EXHIBIT 4E
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METROPOLITAN FINANCIAL CORPORATION
AND
AMERICAN STOCK TRANSFER AND TRUST COMPANY
WARRANT AGENT
____________________
WARRANT AGREEMENT
____________________
Dated as of November 20, 1990
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WARRANT AGREEMENT, dated as of November 20, 1990, between Metropolitan
Financial Corporation, a Delaware corporation (the "Company"), and American
Stock Transfer and Trust Company, a New York corporation (said corporation, and
any successor which shall become such in the manner prescribed in this
Agreement, being herein called the "Warrant Agent").
WHEREAS, the Company proposes to issue and sell up to 488,750 Units (the
"Units"), each Unit consisting of one share of $2.875 Cumulative Perpetual
Preferred Stock, Series B, of the Company, par value $.01 per share (the class
or series of such Preferred Stock being hereinafter called the "Preferred Stock"
and the Preferred Stock comprising part of a Unit being hereinafter called the
"Unit Preferred Stock"), and one Warrant (the "Warrant") entitling the holder
thereof to purchase one-half of one share of Common Stock of the Company, par
value $.01 per share (the class of such Common Stock being hereinafter called
the "Common Stock") and the Common Stock issuable upon exercise of a Warrant
comprising part of a Unit being hereinafter called the "Warrant Common Stock");
and
WHEREAS, the Company desires to enter into this Agreement to set forth the
terms and conditions of the Warrants and the rights of the holders thereof; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange and replacement of the certificates evidencing the
Warrants to be issued under this Agreement (the "Warrant Certificates") and the
exercise of the Warrants: and
WHEREAS, it is desired that the Warrants and the Unit Preferred Stock will
not be separately transferable until after the close of business on the
Distribution Date (as hereinafter defined), after which the Warrant Agent shall
mail the certificates for the Unit Preferred Stock to the registered holders of
the Warrants as of the close of business on such Distribution Date; prior to the
close of business on such Distribution Date, each holder of one Warrant will be
the beneficial owner of one share of Unit Preferred Stock;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints the
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Warrant Agent to act as agent for the Company in accordance with the
instructions in this Agreement hereinafter set forth, and the Warrant Agent
hereby accepts such appointment.
Section 2. Issue of Preferred Stock Certificates. The certificates for
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the Preferred Stock until after the close of business on February 19, 1991 or
such earlier date as the Company may publicly announce with the consent of Dain
Bosworth Incorporated and Piper, Jaffray & Hopwood Incorporated, with written
notice of
such determination to be given by the Company to the Warrant Agent (the earlier
of such dates herein called the "Distribution Date"), will be held by the
Warrant Agent as custodian for the holders of the Units unless the Distribution
Date is earlier than the close of business on the date of issue and sale of the
Units by the Company (the "Closing"). Until after the close of business on the
Distribution Date (unless the Distribution Date is prior to the Closing), the
Unit Preferred Stock will be evidenced by the Warrant Certificates registered in
the names of the holders of the Warrants, which certificates shall bear a legend
substantially of the following tenor and purport:
"Under the terms of the Warrant Agreement, dated as of November 20,
1990, between the Company and American Stock Transfer and Trust Company, as
Warrant Agent, the Company has deposited with the Warrant Agent one share
of $2.875 Cumulative Perpetual Preferred Stock, Series B, of the Company,
par value $.01 per share, for each Warrant to purchase one-half of one
share of Common Stock of the Company represented hereby. Until 4:00 p.m.,
Minneapolis, Minnesota time, on the "Distribution Date" (as defined below),
the registered owner of Warrants represented by this certificate is the
beneficial owner of such number of shares of Preferred Stock. As soon as
practicable after 4:00 p.m., Minneapolis, Minnesota time, on February 19,
1991 or such earlier date as may be publicly announced by the Company with
the consent of Dain Bosworth Incorporated and Piper, Jaffray & Hopwood
Incorporated (the earlier of such dates being the "Distribution Date"), the
Warrant Agent will mail (by first-class, insured, postage prepaid mail) to
the holder in whose name the Warrants represented by this Certificate are
registered as of 4:00 p.m., Minneapolis, Minnesota time, on the
Distribution Date, at the address of such holder as such address shall
appear on the records of the Warrant Agent, a certificate evidencing such
shares of Preferred Stock registered in the name of such holder. Ownership
of such Preferred Stock is not transferable until after the 4:00 p.m.,
Minneapolis, Minnesota time, on the Distribution Date, except by and in
connection with the transfer of the Warrants represented by this
certificate, and every transfer hereof by the holder hereof at or prior to
such time on the Distribution Date shall effect the transfer of the
beneficial interest of such holder in the Preferred Stock. After 4:00 p.m.,
Minneapolis, Minnesota time, on the Distribution Date, the holder of the
Warrants represented by this certificate is not, by virtue of being such
holder, the beneficial owner for the Preferred Stock. By accepting the
warrants represented by this Certificate, the holder hereof shall (prior to
4:00 p.m., Minneapolis, Minnesota time on the Distribution Date) possess
all other rights and obligations of a holder of Preferred Stock as fully
and effectually as if he had received the same."
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Until after the close of business on the Distribution Date (unless the
Distribution Date is prior to the Closing), the right to receive Unit Preferred
Stock will be transferable only in connection with the transfer of the Warrants
represented by certificates bearing the above legend.
For purposes of this Agreement, the term "close of business" on any given
date shall mean 4:00 p.m., Minneapolis, Minnesota time, on such date; provided,
however, that if such date is not a business day it shall mean 4:00 p.m.
Minneapolis, Minnesota time, on the next succeeding business day. For purposes
of this Agreement the term "business day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in Minneapolis,
Minnesota are authorized or obligated by law to be closed.
Section 3. Distribution of Preferred Stock Certificates. As soon a
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practicable after the Distribution Date (unless the Distribution Date is prior
to the Closing in which case the Closing Date shall control), the Warrant Agent,
as custodian, will mail, by first-class, insured, postage prepaid mail, to
record holders of the Warrants as of the close of business on the Distribution
Date, as shown by the records maintained by the Warrant Agent in accordance with
Section 7 hereof, at the address of such holders shown on such records, a
certificate evidencing one share of Unit Preferred Stock for each Warrant so
held.
Section 4. Date, Denomination and Execution of Warrant Certificates. The
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Warrant Certificates (and the Form of Election to Purchase and the Form of
Assignment to be printed on the reverse thereof) shall be in registered form
only and shall be substantially of the tenor and purport recited in Exhibit A
hereto together with the legend set forth in Section 2 hereof, if issued prior
to the close of business on the Distribution Date, and may have such letters,
numbers or other marks of identification or designation and such legends,
summaries or endorsements printed, lithographed or engraved thereon as the
Company 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 made pursuant thereto, or with any rule or regulation of any stock
exchange on which the Unit Preferred Stock or the Warrants may be listed, or to
conform to usage. The Warrant Certificates, whenever issued, shall be dated as
of November 20, 1990 and shall entitle the registered holders thereof, subject
to the provisions of this Agreement and of the Warrant Certificate, to purchase,
subject to adjustment as provided in Section 10 hereof, one-half of one fully
paid and nonassessable share of Common Stock for each Warrant evidenced by such
Warrant Certificates at the price per share set forth therein.
The Warrant Certificates shall be executed on behalf of the Company by its
Chairman of the Board, the President or a Vice President either manually or by
facsimile signature printed thereon, which shall be attested by the Treasurer or
an
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Assistant Treasurer or the Secretary or an Assistant Secretary of the Company,
either manually or by facsimile signature. The Warrant Certificates shall be
manually countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who shall
have signed any of the Warrant Certificates shall cease to be such officer of
the Company before countersignature by the Warrant Agent and issue and delivery
thereof by the Company, such Warrant Certificates, nevertheless, may be
countersigned by the Warrant Agent, issued and delivered with the same force and
effect as though the person who signed such Warrant Certificates had not ceased
to be such officer of the Company.
Section 5. Maintenance of Office or Agency. The Warrant Agent, or, if
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there shall be no such Warrant Agent, the Company, shall at all times maintain
an office or agency at which shall be kept and maintained books for registration
of ownership and transfer of ownership in accordance with Section 7 hereof and
at which Warrants may be exercised in accordance with Section 9 hereof. Such
office or agency shall initially be the corporate trust office of the Warrant
Agent.
Section 6. Issuance of Warrant Certificates. Upon execution of this
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Agreement, Warrant Certificates shall be countersigned and delivered by the
Warrant Agent only upon written order of the Company signed by its Chairman,
President or a Vice President, and its Treasurer or any Assistant Treasurer or
its Secretary or any Assistant Secretary.
Subsequent to their original issuance, no Warrant Certificates shall be
reissued except (i) Warrant Certificates issued upon transfer thereof in
accordance with Section 7 hereof, (ii) Warrant Certificates issued upon any
combination, split-up or exchange of Warrant Certificates pursuant to Section 7
hereof, (iii) Warrant Certificates issued in replacement of mutilated,
destroyed, lost or stolen Warrant Certificates pursuant to Section 8 hereof,
(iv) Warrant Certificates issued upon the partial exercise of Warrant
Certificates to evidence the unexercised portion of such Warrant Certificates
pursuant to Section 9 hereof and (v) Warrant Certificates issued to reflect any
adjustment or change in the Purchase Price or the number or kind of shares
purchasable thereunder pursuant to Section 25 hereof. The Warrant Agent is
hereby irrevocably authorized to countersign and deliver, in accordance with the
provisions of said Sections 7, 8, 9 and 25, the new Warrant Certificates
required for the purposes thereof, and the Company, whenever required by the
Warrant Agent, will supply the Warrant Agent with Warrant Certificates duly
executed on behalf of the Company for such purposes.
Section 7. Transfers and Exchanges of Warrant Certificates. The Warrant
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Agent will keep or cause to be kept books for registration of ownership and
transfer of ownership of the Warrant Certificates issued hereunder. Such
registers shall
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show the names and addresses of the respective holders of the Warrant
Certificates and the number of Warrants evidenced by each such Warrant
Certificate.
The Warrant Agent shall transfer, from time to time, any outstanding
Warrants upon the books to be maintained by the Warrant Agent for that purpose,
upon surrender of the Warrant Certificate evidencing such Warrants, with the
Form of Assignment duly filled in and executed, to the Warrant Agent, at its
principal corporate trust offices in New York, New York or at an office
maintained for such purpose at any time prior to the close of business on
November 20, 2000 (herein called the "Expiration Date"), and upon payment to the
Warrant Agent for the account of the Company of an amount equal to any
applicable transfer tax, any other taxes or governmental charges which the
Company may be required by law to collect in respect of such exercise and any
other amounts required pursuant to the Warrant Certificate. Such payment may be
made in cash or by check, bank draft or money order, payable in lawful money of
the United States of America to the order of the Warrant Agent.
Upon receipt of a Warrant Certificate, with the Form of Assignment duly
filled in and executed, accompanied by the required payment, the Warrant Agent
shall promptly countersign and deliver to the transferee a new Warrant
Certificate for the number of full Warrants transferred to such transferee;
provided, however, in case the registered holder of any Warrant Certificate
shall elect to transfer fewer than all of the Warrants evidenced by such Warrant
Certificate, the Warrant Agent in addition shall promptly countersign and
deliver to such registered holder a new Warrant Certificate or Certificates for
the number of full Warrants not so transferred.
Any Warrant Certificate or Certificates may be exchanged at the option of
the holder thereof for another Warrant Certificate or Certificates of different
denominations, of like tenor and representing in the aggregate the same number
of Warrants, upon surrender of such Warrant Certificate or Certificates, with
the Form of Assignment duly filled in and executed, to the Warrant Agent, at any
time or from time to time after the close of business on the Distribution Date
and prior to the close of business on the Expiration Date.
Section 8. Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
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Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of any
Warrant Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them and reimbursement to them of all
reasonable expenses incidental thereto, and, in the case of mutilation, upon
surrender and cancellation of the Warrant Certificate, the Warrant Agent shall
countersign and deliver a new Warrant Certificate of like tenor for the same
number of Warrants.
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Section 9. Duration and Exercise of Warrants. The Purchase Price for
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the Common Stock purchasable pursuant to the exercise of Warrants (each of which
shall be exercisable to purchase one-half of one share of Common Stock),
commencing as of the date hereof, shall be $12.50 per share of Common Stock in
lawful money of the United States of America, which Purchase Price shall
hereafter be subject to adjustment as provided in Section 10 hereof. Except as
the context otherwise requires, the term "Purchase Price" as used in this
Agreement shall mean the Purchase Price then in effect as of the relevant date
and shall reflect all adjustments made in accordance with the provisions of
Section 10 hereof. Each Purchase Price shall continue in effect until further
adjusted pursuant to the provisions of Section 10 hereof.
The registered holder of any Warrant Certificates may, subject to Section
11 hereof, exercise each Warrant evidenced thereby, to purchase one-half of one
share of Common Stock at any time or in part from time to time, after the close
of business on the Distribution Date, and at or prior to the close of business
on November 20, 2000 (at which time the Warrant Certificates shall be and become
wholly void and of no value).
Exercise of Warrants shall be accomplished upon surrender of the Warrant
Certificate evidencing such Warrants, with the Form of Election to Purchase on
the reverse side thereof duly filled in and executed, to the Warrant Agent at
its principal corporate trust offices in New York, New York or at an office
maintained for such purpose together with payment to the Warrant Agent for the
account of the Company of the Purchase Price (as of the date of such surrender)
for each share of Common Stock then being purchased and an amount equal to any
applicable transfer tax, and, if requested by the Company, any other taxes or
governmental charges which the Company may be required by law to collect in
respect of such exercise and any other charges required pursuant to the Warrant
Certificate. Payment of the Purchase Price and other charges may be made in
cash or by check, bank draft or money order payable in lawful money of the
United States of America to the order of the Warrant Agent. No adjustment shall
be made for any cash dividends, whether paid or declared, on any shares of
Common Stock issuable upon exercise of a Warrant.
Upon receipt of a Warrant Certificate, with the Form of Election to
Purchase duly filled in and executed, accompanied by payment of the Purchase
Price for the Common Stock to be purchased (and of an amount equal to any
applicable taxes, governmental or other charges as aforesaid), the Warrant Agent
shall promptly requisition from the Transfer Agent of the Common Stock of the
Company and deliver to or upon the order of the registered holder of such
Warrant Certificate, in such name or names as such registered holder may
designate, a certificate or certificates for the number of full shares of Common
Stock to be purchased, together
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with cash made available by the Company pursuant to Section 11 hereof in respect
of any fraction of a share of such stock otherwise issuable upon such exercise.
In case the registered holder of any Warrant Certificate shall exercise
fewer than all of the Warrants evidenced by such Warrant Certificate, the
Warrant Agent shall promptly countersign and deliver to the registered holder of
such Warrant Certificate, or to his duly authorized assigns, a new Warrant
Certificate or Certificates evidencing the number of Warrants that were not so
exercised. The Warrant Agent may deem and treat the person named as the
registered holder on the face of the Warrant Certificate and of the Common Stock
as the true and lawful owner thereof for all purposes.
Each person in whose name any certificate for shares of Common Stock is
issued upon the exercise of Warrants shall for all purposes be deemed to have
become the holder of record of such shares represented thereby and such
certificate shall be dated the date upon which the Warrant Certificate was duly
surrendered in proper form and payment of the Purchase Price (and of any
applicable taxes, governmental or other charges) was made; provided, however,
that if the date of such surrender and payment is a date on which the stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated,
the next succeeding business day on which the stock transfer books of the
Company are open. The Company covenants and agrees that it shall not cause its
stock transfer books to be closed for a period of more than ten consecutive
business days except upon consolidation, merger, sale of all or substantially
all of its assets, dissolution or liquidation.
Section 10. Adjustments of Number and Kind of Shares Purchasable and
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Purchase Price. The initial number of shares of Common Stock purchasable upon
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exercise of a Warrant and the Purchase Price shall be subject to adjustment from
time to time upon the occurrence, after the date hereof, of the following
events:
(A) In case the Company shall (1) pay a dividend in, or make a
distribution of, shares of Common Stock or of the Company's capital stock
convertible into Common Stock on its outstanding Common Stock, (2) subdivide its
outstanding shares of Common Stock into a greater number of such shares or (3)
combine its outstanding shares of Common Stock into a smaller number of such
shares, the total number of shares of Common Stock and the number of shares of
capital stock convertible into Common Stock purchasable upon the exercise of
each Warrant outstanding immediately prior thereto shall be adjusted so that the
holder of any Warrant Certificate thereafter surrendered for the purchase of
Common Stock shall be entitled to receive at the same aggregate Common Stock
Purchase Price the number of shares of Common Stock and the number of shares of
the Company's capital stock convertible into Common Stock which he would have
owned or have been entitled to receive immediately following any of the events
described above
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had such Warrant been exercised in full immediately prior to any such event. An
adjustment made pursuant to this Subsection shall, in the case of a stock
dividend or distribution, become effective as of the record date therefor and,
in the case of a subdivision or combination, be made as of the effective date
thereof. If, as a result of an adjustment made pursuant to this Subsection, the
holder of any Warrant thereafter surrendered for exercise shall become entitled
to receive shares of two or more classes of capital stock of the Company, the
Board of Directors of the Company (whose determination shall be conclusive and
shall be evidenced by a Board resolution filed with the Warrant Agent) shall
determine the allocation of the Adjusted Purchase Price between or among shares
of such classes of capital stock.
(B) In the event of any adjustment of the total number of shares of Common
Stock purchasable upon the exercise of the then outstanding Warrants pursuant to
Subsection (A) above, the Purchase Price per share applicable to each such
outstanding Warrant shall be adjusted to be the amount resulting from dividing
the number of shares (including fractional share interests) covered by such
Warrant immediately after such adjustment into the total amount payable upon
exercise of such Warrant in full immediately prior to such adjustment.
(C) In case the Company shall issue rights or warrants to all holders of
its Common Stock entitling them (for a period expiring within forty-five days
after the record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per share
of Common Stock (as defined in Subsection (F) below) at the record date
mentioned below, the Purchase Price shall be adjusted so that the same shall
equal the price determined by multiplying the Purchase Price in effect
immediately prior thereto by a fraction, of which the numerator shall be the
number of shares of Common Stock outstanding on the record date mentioned below
plus the number of additional shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock offered for
subscription or purchase would purchase at such current market price per share
of Common Stock, and of which the denominator shall be the number of shares of
Common Stock outstanding on such record date plus the number of shares of Common
Stock offered for subscription or purchase. Such adjustments shall be made
whenever such rights or warrants are issued, and shall become effective as of
the record date for the determination of stockholders entitled to receive such
rights or warrants.
(D) In case the company shall distribute to all holders of its Common
Stock shares of its capital stock (other than Common Stock or shares of capital
stock convertible into Common Stock), evidences of its indebtedness or assets,
or rights or warrants (excluding those referred to in Subsection (C) above) to
subscribe or purchase such shares, evidences of indebtedness or assets, then in
each such case the Purchase Price in effect thereafter shall be determined by
multiplying the Purchase Price in effect immediately prior thereto by a
fraction, of which the numerator shall
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be the total number of outstanding shares of Common Stock multiplied by the
current market price per share of Common Stock (as determined in accordance with
the provisions of Subsection (F) below) on the record date mentioned below, less
the fair market value (as determined by the Board of Directors of the Company,
whose determination shall be conclusive and evidenced by a Board resolution
filed with the Warrant Agent) of the capital stock, assets or evidences of
indebtedness or of such rights or warrants so distributed to all such holders,
and of which the denominator shall be the total number of outstanding shares of
Common Stock multiplied by such current market price per share of Common Stock.
Such adjustments shall be made whenever any such distribution is made, and shall
become effective as of the record date for the determination of stockholders
entitled to receive such distribution.
(E) In the event of any capital reorganization or any reclassification of
the Common Stock (except as provided in Subsection (A) above or Subsection (I)
below), any holder of Warrants upon exercise thereof shall be entitled to
receive, in lieu of the Common Stock to which he would have become entitled upon
exercise immediately prior to such reorganization or reclassification, the
shares (of any class or classes) or other securities or property of the Company
that he would have been entitled to receive at the same aggregate Purchase Price
upon such reorganization or reclassification if his Warrants had been exercised
immediately prior thereto; and in any such case, appropriate provision (as
determined by the Board of Directors of the Company, whose determination shall
be conclusive and shall be evidenced by a Board resolution filed with the
Warrant Agent) shall be made for the application of this Section 10 with respect
to the rights and interests thereafter of the holders of Warrants (including but
not limited to the allocation of the adjusted Purchase Price between or among
shares of classes of capital stock), to the end that this Section 10 (including
the adjustments of the number of shares of Common Stock or other securities
purchasable and the Purchase Price thereof) shall thereafter be reflected, as
nearly as reasonably practicable, in all subsequent exercises of the Warrants
for any shares or securities or other property thereafter deliverable upon the
exercise of the Warrants.
(F) For the purpose of any computation under Subsections (C) and (D)
above, the current market price per share of Common Stock at any date shall be
deemed to be the average of the daily closing market prices, if the Common Stock
is traded on a national securities exchange or the NASDAQ national market
system, or the average of the last daily bid and asked quotation if traded on
NASDAQ, for the ten consecutive trading days immediately prior to the day in
question.
(G) No adjustment in the Purchase Price under this Section 10 shall be
made unless such adjustment would require an increase or decrease of at least
one per cent (1%) in the Purchase Price; provided, however, that any adjustments
which by reason of this Subsection are not required to be made shall be carried
forward and
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taken into account in any subsequent adjustment; provided, further, that any
adjustments which are so carried forward shall be made no later than the earlier
of (i) three years after the date of the particular event on account of which an
adjustment would be required or (ii) the date as to which the aggregate
adjustments not previously made would require a total increase or decrease of 1%
in the Purchase Price. All calculations under this Section 10 shall be made to
the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(H) Whenever the number of shares of Common Stock or other securities
purchasable upon exercise of a Warrant or the Purchase Price is adjusted as
provided in this Section 10, the Company will promptly file with the Warrant
Agent a certificate signed by the Chairman of the Board, the President or a Vice
President of the Company and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Company setting forth the number and
kind of shares purchasable and the Purchase Price, as so adjusted, stating that
such adjustments in the number or kind of shares or other securities, or in the
Purchase Price, conform to the requirements of this Section 10, and setting
forth a brief statement of the facts accounting for such adjustments. Such
certificates shall be conclusive evidence of the correctness of such
adjustments. Promptly after receipt of such certificate, the Company, or the
Warrant Agent at the Company's request, will mail a brief summary thereof (to be
supplied by the Company) to the registered holders of the Warrants; provided,
however, that failure to file or to give any notice required under this
Subsection, or any defect therein, shall not affect the legality or validity of
any such adjustments under this Section 10; and provided further, that, where
appropriate, such notice may be given in advance and included as part of the
notice required to be given pursuant to Section 15 hereof.
(I) In case of any consolidation or merger of the Company with or into
another corporation (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding Common Stock), or in case
of any sale or conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, the corporation formed by such
consolidation or merger or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Warrant Agent a
supplemental warrant agreement providing that the holder of each Warrant then
outstanding shall have the right thereafter (until the expiration of such
Warrant) to receive, upon exercise of such Warrant, the kind and amount of
shares of stock and other securities and property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Common Stock of the Company for which such Warrant might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental warrant agreement shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided in this
Section. The above provision of this Subsection shall similarly apply to
successive consolidations, mergers, sales or transfers.
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The Warrant Agent shall not be under any responsibility to determine the
correctness of any provisions contained in any such supplemental warrant
agreement relating to either the kind or amount of shares of stock or securities
or property purchasable by holders of Warrant Certificates upon the exercise of
their Warrants after any such consolidation, merger, sale or transfer or to any
adjustment to be made with respect thereto, but subject to the provisions of
Section 23 hereof, may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, a certificate of a firm
of independent certified public accountants with respect thereto.
(J) Irrespective of any adjustments in the Purchase Price or in the number
or kind of shares issuable upon exercise of Warrants, Warrant Certificates
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the similar Warrant Certificates
initially issuable pursuant to this Warrant Agreement.
(K) The Company may retain a firm of independent public accountants of
recognized standing, which may be the firm regularly retained by the Company,
selected by the Board of Directors of the Company or the Executive Committee of
said Board, and not disapproved by the Warrant Agent, to make any computation
required under this Section, and a certificate signed by such firm shall be
conclusive evidence of the correctness of any computation made under this
Section.
(L) For the purpose of this Section, the term "Common Stock" shall mean
(i) the class of stock designated as Common Stock in the Certificate of
Incorporation of the Company, as amended, at the date of this Agreement or (ii)
any other class of stock resulting from successive changes or reclassifications
of such Common Stock consisting solely of changes in par value, or from par
value to no par value or from no par value to par value. In the event that at
any time as a result of an adjustment made pursuant to this Section, the holder
of any Warrant thereafter surrendered for exercise shall become entitled to
receive any shares of capital stock of the Company other than the shares of the
Common Stock, thereafter the number of such other shares so receivable upon
exercise of any Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in this Section, and all other provisions
of this Agreement, with respect to the Common Stock shall apply on like terms to
any such other shares.
(M) Anything in this Section 10 to the contrary notwithstanding, if the
Company or any subsidiary of the Company grants options or other rights to
purchase shares of Common Stock to any of its employees or directors, or if such
employees or directors otherwise receive shares of Common Stock under any
employee benefit plan of, or compensation agreement or arrangement with, the
Company or its subsidiaries, or if the Company offers any dividend reinvestment
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plans, the granting of such options or rights, the issuance of shares of Common
Stock upon the exercise of such options or other rights or pursuant to such
plans, agreements or arrangements, and subscriptions for purchases of shares of
Common Stock under any such dividend reinvestment plan are not to be taken into
consideration for adjustments under this Section 10.
Section 11. Fractional Interests. The Company shall not be required to
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issue any Warrant Certificate evidencing a fraction of a Warrant or to issue
fractions of shares of Common Stock on the exercise of the Warrants. If any
fraction (calculated to the nearest one-hundredth) of a share of Common Stock
would, except for the provisions of this Section, be issuable on the exercise of
any Warrant, the Company shall purchase such fraction for an amount in cash
equal to the current value of such fraction computed on the basis of the closing
market price on the trading day immediately preceding the day upon which such
Warrant Certificate was surrendered for exercise in accordance with Section 9
hereof. By accepting a Warrant Certificate, the holder thereof expressly waives
any right to receive a Warrant Certificate evidencing any fraction of a Warrant
or to receive any fractional share of Common Stock upon exercise of a Warrant.
Section 12. Reservation of Common Stock. The Company covenants that it
---------------------------
will at all times reserve and keep available, free from any pre-emptive rights,
out of its authorized Common Stock, solely for the purpose of issue upon
exercise of the Warrants, such number of shares of Common Stock as shall then be
issuable upon the exercise of all outstanding Warrants. The Company covenants
that all shares of Common Stock which shall be so issuable shall upon such issue
be duly authorized, validly issued, fully paid and nonassessable. Promptly after
the Expiration Date of the Warrants, the Warrant Agent shall certify to the
Company the aggregate number of Warrants then outstanding, and thereafter no
shares of stock shall be subject to reservation in respect of such Warrants.
The Warrant Agent is hereby irrevocably authorized to requisition from time
to time from the transfer agent of the Common Stock and any subsequent transfer
agent of any shares of the Company's capital stock issuable upon the exercise of
the Warrants, for stock certificates required to honor outstanding Warrants.
The Company hereby irrevocably authorizes its present and any future transfer
agent to comply with all such requests. The Company will supply such transfer
agent with duly executed stock certificates for such purpose and will itself
provide or otherwise make available any cash which may be payable as provided in
Section 11 of this Agreement.
The Company covenants that if any shares of Common Stock required to be
reserved for the purposes of issue upon exercise of the Warrants hereunder
require registration with or approval of any governmental authority under any
federal or state law, or listing on any national securities exchange, before
such shares may be
13
issued upon exercise, the Company will, when and if the fair market value of one
share of Common Stock (as defined in Section 11) exceeds the Purchase Price, in
good faith and as expeditiously as possible endeavor to cause such shares to be
duly registered, approved or listed on the relevant national securities
exchange, as the case may be; provided, however, that in no event shall shares
of Common Stock be issued, and the Company is authorized to suspend the exercise
of all Warrants, for the period during which it is endeavoring to obtain such
registration, approval or listing.
Section 13. Reduction of Conversion Price Below Par Value. Before taking
---------------------------------------------
any action which would cause an adjustment pursuant to Section 10 hereof
reducing the Purchase Price below the then par value (if any) of the shares of
Common Stock issuable upon exercise of the Warrants, the Company will use its
best efforts to take any corporate action which, in the opinion of its counsel,
may be necessary in order that the Company may validly and legally issue fully
paid and nonassessable shares of such Common Stock at such adjusted Purchase
Price.
Section 14. Payment of Taxes. The Company covenants and agrees that it
----------------
will pay when due and payable any and all Federal and state original issue taxes
which may be payable in respect of the issue of the Warrant Certificates, or any
shares of Common Stock or other securities upon the exercise of Warrants. The
Company shall not, however, be required (i) to pay any tax which may be payable
in respect of any transfer involved in the transfer and delivery of Warrant
Certificates or the issuance or delivery of certificates for Common Stock or
other securities in a name other than that of the registered holder of the
Warrant Certificate surrendered for purchase or (ii) to issue or deliver any
certificate for shares of Common Stock or other securities upon the exercise of
any Warrant Certificate until any such tax shall have been paid, all such tax
being payable by the holder of such Warrant Certificate at the time of
surrender.
Section 15. Notice of Certain Corporate Action. In case the Company after
----------------------------------
the date hereof shall propose (i) to offer to all of the holders of Common Stock
rights to subscribe to or purchase any additional shares of any class of its
capital stock, any evidences of its indebtedness or assets, or any other rights
or options in a manner causing an adjustment pursuant to Section 10(A) or (ii)
to effect any reclassification of Common Stock (other than a reclassification
involving merely the subdivision or combination of outstanding shares of Common
Stock) or any capital reorganization, or any consolidation or merger to which
the Company is a party and for which approval of any stockholders of the Company
is required, or any sale, transfer or other disposition of its property and
assets substantially as an entirety, or the liquidation, voluntary or
involuntary dissolution or winding up of the Company, in a manner causing an
adjustment pursuant to Section 10(E), then, in each such case, the Company shall
file with the Warrant Agent and the Company, or the Warrant Agent on its behalf,
shall mail by first-class, postage prepaid mail to all
14
registered holders of the Warrant Certificates notice of such proposed action,
which notice shall specify the date on which the books of the Company shall
close or a record be taken for such offer of rights or options, or the date on
which such reclassification, reorganization, consolidation, merger, sale,
transfer, other deposition, liquidation, voluntary or involuntary dissolution or
winding up shall take place or commence, as the case may be, and which shall
also specify any record date for determination of holders of Common Stock
entitled to vote thereon or participate therein and shall set forth such facts
with respect thereto as shall be reasonably necessary to indicate any
adjustments in the Purchase Price and the number or kind of shares or other
securities purchasable upon exercise of Warrants which will be required as a
result of such action. Such notice shall be filed and mailed in the case of any
action covered by clause (i) above, at least ten days prior to the record date
for determining holders of the Common Stock for purposes of such action or, if a
record is not to be taken, the date as of which the holders of shares of Common
Stock of record are to be entitled to such offering; and, in the case of any
action covered by clause (ii) above, at least twenty days prior to their earlier
of the date on which such reclassification, reorganization, consolidation,
merger, sale, transfer, other deposition, liquidation, voluntary or involuntary
dissolution or winding up in expected to become more effective and the date as
of which it is expected that holders of shares of Common Stock of record on such
date shall be entitled to exchange their shares for securities or other property
deliverable upon such reclassification, reorganization, consolidation, merger,
sale, transfer, other disposition, liquidation, voluntary or involuntary
dissolution or winding up.
Failure to give any such notice or any defect therein shall not affect the
legality or validity of any transaction listed in this Section 15.
Section 16. Disposition of Proceeds on Exercise of Warrant Certificates,
------------------------------------------------------------
etc. The Warrant Agent shall account promptly to the Company with respect to
- ---
Warrants exercised and concurrently pay to the Company all moneys received.
The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours at its principal
corporate trust offices, 40 Wall Street, 46th Floor, New York, New York 10005
and at any office or agency maintained by it in accordance with Section 5
hereof. Copies of this Agreement may be obtained upon written request addressed
to Chief Financial Officer, Metropolitan Financial Corporation, 1500 Lincoln
Centre, Minneapolis, Minnesota 55402.
Section 17. Warrant Certificate Holder Not Deemed a Stockholder. Except
---------------------------------------------------
as otherwise provided in Section 2, prior to the Distribution Date, no holder,
as such, of any Warrant Certificate shall be entitled to vote or be deemed the
holder of Common Stock or any other securities of the Company which may at any
time be issuable on the exercise of the Warrants represented thereby for any
purpose
15
whatever, nor shall anything contained herein or in any Warrant Certificate be
construed to confer upon the holder of any Warrant Certificate, as such, any of
the rights of a stockholder of the Company 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 recapitalization, issue of stock, reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger, conveyance or
otherwise), or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 15 hereof), or to receive dividends
or subscription rights, or otherwise, until such Warrant Certificate shall have
been exercised in accordance with the provisions hereof and the receipt of the
Purchase Price and any other amounts payable upon such exercise by the Warrant
Agent as provided herein.
Section 18. Right of Action. All rights of action in respect to this
---------------
Agreement are vested in the respective registered holders of the Warrant
Certificates; and any registered holder of any Warrant Certificate, without the
consent of the Warrant Agent or of the holder of any Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by such
Warrant Certificate, for the purchase of shares of the Common Stock in the
manner provided in the Warrant Certificate and in this Agreement.
Section 19. Agreement of Holders of Warrant Certificates. Every holder
--------------------------------------------
of a Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and with every other holder of a Warrant Certificate
that:
(A) The Warrant Certificates are transferable on the registry books of the
Warrant Agent only upon the terms and conditions set forth in this Agreement;
and
(B) The Company and the Warrant Agent may deem and treat the person in
whose name the Warrant Certificate is registered as the absolute owner for all
purposes whatever and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
Section 20. Cancellation of Warrant Certificates. In the event that the
------------------------------------
Company shall purchase or otherwise acquire any Warrant Certificate or
Certificates after the issuance thereof, such Warrant Certificate or
Certificates shall thereupon be delivered to the Warrant Agent and be cancelled
by it and retired. The Warrant Agent shall also cancel any Warrant Certificate
delivered to it for exercise, in whole or in part, or delivered to it for
transfer, split up, combination or exchange. Warrant
16
Certificates so cancelled shall be delivered by the Warrant Agent to the Company
from time to time, or disposed of in accordance with the instructions of the
Company.
Section 21. Concerning the Warrant Agent. The Company agrees to pay to
----------------------------
the Warrant Agent from time to time, on demand of the Warrant Agent, reasonable
compensation for all services rendered by it hereunder and also its reasonable
expenses, including counsel fees, and other disbursements incurred in the
administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also 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 the part of the Warrant
Agent, arising out of or in connection with the acceptance and administration of
this Agreement, including the costs and expenses of defending against any claim
of liability in the premises.
Section 22. Merger or Consolidation or Change of Name of Warrant Agent.
----------------------------------------------------------
Any corporation into which the Warrant Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation
to which the Warrant Agent shall be a party, or any corporation succeeding to
the corporate trust business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor warrant agent under
the provisions of Section 24 hereof. In case at the time such successor to the
Warrant Agent shall succeed to the agency created by this Agreement, any of the
Warrant Certificates shall have been countersigned but not delivered, any such
successor to the Warrant Agent may adopt the countersignature of the original
warrant agent and deliver such Warrant Certificates so countersigned; and in
case at that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor warrant agent or in the name
of the successor warrant agent; and in all such cases such Warrant Certificates
shall have the full force provided in the Warrant Certificates and in this
Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver Warrant Certificates so countersigned; and in case at that time any
of the Warrant Certificates shall not have been countersigned, the Warrant Agent
may countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
17
The provisions of this Section 22 shall also apply to any agent appointed
pursuant to Section 5 hereof.
Section 23. Duties of Warrant Agent. The Warrant Agent undertakes the
-----------------------
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrant Certificates
by their acceptance thereof, shall be bound:
(A) The Warrant Agent may consult with counsel (who may be counsel for the
Company) 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 and in accordance with such opinion;
provided, however, that the Warrant Agent shall have exercised reasonable care
in the selection of such counsel.
(B) 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 Company 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 Chairman of the Board, the President,
the Chief Financial Officer, the Treasurer or the Secretary of the Company and
delivered to the Warrant Agent; and such certification 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.
(C) The Warrant Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(D) 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 describe 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 Company only.
(E) The Warrant Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and deliver 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), or
for any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant Certificate, or for the adjustment of the Purchase
Price or the making of any change in the number of shares of Common Stock
required under the provisions of Section 10 or for the manner, method or amount
of any such change
18
or the ascertaining of the existence of facts that would require any such
adjustment or change (except with respect to the exercise of Warrant
Certificates after actual notice of any adjustment of the Purchase Price), and
it shall not by 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 whether
any shares of Common Stock will when issued be validly issued, fully paid and
nonassessable.
(F) The Warrant Agent and any stockholder, director, officer, employee or
agent appointed pursuant to Section 5 hereof of the Warrant Agent may buy, sell
or deal in any of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to or otherwise act as fully and
freely as though it was not Warrant Agent under this Agreement. Nothing herein
shall preclude the Warrant Agent from acting in any other capacity for the
Company or for any other legal entity.
(G) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President, the Chief Financial Officer, the Treasurer
or the Secretary of the Company, and to apply to such officers for advice or
instructions in connection with the Warrant Agent's duties, and it shall not be
liable for any action taken or suffered or omitted by it in good faith in
accordance with instructions of any such officer.
(H) The Warrant Agent will not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company.
(I) The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees or for any loss to the Company resulting
from such neglect or misconduct; provided, however, that reasonable care shall
have been exercised in the selection and continued employment of such attorneys,
agents and employees.
(J) The Warrant Agent will not incur any lability or responsibility to the
Company or to any holder of any Warrant Certificate 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.
19
(K) The Warrant Agent will act hereunder solely as agent of the Company 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 doing in connection with this Agreement except for its
own negligence, bad faith or fulfill misconduct.
Section 24. Change of Warrant Agent. The Warrant Agent may resign and be
-----------------------
discharged from its duties under this Agreement upon thirty days' prior notice
in writing mailed to the Company by registered or certified mail, and to each
registered holder of Warrant Certificates. The Company may remove the Warrant
Agent or any successor warrant agent upon thirty 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 Company shall appoint a
successor to the Warrant Agent and shall, within fifteen days following such
appointment, give notice thereof in writing to each of the registered holders of
the Warrant Certificates. If the Company shall fail to make such appointment
within a period of fifteen 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 (i) the Company agrees to perform the
duties of the Warrant Agent hereunder and (ii) the registered holder of any
Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a new warrant agent. Any successor warrant agent, whether
appointed by the Company or by such a court, shall be a bank or trust company,
in good standing, having its principal corporate trust office in Minneapolis or
St. Paul, Minnesota, or in New York, New York, and having at the time of its
appointment as successor warrant agent a combined capital and surplus of at
least $25,000,000. After appointment the 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 in 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 Warrant Agent or the appointment of the
successor warrant agent, as the case may be.
Any agent appointed pursuant to Section 5 hereof may resign and be
discharged from its duties under this Agreement upon thirty days' prior notice
in writing mailed to the Warrant Agent at its principal corporate trust offices
by registered or certified mail. The Warrant Agent may remove any such agent
upon thirty days' prior notice in writing, mailed to such agent by registered or
certified mail. In the event a successor agent shall be appointed or another
office shall be maintained by the Warrant Agent pursuant to Section 5 hereof,
the Warrant Agent
20
shall within fifteen days thereafter give notice thereof in writing to each of
the registered holders of Warrant Certificates.
Section 25. Issuance of New Warrant Certificates. Notwithstanding any of
------------------------------------
the provisions of this Agreement or the several Warrant Certificates to the
contrary, the Company may, at its option, issue new Warrant Certificates in such
form as may be approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price or the number or kind of shares purchasable under
the several Warrant Certificates made in accordance with the provisions of this
Agreement.
Section 26. Notices. Any notice or demand pursuant to this Agreement to
-------
be given to or made on the Company by the Warrant Agent or by the registered
holder of any Warrant Certificate shall be sufficiently given or made if sent by
first-class or registered mail, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Agent) as follows:
Metropolitan Financial Corporation
1500 Lincoln Centre
Minneapolis, Minnesota 55402
Attention: Chief Financial Officer
Any notice pursuant to this Agreement to be given or made by the Company or by
the holder of any Warrant Certificate to or on the Warrant Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) as follows:
American Stock Transfer and Trust Company
40 Wall Street, 46th Floor
New York, New York 10005
Attention: Stock Transfer Department
Any notice or demand authorized to be given or made to the registered holder of
any Warrant Certificate under this Agreement shall be sufficiently given or made
if sent by first-class or registered, postage prepaid mail, to the last address
of such holder as it shall appear on the registers maintained by the Warrant
Agent.
Section 27. Modification of Agreement. The Warrant Agent may, without
-------------------------
the consent or concurrence of the holders of the Warrant Certificates, by
supplemental agreement or otherwise, concur with the Company in making any
changes or corrections in this Agreement that the Warrant Agent shall have been
advised by counsel (who may be counsel for the Company) are necessary or
desirable to cure any ambiguity or to correct any defective or inconsistent
provision or clerical omission or mistake or manifest error herein contained, or
to make any other
21
provisions in regard to matters or questions arising hereunder and which shall
not be inconsistent with the provisions of the Warrant Certificates and which
shall not adversely affect the interests of the holders of Warrant Certificates.
Section 28. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 29. Minnesota Contract. This Agreement and each Warrant
------------------
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Minnesota and for all purposes shall be construed in
accordance with the laws of said State.
Section 30. Benefits of This Agreement. Nothing in this Agreement or in
--------------------------
the Warrant Certificates shall be construed to give to any person or corporation
other than the Company, the Warrant Agent, their respective successors and
assigns hereunder and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent, their respective successors and assigns hereunder and the
registered holders of the Warrant Certificates.
Section 31. Descriptive Headings. The descriptive headings of the
--------------------
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
Section 32. Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which shall be an original; but such counterparts shall
together constitute one and the same instrument.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be hereunto affixed and attested,
all as of the day and year first above written.
METROPOLITAN FINANCIAL
CORPORATION
By [SIGNATURE]
Its [TITLE]
AMERICAN STOCK TRANSFER AND
TRUST COMPANY
By [SIGNATURE]
Its [TITLE]
and
By [SIGNATURE]
Its [TITLE]
23
- --------------------------------------------------------------------------------
FIRST BANK SYSTEM, INC.
AND
AMERICAN STOCK TRANSFER AND TRUST COMPANY
WARRANT AGENT
_________________
SUPPLEMENTAL WARRANT AGREEMENT
_________________
DATED AS OF JANUARY 24, 1995
- --------------------------------------------------------------------------------
SUPPLEMENTAL WARRANT AGREEMENT, dated as of January 24, 1995, between First
Bank System, Inc., a Delaware corporation (the "Company"), and American Stock
Transfer and Trust Company, a New York corporation (said corporation, and any
successor which shall become such in the manner prescribed in this Agreement,
being herein called the "Warrant Agent").
WHEREAS, the Warrant Agent is a party to a Warrant Agreement, dated
November 20, 1990 (the "Warrant Agreement"), with Metropolitan Financial
Corporation, a Delaware corporation ("Metropolitan"); and
WHEREAS, the Company and Metropolitan are parties to an Agreement of Merger
and Consolidation, dated July 21, 1994 (the "Merger Agreement"), pursuant to
which Metropolitan was merged (the "Merger") with and into the Company,
effective as of the date hereof; and
WHEREAS, Section 10(I) of the Warrant Agreement provides, among other
things, that if Metropolitan is merged into another corporation, the corporation
formed by such merger will enter into a supplemental warrant agreement with the
Warrant Agent providing that each holder of a warrant (individually, a "Warrant"
and collectively the "Warrants") outstanding under the Warrant Agreement shall
have the right thereafter (until the expiration of such Warrant) to receive,
upon exercise of such Warrant, the kind and amount of shares of stock and other
securities or property receivable upon such merger by a holder of the number of
shares of common stock, par value $.01 per share ("Metropolitan Common Stock"),
for which such Warrant might have been exercised immediately prior to such
merger; and
WHEREAS, it is the intention of the parties that this Agreement serve as
the supplemental warrant agreement required by the Warrant Agreement; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange and replacement of the certificates evidencing the
Warrants issued under the Warrant Agreement (the "Warrant Certificates") and the
exercise of the Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints the
----------------------------
Warrant Agent to act as agent for the Company in accordance with the
instructions in this Agreement hereinafter set forth, and the Warrant Agent
hereby accepts such appointment.
Section 2. Date, Denomination and Execution of Warrant Certificates.
--------------------------------------------------------
The Warrant Certificates (and the Form of Election to Purchase and the Form of
Assignment to be printed on the reverse thereof) shall be in registered form
only and shall be substantially of the tenor and purport recited in Exhibit A to
the Warrant Agreement, except the Warrant Certificates issued after the date
hereof (the "Effective Date") shall, subject to the provisions of Section 10(j)
of the Warrant Agreement, refer to the Company as the issuer thereof, and may
have such letters, numbers or other marks of identification or designation and
such legends, summaries or endorsements printed, lithographed or engraved
thereon as the Company 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 made pursuant thereto, or with any rule or
regulation of any stock exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall entitle the registered holders
thereof, subject to the provisions of this Agreement and of the Warrant
Certificate, to purchase, subject to adjustment as provided in Section 8 hereof,
0.90 of a fully paid and nonassessable share of the common stock, par value
$1.25 per share (the "Common Stock"), of the Company for each Warrant evidenced
by such Warrant Certificates at the price of $6.94 per share.
Warrant Certificates issued after the Effective Date shall, subject to
Section 10(j) of the Warrant Agreement, be executed on behalf of the Company by
its Chairman of the Board, the President or a Vice President either manually or
by facsimile signature printed thereon, which shall be attested by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary of the
Company, either manually or by facsimile signature. The Warrant Certificates
shall be manually countersigned by the Warrant Agent and shall not be valid for
any purpose unless so countersigned. In case any officer of the Company who
shall have signed any of the Warrant Certificates shall cease to be such officer
of the Company before countersignature by the Warrant Agent and issue and
delivery thereof by the Company, such Warrant Certificates, nevertheless, may be
countersigned by the Warrant Agent, issued and delivered with the same force and
effect as though the person who signed such Warrant Certificates had not ceased
to be such officer of the Company.
Section 3. Maintenance of Office or Agency. The Warrant Agent, or, if
-------------------------------
there shall be no such Warrant Agent, the Company, shall at all times maintain
an office or agency at which shall be kept and maintained books for registration
of ownership and transfer of ownership in accordance with Section 5 hereof and
at which Warrants may be exercised in accordance with Section 7 hereof. Such
office or agency shall initially be the corporate trust office of the Warrant
Agent.
Section 4. Issuance of Warrant Certificates. Subsequent to the original
--------------------------------
issuance of the Warrant Certificates pursuant to Section 6 of the Warrant
-2-
Agreement, no Warrant Certificates shall be reissued except (i) Warrant
Certificates issued upon transfer thereof in accordance with Section 5 hereof,
(ii) Warrant Certificates issued upon any combination, split-up or exchange of
Warrant Certificates pursuant to Section 5 hereof, (iii) Warrant Certificates
issued in replacement of mutilated, destroyed, lost or stolen Warrant
Certificates pursuant to Section 6 hereof, (iv) Warrant Certificates issued upon
the partial exercise of Warrant Certificates to evidence the unexercised portion
of such Warrant Certificates pursuant to Section 7 hereof and (v) Warrant
Certificates issued to reflect any adjustment or change in the Purchase Price or
the number or kind of shares purchasable thereunder pursuant to Section 23
hereof. The Warrant Agent is hereby irrevocably authorized to countersign and
deliver, in accordance with the provisions of said Sections 5, 6, 7 and 23, the
new Warrant Certificates required for purposes thereof, and the Company,
whenever required by the Warrant Agent, will supply the Warrant Agent with
Warrant Certificates duly executed on behalf of the Company for such purposes.
Section 5. Transfers and Exchanges of Warrant Certificates. The Warrant
-----------------------------------------------
Agent will keep or cause to be kept books for registration of ownership and
transfer of ownership of the Warrant Certificates issued hereunder. Such
registers shall show the names and addresses of the respective holders of the
Warrant Certificates and the number of Warrants evidenced by each such Warrant
Certificate.
The Warrant Agent shall transfer, from time to time, any outstanding
Warrants upon the books to be maintained by the Warrant Agent for that purpose,
upon surrender of the Warrant Certificate evidencing such Warrants, with the
Form of Assignment duly filled in and executed, to the Warrant Agent, at its
principal corporate trust offices in New York, New York or at an office
maintained for such purpose at any time prior to the close of business on
November 20, 2000 (herein called the "Expiration Date"), and upon payment to the
Warrant Agent for the account of the Company of an amount equal to any
applicable transfer tax, any other taxes or governmental charges which the
Company may be required by law to collect in respect of such exercise and any
other amounts required pursuant to the Warrant Certificate. Such payment may be
made in cash or by check bank draft or money order, payable in lawful money of
the United States of America to the order of the Warrant Agent.
For purposes of this Agreement, the term "close of business" on any given
date shall mean 4:00 p.m., Minneapolis, Minnesota time, on such date; provided,
however, that if such date is not a business day it shall mean 4:00 p.m.,
Minneapolis, Minnesota time, on the next succeeding business day. For purposes
of this Agreement the term "business day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in Minneapolis,
Minnesota are authorized or obligated by law to be closed.
-3-
Upon receipt of a Warrant Certificate, with the Form of Assignment duly
filled in and executed, accompanied by the required payment, the Warrant Agent
shall promptly countersign and deliver to the transferee a new Warrant
Certificate for the number of full Warrants transferred to such transferee;
provided, however, that in case the registered holder of any Warrant Certificate
shall elect to transfer fewer than all of the Warrants evidenced by such Warrant
Certificate, the Warrant Agent in addition shall promptly countersign and
deliver to such registered holder a new Warrant Certificate or Certificates for
the number of full Warrants not so transferred.
Any Warrant Certificate or Certificates may be exchanged at the option of
the holder thereof for another Warrant Certificate or Certificates of different
denominations, of like tenor and representing in the aggregate the same number
of Warrants, upon surrender of such Warrant Certificate or Certificates, with
the Form of Assignment duly filed in and executed, to the Warrant Agent, at any
time or from time to time prior to the close of business on the Expiration Date.
Section 6. Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
---------------------------------------------------------
Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of any
Warrant Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them and reimbursement to them of all
reasonable expenses incidental thereto, and, in the case of mutilation, upon
surrender and cancellation of the Warrant Certificate, the Warrant Agent shall
countersign and deliver a new Warrant Certificate of like tenor for the same
number of Warrants.
Section 7. Duration and Exercise of Warrants. The Purchase Price for the
---------------------------------
Common Stock purchasable pursuant to the exercise of Warrants (each of which
shall be exercisable to purchase 0.90 of a share of Common Stock), commencing as
of the date hereof, shall be $6.94 per share of Common Stock in lawful money of
the United States of America, which Purchase Price shall hereafter be subject to
adjustment as provided in Section 8 hereof. Except as the context otherwise
requires, the term "Purchase Price" as used in this Agreement shall mean the
Purchase Price then in effect as of the relevant date and shall reflect all
adjustments made in accordance with the provisions of Section 8 hereof. Each
Purchase Price shall continue in effect until further adjusted pursuant to the
provisions of Section 8 hereof.
The registered holder of any Warrant Certificates may, subject to Section 9
hereof, exercise each Warrant evidenced thereby, to purchase 0.90 of a share of
Common Stock at any time or in part from time to time prior to the close of
business on November 20, 2000 (at which time the Warrant Certificates shall be
and become wholly void and of no value).
-4-
Exercise of Warrants shall be accomplished upon surrender of the Warrant
Certificate evidencing such Warrants, with the Form of Election to Purchase on
the reverse side thereof duly filled in and executed, to the Warrant Agent at
its principal corporate trust offices in New York, New York or at an office
maintained for such purpose together with payment to the Warrant Agent for the
account of the Company of the Purchase Price (as of the date of such surrender)
for each share of Common Stock then being purchased and an amount equal to any
applicable transfer tax, and, if requested by the Company, any other taxes or
governmental charges which the Company may be required by law to collect in
respect of such exercise and any other charges required pursuant to the Warrant
Certificate. Payment of the Purchase Price and other charges may be made in
cash or by check, bank draft or money order payable in lawful money of the
United States of America to the order of the Warrant Agent. No adjustment shall
be made for any cash dividends, whether paid or declared, on any shares of
Common Stock issuable upon exercise of a Warrant.
Upon receipt of a Warrant Certificate, with the Form of Election to
Purchase duly filled in and executed, accompanied by payment of the Purchase
Price for the Common Stock to be purchased (and of an amount equal to any
applicable taxes, governmental or other charges as aforesaid), the Warrant Agent
shall promptly requisition from the Transfer Agent of the Common Stock of the
Company and deliver to or upon the order of the registered holder of such
Warrant Certificate in such name or names as such registered holder may
designate, a certificate or certificates for the number of full shares of Common
Stock to be purchased, together with cash made available by the Company pursuant
to Section 9 hereof in respect of any fraction of a share of such stock
otherwise issuable upon such exercise.
In case the registered holder of any Warrant Certificate shall exercise
fewer than all of the Warrants evidenced by such Warrant Certificate, the
Warrant Agent shall promptly countersign and deliver to the registered holder of
such Warrant Certificate, or to his duly authorized assigns, a new Warrant
Certificate or Certificates evidencing the number of Warrants that were not so
exercised. The Warrant Agent may deem and treat the person named as the
registered holder on the face of the Warrant Certificate and of the Common Stock
as the true and lawful owner thereof for all purposes.
Each person in whose name any certificate for shares of Common Stock is
issued upon the exercise of Warrants shall for all purposes be deemed to have
become the holder of record of such shares represented thereby and such
certificate shall be dated the date upon which the Warrant Certificate was duly
surrendered in proper form and payment of the Purchase Price (and of any
applicable taxes, governmental or other charges) was made; provided, however,
-------- -------
that if the date of such surrender and payment is a date on which the stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder
-5-
of such shares on, and such certificate shall be dated, the next succeeding
business day on which the stock transfer books of the Company are open. The
Company covenants and agrees that it shall not cause its stock transfer books to
be closed for a period of more than ten consecutive business days except upon
consolidation, merger, sale of all or substantially all of its assets,
dissolution or liquidation.
Section 8. Adjustments of Number and Kind of Shares Purchasable and
--------------------------------------------------------
Purchase Price. The initial number of shares of Common Stock purchasable upon
- --------------
exercise of a Warrant and the Purchase Price shall be subject to adjustment from
time to time upon the occurrence, after the Effective Date, of the following
events:
(A) In case the Company shall (1) pay a dividend in, or make a distribution
of, shares of Common Stock or of the Company's capital stock convertible into
Common Stock on its outstanding Common Stock, (2) subdivide its outstanding
shares of Common on Stock into a greater number of such shares or (3) combine
its outstanding shares of Common Stock into a smaller number of such shares, the
total number of shares of Common Stock and the number of shares of capital stock
convertible into Common Stock purchasable upon the exercise of each Warrant
outstanding immediately prior thereto shall be adjusted so that the holder of
any Warrant Certificate thereafter surrendered for the purchase of Common Stock
shall be entitled to receive at the same aggregate Common Stock Purchase Price
the number of shares of Common Stock and the number of shares of the Company's
capital stock convertible into Common Stock which he would have owned or have
been entitled to receive immediately following any of the events described above
had such Warrant been exercised in full immediately prior to any such event. An
adjustment made pursuant to this Subsection shall, in the case of a stock
dividend or distribution, become effective as of the record date therefor and,
in the case of a subdivision or combination, be made as of the effective date
thereof. If, as a result of an adjustment made pursuant to this Subsection, the
holder of any Warrant thereafter surrendered for exercise shall become entitled
to receive shares of two or more classes of capital stock of the Company, the
Board of Directors of the Company (whose determination shall be conclusive and
shall be evidenced by a Board resolution filed with the Warrant Agent) shall
determine the allocation of the adjusted Purchase Price between or among shares
of such classes of capital stock
(B) In the event of any adjustment of the total number of shares of Common
Stock purchasable upon the exercise of the then outstanding Warrants pursuant to
Subsection (A) above, the Purchase Price per share applicable to each such
outstanding Warrant shall be adjusted to be the amount resulting from dividing
the number of shares (including fractional share interests) covered by such
Warrant immediately after such adjustment into the total amount payable upon
exercise of such Warrant in full immediately prior to such adjustment.
-6-
(C) In case the Company shall issue rights or warrants to all holders of
its Common Stock entitling them (for a period expiring within forty-five days
after the record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per share
of Common Stock (as defined in Subsection (F) below) at the record date
mentioned below, the Purchase Price shall be adjusted so that the same shall
equal the price determined by multiplying the Purchase Price in effect
immediately prior thereto by a fraction, of which the numerator shall be the
number of shares of Common Stock outstanding on the record date mentioned below
plus the number of additional shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock offered for
subscription or purchase would purchase at such current market price per share
of Common Stock, and of which the denominator shall be the number of shares of
Common Stock outstanding on such record date plus the number of shares of Common
Stock offered for subscription or purchase. Such adjustments shall be made
whenever such rights or warrants are issued, and shall become effective as of
the record date for the determination of stockholders entitled to receive such
rights or warrants.
(D) In case the Company shall distribute to all holders of its Common Stock
shares of its capital stock (other than Common Stock or shares of capital stock
convertible into Common Stock), evidences of its indebtedness or assets, or
rights or warrants (excluding those referred to in Subsection (C) above) to
subscribe for or purchase such shares, evidences of indebtedness or assets, then
in each such case the Purchase Price in effect thereafter shall be determined by
multiplying the Purchase Price in effect immediately prior thereto by a
fraction, of which the numerator shall be the total number of outstanding shares
of Common Stock multiplied by the current market price per share of Common Stock
(as determined in accordance with the provisions of Subsection (F) below) on the
record date mentioned below, less the fair market value (as determined by the
Board of Directors of the Company, whose determination shall be conclusive and
evidenced by a Board resolution filed with the Warrant Agent) of the capital
stock, assets or evidences of indebtedness or of such rights or warrants so
distributed to all such holders, and of which the denominator shall be the total
number of outstanding shares of Common Stock multiplied by such current market
price per share of Common Stock. Such adjustments shall be made whenever any
such distribution is made, and shall become effective as of the record date for
the determination of stockholders entitled to receive such distribution.
(E) In the event of any capital reorganization or any reclassification of
the Common Stock (except as provided in Subsection (A) above or Subsection (I)
below), any holder of Warrants upon exercise thereof shall be entitled to
receive, in lieu of the Common Stock to which he would have become entitled upon
exercise immediately prior to such reorganization or reclassification, the
shares (of any class or classes) or other securities or property of the Company
that he would have been
-7-
entitled to receive at the same aggregate Purchase Price upon such
reorganization or reclassification if his Warrants had been exercised
immediately prior thereto and in any such case, appropriate provision (as
determined by the Board of Directors of the Company, whose determination shall
be conclusive and shall be evidenced by a Board resolution filed with the
Warrant Agent) shall be made for the application of this Section 8 with respect
to the rights and interests thereafter of the holders of Warrants (including but
not limited to the allocation of the adjusted Purchase Price between or among
shares of classes of capital stock) to the end that this Section 8 (including
the adjustments of the number of shares of Common Stock or other securities
purchasable) and the Purchase Price thereof shall thereafter be reflected, as
nearly as reasonably practicable in all subsequent exercises of the Warrants for
any shares or securities or other property thereafter deliverable upon the
exercise of the Warrants.
(F) For the purpose of any computation under Subsections (C) and (D) above,
the current market price per share of Common Stock at any date shall be deemed
to be the average of the daily closing market prices, if the Common Stock is
traded on a national securities exchange or the NASDAQ National Market, or the
average of the last daily bid and asked quotation if traded on NASDAQ, for the
ten consecutive trading days immediately prior to the day in question.
(G) No adjustment in the Purchase Price under this Section 8 shall be made
unless such adjustment would require an increase or decrease of at least one per
cent (1%) in the Purchase Price; provided, however, that any adjustments which
-------- -------
by reason of this Subsection are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; and provided,
--------
further, that any adjustments which are so carried forward shall be made no
- -------
later than the earlier of (i) three years after the date of the particular event
on account of which an adjustment would be required or (ii) the date as to which
the aggregate adjustments not previously made would require a total increase or
decrease of 1% in the Purchase Price. All calculations under this Section 8
shall be made to the nearest cent or to the nearest one hundredth of a share, as
the case may be.
(H) Whenever the number of shares of Common Stock or other securities
purchasable upon exercise of a Warrant or the Purchase Price is adjusted as
provided in this Section 8, the Company will promptly file with the Warrant
Agent a certificate signed by the Chairman of the Board, the President or a Vice
President of the Company and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Company setting forth the number and
kind of shares purchasable and the Purchase Price, as so adjusted, stating that
such adjustments in the number or kind of shares or other securities, or in the
Purchase Price, conform to the requirements of this Section 8, and setting forth
a brief statement of the facts accounting for such adjustments. Such
certificates shall be conclusive evidence of the correctness of such
adjustments. Promptly after receipt of such certificate, the
-8-
Company, or the Warrant Agent at the Company's request, will mail a brief
summary thereof (to be supplied by the Company) to the registered holders of the
Warrants; provided, however, that failure to file or to give any notice required
-------- -------
under this Subsection, or any defect therein, shall not affect the legality or
validity of any such adjustments under this Section 8; and, provided, further,
--------- -------
that, where appropriate, such notice may be given in advance and included as
part of the notice required to be given pursuant to Section 13 hereof.
(I) In case of any consolidation or merger of the Company with or into
another corporation (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding Common Stock), or in case
of any sale or conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, the corporation formed by such
consolidation or merger or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Warrant Agent a
supplemental warrant agreement providing that the holder of each Warrant then
outstanding shall have the right thereafter (until the expiration of such
Warrant) to receive, upon exercise of such Warrant, the kind and amount of
shares of stock and other securities and property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Common Stock of the Company for which such Warrant might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental warrant agreement shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided in this
Section. The above provision of this Subsection shall similarly apply to
successive consolidations, mergers, sales or transfers.
The Warrant Agent shall not be under any responsibility to determine the
correctness of any provisions contained in any such supplemental warrant
agreement requiring to either the kind or amount of shares of stock or
securities or property purchasable by holders of Warrant Certificates upon the
exercise of their Warrants after any such consolidation, merger, sale or
transfer or to any adjustment to be made with respect thereto, but subject to
the provisions of Section 21 hereof, may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, a
certificate of a firm of independent certified public accountants with respect
thereto.
(J) Irrespective of any adjustments in the Purchase Price or in the number
or kind of shares issuable upon exercise of Warrants, Warrant Certificates
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the similar Warrant Certificates
initially issued pursuant to this Warrant Agreement.
(K) The Company may retain a firm of independent public accountants of
recognized standing, which may be the firm regularly retained by the Company,
-9-
selected by the Board of Directors of the Company or the Executive Committee of
said Board, and not disapproved by the Warrant Agent, to make any computation
required under this Section, and a certificate signed by such firm shall be
conclusive evidence of the correctness of any computation made under this
Section.
(L) For the purpose of this Section, the term "Common Stock" shall mean (i)
the class of stock designated as Common Stock in the Certificate of
Incorporation of the Company, as amended, at the Effective Date or (ii) any
other class of stock resulting from successive changes or reclassifications of
such Common Stock consisting solely of changes in par value, or from par value
to no par value or from no par value to par value. In the event that at any
time as a result of an adjustment made pursuant to this Section, the holder of
any Warrant thereafter surrendered for exercise shall become entitled to receive
any shares of capital stock of the Company other than shares of the Common
Stock, thereafter the number of such other shares so receivable upon exercise of
any Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained in this Section, and all other provisions of this
Agreement with respect to the Common Stock shall apply on like terms to any such
other shares.
(M) Anything in this Section 8 to the contrary notwithstanding, if the
Company or any subsidiary of the Company grants options or other rights to
purchase shares of Common Stock to any of its employees or directors, or if such
employees or directors otherwise receive shares of Common Stock under any
employee benefit plan of, or compensation agreement or arrangement with, the
Company or its subsidiaries, or if the Company offers any dividend reinvestment
plans, the granting of such options or rights, the issuance of shares of Common
Stock upon the exercise of such options or other rights or pursuant to such
plans, agreements or arrangements, and subscriptions for purchases of shares of
Common Stock under any such dividend reinvestment plan are not to be taken into
consideration for adjustments under this Section 8.
Section 9. Fractional Interests. The Company shall not be required to
--------------------
issue any Warrant Certificate evidencing a fraction of a Warrant or to issue
fractions of shares of Common Stock on the exercise of the Warrants. If any
fraction (calculated to the nearest one hundredth) of a share of Common Stock
would, except for the provisions of this Section, be issuable on the exercise of
any Warrant, the Company shall purchase such fraction for an amount in cash
equal to the current value of such fraction computed on the basis of the closing
market price on the trading day immediately preceding the day upon which such
Warrant Certificate was surrendered for exercise in accordance with Section 7
hereof. By accepting a Warrant Certificate, the holder thereof expressly waives
any right to receive a Warrant Certificate evidencing any fraction of a Warrant
or to receive any fractional share of Common Stock upon exercise of a Warrant.
-10-
Section 10. Reservation of Common Stock. The Company covenants that it
---------------------------
will at all times from an after the Effective Time reserve and keep available,
free from any pre-emptive rights, out of its authorized Common Stock, solely for
the purpose of issue upon exercise of the Warrants, such number of shares of
Common Stock as shall then be issuable upon the exercise of all outstanding
Warrants. The Company covenants that all shares of Common Stock which shall be
so issuable shall upon such issue be duly authorized, validly issued, fully paid
and nonassessable. Promptly after the Expiration Date of the Warrants, the
Warrant Agent shall certify to the Company the aggregate number of Warrants then
outstanding, and thereafter no shares of stock shall be subject to reservation
in respect of such Warrants.
The Warrant Agent is hereby irrevocably authorized to requisition from time
to time from the transfer agent of the Common Stock, and any subsequent transfer
agent of any shares of the Company's capital stock issuable upon the exercise of
the Warrants, stock certificates required to honor outstanding Warrants. The
Company hereby irrevocably authorizes its present and any future transfer agent
to comply with all such requests. The Company will supply such transfer agent
with duly executed stock certificates for such purpose and will itself provide
or otherwise make available any cash which may be payable as provided in Section
9 of this Agreement.
The Company covenants that if any shares of Common Stock required to be
reserved for the purposes of issue upon exercise of the Warrants hereunder
require registration with or approval of any governmental authority under any
federal or state law, or listing on any national securities exchange, before
such shares may be issued upon exercise, the Company will, in good faith and as
expeditiously as possible endeavor to cause such shares to be duly registered,
approved or listed on the relevant national securities exchange, as the case may
be; provided, however, that in no event shall shares of Common Stock be issued,
-------- -------
and the Company is authorized to suspend the exercise of all Warrants, for the
period during which it is endeavoring to obtain such registration, approval or
listing.
Section 11. Reduction of Conversion Price Below Par Value. Before taking
---------------------------------------------
any action which would cause an adjustment pursuant to Section 8 hereof reducing
the Purchase Price below the then par value (if any) of the shares of Common
Stock issuable upon exercise of the Warrants, the Company will use its best
efforts to take any corporate action which, in the opinion of its counsel, may
be necessary in order that the Company may validly and legally issue fully paid
and nonassessable shares of such Common Stock at such adjusted Purchase Price.
Section 12. Payment of Taxes. The Company covenants and agrees that it
----------------
will pay when due and payable any and all Federal and state original issue taxes
which may be payable in respect of the issue of any shares of Common Stock or
-11-
other securities upon the exercise of Warrants. The Company shall not, however,
be required (i) to pay any tax which may be payable in respect of any transfer
involved in the transfer and delivery of Warrant Certificates or the issuance or
delivery of certificates for Common Stock or other securities in a name other
than that of the registered holder of the Warrant Certificate surrendered for
purchase or (ii) to issue or deliver any certificate for shares of Common Stock
or other securities upon the exercise of any Warrant Certificate until any such
tax shall have been paid, all such tax being payable by the holder of such
Warrant Certificate at the time of surrender.
Section 13. Notice of Certain Corporate Action. In case the Company after
----------------------------------
the Effective Date shall propose (i) to offer to all of the holders of Common
Stock rights to subscribe to or purchase any additional shares of any class of
its capital stock, any evidences of its indebtedness or assets, or any other
rights or options in a manner causing an adjustment pursuant to Section 8(A) or
(ii) to effect any reclassification of Common Stock (other than a
reclassification involving merely the subdivision or combination of outstanding
shares of Common Stock) or any capital reorganization, or any consolidation or
merger to which the Company is a party and for which approval of any
stockholders of the Company is required, or any sale, transfer or other
disposition of its property and assets substantially as an entirety, or the
liquidation, voluntary or involuntary dissolution or winding up of the Company,
in a manner causing an adjustment pursuant to Section 8(E), then, in each such
case, the Company shall file with the Warrant Agent and the Company, or the
Warrant Agent on its behalf, shall mail by first class postage prepaid mail to
all registered holders of the Warrant Certificates notice of such proposed
action, which notice shall specify the date on which the books of the Company
shall close or a record be taken for such offer of rights or options, or the
date on which such reclassification, reorganization, consolidation, merger,
sale, transfer, other disposition, liquidation, voluntary or involuntary
dissolution or winding up shall take place or commence, as the case may be, and
which shall also specify any record date for determination of holders of Common
Stock entitled to vote thereon or participate therein and shall set forth such
facts with respect thereto as shall be reasonably necessary to indicate any
adjustments in the Purchase Price and the number or kind of shares or other
securities purchasable upon exercise of Warrants which will be required as a
result of such action. Such notice shall be filed and mailed in the case of any
action covered by clause (i) above, at least ten days prior to the record date
for determining holders of the Common Stock for purposes of such action or, if a
record is not to be taken, the date as of which the holders of shares of Common
Stock of record are to be entitled to such offering; and, in the case of any
action covered by clause (ii) above, at least twenty days prior to the earlier
of the date on which such reclassification, reorganization, consolidation,
merger, sale, transfer, other disposition, liquidation, voluntary or involuntary
dissolution or winding up is expected to become effective and the date as of
which it is expected that holders of shares of Common Stock of record on such
date shall be entitled to exchange their
-12-
shares for securities or other property deliverable upon such reclassification,
reorganization, consolidation, merger, sale, transfer, other disposition,
liquidation, voluntary or involuntary dissolution or winding up.
Failure to give any such notice or any defect therein shall not affect the
legality or validity of any transaction listed in this Section 13.
Section 14. Disposition of Proceeds on Exercise of Warrant Certificates,
-----------------------------------------------------------
Etc. The Warrant Agent shall account promptly to the Company with respect to
- ---
Warrants exercised and concurrently pay to the Company all moneys received.
The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours at its principal
corporate trust offices, 40 Wall Street, 46th Floor, New York, New York 10005
and at any office or agency maintained by it in accordance with Section 3
hereof. Copies of this Agreement may be obtained upon written request addressed
to Corporate Secretary, First Bank System, Inc., First Bank Place, 601 Second
Avenue South, Minneapolis, Minnesota 55402.
Section 15. Warrant Certificate Holder Not Deemed a Stockholder. No
---------------------------------------------------
holder, as such, of any Warrant Certificate shall be entitled to vote or be
deemed the holder of Common Stock or any other securities of the Company which
may at any time be issuable on the exercise of the Warrants represented thereby
for any purpose whatever, nor shall anything contained herein or in any Warrant
Certificate be construed to confer upon the holder of any Warrant Certificate,
as such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to stockholders at
any meeting thereof, or to given or withhold consent to any corporate action
(whether upon any recapitalization, issue of stock reclassification of stock,
change of par value or change of stock to no par value, consolidation, merger,
conveyance or otherwise), or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 13 hereof, or to receive
dividends or subscription rights, or otherwise, until such Warrant Certificate
shall have been exercised in accordance with the provisions hereof and the
receipt of the Purchase Price and any other amounts payable upon such exercise
by the Warrant Agent as provided herein.
Section 16. Right of Action. All rights of action in respect to this
---------------
Agreement are vested in the respective registered holders of the Warrant
Certificates; and any registered holder of any Warrant Certificate, without the
consent of the Warrant Agent or of the holder of any Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by such
Warrant Certificate, for the purchase of
-13-
shares of the Common Stock in the manner provided in the Warrant Certificate and
in this Agreement.
Section 17. Agreement of Holders of Warrant Certificates. Every holder of
--------------------------------------------
a Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and with every other holder of a Warrant Certificate
that:
(A) The Warrant Certificates are transferable on the registry books of the
Warrant Agent only upon the terms and conditions set forth in this Agreement:
and
(B) The Company and the Warrant Agent may deem and treat the person in
whose name the Warrant Certificate is registered as the absolute owner for all
purposes whatever and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
Section 18. Cancellation of Warrant Certificate. In the event that the
-----------------------------------
Company shall purchase or otherwise acquire any Warrant Certificate or
Certificates after the issuance thereof, such Warrant Certificate or
Certificates shall thereupon be delivered to the Warrant Agent and be canceled
by it and retired. The Warrant Agent shall also cancel any Warrant Certificate
delivered to it for exercise, in whole or in part, or delivered to it for
transfer, split up, combination or exchange. Warrant Certificates so canceled
shall be delivered by the Warrant Agent to the Company from time to time, or
disposed of in accordance with the instructions of the Company.
Section 19. Concerning the Warrant Agent. The Company agrees to pay to
----------------------------
the Warrant Agent from time to time, on demand of the Warrant Agent, reasonable
compensation for all services rendered by it hereunder and also its reasonable
expenses, including counsel fees, and other disbursements incurred in the
administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also 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 the part of the Warrant
Agent, arising out of or in connection with the acceptance and administration of
this Agreement, including the costs and expenses of defending against any claim
of liability in the premises.
Section 20. Merger or Consolidation or Change of Name of Warrant Agent.
----------------------------------------------------------
Any corporation into which the Warrant Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on
-14-
the part of any of the parties hereto, provided that such corporation would be
eligible for appointment as a successor warrant agent under the provisions of
Section 22 hereof. In case at the time such successor to the Warrant Agent shall
succeed to the agency created by this Agreement, any of the Warrant Certificates
shall have been countersigned but not delivered, any such successor to the
Warrant Agent may adopt the countersignature of the original warrant agent and
deliver such Warrant Certificates so countersigned; and in case at that time any
of the Warrant Certificates shall not have been countersigned, any successor to
the Warrant Agent may countersign such Warrant Certificates either in the name
of the predecessor warrant agent or in the name of the successor warrant agent;
and in all such cases such Warrant Certificates shall have the full force
provided in the Warrant Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver Warrant Certificates so countersigned; and in case at that time any
of the Warrant Certificates shall not have been countersigned, the Warrant Agent
may countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
The provisions of this Section 20 shall also apply to any agent appointed
pursuant to Section 3 hereof.
Section 21. Duties of Warrant Agent. The Warrant Agent undertakes the
-----------------------
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrant Certificates
by their acceptance thereof, shall be bound;
(A) The Warrant Agent may consult with counsel (who may be counsel for the
Company) 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 and in accordance with such opinion;
provided, however, that the Warrant Agent shall have exercised reasonable care
- -------- -------
in the selection of such counsel.
(B) 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 Company 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 Chairman of the Board, the President,
the Chief Financial Officer, the Treasurer or the Secretary of the Company and
delivered to the Warrant Agent; and
-15-
such certification 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.
(C) The Warrant Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(D) 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 describe 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 Company only.
(E) The Warrant Agent shall not be under any responsibility in respect of
the validity 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), or
for any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant Certificate, or for the adjustment of the Purchase
Price or the making of any change in the number of shares of Common Stock
required under the provisions of Section 8 or for the manner, method or amount
of any such change or the ascertaining of the existence of facts that would
require any such adjustment or change (except with respect to the exercise of
Warrant Certificates after actual notice of any adjustment of the Purchase
Price), and it shall not by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of the shares
of Common Stock to be issued pursuant to this Agreement or any Warrant
Certificate or as to whether any shares of Common Stock will when issued be
validly issued, fully paid and nonassessable.
(F) The Warrant Agent and any stockholder, director, officer, employee or
agent appointed pursuant to Section 3 hereof of the Warrant Agent may buy, sell
or deal in any of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to or otherwise act as fully and
freely as though it was not Warrant Agent under this Agreement. Nothing herein
shall preclude the Warrant Agent from acting in any other capacity for the
Company or for any other legal entity.
(G) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President, the Chief Financial Officer, the Treasurer
or the Secretary of the Company, and to apply to such officers for advice or
instructions in connection with the Warrant Agent's duties, and it shall not be
liable for any
-16-
action taken or suffered or omitted by it in good faith in accordance with
instructions of any such officer.
(H) The Warrant Agent will not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company.
(I) The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees or for any loss to the Company resulting
from such neglect or misconduct; provided, however, that reasonable care shall
-------- -------
have been exercised in the selection and continued employment of such attorneys,
agents and employees.
(J) The Warrant Agent will not incur any liability or responsibility to the
Company or to any holder of any Warrant Certificate 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.
(K) The Warrant Agent will act hereunder solely as agent of the Company 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 doing in connection with this Agreement except for its
own negligence, bad faith or willful misconduct.
Section 22. Change of Warrant Agent. The Warrant Agent may resign and be
-----------------------
discharged from its duties under this Agreement upon thirty days prior notice in
writing mailed to the Company by registered or certified mail, and to each
registered holder of Warrant Certificates. The Company may remove the Warrant
Agent or any successor warrant agent upon thirty days' prior notice in writing,
made 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 Company shall appoint a
successor to the Warrant Agent and shall, within fifteen days following such
appointment, give notice thereof in writing to each of the registered holders of
the Warrant Certificates. If the Company shall fail to make such appointment
within a period of fifteen 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 (i) the Company agrees to perform the
duties of the Warrant Agent hereunder and (ii) the registered holder of any
Warrant Certificate may apply to any court of
-17-
competent jurisdiction for the appointment of a new warrant agent. Any
successor warrant agent, whether appointed by the Company or by such a court,
shall be a bank or trust company, in good standing, having its principal
corporate trust office in Minneapolis or St. Paul, Minnesota, or in New York,
New York, and having at the time of its appointment as successor warrant agent a
combined capital and surplus of at least $25,000,000. 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 given 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
warrant agent, as the case may be.
Any agent appointed pursuant to Section 3 hereof may resign and be
discharged from its duties under this Agreement upon thirty days' prior notice
in writing mailed to the Warrant Agent at its principal corporate trust offices
by registered or certified mail. The Warrant Agent may remove any such agent
upon thirty days' prior notice in writing, mailed to such agent by registered or
certified mail in the event a successor agent shall be appointed or another
office shall be maintained by the Warrant Agent pursuant to Section 3 hereof,
the Warrant Agent shall within fifteen days thereafter given notice thereof in
writing to each of the registered holders of Warrant Certificates.
Section 23. Issuance of New Warrant Certificates. Notwithstanding any of
------------------------------------
the provisions of this Agreement or the several Warrant Certificates to the
contrary, the Company may, at its option, issue new Warrant Certificates in such
form as may be approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price or the number or kind of shares purchasable under
the several Warrant Certificates made in accordance with the provisions of this
Agreement.
Section 24. Notices. Any notice or demand pursuant to this Agreement to
-------
be given to or made on the Company by the Warrant Agent or by the registered
holder of any Warrant Certificate shall be sufficiently given or made if sent by
first-class or registered mail, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Agent) as follows:
First Bank System, Inc.
First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402
Attention: Corporate Secretary
-18-
Any notice pursuant to this Agreement to be given or made by the Company or by
the holder of any Warrant Certificate to or on the Warrant Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) as follows:
American Stock Transfer and Trust Company
40 Wall Street, 46th Floor
New York, New York 10005
Attention: Stock Transfer Department
Any notice or demand authorized to be given or made to the registered holder of
any Warrant Certificate under this Agreement shall be sufficiently given or made
if sent by first-class or registered, postage prepaid mail, to the last address
of such holder as it shall appear on the registers maintained by the Warrant
Agent.
Section 25. Modification of Agreement. The Warrant Agent may, without the
-------------------------
consent or concurrence of the holders of the Warrant Certificates, by
supplemental agreement or otherwise, concur with the Company in making any
changes or corrections in this Agreement that the Warrant Agent shall have been
advised by counsel (who may be counsel for the Company) are necessary or
desirable to cure any ambiguity or to correct any defective or inconsistent
provision or clerical omission or mistake or manifest error herein contained, or
to make any other provisions in regard to matters or questions arising hereunder
and which shall not be inconsistent with the provisions of the Warrant
Certificates and which shall not adversely affect the interests of the holders
of Warrant Certificates.
Section 26. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 27. Minnesota Contract. This Agreement and each Warrant
------------------
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Minnesota and for all purposes shall be construed in
accordance with the laws of said State.
Section 28. Benefits of This Agreement. Nothing in this Agreement or in
--------------------------
the Warrant Certificates shall be construed to give to any person or corporation
other than the Company, the Warrant Agent, their respective successors and
assigns hereunder and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent, their respective successors and assigns hereunder and the
registered holders of the Warrant Certificates.
-19-
Section 29. Descriptive Headings. The descriptive headings of the several
--------------------
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
Section 30. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original; but such counterparts shall
together constitute one and the same instrument.
Section 31. Effectiveness. This Agreement shall become effective on the
-------------
Effective Date, at which time the Warrant Agreement shall be deemed to have been
superseded in its entirety by this Agreement.
-20-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be hereunto affixed and attested,
all as of the day and year first above written.
FIRST BANK SYSTEM, INC.
By [SIGNATURE]
Its [TITLE]
AMERICAN STOCK TRANSFER AND
TRUST COMPANY
By [SIGNATURE]
Its [TITLE]
and
By [SIGNATURE]
Its [TITLE]
-21-
[FRONT OF WARRANT]
VOID AFTER 4 P.M.,
MINNEAPOLIS, MINNESOTA TIME ON NOVEMBER 20, 2000
Certificate Number Number of Warrants
________________ ________________
METROPOLITAN FINANCIAL CORPORATION
WARRANT CERTIFICATE FOR PURCHASE OF COMMON STOCK
THIS CERTIFIES THAT:
____________________________
or registered assigns, is the registered holder of the number of Warrants set
forth above. Each Warrant entitles the holder thereof to purchase from
Metropolitan Financial Corporation, a corporation incorporated under the laws of
the State of Delaware (the "Company"), subject to the terms and conditions set
forth hereinafter and in the Warrant Agreement hereinafter referred to, one-half
of one fully paid and nonassessable share of Common Stock, par value $.01 per
share of the Company (the "Common Stock"), upon presentation and surrender of
this Warrant Certificate, with the form of election to purchase duly executed,
the instructions for the registration and delivery of Common Stock filled in, at
any time at or prior to 4:00 p.m., Minneapolis, Minnesota time, on November 20,
2000, at the principal corporate trust offices of American Stock Transfer and
Trust Company, 40 Wall Street, New York, New York 10005, the Warrant Agent of
the Company (the "Warrant Agent") or of its successor warrant agent or, if there
be no successor warrant agent at the corporate offices of the Company, or at an
office or agency maintained for such purpose, and upon payment of the purchase
price (as hereinafter defined) and any applicable taxes and charges. The
purchase price per share of Common Stock is $12.50 (the "Purchase Price"). The
Purchase Price and the number and kind of shares of stock of the Company,
purchasable upon the exercise of the Warrants represented hereby are subject to
modification and adjustment upon the happening of certain events set forth in
the Warrant Agreement.
This Warrant Certificate is subject to all of the terms, provisions and
conditions of the Warrant Agreement, dated as of November 20, 1990 (the "Warrant
Agreement"), between the Company and the Warrant Agent, to all of which terms,
provisions and conditions the registered holder of this Warrant Certificate
consents by acceptance hereof. The Warrant Agreement is hereby incorporated
herein by reference and made a part hereof and to which Warrant Agreement
reference is hereby made for a full description of the rights, limitations of
rights, obligations,
duties and immunities hereunder of the Warrant Agent, the Company and the
holders of the Warrant Certificates. Copies of the Warrant Agreement are
available for inspection at the corporate trust office of the Warrant Agent or
at the office or agency maintained for such purpose referred to above.
The Company shall not be required upon the exercise of the Warrants
evidenced by this Warrant Certificate to issue fractions of shares, but shall
make adjustment therefor to cash on the basis of the current market value of any
fractional interest (computed as provided in the Warrant Agreement). In no event
shall the Company be required to issue fractions of Warrants.
The Warrant Certificate, with or without other certificates, upon surrender
to the Warrant Agent, any successor warrant agent or, in the absence of any
successor warrant agent, at the corporate offices of the Company, or at the
office or agency maintained for such purposes referred to above, may be
exchanged for another Warrant Certificate or Certificates evidencing in the
aggregate the same number of Warrants as the Warrant Certificate or Certificates
so surrendered. If the Warrants evidenced by this Warrant Certificate shall be
exercised in part, the holder hereof shall be entitled to receive upon surrender
hereof another Warrant Certificate or Certificates evidencing the number of
Warrants not so exercised.
No holder of this Warrant Certificate, as such, shall be entitled to vote
on or be deemed the holder of Common Stock or any other securities of the
Company which 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 Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any meeting
thereof, or give or withhold consent to any corporate action hereunder upon any
recapitalization, issue of stock, reclassification of stock, change or par value
or change of stock to no par value, consolidation, merger, conveyance or
otherwise or to reserve notice of meetings or other actions affecting
stockholders (except as provided in the Warrant Agreement), or to receive
dividends or subscription rights or otherwise, until the Warrants evidenced by
this Warrant Certificate shall have been exercised and the Common Stock or any
other securities of the Company purchasable upon the exercise thereof shall have
become deliverable as provided in the Warrant Agreement.
If the Warrant Certificate shall be surrendered for exercise within any
period during which the transfer books for the Company's Common Stock or any
other securities of the Company purchasable upon the exercise of the Warrants
evidenced by this Warrant Certificate are closed for any purpose, the Company
shall not be required to make delivery of certificates for shares or other
securities purchasable upon such exercise until the date of the reopening of
said transfer books.
Every holder of this Warrant Certificate by accepting the same consents and
agrees with the Company, the Warrant Agent, and with every other holder of a
Warrant Certificate that:
(a) the Warrant Certificate is transferable on the registry books of the
Warrant Agent and upon the terms and conditions set forth in the
Warrant Agreement; and
(b) the Company and the Warrant Agent may deem and treat the person in
whose name this Warrant Certificate is registered as the absolute
owner hereof for all purposes whatever and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
The Company shall not be required to issue or deliver any certificate for
shares of Common Stock or other securities upon the exercise of Warrants
evidenced by this Warrant Certificate until any tax which may be payable in
respect thereof shall have been paid, such tax being payable by the holder of
this Warrant Certificate at the time of surrender.
This Warrant Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Warrant Agent.
In Witness Whereof, Metropolitan Financial Corporation has caused this
Certificate to bear the facsimile signatures of its duly authorized officers and
to be sealed with the facsimile seal of the Company.
Dated: November 28, 1990
Countersigned:
AMERICAN STOCK TRANSFER & METROPOLITAN FINANCIAL
TRUST COMPANY CORPORATION
(NEW YORK, NY) WARRANT AGENT
By__________________________ _____________________________________
Authorized Signature Chairman and Chief Executive Officer
_____________________________________
Treasurer
[BACK OF WARRANT]
Under the terms of the Warrant Agreement, dated as of November 20, 1990, between
the Company and American Stock Transfer and Trust Company, as Warrant Agent, the
Company has deposited with the Warrant Agent one share of $2.875 Cumulative
Perpetual Preferred Stock, Series B, of the Company, par value $.01 per share,
for each Warrant to purchase one-half of one share of Common Stock of the
Company represented hereby. Until 4:00 p.m., Minneapolis, Minnesota time, on the
"Distribution Date" (as defined below), the registered owner of Warrants
represented by this certificate is the beneficial owner of such number of shares
of Preferred Stock. As soon as practicable after 4:00 p.m., Minneapolis,
Minnesota time, on February 19, 1991 or such earlier date as may be publicly
announced by the Company with the consent of Dain Bosworth Incorporated and
Piper, Jaffray & Hopwood Incorporated (the earlier of such dates being the
"Distribution Date"), the Warrant Agent will mail (by first-class, insured,
postage prepaid mail) to the holder in whose name the Warrants represented by
this Certificate are registered as of 4:00 p.m., Minneapolis, Minnesota time, on
the Distribution Date, at the address of such holder as such address shall
appear on the records of the Warrant Agent, a certificate evidencing such shares
of Preferred Stock registered in the name of such holder. Ownership of such
Preferred Stock is not transferable until after 4:00 p.m., Minneapolis,
Minnesota time, on the Distribution Date, except by and in connection with the
transfer of the Warrants represented by this certificate, and every transfer
hereof by the holder hereof at or prior to such time on the Distribution Date
shall effect the transfer of the beneficial interest of such holder in the
Preferred Stock. After 4:00 p.m., Minneapolis, Minnesota time, on the
Distribution Date, the holder of the Warrants represented by this certificate is
not, by virtue of being such holder, the beneficial owner of the Preferred
Stock. By accepting the Warrants represented by this certificate, the holder
hereof shall (prior to 4:00 p.m., Minneapolis, Minnesota time, on the
Distribution Date) possess all other rights and obligations of a holder of
Preferred Stock as fully and effectually as if he had received the same.
FORM OF ASSIGNMENT
(To Be Executed by the Registered Holder if He Desires to Assign Warrants
Evidenced by the Within Warrant Certificate.)
FOR VALUE RECEIVED __________ hereby sells, assigns and transfers unto
__________ Warrants, evidenced by the within Warrant Certificate, and does
hereby irrevocably constitute and appoint __________ Attorney to transfer the
said Warrants evidenced by the within Warrant Certificate on the books of the
Company, with full power of substitution.
Dated: ________ _______________________
Signature
NOTICE: THE ABOVE 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 WHATSOEVER.
Signature Guaranteed:
FORM OF ELECTION TO PURCHASE
(To Be Executed by the Holder if He Desires to Exercise Warrants Evidenced by
the Within Warrant Certificate.)
To: METROPOLITAN FINANCIAL CORPORATION.
The undersigned hereby irrevocably elects to exercise ________ Warrants
evidenced by the within Warrant Certificate for, and to purchase thereunder,
________ full shares of Common Stock issuable upon exercise of said Warrants and
delivery of $________ and any applicable taxes and other charges.
The undersigned requests that certificates for such shares be issued in the
name of
PLEASE PRINT NAME AND ADDRESS PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
________________________________________ ________________________
________________________________________ ________________________
________________________________________ ________________________
If said number of Warrants shall not be all the Warrants evidenced by the
within Warrant Certificate, the undersigned requests that a new Warrant
Certificate evidencing the Warrants not so exercised be issued in the name of
and delivered to
________________________________________
(Please print name and address)
________________________________________
________________________________________
Dated: ________
___________________________
Signature
NOTICE: The above 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 whatsoever, or if signed by
any other person the Form of Assignment hereon must be duly executed,
and if the certificate representing the shares or any Warrant
Certificate representing Warrants not exercised is to be registered in
a name other than that in which the within Warrant Certificate is
registered, the signature of the holder hereof must be guaranteed.
Signature Guaranteed: