EXHIBIT 4.4
ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
This ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT (this
"Agreement"), dated as of November 6, 2002, is made by and among Citigroup
Inc., a Delaware corporation ("Citigroup"), Golden State Bancorp Inc., a
Delaware corporation ("GSB"), and Mellon Investor Services LLC, a New Jersey
limited liability company, as successor to ChaseMellon Shareholder Services
L.L.C., a New York limited liability company (the "Warrant Agent").
RECITALS
WHEREAS, GSB is a party to the Warrant Agreement, dated as of May
4, 1998 (the "Warrant Agreement"), by and between GSB and ChaseMellon
Shareholder Services L.L.C. Capitalized terms used but not defined herein
shall have the respective meanings assigned to them in the Warrant
Agreement;
WHEREAS, pursuant to the Warrant Agreement, the board of directors
of GSB authorized the Distribution of one Warrant for each share of GSB's
common stock, par value $1.00 per share ("GSB Common Stock"), outstanding as
of the Close of Business on May 7, 1998 (the "Record Date"), each Warrant
representing the right to purchase shares or a portion of a share of GSB
Common Stock, upon the terms and subject to the conditions contained in the
Warrant Agreement;
WHEREAS, on April 23, 1998, the board of directors of GSB
authorized the Warrant Agent to issue Warrants to the holders of (i) shares
of GSB's Noncumulative Convertible Preferred Stock, Series A (the "Preferred
Stock"); (ii) common stock purchase warrants (the "Five Year Warrants")
issued under the Warrant Agreement, dated February 23, 1993, by and between
GSB and ChaseMellon Shareholder Services L.L.C.; (iii) common stock purchase
warrants (the "Seven Year Warrants") issued under the Warrant Agreement,
dated August 15, 1993, by and between GSB and ChaseMellon Shareholder
Services L.L.C.; and (iv) options to acquire stock of GSB and its
subsidiaries (the "Stock Options" and, together with the Preferred Stock,
the Five Year Warrants and the Seven Year Warrants, the "Convertible
Securities") that were outstanding as of the Record Date, who exercise or
convert such Convertible Securities prior to the occurrence of the
Triggering Event;
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of
May 21, 2002 (as amended or supplemented from time to time, the "Merger
Agreement"), by and among Citigroup, GSB and Mercury Merger Sub, Inc., a
Delaware corporation and a wholly owned subsidiary of Citigroup ("Merger
Sub"), GSB will be merged with and into Merger Sub (the "Merger") and Merger
Sub will continue as the surviving corporation and a wholly owned subsidiary
of Citigroup; and
WHEREAS, in connection with the Merger and pursuant to Sections 2.6
and 5.17 of the Merger Agreement, the parties desire to amend the Warrant
Agreement in accordance with the terms hereof so that, (i) upon the
Effective Time of the Merger (as defined in the Merger Agreement, the
"Effective Time"), Citigroup shall assume all of the obligations and obtain
all of the rights of GSB under the Warrant Agreement and in connection with
the Warrants, and GSB and Merger Sub shall have no further rights or
obligations under the Warrant Agreement and in connection with the Warrants
(ii) from and after the Effective Time, each Warrant, when, and if, it
becomes exercisable in accordance with the terms and subject to the
conditions contained in the Warrant and the Warrant Agreement, as amended,
shall be exercisable in respect of common stock of Citigroup, par value $.01
per share ("Citigroup Common Stock"), and cash in the same proportion that
the holders of GSB Common Stock, receive in the aggregate in the Merger as
measured as of the Effective Time and (iii) from and after the Effective
Time, Citigroup will issue additional Warrants to holders of the options to
acquire stock of GSB and its subsidiaries outstanding as of the Record Date
(the "Options") who validly exercise such Options prior to the occurrence of
the Triggering Event, pursuant to the terms and subject to the conditions
contained in the Warrant Agreement, as amended.
NOW, THEREFORE, in consideration of the above recitals and other
good and valuable consideration, the parties agree as follows:
1. Assignment and Assumption. Pursuant to Section 4.2(d) of the
Warrant Agreement, GSB hereby assigns all of its rights and obligations
under the Warrant Agreement to Citigroup, and Citigroup hereby accepts such
assignment of all such rights and assumes all such obligations under the
Warrant Agreement, which assignment and assumption shall become effective
upon the Effective Time. Without any further action being required, from and
after the Effective Time of the Merger, (i) Citigroup shall be solely
responsible for (A) the issuance of shares of Citigroup Common Stock and
delivery of the cash amount in accordance with the Warrant Agreement, as
amended pursuant to Section 3 below upon exercise of the Warrants when, and
if, the Warrants become exercisable; and (B) the issuance of additional
Warrants to holders of the Options who validly exercise or convert such
Options prior to the occurrence of the Triggering Event, and (ii) neither
GSB nor Merger Sub shall have any further rights or obligations under the
Warrant Agreement or in connection with the Warrants.
2. Certification. Citigroup shall request that, within five
Business Days following the Effective Time, the exchange agent for the
Merger certify in writing (such written certification, the "Exchange Agent
Certificate") to Citigroup the Aggregate Cash Amount, the Aggregate Parent
Share Amount and the number of Exchangeable Shares (each, as defined in the
Merger Agreement). Based upon the information set forth in the Exchange
Agent Certificate, Citigroup shall calculate the average amount of cash and
the average number of shares of Citigroup Common Stock (the "Per Share Cash
Consideration" and the "Per Share Stock Consideration," respectively)
exchanged in the Merger for each Exchangeable Share, which shall be
determined by dividing the Aggregate Cash Amount and the Aggregate Parent
Share Amount by the number of Exchangeable Shares, respectively, and shall
disclose such information through a prospectus supplement relating to the
Warrants to be filed with the Securities and Exchange Commission within five
Business Days following receipt of the Exchange Agent Certificate.
3. Amendment. Pursuant to the first sentence of Section 6.4 of the
Warrant Agreement, in order to clarify certain matters in the Warrant
Agreement, the Warrant Agreement shall be amended as of the Effective Time
as follows:
(a) The definition of "Adjusted Market Value" in Section
1.1 shall be amended by replacing all references in such definition
to "$1.00" with "the par value of the Common Stock".
(b) Section 1.1 shall be amended by adding the definition
of "Exercise Price," which shall mean, initially, the product of
the par value of the Common Stock and the number of shares of
Common Stock for which each Warrant is exercisable, and shall be
adjusted from time to time in accordance with Section 4.3 of the
Warrant Agreement.
(c) Section 3.1 shall be amended by replacing the reference
in such section to "the number of shares of Common Stock for which
the Warrant is exercisable multiplied by $1.00 (the "Exercise
Price")" with "the Exercise Price".
(d) Section 3.6 shall be amended by replacing the reference
to "$1.00" with "the par value of the Warrant Share".
GSB certifies to the Warrant Agent that the amendments to
the Warrant Agreement effected by this Agreement are permissible
pursuant to Section 6.4 of the Warrant Agreement without the
consent of the Holders, as the amendments in this Agreement do not
affect adversely the rights of the Holders.
4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
5. Headings. All section headings herein are inserted for
convenience only and shall not modify or affect the construction or
interpretation of any provisions of this Agreement.
6. Governing Law. This Agreement shall be governed by the laws of the
State of New York, without giving effect to its principles on conflicts of law.
7. Effective Time. This Agreement shall be effective as of the
Effective Time of the Merger.
8. Notices. All notices, requests, claims, demands and
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, telecopied (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other addresses for a party as shall be
specified by like notice):
(a) if to Citigroup, to:
Citigroup Inc.
Corporate Law Department
000 Xxxx Xxxxxx, 0xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Associate General Counsel
(b) if to GSB, to:
Golden State Bancorp Inc.
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
(c) if to the Warrant Agent, to
Mellon Investor Services LLC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
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IN WITNESS WHEREOF, the parties have executed this Assignment,
Assumption and Amendment Agreement as of the date first above written.
CITIGROUP INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Controller and Chief
Accounting Officer
GOLDEN STATE BANCORP INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Executive Vice President
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Client Service Manager
