EXHIBIT 99.2
AGREEMENT
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THIS AGREEMENT ("Agreement"), dated the 7th day of April, 2000, is made
by and between HAVEN BANCORP, INC., a Delaware corporation ("Haven"), and the PL
Capital Group, which consists of PL Capital, LLC, Financial Edge Fund, LP,
Financial Edge/Strategic Fund, LP, Dr. Irving Smokler, Richard Lashley
("Lashley"), Garrett Goodbody ("Goodbody"), John Palmer and Beth Lashley
(collectively, the "PL Capital Group" and, individually, a "PL Capital Group
Member").
RECITALS
WHEREAS, Haven and the PL Capital Group have agreed that it is in their
mutual interests to enter into this Agreement as hereinafter described.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, and
other good and valuable consideration, the parties hereto mutually agree as
follows:
1. REPRESENTATIONS AND WARRANTIES OF PL CAPITAL GROUP AND THE PL
CAPITAL GROUP MEMBERS. The PL Capital Group and the PL Capital Group Members
hereby represent and warrant to Haven as follows:
a. The PL Capital Group and the PL Capital Group Members have
beneficial ownership of the number of shares set forth for each in the
most recent preliminary proxy filing for the PL Capital Group and have
full and complete authority to enter into this Agreement and to bind
the entire number of shares of the capital stock of Haven in which they
have, or have a right to acquire a beneficial ownership interest, to
the terms of this Agreement and this Agreement constitutes a valid and
binding agreement of the PL Capital Group and each PL Capital Group
Member.
b. There are no arrangements, agreements or understandings
between the PL Capital Group (or any PL Capital Group Member) and Haven
other than as set forth in this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF HAVEN. Haven hereby represents and
warrants to the PL Capital Group and to each PL Capital Group Member, as
follows:
a. Haven has full power and authority to enter into and
perform its obligations under this Agreement, and the execution and
delivery of this Agreement by Haven has been duly authorized by the
Board of Directors of Haven and requires no other Board of Directors or
stockholder action. This Agreement constitutes a valid and binding
obligation of Haven and the performance of its terms does not
constitute a violation of its certificate of incorporation or by-laws.
b. There are no arrangements, agreements or understandings
between the PL Capital Group (or any PL Capital Group Member) and Haven
other than as set forth in this Agreement.
3. DIRECTORSHIPS AND COMMITTEES. Each of Lashley and Goodbody shall be
appointed to the Board of Directors of Haven and the Board of Directors of CFS
Bank (the "Bank"). Goodbody shall be appointed to the Class of Directors that is
up for election in 2001, and Lashley shall be appointed to the Class of
Directors that is up for election in 2002. Not later than April 10, 2000, Haven
shall take all necessary action, including the amendment of the by-laws of Haven
by the Board of Directors, as may be required to permit such appointments.
a. For so long as Lashley and Goodbody are members of the
Board of Directors of Haven and the Bank, Lashley and Goodbody shall be
appointed to and be a member of the Special Committee of the Board of
Directors of Haven, currently consisting of Messrs. Michael A. McManus,
Jr., Hanif Dahya and Robert M. Sprotte, that is working with Lehman
Brothers Inc. to explore strategic alternatives for Haven.
b. For so long as Lashley and Goodbody are members of the
Board of Directors of Haven and the Bank, one of Lashley and Goodbody
shall be appointed to and be members of each of the following
Committees of the Board of Directors of Haven and of the Bank: Loan,
Audit, Finance, Compensation and Nomination.
c. Lashley and Goodbody shall be entitled to receive the
compensation and benefits generally available to directors of Haven and
the Bank.
4. DIRECTORSHIPS IN 2001 AND 2002. The Board of Directors of Haven
shall nominate and support Goodbody for election to the Board of Directors of
Haven in 2001 and Lashley for election to the Board of Directors of Haven in
2002, unless the PL Capital Group or any PL Capital Group Member shall have
submitted a nomination to Haven not supported by management for the 2001 or 2002
Annual Meetings of Stockholders, respectively, or a shareholder proposal not
supported by management, or publicly supported a nomination or shareholder
proposal for such meetings not supported by management.
5. VOTING AT 2000 ANNUAL MEETING OF STOCKHOLDERS. The PL Capital Group
shall vote all of the shares of Haven common stock beneficially owned by its
members for each of Haven's nominees for election and for the ratification of
the appointment of Haven's independent auditors at the 2000 Annual Meeting of
Stockholders of Haven.
6. PL CAPITAL GROUP WITHDRAWAL OF PROXY MATERIALS. Promptly upon the
execution and delivery of this Agreement, the PL Capital Group shall take all
necessary action to withdraw its preliminary proxy materials that have been
filed with the Securities and Exchange Commission ("SEC") and all action
necessary to terminate its proxy solicitation in connection with Haven's 2000
Annual Meeting of Stockholders.
7. PUBLICITY. Promptly upon the execution and delivery of this
Agreement, each of the parties shall issue a joint press release disclosing the
terms and provisions of this Agreement and the
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support of PL Capital of Haven's nominees at the 2000 Annual Meeting of
Stockholders, which respective press release shall be subject to the prior
review and comment of the other party. During the term of this Agreement, no
party to this Agreement shall cause, discuss, cooperate or otherwise aid in the
preparation of any press release or other publicity concerning any other party
to this Agreement or its operations without prior approval of such other party
unless required by law, in which case notice of such requirement shall be given
to the other party.
8. PUBLIC STATEMENTS; LITIGATION. From and after the date hereof,
through and including the earlier of (a) the last date that the stockholders of
Haven will be entitled to submit nominations to the Board of Directors for the
2001 Annual Meeting of Stockholders or (b) the last date stockholders are
entitled to submit stockholder proposals at such meeting, no member of the PL
Capital Group shall, directly or indirectly:
a. make any statement, public or otherwise, in opposition to,
or that would reflect negatively against, Haven, the Bank, the Board of
Directors of Haven or the Bank, or any of the directors or officers of
Haven or the Bank;
b. directly or indirectly participate or act in concert with
any affiliate, group or other person to participate, by encouragement
or otherwise, in any litigation against or derivatively on behalf of
Haven or the Bank, or any of their respective officers or directors; or
c. provide, or act in concert with any person to provide, any
funds, services or facilities, to any person in support of any activity
by such person that would be a violation of their covenants under the
provisions of this Section 8 if undertaken by any of them.
9. REIMBURSEMENT OF EXPENSES. Haven shall, upon submission by the PL
Capital Group of reasonable documentation, reimburse the PL Capital Group for
its costs and expenses incurred since July 1, 1999 in connection with its
proposals for the nomination of Lashley to the Haven Board, or otherwise, in
connection with the filing of its notice of nomination of Lashley and Goodbody,
the filing of its preliminary proxy materials with the SEC, and the filing and
distribution of its proxy material under Rule 14a-12 of the Securities Exchange
Act of 1934, as amended, which expenses shall not exceed $150,000.
10. REMEDIES. Haven and the PL Capital Group acknowledge and agree that
a breach or threatened breach by either party may give rise to irreparable
injury inadequately compensable in damages, and accordingly each party shall be
entitled to injunctive relief to prevent a breach of the provisions hereof and
to enforce specifically the terms and provisions hereof in any state or federal
court having jurisdiction, in addition to any other remedy to which such
aggrieved party may be entitled to at law or in equity. In the event either
party institutes any legal action to enforce such party's rights under, or
recover damages for breach of, this Agreement, the prevailing party or parties
in such action shall be entitled to recover from the other party or parties all
costs and expenses, including but not limited to actual attorneys' fees, court
costs, witness fees, disbursements and any other expenses of litigation or
negotiation incurred by such prevailing party or parties. Each PL Capital Group
Member shall have the right of contribution from the other PL Capital Group
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Members for any damages paid or expenses incurred (including attorneys' fees)
pursuant to this Section 10.
11. TERM. This Agreement shall terminate if Haven shall cease to exist
by reason of merger, sale of assets, liquidation, exchange of shares, or
otherwise, or if both Lashley and Goodbody cease to be members of the Board of
Directors of Haven.
12. NOTICES. All notice requirements and other communications shall be
deemed given when delivered or on the third succeeding business day after being
mailed by registered or certified mail, return receipt requested, addressed to
the PL Capital Group and Haven below:
PL Capital Group: Mr. Richard Lashley, Principal
PL Capital, LLC
2015 Spring Road
Suite 290
Oak Brook, IL 60523
(630) 928-0231 (phone)
(630) 928-0232 (fax)
With a copy to: Phillip M. Goldberg Foley
& Lardner One IBM Plaza
330 North Wabash Avenue
Chicago, IL 60611
(312) 755-2549 (phone)
(312) 755-1925 (fax)
Haven Bancorp, Inc.: Philip S. Messina
Chairman of the Board and
Chief Executive Officer
Haven Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
(516) 683-4100 (phone)
(516) 683-8385 (fax)
With a copy to: Omer S.J. Williams, Esq.
Thacher Proffitt & Wood
Two World Trade Center
New York, New York 10048
(212) 912-7432 (phone)
(212) 912-8371 (fax)
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions of the parties in connection therewith not referred
to herein.
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14. COUNTERPARTS; FACSIMILE. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, and
signature pages may be delivered by facsimile, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
15. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
16. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, without
giving effect to its principles of conflicts of laws.
17. SEVERABILITY. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the successors and assigns,
and transferees by operation of law, of the parties.
19. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made herein shall survive
the execution and delivery of this Agreement.
20. AMENDMENTS. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by all of the parties hereto.
21. FURTHER ACTION. Each party agrees to execute any and all documents,
and to do and perform any and all acts and things necessary or proper to
effectuate or further evidence the terms and provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
HAVEN BANCORP, INC.,
By: /s/ Philip S. Messina
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Philip S. Messina
Chairman of the Board and Chief Executive
Officer
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PL CAPITAL, LLC
By: /s/ Richard Lashley
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Richard Lashley
Principal
/s/ Dr. Irving Smokler
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Dr. Irving Smokler
/s/ Richard Lashley
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Richard Lashley
/s/ Garrett Goodbody
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Garrett Goodbody
/s/ John Palmer
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John Palmer
/s/ Richard Lashley
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Beth Lashley
FINANCIAL EDGE FUND, L.P.
By: PL Capital, LLC
General Partner
By: /s/ John Palmer /s/ Richard Lashley
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John Palmer Richard Lashley
Managing Member Managing Member
FINANCIAL EDGE - STRATEGIC FUND, L.P.
By: PLCapital, LLC
General Partner
By: /s/ John Palmer /s/ Richard Lashley
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John Palmer Richard Lashley
Managing Member Managing Member
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