EXHIBIT 10.1
SHAREHOLDER
AGREEMENT
This Agreement
("Agreement") dated the 3 rd day of April 2009, is made by and among Riggs
Qualified Partners, LLC, Philip J. Timyan, FJ Capital Long/Short
Equity Fund LLC and Martin S. Friedman (collectively the
"Shareholders" and individually each a "Shareholder"), and GS
Financial Corp. (the "Company") and Guaranty Savings Bank (the
"Bank").
RECITALS
WHEREAS , the Company, the Bank and the Shareholders
have agreed that it is in their mutual interests to enter into this
Agreement as hereinafter described.
NOW,
THEREFORE , in
consideration of the premises and the representations, warranties,
covenants and agreements contained herein, and other good and
valuable consideration, the parties hereto mutually agree as
follows:
1.
Representations and Warranties of the Shareholders.
The Shareholders hereby represent and warrant to the
Company and the Bank as follows:
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The
Shareholders have beneficial ownership of an aggregate amount of
198,223 shares of the Company's common stock ("Common Stock"),
except with respect to 17,850 shares held by RAM T., LP to which
Mr. Timyan claims dispositive power, but not the power to vote, and
have full and complete authority to enter into this Agreement and
to bind the entire number of shares of the capital stock of the
Company in which they have a beneficial ownership interest to the
terms of this Agreement, and this Agreement constitutes a valid and
binding agreement of the Shareholders;
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The
Shareholders have full power and authority to enter into and
perform their obligations under this Agreement, and the execution
and delivery of this Agreement by the Shareholders have been duly
authorized by the principals of the Shareholders. This
Agreement constitutes a valid and binding obligation of each of the
Shareholders, and the performance of its terms shall not constitute
a violation of any limited partnership agreement, operating
agreement, bylaws, or any agreement or instrument to which the
Shareholders or any Shareholder is a party;
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There are no
other persons who, by reason of their personal, business,
professional or other arrangement with the Shareholders or any
Shareholder, have agreed, in writing or orally, explicitly or
implicitly, to take any action on behalf of or in lieu of the
Shareholders or any Shareholder that would be prohibited by this
Agreement; and
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There are no
arrangements, agreements or understandings between the Shareholders
or any Shareholder and the Company and the Bank other than as set
forth in this Agreement.
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2.
Representations and Warranties of the Company and the
Bank. The Company and the Bank hereby represent and
warrant to the Shareholders as follows:
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The Company and
the Bank have full power and authority to enter into and perform
their obligations under this Agreement, and the execution and
delivery of this Agreement by the Company and the Bank have been
duly authorized by the Boards of Directors of the Company and the
Bank and requires no other Board of Directors or shareholder
action. This Agreement constitutes a valid and binding
obligation of the Company and the Bank, and the performance of its
terms does not constitute a violation of the Articles of
Incorporation or Bylaws of the Company and the Charter and Bylaws
of the Bank; and
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There are no
arrangements, agreements or understandings between the Company, the
Bank and the Shareholders or any Shareholder, other than as set
forth in this Agreement.
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During the term
of this Agreement, the Company and the Bank covenant and agree as
follows:
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(i)
Company Directorship. In connection with the
approval of this Agreement, no later than the date the Company's
proxy materials for the 2009 Annual Meeting of Shareholders are
first mailed, the Company shall take all required action to appoint
Martin S. Friedman to the class of directors of the Company for a
two-year term expiring in 2011;
(ii)
Bank Directorship . The Company as the sole
shareholder of the Bank shall elect Mr. Friedman at the Bank's 2009
Annual Meeting of Shareholders to the Board of Directors for a
two-year term expiring at the Bank's annual meeting in
2011;
(iii)
Committees . For so long as Mr. Friedman is a
member of the Boards of Directors of the Company and the Bank, the
Boards of Directors will appoint Mr. Friedman to the Audit
Committee and the Compensation Committee; and
(iv)
Compensation and Benefits. Mr. Friedman shall be
entitled to receive the compensation and benefits available to
directors of the Company and the Bank.
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During the term
of this Agreement, the Shareholders and each Shareholder
individually covenant and agree as follows:
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(i)
Withdrawal of Notice of Intent to Nominate Three Directors and
Schedule 13D Amendment . Promptly upon the execution
and delivery of this Agreement and the nomination of Mr. Friedman
to serve as a member of the Boards of Directors of the Company and
the Bank, the Shareholders shall take all necessary action to
withdraw their letters of intent to nominate three directors dated
February 19, 2009 and March 10, 2009, including the execution and
delivery of the form of letter agreement attached hereto as
Appendix A by and among the Shareholders and Mr. Donald C.
Scott (the "Letter Agreement"); and shall amend the Schedule 13D on
file with the Securities and Exchange Commission to reflect their
withdrawal of the nominations and the execution of the Letter
Agreement, which Schedule 13D amendment shall be subject to the
prior review and comment of the Company;
(ii)
Nominations or Shareholder Proposals . Neither
the Shareholders nor any Shareholder individually will initiate,
propose or submit any shareholder proposal to the Company, nor
encourage or otherwise solicit or induce or attempt to induce any
other person to initiate, propose or submit any shareholder
proposal to the Company, unless such action is supported by a
majority of the Company's Board of Directors. Neither
the Shareholders nor any Shareholder individually will seek
election to, or seek to place a representative or other affiliate
or nominee on, or induce or attempt to induce or encourage any
other person to nominate one or more persons to the Company's Board
of Directors (other than with respect to the nomination of Mr.
Friedman) or seek removal of any member of the Company's Board of
Directors unless such action is supported by a majority of the
Company's Board of Directors. Neither the Shareholders
nor any Shareholder individually will:
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(A) join with
or assist any person or entity, directly or indirectly, in
opposing, or make any statement in opposition to, any proposal or
director nomination submitted by the Company's Board of Directors
to a vote of the Company's shareholders, or (B) join with or assist
any person or entity, directly or indirectly, in supporting or
endorsing (including supporting, requesting or joining in any
request for a meeting of shareholders in connection with), or make
any statement in favor of, any proposal submitted to a vote of the
Company's shareholders that is opposed by the Company's Board of
Directors; or
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vote for any
nominee or nominees for election to the Board of Directors of the
Company other than those nominated or supported by the Company's
Board of Directors or consent to become a nominee for election as a
director of the Company unless nominated or supported by a majority
of the Company's Board of Directors;
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(iii)
Board Nominees and Proposals . The Shareholders
and each Shareholder individually hereby agree to vote all of the
shares of Common Stock which they directly or indirectly
beneficially own and have voting power over in favor of (i)
nominees to the Board of Directors of the Company recommended by
the board and (ii) proposals submitted to the Company’s
shareholders which have been approved by a majority of the
Company’s Board of Directors, with the exception of any new
stock compensation plans or amendments to any existing stock
compensation plans, other than tax-qualified plans.
(iv)
Solicitations . Neither the Shareholders nor any
Shareholder individually will solicit proxies or written consents
or assist or participate in any other way, directly or indirectly,
in any solicitation of proxies or written consents, or otherwise
become a “participant” in a “solicitation,”
or assist any “participant” in a
“solicitation” (as such terms are defined in
Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of
Regulation 14A, respectively, under the Securities Exchange Act of
1934) in opposition to any recommendation or proposal of the
Company's Board of Directors, or recommend or request or induce or
attempt to induce any other person to take any such actions, or
seek to advise, encourage or influence any other person with
respect to the voting of (or the execution of a written consent in
respect of) the Company's Common Stock, or execute any written
consent in lieu of a meeting of the holders of the Company's Common
Stock or grant a proxy with respect to the voting of the capital
stock of the Company to any person or entity other than the Board
of Directors of the Company;
(v)
No Company Transaction Proposals . Neither the
Shareholders nor any Shareholder individually will (A) p
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