CUSIP No. 000000000 Page 26 of 38 Pages
EXHIBIT 8
AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of November 26, 2002 by and
among Provident Financial Holdings, Inc., a Delaware corporation (the
"Company"), Provident Savings Bank, F.S.B., a federally chartered stock savings
bank ("Savings Bank"), and JAM Partners, L.P. including also JAM Special
Opportunities Fund, L.P., JAM Managers, L.L.C. and Xxxxxxx X. Xxxxxx; Xxxxxxxx
Partners L. P. including also Xxxxxxxx Partners II, L.P., Xxxxxxxx Offshore
Investors, Ltd., X.X. Xxxxxxxx, L.L.C., X.X. Xxxxxxxx XX, L.L.C., Xxxxxxxx
Management Co., Xxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxx (collectively, the
"Investors").
RECITALS
WHEREAS, the Investors have notified the Company that they wish to nominate
certain persons for election to the Company's Board of Directors at the
Company's Annual Meeting of Stockholders to be held in connection with its year
fiscal ended June 30, 2002 (the "Annual Meeting"); and
WHEREAS, the Investors have determined that their and the Company's best
interests would be served by (i) the Investors not engaging in a solicitation of
proxies for the Annual Meeting for the election of the Investors' nominees in
opposition to nominees of the Board of Directors (a "Proxy Contest"), (ii) the
nomination of the Investors' representative to the Boards of Directors of the
Company and the Savings Bank as provided herein and (iii) the other arrangements
set forth herein; and
WHEREAS, the Company has determined that the best interests of the Company
and its stockholders would be served by (i) the Investors not engaging in a
Proxy Contest for the Annual Meeting, (ii) the nomination of the Investors'
representative to the Boards of Directors of the Company and the Savings Bank as
provided herein and (iii) the other arrangements set forth herein.
NOW, THEREFORE, in consideration of the promises, mutual covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, and intending to be legally bound hereby, each of the parties hereby
agree as follows:
I.
REPRESENTATIONS
1. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. The Investors represent
and warrant to the Company as follows:
a. Such Investors have the requisite legal power and authority to
execute, deliver and carry out this Agreement and the execution and
delivery of this Agreement by
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the Investors has been duly authorized by the principals to which an
Investor or the Investors is a party. Such Investors have taken all
necessary legal action to authorize the execution, delivery and
performance of this Agreement and the transactions contemplated
hereby.
b. This Agreement has been duly and validly authorized, executed and
delivered by such Investor or by the principals to which an Investor
or the Investors is a party and constitutes a valid and binding
obligation of the Investors, enforceable in accordance with its terms.
The performance of the terms of this Agreement shall not constitute a
violation of any limited partnership agreement, by-laws or any
agreement or instrument to which an Investor or the Investors is a
party.
c. There are no other persons who, by reason of their personal, business,
professional or other arrangement with an Investor or the Investors,
whether written or oral and whether existing as of the date hereof or
in the future, have agreed, explicitly or implicitly, to take any
action on behalf of or in lieu of an Investor or the Investors that
would otherwise be prohibited by this Agreement.
d. The Investors and their affiliates beneficially own an aggregate of
415,650 shares of the Company's common stock, $0.01 par value per
share (the "Common Stock"). The Investors and their affiliates do not
beneficially own any equity or debt securities of the Company or any
subsidiary, other than the foregoing.
2. REPRESENTATIONS AND WARRANTS OF THE COMPANY AND THE SAVINGS BANK. The
Company and the Savings Bank represents and warranties to the Investors as
follows:
a. The Company is duly organized and validly existing and in good
standing under the laws of the State of Delaware and the Savings Bank
is duly organized and validly existing and in good standing under the
laws of the United States, and have the requisite corporate power and
authority to execute, deliver and carry out this Agreement, and have
taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement and the transactions
contemplated hereby.
b. This Agreement has been duly and validly authorized, executed and
delivered by the Company the Savings Bank and constitutes a valid and
binding agreement of the Company and the Savings Bank, enforceable in
accordance with its terms.
II.
BOARD OF DIRECTORS AND MANAGEMENT
1. ANNUAL MEETING; INVESTOR DESIGNEE.
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a. The Annual Meeting shall be held on January 28, 2003, or such later
date as the Board of Directors may determine. The parties hereby agree
that the slate of the nominees for election to the Board of Directors
at the Annual Meeting to be proposed by the Board of Directors shall
be each of the two current members of the Board of Directors up for
reelection, namely Xxxxx X. Xxxxxxx and Xxx X. Xxxxxx, and one
representative of the Investors (the "Investor Designee"), namely
Xxxxxxx X. Xxxxxx, each for a term of three years, and the parties
hereto further agree that they shall nominate, recommend and support
such slate at the Annual Meeting and shall vote, and shall cause their
affiliates to vote, all shares of Common Stock or proxies which they
are entitled to vote in favor of the election of such nominees at the
Annual Meeting. In connection with their December meetings, the Boards
of Directors of the Company and the Savings Bank shall take the
necessary action to increase the size of their respective Boards of
Directors from seven to eight members and to appoint the Investor
Designee to fill the vacancy resulting from such respective Board
increase.
b. While serving as director, the Investor Designee shall have the same
legal duties and responsibilities and the same rights and privileges
as the other nonemployee directors of the Company and the Savings
Bank, including without limitation, with respect to expense
reimbursement, director compensation, notice, indemnification,
confidentiality, trading blackouts and other trading restrictions and
access to Company and Savings Bank information and personnel.
c. The Investor Designee shall be entitled to receive reimbursement for
all reasonable business related expenses incurred by the Investor
Designee in attending meetings of the Boards of Directors as a
director, PROVIDED, HOWEVER, that the Investor Designee properly
accounts for such expenses in accordance with the Company's and the
Savings Bank's standard policies and procedures for reimbursement of
business related expenses. Notwithstanding the foregoing, in no event
shall such expenses exceed $15,000 per year.
d. The Investor Designee shall be appointed to, and during his service
shall continue to be a member of, (1) the Long Range Planning
Committee; (2) any committee of either the Board of the Company or the
Board of the Savings Bank that performs the functions of an executive
committee; and (3) or any committee that may be formed in the future
to perform similar functions.
e. All necessary provision shall be made for attendance by teleconference
by directors at all meetings of the Boards and Board committees of the
Company and the Savings Bank, however, in no event, shall any director
attend more than three meetings per year of the Company and the
Savings Bank via teleconference.
2. OTHER OBLIGATIONS. The Investors shall not engage in any solicitation of
proxies in connection with the Annual Meeting. If, at any time after the
date hereof, the Investors and their affiliates beneficially own less than
145,000 shares of Common Stock, at the Company's option, the Investors
shall cause the Investor
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Designee to immediately thereafter resign from the Boards of Directors
of each of the Company and the Savings Bank. The Investors agree to
provide the Company with reasonable evidence of the number of shares
of Common Stock and other securities of the Company and its
subsidiaries beneficially owned by them, upon request of the Company
from time to time following the election of the Investor Designee to
the Board.
III.
STANDSTILL AND VOTING AGREEMENT
1. STANDSTILL PROVISIONS. The Investors agree that, for a period commencing on
the date of this Agreement and continuing until the earlier of: (1) June
30, 2003, or (2) so long as the Investor Designee serves on the Board of
Directors of either the Company or the Savings Bank, and for three months
thereafter (it being understood, in the case of resignation, that such
three month period shall commence upon the date the Company receives notice
of resignation from such boards), without the Company's prior written
consent, no Investor shall:
a. acquire, announce an intention to acquire, offer or propose to
acquire, or agree to acquire, directly or indirectly, by purchase or
otherwise, beneficial ownership of any Common Stock, or direct or
indirect rights to options to acquire (through purchase, exchange,
conversion or otherwise) any Common Stock, if, immediately after any
such acquisition, the Investors would beneficially own, in the
aggregate, Common Stock representing more than 9.9% of the outstanding
Common Stock;
b. 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 Rule 14a-1 of Regulation 14A and Instruction
3 of Item 4 of Schedule 14A, respectively, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) in opposition
to the recommendation or proposal of the Company's Board or 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 Common Stock of the
Company, or execute any written consent in lieu of a meeting of the
holders of the Common Stock of the Company or grant a proxy with
respect to the voting of the Common Stock of the Company to any person
other than to the Board of Directors of the Company;
c. initiate, propose, submit, encourage or otherwise solicit stockholders
of the Company for the approval of one or more stockholder proposals
or induce or attempt to induce any other person to initiate any
stockholder proposal, or seek election to or seek to place a
representative or other affiliate or nominee on the
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Company's Board or Directors or seek removal of any member of the Company's
Board of Directors;
d. form, join or in any way participate in a "group" (within the meaning
of Section 13(d)(3) of the Exchange Act) for the purpose of acquiring,
holding, voting or disposing of any securities of the Company, other
than the group which the Investors is a member of as of the date
hereof;
e. 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, and no Investor other than as
provided herein shall consent to become a nominee for election as a
Director of the Company;
f. deposit any Common Stock into a voting trust or subject any Common
Stock to any arrangement or agreement with respect to the voting of
any Common Stock other than this Agreement;
g. execute any written consent with respect to the Company, except in
accordance with Section III.3;
h. otherwise act, alone or in concert with others, to seek to exercise
any control over the management, Board of Directors or policies of the
Company;
i. make a public request to the Company (or its directors, officers,
shareholders, employees or agents) to amend or waive any provisions of
this Agreement, the Certificate of Incorporation or Bylaws of the
Company, including without limitation any public request to permit the
Investors or any other person to take any action in respect of the
matters referred to in this Section III.1;
j. take any action which might require the Company to make a public
announcement regarding the possibility of any merger, acquisition of
control or other business combination, sale or transfer of assets,
recapitalization, dividend, share repurchase, liquidation or other
extraordinary corporate transaction with the Company or any other
transaction which could result in a change of control, or similar
transaction or, advise, assist or encourage any other persons in
connection with the foregoing; or
k. disclose publicly, or privately in a manner that could reasonably be
expected to become public, any intention, plan or arrangement
inconsistent with the foregoing;
provided that nothing in this Section III.1 or elsewhere in this Agreement shall
prohibit any person who is serving as a director of the Company as contemplated
herein from, solely in his or her capacity as such director, (a) taking any
action or making any statement at any meeting of the Board of Directors or of
any committee thereof; (b) making any statement to any director, officer or
agent of the Company; or shall prohibit
CUSIP No. 000000000 Page 31 of 38 Pages
any Investor from making any statement or disclosure required under the federal
securities laws or other applicable laws and provided, further, that nothing in
this Section or elsewhere in this Agreement shall restrict any private
communications between the Investors and the Investor Designee, provided that
all such communications by such person remain subject to the fiduciary duties of
such person as a director and the other obligations contained in this Agreement.
2. TRANSFER LIMITATIONS. The Investors agree that, until the earlier of: (1)
June 30, 2003, or (2) for so long as the Investor Designee serves on the
Board of Directors of either the Company or the Savings Bank, and for three
months thereafter (it being understood, in the case of resignation, that
such three month period shall commence upon the date the Company receives
notice of resignation from such boards):
a. Without the Company's prior written consent, which may not
unreasonably be withheld, no Investor shall, directly or indirectly,
sell, transfer or otherwise dispose of any interest in the Investors
shares, provided, that the Investors may transfer the Investors'
shares: (i) to any person who the Investors believe, to the best of
their actual knowledge, would beneficially own immediately after any
such sale or transfer less than 10% of the outstanding Common Stock;
(ii) to any person who the Investors believe, after due inquiry, would
be entitled to report beneficial ownership of Common Stock on Schedule
13G under the Exchange Act; (iii) in a registered broad-distribution
underwritten public offering; (iv) to the Company; (v) pursuant to any
tender offer or exchange offer which is recommended by the Board of
Directors of the Company; (vi) to any other person who enters into a
standstill agreement with the Company on terms and conditions
substantially equivalent to those in this Agreement; (vii) to any
corporation, partnership or other entity wholly-owned by the Investors
or to any other Investor; or (viii) to any trust the sole
beneficiaries of which are family members or any charitable trust or
charitable foundation established by the Investors, provided that such
trust, charitable trust or charitable foundation either (y) enters
into a standstill agreement with the Company containing terms and
conditions substantially equivalent to those in this Agreement or (z)
is and remains during the term of this Agreement an affiliate of an
Investor.
3. VOTING. The Investors agree that, during the term specified in III.2 above,
for so long as the Investors beneficially own any Common Stock, the
Investors will (a) be present, in person or represented by proxy, at all
shareholder meetings of the Company so that all Common Stock beneficially
owned by the Investors may be counted for the purpose of determining the
presence of a quorum at such meetings and (b) with respect to the election
of directors, vote or consent, or cause to be voted or a consent to be
given, with respect to all Common Stock beneficially owned by the Investors
on all matters submitted to shareholders for a vote or consent in the same
proportion as Common Stock are voted by holders unaffiliated with the
Investors.
IV.
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ADDITIONAL AGREEMENTS
1. PRESS RELEASE. Upon the effectiveness of this Agreement, the Company shall
issue a press release in a form that shall have been previously approved by
the Investors, such approval not to be unreasonably withheld. Neither the
Company nor the Investors nor any of their affiliates, associates or
representatives shall issue any other press release or other publicly
available document that is inconsistent with, or is otherwise contrary to,
the statements in such Company press release. The Company shall make all
filings with the Securities Exchange Commission ("SEC") appropriate in
connection with the execution of this Agreement, including a Current Report
on Form 8-K.
2. WITHDRAWAL OF NOTICES. The Investors hereby withdraw their request made by
letters dated May 29, 2002 and July 11, 2002 giving notice to the Company
of the Investors' wish to nominate directors at the Annual Meeting. The
Investors hereby withdraw the letter of August 16, 2002 from Xx. Xxxxxx to
the Company's Board of Directors requesting, among other things, a list of
the Company's shareholders. The Investors shall pay the Company only the
costs of duplication and postage for the production of such list and
activities related thereto. The Investors agree to promptly amend their
Schedule 13D filing to reflect, as appropriate, the substance of this
Agreement.
3. CHALLENGES TO AGREEMENT; NEGATIVE REMARKS. Each party hereto shall not, and
shall use its best efforts to cause each of its affiliates, associates and
representatives not to, challenge the validity of any provisions of this
Agreement. In the event that any part of this Agreement or any transaction
contemplated hereby is temporarily, preliminarily or permanently enjoined
or restrained by a court of competent jurisdiction, the parties hereto
shall use their reasonable best efforts to cause any such injunction or
restraining order to be vacated or dissolved or otherwise declared or
determined to be of no further force or effect. During the term of this
Agreement, each of the Investors agrees not to make any public statement or
comment or private statement or comment which is in opposition to or
reflects negatively on the Company, the Savings Bank, or or any subsidiary
or the Board of Directors of the Company or any subsidiary or any of the
directors or officers of the Company or any subsidiary; PROVIDED, HOWEVER,
this section shall in no way (i) estop either party from making factual
statements which are reasonably necessary or appropriate in the ordinary
course of its business or (ii) limit the ability of any party to pursue any
remedy under this Agreement or otherwise.
4. SPECIFIC PERFORMANCE. The Company and the Investors acknowledge and agree
that in the event of any breach of this Agreement, the non-breaching party
would be irreparably harmed and could not be made whole by monetary
damages. It is accordingly agreed that the Company and the Investors, in
addition to any other remedy to which they may be entitled at law or in
equity, shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and/or to compel specific performance of this
Agreement in any action instituted in any federal court of the United
States having subject matter jurisdiction.
CUSIP No. 000000000 Page 33 of 38 Pages
5. MATERIAL NONPUBLIC INFORMATION. In connection with this Agreement and the
Investors' ongoing relationship with the Company, there may be instances in
which material nonpublic information concerning either the Company or the
Savings Bank will be divulged to the Investors by the Company, the Investor
Designee, or other Investor representatives or agents. The Investors and
their representatives expressly acknowledge that federal and state
securities laws prohibit any person who misappropriates material nonpublic
information about a company from purchasing or selling securities of such
company, or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is
likely to purchase or sell such securities. The Investors and the Investor
Designee acknowledge that the Investor Designee will be subject to the
Company's xxxxxxx xxxxxxx and disclosure policies, as in effect from time
to time, at any time while he is on the Company or the Savings Bank's
Boards of Directors to the same extent as the other directors of the
Company and the Savings Bank. To the extent SEC Regulation FD may apply, in
accordance with Section 243.100 (2)(ii) of Regulation FD, the Investors
expressly agree to maintain material nonpublic information concerning the
Company and the Savings Bank in confidence.
V.
MISCELLANEOUS
1. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding of
the parties with respect to the subject matter hereof and may be amended
only by an agreement in writing executed by all the parties hereto.
2. HEADINGS. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this
Agreement.
3. COUNTERPARTS. For the convenience of the parties, any number of
counterparts of this Agreement may be executed by the parties, and each
such executed counterpart shall be an original instrument.
4. NOTICES. All notices, consents, requests, instructions, approvals and other
communications provided for in this Agreement and all legal processes in
regard to this Agreement shall be validly given, made or served, if in
writing and delivered personally, by hand or by telecopy, or sent by
registered mail postage paid:
if to the Company or the Savings Bank at:
Provident Financial Holdings, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
CUSIP No. 000000000 Page 34 of 38 Pages
with a copy, which shall not constitute notice, to:
Breyer & Associates PC
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Xx.
Fax: (000) 000-0000
and if to the Investors as follows:
If to JAM/Xxxxxx:
Xx. Xxxxxxx X. Xxxxxx Xxx Xxxxx Xxxxxx Xxx Xxxx, Xxx
Xxxx 00000 Fax: (000) 000-0000
If to Xxxxxxxx Partners and related entities:
Xx. Xxxxx X. Xxxxxxxxx 000 Xxxx Xxxxxx, Xxxxx 000 Xxx
Xxxx, Xxx Xxxx 00000 Fax: (000) 000-0000
with a copy, which shall not constitute notice, to:
Xxxxx & Lardner
One IBM Plaza, Suite 3300
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
or to such other address or telecopy number as any party may, from time to
time, designate in a written notice given in a like manner. Notice given by hand
or by telecopy shall be deemed given on the date on which so hand delivered or
telecopied. Notice given by mail as set out above shall be deemed delivered five
business days after the date the same is postmarked.
5. SUCCESSORS AND ASSIGNS. This Agreement shall bind the successors and
assigns of the parties, and inure to the benefit of any successor or assign
of any of the parties; PROVIDED, HOWEVER, that no party may assign this
Agreement without the other party's prior written consent.
6. GOVERNING LAW. This Agreement shall be governed by and constricted and
enforced in accordance with the internal laws of the State of Delaware,
without giving effect to the conflict of the laws principles thereof.
7. CERTAIN TERMS. As used herein, (i) the terms "affiliate" and "associate"
shall have the meanings set forth in Rule 2b-2 under the Exchange Act, and
(ii) "beneficial
ownership" shall mean beneficial ownership as determined under Rule 13d-3
under the Exchange Act.
8. SURVIVAL OF REPRESENTATIONS. All representations, warranties and agreements
made by the Investors and the Company in this Agreement or pursuant hereto
shall survive the date hereof through the term of this Agreement.
9. CONSENT TO SERVICE. Each of the parties hereto hereby consents to the
personal jurisdiction of the United States District Court for the Central
District of California, Riverside Branch, or if jurisdiction does not lie
in the federal court, then the California Superior Court for the County of
Riverside, in any action, suit or proceeding arising under this Agreement
and each agrees further that service of process or notice in any action,
suit or proceeding shall be effective if given in the manner set forth in
Section V.4 hereof.
10. NO WAIVER. Any waiver by any party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
[SIGNATURES FOLLOW]
CUSIP No. 000000000 Page 36 of 38 Pages
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first referred to above.
Provident Financial Holdings, Inc.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
Its: Chairman of the Board
Provident Savings Bank, F.S.B.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
Its: Chairman of the Board
JAM Partners, L.P.
By: JAM Managers, L.L.C.
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
Managing Member
JAM Special Opportunities Fund, L.P.
By: JAM Managers, L.L.C.
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
Managing Member
CUSIP No. 000000000 Page 37 of 38 Pages
JAM Managers, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
Managing Member
Xxxxxxxx Partners, L.P.
By: X.X. Xxxxxxxx, L.L.C.
General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
Managing Member
Xxxxxxxx Partners II, L.P.
By: X.X. Xxxxxxxx XX, L.L.C.
General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
Managing Member
Xxxxxxxx Offshore Investors, Ltd.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
Director
X.X. Xxxxxxxx, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
Managing Member
CUSIP No. 000000000 Page 38 of 38 Pages
X.X. Xxxxxxxx XX, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
Managing Member
Xxxxxxxx Management Co.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
President
Xxxxxxx X. Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxx
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxx
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
