Sec Form 13D Filing - SEIDMAN LAWRENCE B filing for Bankwell Financial Group Inc. (BWFG) - 2020-02-06

1	NAME OF REPORTING PERSONS   Seidman Investment Partnership III, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*    (a) x                            (b)
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
6	CITIZENSHIP OR PLACE OF ORGANIZATION       Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER   16,062
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER         16,062
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON       16,062
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   0.20%
14	TYPE OF REPORTING PERSON   PN

 

 

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1	NAME OF REPORTING PERSONS   CBPS, LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*    (a) x                             (b)
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
6	CITIZENSHIP OR PLACE OF ORGANIZATION   New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER   100,838
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   100,838
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   100,838
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   1.29%
14	TYPE OF REPORTING PERSON   OO

 

 

 

1	NAME OF REPORTING PERSONS   JBRC I, LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*    (a) x                           (b)
3	SEC USE ONLY
4	SOURCE OF FUNDS               OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
6	CITIZENSHIP OR PLACE OF ORGANIZATION       New Jersey
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER   16,062
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   16,062
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON       16,062
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   0.20%
14	TYPE OF REPORTING PERSON               OO

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D.

SIPIII

 

(a)	As of the close of business on February 5, 2020, SIPIII beneficially owned 16,062 Shares.

 

Percentage: Approximately 0.20%.

 

(b)	1. Sole power to vote or direct the vote: 16,062

 

2. Shared power to vote or direct the vote: 0

 

3. Sole power to dispose or direct the disposition: 16,062

 

4. Shared power to dispose or direct the disposition: 0

 

(c)	There have not been any transactions in the Shares by SIPIII during the past 60 days.

E.

LSBK

 

(a)	As of the close of business on February 5, 2020, LSBK beneficially owned 86,040 Shares.

 

Percentage: Approximately 1.10%.

 

(b)	1. Sole power to vote or direct the vote: 86,040

 

2. Shared power to vote or direct the vote: 0

 

3. Sole power to dispose or direct the disposition: 86,040

 

4. Shared power to dispose or direct the disposition: 0

 

(c)	There have not been transactions in the Shares by LSBK during the past 60 days.

 

G.

Chewy

 

(a)	As of the close of business on February 5, 2020, Chewy beneficially owned 4,291 Shares.

 

Percentage: Approximately 0.05%.

 

(b)	1. Sole power to vote or direct the vote: 4,291

 

2. Shared power to vote or direct the vote: 0

 

3. Sole power to dispose or direct the disposition: 4,291

 

4. Shared power to dispose or direct the disposition: 0

 

(c)	There have not been any transactions in the Shares by Chewy Gooey during the past 60 days.

 

H.

CBPS

 

(a)	As of the close of business on February 5, 2020, CBPS beneficially owned 100,838 Shares.

 

Percentage: Approximately 1.29%.

 

(b)	1. Sole power to vote or direct the vote: 100,838

 

2. Shared power to vote or direct the vote: 0

 

3. Sole power to dispose or direct the disposition: 100,838

 

4. Shared power to dispose or direct the disposition: 0

 

(c)	There have not been any transactions in the Shares by CBPS during the past 60 days.

 

J.

JBRC

 

(a)	JBRC, as a co-general partner of SIPIII, may be deemed the beneficial owner of the 16,062 Shares owned by SIPIII.

 

Percentage: Approximately 0.20%.

 

(b)	1. Sole power to vote or direct the vote: 16,062

 

2. Shared power to vote or direct the vote: 0

 

3. Sole power to dispose or direct the disposition: 16,062

 

4. Shared power to dispose or direct the disposition: 0

 

(c)	JBRC has not entered into any transactions in the Shares during the past 60 days.

 

 

CUSIP No. 06654A103

 

 

        To the best of the Reporting Persons’ knowledge, except as set forth in this Schedule 13D, none of the persons listed on

         Schedule A to the Schedule 13D beneficially owns any securities of the Issuer.

 

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AGREEMENT

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:

(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.

(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.

(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 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.

(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 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.

(d)     Seidman shall not receive any compensation for services rendered pursuant to this Section 4.

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 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.

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.

If to the Company:

Bankwell Financial Group, Inc.

220 Elm Street

New Canaan, CT 06840

Attention: Christopher Gruseke

With copies to:

Hinckley, Allen & Snyder LLP

100 Westminster Street

Providence, RI 02903

Attention: David S. Hirsch

If to Seidman:

Lawrence Seidman

100 Lanidex Plaza, Suite 100

Parsippany, NJ  07054

With copies to:

Olshan Frome Wolosky LLP

1325 Avenue of the Americas

New York, NY 10019

Attention:  Michael R. Neidell

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BANKWELL FINANCIAL GROUP, INC.

Name:  Christopher R. Gruseke

Title:  President and Chief Executive Officer

Lawrence B. Seidman