agreementreseidmandir2b8






                                AGREEMENT         This AGREEMENT (the “Agreement”) is made and entered into as of February 5, 2020  (the “Effective Date”), by and among Bankwell Financial Group, Inc., a Connecticut corporation  (the  “Company”), and Lawrence  B.  Seidman,  an  individual (“Seidman”). Certain  capitalized  terms used in this Agreement are defined in Section 10.         WHEREAS,  as  of  the Effective  Date, Seidman  and  certain funds  managed directly  or  indirectly by Seidman (collectively, the “Funds”) beneficially own 770,773 shares of the issued  and outstanding common stock of the Company, no par value per share (the “Common Stock”),  which represents approximately 8.94% of the fully diluted, outstanding Common Stock;         WHEREAS, the Company and Seidman have determined to come to an agreement with  respect to the composition of the Company’s Board of Directors (the “Board”) and the Board of  Directors of Bankwell Bank (the “Bank”), and certain other matters;         WHEREAS, the Board, in exercising its independent judgment and prior to entering into  this Agreement, determined that Seidman would be highly qualified to serve on the Board and on  the Board of Directors of the Bank due to his expertise in a broad range of financial and business  matters; and         WHEREAS, the Company has determined that it is in the best interest of the Company  and  its shareholders,  and  the  Company  and Seidman have  agreed  that  it  is  in  their  mutual  interest, to enter into this Agreement.         NOW, THEREFORE, in consideration of and reliance upon the mutual representations,  warranties,  covenants  and agreements  contained  herein,  and  for  other  good  and  valuable  consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto  agree as follows:         1. Board of Directors.         (a)     For so long as Seidman and the Funds continue to own at least five (5%) percent of  the  outstanding  shares  of  Common  Stock  (the  “Ownership  Threshold”), Seidman shall  be  entitled  to be  a  nominee to  the  Board  and  the  Board  of  Directors  of  the  Bank,  subject  to  satisfaction  of  all  reasonable  corporate  governance  requirements  applicable  to  non-employee  directors, and legal and regulatory requirements regarding service and election or appointment as  a  director  of  the  Company  and  of  the  Bank  by  such  nominee. The  Board hereby  agrees  to  nominate Seidman to the Board as a director with a term expiring at the 2021 Annual Meeting of  the Shareholders of  the  Company,  such  nomination  to  be  included  in  the  Company’s  proxy  statement for the 2020 Annual Meeting of Shareholders. Seidman shall also be appointed to the  Board of Directors of the Bank, subject to, and effective as of, Seidman’s election to the Board.  Seidman,  upon election to  the  Board,  will  be  subject  to  the  same  protections  and  obligations  regarding confidentiality, conflicts of interests, fiduciary duties, trading and disclosure policies  and  other  governance  guidelines  and  policies, and  will  have  the  same  rights  and  benefits,  including (but not limited to) with respect to insurance, indemnification, compensation and fees,  as are available generally to the other non-executive members of the Board.                                         1   59482580 v7 





 






      (b)     If at any time, the aggregate beneficial ownership of Common Stock by Seidman  and the Funds shall fall below five (5%) percent of the outstanding shares of Common Stock, the  Company shall have the option of asking Seidman to resign from the Board and the Board of  Directors of the Bank, at which time Seidman shall resign.         2. Voting. During the Restricted Period, Seidman shall cause, and shall cause the Funds  to  cause,  all  shares  of  Common  Stock  or  any  rights,  warrants,  options  or  other  securities  convertible  into  or  exchangeable  for  shares  of  Common  Stock  or  any  other  securities  of  the  Company for which they have the right to vote, directly or indirectly, to be present in person or  by  proxy  for  quorum  purposes  and  to be  voted  at  any  meeting  of shareholders or  at  any  adjournments or postponements thereof, and to consent in connection with any action by consent  in lieu of a meeting, (i) in favor of each director nominated and recommended by the Board for  election at any such meeting, (ii) against any shareholder nominations for director that are not  approved  and  recommended  by  the  Board  for  election  at  any  such  meeting  and  against  any  proposals or resolutions to remove any member of the Board, and (iii) in accordance with the  recommendations by the Board on all other proposals of the Board set forth in the Company’s  proxy statements.         3. Cooperation. Without the prior written consent of the Board, Seidman shall not, and  shall cause each of his Affiliates and Representatives (including without limitation the Funds)  not  to,  do  any  of  the  following  for  a  period  (the  “Restricted  Period”)  commencing  on  the  Effective Date and ending on the later to occur of (i) the day after the Company’s 2020 Annual  Meeting  of  Shareholders and  (ii)  the date  as  of  which Seidman is  no  longer a  director  of  the  Board and a director of the Board of Directors of the Bank (provided that nothing in this Section  3 shall limit any actions that may be taken by Seidman acting in his capacity as a director of the  Company consistent with his fiduciary duties):         (a)     acquire,  offer  or  agree  to  acquire  (except  by  way  of  stock  dividends  or  other  distributions  or  offerings  made  available  to  holders  of  voting  securities  of  the  Company  generally on a pro rata  basis), directly or indirectly, whether by purchase, tender or exchange  offer,  through  the  acquisition  of  control  of  another  Person,  by  joining  a  partnership,  limited  partnership, syndicate or other “group” (within the meaning of Section 13(d)(3) of the Exchange  Act), through swap or hedging transactions or otherwise, any voting securities of the Company  or  any  voting  rights  decoupled  from  the  underlying  voting  securities  which  would  result  in  Seidman and/or the Funds (together with any other Person or “group” referred to in this Section  3(a)) owning, controlling or otherwise having any ownership or voting interest in 9.9% or more  of the outstanding shares of Common Stock;         (b)     dispose or threaten to dispose (explicitly or implicitly) of voting securities or any  other equity interests of the Company or any of its subsidiaries or affiliates in any manner as a  condition  or  inducement  of  specific  action  or  non-action  by  the  Company  or  any  of  its  subsidiaries or affiliates;         (c)     (i) engage, or in any way participate, directly or indirectly, in any “solicitation” (as  such  term  is  defined  in  Rule  14a-1(l)  under  the  Exchange  Act)  of  proxies  or  consents  in  any  “election contest” with respect to the Company’s directors (regardless of whether it involves the  election or removal of directors of the Company), (ii) seek to advise, encourage or influence any                                         2 





 






Person  with  respect  to  the  voting  of  any  voting  securities  of  the  Company  in  any  “election  contest” with respect to the Company’s directors (regardless of whether it involves the election  or removal of directors of the Company), (iii) initiate, propose or otherwise “solicit” (as  such  term is defined in Rule 14a-1(l) under the Exchange Act) shareholders of the Company for the  approval of shareholder proposals in connection with the election or removal of directors of the  Company or (iv) induce or attempt to induce any other Person to initiate any such shareholder  proposal;         (d)     form,  join  or  in  any  way  participate  in  a  partnership,  syndicate,  or  other  group,  including without limitation any “group” as defined under Section 13(d)(3) of the Exchange Act  (other than a “group” consisting solely of Seidman and any of its Affiliates), with respect to any  voting securities of the Company in connection with any “election contest” with respect to the  Company’s directors or any shareholder proposal for consideration at any shareholder meeting  except as otherwise expressly provided in this Agreement;         (e)     deposit any Company voting securities in any voting trust or subject any Company  voting securities to any arrangement or agreement with respect to the voting thereof, other than  any such voting trust,  arrangement or  agreement solely among Seidman and its  Affiliates  and  except as expressly set forth in this Agreement;         (f)     seek, alone or in concert with others, (i) to call a meeting of shareholders or solicit  consents from shareholders or conduct a nonbinding referendum of shareholders, (ii) to obtain  representation on the Board except as otherwise expressly provided in this Agreement, (iii) to  effect the removal of any member of the Board, provided that this shall not pertain to Seidman,  (iv) to make, be a proponent of, or in any way support a shareholder proposal at any meeting of  the shareholders of  the  Company,  expect  as  provided  in  Section  2  of  this  Agreement,  (v)  to  amend  any  provision  of  the  Company’s  certificate  of  incorporation  or  bylaws  (except  any  privately communicated request for such amendment) or make a request for any shareholder list  or  other  books  and  records  of the  Company,  whether  pursuant  to  the Connecticut Business  Corporation Act, the Company’s bylaws or otherwise, or (vi) exercise or attempt to exercise a  controlling influence over the management or policies of the Company or any of its subsidiaries  or affiliates; or         (g)     make or in any way advance any request or proposal to amend, modify or waive  any provision of this Agreement other than in a nonpublic and confidential manner and which  nonpublic and confidential request could not reasonably be expected by the Company to require  public disclosure by any party hereto.         4. Board Observer Rights.  From the Effective Date until the earlier of (i) the date of the  Company’s 2020 Annual Meeting of Shareholders and (ii) any material violation of the terms of  this Agreement by Seidman (the “Observation Period”), Seidman shall be permitted to act as a  non-voting observer of the Company’s Board of Directors.  The terms of such Board observation  shall be as follows:         (a)     Seidman  may  attend  meetings  of  the  Board  as  a non-voting observer.   Seidman  shall have no voting, policy or decision-making authority.  Seidman shall be entitled to receive,  concurrently with its delivery to the members of the Board, notices of Board meetings during the                                         3 





 






Observation Period.  Seidman shall be entitled to receive Board materials from the Company;  provided that Seidman shall not (i) receive any information that is examination-related material  from or to the Company’s or the Bank’s regulatory authorities, or (ii) participate in any Board  meetings or portions of such meetings at which such information is discussed. Seidman will not  attend Board committee meetings.           (b)     Notwithstanding  clause  (a)  above, (i) Seidman  may  be  excused  from  any  Board  meeting or portion thereof (including any executive session limited to independent directors, the  Company’s  Chief  Executive  Officer,  the  Company’s independent  auditors, and/or the  Company’s legal  counsel) in  the  Board’s  or  the  Board  Chairman’s  discretion,  and  (ii) the  Company shall not deliver materials or portions of materials with respect to any meeting of the  Board to Seidman, and the Company may ask Seidman to recuse himself from any such meeting,  if the Company determines, in its sole discretion: (1) that Seidman’s access to such information  presents  a  potential  conflict  of  interest  with Seidman or  his  Affiliates,  including  any  conflict  resulting  from  the  Board’s  consideration  of  issues  relating  to  this  Agreement,  any  other  contractual arrangement with Seidman or his Affiliates or any transaction in which Seidman or  his  Affiliates may  have  any  interest  other  than  as  a  shareholder  of the Company,  (2) that  Seidman’s  access  to  such  information could  jeopardize  an  attorney-client  privilege,  which  determination  is  made  after the Company’s  consultation with  its  outside  counsel, (3) that  withholding Seidman’s access to such information is necessary or appropriate in furtherance of  discharging  the  Board’s  fiduciary  duties  to the Company’s  shareholders,  or  (4) that  such  information  relates  to an  executive  session  limited  to  independent  directors, the  Company’s  Chief  Executive  Officer, the  Company’s independent  auditors, and/or the  Company’s legal  counsel.  If the Board requests that Seidman recuse himself from any meeting of the Board, or  portion thereof, in accordance with the foregoing, Seidman shall not be entitled to be present at  or participate in such meeting or portion thereof or receive any materials or portions of materials  with respect thereto.  Seidman shall not be entitled to receive copies of any Board consent or  other documentation if the Board Chairman determines, in his sole discretion, that (w) providing  such information presents a potential conflict of interest with Seidman or his Affiliates, including  any conflict resulting from the Board’s consideration of issues relating to this Agreement, any  other  contractual  arrangement  with Seidman or  his  Affiliates or  any  transaction  in  which  Seidman or his Affiliates may have any interest other than as a shareholder of the Company, (x)  providing such information could jeopardize an attorney-client privilege, which determination is  made  after the Company’s  consultation  with  its  outside  counsel,  (y) withholding  such  information is necessary or appropriate in furtherance of discharging the Board’s fiduciary duties  to the Company’s shareholders, or (z) such information relates to a portion of a meeting which is  an executive session limited to independent directors, the Company’s Chief Executive Officer,  the Company’s independent auditors, and/or the Company’s legal counsel.          (c)     During the Observation Period, Seidman may have access to material, non-public  information  about  the  Company.   Seidman agrees he will  not  take  any  action  relating  to  the  securities of the Company which would constitute insider trading, market manipulation, or any  other  violation  of  applicable  securities  law. Seidman  further agrees  to  instruct  all  of his  Representatives to whom he discloses Confidential Information that they may not take any action  relating  to  the  securities  of  the Company  which  would  constitute  insider  trading,  market  manipulation, or any other violation of applicable securities law.                                         4 





 






      (d)     Seidman shall not receive any compensation for services rendered pursuant to this  Section 4.         5. Confidentiality. Seidman acknowledges that information concerning the business and  affairs  of  the  Company and  its  Affiliates (“Confidential  Information”)  may  be  disclosed  to  Seidman by the Company or its subsidiaries, or by the Company’s or its subsidiaries’ directors,  officers, employees, agents, consultants, advisors or other representatives or Affiliates, including  legal  counsel,  accountants  and  financial  advisors  (collectively,  “Representatives”). Seidman  agrees that the Confidential  Information will be kept confidential and that it will not disclose,  other than to his Representatives, any of the Confidential Information in any manner whatsoever  without  the  specific  prior  written  consent  of  the  Company  unless  disclosure  is  required  by  applicable  laws,  regulations  or  valid  legal  process;  provided,  that  the  term  “Confidential  Information” shall not include information that (a) was in or enters the public domain, or was or  becomes generally available to the public, other than as a result of disclosure by Seidman or his  Representatives, or (b) was independently acquired by Seidman or his Representatives without  violating any of their respective obligations  under this  Agreement or any  other confidentiality  agreement, or under any other contractual, legal, fiduciary or binding obligation of Seidman or  any of his Representatives. Seidman agrees to undertake reasonable precautions to safeguard and  protect the confidentiality of the Confidential Information, to accept responsibility for any breach  of  this  Section  5  by  any  of his Representatives,  including  taking  all  reasonable  measures  to  restrain Representatives from prohibited or unauthorized disclosures or uses of the Confidential  Information.         6. Covenant Not to Sue. During the Restricted Period, Seidman, the Funds, and each of  his and their Affiliates and Representatives on the one hand, and the Company and each of its  Affiliates and Representatives on the other hand, agrees not to sue or otherwise commence or  continue in any manner, directly or indirectly, any suit, claim, action, right or cause of action in  any court against the other; provided, that (a) no party hereto shall be prohibited from enforcing  its  rights  under  and  pursuant  to  this  Agreement,  and  (b) Seidman and  the  Funds shall  not  be  prohibited  from  (i)  bringing  bona  fide  commercial  disputes  that  do  not  relate  to  the  subject  matter of this Agreement, or (ii) exercising his statutory appraisal rights.         7. Public Disclosures.         (a)     No later than two business days  following the Effective Date, Seidman shall file  with the SEC an amendment to his Schedule 13D in compliance with Section 13 of the Exchange  Act  reporting  its  entry  into  this  Agreement,  disclosing  applicable  items  to  conform  to his  obligations hereunder and appending this Agreement as an exhibit thereto (the “Schedule 13D  Amendment”).  The  Schedule  13D  Amendment  shall  be  consistent  with  the  terms  of  this  Agreement. Seidman shall  provide  the  Company  and  its  Representatives  with  a  reasonable  opportunity to  review the Schedule 13D Amendment prior to  it being filed with  the SEC  and  consider in good faith any reasonable comments of the Company and its Representatives.         (b)     No later than two business days following the Effective Date, the Company shall  file  with  the  SEC  a  Current  Report  on  Form  8-K  reporting  its  entry  into  this  Agreement,  disclosing  applicable  items  to  conform  to  its  obligations  hereunder  and  appending  this  Agreement  as  exhibits  thereto  (the  “Form  8-K”).  The  Form  8-K  shall  be  consistent  with  the                                         5 





 






terms of this Agreement. The Company shall provide Seidman with a reasonable opportunity to  review and comment on the Form 8-K prior to the filing with the SEC and consider in good faith  any reasonable comments of Seidman.         8. Acquisition of Shares.  Notwithstanding anything herein or in any separate agreement  between the Company and Seidman or his Affiliates (including without limitation the Funds) to  the contrary, in the event that the Company’s tangible book value per share (as determined in  good  faith  by  the  Company) (“TBVPS”)  is  less  than  the  Company’s  closing  stock  price (as  reported on the Nasdaq Stock Market) for twenty (20) consecutive trading days, any restrictions  on Seidman’s acquisition of shares of Common Stock in excess of 9.9% of the Company’s fully  diluted outstanding Common Stock shall be waived.  Such waiver shall remain effective until  such time as the Company’s TBVPS exceeds the Company’s closing stock price (as reported on  the Nasdaq Stock Market).  For the avoidance of doubt, Seidman and his Affiliates (including  without limitation the Funds) shall not be in breach or default of any restriction set forth herein  or  in  any  separate  agreement  between  the  Company  and  Seidman or  his  Affiliates  (including  without limitation the Funds) due to Seidman’s or his Affiliate’s (including without limitation  the Funds) acquisition of shares of Common Stock in excess of 9.9% of the Company’s fully  diluted outstanding Common Stock during the period when such waiver was effective.           9. Representations and Warranties.         (a)     Seidman represents and warrants that (a) he has the power and authority to execute  and deliver this Agreement and to perform all his obligations and consummate the transactions  contemplated hereby, and (b) this Agreement has been duly and validly authorized, executed and  delivered by Seidman, constitutes a valid and binding obligation and agreement of Seidman and  is enforceable against Seidman in accordance with its terms.         (b)     The Company hereby represents and warrants that (i) it has the power and authority  to  execute  and  deliver  this  Agreement  and  to perform  all  its  obligations  and  consummate  the  transactions  contemplated  hereby,  (ii)  this  Agreement  has  been  duly  and  validly  authorized,  executed  and  delivered  by  the  Company,  constitutes  a  valid  and  binding  obligation  and  agreement of the Company and is enforceable against the Company in accordance with its terms,  and  (iii)  the  execution  of  this  Agreement,  the  consummation  of  any  of  the  transactions  contemplated hereby, and the fulfillment of the terms hereof, in each case in accordance with the  terms  hereof,  will  not  conflict  with,  or  result  in  a  breach  or  violation  of  the  organizational  documents of the Company as currently in effect.         10. Definitions.         (a)   “Affiliate” and “associate” have the respective meanings set forth in Rule 12b-2  under the Exchange Act.         (b)   “Exchange Act” means  the Securities Exchange Act of 1934, as amended, and  the rules and regulations promulgated thereunder.         (c)   “Person” means  any  individual,  partnership,  corporation,  limited  liability  company,  or  other  entity,  group,  syndicate, trust,  government  or  agency  thereof,  or  any  other  association or entity.                                         6 





 






      (d)   “Third Party” means any Person that is not a party to this Agreement, a director  or officer of the Company, or legal counsel to any party to this Agreement.         11.  Notices. All  notices,  demands  and  other  communications  to  be  given  or  delivered  under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to  have  been  given  (a)  when  delivered  by  hand,  with  written  confirmation  of  receipt,  (b)  upon  sending  if  sent  by  email  to  the  email  addresses  below  and  the  appropriate  confirmation  is  received, (c) one day after being sent by nationally recognized overnight carrier to the addresses  set  forth  below,  or  (d)  when  actually  delivered  if  sent  by  any  other  method  that  results  in  delivery, with written confirmation of receipt:               If to the Company:                            Bankwell Financial Group, Inc.              220 Elm Street              New Canaan, CT 06840              Attention: Christopher Gruseke              Email: grusekc@mybankwell.com                             With copies to:                            Hinckley, Allen & Snyder LLP              100 Westminster Street              Providence, RI 02903              Attention: David S. Hirsch              Email: dhirsch@hinckleyallen.com                             If to Seidman:              Lawrence Seidman              100 Lanidex Plaza, Suite 100              Parsippany, NJ  07054              Email: lseidman@seidman-associates.com                                       With copies to:              Olshan Frome Wolosky LLP              1325 Avenue of the Americas              New York, NY 10019              Attention:  Michael R. Neidell              Email:  mneidell@olshanlaw.com             12.  Assignments. This  Agreement  shall  not  be  assignable  by  operation  of  law  or  otherwise  by Seidman or  the  Company  without  the  prior  written  consent  of  the  other  party.  Subject to the foregoing sentence, this Agreement shall be binding upon, inure to the benefit of,  and be enforceable by and against the successors and assigns of each party to this Agreement.         13.  Remedies. Seidman,  on  the  one  hand,  and  the  Company,  on  the other  hand, each  acknowledges  and  agrees  that  irreparable  injury  to  the  other  party  hereto  would  occur  in  the                                         7 





 






event any of the provisions of this Agreement were not performed in accordance with its specific  terms or was otherwise breached and that such injury would not be adequately compensable in  damages.  It is accordingly agreed that Seidman, on the one hand, and the Company, on the other  hand,  shall  each  be  entitled  to  specific  enforcement  of,  and  injunctive  relief  to  prevent  any  violation  of, the  terms hereof  and  the  other  party  hereto  will  not  take  any  action,  directly  or  indirectly, in opposition to the party seeking relief on the grounds that any other remedy or relief  is available at law or in equity.         14. Governing Law. The performance, construction and enforcement of this Agreement  and the documents executed in connection with this Agreement shall be governed by the laws of  the State of Connecticut, notwithstanding any choice of law or conflicts of law rule that would  otherwise dictate the application of the law of a different jurisdiction.  The parties agree that any  action or proceeding in respect of any claim arising out of or related to this Agreement shall be  brought exclusively in a federal or state court located in the State of Connecticut (the “Chosen  Court”)  and  (i)  hereby  irrevocably  and  unconditionally  consent  to  submit  to  the  exclusive  jurisdiction of the Chosen Court for any actions, suits or proceedings arising out of or relating to  this  Agreement  and  the  transactions  contemplated  hereby,  (ii)  waive  any  objection  to  laying  venue in any such action or proceeding in the Chosen Court, and (iii) waive any objection that  the Chosen Court is an inconvenient forum or lacks jurisdiction.         15.  No Waiver. Neither  the  failure  nor  any  delay  by  a  party in  exercising  any  right,  power or privilege under this Agreement will operate as a waiver thereof, nor shall any single or  partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,  power or privilege hereunder.         16.  Amendments;  Counterparts. Any  amendment  or  modification  of  the  terms  and  conditions set forth herein or any waiver of such terms and conditions must be agreed to in a  writing signed by each party hereto. This Agreement may be executed in counterparts, each of  which  will  be  deemed  an  original,  but  all  of  which  together  will  constitute  one  and  the  same  agreement. Signatures to this Agreement transmitted, by electronic mail in “portable document  format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic  and pictorial appearance of  a document,  will have the same  effect  as  physical delivery  of the  paper document bearing the original signature.         17. No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties  hereto and is not intended to and does not confer any rights on, and is not enforceable by, any  other Persons.         18. Severability. If at  any time subsequent  to  the Effective Date any provision  of this  Agreement  shall  be  held  by  any  court  of  competent  jurisdiction  to  be  illegal,  void  or  unenforceable,  such  provision  shall  be  of  no  force  and  effect,  but  the  illegality  or  unenforceability of such provision shall have no effect upon the legality or enforceability of any  other provision of this Agreement.         19. Entire Agreement. This Agreement contains the entire agreement and supersedes all  prior agreements and understandings, both written and oral, among the parties with respect to the  subject matter hereof.                                           8 





 






      20. Termination. This Agreement shall terminate automatically upon the expiration of  the Restricted Period; provided however that Sections 4(c), 5, 14 and 20 shall survive and remain  in full force and effect.                        [Remainder of page intentionally left blank ]                                          9 





 






      IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of  the Effective Date.                                           BANKWELL FINANCIAL GROUP, INC.                                                                                                                  By:   /s/ Christopher R. Gruseke                                       Name:  Christopher R. Gruseke                                      Title:  President and Chief Executive Officer                                                                                                                                                              /s/ Lawrence B. Seidman                                       Lawrence B. Seidman                                                10