Delaware
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000-27782
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11-3297463
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(State or other jurisdiction of
incorporation or organization)
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(Commission File Number)
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(IRS Employer
Identification No.)
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300 Cadman Plaza West, 8th Floor
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Brooklyn, New York
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11201
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(Address of principal executive offices)
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(Zip Code)
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☒
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4c)
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Title of each class
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Trading
Symbol(s)
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Name of each exchange on which registered
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Common Stock, $0.01 Par Value
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DCOM
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The Nasdaq Stock Market, LLC
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Preferred Stock, $0.01 Par Value
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DCOMP
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The Nasdaq Stock Market, LLC
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(d)
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Exhibits.
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DIME COMMUNITY BANCSHARES, INC.
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DATE: September 17, 2020
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By:
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/s/ Patricia M. Schaubeck
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Patricia M. Schaubeck
Executive Vice President – General Counsel
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1.
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Definitions.
Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger Agreement. The following definition also applies to this Agreement:
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a.
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Beneficial Ownership. For
purposes of this Agreement, the terms “beneficial owner” and “beneficially own” shall have the meaning set forth in Rule 13d-3
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promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). |
2.
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Effectiveness;
Termination. This Agreement shall be effective upon signing. This Agreement shall automatically terminate and be null and void and of no effect upon the earliest of (i) the conclusion of the meeting (whether annual or special
and any adjournment or postponement thereof) of the DCB shareholders to vote upon the Merger Agreement or any related matter (the “DCB Shareholder Meeting”), (ii) the date of any amendment, waiver or modification of the Merger Agreement
without the Shareholder’s prior written consent that has the effect of (x) changing the amount of the Merger Consideration, (y) changing the form of the Merger Consideration, in each case, payable pursuant to the Merger Agreement in effect
on the date of this Agreement or (z) otherwise affecting the Shareholder in a materially adverse manner, or (iii) if the Merger Agreement is terminated for any reason in accordance with its terms, as of the date of the termination of the
Merger Agreement; provided that (i) this Section 2 and Sections 8 through 13 hereof shall survive any such
termination, and (ii) such termination shall not relieve any party of any liability or damages resulting from any willful or material breach of any of its representations, warranties, covenants or other agreements set forth herein.
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3.
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Voting Agreement.
From the date hereof until the earlier of (a) the final adjournment of the DCB Shareholder Meeting to vote upon the Merger Agreement or any related matter, or (b) the termination of this Agreement in accordance with its terms (such period
of time, the “Support Period”), the Shareholder irrevocably and unconditionally hereby agrees, that at the DCB Shareholder Meeting (whether annual or special and each adjourned or postponed meeting), however called, or in connection with
any written consent of DCB’s shareholders to vote upon the Merger Agreement, the Shareholder shall (i) appear at the DCB Shareholder Meeting or otherwise cause all of its New DCB Shares that such Shareholder has the sole power to vote or
direct the voting of and all other shares of DCB common stock or voting securities of DCB over which such Shareholder has acquired beneficial or record ownership prior to or after the date hereof and has the sole power to vote or direct the
voting of (including any shares of DCB common stock acquired by means of purchase, dividend or distribution, or issued upon the exercise of any stock options to acquire DCB common stock or the conversion of any convertible securities, or
pursuant to any other derivative securities (including any DCB stock options) or otherwise) (together with the New DCB Shares, the “Shares”), which such Shareholder beneficially owns or controls as of the applicable record date for the DCB
Shareholder Meeting, to be counted as present thereat for purposes of calculating a quorum, and (ii) vote or cause to be voted (including by proxy or written consent, if applicable) all such Shares (A) in favor of the approval of the Merger
Agreement and the approval of the transactions contemplated thereby, including the Merger, (B) in favor of any proposal to adjourn or postpone the DCB Shareholder Meeting to a later date if there are not sufficient votes to approve the
Merger Agreement, (C) against any action or proposal in favor of an Acquisition Proposal, and (D) against any action, proposal, transaction or agreement that would reasonably be likely to (1) result in a breach of any covenant,
representation or warranty or any other obligation or agreement of DCB contained in the Merger Agreement, or of the Shareholder contained in this Agreement, or (2) prevent, impede, interfere with, delay, postpone, discourage or frustrate
the purposes of or adversely affect the consummation of the transactions
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4.
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Transfer Restrictions.
The Shareholder hereby agrees that such Shareholder will not, during the Support Period, without the prior written consent of DCB, directly or indirectly, offer for sale, sell, transfer, assign, give, or similarly dispose of, in whole or in
part, any of the Shares, or any interest therein, including the right to vote any Shares, as applicable (to the extent the Shareholder has the sole right to dispose of or direct the disposition of such Shares, a “Transfer”) to any person or
entity (i) known by the Shareholder to be a shareholder of more than 4.99% of DCB’s outstanding common shares at the time of the proposed Transfer, or (ii) which person or entity would otherwise, to the knowledge of the Shareholder, become
a shareholder of more than 4.99% of DCB’s outstanding common shares as a result of the proposed Transfer.
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5.
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Representations of the
Shareholder. The Shareholder represents and warrants to DCB as follows: (a) the Shareholder has full legal right, capacity and authority to execute and deliver this Agreement, to perform the Shareholder’s obligations
hereunder and to consummate the transactions contemplated hereby; (b) this Agreement has been duly and validly executed and delivered by the Shareholder and, assuming the due authorization, execution and delivery of this Agreement by DCB,
constitutes a valid and legally binding agreement of the Shareholder, enforceable against the Shareholder in accordance with its terms, and no other action is necessary to authorize the execution and delivery of this Agreement by the
Shareholder or the performance of its obligations hereunder; (c) the
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6.
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Publicity. The
Shareholder hereby authorizes BB and DCB to publish and disclose in any announcement or disclosure in connection with the Merger or any other filings with the SEC, including in the Merger Registration Statement, the Proxy
Statement-Prospectus, any Current Reports on Form 8-K, or any other filing with any Governmental Entity made in connection with the Merger or otherwise required by applicable law, the Shareholder’s identity and ownership of the Shares and
the nature of the Shareholder’s obligations under this Agreement. The Shareholder agrees to notify DCB as promptly as practicable of any inaccuracies or omissions in any information relating to the Shareholder that is so published or
disclosed.
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7.
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Entire Agreement;
Assignment. The recitals are incorporated as a part of this Agreement. This Agreement and the Merger Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, other than, if an Affiliate of the Shareholder is a director or officer of BB,
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8.
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Remedies/Specific
Enforcement. Each of the parties hereto agrees that this Agreement is intended to be legally binding and specifically enforceable pursuant to its terms and that DCB would be irreparably harmed if any of the provisions of this
Agreement are not performed in accordance with its specific terms and that monetary damages would not provide adequate remedy in such event. Accordingly, in the event of any breach or threatened breach by the Shareholder of any covenant or
obligation contained in this Agreement, in addition to any other remedy to which DCB may be entitled (including monetary damages), DCB shall be entitled to seek injunctive relief to prevent breaches or threatened breaches of this Agreement
and to specifically enforce the terms and provisions hereof, and the Shareholder hereby waives any defense in any action for specific performance or an injunction or other equitable relief that a remedy at law would be adequate. The
Shareholder further agrees that neither DCB nor any other person or entity shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this
paragraph, and the Shareholder irrevocably waives any right he or she may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
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9.
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Governing Law.
This Agreement is governed by, and shall be interpreted in accordance with, the laws of the State of New York, without regard to any applicable conflict of law principles.
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10.
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Notice. All
notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, electronic mail (with confirmation), mailed by registered or certified mail (return receipt requested) or delivered by an
express courier (with confirmation) if to the Shareholder, to the address or e-mail address, as applicable, set forth in Schedule A
hereto, and if to DCB, in accordance with Section 12.3 of the Merger Agreement.
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11.
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Severability.
Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such
jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction such that the invalid, illegal or unenforceable provision or portion thereof shall be interpreted to be only so broad as is enforceable.
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a.
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Amendments; Waivers. Any
provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed (a) in the case of an amendment, by DCB and the Shareholder, and (b) in the case of a waiver, by the party against whom
the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
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12.
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Waiver of Jury Trial.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT
PERMITTED BY LAW AT THE TIME OF INSTITUTION OF THE APPLICABLE LITIGATION, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II)
THE PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (III) THE PARTY MAKES THIS WAIVER VOLUNTARILY; AND (IV) THE PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 12.
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13.
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Counterparts.
The parties may execute this Agreement in one or more counterparts, including by facsimile or other electronic signature. All the counterparts will be construed together and will constitute one Agreement.
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Name, Address and E-Mail Address for Notices
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Basswood Capital Management, LLC
Attn: Matthew Lindenbaum
645 Madison Avenue, 10th Floor New York, NY 10022 Email: mal@basswoodpartners.com |