SETTLEMENT AGREEMENT
EXHIBIT
10.1
THIS SETTLEMENT AGREEMENT (the “Settlement Agreement”), dated this 7th day of November 2008,
is by and among Prudential Mutual Holding Company (the “MHC”), Prudential
Bancorp, Inc. of Pennsylvania (the “Company”) and Prudential Savings Bank (the
“Bank,” and collectively with the MHC and the Company, “Prudential”), and
Xxxxxxxx Value Partners I, L.P. (“Xxxxxxxx Value Partners”), Xxxxxxxx Partners,
L.P., Xxxxxxxx Value LLC, Xxxxxx Xxxxxxxx, an individual, and Xxxx Xxxxxxxx, an
individual (collectively, the “Xxxxxxxx Group,” individually, a “Xxxxxxxx Group
Member”).
RECITALS
WHEREAS,
on October 4, 2006, Xxxxxxxx Value Partners filed suit in the United States
District Court for the Eastern District of Pennsylvania (the “Court”), Docket
No. 06-CV-4432 (the “Xxxxxxxx Litigation”), against the MHC, the Company and the
directors of the MHC and the Company;
WHEREAS,
the Court by order dated August 15, 2007 dismissed all claims in the
Xxxxxxxx Litigation, except for one claim against MHC; the Court granted MHC
summary judgment on a portion of this remaining claim by order dated April 24,
2008; and Xxxxxxxx Value Partners voluntarily withdrew the remaining portion of
the claim with prejudice;
WHEREAS,
on June 11, 2008, Xxxxxxxx Value Partners appealed to the United States Court of
Appeals for the Third Circuit, Docket No. 08-2702 (the “Appeal”), a portion of
the Court’s August 15, 2007 order;
WHEREAS,
by letter dated May 14, 2008, Xxxxxxxx Value Partners demanded that
various actions be taken by the Company (the “Xxxxxxxx Demand”);
WHEREAS,
in light of the foregoing, Prudential and the Xxxxxxxx Group have agreed that it
is in their mutual interests to enter into this Settlement Agreement;
and
WHEREAS,
Prudential and the Xxxxxxxx Group are entering into a separate,
concurrent agreement with respect to certain expenses incurred by the Xxxxxxxx
Group in connection with the Xxxxxxxx Litigation and related matters (the
“Expense Agreement”).
NOW
THEREFORE, in consideration of the Recitals and the representations,
warranties, covenants and agreements contained herein and other good and
valuable consideration, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Representations and
Warranties of the Xxxxxxxx Group Members. The Xxxxxxxx Group
Members represent and warrant to Prudential, as follows:
(a) The
Xxxxxxxx Group has fully disclosed in Exhibit A to this Settlement Agreement the
total number of shares of common stock of the Company, par value $0.01 per share
(“Company Common Stock”) as to which it has beneficial ownership and neither the
Xxxxxxxx Group nor any Xxxxxxxx Group Member nor any of their affiliates has (i)
a right to acquire a beneficial ownership interest in any capital stock of the
Company, or (ii) a right to vote any shares of capital stock of the Company
other than as set forth in Exhibit A;
(b) The
Xxxxxxxx Group and the Xxxxxxxx Group Members have full power and authority to
enter into and perform their obligations under this Settlement Agreement and the
Expense Agreement, and the execution and delivery of this Settlement Agreement
and the Expense Agreement by the Xxxxxxxx Group and Xxxxxxxx Group Members has
been duly authorized by the principals of the Xxxxxxxx Group. This
Settlement Agreement and the Expense Agreement constitute valid and binding
obligations of the Xxxxxxxx Group and the Xxxxxxxx Group Members and the
performance of their respective terms shall not constitute a violation of any
limited partnership agreement, operating agreement, bylaws, or any agreement or
instrument to which the Xxxxxxxx Group or any Xxxxxxxx Group Member is a
party;
(c) There are
no other persons who, by reason of their personal, business, professional or
other arrangement with the Xxxxxxxx Group or any Xxxxxxxx Group Member, have
agreed, in writing or orally, explicitly or implicitly, to take any action on
behalf of or in lieu of the Xxxxxxxx Group or any Xxxxxxxx Group Member that
would be prohibited by this Settlement Agreement; and
(d) There are
no arrangements, agreements or understandings concerning the subject matter of
this Settlement Agreement and the Expense Agreement between the Xxxxxxxx Group
or any Xxxxxxxx Group Member and Prudential other than as set forth in this
Settlement Agreement and the Expense Agreement.
2. Representations and
Warranties of the MHC, the Company and the Bank.
(a) The MHC,
the Company and the Bank hereby represent and warrant to the Xxxxxxxx Group that
the MHC, the Company and the Bank have full power and authority to enter into
and perform their respective obligations under this Settlement Agreement and the
Expense Agreement and that the execution and delivery of this Settlement
Agreement and the Expense Agreement by the MHC, the Company and the Bank has
been duly authorized by the Board of Directors of the MHC, the Company and the
Bank. This Settlement Agreement and the Expense Agreement constitute valid
and binding obligations of the MHC, the Company and the Bank and the performance
of their respective terms shall not constitute a violation of their respective
articles of incorporation or bylaws or any agreement or instrument to which the
MHC, the Company or the Bank is a party.
(b) Prior to
the date of this Settlement Agreement, the Company has repurchased
1,493,884
shares of Company Common Stock and the MHC has purchased 149,000 shares of
Company Common Stock, for a total of 1,642,884 shares
(collectively referred to as the “Prior Repurchases”).
(c) The MHC,
the Company and the Bank hereby represent and warrant to the Xxxxxxxx Group that
there are no arrangements, agreements, or understandings concerning the subject
matter of this Settlement Agreement and the Expense Agreement between the
Xxxxxxxx Group or any Xxxxxxxx Group Member and Prudential other than as set
forth in this Settlement Agreement and the Expense Agreement.
3. Covenants.
(a) During the
term of this Settlement Agreement, Prudential covenants and agrees as
follows:
(i)
In connection with this Settlement Agreement, each of the Boards of Directors of
the MHC, the Company and the Bank has adopted a resolution stating that it is
the intention of Prudential to complete a second step conversion, whereby
Prudential would reorganize from the mutual holding company form of organization
to the stock holding company form of organization (the “Second Step
Conversion”), by no later than the annual meeting of shareholders for 2013,
currently expected to be held in February 2013 (the “2013 Annual Meeting”).
Such intention is subject to the Prudential Boards’ exercise of their
fiduciary duties and their ongoing evaluation of the merits of proceeding with
the Second Step Conversion in light of a variety of considerations, including
but not limited to market conditions and the Bank’s and the Company’s capital
needs.
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(ii)
Promptly after entering into the Settlement Agreement, the Company will issue a
press release announcing that (A) conducting the Second Step Conversion is an
integral part of Prudential’s long-term strategic plan and (B) proceeding with
the Second Step Conversion under the time frames outlined in Section 3(a)(i)
above will be a function of, among other things, an evaluation of market
conditions, which currently are not favorable but which the Company believes
will improve over the next several years.
(iii)
Subject to market conditions and Prudential’s capital needs and the fiduciary
duties of the respective Boards of Directors, the Company and the MHC, between
them, will repurchase, in the case of the Company, or purchase, in the case of
the MHC, at least 1,357,116 additional
shares of Company Common Stock by September 30, 2011 (the “Proposed Share
Repurchase Plan”). Upon completion of the Proposed Share Repurchase Plan,
the Company and the MHC will have repurchased or purchased, as the case may be,
when aggregated with the Prior Repurchases, a total of 3,000,000 shares of
Company Common Stock.
(iv)
(A) In the event that the MHC and the
Company do not complete the Proposed Share Repurchase Plan by purchasing and/or repurchasing a total of
3,000,000 shares of Company Common Stock by September 30, 2011 (not
including any shares that may be repurchased pursuant to the Benefit Plan
Repurchases (as hereinafter defined)), Prudential will by October 15, 2011
either (X) adopt a plan of conversion pursuant to which the Second Step
Conversion will be effected (the “Plan of Conversion”), or (Y) appoint to the
Boards of Directors of the MHC, the Company and the Bank an individual nominated
by the Xxxxxxxx Group (“the Xxxxxxxx Representative”) who (1) is acceptable to
Prudential, which acceptance will not be unreasonably withheld; (2)(a) resides
in Bucks, Xxxxxxx, Delaware, Xxxxxxxxxx, or Philadelphia Counties, Pennsylvania
or Camden County, New Jersey; and (b) has significant financial expertise and/or
banking experience.
(B) The determination of whether to take the
action in subclause (X) in Section 3(a)(iv)(A) above or instead to take the
action in subclause (Y) in Section 3(a)(iv)(A) above shall be solely at the
discretion of Prudential and is not subject to challenge by the Xxxxxxxx Group.
In the event Prudential determines to appoint the Xxxxxxxx Representative
to the Boards of Directors of the MHC, the Company and the Bank, the Xxxxxxxx
Representative will be appointed by October 15, 2011 to the class of directors
of the Boards of Directors of the MHC, the Company and the Bank whose terms will
expire at the respective entity’s annual meeting held in 2014 (the “2014
Class”). Such annual meetings are currently expected to be held in
February 2014. Prudential would take such corporate action as is necessary
to permit the appointment of the Xxxxxxxx Representative to the three Boards of
Directors. In the event the Xxxxxxxx Representative is appointed to the
Boards of Directors of each of the Company, the Bank and the MHC, the Boards of
Directors of each of the Company, the Bank and the MHC will nominate the
Xxxxxxxx Representative for an additional three year term expiring at the
respective entity’s annual meeting held in 2017 and for an additional two year
term thereafter expiring at the respective entity’s annual meeting held in 2019,
provided, however, that the Xxxxxxxx Representative will resign from the Board
of Directors of each entity upon the expiration date of this Settlement
Agreement. The Company will recommend to its shareholders the election of the
Xxxxxxxx Representative at each of the Company's annual meetings at which the
Xxxxxxxx Representative is a nominee for re-election, subject to satisfaction of
all legal and governance requirements regarding service as a director of the
Company. The Company shall use its reasonable best efforts to have the Xxxxxxxx
Representative elected as a director of the Company and the Company shall
solicit proxies for such person to the same extent as it does for any of its
other nominees to the Board of Directors. The MHC agrees to vote the shares of
Company Common Stock held thereby in favor of the Xxxxxxxx Representative’s
election at the Company’s annual meetings of shareholders at which the Xxxxxxxx
Representative is a nominee for re-election.
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The Company agrees to vote the shares of the common
stock of the Bank owned thereby in favor of the re-election of the Xxxxxxxx
Representative at the annual meetings of the Bank at which the Xxxxxxxx
Representative is a nominee for re-election. In addition, the Board of Directors
of the MHC will re-appoint the Xxxxxxxx Representative to the Board of the MHC
at the annual meetings thereof at which the Xxxxxxxx Representative is a nominee
for re-appointment. The Xxxxxxxx Group shall have the power to designate the
Xxxxxxxx Representative's replacement upon the death, resignation, retirement,
disqualification or removal from office of such director, subject to (i)
satisfaction of all legal and governance requirements regarding service as a
director of Prudential and (ii) the acceptance of Prudential, which acceptance
will not be unreasonably withheld, and the compliance with the provisions of
Section 3(a)(iv)(A)(Y). The Boards of Directors of each of the MHC, the Company
and the Bank will promptly take all action reasonably required to fill any such
vacancy so occurring.
(C) In the event that Prudential takes the
action described above in subparagraph (X) in Section 3(a)(iv)(A) above and
completes the Second Step Conversion by June 30, 2012, Prudential’s obligations
under this Settlement Agreement to purchase
and/or repurchase shares of Company Common Stock will cease.
(v)
In the event that the Plan of Conversion is adopted pursuant to Section
3(a)(iv)(A) but the Second Step Conversion is not completed by June 30, 2012 and
Prudential has not previously appointed the Xxxxxxxx Representative to the
Boards of Directors of the MHC, the Company and the Bank, the Boards of
Directors of such entities shall promptly appoint the Xxxxxxxx Representative to
the 2014 Class.
(vi)
In the event the Second Step Conversion is completed by September 30, 2011,
there will be no obligation to appoint the Xxxxxxxx Representative to the Boards
of Directors of the MHC, the Company and the Bank.
(vii)
The Company may adopt and implement, including seeking shareholder approval, the
Stock Option Plan and the Management Recognition and Retention Plan
(collectively, the “Stock Benefit Plans”), covering an aggregate of 791,517
shares of Company Common Stock at any time subsequent to the execution of this
Agreement by the parties hereto. Option grants and restricted stock awards
may be made promptly after receipt of shareholder approval notwithstanding any
other provision of this Settlement Agreement and shall vest in accordance with
the terms of the Stock Benefit Plans.
(viii)
Until and unless a Second Step Conversion has been completed, Prudential will
fund awards granted pursuant to the Stock Benefit Plans through the repurchase
by the Company of the necessary shares through open market or privately
negotiated transactions (“Benefit Plan Repurchases”), such repurchases being in
addition to the shares being repurchased pursuant to the Proposed Share
Repurchase Plan. In addition, Prudential will engage an independent benefits
consulting firm of its choosing to advise Prudential with regard to
administration of the Stock Benefit Plans, including assistance in determining
grant levels.
(ix)
Any stock option and/or recognition and retention stock plans adopted by
Prudential subsequent to the completion of a Second Step Conversion (the “Second
Step Stock Benefit Plans”) will be funded with shares of common stock held in
treasury by the then public holding company for the Bank (the “New Holding
Company”). Furthermore, the New Holding Company will engage an independent
benefits consulting firm to advise the New Holding Company with respect to the
Second Step Stock Benefit Plans.
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(x)
In connection with the Second Step Conversion, the New Holding Company will
disclose in the prospectus used to offer its stock to depositors and existing
shareholders of the Company that it intends to consider a variety of capital
management strategies which will include, among others, share repurchases.
It is anticipated that possible share repurchases by the New Holding Company
will be considered by the Board of Directors of the New Holding Company
beginning promptly after the one year anniversary of the Second Step
Conversion.
(xi) During the term of
this Settlement Agreement, neither Prudential nor any of its directors
shall make any public statement, whether by press release, advertisement,
comment to any news media, filings under federal securities laws or federal or
state banking laws or otherwise, regarding the affairs of the Xxxxxxxx Group or
any Xxxxxxxx Group Member that (A) reflects negatively against Xxxxxxxx Group or
any Xxxxxxxx Group Member or (B) is inconsistent with the description of and
disclosure regarding this Settlement Agreement as agreed to by Prudential and
the Xxxxxxxx Group pursuant to Section 7 hereof; provided, however, that no
party shall be required to revise or amend any prior disclosures or descriptions
of the Xxxxxxxx Litigation, the Appeal, the Xxxxxxxx Demand or the circumstances
leading up to such matters.
(b) For
purposes of Section 3(b), reference to the Company and the Company Common Stock
will be deemed to include references to the New Holding Company and its common
stock (“New Holding Company Common Stock”) with respect to the periods
subsequent to the completion of the Second Step Conversion. During the
term of this Settlement Agreement, the Xxxxxxxx Group and each Xxxxxxxx Group
Member covenant and agree not to do the following, directly or indirectly, alone
or in concert with any other affiliate, group or other person:
(i) own, acquire, offer or
propose to acquire or agree to acquire, whether by purchase, tender or exchange
offer, or through the acquisition of control of another person or entity
(including by way of merger or consolidation), the beneficial ownership of, or
the right to vote, any additional shares of the outstanding Company Common Stock
or any securities convertible into Company Common Stock (except by way of stock
splits, stock dividends, stock reclassifications or other distributions or
offerings made available and, if applicable, exercised on a pro rata basis, to
holders of the Company Common Stock generally);
(ii) without the Company’s prior
written consent, directly or indirectly, sell, transfer or otherwise dispose of
any interest in the Xxxxxxxx Group’s shares of Company Common Stock to any
person the Xxxxxxxx Group believes, after reasonable inquiry, would beneficially
own immediately after any such sale or transfer more than 5% of the outstanding
shares of the Company Common Stock;
(iii)
(A) propose or seek to effect a merger, consolidation, recapitalization,
reorganization, sale, lease, exchange or other disposition of substantially all
the assets of, or other business combination involving, or a tender or exchange
offer for securities of, the Company or the Bank or any material portion of the
Company’s or the Bank’s business or assets or any other type of transaction that
would result in a change in control of the Company (any such action described in
this clause (A) is a “Company Transaction Proposal”), (B) seek to exercise any
control or influence over the management of the Company or the Boards of
Directors of the Company, the MHC or the Bank or any of the businesses,
operations or policies of the Company, the MHC or the Bank, provided that if the
Xxxxxxxx Representative is appointed to the Boards of Directors of the Company,
the MHC and the Bank, such individual can take action as is necessary to fulfill
his or her duties as a director, (C) present to the Company, its shareholders or
any third party any proposal constituting or that could reasonably be expected
to result in a Company Transaction Proposal, or (D) seek to effect a change in
control of the Company;
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(iv) publicly suggest or announce its
willingness or desire to engage in a transaction or group of transactions or
have another person engage in a transaction or group of transactions that would
constitute or could reasonably be expected to result in a Company Transaction
Proposal or take any action that might require the Company to make a public
announcement regarding any such Company Transaction Proposal;
(v) initiate, request, induce,
encourage or attempt to induce or give encouragement to any other person to
initiate any proposal constituting or that can reasonably be expected to result
in a Company Transaction Proposal, or otherwise provide assistance to any person
who has made or is contemplating making, or enter into discussions or
negotiations with respect to, any proposal constituting or that can reasonably
be expected to result in a Company Transaction Proposal;
(vi)
solicit proxies or written consents or assist or participate in any other way,
directly or indirectly, in any solicitation of proxies or written consents, or
otherwise become a “participant” in a “solicitation,” or assist any
“participant” in a “solicitation” (as such terms are defined in Rule 14a-1 of
Regulation 14A and Instruction 3 of Item 4 of Schedule 14A, respectively, under
the Securities Exchange Act of 1934) in opposition to any recommendation or
proposal of the Company’s Board of Directors, or recommend or request or induce
or attempt to induce any other person to take any such actions, or seek to
advise, encourage or influence any other person with respect to the voting of
(or the execution of a written consent in respect of) the Company Common Stock,
or execute any written consent in lieu of a meeting of the holders of the
Company Common Stock or grant a proxy with respect to the voting of the capital
stock of the Company to any person or entity other than the Board of Directors
of the Company;
(vii) initiate, propose, submit, encourage or
otherwise solicit shareholders of the Company for the approval of one or more
shareholder proposals or induce or attempt to induce any other person to
initiate any shareholder proposal, or seek election to, or seek to place a
representative or other affiliate or nominee on, the Company’s Board of
Directors (other than with respect to the provisions of Sections 3(a)(iv)(A) and
(v), providing for the possible appointment of the Xxxxxxxx Representative) or
seek removal of any member of the Company’s Board of Directors;
(viii) form, join in or in
any other way (including by deposit of the Company’s capital stock) participate
in a partnership, pooling agreement, syndicate, voting trust or other group with
respect to Company Common Stock, or enter into any agreement or arrangement or
otherwise act in concert with any other person, for the purpose of acquiring,
holding, voting or disposing of Company Common Stock;
(ix) (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 Company’s Board of
Directors to a vote of the Company’s shareholders, 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
shareholders in connection with), or make any statement in favor of, any
proposal submitted to a vote of the Company’s shareholders that is opposed by
the Company’s Board of Directors;
(x) vote for any nominee or nominees
for election to the Board of Directors of the Company other than those nominated
or supported by the Company’s Board of Directors or consent to become a nominee
for election as a director of the Company;
(xi) except in connection with the
enforcement of this Settlement Agreement, initiate or participate, by
encouragement or otherwise, in any litigation against or derivatively on behalf
of the Company, the MHC or the Bank or their respective officers and directors,
except for testimony which may be required by law;
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(xii) make any public statement, whether by press
release, advertisement (including the posting of billboards), comment to any
news media, filings under federal securities laws or federal or state banking
laws or otherwise, regarding the affairs of Prudential that (A) reflects
negatively against Prudential or the Boards of Directors of Prudential or any of
the directors or officers of the MHC, the Company or the Bank or (B) is
inconsistent with the description of and disclosure regarding this Settlement
Agreement as agreed to by Prudential and the Xxxxxxxx Group pursuant to Section
7 hereof; provided, however, that no party shall be required to revise or amend
any prior disclosures or descriptions of the Xxxxxxxx Litigation, the Appeal,
the Xxxxxxxx Demand or the circumstances leading up to such matters;
and
(xiii) advise, assist, encourage or finance (or
arrange, assist or facilitate financing to or for) any other person in
connection with any of the matters restricted by, or otherwise seek to
circumvent the limitations of, this Settlement Agreement.
(c) The Xxxxxxxx Group shall within five (5) business
days of the execution of this Settlement Agreement remove any and all existing
billboards or signs erected at the Xxxxxxxx Group’s direction making reference
to Prudential.
(d) Xxxxxxxx Value Partners shall
within five (5) business days of the execution of this Settlement Agreement
enter into a stipulation for the dismissal, with prejudice, of the Appeal, in
the form attached as Exhibit B. Upon execution of this Settlement
Agreement, the Xxxxxxxx Demand shall be deemed to have been
withdrawn.
(e) During the term of this Settlement
Agreement, the Xxxxxxxx Group and each Xxxxxxxx Group Member covenant and agree,
and shall require each of their affiliates, to vote the shares of Company Common
Stock beneficially owned by them in favor of the approval of the Stock Benefit
Plans, the Plan of Conversion, the Second Step Conversion and the Second Step
Stock Benefit Plans (the “Proposals”) and will not make any public statement in
opposition to the Proposals.
(f) In connection with the
announcement of the execution of this Settlement Agreement, the Xxxxxxxx Group
will state publicly, in the press release attached as Exhibit C, that the shares
of Company Common Stock that it beneficially owns may be sold from time to time
in open market transactions.
(g) (i) In the event that at any time
from the date of this Settlement Agreement through September 30, 2011, the
closing sales price per share of the Company’s Common Stock on the Nasdaq Global
Market is $12.50 per share or higher (“First Threshold”), the Company and/or the
MHC have the right to purchase from the Xxxxxxxx Group up to 260,000 shares of
Company Common Stock (or
all of the shares owned by the Xxxxxxxx Group if at such time the Xxxxxxxx Group
does not beneficially own 260,000 or more shares of Company Common
Stock) at $12.50 per share (“First Call
Option”). Once the Company and/or the MHC become aware that the First
Threshold has been reached, the Company and/or the MHC will provide written
notice within three (3) business days to the Xxxxxxxx Group that the First Call
Option is exercisable. The Company and/or the MHC can exercise the First
Call Option at any time during the fifteen (15) business day period after
written notice is given to the Xxxxxxxx Group that the First Call Option is
exercisable. The Company and/or the MHC can exercise the First Call Option
in full or in part in their complete discretion. If the Company and/or the
MHC choose to exercise the First Call Option in full or in part, settlement of
the purchase of the shares being sold by the Xxxxxxxx Group pursuant to the
First Call Option will be within three (3) business days of such exercise, with
payment by wire transfer to an account identified by the Xxxxxxxx
Group.
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(ii) In the event that at any time from the date of this Settlement
Agreement through September 30, 2011, the closing sales price per share of the
Company Common Stock is $13.50 per share or higher (“Second Threshold”), the
Company and/or the MHC have the right to purchase from the Xxxxxxxx Group up to
an additional 260,000 shares of Company Common Stock (or all of the shares owned
by the Xxxxxxxx Group if at such time the Xxxxxxxx Group does not beneficially
own 260,000 or more shares of Company Common Stock) at $13.50 per share (the
“Second Call Option”). Once the Company and/or the MHC become aware that
the Second Threshold has been reached, the Company and/or the MHC will provide
written notice within three (3) business days to the Xxxxxxxx Group that the
Second Call Option is exercisable. The Company and/or the MHC can exercise
the Second Call Option at any time during the fifteen (15) business days after
written notice is given to the Xxxxxxxx Group that the Second Call Option is
exercisable. The Company and/or the MHC can exercise the Second Call
Option in full or in part in their complete discretion. The ability of
the Company and/or the
MHC to exercise the Second Call
Option is not contingent on whether the First Call Option was exercised in full
or in part. If the Company and/or the MHC chooses to exercise the Second
Call Option in full or in part, settlement of the purchase of the shares being
sold by the Xxxxxxxx Group pursuant to the Second Call Option will be within
three (3) business days of such exercise, with payment by wire transfer to an
account identified by the Xxxxxxxx Group.
(h) In the event that prior to September 30, 2011, the Xxxxxxxx Group ceases to
beneficially own 5.0% or more (the “Minimum Share Ownership”) of the issued and
outstanding shares of Company Common Stock, Prudential will have no obligation
to adopt a Plan of Conversion and complete a Second Step Conversion or to
appoint the Xxxxxxxx Representative as provided by Section 3(a)(iv)(A);
provided, however, the decline in the Xxxxxxxxx Group’s beneficial ownership
below the Minimum Share Ownership level shall not affect the obligations of
Prudential set forth in Sections 3(a)(iii) and 3(a)(viii). The Xxxxxxxx
Group shall notify Prudential in writing of the decline in the Xxxxxxxx Group’s
beneficial ownership below the Minimum Share Ownership within three (3) business
days of the date that its beneficial ownership falls below the Minimum Share
Ownership threshold.
4. Notice of Breach and
Remedies.
The parties expressly agree that an actual or threatened breach of this
Settlement Agreement by any party will give rise to irreparable injury that
cannot adequately be compensated by damages. Accordingly, in addition to any
other remedy to which it may be entitled, each party shall be entitled to seek a
temporary restraining order or injunctive relief to prevent a breach of the
provisions of this Settlement Agreement or to secure specific enforcement of its
terms and provisions.
The Xxxxxxxx Group and each Xxxxxxxx Group Member
expressly agree that they will not be excused or claim to be excused from
performance under this Settlement Agreement as a result of any material breach
by Prudential unless and until Prudential is given written notice of such breach
and thirty (30) business days either to cure such breach or seek relief in
court. If Prudential seeks relief in court, the Xxxxxxxx Group and each
Xxxxxxxx Group Member irrevocably stipulate that any failure to perform by the
Xxxxxxxxx Group and/or any Xxxxxxxx Group Member or any assertion by the
Xxxxxxxx Group and/or any Xxxxxxxx Group Member that they are excused from
performing their obligations under this Settlement Agreement would cause
Prudential irreparable harm, that Prudential shall not be required to provide
further proof of irreparable harm in order to obtain equitable relief and that
the Xxxxxxxx Group and each Xxxxxxxx Group Member shall not deny or contest that
such circumstances would cause Prudential irreparable harm. If, after such
thirty (30) business day period, Prudential has not either reasonably cured such
material breach or obtained relief in court, the Xxxxxxxx Group or each Xxxxxxxx
Group Member may terminate this Settlement Agreement by delivery of written
notice to Prudential.
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Prudential expressly agrees that it will not be excused
or claim to be excused from performance under this Settlement Agreement as a
result of any material breach by the Xxxxxxxx Group or any Xxxxxxxx Group Member
unless and until the Xxxxxxxx Group and each Xxxxxxxx Group Member is given
written notice of such breach and thirty (30) business days either to cure such
breach or seek relief in court. If the Xxxxxxxx Group or any Xxxxxxxx
Group Member seeks relief in court, Prudential irrevocably stipulates that any
failure to perform by Prudential or any assertion by Prudential that it is
excused from performing its obligations under this Settlement Agreement would
cause the Xxxxxxxx Group and each Xxxxxxxx Group Member irreparable harm, that
the Xxxxxxxx Group or any Xxxxxxxx Group Member shall not be required to provide
further proof of irreparable harm in order to obtain equitable relief and that
Prudential shall not deny or contest that such circumstances would cause the
Xxxxxxxx Group and each Xxxxxxxx Group Member irreparable harm. If, after
such thirty (30) business day period, the Xxxxxxxx Group or the Xxxxxxxx Group
Member has not either reasonably cured such material breach or obtained relief
in court, Prudential may terminate this Settlement Agreement by delivery of
written notice to the Xxxxxxxx Group and each Xxxxxxxx Group
Member.
5. Release.
Prudential, the Xxxxxxxx Group and each Xxxxxxxx Group Member, on behalf
of themselves and their subsidiaries, affiliates, officers, directors, partners,
members, employees, agents, assigns, successors, heirs and legal
representatives, hereby mutually release and forever discharge each and every
other party to this Agreement (and any subsidiaries, affiliates, officers,
directors, partners, members, employees, attorneys, financial advisors, agents,
assigns, successors, heirs and legal representatives) from any and all actions,
causes of actions, claims, demands, debts, damages and liabilities of whatsoever
kind and nature, known and unknown, at law or in equity, in contract or in tort,
fixed or contingent, liquidated or unliquidated, which each party now has,
claims, threatens or asserts, or might or could hereafter have, claim, threaten
or assert, against any or all of the other parties to this Agreement (or any of
such parties’ subsidiaries, affiliates, officers, directors, partners, members,
employees, attorneys, financial advisors, agents, assigns, successors, heirs and
legal representatives) arising or alleged to arise out of or in any manner
related to any contracts, transactions, acts or omissions by any party on or
prior to the date of this Settlement Agreement. Notwithstanding the
foregoing, this mutual release neither extends to nor includes the obligations
and liabilities created by this Agreement. The mutual release set forth in
this Section is understood and intended by the parties to constitute a general
release.
6. Term.
This Settlement Agreement shall be effective upon the execution of the
Settlement Agreement, and will remain in effect for a period of ten (10)
years.
7. Publicity.
Promptly upon the execution and delivery of this Settlement Agreement,
Prudential and the Xxxxxxxx Group shall issue the joint press release attached
as Exhibit C, which has been mutually agreed to by the parties.
Furthermore, attached as Exhibit D is the mutually agreed upon disclosure
the Xxxxxxxx Group shall include in an amendment to its Prudential Schedule 13D,
reporting the Settlement Agreement. Attached as Exhibit E is the mutually
agreed upon disclosure the Company shall include in its Form 8-K, reporting the
Settlement Agreement. In addition, Prudential and the Xxxxxxxx Group shall
each provide to the other party for such party’s prior review and approval any
additional future disclosure proposed to be made by Prudential or the Xxxxxxxx
Group concerning this Settlement Agreement unless such additional future
disclosure is substantially identical to or consistent with the disclosures
mutually agreed to in Exhibits C-E. All future disclosures concerning the
Settlement Agreement will be consistent with the disclosures mutually agreed to
in Exhibits C-E. No party, however, will be required to revise or amend
any prior disclosure or descriptions of the Xxxxxxxx Litigation, the Appeal, the
Xxxxxxxx Demand or the circumstances leading up to such matters. During
the term of this Settlement Agreement, no party to this Settlement Agreement
shall cause, discuss, cooperate or otherwise aid in the preparation of any press
release or other publicity concerning any other party to this Settlement
Agreement or its operations without the prior approval of such other party other
than press releases or other publicity substantially identical to or consistent
with the disclosures mutually agreed to in Exhibits
C-E.
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8. Notices.
All notices, communications and deliveries required or permitted by this
Agreement shall be made in writing signed by the party making the same, shall
specify the Section of this Agreement pursuant to which it is given or being
made and shall be deemed given or made (a) on the date delivered if
delivered by telecopy or in person, (b) on the third Business Day
after it is mailed if mailed by registered or certified mail (return receipt
requested) (with postage and other fees prepaid) or (c) on the day after it
is delivered, prepaid, to an overnight express delivery service that confirms to
the sender delivery on such day, as follows:
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Xxxxxxxx Group:
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Xxxxxx Xxxxxxxx
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
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With a copy to:
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Xxxxxxx X. Xxxxxxxxx, Esq.
00 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:
212-233-9713
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Prudential:
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Xxxxxx X. Xxxxx
President and Chief Executive
Officer
Prudential Mutual Holding
Company
Prudential Bancorp, Inc. of
Pennsylvania
Prudential Savings Bank
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: 000-000-0000
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With a copy to:
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Xxxxxxx X. Xxxxxxx., Esq.
Xxxxxx X. Xxxxx, Esq.
Elias, Matz, Xxxxxxx & Xxxxxxx
L.L.P.
000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile:
000-000-0000
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and
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Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. XxXxxxx, Esq.
Drinker Xxxxxx & Xxxxx
LLP
One Xxxxx Square
00xx & Xxxxxx
Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Facsimile:
000-000-0000
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9. Governing Law and
Choice of Forum. Unless applicable federal law or regulation is
deemed controlling, Pennsylvania law shall govern the construction and
enforceability of this Settlement Agreement. Any and all actions
concerning any dispute arising hereunder shall be filed and maintained in the
United States District Court for the Eastern District of Pennsylvania or, if
there is no basis for federal jurisdiction, in the Philadelphia Court of Common
Pleas. The Xxxxxxxx Group and the Xxxxxxxx Group Members agree that the
United States District Court for the Eastern District of Pennsylvania and the
Philadelphia Court of Common Pleas may exercise personal jurisdiction over them
in any such actions.
10. Severability.
If any term, provision, covenant or restriction of this Settlement
Agreement is held by any governmental authority or a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Settlement Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
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11. Successors and
Assigns. This Settlement 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, this Settlement Agreement shall not inure to the benefit of,
be enforceable by or create any right or cause of action in any person,
including any shareholder of the Company, other than the parties to the
Settlement Agreement. Nothing contained herein shall prohibit Xxxxxxxx
Value Partners and Xxxxxxxx Partners from being permitted to transfer any
portion or all of the shares of Company Common Stock owned thereby at any time
to any affiliate of Xxxxxxxx Value Partners or Xxxxxxxx Partners but only if the
transferee agrees in writing for the benefit of Prudential (with a copy thereof
to be furnished to Prudential prior to such transfer) to be bound by the terms
of this Settlement Agreement (any such transferee shall be included in the terms
“Xxxxxxxx Group” and “Xxxxxxxx Group Member”).
12. Survival of
Representations, Warranties and Covenants. All representations,
warranties and covenants shall survive the execution and delivery of this
Settlement Agreement and shall continue for the term of this Settlement
Agreement unless otherwise provided.
13. Amendments.
This Settlement 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.
14. Definitions.
As used in this Settlement Agreement, the following terms shall have the
meanings indicated, unless the context otherwise requires:
(a) The term “acquire” means every
type of acquisition, whether effected by purchase, exchange, operation of law or
otherwise.
(b) 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 or 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.
(c) The term “affiliate” means, with
respect to any person, a person or entity that directly, or indirectly through
one or more intermediaries, controls or is controlled by, or is under common
control with such other person.
(d) The terms “beneficial ownership”
or “beneficially owned” mean all Company Common Stock owned or held in the name
of a Xxxxxxxx Group Member or an associate thereof, individually or jointly with
any other person; by any trust in which a Xxxxxxxx Group Member is a settlor,
trustee, or beneficiary; by any corporation in which a Xxxxxxxx Group Member is
a shareholder (owning, together with all other Xxxxxxxx Group Members and their
respective affiliates, more than five percent (5%) of the outstanding voting
power), director or officer; by any partnership in which a Xxxxxxxx Group Member
is a limited partner (owning, together with all other Xxxxxxxx Group Members and
their respective affiliates, more than five percent (5%) of the outstanding
beneficial interests), general partner, employee or agent; or by any other
entity in which a Xxxxxxxx Group Member holds, together with all other Xxxxxxxx
Group Members and their respective affiliates, more than five percent (5%) of
the outstanding beneficial interests.
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(e) The term “change in control”
denotes circumstances under which: (i) any person or group becomes the
beneficial owner of shares of capital stock of the Company, the New Holding
Company or the Bank representing 25% or more of the total number of votes that
may be cast for the election of the Boards of Directors of the Company, the New
Holding Company or the Bank, (ii) the persons who were directors of the Company,
the New Holding Company or the Bank cease to be a majority of the Board of
Directors, in connection with any tender or exchange offer (other than an offer
by the Company, the New Holding Company or the Bank), merger or other business
combination, sale of assets or contested election, or combination of the
foregoing, or (iii) shareholders of the Company, the New Holding Company or the
Bank approve a transaction pursuant to which substantially all of the assets of
the Company, the New Holding Company or the Bank will be sold.
(f) The term “control” (including the
terms “controlling,” “controlled by,” and “under common control with”) means the
possession, direct or indirect, of 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.
(g) The term
“group” has the meaning as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934.
(h) The term “person” includes an
individual, group acting in concert, corporation, partnership, association,
joint stock company, trust, unincorporated organization or similar company,
syndicate, or any other group formed for the purpose of acquiring, holding or
disposing of the equity securities of the Company or the New Holding
Company.
(i) The term “transfer” means,
directly or indirectly, to sell, gift, assign, pledge, encumber, hypothecate or
similarly dispose of (by operation of law or otherwise), either voluntarily or
involuntarily, or to enter into any contract, option or other arrangement or
understanding with respect to the sale, gift, assignment, pledge, encumbrance,
hypothecation or similar disposition of (by operation of law or otherwise), any
Company Common Stock or New Holding Company Common Stock, or any interest in any
Company Common Stock or New Holding Company Common Stock; provided, however,
that a merger or consolidation in which the Company or the New Holding Company
is a constituent corporation shall not be deemed to be the transfer of any
common stock beneficially owned by the Xxxxxxxx Group or a Xxxxxxxx Group
Member.
(j) 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;
Facsimile. This Agreement may be executed in any number of
counterparts and by the parties 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.
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.
17. Termination.
This Agreement shall cease, terminate and have no further force and effect
upon the expiration of the term as set forth in Section 6, unless earlier
terminated by mutual written agreement of the parties.
[Remainder of this
page intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been duly
executed by the undersigned and is effective as of the day and year first above
written.
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XXXXXXXX VALUE PARTNERS I, LLC
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PRUDENTIAL MUTUAL HOLDING COMPANY
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/s/
Xxxxxx Xxxxxxxx
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/s/
Xxxxxx X. Xxxxx
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By:
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XXXXXXXX VALUE LLC
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By:
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Xxxxxx X. Xxxxx
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General Partner
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President and Chief Executive
officer
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/s/ Xxxxxx Xxxxxxxx |
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By:
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Xxxxxx Xxxxxxxx
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Managing and Sole Member
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XXXXXXXX PARTNERS, L.P
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PRUDENTIAL BANCORP, INC.
OF
PENNSYLVANIA |
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| /s/ Xxxxxx Xxxxxxxx | /s/ Xxxxxx X. Xxxxx | ||
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By:
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XXXXXXXX VALUE LLC
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By:
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Xxxxxx X. Xxxxx
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General Partner
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President and Chief Executive
Officer
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| /s/ Xxxxxx Xxxxxxxx | |||
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By:
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Xxxxxx Xxxxxxxx
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Managing and Sole Member
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XXXXXXXX VALUE LLC
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PRUDENTIAL SAVINGS BANK
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| /s/ Xxxxxx Xxxxxxxx | /s/ Xxxxxx X. Xxxxx | ||
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By:
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Xxxxxx Xxxxxxxx
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By:
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Xxxxxx X. Xxxxx
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Managing and Sole Member
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President and Chief Executive
Officer
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XXXXXX XXXXXXXX
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/s/
Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
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XXXX XXXXXXXX
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/s/
Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
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