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EXHIBIT 10.15
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
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IN RE CARVER BANCORP, INC. : Cons. C.A. No. 17743
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SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made and
entered as of this 19th day of May, 2000 (the "Effective Date"), by and among
BBC Capital Market, Inc. ("BBC Capital"), The Boston Bank of Commerce, Kevin
Cohee and Teri Williams (collectively, the "BBC Capital Parties"); Carver
Bancorp, Inc. ("Carver"), Deborah C. Wright, David N. Dinkins, Linda H. Dunham,
Robert J. Franz, Pazel G. Jackson, Jr., Herman Johnson and David R. Jones (the
"Individual Directors") (collectively, the "Carver Parties"); Morgan & Stanley &
Co., Incorporated ("Morgan Stanley"); and Provender Opportunities Fund, L.P.,
and Frederick O. Terrell (collectively, the "Provender Parties").
W I T N E S S E T H:
WHEREAS, BBC Capital, the Carver Parties, Morgan Stanley and the
Provender Parties are parties to a lawsuit entitled In re Carver Bancorp, Inc.,
Cons. C.A. No. 17743, pending in the Court of Chancery of the State of Delaware
(the "Action").
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the undersigned parties to
this settlement agreement (the "Agreement") do hereby agree as follows:
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1. The Carver Parties and BBC Parties agree that, effective May 19,
2000, Kevin Cohee and Teri Williams will be appointed by Carver to serve (a) on
the Carver Board of Directors (the "Carver Board") for a term expiring at the
annual meeting of stockholders for the fiscal year ending March 31, 2002 and (b)
on the Board of Directors of Carver Federal Savings Bank ("Carver Bank Board")
for a coterminous period, irrespective of whether the Carver Bank Board is
classified.
2. The Carver Parties and BBC Parties agree that, Carver will hold its
annual meeting of stockholders for the fiscal year ending March 31, 2000 on or
before March 24, 2001 (the "2000 Annual Meeting").
3. The Carver Parties and BBC Parties agree that, in connection with
the 2000 Annual Meeting, Carver will ensure that a sufficient number of
directors are made eligible for election to the Carver Board so that the sum of
(a) the number two and (b) the number of directorships up for election at the
2000 Annual Meeting will constitute a majority of the number of directors on the
Carver Board as of the date of the 2000 Annual Meeting. The foregoing provision
will apply under all circumstances including, without limitation, in the event
that the holders of Carver's Series A Preferred Stock and/or Series B Preferred
Stock are permitted to designate one or more additional directors to the Carver
Board at any time before the 2000 Annual Meeting pursuant to the terms of those
securities.
4. BBC Capital has represented that its proxy contest and litigation
expenses exceed $550,000. Within three business days of the earlier of the date
on which the parties execute this Agreement and file a stipulation and order of
dismissal in the Delaware Court of Chancery or May 19, 2000, the Individual
Directors agree to pay and will cause their insurance carrier to pay $475,000 to
BBC Capital in immediately available funds.
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5. Upon execution of this Agreement, BBC Capital and Carver shall issue
a joint press release announcing the settlement, the language of which shall be
consented to by BBC Capital and Carver, which consent shall not be unreasonably
withheld. A copy of the joint press release is attached hereto as Exhibit A.
6. The terms of this Agreement will become effective irrespective of
the outcome of the application submitted in the Action by Blaylock & Partners,
L.P.
7. On the Effective Date, the BBC Capital Parties, the Carver Parties,
Morgan Stanley and the Provender Parties shall execute and file a Stipulation
and Order in the form annexed hereto as Exhibit B.
8. The BBC Capital Parties, the Carver Parties, Morgan Stanley and the
Provender Parties hereby mutually release, remise and acquit and forever
discharge each other from any and all claims concerning the subject matter of
the action titled In re Carver Bancorp, Inc., Civil Action No. 17743; provided,
however, that this release shall not release the obligations undertaken pursuant
to this Agreement. Each party hereto acknowledges that (i) such party has been
advised by counsel in connection with the execution of this mutual release; and
(ii) this instrument is intended as a complete, absolute and final mutual
release and compromise with respect to all matters referenced in this paragraph.
9. This Agreement shall not in any event be construed or deemed a
concession on the part of any of the parties to the truth of any allegations,
claims or defenses made by any of the parties in the Action or of any liability
or wrongdoing of any of the parties.
10. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof. The representations, warranties, covenants
and agreements set forth in this Agreement constitute all representations,
warranties, covenants and agreements of the parties hereto
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and upon which the parties have relied. No change, modification, amendment,
addition, or termination of this Agreement or any part thereof shall be valid
unless in writing and signed by or on behalf of the party to be charged
therewith. Nothing else, including, but not limited to, detrimental reliance,
estoppel, oral representations or promises whatsoever shall amend, modify or
alter this Agreement.
11. No waiver of the provisions hereof shall be effective unless in
writing and signed by the party to be charged with such waiver. No waiver shall
be deemed a continuing waiver or waiver in respect of any subsequent breach or
default, either of similar or different nature, unless expressly so stated in
writing.
12. This Agreement shall be governed, interpreted and construed in
accordance with the laws of the State of Delaware applicable to contracts to be
performed entirely within that State.
13. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
14. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one instrument.
15. Each of the signatories hereto warrants that it, he or she has full
power, capacity and authority to execute this Agreement on behalf of the party
or parties so indicated.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the dates first indicated above with the intent that this
Agreement be a sealed instrument under the laws of the State of Delaware.
BBC CAPITAL MARKET, INC.
Dated: May , 2000
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By:
Title:
THE BOSTON BANK OF COMMERCE
Dated: May , 2000
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By:
Title:
Dated: May , 2000
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Kevin Cohee
Dated: May , 2000
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Teri Williams
CARVER BANCORP, INC.
Dated: May , 2000
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By:
Title:
Dated: May , 2000
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Deborah C. Wright
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Dated: May , 2000
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David R. Jones
Dated: May , 2000
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David N. Dinkins
Dated: May , 2000
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Linda H. Dunham
Dated: May , 2000
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Robert J. Franz
Dated: May , 2000
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Pazel G. Jackson, Jr.
Dated: May , 2000
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Herman Johnson
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MORGAN STANLEY & CO.,
INCORPORATED
Dated: May , 2000
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By:
Title:
PROVENDER OPPORTUNITIES FUND,
L.P.
Dated: May , 2000
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By:
Title:
Dated: May , 2000
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Frederick O. Terrell
