Exhibit 4.3
WARRANT AGREEMENT
between
GLENDALE FEDERAL BANK,
FEDERAL SAVINGS BANK
and
CHEMICAL TRUST COMPANY OF CALIFORNIA,
Warrant Agent
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Dated as of February 23, 1993
WARRANT AGREEMENT
AGREEMENT, dated as of February 23, 1993 between Glendale Federal Bank,
Federal Savings Bank, a federally chartered stock savings bank (the "Bank"), and
Chemical Trust Company of California, Warrant Agent (the "Warrant Agent").
WHEREAS, the Bank proposes to issue and deliver its warrant certificates
(the "Warrant Certificates") evidencing warrants (the "Warrants") to acquire,
under certain circumstances, up to an aggregate of 110,000 shares, subject to
adjustment, of its common stock, par value $1.00 per share (the "Common Stock"),
in connection with an exchange offer by the Bank to issue 100 shares of its 12%
Noncumulative Perpetual Preferred stock, Series B (the "New Preferred Stock") in
exchange for each $1,000 principal amount of the Bank's outstanding 14-7/8%
Capital Notes due August 15, 1997 (the "Notes"); and,
WHEREAS, each such Warrant will entitle the registered owner thereof to
acquire one share of the Bank's Common stock, subject to adjustment.
In consideration of the foregoing, and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder of the Bank and the record holders of the Warrants, the Bank and the
Warrant Agent each hereby agrees as follows:
ARTICLE I
ISSUANCE AND EXECUTION OF WARRANTS
Section 1.01 Form of Warrant Certificates. The text of each Warrant
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Certificate (and the related forms of exercise and assignment) shall be
substantially in the form attached hereto as Exhibit A and may have such legends
and endorsements typed, stamped, printed, lithographed or engraved thereon as
the Bank may deem appropriate and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any law or with any rule or
regulation pursuant thereto or
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with any rule or regulation of any securities exchange on which the Warrants may
be listed, or to conform to customary usage.
Section 1.02 Execution and Countersignature of Warrant Certificates.
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Warrant Certificates shall be executed on behalf of the Bank by its Chief
Executive Officer, President or any Vice President and attested by its Secretary
or an Assistant Secretary, and delivered to the Warrant Agent, and shall be
countersigned and delivered by the Warrant Agent upon the written order of the
Bank signed by any such officer of the Bank. Each Warrant Certificate shall be
dated the date of its countersignature by the Warrant Agent either upon initial
issuance or upon division, exchange, substitution or transfer. Warrant
Certificates shall be executed on behalf of the Bank either manually or by
facsimile signature printed thereon. The Warrant Agent shall countersign the
Warrant Certificate manually, and no Warrant Certificate shall be valid for any
purpose unless so countersigned. In case any officer whose signature has been
placed upon any Warrant Certificate ceases to be such before such Warrant
Certificate is issued, it may be issued with the same effect as if such officer
had not ceased to be such at the date of issuance.
ARTICLE II
EXERCISE PRICE, TERM, REDEMPTION
AND METHOD OF EXERCISE
Section 2.01 Exercise Price. Each Warrant Certificate shall, when
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countersigned by the warrant Agent, entitle the holder of record thereof (the
"Warrant Holder"), subject to the provisions thereof and of this Agreement, to
receive one share of Common Stock for each Warrant represented thereby at an
exercise price of zero ($0.00) per share.
Section 2.02 Warrant Rights and Term. Each Warrant shall entitle the
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Warrant Holder, upon exercise thereof and subject to the provisions thereof and
of this Agreement, including provisions relating to adjustments upon the
occurrence of certain events as set forth in Article III hereof, to receive one
fully paid and nonassessable share of Common stock at any time after one year
from the date of initial issuance of Warrants hereunder until the expiration of
the Warrant at 5:00 p.m., New York City time, on the sixth anniversary of such
date or, if such date is not a business day in the City of New York, then on the
next succeeding business day (the "Expiration Date").
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Section 2.03 Expiration. Each Warrant not exercised by 5:00 p.m., New York
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City time, on the Expiration Date shall become void, and all rights thereunder
and all rights in respect thereof under this Agreement shall thereupon cease.
Section 2.04 Method of Exercise. Exercise of a Warrant shall be effected
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by surrender of the Warrant Certificate evidencing such Warrant to the Warrant
Agent, with one of the forms on the reverse of or attached to the Warrant
Certificate duly executed. In the event that any Warrant Holder shall exercise
rights with respect to less than all of the Warrants evidenced by a Warrant
Certificate surrendered upon exercise of Warrants, a new Warrant Certificate for
the balance of such Warrants shall be countersigned and delivered to, or in
accordance with the instructions of, such Warrant Holder.
Upon surrender of a Warrant Certificate in conformity with the foregoing
provisions, the Warrant Agent (after requisitioning any certificates for shares
of Common Stock from the Bank's transfer agent, if necessary) shall deliver to,
or in accordance with the instructions of, the Warrant Holder certificates for
the total number of whole shares of Common Stock for which the Warrants
evidenced by such Warrant Certificates are being exercised (subject to the
provisions of Section 4.04) in such names and denominations as the Warrant
Holder has directed; provided, however, that, if, on the date of surrender of
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such Warrant Certificate, the transfer books for the Common Stock shall be
closed, the certificates for the shares of Common Stock shall be issuable as of
the date on which such books shall next be open (whether before, on or after the
Expiration Date) at the Exercise Price and upon the other conditions in effect
on the date of such surrender.
Section 2.05 Cancellation of Warrants. In the event the Bank shall purchase
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or otherwise acquire Warrants, the same shall thereupon be delivered to the
Warrant Agent and be cancelled by it and retired. The Warrant Agent shall cancel
any Warrant surrendered for exchange, substitution, transfer or exercise in
whole or in part.
ARTICLE III
ADJUSTMENTS TO WARRANTS UPON CERTAIN EVENTS
Section 3.01 Mechanical Adjustments. The number of shares of Common Stock
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issuable upon the exercise of each Warrant (such shares being referred to in
this Article III as the "Warrant Shares") shall be subject to adjustment as
follows:
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(a) Stock Dividends; Stock Splits; Reverse Stock Splits;
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Reclassifications. In case the Bank shall (i) pay a dividend in shares of Common
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Stock or make a distribution in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock, (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock or (iv) issue by
reclassification of its shares of Common Stock other securities of the Bank
(excluding any such reclassification in connection with a consolidation or
merger in which the Bank is the continuing corporation), the number of Warrant
Shares issuable upon exercise of each Warrant immediately prior thereto shall be
adjusted so that each Warrant Holder shall be entitled to receive the kind and
number of Warrant Shares or other securities of the Bank which he would have
owned or have been entitled to receive after the happening of any of the events
described above, had such Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An adjustment
made pursuant to this paragraph (a) shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such
event.
(b) Rights; Options; Warrants. In case the Bank shall issue rights,
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options or warrants to all holders of its shares of Common Stock, without any
charge to such holders, entitling them (for a period expiring within 45 days
after the record date mentioned below in this paragraph (b)) to subscribe for or
purchase shares of Common Stock at a price per share which is lower at the
record date mentioned below than the then current market price per share of
Common Stock (as determined pursuant to paragraph (f) hereof), the number of
Warrant Shares thereafter issuable upon the exercise of each Warrant shall be
determined by multiplying the number of Warrant Shares theretofore purchasable
upon exercise of each Warrant by a fraction, of which the numerator shall be the
number of shares of Common Stock outstanding on such record date plus the number
of additional shares of Common Stock offered for subscription or purchase, and
of which the denominator shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock so offered would
purchase at the then current market price per share of Common Stock. Such
adjustment shall be made whenever such rights, options or warrants are issued,
and shall become effective retroactively immediately after the record date for
the determination of shareholders entitled to receive such rights, options or
warrants.
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(c) Issuance of Common Stock at Lower Values. In case the Bank shall, in
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a transaction in which Section 3.01(b) is inapplicable, issue or sell shares of
Common Stock, or rights, options, warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of Common
Stock, at a price per share of Common Stock (determined in the case of such
rights, options, warrants or convertible or exchangeable securities, by dividing
(A) the total amount receivable by the Bank in consideration of the sale and
issuance of such rights, options, warrants or convertible or exchangeable
securities, plus the total consideration, if any, payable to the Company upon
exercise, conversion or exchange thereof, by (B) the total number of shares of
Common Stock covered by such rights, options, warrants or convertible or
exchangeable securities) that is lower than the current market value per share
of the Common Stock in effect immediately prior to such sale or issuance (as
determined pursuant to paragraph (f) hereof), then the number of shares of
Common Stock thereafter issuable upon the exercise of all Warrants then
outstanding shall be determined by multiplying the number of shares of Common
Stock theretofore issuable upon exercise of all Warrants then outstanding by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such shares of Common Stock or rights,
options, warrants or convertible or exchangeable securities, plus the number of
additional shares of Common Stock offered for subscription or purchase or to be
issued upon conversion or exchange of such convertible or exchangeable
securities and of which the denominator shall be the number of shares of Common
Stock outstanding on the date of issuance of such shares of Common Stock or
rights, options, warrants or convertible or exchangeable securities, plus the
number of shares which the aggregate consideration to be received by the Bank in
connection with such issuance would purchase at the then current market value
per share of Common Stock.
For the purposes of such adjustments, the shares of Common Stock which the
holder of any such rights, options, warrants or convertible or exchangeable
securities shall be entitled to subscribe for or purchase shall be deemed to be
issued and outstanding as of the date of the sale and issuance of the rights,
warrants or convertible or exchangeable securities and the consideration
received by the Bank therefor shall be deemed to be the consideration received
by the Bank for such rights, options, warrants or convertible or exchangeable
securities, plus the consideration or
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premiums stated in such rights, options, warrants or convertible or exchangeable
securities to be paid for the shares of Common Stock covered thereby.
In case the Bank shall issue and sell shares of Common Stock or rights,
options, warrants or convertible or exchangeable securities containing the right
to subscribe for or purchase shares of Common Stock for a consideration
consisting, in whole or in part, of property other than cash or its equivalent,
then in determining the "price per share of Common Stock" and the
"consideration" receivable by or payable to the Bank for purposes of the first
sentence of this Section 3.01(c), the Board of Directors of the Bank shall
determine, in good faith, the fair value of such property, and such
determination shall be conclusive; provided, however, that if the Board of
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Directors of the Bank determines that the aggregate fair value of such property
equals or exceeds $50,000,000, the Board of Directors shall have obtained the
advice of a nationally recognized investment banking firm in support of such
determination. In case the Bank shall issue and sell rights, options, warrants
or convertible or exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, together with one or more other securities
as part of a unit at a price per unit, then in determining the "price per share
of Common Stock" and the "consideration" receivable by or payable to the Bank
for purposes of the first sentence of this Section 3.01(c), the Board of
Directors of the Bank shall determine, in good faith, the fair value of the
rights, options, warrants, or convertible or exchangeable securities then being
sold as part of such unit, and such determination shall be conclusive; provided,
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however, that if the Board of Directors of the Bank determines that the
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aggregate fair value of such securities equals or exceeds $50,000,000, the Board
of Directors shall have obtained the advice of a nationally recognized
investment banking firm in support of such determination.
Any adjustment to the number of shares of Common Stock issuable upon
exercise of all Warrants then outstanding made pursuant to this Section 3.01(c)
shall be allocated among each Warrant then outstanding on a pro rata basis.
(d) Distribution of Debt, Assets, Subscription Rights or Convertible
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Securities. In case the Bank shall distribute to all holders of its shares of
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Common Stock shares of stock other than Common Stock or evidences of its
indebtedness or assets (excluding cash dividends or
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distributions payable out of consolidated earnings or retained earnings and
dividends or distributions referred to in paragraph (a) above) or rights,
options or warrants or convertible or exchangeable securities containing the
right to subscribe for or purchase shares of Common Stock (excluding those
referred to in paragraph (b) above), then in each case the number of Warrant
Shares thereafter issuable upon the exercise of each Warrant shall be determined
by multiplying the number of Warrant Shares theretofore issuable upon the
exercise of each Warrant, by a fraction of which the numerator shall be the
current market price per share of Common Stock (as determined pursuant to
paragraph (f) hereof) on the record date mentioned below in this paragraph (d),
and of which the denominator shall be the current market price per share of
Common Stock on such record date, less the then fair value (as determined by the
Board of Directors of the Bank, whose determination shall be conclusive) of the
portion of the shares of stock other than Common Stock or assets or evidences of
indebtedness so distributed or of such subscription rights, options or warrants,
or of such convertible or exchangeable securities applicable to one share of
Common Stock; provided, however, that if the Board of Directors of the Bank
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determines that the aggregate fair value of such securities equals or exceeds
$50,000,000, the Board of Directors shall have obtained the advice of a
nationally recognized investment banking firm in support of such determination.
Such adjustment shall be made whenever any such distribution is made, and shall
become effective on the date of distribution retroactive to the record date for
the determination of shareholders entitled to receive such distribution.
(e) Expiration of Rights, Options and Conversion Privileges. Upon the
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expiration of any rights, options, warrants or conversion or exchange
privileges that have previously resulted in an adjustment hereunder, if any
thereof shall not have been exercised, the number of shares of Common Stock
issuable upon the exercise of each Warrant shall, upon such expiration, be
readjusted and shall thereafter, upon any future exercise, be such as they
would have been had they been originally adjusted (or had the original
adjustment not been required, as the case may be) as if (i) the only shares of
Common Stock so issued were the shares of Common Stock, if any, actually issued
or sold upon the exercise of such rights, options, warrants or conversion or
exchange rights and (ii) such shares of Common Stock, if any, were issued or
sold for the consideration actually received by the Bank upon such exercise plus
the consideration, if any, actually received by the Bank (before consideration
of
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underwriting documents and placement fees) for issuance, sale or grant of all
such rights, options, warrants or conversion or exchange rights whether or not
exercised; provided, further, that no such readjustment shall have provided,
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further, that no such readjustment shall have the effect of decreasing the
number of share issuable upon exercise of each Warrant by a number, in excess of
the number of the adjustment initially made in respect to the issuance, sale or
grant of such rights, options, warrants or conversion or exchange rights.
(f) Current Market Price. For the purpose of any computation under this
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Agreement, the "current market price" per share of Common Stock on any date
shall be deemed to be the average of the daily Closing Prices of the shares of
Common stock for the thirty (30) consecutive Trading Days preceding the
applicable date. The "Closing Price" for each day shall be (i) the last
reported sale price regular way or, in case no such sale takes place on such
date, the average of the closing bid and asked quotations regular way, in either
case on the New York Stock Exchange, or, if the Common stock is not listed or
admitted to trading on such exchange, on the principal national securities
exchange on which the Common Stock is listed or admitted to trading; or (ii) if
the Common Stock is not listed or admitted to trading on any national securities
exchange, the last reported sale price regular way or, in case no such sale
takes place on such day, the average of the closing bid and asked quotations
regular way, in either case on the National Market system of the National
Association of Securities Dealers, Inc. ("NASD"); or (iii) if not authorized for
trading or quotation on such system, the average of the highest reported bid and
lowest reported asked quotations as furnished by the NASD or similar
organization if the NASD is no longer reporting such information; or (iv) if no
such prices or quotations are available, the fair market value of the Common
Stock as determined by good faith action of the Board of Directors of the Bank
(whose determination shall be conclusive if based on the financial advice of a
nationally recognized investment banking firm and shall be described in a
statement delivered to each Warrant Holder). A "Trading Day" shall be any day
that the principal national securities exchange on which the Common Stock listed
or admitted to trading is open for the transaction of business or, if not so
listed or admitted, that the New York Stock Exchange is open for the transaction
of business.
(g) Adjustment for De Minimis Change. No adjustment in the number of
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Warrant Shares purchasable hereunder shall be required unless such adjustment
would
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require an increase or decrease of at least 1% in the number of Warrant
Shares purchasable upon the exercise of each warrant; provided, however,
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that any adjustments which by reason of this Section 3.01 are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the nearest one
thousandth of a share.
Section 3.02 Notice of Adjustment. Whenever the number of Warrant Shares
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purchasable upon the exercise of each Warrant is adjusted, as herein provided,
the Bank shall cause the Warrant Agent promptly to mail to each Warrant Holder,
in accordance with Section 6.08, a notice of such adjustment or adjustments,
prepared and signed by the Chief Financial Officer or Secretary of the Bank,
which sets forth the number of Warrant Shares issuable upon the exercise of each
Warrant after such adjustment, a brief statement of the facts requiring such
adjustment and the computation by which such adjustment was made.
Section 3.03 Effect of Sale, Merger or Consolidation. In the event of any
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capital reorganization of the Bank, or of any reclassification (other than a
change in par value) of the Common Stock, or of any conversion of the Common
Stock into securities of another corporation, or the consolidation of the Bank
with, or the merger of the Bank with or into, any other corporation where the
Common Stock is converted into other securities or property (including cash) or
in the event of the sale of all or substantially all of the properties and
assets of the Bank to any other corporation (each such event hereinafter being
referred to as a "Capital Change"), each Warrant shall be exercisable after such
Capital Change, upon the terms and conditions specified in this Agreement, only
for the number of shares of stock or other securities or property (including
cash) of the Bank or of the corporation into which shares of Common Stock are
converted or resulting from such consolidation or surviving such merger or to
which such sale shall be made, as the case may be, to which the shares of Common
Stock issuable (immediately prior to such Capital Change) upon exercise of such
Warrant would have been entitled upon such Capital Change. In any such case, if
necessary, the provisions set forth in this Article III with respect to the
rights and interests thereafter of the holders of the Warrants shall be
appropriately adjusted so as to be reasonably applicable to any shares of stock
or other securities or property thereafter deliverable on the exercise of the
Warrants.
The subdivision or combination of shares of Common Stock at any time
outstanding into a greater or lesser number of shares of Common Stock shall not
be deemed to be a reclassification of the Common Stock of the Bank for the
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purpose of this Section. The Bank shall not effect any consolidation, merger or
sale resulting in a Capital Change, unless prior to or simultaneously with the
consummation thereof, any successor corporation or corporation purchasing such
assets shall assume, by written instrument executed and delivered to the Warrant
Agent, the obligation to deliver to the holder of each Warrant such shares of
stock, securities or property (including cash) as the Warrant Holders may be
entitled to receive upon exercise of the Warrants in accordance with the
foregoing provisions, and the other obligations of the Bank under this Warrant
Agreement.
Section 3.04 Effect of Adjustment on Warrant Certificates. The form
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of Warrant Certificate need not be changed because of any change the number of
Warrant Shares issuable upon the exercise of a Warrant or the number of Warrants
outstanding pursuant to this Article, and Warrant Certificates issued before or
after such change may state the same Exercise Price, the same number of Warrants
and the same number of Warrant Shares issuable upon exercise of Warrant as are
stated in the Warrant Certificates theretofore issued pursuant to this
Agreement. The Bank may, however, at any time, in its sole discretion, make any
change in the form of Warrant Certificate that it may deem appropriate and that
does not affect the substance therof, and any Warrant Certificates thereafter
issued or countersigned, whether in exchange or substitution for an outstanding
Warrant Certificate or otherwise, may be in the form as so changed.
ARTICLE IV
RIGHTS OF WARRANT HOLDERS
Section 4.01 No Rights as Stockholders. No Warrant Holder, as such,
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shall be entitled to vote or to receive dividends or shall otherwise be deemed
to be the holder of shares of Common Stock for any purpose, nor shall anything
contained herein or in any Warrant Certificate be construed to confer upon any
Warrant Holder, as such, any of the rights of a stockholder of the Bank or any
right to vote upon or give or withhold consent to any action of the Bank
(whether upon any reorganization, issuance of securities, reclassification or
conversion of Common Stock, consolidation, merger, sale, lease, conveyance or
otherwise), receive notice of meetings or other action affecting stockholders
(except for notices expressly provided for in this Agreement) or receive
dividends or subscription rights, until such Warrant Certificate shall have been
surrendered for exercise as provided in this Agreement and shares of Common
Stock thereunder shall have become issuable
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and until such person shall have been deemed to have become a holder or record
of such shares. If, at the date of surrender of such Warrant Certificate, the
transfer books for the Common Stock shall be closed, certificates for the shares
of Common Stock shall be issuable on the date on which such books shall next be
open (whether before, on or after the Expiration Date) and, until such date, the
Bank shall be under no duty to deliver any certificate for such shares of Common
Stock. No Warrant Holder shall, upon the exercise of Warrants, be entitled to
any dividends if the record date with respect to payment of such dividends shall
be a date prior to the date such shares of Common Stock became issuable upon the
exercise of such Warrants.
Section 4.02 Lost Warrants. If any Warrant Certificate is lost, stolen,
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mutilated or destroyed, the Warrant Agent may, upon receipt of evidence
satisfactory to the Bank and the Warrant Agent of such loss, theft, mutilation
or destruction and on such terms as to indemnity or otherwise as the Bank and
the Warrant Agent may in their discretion require (which shall, in the case of a
mutilated Warrant Certificate, include the surrender thereof), issue a new
Warrant Certificate of like denomination and tenor as the lost, stolen,
mutilated or destroyed Certificate, and the Warrant Agent shall countersign and
deliver such new Certificate. Applicants for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
any such reasonable charges as the Bank or the Warrant Agent may prescribe. In
the event any Warrant Certificate is lost, stolen, mutilated or destroyed, and
the owner thereof desires to exercise the Warrants evidenced thereby, the
Company may, in lieu of issuing a substitute Warrant Certificate, authorized the
exercise thereof upon receipt of the above evidence and on such terms of
indemnity as it may require.
Section 4.03 Maintenance of Sufficient and Proper Shares of Common Stock.
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(1) The Bank shall at all times reserve and keep available a number
of authorized shares of Common Stock sufficient to permit the exercise in full
of all outstanding Warrants and will cause to be available to the Warrant Agent
a sufficient number of certificates therefor.
(2) If at any time hereafter the Common Stock shall become listed
on a national securities exchange, prior to the issuance of any shares of Common
Stock upon the exercise of Warrants, the Bank shall use its best efforts to
secure the listing of shares of Common Stock issuable upon the exercise of the
Warrants upon any and all such securities exchanges.
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(3) If any shares of Common Stock issuable upon the exercise of
the Warrants require registration or approval of any governmental authority, or
the taking of any other action under the laws of the United States or any
political subdivision thereof or any other jurisdiction before such shares of
Common Stock may be legally and validly issued, then the Bank shall in good
faith and with reasonable diligence endeavor to secure such registration or
approval or to take such other action as may be appropriate to allow for the
lawful issuance of shares of Common Stock upon exercise of the Warrants;
provided that no shares of Common Stock shall be issued for the period during
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which the Bank is endeavoring to obtain such registration or approval or is
taking such other actions. Warrant Holders may exercise Warrants during any such
period as provided herein and shall be entitled to the issuance of the shares of
Common Stock on such date as the shares of Common Stock may be legally and
validly issued upon the other conditions in effect on the date of surrender of
the Warrant Certificates.
Section 4.04 Fractional Shares and Warrants
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(1) Anything contained herein to the contrary notwithstanding,
the Bank shall not be required to issue any fraction of a share of Common Stock
in connection with the exercise of Warrants. Warrants may not be exercised in
such number as would result (except for the provisions of this Section) in the
issuance of a fraction of a share of Common Stock unless the Warrant Holder is
presenting for exercise Warrant Certificates representing all Warrants then
owned of record by such Warrant Holder. In such event, the Bank shall, upon the
exercise of all of such Warrants, issue to such Warrant Holder the aggregate
number of shares of Common Stock called for thereby, rounded to the nearest
whole number of shares.
(2) Anything herein to the contrary notwithstanding, the Bank
shall not be required to issue fractions of Warrants on any distribution of
Warrants to Warrant Holders or to distribute Warrant Certificates that evidence
fractional Warrants.
Section 4.05 Transfer and Exchange of Warrants. The Warrant
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Certificates shall be issued in registered form only. The Bank shall cause to
be kept at the office of the Warrant Agent a register in which, subject to such
reasonable regulations as the Warrant Agent may prescribe, the Bank shall
provide for the registration of Warrant Certificates and of transfers or
exchanges of Warrant Certificates as herein provided.
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At the option of the Warrant Holder, Warrant Certificates may be exchanged
at such office, and upon payment of the charges hereinafter provided. Whenever
any Warrant Certificates are so surrendered for exchange, the Bank shall
execute, and the Warrant Agent shall countersign and deliver, the Warrant
Certificates that the Warrant Holder making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of transfer or
exchange of Warrant Certificates shall be the valid obligations of the Bank,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such registration of
transfer or exchange.
Every Warrant Certificate surrendered for registration of transfer or
exchange shall (if so required by the Bank or the Warrant Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Bank and the Warrant Agent, duly executed by the Warrant
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Warrant Certificates. The Bank may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Warrant
Certificates.
Any Warrant Certificate when duly endorsed in blank shall be deemed
negotiable and when a Warrant Certificate shall have been so endorsed, the
Warrant Holder thereof may be treated by the Bank, the Warrant Agent and all
other persons dealing therewith as the absolute owner thereof for any purpose
and as the person entitled to exercise the rights represented thereby, or to the
transfer thereof on the register of the Bank maintained by the Warrant Agent,
any notice to the contrary maintained by the Warrant Agent, any notice to the
contrary notwithstanding; but until such transfer on such register, the Bank and
the Warrant Agent may treat the registered Warrant Holder thereof as the owner
for all purposes.
ARTICLE V
WARRANT AGENT
Section 5.01 Nature of Duties and Responsibilities Assumed. The Bank hereby
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appoints the Warrant Agent to act as agent of the Bank as set forth in this
Agreement. The Warrant Agent hereby accepts the appointment as agent of the Bank
and agrees to perform that agency upon the terms and conditions
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herein set forth, by all of which the Bank and the Warrant Holders, by their
acceptance thereof, shall be bound.
Whenever in the performance of its duties under this Agreement, the Warrant
Agent shall deem it necessary or desirable that any fact or matter be proved or
established by the Bank prior to taking or suffering any action hereunder, such
fact or matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate signed by the Chief Executive Officer, the President, any Vice
President or the Secretary of the Company and delivered to the Warrant Agent;
and such certificate shall be full authorization to the Warrant Agent for any
action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
The Warrant Agent shall be liable hereunder only for its own negligence,
bad faith or willful misconduct. The Warrant Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained in this Agreement
or in the Warrant Certificates (except its countersignature on the Warrant
Certificates and such statements or recitals as described the Warrant Agent or
action taken or to be taken by it) or be required to verify the same, but all
such statements and recitals are and shall be deemed to have been made by the
Bank only. The Warrant Agent shall not have any liability or responsibility in
respect of the legality, validity or enforceability of this Agreement or the
execution and delivery hereof (except the due execution hereof by the Warrant
Agent) or in respect of the validity or execution of any Warrant Certificate
(except its countersignature thereof); nor shall it be responsible or liable for
any breach by the Bank of any covenant or condition contained in this Agreement
or in any Warrant Certificate; nor shall it be responsible or liable for the
making of any change in the number of shares of Common Stock required under the
provisions of Article III or responsible for the manner, method or amount of any
such change or the ascertaining of the existence of any facts that would require
any such adjustment or change; nor shall it by any act hereunder be deemed to
make any representation or warranty as to the authorization or reservation of
any shares of Common Stock to be issued pursuant to this Agreement or any
Warrant Certificate or as to wether any shares of Common Stock will, when
issued, be validly issued, fully paid and nonassessable.
The Warrant Agent shall be under no obligation to institute any action,
suit or legal proceeding or take any other action likely to involve expense
unless the Bank or one or more registered holders of Warrants shall furnish the
Warrant Agent with reasonable security and indemnity for any
- 15 -
costs and expenses which may be incurred. All rights of action under this
Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrants or the production thereof at any
trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgment shall be for the ratable benefit of
the Holders of the Warrants, as their respective rights or interests may appear.
The Warrant Agent shall promptly notify the Bank in writing of any claim made
or action, suit proceeding instituted against it arising out of or in connection
with this Agreement.
The Warrant Agent is hereby authorized and directed to accept written
instructions with respect to the performance of its duties hereunder from the
Chief Executive Officer, the President, any Vice President or the Secretary of
the Company, and to apply to any such officer for the advice or instructions in
connection with the Warrant Agent's duties, and it shall not be liable for any
action taken or suffered to be taken or omitted by it in good faith in
accordance with the instructions of any such officer.
The Warrant Agent will not be responsible or liable for any failure of the
Bank to comply with any of the covenants contained in this Agreement or in the
Warrant Certificates to be complied with by the Bank. The Warrant Agent will not
incur any liability or responsibility to the Bank or to any Warrant Holder for
any action taken, or any failure to take action, in reliance on any notice,
resolution, waiver, consent, order, certificate, or other paper, document or
instrument reasonably believed by the Warrant Agent to be genuine and to have
been signed, sent or presented by the proper party or parties.
The Warrant Agent may execute and exercise any of the rights and powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys, agents or employees, provided reasonable care has been exercised
in the selection and in the continued employment of any such attorney, agent or
employee.
The Bank will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further acts,
instruments and assurances as may reasonably be required by the Warrant Agent in
order to enable it to carry out or perform its duties under this Agreement.
The Warrant Agent will act hereunder solely as agent of the Bank in a
ministerial capacity, and its duties will be determined solely by the provisions
hereof. The Warrant Agent will not be liable for anything which it may do or
refrain from
- 16 -
doing in connection with this Agreement expect for its own negligence, bad faith
or willful conduct.
Section 5.02 Right to Consult Counsel. The Warrant Agent may at any time
------------------------
consult with legal counsel satisfactory to it (who may be legal counsel for the
Bank), and the opinion of such counsel shall be full and complete authorization
and protection to the Warrant Agent as to any action taken, suffered or omitted
by it in good faith in accordance with such opinion; provided, however, that the
-------- -------
Warrant Agent shall have exercised reasonable care in the selection of such
counsel.
Section 5.03 Compensation and Reimbursement. The Bank agrees to pay to
------------------------------
the Warrant Agent from time to time compensation for all services rendered by it
hereunder as the Bank and the Warrant Agent may agree from time to time, and to
reimburse the Warrant Agent for reasonable expenses and disbursements incurred
in connection with the execution and administration of this Agreement (including
the reasonable compensation and the expenses of its counsel), and further agrees
to indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, bad faith or willful
misconduct on its part, arising out of or in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
Section 5.04 Warrant Agent May Hold Bank Securities. The Warrant Agent and
--------------------------------------
any stockholder, director, officer or employee of the Warrant Agent may buy,
sell or deal in any of the Warrants or other securities of the Bank or its
affiliates or have a pecuniary interest in any transaction in which the Bank or
its affiliates may be interested, or contract with or lend money to the Bank or
its affiliates or otherwise act as fully and freely as though it were not the
Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Bank or for any other legal
entity.
Section 5.05 Change of Warrant Agent. The Warrant Agent may resign and be
-----------------------
discharged from its duties under this Agreement upon 60 days' prior notice in
writing mailed, by registered or certified mail, to the Bank. The Bank may
remove the Warrant Agent or any successor warrant agent upon 60 days' prior
notice in writing, mailed to the Warrant Agent or successor warrant agent, as
the case may be, by registered or certified mail. If the Warrant Agent shall
resign or be removed or shall otherwise become incapable of acting, the Bank
shall appoint a successor to the Warrant Agent and shall,
- 17 -
within 30 days following such appointment, give notice thereof in writing to
each registered holder of the Warrant Certificates. If the Bank shall fail to
make such appointment within a period of 30 days after giving notice of such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent, then the Bank agrees
to perform the duties of the Warrant Agent hereunder until a successor warrant
agent is appointed. After appointment the successor warrant agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Warrant Agent without further act or deed; but the
former Warrant Agent shall deliver and transfer to the successor Warrant Agent
any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Failure to
give any notice provided for in this Section, however, or any defect therein
shall not affect the legality or validity of the resignation or removal of the
Warrant Agent or the appointment of the successor agent, as the case may be.
ARTICLE VI
GENERAL
Section 6.01 Purchase of Warrants by the Bank. The Bank shall have the
--------------------------------
right, except as limited by law or other agreement, to purchase or otherwise
acquire Warrants at such times, in such manner and for such consideration as it
may deem appropriate.
Section 6.02 Cancelled Warrants. The Warrant Agent shall cancel any
------------------
Warrant Certificate delivered to it for exercise, in whole or in part, or
delivered to it for transfer, or for split-up, combination, exchange or
substitution and shall deliver to the Bank, in a manner satisfactory to the
Bank, such cancelled Warrant Certificates.
Section 6.03 Taxes on Issuance of Shares of Common Stock. The Bank shall
-------------------------------------------
from time to time promptly pay all documentary stamp taxes, if any, that may be
imposed upon the Bank or the Warrant Agent with respect to the issuance or
delivery of shares of Common Stock upon the exercise of Warrants, but the Bank
shall not be obligated to pay any transfer taxes with respect to the issuance or
delivery of the Warrant Certificates or shares of Common Stock in a name other
than that of the Warrant Holder.
-18-
Section 6.04 Dates and Times. If any date set forth in this Warrant
---------------
Agreement shall fall on a day other than a full business day in New York City,
said date shall be deemed to be the next full business day succeeding that date.
All times shall be the legal time then in effect in New York City.
Section 6.05 Amendments to Warrant Agreement. The Bank and the Warrant
-------------------------------
Agent may, jointly, without the consent or concurrence of the Warrant Holders,
by supplemental agreement or otherwise, make any amendments, alterations,
deletions or corrections in this Agreement that they deem necessary or
desirable: (a) to cure any ambiguity or correct any defect, inconsistency,
clerical omission or mistake, or manifest error contained herein; (b) to confer
additional rights upon the Warrant Holders; or (c) in any other respect that is
not inconsistent with the provisions of the Warrants and which does not
adversely affect the rights of the Warrant Holders hereunder. The Bank and the
Warrant Agent also may supplement or amend the Warrant Agreement in any other
respect without notice to any Warrant Holder but with the written consent of the
holders of at least 50% in number of the Warrants then outstanding; provided,
--------
however, that no such supplement or amendment may (i) make any modification of
-------
the terms upon which the Warrants are exercisable or (ii) change the percentage
of the holders of the Warrants who must consent to such amendment or supplement,
without the consent of each Warrant Holder affected thereby.
Section 6.06 Binding Agreements. All of the covenants and provisions of
------------------
this Agreement by or for the benefit of the Bank or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Nothing expressed in this Agreement and nothing that may be implied from any of
the provisions hereof is intended, or shall be construed, to confer upon or give
to any person or corporation, other than the Bank, the Warrant Agent and the
Warrant Holders, any legal or equitable right, remedy or claim under or by
reason of this Agreement or of any covenant, condition, stipulation, promise or
agreement herein, and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Bank, the Warrant Agent, the Warrant Holders and their respective
successors and assigns.
Section 6.07 Copies of Agreement with Warrant Agent. A copy of this
--------------------------------------
Agreement, as such may be amended from time to time, shall be available for
inspection by any Warrant Holder at the office of the Warrant Agent, as
designated in Section 6.08, during normal business hours. As a condition of such
inspection, the Warrant Agent may require any such Warrant Holder to submit his
or her Warrant Certificate for inspection.
- 19 -
Section 6.08 Notices. Any communication, notice or demand to be given
-------
hereunder shall be duly given if in writing and delivered, or sent by first
class mail, certified or registered, postage prepaid and addressed as follows:
(a) If to the Bank:
Glendale Federal Bank, FSB
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
(b) If to the Warrant Agent:
Chemical Trust Company of California
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Office Manager
(c) If to a Warrant Holder, at such person's last known address as
such shall appear on the registration books maintained by the Warrant Agent.
Any party may change the address to which any communications, notice
or demand shall be given by giving notice of such change in conformity with the
provisions of this Section.
Section 6.09 Governing Law. This Agreement and each Warrant issued
-------------
hereunder shall be governed by and construed in accordance with the laws of the
State of California, without giving effect to conflict of laws.
Section 6.10 Headings. The Article and Section headings herein are for
--------
convenience only and are not part of this Agreement and shall not affect the
interpretation thereof.
Section 6.11 Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which so executed shall be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
- 20 -
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
GLENDALE FEDERAL BANK,
FEDERAL SAVINGS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Executive Vice President
and Chief Legal Officer
Attest:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------
Secretary
CHEMICAL TRUST COMPANY OF CALIFORNIA
As Warrant Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice-President
Attest:
[SIGNATURE APPEARS HERE]
-------------------------------
Assistant Vice President
EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
No. Certificate for ____ Warrants
--------------
VOID AFTER 5:00 P.M. NEW YORK CITY TIME
[FEBRUARY __, 1999]
GLENDALE FEDERAL BANK, FEDERAL SAVINGS BANK
WARRANTS TO PURCHASE COMMON STOCK
this Warrant Certificate certifies that _____________________, or
registered assigns, is the registered holder of the number of Warrants set forth
above. Each Warrant entitles the holder thereof, subject to the provisions
contained herein and in the Warrant Agreement referred to below, to receive from
Glendale Federal Bank, Federal Savings Bank, a federally chartered stock savings
bank (the "Bank"), one fully paid and nonassessable share of Common stock, par
value $1.00 per share, of the Bank ("Common Stock"), at the exercise price of
zero ($0.00) per share, at any time after one year from the date of initial
issuance of the Warrants under the Warrant Agreement referred to below until the
expiration of the Warrant at 5:00 p.m., New York City time, on the sixth
anniversary of such date or, if such anniversary date is not a business day in
the City of New York, then on the next succeeding business day (the "Expiration
Date".)
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement, dated as of ,
-----------------
A - 2
1993 (the "Warrant Agreement"), between the Bank and Chemical Trust Company of
California, warrant agent (the "Warrant Agent," which term includes any
successor Warrant Agent under the Warrant Agreement), and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the holder of this Warrant Agreement consents by acceptance
hereof. The Warrant Agreement is hereby incorporated herein by reference and
made a part hereof. Reference is hereby made to the Warrant Agreement for a
full statement of the respective rights, duties, obligations and immunities
thereunder of the Bank, the Warrant Agent and the holders of the Warrants.
Copies of the Warrant Agreement, as such may be amended from time to time, are
available for inspection at the Los Angeles office of the Warrant Agent.
The number of shares of Common Stock issuable upon the exercise of each
Warrant is subject to adjustment as provided in the Warrant Agreement.
All shares of Common Stock issuable by the Bank upon the exercise of
Warrants shall, upon such issue, be duly and validly issued and fully paid and
non-assessable.
In order to exercise a Warrant, the registered holder hereof must surrender
this Warrant Certificate at the office of the Warrant Agent, with the Exercise
Subscription Form on the reverse hereof duly executed by the holder hereof,
with signature guaranteed as therein specified.
A - 3
This Warrant Certificate, with or without other Warrant Certificates, upon
surrender to the Warrant Agent, may be exchanged for another Warrant Certificate
or Warrant Certificates evidencing a like aggregate number of Warrants. If this
Warrant Certificate shall be exercised in part, the holder hereof shall be
entitled to receive upon surrender hereof another Warrant Certificate or Warrant
Certificates evidencing the number of Warrants not exercised.
No holder of this Warrant Certificate shall be deemed to be the holder of
Common Stock or any other securities of the Bank that may at any time be
issuable on the exercise hereof for any purpose, nor shall anything contained in
the Warrant Agreement or herein be construed to confer upon the holder of this
Warrant Certificate as such any of the rights of a stockholder of the Bank or
any right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any reorganization, issuance of stock,
reclassification or conversion of stock, change of par value, or exchange of
stock to no par value, consolidation, merger, conveyance or otherwise) or to
receive notice of meetings, or to receive dividends or subscription rights or
otherwise, until this Warrant Certificate shall have been exercised and the
Common Stock issuable upon the exercise hereof shall have become issuable as
provided in the Warrant Agreement.
A - 4
This Warrant Certificate and all rights hereunder are transferable by the
registered holder hereof, in whole or in part, on the register of the Bank, upon
surrender of this Warrant Certificate for registration of transfer at the office
of the Warrant Agent maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Bank
and the Warrant Agent duly executed by, the Holder hereof or his attorney duly
authorized in writing, with signature guaranteed as specified in the attached
Form of Assignment. Upon any partial transfer, the Bank will issue and deliver
to such holder a new Warrant Certificate or Certificates with respect to any
portion not so transferred. No service charge shall be made for any
registration of transfer or exchange of the Warrant Certificates, but the Bank
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Each taker and holder of this Warrant Certificate by taking or holding the
same consents and agrees that this Warrant Certificate when duly endorsed in
blank shall be deemed negotiable and that when this Warrant Certificate shall
have been so endorsed, the holder hereof may be treated by the Bank, the Warrant
Agent and all other persons dealing with this Warrant Certificate as the
absolute owner hereof for any purpose and as the person entitled to exercise the
rights represented hereby, or to the transfer hereof on the register of the Bank
maintained by the Warrant Agent, any notice to the
A - 5
contrary notwithstanding, but until such transfer on such register, the Bank
and the Warrant Agent may treat the registered Holder hereof as the owner for
all purposes.
Anything herein to the contrary notwithstanding, in no event shall the Bank
or the Warrant Agent be obligated to issue Warrant Certificates evidencing other
than a whole number of Warrants or issue certificates evidencing other than a
whole number of shares of Common Stock upon the exercise of this Warrant
Certificate.
This Warrant Certificate and the Warrant Agreement are subject to amendment
as provided in the Warrant Agreement.
All terms used in this Warrant Certificate that are defined in the Warrant
Agreement shall have the meanings assigned to them in the Warrant Agreement.
This Warrant Certificate shall not be valid for any purpose until it shall
have been countersigned by the Warrant Agent.
GLENDALE FEDERAL BANK,
FEDERAL SAVINGS BANK
Dated:________________, 1993 By:
--------------------------
Name:
Title:
Countersigned:
CHEMICAL TRUST COMPANY OF CALIFORNIA
By:
------------------------
Name:
Title:
A - 6
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
TO: Glendale Federal Bank, Federal Savings Bank
The undersigned irrevocably exercises __________________ of the Warrants
for the acquisition of one share (subject to adjustment) of Common Stock, par
value $1.00 per share, of Glendale Federal Bank, Federal Savings Bank, for each
Warrant represented by the Warrant Certificate, on the terms and conditions
specified in the within Warrant Certificate and the Warrant Agreement therein
referred to, surrenders this Warrant Certificate and all right, title and
interest therein to Glendale Federal Bank, Federal Savings Bank, and directs
that the shares of Common Stock deliverable upon the exercise of such Warrants
be registered or placed in the name and the address specified below and
delivered thereto.
Dated: , 19
-------------------- ----
(1)
---------------------------------
(Signature of Owner)
---------------------------------
(Street Address)
---------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
---------------------------------
-------------------------
(1) The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by an eligible
guarantor institution pursuant to S.E.C. Rule 17Ad-15.
A - 7
Securities to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
A - 8
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the within Warrant
Certificate hereby sells, assigns, and transfers unto the Assignee(s) named
below (including the undersigned with respect to any Warrants constituting a
part of the Warrants evidenced by the within Warrant Certificate not being
assigned hereby) all of the right of the undersigned under the within Warrant
Certificate, with respect to the number of Warrants set forth below:
Social Security
or other
identifying
Names of number of Number of
Assignees Address assignee(s) Warrants
--------- ------- ----------------- ---------
and does hereby irrevocably constitute and appoint ____________________ the
undersigned's attorney to make such transfer on the books of Glendale Federal
Bank, Federal Savings Bank maintained for that purpose with full power of
substitution in the premises.
Date: 19
-------------------- ----
(1)
----------------------------------
(Signature of Owner)
----------------------------------
(Street Address)
----------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
----------------------------------
-------------------------
(1) The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by an eligible
guarantor institution under S.E.C. Rule 17Ad-15.