CUSIP No. 419352-10-9 Page 20 of 26 Pages
EXHIBIT 16
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, Xx. Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx
("Xxxxxxx"), Xxxxxxx Xxxxxxxx ("Xxxxxxxx"), Xxxx Xxxxxx and Xxxx Xxxxxxx
(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
CUSIP No. 419352-10-9 Page 21 of 26 Pages
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 Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx and Goodbody are members of the Board of
Directors of Haven and the Bank, Xxxxxxx and Xxxxxxxx shall be appointed to
and be a member of the Special Committee of the Board of Directors of
Haven, currently consisting of Messrs. Xxxxxxx X. XxXxxxx, Xx., Xxxxx Xxxxx
and Xxxxxx X. Xxxxxxx, that is working with Xxxxxx Brothers Inc. to explore
strategic alternatives for Haven.
b. For so long as Xxxxxxx and Goodbody are members of the Board of
Directors of Haven and the Bank, one of Xxxxxxx and Xxxxxxxx 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.
x. Xxxxxxx 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 Xxxxxxx 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.
CUSIP No. 419352-10-9 Page 22 of 26 Pages
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 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 Xxxxxxx to the Haven Board, or otherwise, in
connection with the filing of its notice of nomination of Xxxxxxx and Xxxxxxxx,
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
CUSIP No. 419352-10-9 Page 23 of 26 Pages
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 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 Xxxxxxx 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: Xx. Xxxxxxx Xxxxxxx, Principal
PL Capital, LLC
0000 Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
(000) 000-0000 (phone)
(000) 000-0000 (fax)
With a copy to: Xxxxxxx X. Xxxxxxxx
Xxxxx & Xxxxxxx
One IBM Plaza
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000 (phone)
(000) 000-0000 (fax)
Haven Bancorp, Inc.: Xxxxxx X. Xxxxxxx
Chairman of the Board and Chief Executive Officer
Haven Bancorp, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
(000) 000-0000 (phone)
(000) 000-0000 (fax)
With a copy to: Omer X.X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxxxxx & Wood
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (phone)
(000) 000-0000 (fax)
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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.
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.
CUSIP No. 419352-10-9 Page 25 of 26 Pages
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written. HAVEN BANCORP, INC.,
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Chairman of the Board and Chief
Executive Officer
PL CAPITAL, LLC
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Xxxxxxx Xxxxxxx
Principal
/s/ Xx. Xxxxxx Xxxxxxx
----------------------
Xx. Xxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
-------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxxx
--------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxx Xxxxxx
---------------
Xxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxx
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Xxxx Xxxxxxx
FINANCIAL EDGE FUND, L.P.
By: PL Capital, LLC
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General Partner
By: /s/ Xxxx Xxxxxx /s/ Xxxxxxx Xxxxxxx
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Xxxx Xxxxxx Xxxxxxx Xxxxxxx
Managing Member Managing Member
FINANCIAL EDGE - STRATEGIC FUND, L.P.
CUSIP No. 419352-10-9 Page 26 of 26 Pages
By: PL Capital, LLC
General Partner
By: /s/ Xxxx Xxxxxx /s/ Xxxxxxx Xxxxxxx
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Xxxx Xxxxxx Xxxxxxx Xxxxxxx
Managing Member Managing Member
