EXHIBIT 99.2
STANDSTILL AGREEMENT
THIS AGREEMENT, dated this 14th day of January, 2000, by and between
YONKERS FINANCIAL CORPORATION (the "Corporation"), a Delaware corporation, and
the individuals and entities identified on Exhibit A attached hereto
(collectively, the "Xxxxx Group;" individually, a "Xxxxx Group Member").
RECITALS
WHEREAS, the Corporation and the Xxxxx Group have agreed that it is in
their mutual interests to enter into this Agreement as hereinafter described.
NOW THEREFORE, in consideration of the Recitals 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 the Xxxxx Group Members. The Xxxxx
Group Members hereby represent and warrant to the Corporation, as follows:
(i) The Xxxxx Group Members have fully disclosed in Exhibit A
the total number of shares of the capital stock of the Corporation in
which they have or have a right to acquire a beneficial ownership
interest and none of the Xxxxx Group Members has a right to vote any
shares of the capital stock of the Corporation other than those in
which such Xxxxx Group Member has a beneficial ownership interest as
disclosed in Exhibit A.
(ii) The Xxxxx Group Members have full and complete authority
to enter into this Agreement and to bind the entire number of shares of
the capital stock of the Corporation 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 Xxxxx Group and each Xxxxx Group Member.
(iii) There are no arrangements, agreements or understandings
between the Xxxxx Group (or any Xxxxx Group Member) and the Corporation
other than as set forth in this Agreement.
2. Representations and Warranties of the Corporation. The Corporation
hereby represents and warrants to the Xxxxx Group and to each Xxxxx Group
member, as follows:
(i) The Corporation has full power and authority to enter into
and perform its obligations under this Agreement, and the execution and
delivery of this Agreement by the Corporation regarding the
consummation of the transactions contemplated hereby has been duly
authorized by the Board of Directors of the Corporation and requires no
other Board of Directors or stockholder action. This Agreement
constitutes a valid and binding obligation of the Corporation and the
performance of its terms shall not constitute a violation of its
certificate of incorporation or by-laws.
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(ii) There are no arrangements, agreements or understandings
between the Xxxxx Group (or any Xxxxx Group Member) and the Corporation
other than as set forth in this Agreement.
3. Covenants of the Xxxxx Group. The Xxxxx Group and each Xxxxx Group
Member covenant and agree that during the term of this Agreement:
(i) They shall not hereafter acquire, or offer or agree to
acquire, or act in concert with any affiliate, group or other person to
acquire, directly or indirectly (other than through stock splits or
stock dividends or other corporate reorganizations), beneficial
ownership of, or the right to vote, any shares of capital stock of the
Corporation or any securities convertible into such capital stock if,
after such acquisition, the Xxxxx Group would beneficially own more
than 24.9% of the Corporation's shares. Notwithstanding the above, if a
bona fide proposal by a third party is made to the Corporation or its
stockholders to acquire 25% or more of the Corporation's stock or
assets, this restriction shall not apply.
(ii) They shall not hereafter transfer or sell, or offer or
agree to transfer or sell, or act in concert with any affiliate, group
or other person to transfer or sell, directly or indirectly, other than
in open market transactions, through a broker, where they have no
knowledge that the buyer will beneficially own more than 4% of the
Corporation's shares, beneficial ownership of, or the right to vote
any shares of capital stock of the Corporation except with the express
approval of the Board of Directors of the Corporation, which approval
shall not be unreasonably withheld. It is the intent of the parties
hereto that the Xxxxx Group's shares may not be transferred or sold if
the Corporation's Board of Directors reasonably believes it possible or
likely that any person or group or affiliates of such person or group
acquiring such shares would, after such acquisition, beneficially own
more than 4% of the Corporation's shares.
(iii) They shall not directly or indirectly solicit, or act in
concert with any affiliate, group or other person to solicit,
"proxies," or directly or indirectly become a "participant" or
otherwise engage in any "solicitation" (as such terms are defined in
Regulation 14A under the Securities Exchange Act of 1934, as amended)
with respect to any matter not recommended or approved by the
Corporation's Board of Directors or engage in any of the foregoing
activities on behalf of any nominee for election as a director who is
not supported or was not nominated by the Corporation's Board of
Directors.
(iv) They shall not directly or indirectly submit or encourage
the submission of any nomination for election as director or any
stockholder proposal for business at a meeting of the Corporation's
stockholders.
(v) They shall vote, and shall require any affiliate, group or
other person acting in concert with any Xxxxx Group Members to vote,
all shares beneficially owned (a) in favor of any proposal or nominee
for election as director submitted by the Corporation's Board of
Directors, (b) against any proposal or nominee for election as director
opposed by the Corporation's Board of Directors and (c) in accordance
with the recommendations of the Corporation's Board of Directors on all
procedural matters. Furthermore, except as otherwise required by
Xxxxxxx X. Xxxxx'x fiduciary duty as a director of the Corporation,
they
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shall not, nor shall they act in concert with any affiliate, group or
other person to (A) join with or assist any person or entity, directly
or indirectly in opposing, or make any statement in opposition to, any
proposal or director nomination submitted by the Corporation's Board of
Directors to a vote of the Corporation's stockholders or (B) join with
or assist any person or entity, directly or indirectly, in supporting
or endorsing (including supporting, requesting or joining in any
request for a meeting of stockholders in connection with), or make any
statement in favor of, any proposal submitted to a vote of the
Corporation's stockholders that is opposed by Corporation's Board of
Directors. Notwithstanding any other statement in this section to the
contrary, in the event that a proposal not involving (i) the sale or
merger of the Corporation (or the solicitation of bids or the hiring of
an investment banker to explore methods to maximize shareholder value
or similar proposals), (ii) the hiring of an investment banker or the
establishment of a committee or other mechanism to explore the
Corporation's strategic options or (iii) the election of directors, is
properly introduced for consideration at a meeting of the Corporation's
stockholders and such proposal is not approved by the Corporation's
Board of Directors, they shall have the right, at their discretion, to
vote an amount of shares in favor of such proposal equal to the total
shares held by the Xxxxx Group multiplied by the following fraction:
The number of shares not held by the
Xxxxx Group voted in favor of the proposal
------------------------------------------
The total number of shares voted
with respect to such proposal
(vi) They shall not vote, nor shall they act in concert with
any affiliate, group or other person to vote, for any nominee or
nominees for election to the Board of Directors of the Corporation,
other than those nominated or supported by the Corporation's Board of
Directors. Except as set forth in Part 4 below, no Xxxxx Group Member
shall consent to become a nominee for election as a Director of the
Corporation unless specifically requested to do so by the Board of
Directors of the Corporation.
(vii) They shall not directly or indirectly solicit or
initiate any communication regarding, or act in concert with any
affiliate, group or other person to solicit or initiate any
communication regarding, any acquisition offers for the Corporation,
and if any offer or inquiry concerning such an offer shall be received
they shall refer such offer or inquiry directly and solely to the
Chairman of the Board of Directors and/or to the Chief Executive
Officer of the Corporation.
(viii) They shall not 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 the Corporation, except for testimony
which may be required by law, and except as may occur in the ordinary
course of business with respect to any loan, deposit or other
transaction where the Xxxxx Group Member or an affiliate is dealing
with the Corporation as a customer.
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(ix) They shall not provide, nor shall they 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 paragraph 3
if undertaken by any of them.
(x) They shall not deposit any capital stock of the
Corporation in a voting trust or subject any shares of capital stock of
the Corporation to a voting agreement or other arrangement of similar
effect.
4. Agreement of the Corporation. The Corporation agrees that its Board
of Directors shall appoint Xxxxxxx X. Xxxxx to the Board of Directors of Yonkers
Financial Corporation and shall not remove him or fail to renominate him during
the term of this Agreement. The Corporation shall also cause Xx. Xxxxx to be
appointed to the Board of Directors of The Yonkers Savings and Loan Association,
FA and its loan committee and shall not remove him or fail to re-elect him
during the term of this Agreement.
5. Remedies. The Corporation and the Xxxxx 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 Xxxxx Group
Member shall have the right of contribution from the other Xxxxx Group Members
for any damages paid or expenses incurred (including attorneys' fees) pursuant
to this paragraph 4.
6. Term. This Agreement shall remain in effect until March 31, 2002 or
until such earlier time after March 31, 2000 as (i) the Corporation shall refuse
to appoint Xxxxxxx Xxxxx as a director of the Corporation, The Yonkers Savings
and Loan Association, FA or its loan committee or shall remove Xx. Xxxxx from or
fail to renominate Xx. Xxxxx to any such position or (ii) the Corporation shall
cease to exist by reason of merger, sale of assets, liquidation, exchange of
shares, or otherwise.
7. Publicity. Any press release or other publicity with respect to this
Agreement or any provisions hereof shall be jointly prepared and issued by the
parties hereto. 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.
8. 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 Xxxxx Group and the Corporation below:
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Xxxxx Group: Xxxxx Investors L.P.
00 Xxxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
With a copy to: Xxxxxx Xxxxxxxx
Xxxxx Investors L.P.
00 Xxxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxx Xxxx 00000
Yonkers Financial Corporation: Xxxxxxx X. Xxxxxxxxxx, President
Yonkers Financial Corporation
0 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
With a copy to: Xxx X. Xxxxxxxx, P.C.
Silver, Xxxxxxxx & Xxxx, L.L.P.
0000 Xxx Xxxx Xxxxxx, X.X.
Seventh Floor, East Tower
Washington, D.C. 20005
9. Governing Law and Choice of Forum. Delaware law, unless applicable
federal law or regulation is deemed controlling, shall govern the construction
and enforceability of this Agreement. Any and all actions concerning any dispute
arising hereunder shall be filed and maintained in a state or federal court, as
appropriate, sitting in the State of Delaware.
10. Severability. If any term, provision, covenant or restriction of
this Agreement is held by any governmental or regulatory authority or a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
11. 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. Except as otherwise
expressly provided for herein, this Agreement shall not inure to the benefit of,
be enforceable by or create any right or cause of action in any person,
including any shareowner of the Corporation, other than the parties hereto.
12. Survival of Representations, Warranties and Agreements. All
representations, warranties, covenants and agreements made herein shall survive
the execution and delivery of this Agreement.
13. 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.
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14. Definitions. As used in this Agreement, the following terms shall
have the meanings indicated, unless the context otherwise requires:
(i) The term "acquire" means every type of acquisition,
whether effected by purchase, exchange, operation of law or otherwise.
(ii) The term "acting in concert" means (i) knowing
participation in a joint activity or conscious parallel action towards
a common goal whether or not pursuant to an express agreement, or (ii)
a combination of pooling of voting or other interests in the securities
of an issuer for a common purpose pursuant to any contract,
understanding, relationship, agreement or other arrangement, whether
written or otherwise.
(iii) The term "affiliate" means a person or entity that
directly, or indirectly through one or more intermediaries, controls or
is controlled by, or is under common control with another person.
(iv) The terms "beneficial ownership" or "beneficially owned"
mean all capital stock of the Corporation owned or held in the Xxxxx
Group Member's name individually or jointly with any other person; by
any trust in which the Xxxxx Group Member is a settlor, trustee, or
beneficiary; by any corporation in which the Xxxxx Group Member is a
stockholder (owning, together with all other Xxxxx Group Members and
their respective affiliates, more than five percent (5%) of the
outstanding voting power or beneficial interests), director or officer;
by any partnership in which the Xxxxx Group Member is a limited partner
(owning, together with all other Xxxxx Group Members and their
respective affiliates, more than five percent (5%) of the outstanding
beneficial interests), or a general partner, employee or agent; or by
any other entity in which a Xxxxx Group Member holds, together with all
other Xxxxx Group Members and their respective affiliates, more than
five percent (5%) of the outstanding beneficial interests.
(v) The term "control" (including the terms "controlling,"
"controlled by," and "under common control with") means the possession,
direct or indirect, or the power to direct or cause the direction of
the management, activities or policies of a person or organization,
whether through the ownership of capital stock, by contract, or
otherwise.
(vi) The term "person" includes an individual, group acting in
concert, a corporation, a partnership, an association, a joint stock
company, a trust, an unincorporated organization or similar company, a
syndicate, or any other group formed for the purpose of acquiring,
holding or disposing of the equity securities of the Corporation.
(vii) The term "vote" means to vote in person or by proxy, or
to give or authorize the giving of any consent as a stockholder on any
matter.
15. Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but each of which together shall constitute one
and the same agreement.
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16. Duty to Execute. 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.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the undersigned or duly authorized officers thereof as of the day and year
first above written.
YONKERS FINANCIAL CORPORATION,
a Delaware corporation
By: ________________________________________
Xxxxxxx X. Xxxxxxxxxx, President and
Chief Executive Officer
XXXXX INVESTORS L.P.
BY GEORGETOWN PARTNERS, INC
MANAGING GENERAL PARTNER
By: ________________________________________
Xxxxxx Xxxxxxxx, Senior Vice President
XXXXXXX X. XXXXX
By: ________________________________________
Xxxxxxx X. Xxxxx
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EXHIBIT A
Shares of Yonkers Financial
Corporation Capital Stock
Xxxxx Group Member Beneficially Owned1
--------------------------------------------------------------------------------
Xxxxx Investors L.P. 257,100
Xxxxxxx X. Xxxxx 0
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1/ Includes all shares over which the Xxxxx Group Member has sole or shared
voting or dispositive powers.
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