EXHIBIT 2
AMENDMENT NO. 1
TO
1993 AGREEMENT
WHEREAS, as of April 3, 1993, BFS Bankorp, Inc., a Delaware Corporation
having its principal executive offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(the "Company"), entered into an Agreement (the "Agreement") with Xxxxxxx X.
Xxxxx, Xxxxx Investors L.P., and other persons and entities affiliated with
such persons, under their direct or indirect control, or acting on their behalf
or in concert with them (collectively referred to as "Xxxxx"); and
WHEREAS, the Company and Xxxxx desire to amend the Agreement for the
purposes of clarifying certain provisions thereof and extending certain time
periods provided therein.
NOW THEREFORE, in consideration of the mutual agreements contained herein
and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally found, the parties hereby agree
to amend the Agreement as follows:
1. Paragraph 4(b) is hereby amended by replacing "April 3, 1995," with
"October 3, 1995," and as amended reads as follows:
(b) During the period from April 3, 1993 to October 3, 1995, the
Board of Directors of the Company will not appoint an additional director
to the Board (other than to fill a vacancy as provided below) without the
prior written approval of Xxxxx, provided that the Company may appoint one
additional director to the Board who is at the time of such appointment an
executive officer or director of Bankers Federal, without the prior
approval of Xxxxx.
2. Paragraph 4(d) is hereby amended by replacing "April 3, 1995," with
"October 3, 1995," and as amended reads as follows:
(d) After October 3, 1995, if Xxxxx has not previously designated a
person who has been appointed and elected to the Board in accordance with
(c) above, Xxxxx may propose a person for appointment and election to the
Board, subject to the approval of the Board, which approval will not be
unreasonably withheld, and
subject to any required OTS (or other regulatory) approval.
3. The parties hereby agree that if the Board of Directors elects to
appoint an additional director to the Board (other than to fill a vacancy) who
is at such time an executive officer of Bankers Federal, without the requirement
to obtain the prior approval of Xxxxx, as provided in paragraph (b) of Section 4
of the Agreement, then paragraph (c) of Section 4 shall operate to enable Xxxxx
to appoint an additional director, which person is subject to the approval of
the Board, which shall not be unreasonably withheld.
4. The following paragraph (e) is added to Section 5 of the Agreement:
(e) Any sale of shares of Common Stock by Xxxxx shall be subject to
the condition that the purchaser(s) shall agree to be subject to, and shall
be subject to, the provisions of Section 4(e)(iii) and Sections 5(a)
through (c), so that any purchaser(s) shall be required to vote all Voting
Securities owned by the purchaser(s) as Xxxxx would be required to vote
Voting Securities (assuming that the percentage of Common Stock owned by
Xxxxx is the highest percentage of Common Stock owned by Xxxxx at any time
during the term of the Agreement). Notwithstanding the foregoing, Section
5(e) shall not apply to any purchaser(s) who, giving effect to the proposed
purchase from Xxxxx, owns less than one percent (1%) of the Common Stock
then outstanding (for purposes of determining beneficial ownership of a
purchaser, all shares beneficially owned, or to be purchased from Xxxxx, by
any person acting in concert with such purchaser, shall be included as
beneficially owned by such purchaser).
5. The following paragraph (f) is added to Section 5 of the Agreement:
(f) During the term of this Agreement, and as may from time to time
be reasonably requested by Xxxxx, the Company and the Bank shall support in
writing any application filed by Xxxxx, consistent with this Agreement,
with the OTS to acquire additional shares of Voting Securities.
6. Section 6 of the Agreement is amended by changing the reference to
"April 3, 1999" that appears in the second line, to "April 3, 1998," and by
deleting references therein relating to
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the repayment of the Debenture pursuant to Section 2(c). As amended, Section 6
shall read as follows:
Unless otherwise provided in this Agreement, this Agreement shall
terminate on April 3, 1998, provided that notwithstanding anything in this
Agreement to the contrary, this Agreement shall terminate at such time as
any party (including Xxxxx) shall acquire beneficial ownership of more than
90% of the Common Stock then outstanding.
7. The Agreement is hereby amended to change the references to "April 3,
1999" that appear in Paragraphs 4(e), (f) and 5(a) to "April 3, 1998."
8. All other terms and provisions of the Agreement shall remain in full
force and effect.
9. All terms or words used in this Amendment shall have the meaning
ascribed to in the Agreement, unless otherwise defined in this Amendment.
IN WITNESS WHEREOF, the Company and the Xxxxx have caused this Agreement to
be duly executed, all as of the day and year above written.
BFS BANKORP, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President and Chief Executive
Officer
XXXXX INVESTORS, L.P.
By: Georgetown Partners, Inc.
Managing General Partner
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------- ---------------------------------
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
President
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