SETTLEMENT AGREEMENT AND MUTUAL RELEASE
SETTLEMENT
AGREEMENT AND MUTUAL
RELEASE
This
Settlement Agreement and Mutual Release (the “Agreement”), dated
June 6, 2007, is entered into by and between Yardville National Bancorp,
Xxxxxxx
X. Xxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxxx, F. Xxxxx Xxxxx, Xxxxxxxxxxx X. Xxxxxx,
Xxxxxx Xxxxxxx, Xxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxxxx, Xx., Xxxxxxxx Xxxxxx,
Xxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx,
Xxxxxx X. Xxxxxxxx, and Xxxxx X. Xxxxxxx (collectively “YNB”) and Xxxxxxxx X.
Xxxxxxx, Xxxxxx Xxxxxxx, and Xxxxxxx and Associates, LLC (collectively
“Xxxxxxx”) (collectively, YNB and Xxxxxxx are referred to as the
“Parties”);
WHEREAS,
on or about March 3, 2006, Xxxxxxx instituted a shareholder
disenfranchisement lawsuit against YNB with the Superior Court of New Jersey,
Chancery Division, Passaic County, under a matter entitled Xxxxxxx, et al. v.
Yardville National Bancorp, et al. (Docket No. PAS-C-41-06) (the
“Action”);
WHEREAS,
on or about February 9, 2007, Xxxxxxx & Associates, LLC
instituted a summary proceeding under the caption Xxxxxxx, et al. v.
Yardville National Bancorp, et al. (Docket No. PAS-C-20-07) for a
declaration to require Yardville National Bancorp to hold its annual meeting
of
shareholders on or before June 4, 2007;
WHEREAS,
on or about March 21, 2007, the Court entered an Order
requiring Yardville National Bancorp to hold its annual meeting of shareholders
on or before July 12, 2007; and
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1. Payment. YNB
agrees to pay Xxxxxxx the sum of One Hundred Thousand Fifty-Three and 6/100
Dollars ($100,053.06) (the “Settlement Payment”) within ten (10) days of
Xxxxxxx’x delivery of a fully executed copy of this Agreement. The
Settlement Payment is made in order to settle all disputes, claims and
controversies between the Parties. Upon receipt of the Settlement
Payment, Xxxxxxx agrees to execute and file warrants to satisfy the monetary
judgments entered in the Action. The warrants shall only satisfy the
monetary portion of the judgments entered in Action and not constitute a
waiver
of YNB’s ability to appeal paragraphs 4 and 6 of the February 8, 2007 Order
entered in the Action.
2. Consent
to Vacate the March 21, 2007 Order. The Parties
agree to the entry of a Consent Order that shall be entered by the Xxxxxxxxx
Xxxxxxxx X. McVeigh, X.X.Xx. which shall vacate the Court’s March 21, 2007 Order
that requires the 2007 annual meeting of shareholders to take place on July
12,
2007. The Consent Order shall be prepared and submitted to the Court
by YNB’s counsel.
3. Resolution
of the Appeal. Xxxxxxx agrees that he will withdraw the
cross-appeal filed in the Appeal under Docket Number
A-004348-06-T5. YNB agrees that it will withdraw all portions of its
appeal, except its appeal of Paragraphs 4 and 6 of the February 8, 2007 Order
entered in the Action. Xxxxxxx agrees not to oppose YNB’s appeal of
Paragraphs 4 and 6 of the Court’s February 8, 2007 Order. The Parties
further agree that they will use their best efforts to resolve the Appeal
by
jointly seeking to have the Appellate Division enter an Order that vacates
Paragraphs 4 and 6 of the February 8, 2007 Order entered in the
Action. In connection with the foregoing, in the event that Xxxxxxx’x
counsel is asked by YNB to attend any conferences or otherwise provide services,
YNB shall promptly reimburse Xxxxxxx for the reasonable fees and expenses
of his
counsel.
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4. 2007
Annual Meeting of Shareholder. On or prior to the date
of this Agreement, Yardville National Bancorp has entered into an Agreement
and
Plan of Merger (as amended, supplemented, restated or otherwise modified
from
time to time, the “Merger Agreement”), pursuant to which Yardville National
Bancorp will merge with and into an unaffiliated corporation (the “Merger”),
which provides, among other things, that Yardville National Bancorp will
promptly take all steps necessary to duly call, give notice of, convene,
and
hold a special meeting of its shareholders for the purpose of considering
the
Merger Agreement and the Merger. In the event that the Merger
Agreement is terminated for any reason prior to the consummation of the Merger,
Yardville National Bancorp shall cause an annual meeting of shareholders
to be
held within sixty (60) days of the effective date of such termination.
5. Xxxxxxx’x
Withdrawal of the Slate of Director Candidates. If an
annual meeting of shareholders is held in accordance with paragraph 4 of
this
Agreement, Xxxxxxx & Associates, LLC shall withdraw its slate of director
candidates seeking election to the Yardville National Bancorp Board.
6. Withdrawal
of Proposal to Declassify Yardville National
Bancorp’s Board. If an annual meeting of
shareholders is held in accordance with paragraph 4 of this Agreement, Xxxxxxx
& Associates, LLC shall withdraw its shareholder proposal to hold an
election on the adoption of a resolution to declassify Yardville National
Bancorp’s Board of Directors and hold annual elections of each director
seat.
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7. Yardville
National Bancorp’s Nomination of Candidates. If an
annual meeting of shareholders is held in accordance with paragraph 4 of
this
Agreement, Yardville National Bancorp shall nominate the following slate
of
candidates for election to the Yardville National Bancorp Board of Directors
at
the 2007 annual meeting of shareholders: Xxxxxx X. Xxxxxxx, Xx., Xxxxxx Xxxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxx X. Xxxx and F. Xxxxx Xxxxx.
8. Adoption
of Declassification Amendment. If an annual meeting of
shareholders is held in accordance with paragraph 4 of this Agreement, Yardville
National Bancorp shall cause to be submitted to a vote of the shareholders
an
amendment to its certificate of incorporation to declassify its Board and
hold
annual elections for each director seat on the Board beginning at the 2008
annual meeting of shareholders.
9. Share
Voting Agreement. If an annual meeting of shareholders
is held in accordance with paragraph 4 of this Agreement, Xxxxxxx agrees
to be
present, in person or by proxy, and to vote or cause to be voted, in person
or
by proxy, all of the shares which it beneficially owns, in favor of the slate
of
candidates the Yardville National Bancorp Board of Directors nominates for
election at the 2007 annual meeting of shareholders.
10. No
Admission. This Agreement is executed pursuant to a
compromise and settlement entered into without any admission of liability
by the
Parties, but solely for the purpose of avoiding costly litigation on disputed
claims and avoiding uncertainty, controversy and legal expense.
11. Amendment. This
Agreement shall be binding upon the Parties and may not be amended,
supplemented, changed, or modified in any manner, orally or otherwise, except
by
an instrument in writing of concurrent or subsequent date signed by the
Parties.
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12. Entire
Agreement. This Agreement contains and constitutes the
entire understanding and agreement between the Parties and cancels all prior
or
contemporaneous oral or written understandings, negotiations, agreements,
commitments, warranties, representations, and promises in connection
herewith.
13. Severability. If
any provision in this Agreement is declared or determined by any court or
arbitrator to be illegal or invalid, the validity of the remaining parts,
terms,
or provisions shall not be affected, and the illegal or invalid part, term,
or
provision shall be deemed not to be a part of this Agreement.
14. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed
an
original, and the counterparts shall together constitute one and the same
agreement, notwithstanding that all Parties are not a signatory to the original
or the same counterpart. Furthermore the Parties mutually agree that
this Agreement may be executed by a faxed signature in counterparts which
taken
together should be considered an original.
15. Headings. The
headings of the sections contained herein are for convenience only and are
not
to be used to define, limit or construe their contents.
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16. Successors. All
of the rights and obligations of the Parties under this Agreement shall bind
and
inure to the benefit of the respective successors, grantees and assigns of
the
Parties.
17. Representation
by Counsel. The Parties hereby acknowledge that each has
been represented by legal counsel of its own choice throughout all of the
negotiations which preceded the execution of this Agreement and that each
of
them has executed this Agreement with the consent and on the advice of such
legal counsel. The Parties further acknowledge that each of them and
their counsel have had an adequate opportunity to make whatever investigations
or inquiry that they may deem necessary or desirable in connection with the
subject matter of this Agreement prior to the execution hereof and the delivery
and acceptance of the consideration specified herein. Each party has
reviewed and revised, or had the opportunity to revise this Agreement, and
accordingly the rule of construction to the effect that any ambiguities are
to
be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
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By
signing below, the Parties acknowledge that they have consulted
with legal counsel regarding this Agreement and have carefully read and fully
understand all of the provisions of this Agreement and that they are voluntarily
entering into this Agreement.
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Dated: June
6, 2007
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/s/
Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx
X. Xxxxxxx
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XXXXXXX
&
ASSOCIATES,
LLC
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Dated: June
6, 2007
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By:
/s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx
X. Xxxxxxx
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Dated: June
6, 2007
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Xxxxxx
Xxxxxxx
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YARDVILLE
NATIONAL BANCORP
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Dated: June
6, 2007
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/s/
By: Xxxxxxx X. Xxxx
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Xxxxxxx
X. Xxxx , CEO
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Dated: June
6, 2007
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/s/
Xxxxxxx X. Xxxx
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Xxxxxxx
X. Xxxx
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Dated: June
6, 2007
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/s/
Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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Dated: June
6, 2007
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/s/
Xxxxxx Xxxxxxx
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Xxxxxx
Xxxxxxx
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Dated: June
6, 2007
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/s/
F. Xxxxx Xxxxx
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F.
Xxxxx Xxxxx
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Dated: June
8, 2007
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/s/
Xxxxxxxxxxx X. Xxxxxx
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Xxxxxxxxxxx
X. Xxxxxx
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Dated: June
6, 2007
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/s/
Xxxxxx Xxxxxxx
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Xxxxxx
Xxxxxxx
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Dated: June
6, 2007
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/s/
Xxxxx X. Xxxxxxxxxx
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Xxxxx
X. Xxxxxxxxxx
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Dated: June
6, 2007
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/s/
Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx
X. Xxxxxxx, Xx.
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Dated:
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Xxxxxxxx
Xxxxxx
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Dated: June
6, 2007
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/s/
Xxx X. Xxxxxxxxxx
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Xxx
X. Xxxxxxxxxx
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Dated: June
6, 2007
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/s/
Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxx
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Dated: June
8, 2007
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/s/
Xxxxxx X. Xxxxxx
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Xxxxxx
X. Xxxxxx
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Dated: June
6, 2007
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/s/
Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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Dated: June
6, 2007
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/s/
Xxxxxx X. Xxxxxxxx
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Xxxxxx
X. Xxxxxxxx
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Dated: June
6, 2007
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/s/
Xxxxx X. Xxxxxxx
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Xxxxx
X. Xxxxxxx
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