Icahn files this with the SEC today in Guaranty Financial (GFG)
Item 4 of the Initial 13D is hereby amended by adding the following:
On July 21, 2008, the transactions contemplated by the Investment Agreement
and the Purchase Agreement closed. At the closing, the Reporting Persons
received, in exchange for aggregate consideration of $230,000,011 in cash,
1,469,830 shares of Series B Preferred Stock and $175 million in principal
amount of Subordinated Notes. Approval by the Issuer’s stockholders is required
before the conversion feature of the Series B Preferred Stock can be exercised.
In connection with the closing, the Reporting Persons and certain of their
affiliates entered into an Agreement for Rebuttal of Rebuttable Determination of
Control (the “Rebuttal of Control Agreement”) with the Office of Thrift
Supervision, substantially in the form required by OTS regulations at 12 C.F.R.
Part 574. Under the Rebuttal of Control Agreement, unless otherwise approved by
the Office of Thrift Supervision, the Reporting Persons and certain of their
affiliates are obligated not to:
o Seek or accept representation of more than one member of the board of
directors of the Issuer or its principal savings bank subsidiary,
Guaranty Bank (“Guaranty Bank”);
o Have or seek to have any representative serve as the chairman of the
board of directors, or chairman of an executive or similar committee
of the Issuer’s or Guaranty Bank’s board of directors or as president
or chief executive officer of the Issuer or Guaranty Bank;
o Engage in any intercompany transaction with the Issuer or the Issuer’s
affiliates, except as provided in an existing agreement;
o Propose a director in opposition to nominees proposed by the
management of the Issuer or Guaranty Bank for the board of directors
of the Issuer or Guaranty Bank, other than as permitted above;
o Solicit proxies or participate in any solicitation of proxies with
respect to any matter presented to the stockholders of the Issuer
other than in support of, or in opposition to, a solicitation
conducted on behalf of management of the Issuer;
o Do any of the following, except as necessary solely in connection with
the performance of duties by the Reporting Persons’ representative as
a member of the Issuer’s board of directors:
(a) Influence or attempt to influence in any respect the loan and
credit decisions or policies of the Issuer or Guaranty Bank,
the pricing of services, any personnel decisions, the location
of any offices, branching, the hours of operation or similar
activities of the Issuer or Guaranty Bank;
(b) Influence or attempt to influence the dividend policies and
practices of the Issuer or Guaranty Bank or any decisions or
policies of the Issuer or Guaranty Bank as to the offering or
exchange of any securities;
(c) Seek to amend, or otherwise take action to change, the bylaws,
articles of incorporation, or charter of the Issuer or
Guaranty Bank;
(d) Exercise, or attempt to exercise, directly or indirectly,
control or a controlling influence over the management,
policies or business operations of the Issuer or Guaranty
Bank; or
(e) Seek or accept access to any non-public information concerning
the Issuer or Guaranty Bank; or
o Assist, aid or abet any of the Reporting Persons’ affiliates or
associates that are not parties to the Rebuttal of Control Agreement
to act, or act in concert with any person or company, in a manner
which is inconsistent with the terms of the Rebuttal of Control
Agreement or which constitutes an attempt to evade the requirements
therein.
Item 5. Interest in Securities of the Issuer
Item 5(a) of the Initial 13D is hereby amended and restated as follows:
(a) The Reporting Persons may be deemed to beneficially own, in the
aggregate, (i) 3,455,493 Shares, representing approximately 7.73% of the
Issuer’s outstanding Shares (based upon the 44,684,585 Shares stated to be
outstanding by the Issuer as of July 14, 2008) and (ii) 1,469,830 shares of
Series B Preferred Stock, representing approximately 23.78% of the Issuer’s
outstanding shares of Series B Preferred Stock (based upon the 6,181,934
shares of Series B Preferred Stock stated to be outstanding by the Issuer
as of July 14, 2008).
Item 5(c) of the Initial 13D is hereby amended and restated as follows:
(c) Except as described in Item 4, no transactions with respect to
Shares were effected during the past sixty (60) days by any of the
Reporting Persons.
Disclosure (“none” means no position):None
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