VOTING AGREEMENT
This Voting Agreement (this "Agreement") is made and entered into as of
November 13, 2001, by and between Atlantic Bank of New York, a New York State
chartered commercial bank ("Buyer"), and the undersigned stockholder
("Stockholder") of Yonkers Financial Corporation, a Delaware corporation
("Seller").
RECITALS
WHEREAS, Buyer and Seller have entered into an Agreement and Plan of
Merger, dated November 13, 2001 (as may be amended, the "Merger Agreement"),
which provides for the merger (the "Merger") of Seller with and into Buyer, with
Seller being the surviving corporation.
WHEREAS, Stockholder is the record holder and beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of such number of shares of the outstanding common stock, par
value $.01 per share, of the Seller as indicated on the final page of this
Agreement (the "Shares").
WHEREAS, Buyer desires Stockholder to agree, and Stockholder is willing
to agree, not to transfer or otherwise dispose of any of the Shares, or any
other shares of capital stock of Seller acquired hereunder and prior to the
Termination Date (as defined in Section 1.1 below, except as otherwise permitted
hereby), and to vote the Shares and any other such shares of capital stock of
Seller in a manner so as to facilitate consummation of the transactions
contemplated by the Merger Agreement (the "Proposed Transaction"), as provided
herein.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE. Other than as provided herein,
until the Termination Date, Stockholder shall not hereafter (a) sell, tender,
transfer, pledge, encumber, assign or otherwise dispose of any of the Shares or
New Shares (as defined in Section 1.2 below), (b) deposit any Shares or New
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to such Shares or New Shares or grant any proxy or power of attorney
with respect thereto, (c) enter into any contract, option or other arrangement
or undertaking with respect to the direct or indirect sale, transfer, pledge,
encumbrance, assignment or other disposition of any Shares or New Shares, or (d)
take any action that would make any representation or warranty of Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling Stockholder from performing Stockholder's obligations under this
Agreement. Notwithstanding the restrictions set forth in this Section 1.1,
nothing shall prohibit Stockholder from transferring the Shares or New Shares
provided the person or entity to whom such Shares or New Shares are transferred
agrees to be bound by the terms of this Agreement. As used herein, the term
"Termination Date" shall mean the earlier to occur of (i) the Effective Time (as
defined in the Merger Agreement); and (ii) such date and time as the Merger
Agreement shall be terminated pursuant to Article VI thereof.
1.2 ADDITIONAL PURCHASES. Stockholder agrees not to aquire,
directly or indirectly, beneficial ownership of any shares of capital stock of
Seller after the execution of this Agreement and prior to the Termination Date
("New Shares").
2. AGREEMENT TO VOTE SHARES. At every meeting of the stockholders of
Seller called with respect to any of the following matters, and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of Seller with respect to any of the following matters, Stockholder
shall vote the Shares and any New Shares: (i) in favor of approval of the Merger
Agreement and the Proposed Transaction and any matter necessary for consummation
of the Proposed Transaction; (ii) against (x) approval of any Acquisition
Proposal (as defined in the Merger Agreement), (y) any proposal for any action
or agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of Seller under the Merger
Agreement or which could result in any of the conditions of Seller's obligations
under the Merger Agreement not being fulfilled, and (z) any action which could
reasonably be expected to impede, interfere with, delay, postpone or materially
adversely affect consummation of the Proposed Transaction; and (iii) in favor of
any other matter necessary for consummation of the Proposed Transaction which is
considered at any such meeting of stockholders or in such consent, and in
connection therewith to execute any documents which are necessary or appropriate
in order to effectuate the foregoing or, at the request of Buyer, to permit
Buyer to vote such Shares and New Shares directly.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER.
Stockholder hereby represents, warrants and covenants to Buyer as follows:
3.1 DUE AUTHORITY. Stockholder has full power, corporate or
otherwise, and authority to execute and deliver this Agreement and to perform
its obligations hereunder. This Agreement has been duly executed and delivered
by or on behalf of Stockholder and constitutes a legal, valid and binding
obligation of Stockholder, enforceable against Stockholder in accordance with
its terms.
3.2 NO CONFLICT; CONSENTS. (a) The execution and delivery of this
Agreement by Stockholder do not, and the performance by Stockholder of the
obligations under this Agreement and the compliance by Stockholder with any
provisions hereof do not and will not, (i) conflict with or violate any law,
statute, rule, regulation, order, writ, judgment or decree applicable to
Stockholder or the Shares, or (ii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Stockholder is a party or by which Stockholder
or the Shares are bound.
(b) The execution and delivery of this Agreement by
Stockholder do not, and the performance of this Agreement by Stockholder will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority by Stockholder
except for applicable requirements, if any, of the Exchange Act, and except
where the failure to obtain such consents, approvals, authorizations or permits,
or to make
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such filings or notifications, could not prevent or delay the performance by
Stockholder of its obligations under this Agreement in any material respect.
3.3 OWNERSHIP OF SHARES. Stockholder (i) is the beneficial owner
of the Shares, which at the date hereof are, and at all times up until the
Termination Date will be, free and clear of any liens, claims, options, charges,
proxies or voting restrictions or other encumbrances, and (ii) does not
beneficially own any shares of capital stock of Seller other than the Shares.
4. NO LIMITATION ON DISCRETION AS DIRECTOR. Notwithstanding anything
herein to the contrary, the covenants and agreements set forth herein shall not
prevent Xxxxxxxx X. Xxxxx from exercising his duties and obligations as a
Director of Seller or otherwise taking any action, subject to the applicable
provisions of the Merger Agreement, while acting in such capacity as a director
of Seller.
5. ADDITIONAL DOCUMENTS. Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Buyer to carry out the intent of this Agreement.
6. CONSENT AND WAIVER. Stockholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Proposed Transaction
under the terms of any agreements to which Stockholder is a party or pursuant to
any rights Stockholder may have.
7. TERMINATION. This Agreement shall terminate and shall have no
further force or effect as of the Termination Date.
8. APPRAISAL AND DISSENTERS RIGHTS. Stockholder hereby waives and
agrees not to assert, demand or exercise any rights of appraisal or dissenters
in connection with the Merger.
9. MISCELLANEOUS.
9.1 SEVERABILITY. If any term or other provision of this
Agreement is determined to be invalid, illegal or incapable of being enforced by
any rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
extent possible.
9.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
party without the prior written consent of the other party.
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9.3 AMENDMENTS AND MODIFICATIONS. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
9.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
agree that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof or was otherwise
breached. It is accordingly agreed that the parties shall be entitled to
specific relief hereunder, including, without limitation, an injunction or
injunctions to prevent and enjoin breaches of the provisions of this Agreement
and to enforce specifically the terms and provisions hereof, in any state or
federal court in the State of New York, in addition to any other remedy to which
they may be entitled at law or in equity. Any requirements for the securing or
posting of any bond with respect to any such remedy are hereby waived.
9.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or facsimile (with confirmation of receipt), or sent
by mail (registered or certified mail, postage prepaid, return receipt
requested) or overnight courier (prepaid) to the respective parties as follows:
If to Buyer: Atlantic Bank of New York
960 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
with a copy to: Xxxxxxx Xxxxxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to Stockholder: To the address for notice set forth
on the last page hereof
with a copy to: Xxxxx Investors, LP
00 Xxxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective upon receipt.
9.6 GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York, without regard to the conflicts of law principles thereof. The parties
hereto agree that all actions and proceedings arising in connection with this
Agreement or any agreement, document or instrument executed in connection
herewith shall be tried and litigated in the state and Federal courts located in
New York, New York (other than appeals from those courts that may have to be
heard outside of New York, New York).
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9.7 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
9.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
9.10 NO AGREEMENT UNTIL EXECUTED. Irrespective of negotiations
among the parties or the exchanging of drafts of this Agreement, this Agreement
shall not constitute or be deemed to evidence a contract, agreement, arrangement
or understanding between the parties hereto unless and until (i) the Board of
Directors of Seller has approved the Merger Agreement and the Proposed
Transaction, (ii) the Merger Agreement is executed by all parties thereto, and
(iii) this Agreement is executed by all parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date and year first above written.
ATLANTIC BANK OF NEW YORK.
By: /s/ Xxxxxx X. X'Xxxxx
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Xxxxxx X. X'Xxxxx
President and Chief Executive Officer
XXXXX INVESTORS, L.P.
BY GEORGETOWN PARTNERS, INC.
MANAGING GENERAL PARTNER
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
Address for Notice:
XXXXX INVESTORS, LP
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00 XXXXXX XXXX XXXX
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XXXXX XXXX, XXX XXXX 00000
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Shares beneficially owned:
362,300 shares of Common Stock of Yonkers
Financial Corporation
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