financial statements of North Side and subsidiaries included
or incorporated by reference in the Registration Statement and covered by their
opinion or opinions therein comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the Securities Act
Regulations; (iii) based upon limited procedures set forth in detail in such
letter, nothing has come to their attention which causes them to believe that
(A) the unaudited consolidated financial statements of the North Side and its
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Securities Act and the
Securities Act Regulations or are not presented in conformity with generally
accepted accounting principles applied on a basis substantially consistent with
that of the audited consolidated financial statements included or incorporated
by reference in the Registration Statement.
(h) Except for the conditions set forth in Sections 7.1 (b)
through (e) (collectively, the "Mutual Conditions"), Sections 7.2 (e) and (f)
(collectively, the "North Fork Conditions") and Sections 7.3 (e) and (f) of the
Merger Agreement (collectively, the "North Side Conditions" and together with
the Mutual Conditions and the North Fork Conditions, the "Conditions"), all of
the conditions contained in the Merger Agreement to the Company's, North Fork
Bank's and North Side's obligations under the Merger Agreement shall have been
satisfied or waived, and the waiver of any such conditions, individually or in
the aggregate would not have a material adverse effect or prospective material
adverse effect on the financial condition, earnings or business of the Company
and its Subsidiaries, taken as a whole following the consummation of the
Merger, or could not reasonably be expected to materially and adversely affect
the properties or assets thereof. You shall have received a certificate of the
Company, dated the Closing Date, and signed by the Chairman or the President
and the Chief Financial Officer of the Company, and a certificate of North
Side, dated the Closing Date, and signed by the Chairman or the President and
the Chief Financial Officer of North Side, each certificate stating that (x)
except for the Conditions and, based on the assumption that the Shares to be
sold pursuant to this Agreement have been sold, all of the conditions contained
in the Merger Agreement to the Company's, North Fork's and North Side's
obligations, as the case may be, under the Merger Agreement have been satisfied
or
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waived (any such waiver being described in an appendix to such certificates),
(y) nothing has come to their attention which would make them believe that the
Conditions will not be satisfied, and (z) subject to the satisfaction of the
Conditions the Company, North Fork Bank and North Side, as the case may be, are
prepared to close the transactions contemplated by the Merger Agreement after
the closing of the sale of Shares hereunder. Subsequent to the sale of the
Shares to you pursuant to the terms of this Agreement, the Merger shall remain
subject to the Conditions.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold you harmless and each
person, if any, who controls you within the meaning of Section 15 of the
Securities Act as follows:
(i) against any and all loss, liability, claim, damage and
reasonable expense, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) of the Securities Act Regulations, if applicable, or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
reasonable expense, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company; and
(iii) against any and all reasonable expense, as incurred,
(including, subject to subsection 6(c) hereof, the fees and
disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
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provided, however that the foregoing indemnity shall not inure to the
benefit of you (or any person controlling you) to the extent of any loss,
liability, claim, damage or expense if (A) such statement or omission of such
alleged statement or omission was made in reliance upon and in conformity with
information furnished to the Company by you in writing expressly for use in the
Registration Statement (or any amendment thereto) or any such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); or (B)
as to any preliminary prospectus, you failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to any person within
the time required by the Securities Act, and such untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such preliminary prospectus was corrected in the Prospectus,
as the same may be amended or supplemented.
(b) You agree to indemnify and hold harmless the Company, its
directors, each of its officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act against any and
all loss, liability, claim, damage and reasonable expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), in reliance upon and in conformity with written information furnished
to the Company by you expressly for use in the Registration Statement (or any
amendment thereto), any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate
at its own expense in the defense of any such action. In no event shall an
indemnifying party be liable for the fees and expenses of more than one counsel
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. An
indemnifying party shall not be obligated to reimburse an indemnified party
hereunder for any amount paid to effect settlement of any action or claim
unless such settlement shall have been consented to in writing by the
indemnifying party.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified party
although applicable in
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accordance with its terms, the Company and you shall contribute to the
aggregate losses, liabilities, claims, damages and reasonable expenses of the
nature contemplated by said indemnity agreement incurred by the Company and
you, as incurred, in such proportions that you are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls you within the meaning of Section 15 of the Securities Act shall have
the same rights to contribution as you, and each director of the Company, each
officer of the Company, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act shall have the same
rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of you or any controlling person, or by or
on behalf of the Company, and shall survive delivery of the Shares to you.
SECTION 9. Termination of Agreement.
(a) You may also terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change or any event which is reasonably likely
to result in a prospective material adverse change in the financial condition,
earnings or business of the Company and it Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) if
there has occurred any outbreak of hostilities or escalation of any existing
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in your reasonable
professional judgment, impracticable to market the Common Stock or to enforce
contracts for the sale of the Common Stock, or (iii) if trading in the Common
Stock has been suspended by the Commission, or if trading or quotation
generally on either the American Stock Exchange or the New York Stock Exchange
or Nasdaq National Market has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or Nasdaq National Market or by order of
the Commission or any other governmental authority, of if a banking moratorium
has been declared by either Federal or New
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York authorities or controls have been in effect for at least two consecutive
business days.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4, and provided further that Sections 6 and 7 hereof
shall survive such termination.
SECTION 10. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted and received by any standard form of telecommunication. Notices to
you shall be directed to them c/o Keefe, Xxxxxxxx & Xxxxx, Inc., Two World
Trade Center, 00xx Xxxxx, Xxx Xxxx, XX 00000; attention Xxxx Xxxxx, Executive
Vice President; notices to the Company shall be directed to North Fork
Bancorporation, Inc., 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000;
attention Xxxx Xxxx Xxxxx, President, with a copy to Xxxxxxx X. Xxxxxxxxxx,
Esq., Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
SECTION 11. Parties. This Agreement shall inure to the benefit of and be
binding upon you and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than you and the Company and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of you
and the Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of Shares
from you shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
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Section 13. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to constitute an original.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter and the Company in accordance with its terms.
Very truly yours,
NORTH FORK BANCORPORATION, INC.
By:
---------------------------------
Name and Title
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXX, XXXXXXXX & XXXXX, INC.
By:
--------------------------------
Senior Vice President
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EXHIBIT A
600,000 Shares
NORTH FORK BANCORPORATION, INC.
(a Delaware corporation)
Common Stock
(Par Value $2.50 Per Share)
PRICING AGREEMENT
, 1996
XXXXX, XXXXXXXX & XXXXX, INC.
Two World Trade Center
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated , 1996 (the
"Underwriting Agreement"), relating to the purchase by you as underwriter (the
"Underwriter"), of the above shares of Common Stock (the "Shares"), of North
Fork Bancorporation, Inc. (the "Company").
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with the Underwriter as follows:
1. The initial public offering price per share for the
Initial Shares, determined as provided in said Section 2, shall be
$____.
2. The purchase price per share for the Shares to be paid by
the Underwriter shall be $____, being an amount equal to the initial
public offering price set forth above less $____ per share.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter and the Company in accordance with its terms.
Very truly yours,
NORTH FORK BANCORPORATION, INC.
By:
-----------------------------
Name and Title
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXX, XXXXXXXX & XXXXX, INC.
By:
--------------------------
Senior Vice President
2
