Filed
Pursuant to Rule 424(b)(2)
Registration
Statement No. 333-158477
PROSPECTUS
Debt
Securities
Common
Stock
Preferred
Stock
Warrants
From time
to time, we may offer and sell our debt securities, common stock, preferred
stock and warrants to purchase common stock (collectively referred to as
“securities”) in amounts, at prices and on terms described in one or more
supplements to this prospectus. The aggregate amount of the
securities offered by us under this prospectus will not exceed $150
million.
This
prospectus provides you with a general description of the securities that may be
offered in one or more offerings. Each time we offer securities, we
will provide a supplement to this prospectus that will contain more specific
information about the terms of that offering. We may also add, update
or change in the prospectus supplement any of the information contained in this
prospectus.
You
should read both this prospectus and the applicable prospectus supplement, as
well as any documents incorporated by reference in this prospectus and/or the
applicable prospectus supplement, before you make your investment
decision.
Investing
in our securities involves risks. You should carefully consider the
risk factors beginning on page 4 of this prospectus and set forth in the
documents incorporated by reference herein before making any decision to invest
in our securities.
The
securities may be sold by us or through underwriters or dealers, directly to
purchasers or through agents designated from time to time. For
additional information on the methods of sale, you should refer to the section
entitled “Plan of Distribution” in this prospectus. If any
underwriters are involved in the sale of any securities with respect to which
this prospectus is being delivered, the names of such underwriters and any
applicable discounts or commissions and over-allotment options will be set forth
in a prospectus supplement. The price to the public of such
securities and the net proceeds we expect to receive from such sale will also be
set forth in a prospectus supplement.
None
of the Securities and Exchange Commission (the “SEC”), the Office of Thrift
Supervision, the Federal Deposit Insurance Corporation (the “FDIC”), the Board
of Governors of the Federal Reserve System or any state securities commission or
any other federal or state bank regulatory agency has approved or disapproved of
these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The
securities offered by this prospectus are not savings accounts, deposits or
other obligations of any bank and are not insured or guaranteed by the FDIC or
any other government agency.
The date
of this prospectus is May 11, 2009.
You
should rely only on the information set forth or incorporated by reference in
this prospectus or any supplement. No dealer, salesperson or other
person is authorized to provide you with information different from that which
is set forth or incorporated by reference in this prospectus. You
must not rely on any unauthorized information or
representations. This prospectus is an offer to sell only the
securities it describes, and only under circumstances and in jurisdictions where
it is lawful to do so. The information contained in this prospectus
is accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or prospectus supplement or any sale of a
security.
TABLE OF CONTENTS
PROSPECTUS
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Page
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About
this Prospectus
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1
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Where
You Can Find More Information
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1
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Forward-Looking
Statements
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2
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Description
of Dime Community Bancshares, Inc.
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3
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Recent
Events
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4
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Risk
Factors
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4
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Use
of Proceeds
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7
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Ratios
of Earnings to Fixed Charges and Preferred Stock Dividends
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7
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Description
of Debt Securities
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8
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Description
of Common Stock
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16
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Description
of Preferred Stock
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18
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Description
of Warrants
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21
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Plan
of Distribution
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25
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Validity
of Securities
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26
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Experts
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27
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the SEC using
a “shelf” registration process. Under this shelf registration
statement, we may sell:
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debt
securities;
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common
stock;
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preferred
stock; and
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warrants
to purchase common stock.
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This
prospectus provides you with a general description of the debt securities,
common stock, preferred stock and warrants. Each time we sell debt
securities, common stock, preferred stock or warrants, we will provide a
prospectus supplement (and, if applicable, a pricing supplement) that will
contain specific information about the terms of that offering. The
prospectus supplement (and any pricing supplement) may also add, update or
change information in this prospectus. If there is any inconsistency
between the information in this prospectus (including the information
incorporated by reference herein) and any prospectus supplement (or pricing
supplement), you should rely on the information in that prospectus supplement
(or pricing supplement). You should read both this prospectus and any
prospectus supplement together with the additional information described under
the heading “Where You Can Find More Information.”
The
registration statement that contains this prospectus (including the exhibits to
the registration statement) has additional information about us and the
securities offered under this prospectus. That registration statement
can be read at the SEC web site or at the SEC offices mentioned under the
heading “Where You Can Find More Information.”
Unless
otherwise stated, the words “Dime Community,” “we,” “our” and “us” refer to Dime
Community Bancshares, Inc. and its subsidiaries, except that such terms refer to
Dime Community Bancshares, Inc. only and not to its subsidiaries in the sections
entitled “Description of Debt Securities,” “Description of Common Stock,”
“Description of Preferred Stock” and “Description of Warrants.”
Unless
otherwise indicated, currency amounts in this prospectus and in any applicable
prospectus supplement are stated in U.S. dollars.
WHERE
YOU CAN FIND MORE INFORMATION
We are
subject to the information requirements of the Securities Exchange Act of
1934. Accordingly, we file annual, quarterly and current reports,
proxy statements and other information with the SEC and filed a registration
statement on Form S-3 under the Securities Act of 1933 relating to the
securities offered by this prospectus. This prospectus, which forms
part of the registration statement, does not contain all of the information
included in the registration statement. For further information, you
should refer to the registration statement and its exhibits.
You may
read and copy the registration statement and any document we file with the SEC
at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information
on the operation of the Public Reference Room. You can also review
our filings by accessing the web site maintained by the SEC at
http://www.sec.gov. The site contains reports, proxy and information
statements and other information regarding issuers that file electronically with
the SEC. In addition to the foregoing, we maintain a web site at
www.dime.com. Our web site content is made available for
informational purposes only. It should neither be relied upon for
investment purposes nor is it incorporated by reference into this
prospectus. We make available on our internet web site copies of our
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on
Form 8-K and any amendments to such document as soon as practicable after we
electronically file such material with or furnish such documents to the
SEC.
1
The SEC
allows us to “incorporate by reference” information that we file with the SEC
into this prospectus, which means we can disclose important information to you
by referring you to another document. The information incorporated by
reference is considered to be part of this prospectus from the date on which we
file that document. Any reports filed by us with the SEC after the
date of this prospectus and before the termination of the offering of the
securities by means of this prospectus will automatically update and, where
applicable, supersede information contained in this prospectus or incorporated
by reference into this prospectus. We incorporate by reference the
following documents:
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Our
Annual Report on Form 10-K/A (Amendment No. 1) for the year ended December
31, 2008;
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Our
Quarterly Report on Form 10-Q for the quarter ended March 31,
2009;
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Our
Current Reports on Form 8-K filed on March 24, 2009 and March 25,
2009;
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Our
definitive Proxy Statement on Schedule 14A filed on April 8,
2009;
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The
description of our common stock contained in our Registration Statement
filed with the SEC pursuant to Section 12 of the Securities Exchange Act
of 1934, including any amendment or report filed for the purpose of
updating such description; and
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Any
documents we file with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of this
prospectus and before the termination of the offering of the securities
offered hereby.
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You may
request a copy of these filings, at no cost, by writing or calling us at the
following address:
Dime
Community Bancshares, Inc.
209
Havemeyer Street
Brooklyn,
New York 11211
Attn: Investor
Relations
(718)
782-6200
FORWARD-LOOKING
STATEMENTS
Certain
statements contained in this prospectus that are not statements of historical
fact constitute forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995 (the “Act”), notwithstanding that such
statements are not specifically identified as such. In addition,
certain statements may be contained in our future filings with the SEC, in press
releases, and in oral and written statements made by us or with our approval
that are not statements of historical fact and constitute forward-looking
statements within the meaning of the Act. Examples of forward-looking
statements include, but are not limited to: (i) projections of
revenues, expenses, income or loss, earnings or loss per share, the payment or
nonpayment of dividends, capital structure and other financial items; (ii)
statements of our plans, objectives and expectations or those of our management
or board of directors, including those relating to products or services; (iii)
statements of future economic performance; and (iv) statements of assumptions
underlying such statements. Forward-looking statements include
information concerning our possible or assumed future results of operations and
statements preceded by, followed by or that include the words “believes,”
“expects,” “feels,” “anticipates,” “intends,” “plans,” “estimates,” “predicts,”
“projects,” “potential,” “outlook,” “could,” “will,” “may” or similar
expressions.
Forward-looking
statements are not guarantees of future performance and are subject to risks,
uncertainties and assumptions. Actual results may differ materially
from those expressed in or implied by these forward-looking
statements. Factors that could cause actual results to differ from
these forward-looking statements include, but are not limited to, the following,
as well as those discussed elsewhere in this prospectus, any accompanying
prospectus supplement and in the documents incorporated by reference
herein:
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the
timing and occurrence or non-occurrence of events may be subject to
circumstances beyond our control;
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there
may be increases in competitive pressure among financial institutions or
from non-financial institutions;
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changes
in the interest rate environment may reduce interest
margins;
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changes
in deposit flows, loan demand or real estate values may adversely affect
the business of The Dime Savings Bank of
Williamsburgh;
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changes
in accounting principles, policies or guidelines may cause our financial
condition to be perceived
differently;
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changes
in corporate and/or individual income tax laws may adversely affect our
business or financial condition;
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general
economic conditions, either nationally or locally in some or all areas in
which we conduct business, or conditions in the securities markets or
banking industry, may be less favorable than what we currently
anticipate;
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legislation
or regulatory changes may adversely affect our
business;
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technological
changes may be more difficult or expensive than what we
anticipate;
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success
or consummation of new business initiatives may be more difficult or
expensive than what we anticipate;
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litigation
or other matters before regulatory agencies, whether currently existing or
commencing in the future, may delay the occurrence or non-occurrence of
events longer than what we anticipate;
and
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the
risks referred to in the section entitled “Risk
Factors.”
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You
should not put undue reliance on any forward-looking
statements. Forward-looking statements speak only as of the date they
are made, and we undertake no obligation to update them in light of new
information or future events except to the extent required by Federal securities
laws.
DESCRIPTION
OF DIME COMMUNITY BANCSHARES, INC.
We are a
Delaware corporation and the unitary savings and loan association holding
company for The Dime Savings Bank of Williamsburgh (the “Bank”), a
federally-chartered stock savings bank. At March 31, 2009, on a
consolidated basis, we had total assets of $4.04 billion, deposits of $2.34
billion and total stockholders’ equity of $280 million.
The Bank
maintains its headquarters in the Williamsburg section of Brooklyn, New York and
operates 23 full-service retail banking offices located in the New York City
boroughs of Brooklyn, Queens, and the Bronx, and in Nassau County, New
York. The Bank’s principal business has been, and continues to be,
gathering deposits from customers primarily within its market area, and
investing those deposits primarily in multi-family residential mortgage loans,
commercial real estate loans, one- to four-family residential mortgage loans,
construction and land acquisition loans, consumer loans, mortgage-backed
securities (“MBS”), obligations of the U.S. Government and Government Sponsored
Entities, and corporate debt and equity securities. The Bank’s
revenues are derived principally from interest on its loan and securities
portfolios and short-term investments. The Bank’s primary sources of
funds are deposits; loan amortization, prepayments and maturities; MBS
amortization, prepayments and maturities; investment securities maturities and
sales; advances from the Federal Home Loan Bank of New York; securities sold
under agreement to repurchase borrowings; and the sale of real estate loans to
the secondary market.
Our
primary business is the operation of the Bank. We are a unitary
savings and loan holding company, which, under existing law, is generally not
restricted as to the types of business activities in which it may engage,
provided that the Bank remains a qualified thrift lender. Pursuant to
regulations of the Office of Thrift Supervision (“OTS”), the Bank qualifies as a
qualified thrift lender if its ratio of qualified thrift investments to
portfolio assets was 65% or more, on a monthly average basis, in nine of the
previous twelve months. At March 31, 2009, the Bank’s qualified
thrift ratio was 69.2%, and the Bank maintained more than 65% of its portfolio
assets in qualified thrift investments throughout the quarter ended March 31,
2009.
3
The Bank
is subject to extensive regulation, examination, and supervision by the OTS, as
its chartering agency, and the FDIC, as its deposit insurer. The
Bank’s deposit accounts are insured up to applicable limits by the FDIC under
the Deposit Insurance Fund. The Bank must file reports with the OTS
concerning its activities and financial condition, and must obtain regulatory
approval prior to entering into certain transactions, such as mergers with, or
acquisitions of, other depository institutions. The OTS conducts
periodic examinations to assess the Bank’s safety and soundness and compliance
with various regulatory requirements. This regulation and supervision
establishes a comprehensive framework of activities in which a savings
association may engage and is intended primarily for the protection of the
Deposit Insurance Fund and depositors. As a publicly-held unitary
savings and loan holding company, we are required to file certain reports with,
and otherwise comply with, the rules and regulations of both the SEC, under the
federal securities laws, and the OTS.
We are a
Delaware corporation that is subject to extensive regulation and supervision
under applicable banking laws.
Our
executive offices are located at 209 Havemeyer Street, Brooklyn, New York 11211,
and our telephone number is (718) 782-6200.
Additional
information about us and our subsidiaries can be obtained from the documents
incorporated by reference herein. See “Where You Can Find More
Information.”
RISK
FACTORS
Investing
in our securities involves risks. You should carefully consider the
risks described in Item 1.A of our annual report on Form 10-K/A (Amendment No.
1) for the year ended December 31, 2008 and our quarterly report on Form 10-Q
for the quarter ended March 31, 2009 or any other documents incorporated by
reference into this prospectus and those described in any prospectus supplement
before making an investment decision. The risks and uncertainties
described in any prospectus supplement and incorporated by reference into this
prospectus are not the only ones facing our company. Additional risks
and uncertainties not presently known to us or that we currently deem to be
immaterial may also impair our business operations. If any of these
risks actually occur, our business, financial condition and results of
operations could be materially affected. In that case, the value of
our securities could decline substantially.
Risks
Associated with Our Debt Securities
We
operate through our subsidiary and, as a result, the debt securities will
effectively be subordinated to the liabilities of our subsidiaries.
Because
we operate primarily through the Bank and our primary assets are our equity
interests in the Bank, our obligations, including the debt securities, are
effectively subordinated to all existing and future indebtedness and other
liabilities of the Bank. As of March 31, 2009, the Bank had approximately $3.7
billion of outstanding liabilities that effectively ranks and would rank senior
to our current and future debt securities, unless the debt securities are
guaranteed on a senior basis by the Bank. The Bank may incur further
indebtedness in the future. The debt securities are exclusively our obligations.
The Bank has no obligation to pay any amounts due on the debt securities. The
Bank is not required to provide us with funds for our payment obligations,
whether by dividends, distributions, loans or other payments. In addition, any
payment of dividends, distributions, loans or advances by the Bank to us could
be subject to regulatory, statutory or contractual restrictions. Payments to us
by the Bank will also be contingent upon the Bank’s earnings and business
considerations.
We
and the Bank may incur additional indebtedness that may adversely affect our
ability to meet our financial obligations under the debt
securities.
The terms
of the indenture and the debt securities do not limit the incurrence by us or
the Bank of indebtedness. We and the Bank may incur additional indebtedness in
the future, which could have important consequences to holders of the debt
securities. For example, we may have insufficient cash to meet our financial
obligations, including our obligations under the debt securities. Furthermore,
our ability to obtain additional
4
financing
for working capital, capital expenditures or general corporate purposes could be
impaired. Additional debt could make us more vulnerable to changes in general
economic conditions and also could affect the financial strength ratings of the
Bank and the ratings of our debt securities.
We
may be unable to repay the debt securities if the Bank is unable to pay
dividends or make advances to us.
At
maturity, the entire outstanding principal amount of the debt securities will
become due and payable by us. We may not have sufficient funds to pay the
principal amount due. If we do not have sufficient funds on hand or available
through existing borrowing facilities or through the declaration and payment of
dividends by the Bank, we will need to seek additional financing. Additional
financing may not be available to us in the amounts necessary. We, as a holding
company, are dependent upon dividends from the Bank to enable us to service our
outstanding debt, including the debt securities. The Bank is subject to certain
regulatory restrictions as to the transfer of funds and payment of dividends to
the holding company.
Our
credit ratings may not reflect all the risks of any investment in the debt
securities.
Our
credit ratings are an independent assessment of our ability to pay debt
obligations. Consequently, real or anticipated changes in our credit
ratings will generally affect the market value of debt securities sold pursuant
to this prospectus. Our credit ratings, however, may not reflect the
potential impact of risks related to structural, market or other factors
discussed in this prospectus on the value of your debt securities.
If
an active trading market does not develop for a series of debt securities sold
pursuant to this prospectus, you may be unable to sell any such debt
securities.
Unless
otherwise specified in an applicable prospectus supplement, any debt securities
sold pursuant to this prospectus and the applicable prospectus supplement will
be new securities for which there currently is no established trading
market. We may elect not to list any debt securities on a national
securities exchange. While the underwriters of a particular offering
of debt securities may advise us that they intend to make a market in those debt
securities, the underwriters will not be obligated to do so and may stop their
market making at any time. No assurance can be given that a market
for any series of debt securities will develop or continue; as to the liquidity
of any market that does develop; or as to your ability to sell any debt
securities you may own or the price at which you may be able to sell your debt
securities.
We
have made only limited covenants in the indenture, which may not protect your
investment if we experience significant adverse changes in our financial
condition or results of operations.
The
indenture governing the debt securities does not:
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require
us to maintain any financial ratios or specified levels of net worth,
revenues, income, cash flow or liquidity, and therefore, does not protect
holders of the debt securities in the event that we experience significant
adverse changes in our financial condition, results of operations or
liquidity;
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limit
our ability or the ability of the Bank to incur additional indebtedness,
including indebtedness that is equal in right of payment to the debt
securities or, subject to certain exceptions, indebtedness that is secured
by liens on capital stock of certain subsidiaries;
or
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limit
the aggregate principal amount of debt securities that may be
issued.
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Risks
Associated with Our Common Stock, Preferred Stock and Warrants
Shares
eligible for future sale could have a dilutive effect.
Shares of
our common stock eligible for future sale, including those that may be issued in
connection with our various stock option and equity compensation plans, and any
other offering of our common stock for cash, could have a dilutive effect on the
market for our common stock and could adversely affect its market
price. As of March 31, 2009, there were 51,122,319 shares of common
stock issued and 34,179,900 shares of common stock outstanding. There
were no shares of preferred stock outstanding.
5
Our
stock price can be volatile.
Stock
price volatility may make it more difficult to resell our common stock when
desired and at an attractive price. Our stock price can fluctuate
significantly in response to a variety of factors, including, among other
factors:
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Actual
or anticipated variations in quarterly results of
operations.
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Recommendation
by securities analysts.
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Operating
and stock price performance of other companies that investors deem
comparable to us.
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News
reports relating to trends, concerns and other issues in the financial
services industry.
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Perceptions
in the marketplace regarding us and/or our
competitors.
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New
technology used, or services offered, by
competitors.
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Changes
in government regulations.
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Geopolitical
conditions such as acts or threats of terrorism or military
conflicts.
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General
market fluctuations, industry factors and general economic and political
conditions and events, such as economic slowdowns or recessions, interest rate
changes or credit loss trends, could also cause our stock price to decrease
regardless of operating results.
The
trading volume in our common stock is less than that of other larger financial
services companies.
Although
our common stock is listed for trading on NASDAQ National Market, the trading
volume in our common stock is less than that of other larger financial services
companies. A public trading market having the desired characteristics
of depth, liquidity and orderliness depends on the presence in the marketplace
of willing buyers and sellers of our common stock at any given
time. This presence depends on the individual decisions of investors
and general economic and market conditions over which we have no
control. Given the trading volume of our common stock, significant
sales of our common stock, or the expectation of these sales, could cause our
stock price to fall.
An
investment in our common stock is not an insured deposit.
Our
common stock is not a bank deposit and, therefore, is not insured against loss
by the FDIC, any other deposit insurance fund or by any other public or private
entity. Investment in our common stock is inherently risky for the
reasons described in this “Risk Factors” section and elsewhere in this
prospectus and is subject to the same market forces that affect the price of
common stock in any company. As a result, if you acquire our common
stock, you may lose some or all of your investment.
Our
Certificate of Incorporation and Bylaws, as well as certain banking laws, may
have an anti-takeover effect.
Provisions
of our Certificate of Incorporation and Bylaws and federal and state banking
laws, including regulatory approval requirements, could make it more difficult
for a third party to acquire us, even if doing so would be perceived to be
beneficial to our stockholders. The combination of these provisions
effectively inhibits a non-negotiated merger or other business combination,
which, in turn, could adversely affect the market price of our common
stock. For more information as to how our Certificate of
Incorporation and Bylaws may have an anti-takeover effect, see “Description of
Common Stock — Certain Anti-takeover Provisions”.
Our
ability to pay cash dividends is limited, and we may be unable to pay future
dividends even if we desire to do so.
Our
ability to pay cash dividends may be limited by regulatory restrictions, by the
Bank’s ability to pay cash dividends to us and by our need to maintain
sufficient capital to support our operations. The ability of the Bank
to pay cash dividends to us is limited by its obligations to maintain sufficient
capital and by other restrictions on its cash dividends that are applicable to
federally chartered stock savings banks and banks that are regulated by the
FDIC. If the Bank is not permitted to pay cash dividends to us, it is
unlikely that we would be able to pay cash dividends on our common
stock.
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Our
Board may issue and fix the terms of shares of our preferred stock without
stockholder approval, which could adversely affect the voting power of holders
of our common stock or any change in control of our company.
We are
authorized to issue up to 9,000,000 shares of preferred stock, the rights and
preferences of which may be designated in series by the Board. Such designation
of new series of preferred stock may be made without stockholder approval, and
could create additional securities which would have dividend and liquidation
preferences over the common stock offered hereby. Preferred
stockholders could adversely affect the rights of holders of common stock
by: exercising voting, redemption and conversion rights to the
detriment of the holders of common stock; receiving preferences over the holders
of common stock regarding a surplus of funds in the event of our dissolution or
liquidation; delaying, deferring or preventing a change in control of our
company; and discouraging bids for our common stock.
You
may not be able to exercise your warrants if we do not maintain an effective
registration statement.
We will
be required to maintain, at all times during which any warrants are outstanding,
a registration statement relating to the offer and sale of the common stock
underlying the warrants for the benefit of the warrant
holders. However, if a current registration statement is not in
effect, you may not be able to exercise or resell your warrants.
The
existence of outstanding warrants may hinder our ability to sell common
stock.
If the
warrant holders exercise their warrants, we will be obligated to issue
additional shares of common stock at the stated exercise or conversion
price. The existence of such rights to acquire common stock at fixed
prices may prove a hindrance to our efforts to raise future equity funding, and
the exercise of such rights will dilute the percentage ownership interest of our
stockholders and may dilute the value of their ownership.
USE
OF PROCEEDS
Unless
indicated otherwise in the applicable prospectus supplement, we expect to use
the net proceeds from the sale of the securities by us for general corporate
purposes. Pending such use, we may temporarily invest the proceeds or
use them to reduce short-term indebtedness.
Additional
information on the use of proceeds from the sale of the securities offered by
this prospectus may be set forth in the applicable prospectus
supplement.
RATIOS
OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The
following table sets forth our consolidated ratios of earnings to fixed charges
and preferred stock dividends for the periods shown. For purposes of
computing the ratios, earnings represent income before taxes, extraordinary
items and the cumulative effect of accounting changes, plus fixed
charges. Fixed charges represent total interest expense plus an
estimate of the interest within rental expense, including and excluding interest
on deposits. Currently, we have no shares of preferred stock
outstanding and have not paid any dividends on preferred stock in the periods
shown. Therefore, the ratio of earnings to combined fixed charges and
preferred stock dividends is not different from the ratio of earnings to fixed
charges.
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Three
Months Ended March
31, 2009
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Year
Ended December 31,
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2008
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2007
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2006
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2005
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2004
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Ratio
of earnings to fixed charges and preferred stock dividends(1)
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Including
interest on
deposits
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1.13x
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1.38x
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1.32x
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1.51x
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1.73x
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2.08x
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Excluding
interest on deposits
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1.26
|
1.80
|
1.98
|
2.28
|
2.54
|
3.43
|
|
|
___________
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(1)
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Interest
on unrecognized tax benefits totaling $476,000, $480,000 and $509,000 is
included in the calculation of fixed charges for the three months ended
March 31, 2009 and the years ended December 31, 2008 and 2007,
respectively.
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7
DESCRIPTION
OF DEBT SECURITIES
The debt
securities are to be issued under an indenture (the “indenture”), between us and
the trustee named in the applicable prospectus supplement, as trustee (the
“trustee”), the form of which is filed as an exhibit to the registration
statement of which this prospectus is a part. The debt securities may
be issued from time to time in one or more series. The particular
terms of each series, or of the debt securities forming a part of a series,
which are offered by a prospectus supplement, will be described in such
prospectus supplement.
The
following summaries of certain provisions of the indenture do not purport to be
complete and are subject, and are qualified in their entirety by reference, to
all the provisions of the indenture, including the definitions of certain terms
used in the indenture, and, with respect to any particular debt securities, to
the description of the terms of such debt securities included in the applicable
prospectus supplement. Wherever particular sections or defined terms
of the indenture are referred to here or in the applicable prospectus
supplement, such sections or defined terms are incorporated by reference here or
in the applicable prospectus supplement, as the case may be.
We are a
savings and loan holding company and almost all of our operating assets are
owned by the Bank. We are a legal entity separate and distinct from
the Bank. We rely primarily on dividends from the Bank to meet our
obligations. There are regulatory limitations on the payment of
dividends, directly or indirectly, to us from the Bank due to restrictions
applicable to federally chartered stock savings banks and banks that are
regulated by the FDIC. Accordingly, the debt securities will be
effectively subordinated to all existing and future liabilities of the Bank, and
holders of debt securities should look only to our assets for payments of the
debt securities.
Terms
of Debt Securities
The
indenture will provide that debt securities in separate series may be issued
from time to time without limitation as to aggregate principal
amount. We may specify a maximum aggregate principal amount
for the debt securities of any series. The debt securities are
to have such terms and provisions which are not inconsistent with the indenture,
including as to maturity, principal and interest, as we may
determine. The debt securities may be either senior or subordinated
debt securities, which may be issued as convertible debt securities or
exchangeable debt securities.
The
applicable prospectus supplement will set forth the price or prices at which the
debt securities to be offered will be issued and will describe the following
terms of such debt securities:
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the
title of the debt securities;
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any
limit on the aggregate principal amount of the debt securities or the
series of which they are a part;
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the
date or dates on which the principal of the debt securities will be
payable;
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the
rate or rates at which the debt securities will bear interest, if any, the
date or dates from which any such interest will accrue, the interest
payment dates on which any such interest will be payable and the regular
record date for any such interest payable on any interest payment
date;
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the
place or places where the principal of and any premium and interest on the
debt securities will be payable;
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the
period or periods within which, the price or prices at which and the terms
and conditions on which the debt securities may be redeemed, in whole or
in part, at our option;
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our
obligation, if any, to redeem or purchase the debt securities pursuant to
any sinking fund or analogous provision or at the option of the holder of
the debt security, and the period or periods within which, the price or
prices at which and the terms and conditions on which the debt securities
will be redeemed or purchased, in whole or in part, pursuant to any such
obligation;
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conversion
or exchange provisions, if any, including conversion or exchange prices or
rates and adjustments thereto;
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the
terms, if any, pursuant to which any debt securities will be subordinate
to any of our debt;
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the
denominations in which the debt securities will be issuable, if other than
denominations of $1,000 and any integral multiple
thereof;
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if
the amount of principal of or any premium or interest on the debt
securities may be determined with reference to an index or pursuant to a
formula, the manner in which such amounts will be
determined;
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if
other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or
interest on the debt securities will be payable (and the manner in which
the equivalent of the principal amount of the debt securities in the
currency of the United States of America is to be determined for any
purpose, including for the purpose of determining the principal amount
deemed to be outstanding at any
time);
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if
the principal of or any premium or interest on the debt securities is to
be payable, at our election or at the election of the holder, in one or
more currencies or currency units other than those in which the debt
securities are stated to be payable, the currency, currencies or currency
units in which payment of any such amount as to which such election is
made will be payable, the periods within which and the terms and
conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount is to be
determined);
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if
other than the entire principal amount of the debt securities, the portion
of the principal amount of the debt securities which will be payable upon
declaration of acceleration of
maturity;
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if
the principal amount payable at the stated maturity of the debt securities
will not be determinable as of any one or more dates prior to the stated
maturity, the amount which will be deemed to be such principal amount as
of any such date for any purpose, including the principal amount of the
debt securities which will be due and payable upon any maturity other than
the stated maturity or which will be deemed to be outstanding as of any
such date (or, in any such case, the manner in which such deemed principal
amount is to be determined);
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if
applicable, that debt securities, in whole or any specified part, are
defeasible pursuant to the provisions of the indenture described under
“Defeasance and Covenant Defeasance — Defeasance and Discharge” or
“Defeasance and Covenant Defeasance — Covenant Defeasance”, or under both
such captions;
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whether
the debt securities will be issuable in whole or in part in the form of
one or more global debt securities and, if so, the respective depositaries
for such global debt securities, the form of any legend or legends to be
borne by any such global security in addition to or in lieu of the legend
referred to under “Form, Exchange and Transfer — Global Debt Securities”
and, if different from those described under such caption, any
circumstances under which any such global debt security may be exchanged
in whole or in part for debt securities registered, and any transfer of
such global debt security in whole or in part may be registered, in the
names of persons other than the depositary for such global security or its
nominee;
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any
addition to or change in the events of default applicable to the debt
securities and any change in the right of the trustee or the holders to
declare the principal amount of the debt securities due and
payable;
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any
addition to or change in the covenants in the indenture applicable to the
debt securities; and
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any
other terms of debt securities not inconsistent with the provisions of the
indenture.
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Debt
securities, including original issue discount debt securities, may be sold at a
substantial discount below their principal amount. Certain special
United States federal income tax considerations (if any) applicable to debt
securities sold at an original issue discount may be described in the applicable
prospectus supplement. In addition, certain special United States
federal income tax or other considerations (if any) applicable to any debt
securities which are denominated in a currency or currency unit other than
United States dollars may be described in
9
the
applicable prospectus supplement. If we use any index to determine
the amount of payments of principal of, premium, if any, or interest, if any, on
any debt securities, we will also describe in the applicable prospectus
supplement the special United States federal income tax, accounting and other
considerations applicable to the debt securities.
Senior
Debt Securities
Payment
of the principal of, premium, if any, and interest on senior debt securities
will rank on a parity with all of our other unsecured and unsubordinated debt
securities.
Subordinated
Debt Securities
Payment
of the principal of, premium, if any, and interest on subordinated debt
securities will be junior in right of payment to the prior payment in full of
all of our unsubordinated debt. We will set forth in the applicable
prospectus supplement relating to any subordinated debt securities the
subordination terms of such securities as well as the aggregate amount of
outstanding debt, as of the most recent practicable date, that by its terms
would be senior to the subordinated debt securities. We will also set
forth in such prospectus supplement limitations, if any, on issuance of
additional senior debt.
Form,
Exchange and Transfer
The debt
securities of each series will be issuable only in fully registered form,
without coupons, and, unless otherwise specified in the applicable prospectus
supplement, only in denominations of $1,000 and integral multiples
thereof.
At the
option of the holder, subject to the terms of the indenture and the limitations
applicable to global debt securities, debt securities of each series will be
exchangeable for other debt securities of the same series of any authorized
denomination and of a like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to global debt
securities, you may present debt securities for exchange as provided above or
for registration of transfer (duly endorsed or with the form of transfer
endorsed thereon duly executed) at the office of the security registrar or at
the office of any transfer agent designated for such purpose. You
will not incur a service charge for any registration of transfer or exchange of
debt securities, but you must pay a sum sufficient to cover any tax or other
governmental charge as may be described in the indenture. Such
transfer or exchange will be effected upon the security registrar or such
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. We have appointed the
trustee as security registrar. Any transfer agent (in addition to the
security registrar) initially designated by us for any debt securities will be
named in the applicable prospectus supplement. We may at any time
designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts,
except that we will be required to maintain a transfer agent in each place of
payment for the debt securities of each series.
If the
debt securities of any series (or of any series and specified terms) are to be
redeemed in part, we will not be required to (a) issue, register the transfer of
or exchange any debt securities of that series (or of that series and specified
terms, as the case may be) during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any such debt
securities that may be selected for redemption and ending at the close of
business on the day of such mailing or (b) register the transfer of or exchange
any debt security so selected for redemption, in whole or in part, except the
unredeemed portion of the debt securities being redeemed in part.
Global
Debt Securities
Some or
all of a series of debt securities may be represented, in whole or in part, by
one or more global debt securities. Each global security will be
registered in the name of a depositary or its nominee identified in the
applicable prospectus supplement, will be deposited with such depositary or its
nominee or a custodian and will bear
10
a legend
regarding the restrictions on exchanges and registration of transfer referred to
below and any such other matters as may be provided for pursuant to the
indenture.
Notwithstanding
any provision of the indenture or any debt security described in this
prospectus, no global debt security may be exchanged in whole or in part for
debt securities registered, and no transfer of a global debt security in whole
or in part may be registered, in the name of any person except:
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by
the depositary to its nominee;
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by
a nominee of the depositary to the depositary or another nominee;
or
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by
the depositary or any nominee to a successor of the depositary, or a
nominee of the successor
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unless
(a) the depositary has notified us that it is unwilling or unable to
continue as depositary for such global debt security or has ceased to be
qualified to act as such as required by the indenture, (b) there shall have
occurred and be continuing an Event of Default with respect to the debt
securities represented by such global debt security or (c) there shall
exist such circumstances, if any, in addition to or in lieu of those described
above as may be described in the applicable prospectus
supplement. All securities issued in exchange for a global security
or any portion of a global debt security will be registered in such names as the
depositary may direct.
As long
as the depositary, or its nominee, is the registered holder of a global
security, the depositary or its nominee, as the case may be, will be considered
the sole owner and holder of such global debt security and the debt securities
represented by the global debt security for all purposes under the debt
securities and the indenture. Except in the limited circumstances
referred to above, you will not be entitled to have such global debt security or
any securities registered by the global debt security registered in your name,
will not receive or be entitled to receive physical delivery of certificated
debt securities in exchange of the global debt security and will not be
considered to be the owners or holders of such global debt security or any debt
securities represented by the global debt security for any purpose under the
debt securities or the indenture. All payments of principal of and
any premium and interest on a global debt security will be made to the
depositary or its nominee, as the case may be, as the holder of the global debt
security. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in definitive
form. These laws may impair the ability to transfer beneficial
interests in a global debt security.
Ownership
of beneficial interests in a global debt security will be limited to
institutions that have accounts with the depositary or its nominee
(“participants”) and to persons that may hold beneficial interests through
participants. In connection with the issuance of any global debt
security, the depositary or its nominee will credit, on its book-entry
registration and transfer system, the respective principal amounts of debt
securities represented by the global debt security to the accounts of its
participants. Ownership of beneficial interests in a global debt
security will be shown only on, and the transfer of those ownership interests
will be effected only through, records maintained by the depositary or its
nominee (with respect to participants’ interests) or any such participant (with
respect to interests of persons held by such participants on their
behalf). Payments, transfers, exchanges and others matters relating
to beneficial interests in a global debt security may be subject to various
policies and procedures adopted by the depositary from time to
time. We, the trustee or any agent of us or the trustee will not have
any responsibility or liability for any aspect of the depositary’s or any
participant’s records relating to, or for payments made on account of,
beneficial interests in a global debt security, or for maintaining, supervising
or reviewing any records relating to such beneficial interests.
We expect
that the depositary or its nominee, upon receipt of any principal, premium, if
any, or interest, if any, payment immediately will credit participants’ accounts
with amounts in proportion to their respective beneficial interests in the
principal amount of the global debt security as shown on the records of the
depositary or its nominee. We also expect that payments by
participants to you, as an owner of a beneficial interest in the global debt
security held through those participants, will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in “street
name.” These payments will be the responsibility of those
participants.
Secondary
trading in notes and debentures of corporate issuers is generally settled in
clearinghouse or next-day funds. In contrast, beneficial interests in
a global debt security, in some cases, may trade in the
11
depositary’s
same-day funds settlement system, in which secondary market trading activity in
those beneficial interests would be required by the depositary to settle in
immediately available funds. There is no assurance as to the effect,
if any, that settlement in immediately available funds would have on trading
activity in such beneficial interests. Also, settlement for purchases
of beneficial interests in a global debt security upon the original issuance
thereof may be required to be made in immediately available funds.
Payment
and Paying Agents
Unless
otherwise indicated in the applicable prospectus supplement, payment of interest
on a debt security on any interest payment date will be made to the person in
whose name such debt security (or one or more predecessor debt securities) is
registered at the close of business on the regular record date for such
interest.
Unless
otherwise indicated in the applicable prospectus supplement, principal of and
any premium and interest on the debt securities of a particular series will be
payable at the office of a paying agent or paying agents as we may designate for
such purpose from time to time, except that at our option payment of any
interest may be made by check mailed to the address of the person entitled to
such interest as such address appears in the security
register. Unless otherwise indicated in the applicable prospectus
supplement, we will designate the corporate trust office of the trustee in The
City of New York as our sole paying agent for payments with respect to debt
securities of each series. Any other paying agents initially
designated by us for the debt securities of a particular series will be named in
the applicable prospectus supplement. We may at any time designate
debt securities additional paying agents or rescind the designation of any
paying agent or approve a change in the office through which any paying agent
acts, except that we will be required to maintain a paying agent in each place
of payment for the debt securities of a particular series.
All
moneys or United States government obligations (including proceeds thereof)
deposited by us with the trustee or any paying agent for the payment of the
principal of or any premium or interest on any debt security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to us, and after repayment to us, you are
entitled to seek payment only from us as a general unsecured
creditor.
Consolidation,
Merger and Sale of Assets
The
indenture will provide that we will not consolidate with or merge into any other
person or convey, transfer or lease substantially all of our properties to any
person, and no person may consolidate with or merge into us unless (a) the
successor is organized under the laws of the United States or any state or the
District of Columbia, and the successor expressly assumes our obligations under
the indenture and the debt securities, (b) immediately after giving effect
to the transaction, no Event of Default, and no event which, after notice or
lapse of time, or both, would become an Event of Default, exists, and (c)
certain other conditions as prescribed in the indenture are met.
The
general provisions of the indenture do not afford holders of the debt securities
protection in the event of a highly leveraged or other transaction that we may
become involved in that may adversely affect holders of the debt
securities.
Events
of Default
Each of
the following will constitute an event of default under the indenture with
respect to debt securities of any series:
(a) our
failure to pay principal of or any premium on any debt security of that series
when due, whether at maturity, upon redemption, by accelerating the maturity or
otherwise;
(b) our
failure to pay any interest on any debt securities of that series when due,
continued for 30 days;
(c) our
failure to deposit any sinking fund payment, when due, in respect of any debt
security of that series;
12
(d) our
failure to observe or perform any other covenant contained in the indenture
(other than a covenant included in the indenture solely for the benefit of a
series other than that series), continued for 90 days after written notice
to us by the trustee, or the holders of at least 25% in principal amount of the
outstanding debt securities of that series, as provided in the
indenture;
(e) with
respect to senior debt securities, acceleration of any indebtedness for borrowed
money by us having an aggregate principal amount outstanding of at least $25
million, if such indebtedness has not been discharged, or such acceleration has
not been rescinded or annulled, within 15 days after written notice has
been given by the trustee, or the holders of at least 25% in principal amount of
the outstanding debt securities of that series, as provided in the indenture;
and
(f) certain
events related to our bankruptcy, insolvency or reorganization.
An Event
of Default for a particular series of debt securities does not necessarily
constitute an Event of Default for any other series of debt securities issued
under the indenture. If an Event of Default relating to the payment
of interest, principal or any sinking fund installment involving any series of
debt securities has occurred and is continuing, either the trustee or the
holders of not less than 25% in aggregate principal amount of the outstanding
debt securities of that series by notice as provided in the indenture may
declare the principal amount of the debt securities of that series (or, in the
case of any debt security that is an original issue discount security or the
principal amount of which is not then determinable, such portion of the
principal amount of such debt security, or such other amount in lieu of such
principal amount, as may be specified in the terms of such debt security) to be
due and payable immediately.
If an
Event of Default relating to the performance of other covenants occurs and is
continuing for a period of 90 days after notice of such, or if any other Event
of Default occurs and is continuing involving all of the series of senior debt
securities, then the trustee or the holders of not less than 25% in aggregate
principal amount of all of the series of senior debt securities outstanding may
declare the entire principal amount of all of the series of senior debt
securities due and payable immediately.
Similarly,
if an Event of Default relating to the performance of other covenants occurs and
is continuing for a period of 90 days after notice of such, or if any other
Event of Default occurs and is continuing involving all of the series of
subordinated debt securities, then the trustee or the holders of not less than
25% in aggregate principal amount of all of the series of subordinated debt
securities outstanding may declare the entire principal amount of all of the
series of subordinated debt securities due and payable immediately.
If,
however, the Event of Default relating to the performance of other covenants or
any other Event of Default that has occurred and is continuing is for less than
all of the series of senior debt securities or subordinated debt securities, as
the case may be, then, the trustee or the holders of not less than 25% in
aggregate principal amount of each affected series of the senior debt securities
or the subordinated debt securities, as the case may be, may declare the entire
principal amount of all debt securities of such affected series due and payable
immediately.
If
an Event of Default described in clause (f) above with respect to the debt
securities of any series at the time outstanding shall occur, the principal
amount of all the debt securities of that series (or, in the case of any such
original issue discount security or other debt security, such specified amount)
will automatically, and without any action by the trustee or any holder, become
immediately due and payable. After any such acceleration, but before
a judgment or decree based on acceleration, the holders of a majority in
aggregate principal amount of the outstanding debt securities of that series
may, under certain circumstances, rescind and annul such acceleration if all
Events of Default, other than the non-payment of accelerated principal (or other
specified amount), have been cured or waived as provided in the
indenture. For information as to waiver of defaults, see
“Modification and Waiver”.
Subject
to the provisions of the indenture relating to the duties of the trustee in case
an Event of Default shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under the indenture at the
request or direction of any of the holders, unless such holders shall have
offered to the trustee reasonable indemnity. Subject to such
provisions for the indemnification of the trustee, the holders of a majority in
aggregate principal amount of the outstanding debt securities of any series will
have the right to direct the time,
13
method
and place of conducting any proceeding for any remedy available to the trustee
or exercising any trust or power conferred on the trustee with respect to the
debt securities of that series.
No holder
of a debt security of any series will have any right to institute any proceeding
with respect to the indenture, or for the appointment of a receiver or a
trustee, or for any other remedy thereunder, unless (a) such holder has
previously given to the trustee written notice of a continuing Event of Default
with respect to the debt securities of that series, (b) the holders of at
least 25% in aggregate principal amount of the outstanding debt securities of
that series have made written request, and such holder or holders have offered
reasonable indemnity, to the trustee to institute such proceeding as trustee and
(c) the trustee has failed to institute such proceeding, and has not
received from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series a direction inconsistent with such
request, within 60 days after such notice, request and
offer. However, such limitations do not apply to a suit instituted by
a holder of a debt security for the enforcement of payment of the principal of
or any premium or interest on such debt security on or after the applicable due
date specified in such debt security.
We will
be required to furnish to the trustee annually a statement by certain of our
officers as to whether or not we, to our knowledge, are in default in the
performance or observance of any of the terms, provisions and conditions of the
indenture and, if so, specifying all such known defaults.
Modification
and Waiver
Modifications
and amendments of the indenture may be made by us and the trustee with the
consent of the holders of a majority in aggregate principal amount of the
outstanding debt securities of each series of senior or subordinated debt
securities, as the case may be, affected by such modification or amendment;
provided, however, that no such
modification or amendment may, without the consent of the holder of each
outstanding debt security affected,
(a) change
the stated maturity of the principal of, or any installment of principal of or
interest on, any debt security,
(b) reduce
the principal amount of, or any premium or interest on, any debt
security,
(c) reduce
the amount of principal of an original issue discount debt security or any other
debt security payable upon acceleration of the maturity,
(d) change
the place or currency of payment of principal of, or any premium or interest on,
any debt security,
(e)
modify any of the subordination provisions or the definition of senior
indebtedness applicable to any subordinated securities in a manner adverse to
the holders of those securities,
(f) impair
the right to institute suit for the enforcement of any payment on or with
respect to any debt security,
(g) reduce
the percentage in principal amount of outstanding debt securities of any series,
the consent of whose holders is required for modification or amendment of the
indenture,
(h) reduce
the percentage in principal amount of outstanding debt securities of any series
necessary for waiver of compliance with certain provisions of the indenture or
for waiver of certain defaults, or
(i)
modify such provisions with respect to modification and waiver.
The
holders of a majority in principal amount of the outstanding debt securities of
any series may waive compliance by us with certain restrictive provisions of the
indenture. The holders of a majority in principal amount of the
outstanding debt securities of any series may waive any past default under the
indenture, except a default in
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the
payment of principal, premium or interest and certain covenants and provisions
of the indenture which cannot be amended without the consent of the holder of
each outstanding debt security of such series affected.
The
indenture will provide that in determining whether the holders of the requisite
principal amount of the outstanding debt securities have given or taken any
direction, notice, consent, waiver or other action under the indenture as of any
date, (a) the principal amount of an original issue discount security that will
be deemed to be outstanding will be the amount of the principal thereof that
would be due and payable as of such date upon acceleration of the maturity to
such date, (b) if, as of such date, the principal amount payable at the stated
maturity of a debt security is not determinable (for example, because it is
based on an index), the principal amount of such debt security deemed to be
outstanding as of such date will be an amount determined in the manner
prescribed for such debt security and (c) the principal amount of a debt
security denominated in one or more foreign currencies or currency units that
will be deemed to be outstanding will be the U.S. dollar equivalent, determined
as of such date in the manner prescribed for such debt security, of the
principal amount of such debt security (or, in the case of a debt security
described in clause (a) or (b) above, of the amount described in such
clause). Certain debt securities, including those for whose payment
or redemption money has been deposited or set aside in trust for the holders and
those that have been fully defeased pursuant to the indenture, will not be
deemed to be outstanding.
Except in
certain limited circumstances, we will be entitled to set any day as a record
date for the purpose of determining the holders of outstanding debt securities
of any series entitled to give or take any direction, notice, consent, waiver or
other action under the indenture, in the manner and subject to the limitations
provided in the indenture. In certain limited circumstances, the
trustee will be entitled to set a record date for action by
holders. If a record date is set for any action to be taken by
holders of a particular series, such action may be taken only by persons who are
holders of outstanding debt securities of that series on the record
date. To be effective, such action must be taken by holders of the
requisite principal amount of such debt securities within a specified period
following the record date. For any particular record date, this
period will be 180 days or such other period as may be specified by us (or
the trustee, if it set the record date), and may be shortened or lengthened (but
not beyond 180 days) from time to time.
Defeasance
and Covenant Defeasance
If and to
the extent indicated in the applicable prospectus supplement, we may elect, at
our option at any time, to have the provisions of Section 1302 of the indenture,
relating to defeasance and discharge of indebtedness, or Section 1303 of the
indenture, relating to defeasance of certain restrictive covenants in the
indenture, applied to the debt securities of any series, or to any specified
part of a series.
Defeasance and
Discharge. The indenture will provide that, upon our exercise
of our option (if any) to have Section 1302 of the indenture applied to the debt
securities, we will be discharged from all our obligations (and, if applicable,
provisions relating to subordination will cease to be effective) with respect to
such debt securities (except for certain obligations to exchange or register the
transfer of debt securities, to replace stolen, lost or mutilated debt
securities, to maintain paying agencies and to hold moneys for payment in trust)
upon the deposit in trust for the benefit of the holders of such debt securities
of money or United States government obligations, or both, which, through the
payment of principal and interest in respect thereof in accordance with their
terms, will provide money in an amount sufficient to pay the principal of and
any premium and interest on such debt securities on the respective stated
maturities in accordance with the terms of the indenture and such debt
securities. Such defeasance or discharge may occur only if, among
other things, we have delivered to the trustee an opinion of counsel to the
effect that we have received from, or there has been published by, the United
States Internal Revenue Service a ruling, or there has been a change in tax law,
in either case to the effect that holders of such debt securities will not
recognize gain or loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge were not to occur.
Defeasance of Certain
Covenants. The indenture provides that, upon our exercise of
our option (if any) to have Section 1303 of the indenture applied to the
debt securities, we may omit to comply with certain restrictive covenants of the
indenture and any that may be described in the applicable prospectus supplement,
and the occurrence of certain Events of Default, which are described above in
clause (d) (with respect to such restrictive covenants) and clause (e)
under “Events of Default” and any that may be described in the applicable
prospectus
15
supplement,
will be deemed not to be or result in an Event of Default, in each case with
respect to such debt securities. We, in order to exercise such
option, will be required to deposit, in trust for the benefit of the holders of
such debt securities, money or United States government obligations, or both,
which, through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount sufficient to pay
the principal of and any premium and interest on such debt securities on the
respective stated maturities in accordance with the terms of the indenture and
such debt securities. We will also be required, among other things,
to deliver to the trustee an opinion of counsel to the effect that holders of
such debt securities will not recognize gain or loss for federal income tax
purposes as a result of such deposit and defeasance of certain obligations and
will be subject to federal income tax on the same amount, in the same manner and
at the same times as would have been the case if such deposit and defeasance
were not to occur. In the event we exercised this option with respect
to any debt securities and such debt securities were declared due and payable
because of the occurrence of any Event of Default, the amount of money and
United States government obligations so deposited in trust would be sufficient
to pay amounts due on such debt securities at the time of their respective
stated maturities but may not be sufficient to pay amounts due on such debt
securities upon any acceleration resulting from such Event of
Default. In such case, we would remain liable for such
payments.
Notices
Notices
to holders of debt securities will be given by mail to the addresses of such
holders as they may appear in the security register.
Title
We, the
trustee and any of our agents or the trustee may treat the person in whose name
a debt security is registered as the absolute owner thereof (whether or not such
debt security may be overdue) for the purpose of making payment and for all
other purposes.
Governing
Law
The
indenture and the debt securities will be governed by, and construed in
accordance with, the law of the State of New York.
Regarding
the Trustee
The
trustee will have all the duties and responsibilities of an indenture trustee
specified in the Trust Indenture Act. The trustee is not required to
expend or risk its own funds or otherwise incur financial liability in
performing its duties or exercising its rights and powers if it reasonably
believes that it is not reasonably assured of repayment or adequate
indemnity.
DESCRIPTION
OF COMMON STOCK
General
We are
authorized to issue up to 125,000,000 shares of common stock, par value $.01 per
share. As of March 31, 2009, there were 51,122,319 shares of common
stock issued and 34,179,900 shares of common stock outstanding. Our
common stock is listed on the NASDAQ National Market under the symbol
“DCOM.”
Dividends
We can
pay dividends out of statutory surplus or from certain net profits if, as and
when declared by our board of directors (the “Board”). The payment of
dividends is subject to limitations that are imposed by law and applicable
regulations. The holders of common stock are entitled to receive and
share equally in such dividends as may be declared by the Board out of funds
legally available therefor. Holders of preferred stock that may be
issued in the future may have a priority over the holders of common stock with
respect to dividends. See “Description of Preferred
Stock.”
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Voting
Rights
Except as
discussed in “— Limitation on Voting Rights,” each holder of common stock is
entitled to one vote per share of common stock on all matters voted upon by our
stockholders, including the election of directors, and do not have any right to
cumulate votes in the election of directors. Holders of preferred
stock will not have voting rights except in certain limited circumstances,
although the Board may provide voting rights for any newly created series of
preferred stock that may be issued in the future. See “Description of
Preferred Stock.”
Limitation
on Voting Rights
The
Certificate of Incorporation provides that any record owner of any outstanding
common stock that is beneficially owned, directly or indirectly, by a person who
beneficially owns in excess of 10% of the then-issued and outstanding shares of
common stock (the “limit”) shall be entitled to cast only one one-hundredth of
one vote per share for each share in excess of the limit. Beneficial
ownership is determined pursuant to Rule 13d-3 under the Securities Exchange Act
of 1934, and includes shares beneficially owned by such person or any of his or
her affiliates (as defined in the Certificate of Incorporation), shares that
such person or his or her affiliates have the right to acquire upon the exercise
of conversion rights or options and shares as to which such person and his or
her affiliates have or share investment or voting power, but shall not include
(i) shares beneficially owned by any pension, profit-sharing, stock bonus, ESOP
or other compensation plan maintained by us or the Bank, or by any trust or
custodial arrangement established in connection with any such plan, which shares
are not specifically allocated to a person’s personal account, or (ii) shares
that are subject to a revocable proxy and that are not otherwise beneficially
owned or deemed by us to be beneficially owned by such person and his or her
affiliates. The Certificate of Incorporation further provides that
this provision limiting voting rights may only be amended upon the vote of
two-thirds of the votes eligible to be cast by holders of all outstanding shares
of voting stock (after giving effect to the limitation on voting
rights).
No
Preemptive Rights or Redemption
Holders
of our common stock are not entitled to preemptive rights with respect to any
shares that may be issued. Our common stock is not subject to
redemption.
Fully
Paid and Nonassessable
When we
issue shares of our common stock, the shares will be fully paid and
nonassessable, which means the full purchase price of the shares will have been
paid and holders of the shares will not be assessed any additional monies for
the shares.
Liquidation
Rights
In the
event of any liquidation, dissolution or winding-up of the Bank, we, as the
holder of the Bank capital stock, would be entitled to receive, after payment or
provision for payment of all debts and liabilities of the Bank (including all
deposit accounts and accrued interest thereon) and after distribution of the
balance in the special liquidation accounts established for the benefit of
certain account holders of the Bank in connection with its conversion to stock
form, all assets of the Bank available for distribution. In the event
of our liquidation, dissolution or winding-up, the holders of common stock would
be entitled to receive, after payment or provision for payment of all our debts
and liabilities, all of our assets available for distribution. If
preferred stock is issued, the holders thereof may have a priority over the
holders of common stock in the event of our liquidation, dissolution or
winding-up.
Dime
Community Dividend Reinvestment and Common Stock Purchase Plan
Pursuant
to our Dividend Reinvestment and Purchase Plan, or “DRIP,” we provide eligible
stockholders with a method of investing cash dividends and optional cash
payments at 100% of the then-current market price (as determined in accordance
with the DRIP) in additional shares of our common stock without payment of any
brokerage commission or service charge. The DRIP includes some dollar
limitations on participation. Stockholders
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who are
eligible to elect dividend reinvestment may choose to participate in the DRIP
with respect to some of their shares and not to participate with respect to
others. If stockholders choose not to participate in the DRIP with
respect to some or all of their shares, any dividends payable on those shares
will be paid in cash and will not be reinvested in our common
stock.
Issuance
of Stock
In
certain instances, the issuance of authorized but unissued shares of common
stock or preferred stock may have an anti-takeover effect. The
authority of the Board to issue preferred stock with rights and privileges,
including voting rights, as it may deem appropriate, may enable the Board to
prevent a change of control despite a shift in ownership of our common
stock. In addition, the Board’s authority to issue additional shares
of common stock may help deter or delay a change of control by increasing the
number of shares needed to gain control.
Certain
Anti-Takeover Provisions
The
Certificate of Incorporation and Bylaws contain a number of provisions that may
be deemed to have the effect of discouraging or delaying attempts to gain
control of us, including provisions (i) classifying the Board into three classes
with each class to serve for three years with one class being elected annually;
(ii) providing the Board with the exclusive power to fix, from time to time, the
size of the Board; (iii) authorizing a majority vote of the Board then in office
to fill vacancies in the Board; (iv) providing that a director may be removed
prior to the expiration of his or her term only for cause, upon the vote of 80%
of the shares entitled to be voted in the election of directors; (v) allowing
the Board to give due consideration to constituencies other than our
stockholders in evaluating acquisition or merger proposals; (vi) requiring the
approval of the holders of at least 80% of our outstanding shares of voting
stock to approve certain business combinations; (vii) prohibiting cumulative
voting for any purpose; (viii) providing that any action required or permitted
to be taken by our stockholders may be taken only at an annual or special
meeting and prohibiting stockholder action by written consent in lieu of a
meeting; (ix) providing that special meetings of stockholders may be called only
by the Board; and (x) providing that certain of the foregoing provisions may be
amended only by the affirmative vote of at least two-thirds of the outstanding
stock entitled to vote or by a majority of the authorized number of directors of
the Board. The foregoing provisions could impede a change of
control. In particular, classification of the Board has the effect of
decreasing the number of directors that could be elected in a single year by any
person who seeks to elect its designees to a majority of the seats on the
Board. Furthermore, allowing the Board to consider nonstockholder
constituencies may have the effect of increasing the Board’s discretion to
reject acquisition or merger proposals.
Transfer
Agent
The
transfer agent for the common stock is American Stock Transfer and Trust
Company.
DESCRIPTION
OF PREFERRED STOCK
This
section describes the general terms and provisions of the preferred stock
offered by this prospectus, other than pricing and related terms disclosed for a
particular issuance in an applicable prospectus supplement. You
should read the particular terms of any series of preferred stock we offer in
any prospectus supplement relating to such series, together with the more
detailed provisions of our amended certificate of incorporation and the
certificate of designations with respect to each particular series of preferred
stock, which will be filed as an exhibit to a document incorporated by reference
into this prospectus. The prospectus supplement also will state
whether any of the terms summarized below do not apply to the series of
preferred stock being offered.
General
Our
amended certificate of incorporation provides that the Board can issue, without
stockholder action, a maximum of 9,000,000 shares of preferred stock, par value
$.01 per share, in one or more series and with such terms and conditions, at
such times and for such consideration, as the Board may
determine. No shares of preferred stock were outstanding at the
date of this prospectus. The Board can determine the
following:
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the
voting powers, if any, of the holders of stock of such series in addition
to any voting rights affirmatively required by
law;
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the
rights of shareholders in respect of dividends, including, without
limitation, the rate or rates per annum and the time or times at which (or
the formula or other method pursuant to which such rate or rates and such
time or times may be determined) and conditions upon which the holders of
stock of such series will be entitled to receive dividends and other
distributions, and whether any such dividends will be cumulative or
noncumulative and, if cumulative, the terms upon which such dividends will
be cumulative;
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whether
the stock of each such series shall be redeemable by us at our option or
the holder of the stock, and, if redeemable, the terms and conditions upon
which the stock of such series may be
redeemed;
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the
amount payable and the rights or preferences to which the holders of the
stock of such series will be entitled upon any voluntary or involuntary
liquidation, dissolution or
winding-up;
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the
terms, if any, upon which shares of stock of such series will be
convertible into, or exchangeable for, shares of stock of any other class
or classes or of any other series of the same or any other class or
classes, including the price or prices or the rate or rates of conversion
or exchange and the terms of adjustment, if any;
and
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any
other designations, preferences, and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions
thereof, so far as they are not inconsistent with the provisions of the
Certificate of Incorporation and to the full extent now or hereafter
permitted by the laws of the State of
Delaware.
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Prior to
the issuance of any series of preferred stock, the Board will adopt resolutions
creating and designating the series as a series of preferred stock and a
certificate of designations setting forth the preferences, rights, limitations
and other terms of such series will be filed with the Secretary of State of
Delaware.
The
preferred stock will have the dividend, liquidation, redemption and voting
rights stated in this section unless the applicable prospectus supplement
indicates otherwise. You should read the applicable prospectus
supplement relating to the particular series of the preferred stock being
offered for specific terms, including:
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the
title, stated value and liquidation preferences of the preferred stock and
the number of shares offered;
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the
initial public offering price at which the preferred stock will be
issued;
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the
dividend rate(s) (or method of calculation), the dividend periods, the
dates on which dividends shall be payable and whether these dividends will
be cumulative or noncumulative and, if cumulative, the dates at which the
dividends shall begin to cumulate;
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any
redemption or sinking fund provisions;
and
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any
additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and
restrictions.
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When we
issue shares of preferred stock, the shares will be fully paid and
nonassessable, which means the full purchase price of the shares will have been
paid and holders of the shares will not be assessed any additional monies for
the shares. Unless the applicable prospectus supplement indicates
otherwise, each series of the preferred stock will rank equally with any
outstanding shares of our preferred stock and each other series of the preferred
stock. Unless the applicable prospectus supplement states otherwise,
the preferred stock will have no preemptive rights to subscribe for any
additional securities which are issued by us, meaning, the holders of shares of
preferred stock will have no right to buy any portion of the issued
securities.
In
addition, unless the applicable prospectus indicates otherwise, we will have the
right to “reopen” a previous issue of a series of preferred stock by issuing
additional preferred stock of such series.
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The
transfer agent, registrar, dividend disbursing agent and redemption agent for
shares of each series of preferred stock will be named in the prospectus
supplement relating to such series.
Dividends
The
holders of the preferred stock of each series will be entitled to receive cash
dividends out of funds legally available, when, as and if, declared by the Board
or a duly authorized committee of the Board, at the rates and on the dates
stated in the applicable prospectus supplement. These rates may be
fixed, or variable, or both. If the dividend rate is variable, the
applicable prospectus supplement will describe the formula used to determine the
dividend rate for each dividend period. We will pay dividends to the
holders of record as they appear on our stock books on the record dates
determined by the Board or authorized committee. Unless the
applicable prospectus supplement indicates otherwise, dividends on any series of
preferred stock will be cumulative.
The Board
will not declare and pay a dividend on any of our stock ranking as to dividends,
equal with or junior to the preferred stock unless full dividends on the
preferred stock have been declared and paid (or declared and sufficient money
was set aside for payment).
Until
dividends are paid in full or declared and set aside for payment on any series
of preferred stock ranking equal with the preferred stock as to
dividends:
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we
will declare all dividends pro rata among the preferred stock of each
series, so that the amount of dividends declared per share on each series
will have the same relationship to each other that accrued dividends per
share on each series of preferred stock and other preferred stock bear to
each other;
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other
than the pro rata dividends, we will not declare or pay or set aside for
payment dividends, or declare or make any other distribution on any
security ranking junior to or equal with the preferred stock offered under
this prospectus as to dividends or at liquidation (except dividends or
distributions paid for in shares of, or options, warrants or rights to
subscribe or purchase shares of securities ranking junior to or equal with
the preferred stock as to dividends and at liquidation);
and
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we
will not redeem, purchase or otherwise acquire for any consideration (or
have any monies paid to or set aside in a sinking fund) any securities
ranking junior to or equal with the preferred stock as to dividends or at
liquidation (except by conversion into or exchange for our stock which
ranks junior to the preferred stock as to dividends and at
liquidation).
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We
will not pay interest, or money in lieu of interest, for any dividend
payments on any series of the preferred stock that are in
arrears.
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Voting
Rights
The
holders of shares of preferred stock will have no voting rights,
except:
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as
otherwise stated in the applicable prospectus
supplement;
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as
otherwise stated in the statement with respect to shares establishing such
series; or
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as
required by applicable law.
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Under
regulations of the Office of Thrift Supervision, if the holders of any series of
preferred stock become entitled to vote for the election of directors, that
series may then be considered a class of voting securities. A holder
of 25% or more of a series may then be subject to regulation as a savings and
loan holding company under the Home Owners Loan Act or a bank holding company
under the Bank Holding Company Act depending on the nature of the
acquiror. In addition, at the time that the series are deemed a class
of voting securities, any bank holding company may be required to obtain the
prior approval of the Federal Reserve Board in order to acquire 5% or more of
that series, any savings and loan holding company may be required to obtain the
prior approval of the Office of Thrift Supervision in order to acquire 5% or
more of that series and any person other than a savings and loan or a bank
holding company may be required to obtain the prior approval of the Office of
Thrift Supervision to acquire 10% or more of that series.
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Redemption
A series
of the preferred stock may be redeemable, in whole or in part, at our option,
and may be subject to mandatory redemption under a sinking fund or otherwise as
described in the applicable prospectus supplement. The preferred
stock that we redeem will be restored to the status of authorized but unissued
shares of preferred stock which we may issue in the future.
If a
series of preferred stock is subject to mandatory redemption, the applicable
prospectus supplement will specify the number of shares that we will redeem in
each year and the redemption price per share together with an amount equal to
all accrued and unpaid dividends on those shares to the redemption
date. The applicable prospectus supplement will state whether the
redemption price can be paid in cash or other property. If the
redemption price is to be paid only from the net proceeds of issuing our capital
stock, the terms of the series of preferred stock may provide that, if the
capital stock has not been issued or if the net proceeds are not sufficient to
pay the full redemption price then due, the shares relating to the series of the
preferred stock shall automatically and mandatorily be converted into shares of
our capital stock under the conversion provisions of the applicable prospectus
supplement.
If fewer
than all of the outstanding shares of any series of the preferred stock are to
be redeemed, the redemption will be made in a manner that the Board decides is
equitable.
Unless we
default in the payment of the redemption price, dividends will cease to accrue
after the redemption date on shares of preferred stock called for redemption and
all rights of holders of such shares will terminate except for the right to
receive the redemption price.
Conversion
and Exchange
If any
series of offered preferred stock is convertible into or exchangeable for any
other class or series of our capital stock, the applicable prospectus supplement
relating to that series will describe the terms and conditions governing the
conversions and exchanges.
Rights
at Liquidation
If we
voluntarily or involuntarily liquidate, dissolve or wind up our business, the
holders of shares of each series of preferred stock and any other securities
that have rights equal to that series of preferred stock under these
circumstances, will be entitled to receive out of our assets that are available
for distribution to stockholders:
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liquidation
distributions in the amount stated in the applicable prospectus
supplement; and
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all
accrued and unpaid dividends (whether or not earned or declared), before
any distribution to holders of common stock or of any securities ranking
junior to the series of preferred
stock.
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Neither
the sale of all or any part of our property and business, nor our merger into or
consolidation with any other corporation, nor the merger or consolidation of any
other corporation with or into us, will be deemed to be a dissolution,
liquidation or winding up.
If our
assets are insufficient to pay all amounts to which holders of preferred stock
are entitled, we will make no distribution on the preferred stock or on any
other securities ranking equal to the preferred stock unless we make a pro rata
distribution to those holders. After we pay the full amount of the
liquidation distribution to which the holders are entitled, the holders will
have no right or claim to any of our remaining assets.
DESCRIPTION
OF WARRANTS
We may
issue warrants for the purchase of common stock. Warrants may be
issued separately or together with common stock or preferred stock and may be
attached to or separate from such common stock or preferred
stock. Each series of warrants will be issued under a separate
warrant agreement to be entered into between us and a bank or trust corporation,
as warrant agent, all as set forth in the prospectus supplement relating to the
particular
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issue of
offered warrants. The warrant agent will act solely as our agent in
connection with the warrants and will not assume any obligation or relationship
of agency or trust for or with any holders of warrants or beneficial owners of
warrants. Copies of the forms of warrant agreements, including the
forms of warrant certificates representing the warrants, will be filed as
exhibits to a document incorporated by reference into this
prospectus.
This
section describes the general terms and provisions of the warrants offered
hereby. The applicable prospectus supplement will describe the
specific terms of any issuance of warrants. You should read the
particular terms of any warrants we offer in any prospectus supplement, together
with the more detailed form of warrant agreement and the form of warrant
certificate. The prospectus supplement also will state whether any of
the terms summarized below do not apply to the warrants being
offered.
General
The
applicable prospectus supplement will describe the terms of the warrants,
including the following where applicable:
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the
title of the warrants;
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the
offering price of the warrants, if
any;
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the
aggregate number of warrants;
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the
designation and terms of the common stock that is purchasable upon
exercise of the warrants;
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the
designation and terms of the securities with which the warrants are issued
and the number of warrants issued with each such
security;
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the
date after which the warrants and any securities issued with the warrants
will be separately transferable;
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the
number of shares of common stock purchasable upon exercise of a warrant
and the purchase price;
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the
dates on which the right to exercise the warrants begins and
expires;
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the
minimum or maximum number of warrants that may be exercised at any one
time;
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the
currency, currencies or currency units in which the offering price, if
any, and the exercise price are
payable;
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a
discussion of certain United States federal income tax
considerations;
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any
antidilution provisions of the
warrants;
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any
redemption or call provisions applicable to the warrants;
and
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any
additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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Warrant
certificates may be exchanged for new warrant certificates of different
denominations, may be presented for registration of transfer, and may be
exercised at the corporate trust office of the warrant agent or any other office
indicated in the applicable prospectus supplement. Prior to the
exercise of any warrants to purchase common stock, holders of such warrants will
not have any rights of holders of the common stock purchasable upon such
exercise, including the right to receive payments of dividends, if any, on the
common stock purchasable upon such exercise or to exercise any applicable right
to vote.
Exercise
of Warrants
Each
warrant will entitle the holder thereof to purchase such number of shares of
common stock at such exercise price as shall in each case be set forth in, or
calculable from, the prospectus supplement relating to the offered
warrants. After the close of business on the expiration date of the
warrants (or such later date to which such expiration date may be extended by
us), unexercised warrants will become void.
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Warrants
may be exercised by delivering to the warrant agent payment as provided in the
applicable prospectus supplement of the amount required to purchase the common
stock purchasable upon such exercise together with certain information set forth
on the reverse side of the warrant certificate. Warrants will be
deemed to have been exercised upon receipt of payment of the exercise price,
subject to the receipt, within five business days, of the warrant certificate
evidencing such warrants. Upon receipt of such payment and the
warrant certificate properly completed and duly executed at the corporate trust
office of the warrant agent or any other office indicated in the applicable
prospectus supplement, we will, as soon as practicable, issue and deliver the
common stock purchasable upon such exercise. If fewer than all of the
warrants represented by the warrant certificate are exercised, a new warrant
certificate will be issued for the remaining number of warrants.
Amendments
and Supplements to Warrant Agreements
We and
the relevant warrant agent may, with the consent of the holders of at least a
majority in number of the outstanding unexercised warrants affected, modify or
amend the warrant agreement and the terms of the warrants. However,
the warrant agreements may be amended or supplemented without the consent of the
holders of the warrants issued thereunder to effect changes that are not
inconsistent with the provisions of the warrants and that do not adversely
affect the interests of the holders of the warrants. Notwithstanding
the foregoing, no such modification or amendment may, without the consent of the
holders of each warrant affected:
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reduce
the amount receivable upon exercise, cancellation or
expiration;
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shorten
the period of time during which the warrants may be
exercised;
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otherwise
materially and adversely affect the exercise rights of the beneficial
owners of the warrants; or
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reduce
the percentage of outstanding warrants whose holders must consent to
modification or amendment of the applicable warrant agreement or the terms
of the warrants.
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Antidilution
and Other Adjustments
Unless
otherwise indicated in the applicable prospectus supplement, the exercise price
of, and the number of shares of common stock covered by, a warrant are subject
to adjustment in certain events, including:
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the
issuance of common stock as a dividend or distribution on the common
stock;
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subdivisions
and combinations of the common
stock;
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the
issuance to all holders of common stock of capital stock rights entitling
them to subscribe for or purchase common stock within 45 days after the
date fixed for the determination of the stockholders entitled to receive
such capital stock rights, at less than the current market price;
and
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the
distribution to all holders of common stock of evidences of our
indebtedness or assets (excluding certain cash dividends and distributions
described below) or rights or warrants (excluding those referred to
above).
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We may,
in lieu of making any adjustment in the exercise price of, and the number of
shares of common stock covered by, a warrant, make proper provision so that each
holder of such warrant who exercises such warrant (or any portion
thereof):
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·
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before
the record date for such distribution of separate certificates, shall be
entitled to receive upon such exercise shares of common stock issued with
capital stock rights; and
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after
such record date and prior to the expiration, redemption or termination of
such capital stock rights, shall be entitled to receive upon such
exercise, in addition to the shares of common stock issuable upon such
exercise, the same number of such capital stock rights as would a holder
of the number of shares of common stock that such warrants so exercised
would have entitled the holder thereof to acquire in accordance with the
terms and provisions applicable to the capital stock rights if such
warrant was exercised immediately prior to the record date for such
distribution.
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Common
stock owned by or held for our account or for the account of any of our
majority-owned subsidiaries will not be deemed outstanding for the purpose of
any adjustment.
No
adjustment in the exercise price of, and the number of shares of common stock
covered by, a warrant will be made for regular quarterly or other periodic or
recurring cash dividends or distributions of cash dividends or distributions to
the extent paid from retained earnings. Except as stated above, the
exercise price of, and the number of shares of common stock covered by, a
warrant will not be adjusted for the issuance of common stock or any securities
convertible into or exchangeable for common stock, or securities carrying the
right to purchase any of the foregoing.
In the
case of a reclassification or change of the common stock, a consolidation or
merger involving us or sale or conveyance to another corporation of our property
and assets as an entirety or substantially as an entirety, in each case as a
result of which holders of our common stock shall be entitled to receive stock,
securities, other property or assets (including cash) with respect to or in
exchange for such common stock, the holders of the warrants then outstanding
will be entitled thereafter to convert such warrants into the kind and number of
shares of stock and amount of other securities or property which they would have
received upon such reclassification, change, consolidation, merger, sale or
conveyance had such warrants been exercised immediately prior to such
reclassification, change, consolidation, merger, sale or
conveyance.
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PLAN
OF DISTRIBUTION
We may
sell the securities:
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through
underwriters or dealers, whether individually or through an underwriting
syndicate led by one or more managing
underwriters;
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directly
to one or more purchasers; or
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through
agents.
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The
distribution of the securities may be effected, from time to time, in one or
more transactions:
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·
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at
a fixed price, or prices which may be changed from time to
time;
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·
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at
market prices prevailing at the time of
sale;
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·
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at
prices related to those prevailing market prices;
or
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at
negotiated prices.
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The
applicable prospectus supplement will include the names of underwriters, dealers
or agents retained. The applicable prospectus supplement will also
include the purchase price of the securities, our proceeds from the sale, any
underwriting discounts or commissions and other items constituting underwriters’
compensation, and any securities exchanges on which the securities are
listed.
The
underwriters will acquire the securities for their own account. They
may resell the securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase
the securities will be subject to some conditions. The underwriters
will be obligated to purchase all the securities offered if any of the
securities are purchased. Any initial public offering price and any
discounts or concessions allowed or re-allowed or paid to dealers may be changed
from time to time.
Until the
distribution of the securities is completed, rules of the SEC may limit the
ability of any underwriters and selling group members to bid for and purchase
the securities. As an exception to these rules, underwriters are
permitted to engage in some transactions that stabilize the price of the
securities. Such transactions consist of bids or purchases for the
purpose of pegging, fixing or maintaining the price of the securities, so long
as stabilizing bids do not exceed a specified maximum.
The
underwriters may create a short position in the securities of as much as 15-20%
by selling more securities than are set forth on the cover page of the
applicable prospectus supplement. A prospectus will be delivered to
each purchaser of securities in these “short sales,” and we understand that each
such purchaser will be entitled to the same remedies under the Securities Act of
1933 as if the purchaser purchased securities in this offering in a transaction
that is not a short sale. If a short position is created in
connection with the offering, the underwriters may engage in syndicate covering
transactions by purchasing securities in the open market. The
underwriters may also elect to reduce any short position by exercising all or
part of the over-allotment option, if any.
The lead
underwriters may also impose a penalty bid on other underwriters and selling
group members participating in an offering. This means that if the
lead underwriters purchase securities in the open market to reduce the
underwriters’ short position or to stabilize the price of the securities, they
may reclaim the amount of any selling concession from the underwriters and
selling group members who sold those securities as part of the
offering.
In
general, purchases of a security for the purpose of stabilization or to reduce a
short position could cause the price of the security to be higher than it might
be in the absence of such purchases. The imposition of a penalty bid
might also have an effect on the price of a security to the extent that it were
to discourage resales of the security before the distribution is
completed.
25
We do not
make any representation or prediction as to the direction or magnitude of any
effect that the transactions described above might have on the price of the
securities. In addition, we do not make any representation that
underwriters will engage in such transaction or that such transactions, once
commenced, will not be discontinued without notice.
Underwriters,
dealers, and agents that participate in the distribution of the securities may
be underwriters as defined in the Securities Act of 1933, and any discounts or
commissions received by them from us and any profit on the resale of the
securities by them may be treated as underwriting discounts and commissions
under the Securities Act.
We may
have agreements with the underwriters, dealers, and agents to indemnify them
against some civil liabilities, including liabilities under the Securities Act
of 1933, or to contribute to payments which the underwriters, dealers or agents
may be required to make.
Underwriters,
dealers and agents may engage in transactions with, or perform services for, us
or our subsidiaries in the ordinary course of their businesses.
We may
authorize underwriters, dealers and agents to solicit offers by some specified
institutions to purchase securities from us at the public offering price stated
in the applicable prospectus supplement under delayed delivery contracts
providing for payment and delivery on a specified date in the
future.
These
contracts will be subject only to those conditions included in the applicable
prospectus supplement, and the applicable prospectus supplement will state the
commission payable for solicitation of these contracts.
We may
enter into derivative transactions with third parties, or sell securities not
covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in
connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including in short
sale transactions. If so, the third parties may use securities
pledged by us or borrowed from us or others to settle those sales or to close
out any related open borrowings of stock, and may use securities received from
us in settlement of those derivatives to close out any related open borrowings
of stock. The third parties in such sale transactions will be
underwriters as defined in the Securities Act of 1933 and, if not identified in
this prospectus, will be identified in the applicable prospectus supplement (or
a post-effective amendment).
Unless
the applicable prospectus supplement states otherwise, all securities, except
for common stock, will be new issues of securities with no established trading
market. We may elect to list any series of preferred stock on an
exchange, but we are not obligated to do so. Any underwriters who
purchase securities from us for public offering and sale may make a market in
those securities, but these underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. We cannot
assure you that there will be a trading market for any securities, and, if a
trading market for any securities does develop, we cannot assure you that such
market will be liquid.
This
prospectus may also be used in connection with any issuance of shares of common
stock upon exercise of a warrant if such issuance is not exempt from the
registration requirements of the Securities Act of 1933.
VALIDITY
OF SECURITIES
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the
securities offered by us pursuant to this prospectus will be passed upon for us
by Sullivan & Cromwell LLP, New York, New York. If the validity of the
securities will be passed upon by counsel for any underwriters, dealers or
agents, such counsel will be named in the applicable prospectus
supplement.
26
EXPERTS
The
consolidated financial statements, incorporated by reference in this
registration statement, from Dime Community’s Annual Report on Form 10-K for the
year ended December 31, 2008, and the effectiveness of Dime Community’s internal
control over financial reporting have been audited by Deloitte & Touche LLP,
an independent registered public accounting firm, as stated in their reports,
which are incorporated herein by reference. Such financial statements
have been so incorporated in reliance upon the reports of such firm given upon
their authority as experts in accounting and auditing.
27
DIME
COMMUNITY BANCSHARES, INC.
Debt
Securities
Common
Stock
Preferred
Stock
Warrants
PROSPECTUS