<PAGE> 1
LOGO
January 14, 1998
Dear Stockholder:
It is my pleasure to invite you to attend a Special Meeting of Stockholders
of Coast Savings Financial, Inc. ("Coast") to be held on February 12, 1998, at
10:00 a.m., at the OMNI Hotel, 930 Wilshire Boulevard, Los Angeles, California.
At this very important meeting, Coast stockholders will be asked to
consider and vote upon a proposal to approve the Amended and Restated Agreement
and Plan of Merger (the "Merger Agreement"), dated as of October 5, 1997, by and
between Coast and H. F. Ahmanson & Company, a Delaware corporation ("Ahmanson"),
and the transactions contemplated thereby, including the merger (the "Merger")
of Coast with and into Ahmanson.
If the Merger is approved and consummated, each share of Coast common stock
will be converted into the right to receive 0.8082 of a share of Ahmanson common
stock. In addition, immediately prior to the Merger each Coast stockholder will
receive one Contingent Payment Right Certificate (a "CPR Certificate") for each
of their shares of Coast common stock. The CPR Certificates will be issued by
the newly-formed Coast Federal Litigation Contingent Payment Rights Trust (the
"CPR Trust"). Upon consummation of the Merger, Ahmanson will be contractually
bound to pay to the CPR Trust, for the benefit of the holders of CPR
Certificates, an amount equal to any proceeds (net of taxes and expenses,
computed under certain assumptions as described in the accompanying Proxy
Statement/Prospectus), that Coast Federal Bank, FSB ("Coast Federal") (or its
successors) may receive from its pending litigation claims against the United
States government relating to the government's alleged breach of its agreement
with respect to the permanent addition of approximately $299 million to Coast
Federal's regulatory capital. Thus, in connection with the Merger you will both
receive Ahmanson common stock and retain an indirect proportionate interest in
our litigation claims against the government. The CPR Certificates will be
transferable, and Coast, on behalf of the CPR Trust, has applied for inclusion
of the CPR Certificates on the NASDAQ National Market System. No assurance can
be given that the CPR Certificates will satisfy the listing requirements for
inclusion on the NASDAQ National Market System or any other trading system. In
the event that the CPR Certificates cannot be listed on any trading system,
there would likely be only minimal or no trading channels for the CPR
Certificates, resulting in severely reduced or no liquidity for investors in the
CPR Certificates. Even if such listing is achieved, there can be no assurance
that an active market for the CPR Certificates will develop or be sustained. If
such a market develops, there can be no assurance as to the price at which the
CPR Certificates would trade at any time and such price could be subject to
rapid and substantial change, depending upon, among other things, developments
in such pending litigation claims and similar pending litigation. The CPR
Certificates are highly speculative securities that involve a high degree of
risk.
THE BOARD OF DIRECTORS OF COAST (THE "COAST BOARD") HAS UNANIMOUSLY
APPROVED THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, AND
BELIEVES THAT THE MERGER IS IN THE BEST INTERESTS OF COAST AND ITS STOCKHOLDERS.
THE COAST BOARD RECOMMENDS THAT ALL STOCKHOLDERS VOTE "FOR" THE MERGER PROPOSAL.
Coast's financial advisor, Goldman Sachs & Co., has issued its written opinion
to the Coast Board of Directors that the consideration to be received by holders
of Coast common stock pursuant to the Merger Agreement is fair from a financial
point of view to Coast stockholders.
COAST STOCKHOLDERS ARE URGED TO READ CAREFULLY THE ACCOMPANYING NOTICE OF
SPECIAL MEETING AND PROXY STATEMENT/PROSPECTUS, WHICH CONTAIN IMPORTANT
INFORMATION ABOUT THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE
MERGER AGREEMENT, INCLUDING IMPORTANT INFORMATION CONCERNING THE CPR TRUST AND
THE CPR CERTIFICATES. A COPY OF THE OPINION OF GOLDMAN, SACHS & CO. IS ATTACHED
AS APPENDIX D TO THE PROXY STATEMENT/PROSPECTUS ENCLOSED HEREWITH AND SHOULD BE
READ IN ITS ENTIRETY.
<PAGE> 2
Regardless of the number of shares you own, or whether you plan to attend
the meeting, it is very important that your shares be represented and voted at
the meeting. Since the affirmative vote of a majority of the outstanding shares
is required for approval of the Merger Agreement and the transactions
contemplated thereby, a failure to vote is the same as a vote against the
Merger. Please read the enclosed material carefully and complete, sign and
return the enclosed proxy in the envelope provided as soon as possible.
On behalf of the Coast Board of Directors, I thank you for your support and
again urge you to vote FOR the approval and adoption of the Merger Agreement and
the transactions contemplated thereby.
Sincerely,
/s/ RAY MARTIN
Ray Martin
Chairman of the Board and
Chief Executive Officer
<PAGE> 3
COAST SAVINGS FINANCIAL, INC.
1000 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90017-2457
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NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON FEBRUARY 12, 1998
Notice is hereby given that a Special Meeting of stockholders (the "Special
Meeting") of Coast Savings Financial, Inc. ("Coast") will be held on February
12, 1998 at 10:00 a.m., at the OMNI Hotel, 930 Wilshire Boulevard, Los Angeles,
California, for the following purposes, as more fully described in the
accompanying Proxy Statement/Prospectus:
1. To consider and vote upon a proposal to approve an Amended and
Restated Agreement and Plan of Merger (the "Merger Agreement"), dated as of
October 5, 1997, between Coast and H. F. Ahmanson & Company, a Delaware
corporation ("Ahmanson"), and the transactions contemplated thereby,
including the approval of the merger of Coast with and into Ahmanson (the
"Merger"), the establishment of and the terms of the Coast Federal
Litigation Contingent Payment Rights Trust (the "CPR Trust"), the CPR
Certificate Distribution (as defined in the accompanying Proxy
Statement/Prospectus), the engagement of the Litigation Trustees (as
defined in the accompanying Proxy Statement/Prospectus) (including the
terms of their engagement), the terms of the Commitment (as defined in the
accompanying Proxy Statement/Prospectus) and the rights of the holders of
CPR Certificates (as defined in the accompanying Proxy
Statement/Prospectus) (collectively, the "Transaction Proposal"). The
Merger Agreement, the Amended and Restated Declaration of Trust governing
the CPR Trust and the Commitment will be substantially in the form of
Appendices A, B and C, respectively, to the accompanying Proxy
Statement/Prospectus.
2. To transact such other business as may properly come before the
Special Meeting or any adjournment or postponement thereof.
Only holders of Coast common stock of record at the close of business on
December 23, 1997 are entitled to receive notice of and to vote at the Special
Meeting or any adjournment or postponement thereof.
THE BOARD OF DIRECTORS OF COAST UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS
VOTE "FOR" APPROVAL OF THE TRANSACTION PROPOSAL.
Holders of Coast common stock who do not vote in favor of the Transaction
Proposal will be entitled to dissenters' rights of appraisal under Section 262
of the Delaware General Corporations Law. For a more complete description of
such dissenters' rights, see "Appraisal Rights" in the accompanying Proxy
Statement/Prospectus.
By order of the Board of Directors,
/s/ BROCKTON HILL
Brockton Hill
Corporate Secretary
January 14, 1998
THE APPROVAL OF THE TRANSACTION PROPOSAL REQUIRES THE AFFIRMATIVE VOTE OF A
MAJORITY OF THE ISSUED AND OUTSTANDING SHARES OF COAST COMMON STOCK. THEREFORE,
FAILURE TO VOTE WILL HAVE THE SAME EFFECT AS A VOTE AGAINST THE TRANSACTION
PROPOSAL. WHETHER OR NOT YOU PLAN TO ATTEND THE COAST SPECIAL MEETING, PLEASE
COMPLETE, SIGN AND DATE THE ENCLOSED PROXY CARD AND MAIL IT PROMPTLY IN THE
ENCLOSED RETURN ENVELOPE, WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED
STATES. IF YOU ATTEND THE COAST SPECIAL MEETING, YOU MAY VOTE IN PERSON IF YOU
WISH TO DO SO EVEN IF YOU HAVE PREVIOUSLY SENT IN YOUR PROXY CARD.
<PAGE> 4
This filing is made pursuant
to Rule 424(b)(4) under the
Securities Act of 1933 in
connection with Registration
No. 333-44167
PROXY STATEMENT OF COAST SAVINGS FINANCIAL, INC.
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PROSPECTUS OF PROSPECTUS OF
H. F. AHMANSON & COMPANY COAST FEDERAL LITIGATION CONTINGENT
PAYMENT RIGHTS TRUST
COMMON STOCK CONTINGENT PAYMENT RIGHT
(PAR VALUE $.01 PER SHARE) CERTIFICATES
</TABLE>
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This Proxy Statement/Prospectus is being furnished to holders of common
stock, $.01 par value ("Coast Common Stock"), of Coast Savings Financial, Inc.,
a Delaware corporation ("Coast"), in connection with the solicitation of proxies
by the Board of Directors of Coast (the "Coast Board") for use at a Special
Meeting of stockholders to be held on February 12, 1998, at 10:00 a.m., at the
OMNI Hotel, 930 Wilshire Boulevard, Los Angeles, California and at any
adjournments or postponements thereof (the "Special Meeting").
The purpose of the Special Meeting is to consider and vote upon a proposal
to approve an Amended and Restated Agreement and Plan of Merger, dated as of
October 5, 1997 (the "Merger Agreement"), by and between Coast and H. F.
Ahmanson & Company, a Delaware corporation ("Ahmanson"), and the transactions
contemplated thereby, including the approval of the merger of Coast with and
into Ahmanson (the "Merger"), the establishment of and the terms of a trust to
be known as the Coast Federal Litigation Contingent Payment Rights Trust (the
"CPR Trust"), the CPR Certificate Distribution (as defined herein), the
engagement of the Litigation Trustees (as defined herein) (including the terms
of their engagement) for the CPR Trust, the terms of the Commitment (as defined
herein) and the rights of the holders of CPR Certificates (as defined herein).
See "Summary," "The Merger," "The CPR Trust and the CPR Certificates" and
Appendices A, B and C to this Proxy Statement/Prospectus.
Upon consummation of the Merger, each outstanding share of Coast Common
Stock, together with each associated Coast Right (as defined herein), shall
cease to be outstanding and each such share (other than (a) certain shares, if
any, held by Coast, Ahmanson or their subsidiaries and (b) shares, if any, held
by holders of Coast Common Stock ("Dissenters' Shares") who perfect their rights
to dissent from the Merger) will be converted into and exchanged for 0.8082 of a
share (the "Exchange Ratio") of common stock, par value $.01 per share, of
Ahmanson ("Ahmanson Common Stock") (together with the appropriate number of
Ahmanson stock purchase rights ("Ahmanson Rights") issued as provided in the
Ahmanson Rights Plan (as defined herein)), with cash paid in lieu of fractional
shares. In addition, and as additional consideration to be received by the Coast
stockholders in the Merger, at the Effective Time (as defined herein), Ahmanson
will enter into the Commitment with the CPR Trust. See "The Merger."
Coast has established the CPR Trust. Prior to the Effective Time of the
Merger, Coast, the Institutional Trustee (as defined herein), the Delaware
Trustee (as defined herein) and certain Litigation Trustees (as defined herein)
will enter into the CPR Trust Agreement (as defined herein). Immediately prior
to the Effective Time, Coast will cause the CPR Trust to issue certificates (the
"CPR Certificates") to Coast which will represent assignable and transferable
undivided beneficial interests in the assets of the CPR Trust and which, as a
result of Ahmanson's entering into of the Commitment, will represent interests
in the right to receive an amount equal to the net after-tax proceeds, if any,
that may be received in the case brought by Coast's subsidiary, Coast Federal
Savings, FSB ("Coast Federal"), against the United States government relating to
the federal government's alleged breach of the agreement entered into in 1987,
in connection with Coast Federal's acquisition of Central Savings and Loan
Association, to treat certain amounts as a permanent addition to Coast Federal's
regulatory capital (the "Litigation"). Immediately prior to the Effective Time
(provided that all other conditions to consummation of the Merger have been
satisfied or waived), Coast will distribute (the "CPR Certificate Distribution")
to the Coast stockholders one CPR Certificate for each share
(continued on the next page)
<PAGE> 5
(cover page continued)
of Coast Common Stock held by such stockholders, with record and payment dates
for the CPR Certificate Distribution immediately prior to the Effective Time on
the Effective Date (as defined herein). Coast will also retain a number of CPR
Certificates sufficient for the delivery of CPR Certificates in connection with
Coast Stock Options (as defined herein), Coast Performance Share Awards (as
defined herein) and Coast SARs (as defined herein). In addition, at the
Effective Date, Ahmanson will be entitled to receive CPR Certificates with
respect to any Dissenters' Shares and any CPR Certificates that would otherwise
have been issuable with respect to Coast Performance Share Awards and Coast SARs
that are exercised between the date of the Merger Agreement and the Effective
Date. See "The Merger -- Stock Options; Performance Share Awards; SARs" and
"Appraisal Rights." The establishment of the CPR Trust, the CPR Certificate
Distribution and Ahmanson's entering into of the Commitment described below are,
among other things, conditions to the consummation of the Merger. See "The
Merger -- Conditions to Consummation."
Pursuant to the Merger Agreement, at the Effective Time, Ahmanson will
enter into a contractual commitment (the "Commitment") with the CPR Trust
pursuant to which Ahmanson will be obligated to pay to the CPR Trust from time
to time an aggregate amount equal to the Commitment Amount. Generally, the
Commitment Amount is an amount equal to the proceeds, if any, received by
Ahmanson, Coast Federal or Ahmanson's subsidiary, Home Savings of America, FSB
("Home Savings") (or any other successor), as a result of the Litigation, net of
assumed tax liabilities attributable to such receipt (calculated on certain
assumptions described herein), certain expenses and interest, plus the amount of
certain assumed tax benefits (calculated on certain assumptions described
herein) to Ahmanson, if any, associated with payments of the Commitment Amount,
all as more fully described herein. See "The Merger -- Merger Consideration;
Exchange Ratio; Commitment" and "The CPR Trust and the CPR Certificates." The
Commitment will rank pari passu with other senior indebtedness of Ahmanson. The
Litigation will remain a contingent asset of Coast Federal upon effectiveness of
the Merger and thus will become a contingent asset of Ahmanson as successor to
Coast and as parent company of Coast Federal.
This Proxy Statement/Prospectus also constitutes a prospectus of Ahmanson
in respect of the shares of Ahmanson Common Stock to be issued to stockholders
of Coast in connection with the Merger and, following consummation of the
Merger, in respect of any shares of Ahmanson Common Stock that are issuable upon
exercise of Replacement Options (as defined herein). Based on the 19,262,934
shares of Coast Common Stock outstanding on the Record Date (as defined herein),
the 1,020,426 shares of Coast Common Stock issuable upon exercise of outstanding
stock options and assuming the exercise of all such stock options prior to the
Effective Time and the Exchange Ratio of 0.8082, up to approximately 16,393,012
shares of Ahmanson Common Stock will be issuable upon consummation of the
Merger.
This Proxy Statement/Prospectus also constitutes a prospectus of the CPR
Trust in respect of the CPR Certificates to be issued by the CPR Trust. As of
the Record Date, the number of CPR Certificates issuable in the CPR Certificate
Distribution to stockholders of record as of the Record Date would be
19,262,934. The number of CPR Certificates issuable with respect to Coast Stock
Options outstanding on the Record Date would be 1,020,426 and the number of CPR
Certificates issuable with respect to Coast Performance Share Awards and Coast
SARs outstanding on the date of the Merger Agreement would be 420,457. Based on
these numbers, up to approximately 20,703,817 CPR Certificates will be issuable
by the CPR Trust immediately prior to the Effective Time.
Both the Ahmanson Common Stock and the Coast Common Stock are listed and
traded on the New York Stock Exchange, Inc. ("NYSE") and the Pacific Exchange.
On October 3, 1997, the last business day prior to public announcement of the
execution of the Merger Agreement, the last reported sale prices per share of
Ahmanson Common Stock and Coast Common Stock on the NYSE Composite Transactions
Reporting System (the "NYSE Composite Tape") were $57 1/8 and $54, respectively,
and on January 12, 1998, the latest practicable date prior to the mailing of
this Proxy Statement/Prospectus, such last reported sale prices per share were
$54 1/4 and $56 5/16, respectively.
(continued on the next page)
<PAGE> 6
(cover page continued)
Application has been made to have the CPR Certificates listed on the NASDAQ
National Stock Market under the symbol "CCPR." No assurance can be given that
the CPR Certificates will satisfy the listing requirements for inclusion on the
NASDAQ National Market System or any other system.
THE CPR CERTIFICATES REPRESENT UNDIVIDED BENEFICIAL INTERESTS IN THE ASSETS
OF THE CPR TRUST AND WILL REPRESENT INTERESTS IN THE RIGHT (EVIDENCED BY THE
COMMITMENT) TO RECEIVE AN AMOUNT EQUAL TO THE NET AFTER-TAX PROCEEDS, IF ANY,
THAT MAY BE RECEIVED BY COAST FEDERAL (OR ITS SUCCESSOR) IN THE LITIGATION. THE
CPR CERTIFICATES DO NOT PROVIDE TO THEIR HOLDERS ANY RIGHTS IN THE LITIGATION OR
AGAINST THE UNITED STATES GOVERNMENT. THE CPR CERTIFICATES ARE HIGHLY
SPECULATIVE SECURITIES THAT INVOLVE A HIGH DEGREE OF RISK AND MAY NOT BE AN
APPROPRIATE INVESTMENT FOR THE AVERAGE INVESTOR. SEE "RISK FACTORS" BEGINNING ON
PAGE 22 FOR FACTORS TO BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE CPR
CERTIFICATES.
THE SHARES OF AHMANSON COMMON STOCK AND THE CPR CERTIFICATES OFFERED HEREBY HAVE
NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION,
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROXY
STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE SHARES OF AHMANSON COMMON STOCK AND THE CPR CERTIFICATES OFFERED HEREBY ARE
NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A BANK OR SAVINGS
ASSOCIATION AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR
ANY OTHER GOVERNMENTAL AGENCY.
------------------------
The date of this Proxy Statement/Prospectus is January 14, 1998, and it is
first being mailed or otherwise delivered to Coast stockholders on or about such
date.
<PAGE> 7
TABLE OF CONTENTS
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AVAILABLE INFORMATION................................................................. 4
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE..................................... 6
SUMMARY............................................................................... 8
Parties to the Merger............................................................... 8
Special Meeting; Record Date........................................................ 8
The Merger.......................................................................... 9
Formation of the CPR Trust and the CPR Certificate Distribution..................... 14
Resales of CPR Certificates......................................................... 15
Market for Common Stock............................................................. 15
No Existing Trading Market for the CPR Certificates................................. 16
Comparison of Certain Unaudited per Share Data...................................... 16
Selected Consolidated Financial Data of Ahmanson (Historical)....................... 18
Selected Consolidated Financial Data of Coast (Historical).......................... 20
Selected Unaudited Pro Forma Combined Financial Data................................ 21
RISK FACTORS.......................................................................... 22
Control of the Litigation........................................................... 22
Establishing the Federal Government's Liability in the Litigation................... 22
Amount of Damages................................................................... 22
Payments, if any, to CPR Certificate Holders........................................ 23
Adequacy of Expense Fund............................................................ 24
Limitation on Rights of CPR Certificate Holders..................................... 24
No Existing Trading Market for the CPR Certificates................................. 25
Availability of Information Regarding Developments in the Litigation................ 26
GENERAL INFORMATION................................................................... 27
Special Meeting..................................................................... 27
Record Date, Solicitation and Revocability of Proxies............................... 27
Vote Required....................................................................... 28
Recommendation of Coast Board of Directors.......................................... 28
THE MERGER............................................................................ 30
General............................................................................. 30
Merger Consideration; Exchange Ratio; Commitment.................................... 30
Background of the Merger............................................................ 36
Reasons of Coast for the Merger..................................................... 38
Opinion of Coast's Financial Advisor................................................ 40
Reasons of Ahmanson for the Merger.................................................. 45
Effective Time...................................................................... 45
Distribution of Ahmanson Common Stock Certificates.................................. 45
Distribution of the CPR Certificates................................................ 46
Fractional Shares................................................................... 46
The CPR Trust, the CPR Certificates and the CPR Certificate Distribution............ 46
Stock Options; Performance Share Awards; SARs....................................... 46
Certain Federal Income Tax Consequences............................................. 47
Management and Operations After the Merger.......................................... 49
Post-Acquisition Compensation and Benefits.......................................... 50
</TABLE>
i
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Interests of Certain Persons in the Transaction Proposal............................ 51
Conditions to Consummation.......................................................... 54
Regulatory Approvals................................................................ 55
Amendment and Waiver................................................................ 56
Termination; Termination Fee........................................................ 56
Conduct of Business Pending the Merger.............................................. 56
Expenses and Fees................................................................... 58
Accounting Treatment................................................................ 59
Stock Exchange Listing of Ahmanson Common Stock..................................... 59
Resales of Ahmanson Common Stock.................................................... 59
Acquisition Proposals............................................................... 59
Earnings Estimates.................................................................. 60
APPRAISAL RIGHTS...................................................................... 60
AHMANSON AND COAST UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION................. 63
DESCRIPTION OF AHMANSON CAPITAL STOCK................................................. 72
Ahmanson Common Stock............................................................... 72
Repurchases of Ahmanson Common Stock................................................ 72
Ahmanson Preferred Stock............................................................ 72
Certain Regulatory Considerations................................................... 74
CERTAIN DIFFERENCES IN THE RIGHTS OF AHMANSON STOCKHOLDERS AND COAST STOCKHOLDERS..... 80
Meetings of Stockholders............................................................ 80
Number and Election of Directors.................................................... 80
Indemnification..................................................................... 81
Certain Voting Rights............................................................... 81
Removal of Directors; Filling Vacancies on the Board of Directors................... 82
Stockholder Action by Written Consent............................................... 82
Amendment of By-laws................................................................ 82
Rights Plans........................................................................ 82
COMPARATIVE MARKET PRICES AND DIVIDENDS............................................... 84
Ahmanson............................................................................ 84
Coast............................................................................... 85
No Existing Trading Market for the CPR Certificates................................. 85
VOTING SECURITIES AND PRINCIPAL STOCKHOLDERS OF COAST................................. 86
Principal Beneficial Owners......................................................... 86
Shares Beneficially Owned By Directors and Executive Officers....................... 86
THE CPR TRUST AND THE CPR CERTIFICATES................................................ 87
Summary............................................................................. 87
Formation of the CPR Trust.......................................................... 89
The Litigation...................................................................... 89
The CPR Certificate Distribution.................................................... 92
The Commitment...................................................................... 93
Description of the CPR Certificates................................................. 94
Management of the Litigation........................................................ 103
</TABLE>
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Filing of Exchange Act Reports...................................................... 105
Certain Federal Income Tax Consequences............................................. 106
Validity of the CPR Certificates.................................................... 108
EXPERTS............................................................................... 109
VALIDITY OF AHMANSON COMMON STOCK..................................................... 109
APPENDICES:
APPENDIX A -- Amended and Restated Agreement and Plan of Merger, dated as of October
5, 1997, by and between Ahmanson and Coast
APPENDIX B -- Form of Amended and Restated Declaration of Trust
APPENDIX C -- Form of Commitment
APPENDIX D -- Opinion of Goldman, Sachs & Co.
APPENDIX E -- Section 262 of the DGCL
</TABLE>
iii
<PAGE> 10
AVAILABLE INFORMATION
Ahmanson and Coast are each subject to the reporting and informational
requirements of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder (the "Exchange Act"), and, in accordance therewith,
file reports, proxy statements and other information relating to their business,
financial position, results of operations and other matters with the Securities
and Exchange Commission (the "Commission"). Such reports, proxy statements and
other information filed by Ahmanson and Coast with the Commission may be
inspected and copied at the principal office of the Commission at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549, and may be inspected at the
Commission's Regional Offices at 7 World Trade Center, New York, New York 10048,
and Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material may also be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. Certain of such reports, proxy statements and other
information are also available from the Commission over the Internet at
http://www.sec.gov. In addition, Ahmanson Common Stock and Coast Common Stock
are traded on the NYSE and the Pacific Exchange. Reports, proxy statements, and
other information concerning Ahmanson and Coast may be inspected at the offices
of the NYSE, 20 Broad Street, New York, New York 10005 and at the offices of the
Pacific Exchange, 115 Sansome Street, 2nd Floor, San Francisco, California
94104.
Ahmanson has filed with the Commission a Registration Statement on Form S-4
(together with any amendments thereto, the "Ahmanson Registration Statement")
under the Securities Act of 1933, as amended, and the rules and regulations
thereunder (the "Securities Act"), of which the following sections of this Proxy
Statement/Prospectus are a part: the Cover Page (other than the fourth, seventh
and ninth paragraphs and the first legend on the Cover Page) and the sections of
the Proxy Statement/Prospectus under the captions "Available Information,"
"Incorporation of Certain Information by Reference," "Summary" (other than
"Summary -- Formation of the CPR Trust and the CPR Certificate Distribution,"
"Summary -- Resale of CPR Certificates" and "Summary -- No Existing Trading
Market for the CPR Certificates"), "General Information" (other than "General
Information -- Special Meeting -- CPR Trust Prospectus"), "The Merger" (other
than "The Merger -- Distribution of the CPR Certificates"), "Appraisal Rights,"
"Ahmanson and Coast Unaudited Pro Forma Combined Financial Information,"
"Description of Ahmanson Capital Stock," "Certain Differences in the Rights of
Ahmanson Stockholders and Coast Stockholders," "Comparative Market Prices and
Dividends" (other than "Comparative Market Prices and Dividends -- No Existing
Trading Market for the CPR Certificates"), "Voting Securities and Principal
Stockholders of Coast," "Experts" and "Validity of Ahmanson Common Stock." The
CPR Trust has filed with the Commission a Registration Statement on Form S-4
(together with any amendments thereto, the "CPR Trust Registration Statement"
and, together with the Ahmanson Registration Statement, the "Registration
Statements") under the Securities Act, of which the following sections of this
Proxy Statement/Prospectus are a part: the fourth, seventh and ninth paragraphs
and the first legend of the Cover Page and the sections of the Proxy
Statement/Prospectus under the captions "Summary -- Formation of the CPR Trust
and the CPR Certificate Distribution," "Summary -- Resale of CPR Certificates,"
"Summary -- No Existing Trading Market for the CPR Certificates," "Risk
Factors," "General Information -- Special Meeting -- CPR Trust Prospectus," "The
Merger--Distribution of the CPR Certificates," "Comparative Market Prices and
Dividends -- No Existing Trading Market for the CPR Certificates" and "The CPR
Trust and the CPR Certificates" (other than "The CPR Trust and the CPR
Certificates-- Summary -- Coast Federal Litigation Contingent Payment Rights
Trust"). This Proxy Statement/Prospectus does not contain all of the information
set forth in the Registration Statements, certain portions of which have been
omitted pursuant to the rules and regulations of the Commission and to which
portions reference is hereby made for further information. While the Proxy
Statement/Prospectus contains an explanation of all material features, as they
relate to the stockholders of Coast, of each contract or other document filed as
an exhibit to the Registration Statements, the statements contained in this
Proxy Statement/Prospectus concerning the provisions of such documents filed or
incorporated by reference as exhibits to the Registration Statements are
necessarily brief descriptions thereof, and are not necessarily complete, and
each such statement is qualified in its entirety by reference to the full text
of such document.
4
<PAGE> 11
All information contained herein with respect to Ahmanson and its
subsidiaries has been supplied by Ahmanson, and all information with respect to
Coast and its subsidiaries and the CPR Trust has been supplied by Coast and the
CPR Trust.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROXY STATEMENT/PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION SHOULD NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY AHMANSON, COAST OR THE CPR TRUST. NEITHER THE
DELIVERY OF THIS PROXY STATEMENT/PROSPECTUS NOR ANY DISTRIBUTION OF THE
SECURITIES TO WHICH THIS PROXY STATEMENT/PROSPECTUS RELATES SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF AHMANSON, COAST OR ANY OF THEIR RESPECTIVE SUBSIDIARIES OR THE CPR
TRUST SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO ITS DATE. THIS PROXY STATEMENT/PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO PURCHASE, ANY
SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO PURCHASE THE SECURITIES OFFERED BY THIS PROXY
STATEMENT/PROSPECTUS IN ANY JURISDICTION IN WHICH SUCH AN OFFER OR SOLICITATION
IS NOT LAWFUL.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by Ahmanson with the Commission under Section
13(a) or 15(d) of the Exchange Act are hereby incorporated by reference in this
Proxy Statement/Prospectus: (a) Ahmanson's Annual Report on Form 10-K as of and
for the year ended December 31, 1996 (the "1996 Ahmanson 10-K"); (b) the
portions of Ahmanson's Proxy Statement for the Annual Meeting of stockholders
held on April 21, 1997 that have been incorporated by reference in the 1996
Ahmanson 10-K; (c) Ahmanson's Quarterly Reports on Form 10-Q for the three
months ended March 31, 1997, the six months ended June 30, 1997 and the nine
months ended September 30, 1997; (d) the description of Ahmanson Common Stock
set forth in Ahmanson's registration statement on Form 8-A filed pursuant to
Section 12 of the Exchange Act on June 24, 1985, and any amendment or report
filed for the purpose of updating any such description; (e) Ahmanson's Current
Reports on Form 8-K, dated January 15, 1997, February 17, 1997, February 21,
1997, February 25, 1997, March 10, 1997, March 17, 1997, March 19, 1997, March
26, 1997, April 8, 1997, April 28, 1997, May 19, 1997, June 4, 1997, July 10,
1997, October 6, 1997, October 14, 1997 and November 7, 1997; and (f) the
description of the Ahmanson Rights contained in Item 1 of Ahmanson's
registration statement on Form 8-A dated November 26, 1997, and any amendment or
report filed for the purpose of updating such description.
The following documents filed by Coast with the Commission under Section
13(a) or 15(d) of the Exchange Act are hereby incorporated by reference in this
Proxy Statement/Prospectus: (a) Coast's Annual Report on Form 10-K for the year
ended December 31, 1996 (the "1996 Coast 10-K"); (b) the portions of Coast's
Proxy Statement for the Annual Meeting of stockholders held on April 23, 1997
that have been incorporated by reference in the 1996 Coast 10-K; (c) Coast's
Quarterly Reports on Form 10-Q for the three months ended March 31, 1997, the
six months ended June 30, 1997 and the nine months ended September 30, 1997; (d)
Coast's Current Report on Form 8-K, dated October 6, 1997; and (e) the
description of the Coast Rights contained in Item 1 of Coast's registration
statement on Form 8-A dated August 31, 1989, and any amendment or report filed
for the purpose of updating such description.
All documents filed by Ahmanson and Coast pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Proxy
Statement/Prospectus and prior to the Special Meeting are hereby incorporated by
reference in this Proxy Statement/Prospectus and shall be deemed a part hereof
from the date of filing of such document.
Any statement contained herein, in any supplement hereto or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of the Registration Statements and this
Proxy Statement/Prospectus to the extent that a statement contained herein, in
any supplement hereto or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of the Registration
Statements, this Proxy Statement/Prospectus or any supplement hereto.
THIS PROXY STATEMENT/PROSPECTUS INCORPORATES BY REFERENCE CERTAIN DOCUMENTS
THAT ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. SUCH DOCUMENTS ARE
AVAILABLE WITHOUT CHARGE UPON REQUEST FROM: AS TO AHMANSON DOCUMENTS, H. F.
AHMANSON & COMPANY, 4900 RIVERGRADE ROAD, IRWINDALE, CALIFORNIA 91706,
ATTENTION: INVESTOR RELATIONS AND TELEPHONE REQUESTS MAY BE DIRECTED TO (626)
814-7986; AND, AS TO COAST DOCUMENTS, COAST SAVINGS FINANCIAL, INC., 1000
WILSHIRE BOULEVARD, LOS ANGELES, CALIFORNIA 90017, ATTENTION: INVESTOR RELATIONS
AND TELEPHONE REQUESTS MAY BE DIRECTED TO (213) 362-2000. IN ORDER TO ENSURE
TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY FEBRUARY 5,
1998.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
THIS PROXY STATEMENT/PROSPECTUS CONTAINS OR INCORPORATES BY REFERENCE
CERTAIN FORWARD LOOKING STATEMENTS WITHIN THE MEANING OF THE SECURITIES ACT, THE
EXCHANGE ACT AND THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 WITH
RESPECT TO THE FINANCIAL CONDITION, RESULTS OF OPERATIONS
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AND BUSINESS OF AHMANSON AND, ASSUMING THE CONSUMMATION OF THE MERGER, A
COMBINED AHMANSON/COAST COMPANY. SUCH FORWARD LOOKING STATEMENTS INCLUDE
STATEMENTS RELATING TO (A) THE COST SAVINGS AND ACCRETION TO CASH EARNINGS AND
REPORTED EARNINGS THAT WILL BE REALIZED FROM THE MERGER, (B) THE IMPACT ON
REVENUES OF THE PROPOSED MERGER, INCLUDING ESTIMATED ENHANCED REVENUES AND COST
SAVINGS, AND (C) THE RESTRUCTURING CHARGES EXPECTED TO BE INCURRED IN CONNECTION
WITH THE PROPOSED MERGER, BUT DO NOT INCLUDE ANY STATEMENTS RELATING TO THE
ISSUANCE AND DISTRIBUTION OF THE CPR CERTIFICATES WHICH ARE NOT FORWARD LOOKING
STATEMENTS WITHIN THE MEANING OF THE SECURITIES ACT, EXCHANGE ACT OR PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995. THESE FORWARD LOOKING STATEMENTS
INVOLVE CERTAIN RISKS AND UNCERTAINTIES. NO ASSURANCE CAN BE GIVEN THAT SUCH
RESULTS WILL BE REALIZED. FACTORS THAT MAY CAUSE ACTUAL RESULTS TO DIFFER
MATERIALLY FROM THOSE CONTEMPLATED BY SUCH FORWARD LOOKING STATEMENTS INCLUDE,
AMONG OTHERS, THE FOLLOWING POSSIBILITIES: (1) EXPECTED COST SAVINGS FROM THE
PROPOSED MERGER CANNOT BE FULLY REALIZED OR REALIZED WITHIN THE EXPECTED TIME
FRAME; (2) REVENUES FOLLOWING THE PROPOSED MERGER ARE LOWER THAN EXPECTED; (3)
COMPETITIVE PRESSURE AMONG DEPOSITORY INSTITUTIONS INCREASES SIGNIFICANTLY; (4)
COSTS OR DIFFICULTIES RELATED TO THE INTEGRATION OF THE BUSINESSES OF AHMANSON
AND COAST ARE GREATER THAN EXPECTED; (5) CHANGES IN THE INTEREST RATE
ENVIRONMENT REDUCE INTEREST MARGINS; (6) GENERAL ECONOMIC CONDITIONS, EITHER
NATIONALLY OR IN THE STATES IN WHICH THE COMBINED COMPANY WILL BE DOING
BUSINESS, ARE LESS FAVORABLE THAN EXPECTED; AND (7) LEGISLATION OR REGULATORY
CHANGES ADVERSELY AFFECT THE BUSINESSES IN WHICH THE COMBINED COMPANY WOULD BE
ENGAGED.
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SUMMARY
The following is a summary of certain information contained elsewhere in
this Proxy Statement/Prospectus. This summary is not intended to be a complete
description of the matters covered in this Proxy Statement/Prospectus and is
subject to and qualified in its entirety by reference to the more detailed
information contained elsewhere in this Proxy Statement/Prospectus, including
the Appendices hereto, and in the documents incorporated by reference in this
Proxy Statement/Prospectus. A copy of the Merger Agreement, the form of CPR
Trust Agreement and the form of Commitment are set forth as Appendices A, B and
C to this Proxy Statement/Prospectus, respectively, and reference is made
thereto for a complete description of the terms of the Merger, the terms of the
CPR Trust and the terms of the Commitment, respectively. Stockholders are urged
to read carefully the entire Proxy Statement/Prospectus, including the
Appendices. As used in this Proxy Statement/Prospectus, the terms "Ahmanson" and
"Coast" refer to such corporations, respectively, and where the context
requires, such corporations and their respective subsidiaries.
PARTIES TO THE MERGER
Ahmanson.
Ahmanson, a Delaware corporation, is a savings and loan holding company
which conducts its principal business operations through Home Savings, a
federally chartered savings bank. Ahmanson engages in residential real estate
lending, consumer and small business banking, and related financial services. At
September 30, 1997, Home Savings had 301 branches in California, 27 branches in
Florida and 43 branches in Texas. On December 4, 1997, Home Savings announced
that it had entered into an agreement to sell all of its branches in Florida to
SouthTrust Bank, N.A.
At September 30, 1997, Ahmanson had total assets of $46.8 billion, deposits
of $32.4 billion and stockholders' equity of $2.4 billion. Based on deposits,
Ahmanson was at that date the fourth largest depository institution in
California and the 19th largest in the United States and the second largest
savings association in the United States. Home Savings maintains its capital
levels above the "well capitalized" standards established by the Office of
Thrift Supervision.
Ahmanson has its principal executive offices at 4900 Rivergrade Road,
Irwindale, California 91706, telephone number (626) 960-6311.
Coast.
Coast, a Delaware corporation, is a savings and loan holding company which
conducts its principal business operations through Coast Federal. Substantially
all of Coast's consolidated revenues are derived from the operations of Coast
Federal, and Coast Federal represented substantially all of Coast's consolidated
assets and liabilities at September 30, 1997.
Coast Federal, a federal savings bank headquartered in Los Angeles,
California, was founded in 1935 and converted from mutual to stock form in 1985.
Based on total deposits of $9.0 billion at September 30, 1997, Coast Federal was
the tenth largest savings association in the United States and the eighth
largest depository institution in California. Coast Federal's business is that
of a financial intermediary and consists primarily of attracting deposits from
the general public and using such deposits, together with borrowings and other
funds, to make mortgage loans secured by residential real estate located in
California. At September 30, 1997, Coast Federal operated 90 retail banking
offices, all of which are located in California.
Coast has its principal executive offices at 1000 Wilshire Boulevard, Los
Angeles, California 90017, telephone number (213) 362-2000.
SPECIAL MEETING; RECORD DATE
The Special Meeting will be held on February 12, 1998, at 10:00 a.m., at
the OMNI Hotel, 930 Wilshire Boulevard, Los Angeles, California. At the Special
Meeting, Coast stockholders will consider and vote upon approval and adoption of
the Merger Agreement and the transactions contemplated thereby, including the
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<PAGE> 15
approval of the Merger, the establishment of and the terms of the CPR Trust, the
CPR Certificate Distribution, the engagement of the Litigation Trustees
(including the terms of their engagement) for the CPR Trust, the terms of the
Commitment and the rights of the holders of CPR Certificates (collectively, the
"Transaction Proposal").
The Coast Board has fixed the close of business on December 23, 1997, as
the record date for determining the Coast stockholders entitled to receive
notice of and to vote at the Special Meeting (the "Record Date"). As of the
Record Date, 19,262,934 shares of Coast Common Stock were issued and outstanding
and entitled to be voted at the Special Meeting. For additional information with
respect to the Special Meeting, including the Record Date and vote required for
approval, see "General Information."
THE MERGER
General.
The Merger Agreement provides that Coast will merge with and into Ahmanson,
which will be the surviving corporation in the Merger and will be governed by
the laws of the State of Delaware. If the Transaction Proposal is approved at
the Special Meeting, all required governmental and other consents and approvals
are obtained and all the other conditions to the obligations of the parties to
consummate the Merger are either satisfied or waived (if permitted), the CPR
Certificate Distribution will be effected and, immediately thereafter, the
Merger will be consummated. In addition, Ahmanson will enter into the Commitment
with the CPR Trust at the Effective Time and effective at the Effective Time. A
description of the Commitment and the related Commitment Amount are more fully
set forth below under "-- Commitment," "The Merger -- Merger Consideration;
Exchange Ratio; Commitment" and "The CPR Trust and the CPR Certificates -- The
Commitment." A copy of the Merger Agreement and a copy of the form of Commitment
are set forth as Appendices A and C to this Proxy Statement/Prospectus,
respectively. See "The Merger."
Merger Consideration.
The merger consideration (the "Merger Consideration") pursuant to the
Merger Agreement consists of (a) the shares of Ahmanson Common Stock issuable in
exchange for shares of Coast Common Stock pursuant to the Merger Agreement, and
cash in lieu of fractional share interests, and (b) the entering into of the
Commitment by Ahmanson.
Exchange Ratio.
At the time of the Merger, each outstanding share of Coast Common Stock
(other than (a) certain shares, if any, held by Coast, Ahmanson or their
subsidiaries and (b) Dissenters' Shares, if any) will be converted into and
exchanged for 0.8082 of a share of Ahmanson Common Stock (together with the
appropriate number of Ahmanson Rights as provided in the Ahmanson Rights Plan).
No fractional shares of Ahmanson Common Stock will be issued. Rather, cash
(without interest) will be paid in lieu of any fractional share interest to
which any Coast stockholder would be entitled upon consummation of the Merger,
determined by multiplying such fraction by the average of the last sale prices
of the Ahmanson Common Stock, as reported by the NYSE Composite Tape (as
reported in The Wall Street Journal or, if not reported therein, in another
authoritative source) for the five NYSE trading days immediately preceding the
Effective Date.
Commitment.
Ahmanson will enter into the Commitment, substantially in the form attached
hereto as Appendix C, with the CPR Trust at the Effective Time and effective at
the Effective Time. Immediately prior to the Effective Time, and provided that
all other conditions to consummation of the Merger have been either satisfied or
waived (if permitted), the CPR Certificates will be distributed to the Coast
stockholders (and to the other persons specified in the Merger Agreement and
described herein under "The Merger -- The CPR Trust, the CPR Certificates and
the CPR Certificate Distribution"). The Commitment will obligate
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<PAGE> 16
Ahmanson to pay to the CPR Trust from time to time an aggregate amount equal to
the Commitment Amount. As used in this Proxy Statement/Prospectus, the
Commitment Amount means an amount equal to the Litigation Proceeds (as defined
herein) minus the Reimbursements (as defined herein) plus the Assumed Tax
Benefit (as defined herein). Litigation Proceeds means any and all cash payments
actually received by Coast Federal or Home Savings or any of their affiliates
(the "Ahmanson Group") pursuant to a final, non-appealable judgment or a final
settlement of the Litigation (the "Cash Proceeds") and the non-cash payments, if
any, actually received by the Ahmanson Group pursuant to a final, non-appealable
judgment or a final settlement of the Litigation (the "Non-Cash Proceeds").
Reimbursements means (a) an amount equal to the Expense Fund (as defined herein)
plus (b) interest on the portions of the Expense Fund withdrawn by the CPR Trust
calculated from the time of any such withdrawal at an annual interest rate equal
to the Reference Rate of Bank of America (the "Reference Rate") in effect from
time to time plus 250 basis points, compounded quarterly plus (c) the Assumed
Tax Liability (as defined herein) plus (d) in the event Litigation Proceeds are
required to be included in income for federal income tax purposes in a taxable
year prior to the year such proceeds are received in cash (either because of the
accrual of Cash Proceeds before the payment thereof or the time required to
liquidate Non-Cash Proceeds), interest at the Reference Rate plus 250 basis
points from the date of such payment of taxes to the date of receipt of cash.
The Expense Fund means an amount equal to $20 million, less the expenses
relating to the Litigation incurred and paid between August 31, 1997 and the
Effective Date, which amount Ahmanson will deposit at the Effective Time in a
non-interest bearing demand-deposit account in the name of the CPR Trust at Home
Savings. Subject to certain exceptions, the Assumed Tax Liability will be
computed on the assumption that the Litigation Proceeds will be includible in
the Ahmanson Group's gross income as ordinary income in full at the highest net
marginal federal, state and local income tax rate. For additional information
concerning the Commitment, the Commitment Amount and related matters, see "The
Merger -- Merger Consideration; Exchange Ratio; Commitment." For additional
information concerning the CPR Trust and the CPR Certificates, see "Risk
Factors" and "The CPR Trust and the CPR Certificates."
Vote Required.
Approval of the Transaction Proposal requires the affirmative vote of a
majority of the outstanding shares of the Coast Common Stock entitled to vote at
the Special Meeting. As of the Record Date, the directors and executive officers
of Coast and their affiliates held 175,261 shares (or approximately 0.91% of the
outstanding shares) of Coast Common Stock, not including unissued shares deemed
beneficially owned pursuant to outstanding Coast Stock Options. As of the Record
Date, Ahmanson held 100 shares of Coast Common Stock and directors and executive
officers of Ahmanson and their affiliates held no shares of Coast Common Stock.
See "General Information -- Vote Required" and "The Merger -- Interests of
Certain Persons in the Transaction Proposal."
Approval of the Merger Agreement by holders of Ahmanson Common Stock is not
required under the Delaware General Corporation Law ("DGCL") or the rules of the
NYSE. See "General Information -- Vote Required."
Recommendation of the Coast Board.
The Coast Board believes that approval of the Merger Agreement and the
transactions contemplated thereby, including the approval of the Merger, the
establishment of and the terms of the CPR Trust, the CPR Certificate
Distribution, the engagement of the Litigation Trustees (including the terms of
their engagement) for the CPR Trust, the terms of the Commitment and the rights
of the holders of CPR Certificates, is in the best interests of Coast and its
stockholders and unanimously recommends that the stockholders of Coast vote
"FOR" approval of the Transaction Proposal. The Coast Board has unanimously
approved the Transaction Proposal. In deciding to approve the Transaction
Proposal, the Coast Board considered a number of factors, including the
financial condition, results of operations and future prospects of Coast and
Ahmanson. See "The Merger -- Background of the Merger" and "-- Reasons of Coast
for the Merger." As a result of the difficulty in establishing the value of the
Litigation for purposes of the Merger, the Coast Board determined that the
ultimate value of the Litigation should be retained by Coast's stockholders in
connection with the Merger and,
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<PAGE> 17
thus, the Coast Board, as an integral part of its approval of the Transaction
Proposal, approved the establishment of the CPR Trust, the terms of the CPR
Certificates and the Commitment, the CPR Certificate Distribution and related
matters. See "The Merger -- Interests of Certain Persons in the Transaction
Proposal" and "The CPR Trust and the CPR Certificates."
THE COAST BOARD UNANIMOUSLY RECOMMENDS THAT COAST STOCKHOLDERS VOTE "FOR"
APPROVAL OF THE TRANSACTION PROPOSAL.
Opinion of Coast's Financial Advisor.
Goldman, Sachs & Co. ("Goldman Sachs"), Coast's financial advisor, has
rendered its written opinion, dated October 5, 1997, to the Coast Board to the
effect that, as of such date, based on and subject to the matters set forth in
such opinion, the proposed Consideration (as defined herein) to be received by
the holders of Coast Common Stock was fair from a financial point of view to the
Coast stockholders. Goldman Sachs has confirmed its October 5, 1997 opinion as
of the date of this Proxy Statement/Prospectus by delivery of its written
opinion to the Coast Board, dated the date hereof. For additional information,
see "The Merger -- Opinion of Coast's Financial Advisor." The opinion of Goldman
Sachs, dated the date of this Proxy Statement/Prospectus, is attached as
Appendix D to this Proxy Statement/Prospectus. Holders of Coast Common Stock are
urged to read such opinion in its entirety for descriptions of the procedures
followed, matters considered and limitations on the reviews undertaken in
connection therewith.
Effective Time.
If the Transaction Proposal is approved by the requisite vote of the Coast
stockholders, all required governmental and other consents and approvals are
obtained and the other conditions to the obligations of the parties to
consummate the Merger are either satisfied or waived (if permitted), the CPR
Certificate Distribution will be effected on the Effective Date with a record
and payment date on the Effective Date immediately prior to the Effective Time
and the Merger will be consummated and will become effective on the date (the
"Effective Date") and at the time (the "Effective Time") that a certificate of
merger is filed with the Secretary of State of the State of Delaware or at the
time specified in such certificate. The Commitment will be entered into by
Ahmanson at or prior to the Effective Time and effective at the Effective Time.
See "The CPR Trust and the CPR Certificates."
Unless otherwise agreed by Coast and Ahmanson, and subject to the
conditions to the obligations of the parties to effect the Merger, the parties
have agreed to cause the Effective Date to occur on the fifth business day to
occur after the last of the conditions to the consummation of the Merger have
been satisfied or waived (or, at the election of Ahmanson, on the last business
day of the month in which such date occurs or, if such date occurs on one of the
last five business days of such month, on the last business day of the
succeeding month). Ahmanson and Coast each has the right, acting unilaterally,
to terminate the Merger Agreement should the Merger not be consummated by June
30, 1998 (unless the failure to consummate the Merger is a result of a breach by
the party seeking to terminate). See "The Merger -- Effective Time" and "--
Termination; Termination Fee."
Delivery of Ahmanson Certificates.
Promptly after the Effective Date, Ahmanson will send or will cause to be
sent transmittal materials to each record holder of shares of Coast Common Stock
outstanding at the Effective Time for use in exchanging those certificates for
shares of Ahmanson Common Stock and cash in lieu of fractional share interests.
See "The Merger -- Distribution of Ahmanson Common Stock Certificates."
Certain Federal Income Tax Consequences.
The Merger is intended to be a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986 (the "Code") with the consequence
that no gain or loss will be recognized for federal income tax purposes by Coast
or Coast stockholders as a result of the Merger except in the case of a Coast
stockholder (a) for gain that may be recognized in an amount not exceeding the
fair market value at the
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Effective Time of the CPR Certificates received by such stockholder (which will
include a proportionate share of the value attributable to Ahmanson's having
entered into the Commitment) and (b) with respect to any cash received in lieu
of fractional share interests.
Consummation of the Merger is conditioned in part upon the receipt by
Ahmanson and Coast of opinions from their respective legal counsels that the
Merger will be a reorganization within the meaning of Section 368(a) of the
Code.
All stockholders should carefully read the discussion of the material
federal income tax consequences of the proposed Merger under "The
Merger -- Certain Federal Income Tax Consequences." In addition, stockholders
are urged to consult with their own tax advisers as to the federal, state, local
and foreign tax consequences in their particular circumstances. For a discussion
of certain federal income tax consequences related to the CPR Certificates and
the CPR Certificate Distribution, see "The CPR Trust and the CPR
Certificates -- Certain Federal Income Tax Consequences."
Management After the Merger.
Ahmanson will be the surviving corporation resulting from the Merger and
will continue to be managed by its current executive officers. Ahmanson has
agreed to cause Mr. Ray Martin, Chairman of the Board and Chief Executive
Officer of Coast, to be elected or appointed as a director of Ahmanson. See "The
Merger -- Management and Operations After the Merger."
Interests of Certain Persons in the Transaction Proposal.
Certain members of Coast's management and the Coast Board have interests in
the Merger and the transactions contemplated thereby in addition to their
interests as stockholders of Coast generally. Those interests relate to, among
other things, provisions in the Merger Agreement regarding indemnification and
maintenance of directors and officers' liability insurance, the treatment of
outstanding Coast Stock Options and outstanding Coast Performance Share Awards
and Coast SARs with respect to Coast Common Stock and the appointment of Mr.
Martin as a director of Ahmanson.
In addition, certain Coast executives will receive benefits to be paid in
connection with a change of control of Coast. Assuming termination of the
employment of Coast's executive officers, pursuant to employment agreements
between Coast and each of Messrs. Ray Martin (Chairman of the Board and Chief
Executive Officer of Coast and Coast Federal), Robert Hunt (President and Chief
Operating Officer of Coast and Coast Federal), James Boyle (Senior Executive
Vice President of Coast and Coast Federal), James Barritt (Senior Executive Vice
President and Chief Financial Officer of Coast and Coast Federal) and Norman
Raiden (Senior Executive Vice President of Coast and Coast Federal, and General
Counsel of Coast, and until December 3, 1997, of Coast Federal), the severance
payments required to be made to such executive officers would be approximately
$2,735,000, $1,933,000, $1,481,000, $1,335,000 and $1,377,000, respectively, as
a result of the Merger being deemed a change of control under such employment
agreements. Further, assuming termination of the employment of Messrs. Rich and
Neal, Coast's two other executive officers, pursuant to severance agreements
between Coast and such executive officers, the severance payments required to be
made to such executive officers would aggregate approximately $265,000, as a
result of the Merger being deemed a change in control under such severance
agreements. In addition, assuming termination of the employment of Coast's
executive officers, lump sum payments made under Coast's supplemental executive
retirement plan to Messrs. Martin, Hunt, Boyle, Barritt and Raiden would be
approximately $5,746,000, $1,728,000, $1,547,000, $680,000 and $2,325,000,
respectively, and to such other Coast executive officers as a group would be
approximately $574,000, as a result of the Merger being deemed a change in
control under such plan. Finally, assuming termination of the employment of
Coast's executive officers, such executive officers would receive lump sum
payments of amounts previously deferred under Coast's deferred compensation plan
in January 1999, as a result of the Merger being deemed a change in control
under such plan. See "The Merger -- Interests of Certain Persons in the
Transaction Proposal" and "-- Stock Options; Performance Share Awards; SARs"
below.
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Each of Messrs. Martin, Hunt, Barritt and Raiden will also be Litigation
Trustees of the CPR Trust and, as such, will receive as compensation pursuant to
the CPR Trust Agreement during the term of his service as a Litigation Trustee,
fees of $400,000 per year for five years (except that if the Litigation is
sooner terminated, the remainder of such fees (but in no event with respect to a
period longer than two years after the year in which such termination occurs)
will be accelerated upon final resolution of the Litigation and receipt by the
Ahmanson Group of the Litigation Proceeds), plus reimbursement of all reasonable
out-of-pocket expenses. If the services of the Litigation Trustees continue to
be necessary after the initial five-year period or such receipt of Litigation
Proceeds, the Litigation Trustees will be entitled to a fee of $200 per hour
until termination of the CPR Trust. See "The Merger -- Interests of Certain
Persons in the Transaction Proposal."
Conditions to Consummation.
Consummation of the Merger is subject to various conditions, including,
among other matters: (a) approval of the Transaction Proposal by the Coast
stockholders and notice from holders of no more than 5% of the outstanding
shares of Coast Common Stock that their shares of Common Stock be treated as
Dissenters' Shares; (b) receipt of all governmental and other consents and
approvals necessary to permit consummation of the Merger; (c) satisfaction of
certain other usual conditions, including the receipt of the tax opinions
discussed above; and (d) the establishment of the CPR Trust and the consummation
of the CPR Certificate Distribution, the execution and delivery of the
Commitment by Ahmanson and the transfer of the Expense Fund to the CPR Trust.
Under the terms of the Merger Agreement, certain conditions to the Merger may
generally be waived by Ahmanson or Coast, as applicable. See "The
Merger -- Conditions to Consummation" and "-- Amendment and Waiver."
Regulatory Approvals.
The Merger is subject to the prior approval of the Office of Thrift
Supervision (the "OTS") and may be subject to the approval of or notice to other
regulatory authorities. An application for approval of the Merger has been filed
with the OTS. There can be no assurance that the approval of the OTS will be
obtained or as to the timing or conditions of such approval. See "The
Merger -- Regulatory Approvals."
Termination.
The Merger Agreement may be terminated, and the Merger abandoned, at any
time prior to the Effective Time by mutual action of the board of directors of
both Coast and Ahmanson, or by action of the board of directors of either
company under certain circumstances, including if the Merger is not consummated
by June 30, 1998, unless the failure to consummate by such time is due to
knowing action or inaction of the party seeking to terminate, which action or
inaction is in violation of such party's obligations under the Merger Agreement.
Ahmanson may terminate the Merger Agreement if the Coast Board withdraws its
recommendation of the Transaction Proposal or modifies or changes such
recommendation in a manner adverse in any respect to the interests of Ahmanson.
If the Merger Agreement is terminated under certain specified circumstances, and
within 12 months after such termination Coast or any of its subsidiaries enters
into a definitive agreement with respect to an acquisition proposal by a third
party, Coast will be obligated to pay to Ahmanson a termination fee equal to $35
million. See "The Merger -- Termination; Termination Fee."
Accounting Treatment.
Upon consummation of the Merger, Ahmanson will account for the acquisition
of Coast using the purchase method of accounting. Accordingly, the consideration
to be paid in the Merger will be allocated to assets acquired and liabilities
assumed based on their estimated fair values at the Effective Date. Income (or
loss) of Coast prior to the Effective Date will not be included in income of the
combined company. See "The Merger -- Accounting Treatment."
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Dissenters' Rights.
Any holder of record of shares of Coast Common Stock who does not vote in
favor of the Transaction Proposal, delivers a demand for appraisal prior to the
vote of the Coast stockholders on the Transaction Proposal and complies with the
additional procedures required under Delaware law will have the right to obtain
cash payment for the "fair value" of such stockholders' shares (excluding any
element of value arising from the accomplishment or expectation of the Merger).
In order to exercise such rights, a stockholder must comply with all the
procedural requirements of Section 262 of the DGCL, the full text of which is
attached as Appendix E to this Proxy Statement/Prospectus. Section 262 should be
read in its entirety. Any such dissenting stockholder will not be entitled to
the Merger Consideration in respect of such shares unless and until such
dissenting stockholder shall have failed to perfect or shall have timely
withdrawn such dissenting stockholder's right to dissent from the Merger, and
shall instead be entitled to receive the payment provided by Section 262 of the
DGCL. FAILURE TO TAKE ANY OF THE STEPS REQUIRED UNDER SECTION 262 IN A TIMELY
MANNER WILL RESULT IN A LOSS OF APPRAISAL RIGHTS. See "Appraisal Rights."
In connection with any appraisal proceeding, the "fair value" of shares of
Coast Common Stock is to be determined as of immediately prior to the CPR
Certificate Distribution and the Merger. Each CPR Certificate distributed to
each Coast stockholder will provide that it shall automatically be redeemed for
$0.01 in cash immediately following the Merger if the holder of the share as to
which such CPR Certificate was issued has given notice of an intent to exercise
appraisal rights. If any Coast stockholder who gives notice of intent to
exercise appraisal rights subsequently withdraws, or fails to perfect, such
appraisal demand, Ahmanson will deliver to such holder the number of CPR
Certificates equal to the number of shares of Coast Common Stock as to which
such appraisal demand was withdrawn or not perfected.
It is a condition to the obligation of Ahmanson to consummate the Merger
that holders of no more than 5% of the outstanding shares of Coast Common Stock
shall have given notice that their shares of Coast Common Stock be treated as
Dissenters' Shares. See "The Merger -- Conditions to Consummation."
Resales of Ahmanson Common Stock.
The Ahmanson Common Stock issuable in connection with the Merger will be
freely transferable by the holders of such shares, except for those holders who
may be deemed to be "affiliates" (generally including directors, certain
executive officers and 10% or more stockholders) of Coast or Ahmanson under
applicable federal securities laws. See "The Merger -- Resales of Ahmanson
Common Stock."
FORMATION OF THE CPR TRUST AND THE CPR CERTIFICATE DISTRIBUTION
The CPR Trust is a statutory business trust created under Delaware law
pursuant to a Declaration of Trust and the filing of a Certificate of Trust with
the Delaware Secretary of State on January 8, 1998 for the purpose of holding
the Commitment. The CPR Certificates will represent assignable and transferable
undivided beneficial interests in the assets of the CPR Trust, and, as a result
of Ahmanson's entering into of the Commitment, will represent interests in the
right to receive an amount equal to the net after-tax proceeds, if any, to be
received by Coast Federal (or its successor) in its regulatory capital
litigation claims against the United States government in the case entitled
Coast Federal Bank, FSB v. United States, No. 92-466C (Cl. Ct. filed July 9,
1992), as more fully described below. Immediately prior to the Effective Time,
Coast, the Litigation Trustees, Bankers Trust Company (the "Institutional
Trustee") and Bankers Trust (Delaware) (the "Delaware Trustee") will enter into
an Amended and Restated Declaration of Trust (the "CPR Trust Agreement"),
substantially in the form attached hereto as Appendix B. The CPR Trust Agreement
will govern the terms and conditions of the CPR Trust. Immediately prior to the
Effective Time of the Merger, the CPR Trust will issue the CPR Certificates to
Coast and Coast will distribute one CPR Certificate to the Coast stockholders
for each share of Coast Common Stock held by such stockholders. Coast will also
retain a number of CPR Certificates sufficient for the delivery (or retention by
Ahmanson as successor to Coast in certain circumstances) of CPR Certificates in
connection with Coast Stock Options, Coast Performance Share Awards and Coast
SARs. See "The CPR Trust and the CPR Certificates," "The Merger -- The CPR
14
<PAGE> 21
Trust, the CPR Certificates and the CPR Certificate Distribution" and "-- Stock
Options; Performance Share Awards; SARs."
At the Effective Time and effective at the Effective Time, Ahmanson will
enter into the Commitment with the CPR Trust, pursuant to which Ahmanson will be
obligated to pay to the CPR Trust from time to time an aggregate amount equal to
the Commitment Amount. The Litigation will remain a contingent asset of Coast
Federal upon effectiveness of the Merger and thus will become a contingent asset
of Ahmanson as successor to Coast and as parent company of Coast Federal. The
four senior executives of Coast with knowledge of the facts underlying the
Litigation will be appointed as "Litigation Trustees" of the CPR Trust, and will
be given full authority to make all decisions on behalf of Coast Federal (and
its successors) with respect to the prosecution of the Litigation at the CPR
Trust's expense, including selection and supervision of existing and any new
counsel and deciding whether or not to accept any settlement offer.
The only assets of the CPR Trust will be the Commitment and the right to
draw on amounts in the Expense Fund for purposes of funding expenses of the CPR
Trust including expenses of the Litigation, fees and expenses of the Litigation
Trustees and all administrative expenses. Within 60 days of the receipt of any
Commitment Amount, the CPR Trust will pay such amounts (other than $10 million
(or such greater amount as the Litigation Trustees reasonably determine may be
reasonably likely to be required to pay additional expenses or to satisfy the
CPR Trust's indemnification obligations (the "Retained Amount")) less the amount
of any accrued but unpaid expenses payable by the CPR Trust not covered by the
Expense Fund, to the holders of the CPR Certificates (as of a record date set by
the Litigation Trustees). The Retained Amount will be retained for a period of
two years (or such longer period as the Litigation Trustees reasonably determine
may be reasonably likely to be required).
THE CPR CERTIFICATES ARE HIGHLY SPECULATIVE SECURITIES THAT INVOLVE A HIGH
DEGREE OF RISK. See "Risk Factors."
RESALES OF CPR CERTIFICATES
The CPR Certificates will be freely transferable by the holders of such CPR
Certificates, except for those holders who may be deemed to be "affiliates" of
the CPR Trust under applicable federal securities laws. See "The CPR Trust and
the CPR Certificates -- Description of the CPR Certificates -- Resales of the
CPR Certificates" and "Risk Factors."
MARKET FOR COMMON STOCK
Ahmanson Common Stock and Coast Common Stock are traded on the NYSE and the
Pacific Exchange. The following table sets forth the last sale price of Ahmanson
Common Stock, the last sale price of Coast Common Stock, and the equivalent
price per share (as explained below) of Coast Common Stock at the close of
business on October 3, 1997, the last trading day immediately preceding public
announcement of the Merger (as reported on the NYSE Composite Tape), and on
January 12, 1998, the last practicable date prior to the mailing of this Proxy
Statement/Prospectus:
<TABLE>
<CAPTION>
MARKET PRICE PER SHARE
-------------------------------------------------------------
AHMANSON COAST EQUIVALENT PER
COMMON STOCK COMMON STOCK(1) SHARE PRICE(1)(2)
------------ ---------------------- -----------------
<S> <C> <C> <C>
October 3, 1997................... $57 1/8 $54 $46.17
January 12, 1998.................. $54 1/4 $56 5/16 $43.84
</TABLE>
- ---------------
(1) The per share price of Coast Common Stock includes the value of the
Litigation as an asset of Coast. The equivalent per share price of Coast
Common Stock does not include the value of the Litigation as an asset of
Coast or the value of CPR Certificates to be received by Coast stockholders
in connection with the Merger.
(2) The equivalent per share price of Coast Common Stock at the specified dates
represents the last sale price of a share of Ahmanson Common Stock on such
date multiplied by the Exchange Ratio of 0.8082.
15
<PAGE> 22
STOCKHOLDERS ARE ADVISED TO OBTAIN CURRENT MARKET QUOTATIONS FOR AHMANSON
COMMON STOCK. NO ASSURANCE CAN BE GIVEN AS TO THE MARKET PRICE OF AHMANSON
COMMON STOCK AT OR AFTER THE EFFECTIVE TIME. SEE "COMPARATIVE MARKET PRICES AND
DIVIDENDS."
NO EXISTING TRADING MARKET FOR THE CPR CERTIFICATES
There is no current market for the CPR Certificates. Coast, on behalf of
the CPR Trust, has applied for inclusion of the CPR Certificates on the NASDAQ
National Market System under the symbol "CCPR." No assurance can be given that
the CPR Certificates will satisfy the listing requirements for inclusion on the
NASDAQ National Market System or any other trading system. In the event that the
CPR Certificates cannot be listed on any trading system, there would likely be
only minimal or no trading channels for the CPR Certificates, resulting in
severely reduced or no liquidity for investors in the CPR Certificates. Even if
such listing is achieved, there can be no assurance that an active market for
the CPR Certificates will develop or be sustained. If such a market develops,
there can be no assurance as to the price at which the CPR Certificates would
trade at any time and such price could be subject to rapid and substantial
change, depending upon, among other things, developments in the Litigation and
similar pending litigation. See "Risk Factors."
COMPARISON OF CERTAIN UNAUDITED PER SHARE DATA
The following summary presents selected comparative unaudited per share
data for Ahmanson and Coast on an historical basis and on a pro forma combined
basis assuming the Merger had been effective during the periods presented. The
Merger will be accounted for under the purchase accounting method. The pro forma
data have been derived accordingly. The information shown below should be read
in conjunction with the historical financial data and statements of Ahmanson and
Coast incorporated by reference herein, including the respective notes thereto.
See "Available Information," "Incorporation of Certain Information by
Reference," "-- Selected Consolidated Financial Data of Ahmanson (Historical),"
"-- Selected Consolidated Financial Data of Coast (Historical)" and "The
Merger -- Accounting Treatment."
The per share data set forth herein are presented for comparative purposes
only and are not necessarily indicative of the future combined financial
position, the results of the future operations or the actual results or combined
financial position of Ahmanson and Coast that would have been achieved had the
Merger been consummated as of the dates or at the beginning of the periods
indicated. While no assurance can be given, Ahmanson expects that it will
achieve substantial benefits from the Merger, including operating cost savings
and revenue enhancements. See "Ahmanson and Coast Unaudited Pro Forma Combined
Financial Information." However, the pro forma comparative unaudited per share
data do not reflect any direct costs, potential savings or revenue enhancements
which Ahmanson expects will result from the consolidation of operations of
16
<PAGE> 23
Coast and Ahmanson and, therefore, do not purport to be indicative of the
results of future operations of Ahmanson.
<TABLE>
<CAPTION>
NINE MONTHS ENDED YEAR ENDED
SEPTEMBER 30, DECEMBER 31,
1997 1996
----------------- ------------
<S> <C> <C>
H. F. AHMANSON & COMPANY
Net income per fully diluted common share
Historical.................................................. $ 2.69 $ 0.91(1)
Pro forma combined.......................................... 2.61 0.74
Dividends per common share(2)
Historical.................................................. 0.66 0.88
Pro forma combined.......................................... 0.66 0.88
Book value per common share (at period end)
Historical.................................................. 20.17 19.09
Pro forma combined(3)....................................... 25.16 --
COAST SAVINGS FINANCIAL, INC.
Net income per fully diluted common share
Historical.................................................. $ 2.30 $ 0.56(1)
Equivalent Coast pro forma combined(4)...................... 2.11 0.60
Dividends per common share
Historical.................................................. -- --
Equivalent Coast pro forma combined(4)...................... 0.53 0.71
Book value per common share (at period end)
Historical.................................................. 25.21 22.84
Equivalent Coast pro forma combined(4)...................... 20.33 --
</TABLE>
- ---------------
(1) Income per common share for both Ahmanson and Coast in 1996 was
significantly affected by a special assessment in the third quarter to
recapitalize the Savings Association Insurance Fund which was mandated by
federal legislation.
(2) Pro forma dividends per share represent historical dividends paid by
Ahmanson. For a discussion of Ahmanson's current and future dividend policy,
see "Comparative Market Prices and Dividends -- Ahmanson."
(3) Amount is calculated by dividing total pro forma common stockholders' equity
by the sum of the total outstanding shares of Ahmanson Common Stock plus the
new shares of Ahmanson Common Stock to be issued in the Merger (based on the
number of shares of Coast Common Stock outstanding at September 30, 1997,
excluding shares beneficially owned by Ahmanson and the Exchange Ratio of
0.8082).
(4) Equivalent Coast pro forma combined amounts are computed by multiplying the
pro forma combined amounts by the Exchange Ratio of 0.8082.
17
<PAGE> 24
SELECTED CONSOLIDATED FINANCIAL DATA OF AHMANSON (HISTORICAL)
The following table sets forth selected historical financial data of
Ahmanson and has been derived from its consolidated financial statements. Such
selected historical financial data should be read in conjunction with Ahmanson's
audited consolidated financial statements, including the respective notes
thereto, and unaudited interim financial information, in each case incorporated
herein by reference. The interim financial information has been derived from
unaudited financial statements of Ahmanson, which, in the opinion of management,
include all adjustments, consisting only of normal recurring adjustments,
necessary for fair statement of the results for the unaudited interim periods.
Results for the interim periods are not necessarily indicative of results which
may be expected for any other interim or annual period. See "Incorporation of
Certain Information by Reference."
<TABLE>
<CAPTION>
AT AT DECEMBER 31,
SEPTEMBER 30, -------------------------------------------------------------------
1997 1996 1995 1994 1993 1992
------------- ----------- ----------- ----------- ----------- -----------
(IN THOUSANDS, EXCEPT PER SHARE INFORMATION)
<S> <C> <C> <C> <C> <C> <C>
SUMMARY OF FINANCIAL CONDITION
Cash and investment securities........ $ 1,084,310 $ 1,876,435 $ 1,645,450 $ 2,773,573 $ 3,906,044 $ 2,362,563
Loans and mortgage-backed
securities.......................... 43,840,875 46,085,670 47,407,521 48,791,165 44,624,365 42,878,383
Real estate........................... 335,095 395,428 460,421 475,264 623,519 1,127,271
Premises and equipment................ 368,825 424,567 410,947 614,817 673,879 686,693
Goodwill and other intangible
assets.............................. 286,385 308,083 147,974 468,542 428,444 478,017
Other assets.......................... 883,667 811,861 457,273 603,432 614,994 607,580
----------- ----------- ----------- ----------- ----------- -----------
Total assets........................ $46,799,157 $49,902,044 $50,529,586 $53,726,793 $50,871,245 $48,140,507
=========== =========== =========== =========== =========== ===========
Deposits.............................. $32,447,317 $34,773,945 $34,244,481 $40,655,016 $38,018,653 $39,273,192
Borrowings............................ 10,575,923 11,580,521 12,236,428 9,176,085 8,879,345 4,978,583
Other liabilities..................... 1,241,139 966,116 991,755 931,091 1,024,216 1,143,088
Company-obligated Capital Securities
of Subsidiary Trust................. 148,421 148,413 -- -- -- --
Stockholders' equity.................. 2,386,357 2,433,049 3,056,922 2,964,601 2,949,031 2,745,644
----------- ----------- ----------- ----------- ----------- -----------
Total liabilities, Company-obligated
Capital Securities of Subsidiary
Trust and stockholders' equity...... $46,799,157 $49,902,044 $50,529,586 $53,726,793 $50,871,245 $48,140,507
=========== =========== =========== =========== =========== ===========
PER SHARE INFORMATION -- COMMON SHARES
Book value............................ $ 20.17 $ 19.09 $ 20.75 $ 19.70 $ 19.61 $ 22.04
Tangible book value................... 18.37 17.31 19.47 15.70 15.94 17.94
</TABLE>
18
<PAGE> 25
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
----------------------- --------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---------- ---------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS, EXCEPT PER SHARE INFORMATION)
<S> <C> <C> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS
Interest income.................... $2,561,081 $2,630,081 $3,514,795 $3,699,091 $3,095,375 $3,003,422 $3,428,979
Interest expense................... 1,632,558 1,695,289 2,262,281 2,472,336 1,798,454 1,666,350 2,070,413
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net interest income................ 928,523 934,792 1,252,514 1,226,755 1,296,921 1,337,072 1,358,566
Provision for loan losses.......... 57,080 115,626 144,924 119,111 176,557 574,970 367,366
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net interest income after provision
for loan losses.................. 871,443 819,166 1,107,590 1,107,644 1,120,364 762,102 991,200
Gain on sales of retail deposit
branch systems................... 57,566 -- 6,861 514,671 77,901 -- --
Other non-interest income.......... 207,221 173,790 244,937 183,738 182,455 317,828 266,857
SAIF recapitalization assessment... -- 243,862 243,862 -- -- -- --
Other non-interest expense......... 635,442 710,796 934,968 981,407 970,050 1,299,996 968,443
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income (loss) before provision for
income taxes (benefit),
extraordinary loss and cumulative
effect of accounting changes..... 500,788 38,298 180,558 824,646 410,670 (220,066) 289,614
Provision for income taxes
(benefit)........................ 186,500 (15,713) 35,300 373,700 173,312 (82,034) 133,222
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income (loss) before extraordinary
loss and cumulative effect of
accounting changes............... 314,288 54,011 145,258 450,946 237,358 (138,032) 156,392
Extraordinary loss on early
extinguishment of debt (net of
tax benefit)..................... -- -- -- -- -- (21,607) --
Cumulative effect of changes in
accounting for goodwill (1995)
and income taxes (1992).......... -- -- -- (234,742) -- -- 47,677
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income (loss).................. $ 314,288 $ 54,011 $ 145,258 $ 216,204 $ 237,358 $ (159,639) $ 204,069
========== ========== ========== ========== ========== ========== ==========
PER SHARE INFORMATION -- COMMON
SHARES
Primary --
Income (loss) before
extraordinary loss and
cumulative effect of accounting
changes........................ $ 2.89 $ 0.16 $ 0.91 $ 3.39 $ 1.59 $ (1.51) $ 1.19
Net income (loss)................ 2.89 0.16 0.91 1.40 1.59 (1.69) 1.60
Fully diluted --
Income (loss) before
extraordinary loss and
cumulative effect of accounting
changes........................ 2.69 0.16 0.91 3.20 1.58 (1.51) 1.19
Net income (loss)................ 2.69 0.16 0.91 1.40 1.58 (1.69) 1.60
Dividends.......................... 0.66 0.66 0.88 0.88 0.88 0.88 0.88
</TABLE>
19
<PAGE> 26
SELECTED CONSOLIDATED FINANCIAL DATA OF COAST (HISTORICAL)
The following table sets forth selected historical financial data of Coast
and has been derived from its consolidated financial statements. Such selected
historical financial data should be read in conjunction with Coast's audited
consolidated financial statements, including the respective notes thereto, and
unaudited interim financial information, in each case incorporated herein by
reference. The interim financial information has been derived from unaudited
financial statements of Coast, which, in the opinion of management, include all
adjustments, consisting only of normal recurring adjustments, necessary for fair
statement of the results for the unaudited interim periods. Certain items in
these selected historical financial data of Coast have been reclassified to
conform to the Ahmanson presentation. See "Incorporation of Certain Information
by Reference."
<TABLE>
<CAPTION>
AT AT DECEMBER 31,
SEPTEMBER 30, --------------------------------------------------------------
1997 1996 1995 1994 1993 1992
------------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS, EXCEPT PER SHARE INFORMATION)
<S> <C> <C> <C> <C> <C> <C>
SUMMARY OF FINANCIAL CONDITION
Cash and investment securities............. $ 591,731 $ 464,371 $ 308,733 $ 263,759 $ 728,311 $ 623,600
Loans and MBS.............................. 8,136,645 7,899,377 7,638,297 7,526,910 6,979,497 7,286,179
Real estate................................ 46,886 41,259 31,696 44,168 100,721 160,756
Premises and equipment..................... 86,588 95,010 92,920 87,493 77,566 67,635
Goodwill and other intangible assets....... 5,441 6,238 7,332 11,504 12,927 13,841
Other assets............................... 173,122 198,697 172,702 262,683 195,795 199,815
---------- ---------- ---------- ---------- ---------- ----------
Total assets......................... $ 9,040,413 $8,704,952 $8,251,680 $8,196,517 $8,094,817 $8,351,826
========== ========== ========== ========== ========== ==========
Deposits................................... $ 6,445,844 $6,356,448 $6,123,472 $5,879,808 $5,908,559 $6,136,130
Borrowings................................. 1,988,502 1,803,718 1,593,336 1,819,561 1,657,381 1,703,948
Other liabilities.......................... 136,094 120,255 117,438 121,934 135,309 186,003
Stockholders' equity ...................... 469,973 424,531 417,434 375,214 393,568 325,745
---------- ---------- ---------- ---------- ---------- ----------
Total liabilities and stockholders'
equity............................. $ 9,040,413 $8,704,952 $8,251,680 $8,196,517 $8,094,817 $8,351,826
========== ========== ========== ========== ========== ==========
PER SHARE INFORMATION -- COMMON SHARES
Book value................................. $ 25.21 $ 22.84 $ 22.46 $ 20.33 $ 21.32 $ 20.24
Tangible book value........................ 24.92 22.51 22.07 19.71 20.62 19.38
</TABLE>
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------------- ----------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
-------- -------- -------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE INFORMATION)
<S> <C> <C> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS
Interest income............................... $473,419 $449,891 $603,450 $613,181 $494,630 $515,647 $619,173
Interest expense.............................. 307,173 288,855 388,650 412,130 306,719 314,081 409,496
-------- -------- -------- -------- -------- -------- --------
Net interest income........................... 166,246 161,036 214,800 201,051 187,911 201,566 209,677
Provision for loan losses..................... 21,000 30,000 70,000 40,000 75,000 61,000 46,000
-------- -------- -------- -------- -------- -------- --------
Net interest income after provision for loan
losses...................................... 145,246 131,036 144,800 161,051 112,911 140,566 163,677
Other non-interest income..................... 37,437 37,858 50,105 57,619 42,924 60,293 64,669
SAIF recapitalization assessment.............. -- 41,978 41,978 -- -- -- --
Other non-interest expense.................... 120,387 124,699 163,576 167,033 171,790 196,622 207,978
-------- -------- -------- -------- -------- -------- --------
Income (loss) before provision for income
taxes (benefit) and cumulative effect of
accounting change........................... 62,296 2,217 (10,649) 51,637 (15,955) 4,237 20,368
Provision for income taxes (benefit).......... 17,164 1,020 (21,485) 18,835 (9,417) (12,999) (16,746)
-------- -------- -------- -------- -------- -------- --------
Income (loss) before cumulative effect of
accounting change........................... 45,132 1,197 10,836 32,802 (6,538) 17,236 37,114
Cumulative effect of change in accounting for
income taxes................................ -- -- -- -- -- -- 10,914
-------- -------- -------- -------- -------- -------- --------
Net income (loss)............................. $ 45,132 $ 1,197 $ 10,836 $ 32,802 $ (6,538) $ 17,236 $ 48,028
======== ======== ======== ======== ======== ======== ========
PER SHARE INFORMATION -- COMMON SHARES
Primary:
Income (loss) before cumulative effect of
accounting change......................... $ 2.32 $ 0.06 $ 0.56 $ 1.72 $ (0.35) $ 0.94 $ 2.27
Net income (loss)........................... 2.32 0.06 0.56 1.72 (0.35) 0.94 2.94
Fully diluted:
Income (loss) before cumulative effect of
accounting change......................... 2.30 0.06 0.56 1.71 (0.35) 0.94 2.25
Net income (loss)........................... 2.30 0.06 0.56 1.71 (0.35) 0.94 2.92
Dividends..................................... -- -- -- -- -- -- --
</TABLE>
20
<PAGE> 27
SELECTED UNAUDITED PRO FORMA COMBINED FINANCIAL DATA
The following table sets forth selected unaudited pro forma financial data
of Ahmanson giving effect to the Merger as if it occurred as of the beginning of
the periods indicated below, after giving effect to the pro forma adjustments
described in the Notes to Pro Forma Combined Financial Statements. The Merger
will be accounted for under the purchase method of accounting. Such selected
unaudited pro forma financial data should be read in conjunction with the
Ahmanson and Coast unaudited pro forma combined financial information, including
the notes thereto, appearing elsewhere in this Proxy Statement/Prospectus. The
unaudited pro forma combined financial information does not give effect to any
anticipated cost savings or revenue enhancements in connection with the Merger.
The unaudited Pro Forma Combined Statement of Financial Condition is not
necessarily indicative of the actual financial position that would have existed
had the Merger been consummated as of the date indicated below, or that may
exist in the future. The unaudited Pro Forma Combined Statement of Operations is
not necessarily indicative of the results that would have occurred had the
Merger been consummated for the periods presented or that may be achieved in the
future. See "Incorporation of Certain Information by Reference" and "Ahmanson
and Coast Unaudited Pro Forma Combined Financial Information."
<TABLE>
<CAPTION>
AT SEPTEMBER 30, 1997
----------------------------------------
HISTORICAL
-------------------------- PRO FORMA
AHMANSON COAST COMBINED
-------- ------------- ---------
(IN MILLIONS)
<S> <C> <C> <C>
CONSOLIDATED BALANCE SHEET DATA
MBS................................................... $13,157 $ 2,068 $15,236
Loans receivable...................................... 30,684 6,068 36,764
Goodwill and core deposit intangibles................. 286 5 707
Assets................................................ 46,799 9,040 56,278
Deposits.............................................. 32,447 6,446 38,903
Borrowings............................................ 10,576 1,989 12,571
Stockholders' equity.................................. 2,386 470 3,237
</TABLE>
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, 1997 YEAR ENDED DECEMBER 31, 1996
---------------------------- ----------------------------
HISTORICAL PRO HISTORICAL PRO
----------------- FORMA ----------------- FORMA
AHMANSON COAST COMBINED AHMANSON COAST COMBINED
-------- ------ -------- -------- ------ --------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C>
CONSOLIDATED SUMMARY OF OPERATIONS
Net interest income................... $ 928 $ 166 $1,095 $1,253 $ 215 $1,469
Provision for loan losses............. 57 21 78 145 70 215
Non-interest income................... 265 37 302 252 50 302
Non-interest expense.................. 635 120 772 1,179 206 1,408
Net income............................ 314 45 345 146 11 139
PER COMMON SHARE -- FULLY DILUTED
Net income............................ 2.69 2.30 2.61 0.91 0.56 0.74
Dividends declared.................... 0.66 -- 0.66 0.88 -- 0.88
WEIGHTED AVERAGE COMMON SHARES
OUTSTANDING -- FULLY DILUTED.......... 112.4 19.6 127.5 109.7 19.3 124.8
</TABLE>
21
<PAGE> 28
RISK FACTORS
Stockholders should carefully consider the following risk factors, as well
as all the other information set forth in this Proxy Statement/Prospectus
regarding the CPR Certificates.
CONTROL OF THE LITIGATION
The CPR Trust Agreement will provide that the Litigation Trustees will
instruct Coast Federal (and its successors) with respect to the Litigation and
may, among other things, instruct Coast Federal (and its successors) to dismiss,
settle or cease prosecuting the Litigation at any time without regard to the
impact of any such settlement on the value of the CPR Certificates and without
obtaining any cash or other recovery. Coast will be obligated to instruct Coast
Federal to follow these instructions other than instructions that are not
reasonable. There can be no assurance that Coast or Coast Federal will comply
with the instructions of the Litigation Trustees. The CPR Trust Agreement will
also provide that Ahmanson and Home Savings will have no liability to the
holders of the CPR Certificates and that the holders of CPR Certificates will
not have any rights against Ahmanson, Home Savings or the Litigation Trustees
for any decision regarding the conduct or disposition of the Litigation,
including, without limitation, any decision to dispose of the Litigation without
obtaining a cash or other recovery (unless, in the case of the Litigation
Trustees only, it is established in a final judicial determination by clear and
convincing evidence that any decision or action of the Litigation Trustees was
undertaken with deliberate intent to injure the CPR Certificate holders or with
reckless disregard for the best interests of such holders, and, in any event,
any liability will be limited to actual, proximate, quantifiable damages).
Although the Litigation Trustees currently intend to cause Coast Federal to
continue to prosecute the Litigation and to seek a cash recovery, there can be
no assurance that the Litigation Trustees will not make a different
determination in the future. There is also no assurance that any of the initial
Litigation Trustees, who are four current senior Coast executives (Ray Martin,
Robert L. Hunt II, Norman H. Raiden and James F. Barritt) with knowledge of the
facts underlying the Litigation, will remain a Litigation Trustee, and the
holders of the CPR Certificates will have no rights to elect, remove or replace
any Litigation Trustee.
ESTABLISHING THE FEDERAL GOVERNMENT'S LIABILITY IN THE LITIGATION
Coast Federal has asserted two principal legal theories to support its
claims in the Litigation against the United States: first, Coast Federal
maintains that the United States breached its contractual commitment with Coast
Federal regarding the computation of Coast Federal's regulatory capital; and
second, Coast Federal argues that changes to such computation methods
constituted an unlawful taking of its property without just compensation or due
process, in violation of the U.S. Constitution. There can be no assurance that
Coast Federal will prevail in establishing the federal government's liability
under either of such legal theories. In a decision involving three consolidated
Related Cases (as defined in "The CPR Trust and the CPR Certificates -- The
Litigation -- Related Cases") (each of which involved somewhat different
contractual documentation) that present issues which Coast Federal believes are
similar in certain respects to those presented by the Litigation, the U.S.
Supreme Court (the "Supreme Court") held that the United States was liable for
the breach of contracts between the plaintiffs in those cases and the United
States by discontinuing certain promised regulatory capital treatment of the
plaintiff institutions. See "The CPR Trust and the CPR Certificates -- The
Litigation." While Coast Federal believes that the contractual documentation and
language relating to its 1987 thrift acquisition present similarities to the
contractual fact pattern presented in the Related Cases, there can be no
assurance that Coast Federal will prevail in the Litigation on its breach of
contract claim. In addition, the Supreme Court did not consider the merits of
the "unlawful taking" theory in the Related Cases, and there can be no assurance
that the plaintiffs in the Related Cases or Coast Federal would ultimately
prevail on that theory. On March 25, 1993, Coast Federal filed a motion for
partial summary judgment as to the federal government's liability to Coast
Federal for breach of contract. This motion remains pending.
AMOUNT OF DAMAGES
The Litigation, the Related Cases and other similar claims present issues
as to the amount, if any, and type of damages that may be recoverable by the
plaintiffs. The Litigation and the litigation of the Related
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Cases have to date focused on liability issues, and there has been no final
ruling to date with respect to the amount or scope of damages. Although Coast
Federal has conducted preliminary reviews of the damages suffered by it, it has
not specified the amount or type of damages it seeks in the Litigation. The
United States has argued in the Related Cases that some or all of the damages as
to which recovery is sought by the plaintiffs in the Related Cases are too
speculative to permit a recovery. Trial of the damage phase of two of the
Related Cases will occur prior to trial of Coast Federal's damage claims, and
rulings in the Related Cases may adversely affect some or all of Coast Federal's
damage claims. In addition, other cases representing similar claims are
scheduled for trial before Coast Federal's case is likely to go to trial, and
rulings in those cases may also adversely affect some or all of Coast Federal's
damage claims. For these and related reasons, even if Coast Federal prevails in
establishing the liability of the United States, there can be no assurance as to
the amount, if any, and type of damages that it may recover. Without limiting
the generality of the foregoing, there can be no assurance that Coast Federal
will obtain any monetary recovery in the Litigation. Nor if there is recovery is
there any assurance as to the timing of the recovery, which could be very
lengthy. Furthermore, assuming that there is a monetary recovery, it is
impossible to predict the Commitment Amount because the fees, costs, taxes and
tax benefits associated with the calculation of the Commitment Amount cannot
presently be estimated and could substantially exceed the amount of the Expense
Fund. To the extent that Coast Federal must engage in protracted litigation,
such fees and costs may increase significantly.
PAYMENTS, IF ANY, TO CPR CERTIFICATE HOLDERS
No assurance can be given as to how or when the Litigation will be resolved
and when, if ever, Coast Federal will receive a cash or other payment in respect
of the Litigation, or whether the value of any such recovery will exceed the CPR
Trust's reimbursement obligations and any other CPR Trust expenses. Even if the
Litigation is prosecuted to an initial favorable judgment, any such initial
favorable judgment in the Litigation is likely to be appealed by the federal
government. Any Litigation Proceeds received will first be applied by Ahmanson
to the Reimbursements. In addition, after it receives a payment of the
Commitment Amount from Ahmanson, the CPR Trust will be obligated to hold (and
not distribute to the holders of the CPR Certificates) the Retained Amount (as
defined herein) for two years (or such longer period as the Litigation Trustees
reasonably determine may be reasonably likely to be required) to cover all
expenses, costs and claims and the indemnification obligations of the CPR Trust
which may be incurred or which may arise after the Commitment Amount is paid in
full. See "The CPR Trust and the CPR Certificates -- Description of the CPR
Certificates -- The Expense Fund, Other Expenses and the Retained Amount."
Even in the event that a favorable final judgment or settlement is
obtained, it is possible that some or all damages will be in the form of
Non-Cash Proceeds, in which case Ahmanson will be obligated to monetize such
Non-Cash Proceeds pursuant to the instructions of the Litigation Trustees. No
assurance can be provided that Ahmanson will be able to convert such Non-Cash
Proceeds into cash or, even if this is possible, that the cash obtained will be
the equivalent of the fair market value of the Non-Cash Proceeds.
Even in the event that Cash Proceeds or monetizable Non-Cash Proceeds that
exceed the amount of the Reimbursements are received, there is no assurance that
Ahmanson will have funds sufficient to pay any portion of the Commitment Amount
to the CPR Trust when due. There is also no assurance that Ahmanson will be able
to, or be permitted under then applicable laws, rules or regulations to cause
Coast Federal or, in the event of a merger between Coast Federal and Home
Savings, Home Savings to, transfer the Litigation Proceeds to Ahmanson so as to
provide funds to Ahmanson to pay the Commitment Amount. In addition, pursuant to
the Commitment, Ahmanson will not be obligated to pay the Commitment Amount or
any portion thereof at the Due Date (as defined herein) and for a period of two
years thereafter (and will be deemed not to be in default of the Commitment and
not to have violated its obligations thereunder by virtue of not having paid the
Commitment Amount or such portion thereof) to the extent that Home Savings is
not permitted due to regulatory restrictions to distribute to Ahmanson the
Litigation Proceeds and provided that certain other conditions are met (although
Ahmanson will be obligated to pay interest on the Commitment Amount or such
portion thereof, as the case may be, from the Due Date until the date the
Commitment Amount or such portion thereof is paid, calculated at an annual
interest rate equal to the Reference Rate plus 250 basis points).
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<PAGE> 30
In addition, applicable laws, rules or regulations governing savings and loan
holding companies then in effect could limit or prevent the payment of the
Commitment Amount by Ahmanson to the CPR Trust.
Although Ahmanson will be obligated under the Commitment to pay the
Commitment Amount to the CPR Trust, the Commitment, the CPR Trust Agreement and
the CPR Certificates will provide that no CPR Certificate holder will have the
right to enforce, institute or maintain any suit, action or proceeding against
any member of the Ahmanson Group for a breach of such obligation. The CPR Trust,
or the Litigation Trustees on behalf of the CPR Trust, however, will be
authorized to enforce, institute or maintain a suit, action or proceeding
against Ahmanson for breach of the Commitment.
ADEQUACY OF EXPENSE FUND
Amounts in the Expense Fund will be applied to a variety of expenses,
including the costs of prosecuting the Litigation (including the fees and
expenses of counsel, experts and consultants), compensation of the Institutional
Trustee, the Delaware Trustee and the Litigation Trustees, the CPR Trust's
indemnification obligations (see "The CPR Trust and the CPR Certificates -- The
CPR Certificates -- Indemnification Obligations of the CPR Trust; Liability
Insurance") and liability insurance for the CPR Trust's indemnification
obligations and any liabilities of the Litigation Trustees. There is no
assurance that the Expense Fund will be sufficient to cover such fees and
expenses, and to the extent that Coast Federal must engage in protracted
litigation, such fees and expenses may increase significantly.
Coast and counsel for the Litigation ("Litigation Counsel") have a
tentative understanding for a contingent fee arrangement pursuant to which
Litigation Counsel would defer or waive certain fees that they would otherwise
be entitled to receive and, in consideration thereof, they would be entitled to
receive from the CPR Trust an amount equal to 1% of the Commitment Amount, which
payment to Litigation Counsel would reduce the Payment Amount to be paid to
holders of CPR Certificates. However, there can be no assurance that a
contingent fee arrangement will be entered into on such terms or on any other
terms. Any contingent payment by the CPR Trust could significantly increase the
CPR Trust's expenses and thus significantly reduce the Payment Amount with
respect to the CPR Certificates.
The CPR Trust may issue additional CPR Certificates that represent pro rata
interests in the assets of the CPR Trust in order to pay expenses. However, it
may not be possible to obtain purchasers of the additional CPR Certificates and
there is no assurance that the terms of any such purchases would be reasonable.
In the event additional CPR Certificates are issued and existing CPR Certificate
holders are not given the opportunity to purchase, or do not purchase a pro rata
amount in such issuance, such CPR Certificate holders' indirect interest in the
Payment Amount will be diluted. The CPR Trust will be authorized to borrow
additional funds for the sole purpose of funding expenses of the CPR Trust, but
only if such borrowings represent debt of the CPR Trust (and not ownership
interests) for federal income tax purposes. Furthermore, it may not be possible
for the CPR Trust to borrow funds (or, if it is able to borrow funds, there can
be no assurance that the terms of such borrowings will be reasonable).
LIMITATION ON RIGHTS OF CPR CERTIFICATE HOLDERS
The CPR Trust Agreement and the CPR Certificates will provide that the
Litigation Trustees will have no liability to CPR Certificate holders unless it
is established in a final judicial determination by clear and convincing
evidence that any action or omission of the Litigation Trustees was undertaken
with deliberate intent to injure the CPR Certificate holders or with reckless
disregard for the best interests of such holders, and, in any event, any
liability will be limited to actual, proximate, quantifiable damages. In
addition, the CPR Trust Agreement will provide that the Institutional Trustee
and the Delaware Trustee to the CPR Trust will have no liability to the CPR
Certificate holders other than for acts or omissions committed with gross
negligence or willful misconduct.
The CPR Trust Agreement and the CPR Certificates will provide that no CPR
Certificate holder will have the right to enforce, institute or maintain any
suit, action or proceeding against the Litigation Trustees or otherwise under
the CPR Trust Agreement to enforce or otherwise act in respect of the CPR
Certificates unless such holder has previously given written notice to the
Litigation Trustees of the substance of such
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dispute, and holders of at least a majority in interest of the issued and
outstanding CPR Certificates have given written notice to such parties of their
support of the institution of such proceeding to resolve such dispute.
The Commitment, the CPR Trust Agreement and the CPR Certificates will
provide that Ahmanson, Home Savings, their affiliates, officers, directors,
employees or agents will have no liability to the holders of the CPR
Certificates. Without limiting the generality of the foregoing, none of the CPR
Certificate holders, the Trustees or the CPR Trust will have the right to
enforce, institute or maintain any suit, action or proceeding against Ahmanson,
Home Savings, their affiliates, officers, directors, employees or agents
relating to the formation of the CPR Trust, the entering into of the Commitment,
the distribution of the CPR Certificates, the Litigation or the performance by
the Litigation Trustees of their duties as Litigation Trustees. Notwithstanding
the foregoing, the CPR Trust, or the Litigation Trustees on behalf of the CPR
Trust, may enforce, institute or maintain a suit, action or proceeding against
Ahmanson for breach of the Commitment or failure to deliver any CPR Certificate
required to be returned when so required or against Ahmanson for failure to
deposit the Expense Fund at the Effective Time in a non-interest bearing
demand-deposit account in the name of the CPR Trust or against Home Savings for
breach of any depository relationship obligations it may have with respect to
the Expense Fund.
The CPR Trust Agreement will provide that the CPR Certificate holders will
have no voting rights (except in connection with certain amendments to the CPR
Trust Agreement and except for limited rights in connection with the removal of
the institutional trustee and the Delaware trustee to the CPR Trust) no
liquidation preference and no rights to dividends or distributions other than
their pro rata share of the Payment Amount plus any other CPR Trust assets. In
addition, the CPR Trust will have no assets other than the Commitment and the
right to draw on amounts in the Expense Fund for the purpose of funding any
expenses of the CPR Trust.
NO EXISTING TRADING MARKET FOR THE CPR CERTIFICATES
There is no current market for the CPR Certificates. Coast, on behalf of
the CPR Trust, has applied for inclusion of the CPR Certificates on the NASDAQ
National Market System under the symbol "CCPR." No assurance can be given that
the CPR Certificates will satisfy the listing requirements for inclusion on the
NASDAQ National Market System or any other trading system. In the event that the
CPR Certificates cannot be listed on any trading system, there would likely be
only minimal or no trading channels for the CPR Certificates, resulting in
severely reduced or no liquidity for investors in the CPR Certificates. Even if
such listing is achieved, there can be no assurance that an active market for
the CPR Certificates will develop or be sustained. If such a market develops,
there can be no assurance as to the price at which the CPR Certificates would
trade at any time and such price could be subject to rapid and substantial
change, depending upon, among other things, developments in the Litigation and
similar pending litigation.
The price of the CPR Certificates may depend on a number of factors,
including, without limitation, the nature of court decisions and opinions in the
Litigation, the Related Cases and additional similar cases that may go to trial
prior to the Litigation and speculation about the outcome of the Litigation and
litigation of the Related Cases and similar cases, settlement of any Related
Cases or similar cases and Ahmanson's ability to pay the Commitment Amount to
the CPR Trust. Consequently, there could be wide fluctuations in the price of
CPR Certificates over short periods of time. The CPR Trust will include reports
of developments in the Litigation in its regular, periodic securities filings
and reports. In addition, the CPR Trust's ability to disclose details of the
Litigation on a regular basis may be limited by the inherent nature and rules of
judicial proceedings, including, among other things, proceedings and filings
that are sealed by the court, matters involving attorney-client privilege and
proceedings that are conducted on a confidential basis by agreement of the
parties, such as negotiations. However, important developments in the Litigation
and the Related Cases may occur and become known publicly prior to disclosure in
such filings or reports.
The nature of an investment in the CPR Certificates differs from the nature
of an investment in a savings and loan holding company such as Coast or
Ahmanson. Some current Coast stockholders may therefore determine that
investment in the CPR Certificates does not comport with their investment
policies or that such investment may be restricted by their charters (in the
case of corporate or institutional stockholders).
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Such determinations by significant Coast stockholders, or by a large number of
Coast stockholders, may result in rapid divestment of CPR Certificates by these
stockholders, causing temporary selling pressure that would adversely affect the
price of the CPR Certificates for some period following the Effective Time.
AVAILABILITY OF INFORMATION REGARDING DEVELOPMENTS IN THE LITIGATION
As described in "The CPR Trust and the CPR Certificates -- Filing of
Exchange Act Reports," the CPR Trust will file annual reports on Form 10-K and
quarterly reports on Form 10-Q that will include an overview of the status of
the Litigation, and will also file a report on Form 8-K upon the occurrence of a
material judicial decision in the Litigation or in the event of any agreement to
settle the Litigation. The CPR Trust's ability to disclose details of the
Litigation may be limited, however, by the inherent nature and rules of judicial
proceedings, including, among other things, proceedings and filings that are
sealed by the court, matters involving attorney-client privilege and proceedings
that are conducted on a confidential basis by agreement of the parties, such as
settlement negotiations.
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GENERAL INFORMATION
SPECIAL MEETING
This Proxy Statement/Prospectus is being furnished to the stockholders of
Coast in connection with the solicitation of proxies by the Coast Board for use
at the Special Meeting. The Special Meeting will be held at 10:00 a.m., on
February 12, 1998, and at any adjournments and postponements thereof, to
consider and vote upon the approval and adoption of the Transaction Proposal,
consisting of the Merger Agreement and the transactions contemplated thereby,
including the approval of the Merger, the establishment of and the terms of the
CPR Trust, the CPR Certificate Distribution, the engagement of the Litigation
Trustees (including the terms of their engagement) for the CPR Trust, the terms
of the Commitment and the rights of the holders of CPR Certificates.
Ahmanson Prospectus.
This Proxy Statement/Prospectus is also being furnished by Ahmanson as a
prospectus in respect of the shares of Ahmanson Common Stock to be issued to
stockholders of Coast in connection with the Merger and, following consummation
of the Merger, in respect of any shares of Ahmanson Common Stock that are
issuable upon exercise of the Coast Stock Options that were outstanding as of
the Effective Date and replaced with options to acquire shares of Ahmanson
Common Stock ("Replacement Options"). Based on the 19,262,934 shares of Coast
Common Stock outstanding on the Record Date, the 1,020,426 shares of Coast
Common Stock issuable upon exercise of outstanding stock options and assuming
the exercise of all such stock options prior to the Effective Time and the
Exchange Ratio of 0.8082, up to approximately 16,393,012 shares of Ahmanson
Common Stock will be issuable upon consummation of the Merger.
CPR Trust Prospectus.
This Proxy Statement/Prospectus is also being furnished by the CPR Trust as
a prospectus in respect of the CPR Certificates to be issued by the CPR Trust.
As of the Record Date, the number of CPR Certificates issuable in the CPR
Certificate Distribution to shareholders of record as of the Record Date would
be 19,262,934. The number of CPR Certificates issuable with respect to Coast
Stock Options outstanding on the Record Date would be 1,020,426 and the number
of CPR Certificates issuable with respect to Coast Performance Share Awards and
Coast SARs outstanding on the date of the Merger Agreement would be 420,457.
Based on these numbers, up to approximately 20,703,817 CPR Certificates will be
issuable by the CPR Trust immediately prior to the Effective Time.
RECORD DATE, SOLICITATION AND REVOCABILITY OF PROXIES
The Coast Board has fixed the close of business on December 23, 1997, as
the record date for determining the Coast stockholders entitled to receive
notice of and to vote at the Special Meeting. Only holders of record of Coast
Common Stock as of the Record Date are entitled to notice of and to vote at the
Special Meeting. As of the Record Date, 19,262,934 shares of Coast Common Stock
were issued and outstanding and held by 3,165 record holders. Holders of Coast
Common Stock are entitled to one vote on each matter considered and voted on at
the Special Meeting for each share of Coast Common Stock held of record at the
close of business on the Record Date. The presence, in person or by properly
executed proxy, of the holders of a majority of the shares of Coast Common Stock
entitled to vote at the Special Meeting is necessary to constitute a quorum at
the Special Meeting. For purposes of determining the presence of a quorum,
abstentions will be counted as shares present but shares represented by a proxy
from a broker or nominee indicating that such person has not received
instructions from the beneficial owner or other person entitled to vote shares
("broker nonvotes") will not be counted as shares present. Neither abstentions
nor broker non-votes will be counted as votes cast for purposes of determining
whether a proposal has received sufficient votes for approval.
Proxies in the form accompanying this Proxy Statement/Prospectus are being
solicited by the Coast Board. Shares of Coast Common Stock represented by
properly executed proxies that have not been revoked will be voted in accordance
with the instructions indicated on the proxies. If no instructions are
indicated, such
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proxies will be voted "FOR" approval of the Transaction Proposal, and as
determined by the proxies named therein to any other matter that may come before
the Special Meeting or any adjournment or postponement thereof including, among
other things, a motion to adjourn or postpone the Special Meeting to another
time and/or place, for the purpose of soliciting additional proxies or
otherwise; provided, however, that no proxy which is voted against the proposal
to approve the Merger Agreement will be voted in favor of any such adjournment
or postponement for the purpose of soliciting additional proxies.
A Coast stockholder who has given a proxy may revoke it at any time prior
to its exercise at the Special Meeting by (a) giving written notice of
revocation to the Secretary of Coast, (b) properly submitting to Coast a duly
executed proxy bearing a later date or (c) voting in person at the Special
Meeting. All written notices of revocation and other communications with respect
to revocation of proxies should be addressed to Coast as follows: 1000 Wilshire
Boulevard, Los Angeles, California 90017, Attention: Secretary (Telephone: (213)
362-2000). A proxy appointment will not be revoked by death or supervening
incapacity of the stockholder executing the proxy unless, before the shares are
voted, notice of such death or incapacity is filed with Coast's Secretary or
other person responsible for tabulating votes on behalf of Coast.
The expense of soliciting proxies for the Special Meeting will be paid for
by Coast, although pursuant to the Merger Agreement, Ahmanson has agreed to
share equally with Coast all filing fees and printing expenses payable in
connection with the Registration Statements and this Proxy Statement/Prospectus.
In addition to the solicitation of stockholders of record by mail, telephone or
personal contact, Coast will be contacting brokers, dealers, banks and voting
trustees or their nominees who can be identified as record holders of Coast
Common Stock; such holders, after inquiry by Coast, will provide information
concerning the quantity of proxy and other materials needed to supply such
materials to beneficial owners, and Coast will reimburse them for the expense of
mailing the proxy materials to such persons.
Coast has retained D. F. King & Co., Inc. ("D. F. King") to assist Coast in
connection with its communications with its stockholders with respect to, and to
provide other services to Coast in connection with, the Special Meeting. D. F.
King will receive a fee of $3,500 for its services and reimbursement of out-of-
pocket expenses in connection therewith. Coast has agreed to indemnify D. F.
King against certain liabilities arising out of or in connection with its
engagement.
VOTE REQUIRED
Approval of the Transaction Proposal requires the affirmative vote of the
holders of a majority of the outstanding shares of Coast Common Stock. A vote of
the stockholders of Ahmanson is not required under the DGCL or the rules of the
NYSE for approval of the Merger Agreement or consummation of the transactions
contemplated thereby.
As of the Record Date, Coast directors and executive officers and their
affiliates held approximately 0.91% of the outstanding shares of Coast Common
Stock entitled to vote at the Special Meeting. Such persons have indicated to
Coast that they intend to vote in favor of the Transaction Proposal. As of the
Record Date, Ahmanson held 100 shares of Coast Common Stock and directors and
executive officers of Ahmanson and their affiliates held no shares of Coast
Common Stock. See "The Merger -- Interests of Certain Persons in the Transaction
Proposal."
RECOMMENDATION OF COAST BOARD OF DIRECTORS
For the reasons described in the section of this Proxy Statement/Prospectus
entitled "The Merger -- Reasons of Coast for the Merger," the Coast Board has
unanimously approved the Transaction Proposal and adopted the Merger Agreement.
The Coast Board believes that approval of the Transaction Proposal, consisting
of the Merger Agreement and the transactions contemplated thereby, including the
approval of the Merger, the establishment of and the terms of the CPR Trust, the
CPR Certificate Distribution, the engagement of the Litigation Trustees
(including the terms of their engagement) for the CPR Trust, the terms of the
Commitment and the rights of the holders of CPR Certificates, is in the best
interests of Coast and its stockholders and unanimously recommends that the
stockholders of Coast vote "FOR" approval of the Transaction Proposal. As a
result of the difficulty in establishing the value of the Litigation for
purposes of the
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Merger, the Coast Board determined that the ultimate value of the Litigation
should be retained by Coast's stockholders in connection with the Merger and,
thus, the Coast Board, as an integral part of its approval of the Transaction
Proposal, approved the establishment of the CPR Trust, the terms of the CPR
Certificates and the Commitment, the CPR Certificate Distribution and related
matters. See "The Merger -- Background of the Merger," "-- Reasons of Coast for
the Merger" and "-- Interests of Certain Persons in the Transaction Proposal."
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THE MERGER
The following information describes certain information pertaining to the
Merger and the other transactions contemplated by the Merger Agreement. This
description does not purport to be complete and is qualified in its entirety by
reference to the Appendices hereto, including the Merger Agreement, the form of
CPR Trust Agreement and the form of Commitment, which are attached as Appendices
A, B and C hereto, respectively, and are incorporated herein by reference. All
stockholders are urged to read the Appendices in their entirety.
GENERAL
The Merger Agreement provides for a transaction in which Coast will merge
with and into Ahmanson. Ahmanson will be the surviving corporation of the
Merger. If the Transaction Proposal is approved at the Special Meeting, all
required governmental and other consents and approvals are obtained and all of
the other conditions to the obligations of the parties to consummate the Merger
are either satisfied or waived (if permitted), the CPR Distribution will be
effected and, immediately thereafter, the Merger will be consummated. A copy of
the Merger Agreement is set forth as Appendix A to this Proxy
Statement/Prospectus.
MERGER CONSIDERATION; EXCHANGE RATIO; COMMITMENT
Merger Consideration; Exchange Ratio.
The Merger Consideration pursuant to the Merger Agreement consists of (a)
the shares of Ahmanson Common Stock issuable in exchange for the outstanding
shares of Coast Common Stock pursuant to the Merger Agreement, and cash in lieu
of fractional share interests, and (b) the entering into of the Commitment by
Ahmanson. At the Effective Time, each share of issued and outstanding Coast
Common Stock, together with each associated Coast Right, will cease to be
outstanding and each such share (other than (i) certain shares, if any, held by
Coast, Ahmanson or their subsidiaries and (ii) Dissenters' Shares, if any) will
be converted into and exchanged for 0.8082 of a share of Ahmanson Common Stock
(with the appropriate number of Ahmanson Rights as provided in the Ahmanson
Rights Plan). In addition, Ahmanson will enter into the Commitment with the CPR
Trust at the Effective Time and effective at the Effective Time.
Commitment.
Ahmanson will enter into the Commitment, substantially in the form attached
hereto as Appendix C, with the CPR Trust at the Effective Time and effective at
the Effective Time. The Commitment will obligate Ahmanson to pay to the CPR
Trust from time to time an aggregate amount equal to the Commitment Amount. As
used in this Proxy Statement/Prospectus, the Commitment Amount means the
Litigation Proceeds minus the Reimbursements plus the Assumed Tax Benefit.
Litigation Proceeds means any and all cash payments (the "Cash Proceeds")
actually received by the Ahmanson Group pursuant to a final, non-appealable
judgment or a final settlement of the Litigation and the non-cash payments (the
"Non-Cash Proceeds"), if any, actually received by the Ahmanson Group pursuant
to a final, non-appealable judgment or a final settlement of the Litigation.
Reimbursements means (a) an amount equal to the Expense Fund plus (b) interest
on the portions of the Expense Fund withdrawn by the CPR Trust calculated from
the time of any such withdrawal at an annual interest rate equal to the
Reference Rate in effect from time to time plus 250 basis points, compounded
quarterly plus (c) the Assumed Tax Liability plus (d) in the event Litigation
Proceeds are required to be included in income for federal income tax purposes
in a taxable year prior to the year such proceeds are received in cash (either
because of the accrual of Cash Proceeds before the payment thereof or the time
required to liquidate Non-Cash Proceeds), interest at the Reference Rate plus
250 basis points from the date of such payment of taxes on such income to the
date of receipt of cash. The Expense Fund means an amount equal to $20 million,
less the expenses relating to the Litigation incurred and paid between August
31, 1997 and the Effective Date, which amount Ahmanson will deposit at the
Effective Time in a non-interest bearing demand-deposit account in the name of
the CPR Trust at Home Savings. See "The CPR Trust and the CPR
Certificates -- The Commitment."
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Assumed Tax Liability; Assumed Tax Benefit; Tax Assumptions.
Pursuant to the Commitment, regardless of any position taken by the
Ahmanson Group on any tax return or in any claim for refund with respect to the
receipt of the Litigation Proceeds or payments of the Commitment Amount (or of
the actual payment or actual receipt of any taxes with respect thereto), the
Assumed Tax Liability will, (i) if there is no Determination, be computed based
on the Tax Assumptions and (ii) if there is a Determination to the effect that
Litigation Proceeds are not includible in gross income in whole or in part, be
computed on the basis of the Tax Assumptions as such Tax Assumptions are
modified by such Determination. In addition, pursuant to the Commitment,
regardless of any position taken by the Ahmanson Group on any tax return or in
any claim for refund with respect to the receipt of the Litigation Proceeds or
payments of the Commitment Amount (or of the actual payment or actual receipt of
any taxes with respect thereto), the Assumed Tax Benefit will, (i) if there is
no Determination, be computed based on the Tax Assumptions and (ii) if there is
a Determination that no deduction is allowed (or that any allowed deduction is
limited) with respect to the application of Section 483(a) to payments of the
Commitment Amount, be computed on the basis of the Tax Assumptions as such Tax
Assumptions are modified by such Determination.
As used herein, the "Assumed Tax Liability" means an amount equal to the
income (including franchise) tax liability of the Ahmanson Group (not giving
effect to any deductions attributable to payments of the Commitment Amount)
attributable to the receipt of the Litigation Proceeds computed in the manner
set forth above. As used herein, the "Assumed Tax Benefit" means an amount equal
to the tax benefit that would be allowed to the Ahmanson Group under Section
483(a) of the Code computed in the manner set forth above.
As used herein, the "Tax Assumptions" means (i) if there is no
Determination, the following assumptions, or (ii) if there is a Determination,
the following assumptions as modified by such Determination:
(a) The Litigation Proceeds will be includible in gross income as
ordinary income in full.
(b) Payments of the Commitment Amount will not be deductible except
that Section 483(a) will apply to payments of the Commitment Amount, other
than those allocable to CPR Certificates issued on exercise of employee
options or otherwise in a transaction that is not a sale or exchange, and
payments of the Commitment Amount will be deductible to the extent treated
by Section 483(a) as interest expense; it being understood that it is not
intended that the distribution of the CPR Certificates immediately prior to
the Effective Time of the Merger will result in the characterization of
such distribution as not constituting "a sale or exchange."
(c) The income tax liability attributable to the assumed inclusion of
all or a portion of the Litigation Proceeds in gross income as ordinary
income and the benefit of any deduction assumed to be allowed under Section
483(a) will be (i) the product of the amount of such income or deduction
and the highest statutory rate of federal income tax applicable to
corporations for the year in which the income is assumed to be included or
the deduction is assumed to be realized plus (ii) the product of such
income or deduction and the net combined marginal rate of state and local
income (or franchise) tax of the relevant member or members of the Ahmanson
Group for the year in which the income is assumed to be included and the
deduction is assumed to be realized, net of the federal income tax benefit
(calculated based on the rate in clause (i)) of such state or local income
(or franchise) tax. The relevant member or members of the Ahmanson Group
will be the member or members that is or are assumed to include the
Litigation Proceeds in income or is or are assumed to be allowed a
deduction under Section 483(a).
(d) Any benefit from any deduction allowable to the Ahmanson Group
under paragraph (c) of these Tax Assumptions for payments of the Commitment
Amount will be assumed to be realized (i) when those payments are made to
the extent those payments do not exceed the Litigation Proceeds included in
income for the same taxable year, or (ii) otherwise when, taking into
account other deductions or losses or credits of the Ahmanson Group, the
deduction would reduce the tax otherwise payable or result in a refund of
tax already paid.
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(e) Ahmanson will be entitled to rely on a written opinion (with a
copy of such opinion to the Litigation Trustees) of either Sullivan &
Cromwell or another nationally recognized law firm with expertise on the
matter on which the opinion is sought that is selected by Ahmanson and
(unless such law firm is principal outside tax counsel to Ahmanson)
reasonably acceptable to the Litigation Trustees in determining whether
there has been a Determination and in otherwise applying the Tax
Assumptions to determine the income (including franchise) tax liability of
the Ahmanson Group attributable to the receipt of the Litigation Proceeds
and payments of the Commitment Amount and any tax benefit attributable to
payments of the Commitment Amount.
(f) If the Assumed Tax Liability or the Assumed Tax Benefit cannot be
computed at the time of the receipt of the Cash Proceeds or a payment of
the Commitment Amount because of the absence of information as to tax rates
and other factors described in the definition of Assumed Tax Liability or
the definition of Assumed Tax Benefit, as the case may be, the Ahmanson
Group will compute a tentative Assumed Tax Liability or a tentative Assumed
Tax Benefit, as the case may be, which are consistent with respect to the
Assumed Tax Liability and the Assumed Tax Benefit, that in the reasonable
opinion of the Ahmanson Group would protect the Ahmanson Group against any
risk of loss. The payment of the Commitment Amount will be based on such
tentative Assumed Tax Liability or such tentative Assumed Tax Benefit
computation, as the case may be. As soon as feasible, but in no event later
than 12 months after the end of the taxable year in which the Commitment
Amount is paid, the Ahmanson Group will recompute the Assumed Tax Liability
or the Assumed Tax Benefit, as the case may be, and pay to the CPR Trust
any excess of the re-computed Commitment Amount over the Commitment Amount
that was initially calculated plus interest for the period over which the
payment was deferred at a rate of Home Savings' cost of funds as submitted
monthly to the Federal Home Loan Bank of San Francisco (the "FHLBSF").
Under the Commitment, a Determination that Litigation Proceeds are not
includible in gross income in whole or in part will be deemed to be made on the
earlier of (a) the date a final judicial determination to such effect, binding
upon Coast Federal (or its Successor) is made in the Litigation, (b) the date a
final agreement to which Ahmanson is a party with the federal government to such
effect is entered into at the direction of the Litigation Trustees as part of
the resolution of the Litigation or a related Internal Revenue Service ("IRS")
ruling to such effect issued to a member of the Ahmanson Group in connection
with such agreement (it being understood that the Ahmanson Group will be under
no obligation to seek such a ruling or refund or enter into such an agreement;
provided that if requested the Ahmanson Group will enter into such an agreement
if such agreement does not impose any liability or obligation whatsoever (other
than a standard settlement release relating only to the Litigation or other
related claims that Coast or Coast Federal or Coast's stockholders might have
been able to bring as of immediately prior to the Merger) on the Ahmanson Group
or adversely affect or restrict the conduct of its business or adversely affect
its tax posture with respect to other matters) and (iii) the effective date of a
law, regulation or IRS ruling to such effect that applies to Ahmanson or
taxpayers generally, and would be applicable to claims against the federal
government arising out of capital credits affected by Financial Institutions
Reform, Recovery and Enforcement Act of 1989 ("FIRREA"). Notwithstanding the
foregoing, no such Determination will be deemed to be made unless it is made
prior to the earlier of (x) thirty days before the date of filing by the
Ahmanson Group of the federal tax return for the taxable year in which the
Litigation Proceeds are assumed to be includible in gross income or (y) the
receipt by the Ahmanson Group of the Litigation Proceeds.
Under the Commitment, a Determination with respect to the application of
Section 483(a) to payments of the Commitment Amount will be deemed to be made on
the earlier of (i) the date a final judicial determination to such effect
binding upon Ahmanson is made in the Litigation, (ii) the date a final agreement
to which Ahmanson is a party with the federal government to such effect is
entered into at the direction of the Litigation Trustees as part of the
resolution of the Litigation or a related IRS ruling to such effect issued to a
member of the Ahmanson Group in connection with such agreement (it being
understood that the Ahmanson Group will be under no obligation to seek such a
ruling or refund or enter into such an agreement; provided that if requested the
Ahmanson Group will enter into such an agreement if such agreement does not
impose any liability or obligation whatsoever (other than a standard settlement
release relating only to the Litigation
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or other related claims that Coast or Coast Federal or Coast's stockholders
might have been able to bring as of immediately prior to the Merger) on the
Ahmanson Group or adversely affect or restrict the conduct of its business or
adversely affect its tax posture with respect to other matters) and (iii) the
effective date of a law, regulation or IRS ruling or a judicial decision to such
effect that applies to Ahmanson or taxpayers generally. A deduction shall be
considered allowed under Section 483(a) to the extent that a deduction is
allowed, in an amount up to the deduction calculated under Section 483(a), under
another substantially equivalent provision. Notwithstanding the foregoing, no
such Determination will be deemed to be made with respect to any payment of the
Commitment Amount unless such Determination is made prior to (i) the end of the
30th day following the delivery to the CPR Trust of the Ahmanson Certificate (as
defined herein) with respect to such payment of the Commitment Amount, if the
CPR Trust does not deliver a Notice of Objection within such 30-day period with
respect to such Ahmanson Certificate, or (ii) the Resolution (as defined herein)
with respect to such payment of the Commitment Amount, if the CPR Trust delivers
a Notice of Objection within such 30-day period with respect to such Ahmanson
Certificate. Subject to a Determination, the parties intend to treat a portion
of each payment of the Commitment Amount as interest to the extent such payment
is treated as interest under Section 483(a).
Ahmanson will have no obligation to take or to refrain from taking any
action that would or could reduce the income tax liability of the Ahmanson Group
in respect of the Litigation Proceeds or obtain income tax benefits in respect
thereof on related payments.
Payment Procedures With Respect to the Commitment Amount.
Pursuant to the Commitment, within 10 days of the receipt by the Ahmanson
Group of any Litigation Proceeds, Ahmanson will deliver to the Litigation
Trustees a written notice (the "Proceeds Notice") specifying that such
Litigation Proceeds have been received and describing the type and amount of any
Non-Cash Proceeds received. Within 10 days of the delivery of the Proceeds
Notice, the Litigation Trustees will deliver to Ahmanson written instructions to
liquidate the Non-Cash Proceeds received. If so instructed, Ahmanson will then
liquidate or cause to be liquidated the Non-Cash Proceeds in accordance with the
instructions. As promptly as practicable but in no event later than 30 days
after the later of the receipt by Ahmanson of the Litigation Proceeds and the
liquidation by Ahmanson of Non-Cash Proceeds, Ahmanson will deliver to the
Litigation Trustees a certificate (the "Ahmanson Certificate") setting forth the
calculation of the portion of the Commitment Amount with respect to such
Litigation Proceeds, which Ahmanson Certificate will be valid and binding absent
manifest error. The Ahmanson Certificate will set forth each of the items
required under the Commitment to calculate the Commitment Amount, including the
amount of Litigation Proceeds and the amount of (and calculation of) each
component of the Reimbursements and the assumptions underlying the determination
of each item, and Ahmanson will attach to the Ahmanson Certificate financial and
other documentation reasonably sufficient to support each item and assumption
used to calculate the Commitment Amount. Within 30 days of delivery of the
Ahmanson Certificate, the CPR Trust will give written notice specifying whether
it agrees or objects (a "Notice of Agreement" and a "Notice of Objection,"
respectively) to the calculation in the Ahmanson Certificate of the portion of
the Commitment Amount with respect to such Litigation Proceeds (a "Notice of
Agreement" and a "Notice of Objection," respectively). If the CPR Trust delivers
a Notice of Agreement to the effect that it agrees with the calculation,
Ahmanson will then deliver the portion of the Commitment Amount with respect to
such Litigation Proceeds to the institutional trustee for the CPR Trust within 5
business days of such Notice of Agreement. If the CPR Trust delivers a Notice of
Objection within such 30-day period, Ahmanson will deliver such portion of the
Commitment Amount only upon a Resolution.
If the CPR Trust delivers a Notice of Objection within such 30-day period,
the CPR Trust will as promptly as practicable following delivery of the Notice
of Objection deliver to Ahmanson a certificate (the "CPR Calculation
Certificate") setting forth its calculation of such portion of the Commitment
Amount. The CPR Calculation Certificate will set forth each of the items
required under the Commitment to calculate such portion of the Commitment
Amount, including the amount of Litigation Proceeds and the amount of (and
calculation of) each component of the Reimbursements and the assumptions
underlying the determination of each item, and the CPR Trust will attach to the
CPR Calculation Certificate financial and other
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documentation reasonably sufficient to support each item and assumption used to
calculate such portion of the Commitment Amount. If Ahmanson does not agree with
the CPR Trust's calculation of such portion of the Commitment Amount, then
within 10 business days of the delivery by the CPR Trust of the CPR Calculation
Certificate, Ahmanson and the CPR Trust will submit the calculation of the
Commitment Amount to a mutually agreed upon independent certified public
accountant (the "Accountant"). If Ahmanson and the CPR Trust cannot agree upon
such independent certified public accountant, then the Commitment will provide
that the Accountant will be Price Waterhouse. The Accountant will be instructed
to determine whether the calculation set forth in the Ahmanson Certificate
contained manifest error and the Accountant will be instructed to conclude (i)
that the calculation set forth in the Ahmanson Certificate does not contain
manifest error so long as the calculation is a reasonable calculation of such
portion of the Commitment Amount based upon a reasonable interpretation of the
provisions of the Commitment and (ii) that the calculation set forth in the
Ahmanson Certificate contains manifest error if the calculation is not a
"reasonable calculation of such portion of the Commitment Amount based upon a
reasonable interpretation of the provisions of the Commitment." If the
Accountant determines (a) that the calculation set forth in the Ahmanson
Certificate did not contain manifest error, such portion of the Commitment
Amount will be as calculated in the Ahmanson Certificate or (b) that the
calculation set forth in the Ahmanson Certificate did contain manifest error,
the Accountant will recompute such portion of the Commitment Amount based upon
the formulae and definitions set forth in the Commitment and described herein
and the Accountant's calculation will be binding on both Ahmanson and Coast (in
either of case (a) or (b), a "Resolution"). In the event it is determined that
Ahmanson's calculation contained manifest error, in addition to such portion of
the Commitment Amount, Ahmanson will pay to the CPR Trust interest on such
portion of the Commitment Amount calculated from the date that the CPR Trust
delivered its Notice of Objection at an annual interest rate equal to the
Reference Rate plus 250 basis points. If the CPR Trust delivers a Notice of
Objection with respect to the payment of any portion of the Commitment Amount
within the applicable 30-day period and prior to the Resolution there is a
Determination to the effect that no deduction is allowed (or that any allowed
deduction is limited) in respect of payments of the Commitment Amount under
Section 483(a) in whole or in part, then Ahmanson will have the right to deliver
a new Ahmanson Certificate with a new calculation of that portion of the
Commitment Amount, and the previously delivered Ahmanson Certificate with
respect to that portion of the Commitment Amount will be considered null and
void; provided, however, that if Ahmanson delivers such a new Ahmanson
Certificate, Ahmanson will be required to pay interest on that portion of the
Commitment Amount from the date of delivery of the first Ahmanson Certificate
relating to such portion of the Commitment Amount to the date of delivery of the
new Ahmanson Certificate relating to such portion of the Commitment Amount at a
rate equal to Home Savings' cost of funds as submitted monthly to the FHLBSF.
The same procedures described in this paragraph for the resolution of any
disputes with respect to the calculation contained in an Ahmanson Certificate
will apply equally to the calculation in the new Ahmanson Certificate with
respect to such portion of the Commitment Amount.
Due Date
Pursuant to the Commitment, Ahmanson will pay to the CPR Trust the portion
of the Commitment Amount with respect to the relevant Litigation Proceeds (a) if
the CPR Trust does not deliver a Notice of Objection within the 30-day period
described above, within 5 business days of the earlier of the delivery of the
Notice of Agreement with respect to such Ahmanson Certificate or the 30th day
following the delivery by Ahmanson of such Ahmanson Certificate or (b) if the
CPR Trust does deliver a Notice of Objection with respect to such Ahmanson
Certificate within the 30-day period described above, within 5 business days of
the Resolution with respect to such portion of the Commitment Amount (each, a
"Due Date"). If Ahmanson does not pay such portion of the Commitment Amount by
the appropriate Due Date, Ahmanson will be obligated to pay to the CPR Trust
such portion of the Commitment Amount plus interest on such portion of the
Commitment Amount from the Due Date until the date such portion of the
Commitment Amount is paid, calculated at an annual interest rate equal to the
Reference Rate plus 250 basis points.
Notwithstanding the foregoing, Ahmanson will not be obligated to pay the
Commitment Amount or any portion thereof at the Due Date and will be deemed not
to be in default of the Commitment and not to have violated its obligations
thereunder by virtue of not having paid the Commitment Amount or such portion
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thereof (a) to the extent that Home Savings is not permitted due to regulatory
restrictions to distribute to Ahmanson the Litigation Proceeds and (b) if prior
to the Due Date, Ahmanson has delivered to the CPR Trust a certificate (an
"Officer's Certificate") from the chief financial officer of Home Savings
specifying that portion of the Litigation Proceeds that cannot be paid due to
regulatory restrictions and the applicable law, regulation or other action of a
regulatory authority that is the source of the regulatory restrictions
preventing the distribution by Home Savings and either (i) an opinion of outside
counsel substantially to the effect that the distribution by Home Savings of the
Litigation Proceeds or the applicable portion thereof, as the case may be, would
result in the violation of the applicable law, regulation or other action of a
regulatory authority that is the source of the regulatory restrictions
preventing the distribution by Home Savings (an "Opinion of Counsel") or (ii)
either (A) a copy of written documentation from the applicable regulatory
authority to the effect that Home Savings may not distribute the Litigation
Proceeds, or any portion thereof, to Ahmanson, or (B), prior to the expiration
of any applicable prior notice or application period following Home Savings'
submission to the applicable regulatory authority of a notice or application for
approval of a distribution of the Litigation Proceeds to Ahmanson, an officer's
certificate from the chief financial officer of Home Savings certifying that
Home Savings has submitted such a notice or application and that Home Savings
has not received any written documentation from such regulatory authority to the
effect that Home Savings may make such distribution (in either of case (A) or
(B), a "Regulatory Document"). Under the Commitment, Ahmanson will be entitled
not to pay the Commitment Amount or any portion thereof as specified in the
immediately preceding sentence with the consequences specified in the
immediately preceding sentence for a period of two years from the Due Date on
which the Commitment Amount or such portion thereof would otherwise have been
payable so long as (i) Home Savings continues not to be permitted to distribute
such portion of the Litigation Proceeds to Ahmanson due to regulatory
restrictions and (ii) Ahmanson delivers on a quarterly basis beginning with the
first full fiscal quarter following the Due Date an Officer's Certificate and
either an Opinion of Counsel or a Regulatory Document. After this two-year
period, if Ahmanson does not pay that portion of the Commitment Amount that is
due, Ahmanson will be in default of the Commitment.
Notwithstanding the foregoing, under the Commitment Agreement, Ahmanson
will be deemed to be in default of the Commitment Agreement at any time
specified above when payment of the Commitment Amount or such portion thereof
would otherwise be due but when Ahmanson would be entitled not to make such
payment and would be deemed not to be in default due to the regulatory
restrictions described above if, at such time, there exists a default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by
Ahmanson (but not including any such mortgage, indenture or instrument pursuant
to which the creditor's remedy is limited to foreclosure of collateral), whether
such indebtedness exists at the time of the Commitment Agreement or is created
thereafter, which default constitutes a failure to pay principal of such
indebtedness in an amount exceeding $50 million when due and payable after the
expiration of any applicable grace period with respect thereto or will have
resulted in such indebtedness in an aggregate principal amount exceeding $50
million becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, without such indebtedness being
discharged, or such acceleration having been rescinded or annulled, within a
period of 35 days after the occurrence of the event that gave rise to such
default provided that any such event of default will not be deemed to have
occurred so long as Ahmanson is contesting the validity thereof in good faith by
appropriate proceedings.
Ahmanson Litigation.
Ahmanson also has litigation pending against the U.S. government involving
the regulatory capital treatment of certain supervisory goodwill, which claims
are similar to the Litigation. Ahmanson intends to pursue that litigation solely
in the best interests of its stockholders and without regard to any possible
impact on the Litigation or the value of the CPR Certificates.
No Ahmanson Responsibility for the Litigation.
The Litigation will remain a contingent asset of Coast Federal upon
effectiveness of the Merger and will thus become a contingent asset of Ahmanson
as successor to Coast and as parent company of Coast Federal.
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As provided in the CPR Trust Agreement, the Litigation will be solely under the
control of the Litigation Trustees and Ahmanson will not participate in or have
any responsibility for any decisions regarding the administration of the
Litigation. The terms of the CPR Trust Agreement and the Commitment will
explicitly provide that Ahmanson, Home Savings, their affiliates, officers,
directors, employees and agents have no liability to the holders of the CPR
Certificates. Without limiting the generality of the foregoing, none of the
holders of the CPR Certificates, the Trust and the trustees of the Trust have
any right to enforce, institute or maintain any suit, action or proceeding
against Ahmanson, Home Savings, its affiliates, officers, directors, employees
or agents relating to the formation of the CPR Trust, the entering into of the
Commitment, the distribution of the CPR Certificates, the Litigation or the
performance by the Litigation Trustees of their duties as Litigation Trustees.
Notwithstanding the foregoing, the CPR Trust, or the Litigation Trustees on
behalf of the CPR Trust, may enforce, institute or maintain a suit, action or
proceeding against Ahmanson for breach of the Commitment or (as successor to
Coast) of the CPR Trust Agreement or failure to deliver any CPR Certificate when
due or return to the CPR Trust for cancellation any CPR Certificate required to
be returned or against Ahmanson for failure to deposit the Expense Fund at the
Effective Time or against Home Savings for breach of any depository relationship
obligations it may have with respect to the Expense Fund (and except to the
extent that Ahmanson succeeds to the obligations of Coast under the CPR Trust
Agreement).
The Commitment will provide that except as expressly set forth in the
Commitment (or in any other documents to which Ahmanson has succeeded as a
matter of law), Ahmanson will have no other obligations to the CPR Trust, the
Litigation Trustees or the holders of CPR Certificates. Without limiting the
generality of the foregoing and except as provided in the Merger Agreement,
Ahmanson will have no obligation to advance funds to the CPR Trust, the
Litigation Trustees or the holders of CPR Certificates.
BACKGROUND OF THE MERGER
The Coast Board and the management of Coast have recognized that in order
to remain competitive in the consolidating financial services industry, it is
essential to provide a broader array of consumer and business banking products,
to achieve economies of scale and to continue Coast's expansion of the variety
of products that it offers to customers. In an effort to address these concerns,
from time to time in the last year, Coast and its financial advisors have had
conversations with other financial institutions regarding possible merger
scenarios, and the Coast Board has discussed certain of these possibilities,
with the assistance of Goldman Sachs and outside counsel. At various times,
Coast or its financial advisors held preliminary conversations with third
parties regarding a possible business combination, none of which discussions
resulted in any offer or agreement. In early 1997, Coast and its advisors had
significant discussions with one potential acquiror; prior to reaching any
agreement, however, that party terminated discussions for strategic reasons
unrelated to Coast, and subsequently indicated that it was not interested in an
acquisition of Coast at that time.
Also in the last year, the Coast Board and management discussed the
possibility of issuing securities relating to the Litigation to the Coast
stockholders, either in connection with a merger or in the absence of a merger.
In late August 1997, Ray Martin, Chairman and Chief Executive Officer of
Coast, arranged an informal meeting with Charles R. Rinehart, Chairman and Chief
Executive Officer of Ahmanson. Prior to this meeting, at Ahmanson's request
Goldman Sachs provided Ahmanson with certain publicly available financial
information. Robert L. Hunt II, Coast's Chief Operating Officer, and Kevin
Twomey, Ahmanson's Chief Financial Officer, also attended this meeting, during
which the parties discussed a possible business combination between Coast and
Ahmanson. Over the course of subsequent informal meetings, Mr. Martin, Mr. Hunt,
Mr. Twomey and selected officers of Coast and Ahmanson discussed the structure
of a potential merger, including Coast's desire to preserve the potential value
of the Litigation for the benefit of Coast stockholders, and Ahmanson's
agreement to that approach so that it did not have to value or pay Coast
stockholders for the Litigation.
During early September, Mr. Martin and Mr. Rinehart negotiated the
principal business terms of the Merger. On September 17, 1997, they reached
tentative agreement on the exchange ratio, subject to
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agreement on satisfactory arrangements with respect to securities relating to
the Litigation to be issued to Coast stockholders, satisfactory completion of
due diligence reviews of the business and assets of the respective companies and
approvals by the Coast Board and Ahmanson's Board of Directors (the "Ahmanson
Board"). The contemplated exchange ratio was 0.81 of a share of Ahmanson Common
Stock for each share of Coast Common Stock, assuming that the closing price of
Ahmanson Common Stock was $57.00 or less on the last trading day immediately
preceding execution of a Merger Agreement. If the price of a share of Ahmanson
Common Stock at that time was in excess of $57.00, the proposed exchange ratio
would be reduced so that each share of Coast Common Stock would be exchanged for
the number of shares of Ahmanson Common Stock as would then have a market value
of approximately $46.17. In addition, it was contemplated that Coast
stockholders would receive securities relating, in the aggregate, to 100% of the
net after-tax value of any damage award in or settlement of the Litigation.
On September 18, 1997, Coast and Ahmanson entered into a customary
confidentiality agreement containing a "standstill" provision pursuant to which
each party agreed, for a period of two years following the date of such
agreement, not to take certain actions relating to an acquisition of the other
party's assets or securities without such other party's consent. Following the
execution and delivery of the confidentiality agreement, each of Coast and
Ahmanson began its due diligence review of the other.
In preparation for a September 19, 1997 meeting of the Coast Board to
discuss the status of discussions with Ahmanson, and in view of the retention of
special mergers and acquisition counsel to advise Coast and the Coast Board as
an entirety, at the request of several non-management directors Coast's regular
outside counsel was designated to meet separately with the non-management
directors. At the September 19, 1997 special telephonic meeting of the Coast
Board, Mr. Martin described the status of discussions between the parties.
Coast's senior management and Goldman Sachs discussed the reasons for the Merger
and the potential benefits to Coast and its stockholders from the Merger, and
also discussed the strategic and business rationale and financial aspects of the
Merger. Coast's special merger and acquisitions counsel reviewed the directors'
obligations in connection with the possible Merger with the entire Coast Board
and Coast's regular outside counsel reviewed such obligations separately with
the non-management directors.
At a September 21, 1997 special meeting of the Coast Board, the Coast Board
was provided with additional details regarding the history and status of the
discussions with Ahmanson. At that meeting, Goldman Sachs made a presentation
regarding the proposed financial terms of the Merger and Coast's legal advisors
described, and the Coast Board discussed, the terms of the draft Merger
Agreement that had been proposed by Ahmanson and the potential terms of the
securities relating to the Litigation. In addition, the Coast Board evaluated
with management, Goldman Sachs and counsel Coast's strategic alternatives to the
Merger, including the possibility of (i) seeking to merge with some other
banking organization, (ii) remaining independent and seeking to merge with
Ahmanson or another banking organization at a later date and (iii) remaining
independent indefinitely. The Coast Board also discussed with management,
counsel and Goldman Sachs the factors discussed below under "-- Reasons of Coast
for the Merger," and the non-management directors discussed separately with
counsel the selection, role and compensation of the Litigation Trustees.
During the period from September 18, 1997 to the meeting of the Coast Board
on October 5, 1997, the Merger Agreement and the terms of the CPR Certificates
were drafted, discussed and negotiated by Coast, Ahmanson and their respective
representatives.
During meetings between Coast, Ahmanson and their counsel on Friday,
October 3, 1997, all material issues with respect to the Merger Agreement
(including the terms of the CPR Certificates) were resolved. In view of the fact
that the closing price of Ahmanson Common Stock on October 3 was $57.125, the
Exchange Ratio was set at 0.8082 of a share of Ahmanson Common Stock for each
share of Coast Common Stock, representing a market value of $46.17 per share of
Coast Common Stock based on the October 3, 1997 closing price of Ahmanson Common
Stock. The Exchange Ratio of 0.8082 was fixed on October 5, 1997, the date of
the Merger Agreement, and does not adjust to preserve the $46.17 value.
Accordingly, the market value of the shares of Ahmanson Common Stock to be
received in the Merger based on the Exchange Ratio may be less than or greater
than $46.17.
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On October 5, 1997, the Ahmanson Board met and approved the Merger
Agreement and the transactions contemplated thereby. Later that day, at a
special meeting of the Coast Board with all members of the Coast Board present,
Mr. Martin and senior management of Coast again presented the reasons for and
the potential benefits of the Merger. Coast's legal advisors reviewed the terms
of the Merger Agreement, including the terms of the CPR Trust and the CPR
Certificates, and Goldman Sachs updated its presentation regarding the financial
terms of the Merger and rendered its opinion that the Consideration (as defined
in "-- Opinion of Coast's Financial Advisor") is fair, from a financial point of
view, to holders of Coast Common Stock. See "-- Opinion of Coast's Financial
Advisor." After discussion of the Merger Agreement and of the factors discussed
below under "-- Reasons of Coast for the Merger," the Coast Board unanimously
approved and authorized the execution of the Merger Agreement and approved the
transactions contemplated thereby, including the Merger, the establishment of
and the terms of the CPR Trust, the CPR Certificate distribution, the engagement
of the Litigation Trustees (including the terms of their engagement), the terms
of Ahmanson's obligation to pay the Commitment Amount to the CPR Trust and the
rights of the holders of the CPR Certificates.
REASONS OF COAST FOR THE MERGER
In determining to approve the Merger Agreement and the transactions
contemplated thereby and to recommend approval of the Transaction Proposal by
the Coast stockholders, the Coast Board reviewed and considered a number of
factors, including, without limitation, the following:
(a) Certain Financial and Other Information Concerning Coast. The
Coast Board took into account its familiarity with and review of the
financial condition, results of operations, cash flow, earnings and
business of Coast both on a historical and a prospective basis.
(b) Advice of Financial Advisor and Fairness Opinion. The Coast Board
considered the financial presentations of Goldman Sachs on September 21 and
October 5, 1997, and the opinion of Goldman Sachs rendered to the Coast
Board on October 5, 1997 that the Consideration is fair, from a financial
point of view, to the holders of Coast Common Stock. See "-- Opinion of
Coast's Financial Advisor."
(c) Economic Terms of the Merger. The Coast Board considered that the
terms of the Merger are beneficial to Coast stockholders in that Coast
stockholders will both (i) become stockholders of a combined institution
that will be a leading financial institution in California and (ii) retain
a 100% interest in an amount equal to the value of any proceeds (after
expenses and taxes calculated according to certain assumptions) of the
Litigation.
(d) The CPR Certificates. The Coast Board took into account the terms
of the CPR Certificates, including the fact that the CPR Certificates are
expected to be freely tradable. In this regard, the Coast Board also took
into account that although there can be no assurance as to the development
of a market for the CPR Certificates, efforts will be made to list the CPR
Certificates on the NASDAQ National Market System and that a reasonably
liquid market appeared to exist for somewhat similar securities issued by
California Federal Bank, A Federal Savings Bank, with similar claims
against the federal government.
(e) Other Terms of the Merger Agreement. The Coast Board considered
the terms of the Merger Agreement, including the fact that the Coast
Board's obligation under the Merger Agreement to recommend the Merger to
the Coast stockholders and the Coast Board's obligations not to solicit, or
to provide information or engage in discussions in connection with, other
proposals to acquire Coast, are both subject to the Coast Board's fiduciary
duties to the Coast stockholders in the event that the Coast Board were to
conclude in good faith that another unsolicited acquisition proposal was
superior to the Merger. The Coast Board also took into account that if the
Merger Agreement were terminated under certain conditions and Coast or any
of its subsidiaries then entered into a definitive agreement with respect
to a merger or acquisition with a third party within 12 months of
termination, Coast would be required to pay a $35 million termination fee
to Ahmanson.
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(f) Certain Financial and Other Information Concerning Ahmanson. The
Coast Board considered information regarding (i) the strategy, business,
operations, earnings and financial condition of Ahmanson on both an
historical and a prospective basis and (ii) the historical stock price
performance of Ahmanson Common Stock, in each case based in part on
presentations by Goldman Sachs at the September 21 and October 5, 1997
meetings. See "-- Opinion of Coast's Financial Advisor."
(g) Opportunities for Efficiencies and Cost Savings. The Coast Board
took into account that, although no assurances can be given, there were
likely to be anticipated cost savings, operating efficiencies and synergies
available to Ahmanson from the Merger and possible enhanced revenue
opportunities.
(h) Alternatives to the Merger Agreement. The Coast Board considered
strategic alternatives to enhance stockholder value, including the
possibility of (i) seeking to merge with some other banking organization,
(ii) remaining independent and seeking to merge with Ahmanson or another
banking institution at a later date and (iii) remaining independent
indefinitely.
(i) Tax Treatment of the Transaction. The Coast Board took into
account the anticipated tax treatment of the Merger. See "-- Certain
Federal Income Tax Consequences."
(j) Regulatory Approvals. The Coast Board took into account its
belief, after consultation with its legal counsel, that the regulatory
approvals necessary to consummate the Merger could be obtained. See
"-- Regulatory Matters."
(k) Economic and Competitive Environment. The Coast Board considered
the operating environment for Coast, including, but not limited to, the
continuing consolidation and increasing competition in the thrift, banking
and financial services industries in California and nationally and the
prospect for further changes in these industries and the importance of
operational scale and financial resources to remaining competitive in the
long term.
(l) Size and Competitiveness of Combined Company. The Coast Board took
into account its assessment that the combined company resulting from the
Merger might better serve the convenience and needs of its customers and
the communities it serves as a result of being a substantially larger
financial institution, thereby potentially affording access to greater
financial, managerial and technological resources and an ability to offer
an expanded range of products and services.
(m) Due Diligence Review. The Coast Board considered the results of
the due diligence investigations conducted by Coast management and its
advisors, including, among other things, assessments of Ahmanson's credit
policies, asset quality, adequacy of loan loss reserves and interest rate
risk.
(n) Impact on Coast's Constituencies. The Coast Board considered the
general impact the Merger would have on the various constituencies served
by Coast, including its employees. The Coast Board took into account the
potential for a substantial number of Coast employees to retain their
current positions or to obtain employment with Ahmanson. The Coast Board
also took into account Ahmanson's favorable ratings under the Community
Reinvestment Act.
In reaching its determination to approve and recommend the Merger, the
Coast Board did not assign any relative or specific weights to the various
factors considered by it, and individual directors may have given differing
weights to different factors. The foregoing discussion of the information and
factors considered by the Coast Board is not intended to be exhaustive but is
believed to include all material factors considered by the Coast Board.
BASED ON THE FOREGOING, THE COAST BOARD BELIEVES THAT THE MERGER IS IN THE
BEST INTEREST OF COAST AND ITS STOCKHOLDERS AND UNANIMOUSLY RECOMMENDS THAT
COAST STOCKHOLDERS VOTE "FOR" APPROVAL OF THE TRANSACTION PROPOSAL.
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OPINION OF COAST'S FINANCIAL ADVISOR
Goldman Sachs was retained by Coast to act as its financial advisor in
connection with the Merger and to render an opinion as to the fairness from a
financial point of view of the consideration to be received by Coast or its
stockholders pursuant to the Merger. At meetings of the Coast Board held on
September 21, 1997 and October 5, 1997, Goldman Sachs made presentations on
financial aspects of the Merger and at the October 5, 1997 meeting delivered to
the Coast Board its written opinion dated as of such date to the effect that, as
of the date of such opinion, based on and subject to the matters set forth in
such opinion, the consideration of 0.8082 of a share of Ahmanson Common Stock
and the proportionate interest in an amount equal to any recovery on the
Litigation (the "Consideration") to be received by the holders of shares of
Coast Common Stock pursuant to the Merger Agreement is fair from a financial
point of view to such holders. Goldman Sachs has confirmed its October 5, 1997
opinion as of the date of this Proxy Statement/Prospectus by delivery of its
written opinion to the Coast Board, dated the date of this Proxy
Statement/Prospectus.
Goldman Sachs has consented to the inclusion of its opinion, dated the date
hereof, in this Proxy Statement/Prospectus (the "Goldman Sachs Opinion"). The
Goldman Sachs Opinion is addressed to the Coast Board and does not constitute a
recommendation to any of the stockholders of Coast as to how such stockholders
should vote with respect to the Merger.
THE FULL TEXT OF THE GOLDMAN SACHS OPINION, DATED THE DATE OF THIS PROXY
STATEMENT/PROSPECTUS, WHICH SETS FORTH THE ASSUMPTIONS MADE, PROCEDURES
FOLLOWED, MATTERS CONSIDERED AND LIMITS ON THE REVIEW UNDERTAKEN, IS ATTACHED AS
APPENDIX D TO THIS PROXY STATEMENT/PROSPECTUS AND IS INCORPORATED HEREIN BY
REFERENCE. THE DESCRIPTION OF THE GOLDMAN SACHS OPINION SET FORTH HEREIN IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO APPENDIX D. COAST STOCKHOLDERS ARE
URGED TO READ THE GOLDMAN SACHS OPINION IN ITS ENTIRETY.
Goldman Sachs is a nationally recognized investment banking firm and was
selected by Coast based on the firm's reputation and experience in investment
banking in general, its recognized expertise in the valuation of businesses and
because of its familiarity with, and prior work for, Coast. As part of its
investment banking business, Goldman Sachs is continually engaged in the
valuation of businesses and their securities in connection with mergers and
acquisitions, negotiated underwritings, competitive biddings, secondary
distributions of listed and unlisted securities, private placements and
valuations for estate, corporate and other purposes.
In connection with rendering its opinion dated October 5, 1997, Goldman
Sachs, among other things: (i) reviewed the Merger Agreement; (ii) reviewed
Annual Reports to Stockholders and Annual Reports on Form 10-K of Coast and
Ahmanson for the five years ended December 31, 1996; (iii) reviewed certain
interim reports to stockholders and Quarterly Reports on Form 10-Q of Coast and
Ahmanson; (iv) reviewed certain other communications from Coast and Ahmanson to
their respective stockholders; (v) reviewed certain internal financial analyses
and forecasts for Coast and Ahmanson prepared by their respective managements,
including forecasts of certain cost savings (the "Synergies") expected by
Ahmanson to be achieved as a result of the Merger and including share repurchase
and capital management policies expected to be fulfilled by Ahmanson following
the Merger; (vi) held discussions with members of the senior managements of
Coast and Ahmanson regarding the past and current business operations,
regulatory relationships, financial condition and future prospects of their
respective companies and each senior management's assessment of the Synergies;
(vii) reviewed the reported price and trading activity for the Coast Common
Stock and the Ahmanson Common Stock; (viii) compared certain financial and stock
market information for Coast and Ahmanson with similar information for certain
other companies the securities of which are publicly traded; (ix) reviewed the
financial terms of certain recent business combinations in the thrift industry
specifically and in other industries generally; and (x) performed such other
studies and analyses as Goldman Sachs deemed appropriate.
In connection with rendering the Goldman Sachs Opinion, as set forth
therein, Goldman Sachs relied without independent verification upon the accuracy
and completeness of all the financial and other information reviewed by it and
has assumed such accuracy and completeness for purposes of such opinion.
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With Coast's consent, Goldman Sachs assumed that the financial forecasts of
Coast and Ahmanson (including, without limitation, the Synergies, the financial
impact of the anticipated repurchase of Ahmanson Common Stock and capital
management policies and the projections regarding under-performing and non-
performing assets and net charge-offs) were reasonably prepared on a basis
reflecting the best currently available judgments and estimates of Coast and
Ahmanson, and that such forecasts would be realized in the amounts and at the
times contemplated thereby. Goldman Sachs is not an expert in the evaluation of
loan and lease portfolios for purposes of assessing the adequacy of the
allowances for losses with respect thereto, and assumed, with Coast's consent,
that such allowances for each of Coast and Ahmanson are in the aggregate
adequate to cover all such losses. In addition, Goldman Sachs has not reviewed
individual credit files nor has it made an independent evaluation or appraisal
of the assets and liabilities of Coast or Ahmanson or any of their respective
subsidiaries and has not been furnished with any such evaluation or appraisal.
Goldman Sachs has also assumed, with Coast's consent, that obtaining any
necessary regulatory approval and third party consents for the Merger will not
have an adverse impact on Coast, Ahmanson or the combined company pursuant to
the Merger.
Goldman Sachs is not a legal expert and has not expressed any opinion as to
the potential outcome or value of the Litigation and has not expressed any
opinion as to the prices at which the CPR Certificates may trade if and when
they are issued.
The following is a summary of the material financial analyses presented by
Goldman Sachs to the Coast Board on September 21, 1997 and October 5, 1997 in
connection with providing its opinion to the Coast Board on October 5, 1997, and
does not purport to be a complete description of the analyses performed by
Goldman Sachs. Goldman Sachs used substantially the same types of financial
analyses in preparing its written opinion dated as of the date of this Proxy
Statement/Prospectus as it used in providing its opinion dated as of October 5,
1997 and also reviewed the Ahmanson Registration Statement on Form S-4, the CPR
Trust Registration Statement on Form S-4 and this Proxy Statement/Prospectus.
Summary of Terms of Proposed Transaction. Goldman Sachs reviewed the terms
of the proposed Merger, including the form of Consideration offered, the
expected method of accounting and the Notional Value (defined below) to be
received for each share of Coast Common Stock pursuant to the Merger. The
Notional Value is calculated on the basis of (i) the Exchange Ratio, (ii) the
closing price of Ahmanson Common Stock as of October 3, 1997 and (iii) the
implied value of the Litigation.
Goldman Sachs indicated that the Consideration offered in connection with
the Merger consists of Ahmanson Common Stock and proportionate interests in an
amount equal to the net after-tax proceeds, if any, that may be received in the
Litigation, which will be represented by the CPR Certificates. The anticipated
method of accounting for the Merger is the purchase method. Goldman Sachs stated
that the notional price per share of Coast Common Stock for the Merger as of
October 3, 1997 was $59.10 (the "Notional Value"), which amount represents the
sum of (i) the product of the Exchange Ratio and the $57.125 closing price of
the Ahmanson Common Stock on October 3, 1997, or $46.17 (the "Stock
Consideration") and (ii) the implied value per share of Coast Common Stock of
the Litigation (as described below), or $12.93. The Notional Value is
necessarily dependent on the closing prices of the Ahmanson Common Stock and of
the Goodwill Certificates (defined below) issued by California Federal Bank at a
specific time. Based upon the Notional Value, the aggregate Consideration to be
received by holders of Coast Common Stock in the Merger would be approximately
$1.162 billion.
In addition to reviewing the Notional Value resulting from the Merger, the
analyses described indicated values of the Stock Consideration resulting from
the Merger expressed as multiples of Coast's earnings for the 12 months ended
June 30, 1997 and of estimates of Coast's 1997 and 1998 earnings, as well as
multiples of various measures of Coast book value. In performing these analyses,
Goldman Sachs used estimates based upon IBES earnings estimates and earnings
estimates prepared by Coast management. IBES is a data service that monitors and
publishes compilations of earnings estimates by selected research analysts
regarding companies of interest to institutional investors. Using these
analyses, the Stock Consideration as of October 3, 1997 reflected (i) a multiple
of 19.7 times Coast earnings per share for the 12 months ending June 30, 1997,
(ii) multiples of 17.4 and 17.0 times the IBES median estimate and the Coast
management estimate,
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respectively, of Coast's 1997 earnings, and (iii) multiples of 14.7 and 12.6
times the IBES median estimate and the Coast management estimate of Coast's 1998
earnings, respectively. The indicated value of the Stock Consideration as of
October 3, 1997 also reflected (i) a multiple of 2.0 times Coast's stated book
value as of June 30, 1997 and (ii) a multiple of 2.0 times Coast's tangible book
value as of June 30, 1997.
Valuation of Contingent Payment Rights. The possibility exists that Coast
may receive a material payment from the federal government as compensation for
damages related to the Litigation. In attempting to consider the value to
stockholders of any such payment, Goldman Sachs considered the current trading
value of certain publicly traded certificates (the "Goodwill Certificates")
issued by California Federal Bank ("California Federal") in July 1995.
California Federal agreed to pay to holders of the Goodwill Certificates, which
were issued to all of its then existing shareholders, a portion of any damages
which California Federal might receive in relation to its supervisory goodwill
lawsuit, a lawsuit which raises similar issues to those involved in the
Litigation (although there can be no assurance that the Coast and California
Federal litigation will be resolved in a similar manner). The market value of
these Goodwill Certificates, divided by the supervisory goodwill required to be
written off by California Federal, provides a percentage basis upon which it is
possible to impute a value to other companies' regulatory capital claims
(including that of Coast) by multiplying the supervisory goodwill or capital
credits required to be written off, phased out or excluded from regulatory
capital by such companies by such percentage. However, the actual damages that
may be awarded to a plaintiff institution may differ significantly from the
amount of supervisory goodwill or capital credits required to be written off,
phased out or excluded from regulatory capital, as the case may be, because a
court would take into account the actual damages suffered by a plaintiff thrift
as a result of the required phase-out or exclusion.
Based on the $21.125 per certificate closing price of the Goodwill
Certificates on October 3, 1997, the ratio of the market value of the California
Federal legal claim to the aggregate amount of supervisory goodwill related
thereto was 87.5%. Applying this ratio to Coast's regulatory capital credit of
approximately $299 million implied a market value of $261 million, or $12.93 per
share of Coast Common Stock, attributable to the Litigation. However, although
the trading price of the Goodwill Certificates provides a likely indicator of
the market value of the Coast Common Stock attributable to the Litigation, there
is no assurance that the CPR Certificates will trade at $12.95.
Selected Transaction Analysis. Goldman Sachs reviewed certain information
relating to 9 thrift institution mergers in California, announced since January
1, 1994 and prior to October 5, 1997, in which the aggregate consideration paid
was in excess of $100 million (the "California Thrift Mergers"). The California
Thrift Mergers consist of (buyer/seller): Golden State/CENFED Financial, Bay
View Capital/America First, Washington Mutual/Great Western,
Temple-Inland/California Financial, MacAndrews & Forbes/Cal Fed Bancorp,
Washington Mutual/Keystone Holdings, MacAndrews & Forbes/SFFed, First
Interstate/ Sacramento Savings and MacAndrews & Forbes/First Nationwide. Such
analysis indicated that the median multiples of consideration paid to the latest
12 month earnings per share, current year earnings, next year earnings, book
value and tangible book value for the California Thrift Mergers were 14.9, 12.5,
11.5, 1.6 and 1.6 times, respectively, compared to multiples of the indicated
value of the Stock Consideration as of October 3, 1997 of (i) 19.7 times Coast
earnings per share for the 12 months ending June 30, 1997, (ii) 17.4 and 17.0
times the IBES median estimate and the Coast management estimate, respectively,
of Coast 1997 earnings, (iii) 14.7 and 12.6 times the IBES median estimate and
the Coast management estimate of Coast 1998 earnings, (iv) 2.0 times Coast's
stated book value as of June 30, 1997, and (v) 2.0 times Coast's tangible book
value as of June 30, 1997.
Selected Company Analysis. Based on publicly available information and IBES
earnings estimates, Goldman Sachs reviewed and compared (both including and
excluding the value attributable to the applicable company's regulatory capital
litigation) actual and estimated selected financial, operating and stock market
information and financial ratios of Coast and Ahmanson, a group of 2 California
large-capitalization thrift institutions consisting of Washington Mutual and
Golden West Financial (the "Selected California Large-Cap Thrifts"), a group of
4 California mid-capitalization thrift institutions consisting of Golden State,
Downey Financial, FirstFed Financial and Bay View Capital (the "Selected
California Mid-Cap Thrifts"), and a group of 6 selected non-California
large-capitalization thrift institutions consisting of Charter One
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Financial, GreenPoint Financial, Dime Bancorp, Washington Federal, Bank United
and People's Heritage (the "Selected Non-California Large-Cap Thrifts"). Such
information and ratios included, among other things, equity market
capitalization, price-earnings ratios, price to book value ratios, price to
tangible book value ratios, earnings growth and certain profitability data.
Goldman Sachs noted for the Coast Board that, among other things, and
excluding the value attributable to the applicable company's regulatory capital
litigation: (i) Ahmanson had a ratio of market price to 1997 and 1998 IBES
estimated earnings as of September 19, 1997 of 17.1 and 14.7, respectively, as
compared with 19.0 and 16.0, respectively, for Coast and a median ratio of
market price to 1997 and 1998 IBES estimated earnings as of September 19, 1997
of 16.6 and 14.0 for the Selected California Large-Cap Thrifts, 17.2 and 14.4
for the Selected California Mid-Cap Thrifts and 16.0 and 14.0 for the Selected
Non-California Large Cap Thrifts; (ii) Ahmanson had a ratio of market price to
book value, as of September 19, 1997, of 2.8, as compared with 2.1 for Coast and
a median ratio of market price to book value for Selected California Large-Cap
Thrifts, Selected California Mid-Cap Thrifts and Selected Non-California
Large-Cap Thrifts, as of September 19, 1997, of 2.8, 1.7 and 2.1, respectively;
and (iii) Ahmanson had a ratio of market price to tangible book value, as of
September 19, 1997, of 3.3, as compared with 2.1 for Coast and a median ratio of
market price to tangible book value for Selected California Large-Cap Thrifts,
Selected California Mid-Cap Thrifts and Selected Non-California Large-Cap
Thrifts, as of September 19, 1997, of 2.9, 1.9 and 2.6, respectively.
Goldman Sachs also noted for the Coast Board that, among other things, and
including the value attributable to the applicable company's regulatory capital
litigation: (i) Ahmanson had a ratio of market price to 1997 and 1998 IBES
estimated earnings as of September 19, 1997 of 15.6 and 13.3, respectively, as
compared with 14.2 and 11.9, respectively, for Coast and a median ratio of
market price to 1997 and 1998 IBES estimated earnings as of September 19, 1997
of 16.6 and 14.0 for the Selected California Large-Cap Thrifts, 16.5 and 12.7
for the Selected California Mid-Cap Thrifts and 14.7 and 13.0 for the Selected
Non-California Large Cap Thrifts; (ii) Ahmanson had a ratio of market price to
book value, as of September 19, 1997, of 2.5, as compared with 1.6 for Coast and
a median ratio of market price to book value for Selected California Large-Cap
Thrifts, Selected California Mid-Cap Thrifts and Selected Non-California
Large-Cap Thrifts, as of September 19, 1997, of 2.8, 1.7 and 2.1, respectively;
and (iii) Ahmanson had a ratio of market price to tangible book value, as of
September 19, 1997, of 3.0, as compared with 1.7 for Coast and a median ratio of
market price to tangible book value for Selected California Large-Cap Thrifts,
Selected California Mid-Cap Thrifts and Selected Non-California Large-Cap
Thrifts, as of September 19, 1997, of 2.9, 1.7 and 2.4, respectively.
Discounted Cash Flow Analysis. Using a discounted cash flow analysis,
Goldman Sachs estimated the present value of the future dividend streams, share
repurchases and terminal values (without reference to the Litigation) that Coast
could produce over the four-year period from January 1, 1998 to December 31,
2001. The estimate of Coast's future net income assumed earnings growth for the
four-year period based on Coast management's earnings estimates and on IBES
earnings estimates. Using assumed discount rates of 11.0%, 12.0% and 13.0% and
terminal values based on multiples of price to forward earnings for the 12-month
period ending December 31, 2002 ranging from 11.0 times to 13.0 times, Goldman
Sachs calculated net present values ranging from $31 to $46 per share of Coast
Common Stock for the four-year period, excluding proceeds from the Litigation.
The analysis assumed no dividends, and ongoing repurchases in amounts consistent
with Coast's target capital ratios. This compares with the indicated values of
the Stock Consideration of $46.17 per share of Coast Common Stock included in
the Notional Value.
Pro Forma Analysis. Goldman Sachs also performed a pro forma analysis of
certain other financial aspects of the Merger, calculating, among other things,
the pro forma ratios of common equity to assets and tangible common equity to
tangible assets and the efficiency ratio of the combined entity to be 5.0%, 3.8%
and 44.6%, respectively and calculating the pro forma return on average equity
and return on average assets, on a GAAP and on a cash basis, of the combined
entity to be 16.3% and 0.82%, and 17.8% and 0.90%, respectively. Goldman Sachs
also analyzed the pro forma impact on estimated earnings per share of the
combined entity on a reported GAAP and on a cash (excluding goodwill
amortization) basis. On a reported GAAP basis, Goldman Sachs calculated pro
forma earnings per share accretion of 2.0% and 6.1% (using IBES earnings
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estimates for both Coast and Ahmanson) for 1998 and 1999, respectively, and 3.1%
and 8.2% (using earnings per share estimates provided by the management of both
Coast and Ahmanson) for 1998 and 1999, respectively. On a cash basis, Goldman
Sachs calculated pro forma earnings per share accretion of 4.2% and 8.7% (using
IBES earnings per share estimates for both Coast and Ahmanson) for 1998 and
1999, respectively, and 5.2% and 10.5% (using earnings estimates provided by the
management of both Coast and Ahmanson) for 1998 and 1999, respectively.
The pro forma merger analysis assumed, among other things, that the pre-tax
expense savings realized from the merger would be $37.5 million in 1998 and
$75.0 million in 1999 and thereafter. Goldman Sachs assumed a pretax
restructuring reserve of $75.0 million and a transaction closing date of March
31, 1998. Goldman Sachs also calculated pro forma share repurchases for Ahmanson
to target a pro forma ratio of tangible common equity to tangible assets for
Ahmanson of 4.25%. Additionally, Goldman Sachs assumed that goodwill created in
the transaction would be amortized over a period of 25 years.
Other Analyses. Goldman Sachs also reviewed, among other things, selected
investment research reports on, and earnings estimates for, Coast Common Stock
and Ahmanson Common Stock. Goldman Sachs prepared a summary of the historical
financial and market performance of Coast and Ahmanson, summarized Coast and
Ahmanson managements' respective estimates of financial performance in 1997,
based on publicly available information, and analyzed Coast's and Ahmanson's
deposit market share and branch presence in the regions in which they operate.
The summary set forth above describes the material analyses that Goldman
Sachs performed and presented to the Coast Board on September 21, 1997 and
October 5, 1997, and does not purport to be a complete description of such
analyses. The preparation of a fairness opinion is a complex process and is not
necessarily susceptible to partial analysis or a summary description.
Goldman Sachs believes that its analyses must be considered as a whole and
that selecting portions of its analyses without considering all factors and
analyses would create an incomplete view of the analyses and processes
underlying its opinion. In its analyses, Goldman Sachs relied upon numerous
assumptions made by Coast and Ahmanson with respect to industry performance,
general business and economic conditions and other matters, many of which are
beyond the control of Coast or Ahmanson. Analyses based upon forecasts of future
results are not necessarily indicative of actual values, which may be
significantly more or less favorable than suggested by such analyses. No company
or transaction used as a comparison in the analyses is identical to Coast or
Ahmanson or to the Merger. Additionally, estimates of the value of businesses do
not purport to be appraisals or necessarily reflective of the prices at which
businesses actually may be sold. Because such estimates are inherently subject
to uncertainty, none of the Coast Board, Goldman Sachs, Ahmanson or any other
person assumes responsibility for the accuracy of such estimates. Goldman Sachs'
analyses were prepared solely for purposes of its opinions rendered October 5,
1997 and the date of this Proxy Statement/Prospectus provided to the Coast Board
regarding the fairness from a financial point of view of the Consideration
received by holders of Coast Common Stock pursuant to the Merger Agreement, and
do not purport to be appraisals or necessarily reflect the prices at which Coast
or its securities actually may be sold.
For the services of Goldman Sachs as financial advisor to Coast in
connection with the Merger, pursuant to an engagement letter dated August 26,
1997, Coast has agreed to pay Goldman Sachs a transaction fee of 0.65% of the
aggregate consideration paid in connection with the Merger (not including
amounts payable in respect of the Litigation); provided, however, that such fee
may not be more than 0.65 multiplied by 110% of the "transaction value" at the
date of the Merger Agreement and may not be less than 0.65 multiplied by 90% of
the "transaction value" at the date of the Merger Agreement. Based on Ahmanson's
closing price of $58.625 on October 6, 1997, the transaction fee paid to Goldman
Sachs will range from $5.4 million to $6.6 million. If the fee were to be
calculated based on Ahmanson's closing price as of January 9, 1998, it would be
approximately $5.4 million. Coast has also agreed to pay Goldman Sachs its
reasonable out-of-pocket expenses, including the fees and disbursements of its
counsel, and to indemnify Goldman Sachs against certain liabilities, including
certain liabilities arising under the federal securities laws. Goldman Sachs has
provided certain investment banking and advisory services to Coast from time to
time, for which it has received, and will receive, customary compensation. In
addition, Goldman Sachs has provided, and may
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provide in the future, certain investment banking services to Ahmanson, for
which it has received, and will receive, customary compensation.
Goldman Sachs has advised Coast that, in the ordinary course of its
business as a full-service securities firm, Goldman Sachs may, subject to
certain restrictions, actively trade the equity and/or debt securities of Coast
or Ahmanson for its own account or for the accounts of its customers, and,
accordingly, may at any time hold a long or short position in such securities.
REASONS OF AHMANSON FOR THE MERGER
Ahmanson believes that the Merger enhances Ahmanson's presence in key
markets throughout California, as well as Ahmanson's ability to offer financial
products to both individuals and small businesses. In addition, the Merger
provides an opportunity to enhance Ahmanson's stockholder value by increasing
earnings per share, reducing costs and enhancing revenue growth prospects.
EFFECTIVE TIME
If the Transaction Proposal is approved by the requisite vote of the Coast
stockholders, all required governmental and other consents and approvals are
obtained and the other conditions to the obligations of the parties to
consummate the Merger are either satisfied or waived (if permitted), the CPR
Certificate Distribution will be effected on the Effective Date with a record
and payment date on the Effective Date immediately prior to the Effective Time
and the Merger will be consummated and will become effective on the Effective
Date and at the Effective Time (which will be the time that a certificate of
merger reflecting the Merger is filed with the Secretary of State of the State
of Delaware or at the time specified in such certificate). Unless otherwise
agreed by Coast and Ahmanson, and subject to the conditions to the obligations
of the parties to effect the Merger, the parties have agreed to cause the
Effective Date to occur on the fifth business day to occur after the last of the
conditions to the consummation of the Merger have been satisfied or waived (or,
at the election of Ahmanson, on the last business day of the month in which such
date occurs or, if such date occurs on one of the last five business days of
such month, on the last business day of the succeeding month). Ahmanson and
Coast each has the right, acting unilaterally, to terminate the Merger Agreement
should the Merger not be consummated by June 30, 1998. See "-- Termination;
Termination Fee."
DISTRIBUTION OF AHMANSON COMMON STOCK CERTIFICATES
At or prior to the Effective Time, Ahmanson will deposit, or will cause to
be deposited, with a depository institution of recognized standing selected by
Ahmanson (in such capacity, the "Exchange Agent"), for the benefit of the
holders of certificates formerly representing shares of Coast Common Stock ("Old
Certificates") certificates representing the shares of Ahmanson Common Stock
("New Certificates") to which the holders of the Old Certificates are entitled
pursuant to the Merger Agreement, together with the estimated amount of cash to
be paid in exchange for fractional share interests.
Promptly after the Effective Time, Ahmanson will send or cause to be sent
transmittal materials to each record holder of Coast Common Stock for use in
exchanging those certificates for the shares of Ahmanson Common Stock to which
such stockholder is entitled as a result of the Merger. COAST STOCKHOLDERS
SHOULD NOT SURRENDER THEIR CERTIFICATES FOR EXCHANGE UNTIL THEY RECEIVE THE
LETTER OF TRANSMITTAL AND INSTRUCTIONS. Ahmanson will cause the New Certificates
and/or any check in respect of any fractional share interests or dividends or
distributions which a holder of Coast Common Stock will be entitled to receive
to be delivered to such stockholder upon delivery to the Exchange Agent of
certificates representing such shares of Coast Common Stock owned by such
stockholder (or indemnity reasonably satisfactory to Ahmanson and the Exchange
Agent, if any of such certificates are lost, stolen or destroyed). None of the
Exchange Agent, Ahmanson, Coast or the CPR Trust will be liable to a holder of
Coast Common Stock for any amount properly delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
After the Effective Time, at the election of Ahmanson, no dividend or other
distribution with respect to Ahmanson Common Stock with a record date occurring
after the Effective Time will be paid to the holder of
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any unsurrendered certificate for Coast Common Stock until the holder duly
surrenders such certificate. Upon such surrender, all undelivered dividends and
other distributions and, if applicable, a check for the amount to be paid in
lieu of any fractional share interest will be delivered to such stockholder, in
each case without interest.
After the Effective Time, there will be no transfers of shares of Coast
Common Stock on Coast's stock transfer books. If certificates representing
shares of Coast Common Stock are presented for transfer after the Effective
Time, they will be canceled and exchanged for the shares of Ahmanson Common
Stock and a check for the amount due in lieu of fractional shares, if any,
deliverable in respect thereof.
DISTRIBUTION OF THE CPR CERTIFICATES
Immediately prior to the Effective Time, Coast will deposit, or will cause
to be deposited, with the Exchange Agent the CPR Certificates for the benefit of
the holders of Coast Common Stock. The Exchange Agent will cause the CPR
Certificates to be delivered to the holders of Coast Common Stock together with
the New Certificates and/or checks in lieu of fractional share interests as
described above under "-- Distribution of Ahmanson Common Stock Certificates."
FRACTIONAL SHARES
Pursuant to the terms of the Merger Agreement, each holder of shares of
Coast Common Stock exchanged pursuant to the Merger who would otherwise have
been entitled to receive a fraction of a share of Ahmanson Common Stock shall
receive, in lieu thereof, an amount in cash (without interest) determined by
multiplying such fraction by the average of the last sale prices of Ahmanson
Common Stock, as reported by the NYSE Composite Tape (as reported in The Wall
Street Journal or, if not reported therein, in another authoritative source),
for the five NYSE trading days immediately preceding the Effective Date. No such
holder will be entitled to dividends, voting rights, or any other rights as a
stockholder with respect to any fractional shares. No interest will be paid on
any such cash to be paid in lieu of fractional share interests or in respect of
dividends or distributions which any such person may be entitled to receive upon
delivery of Old Certificates to the Exchange Agent.
THE CPR TRUST, THE CPR CERTIFICATES AND THE CPR CERTIFICATE DISTRIBUTION
In the Merger Agreement, Coast has agreed to take all actions necessary to
cause the CPR Trust to be formed. In addition, Coast has agreed to take all
actions necessary to cause the issuance of the CPR Certificates by the CPR Trust
to Coast and to effect the CPR Certificate Distribution with a record date and
payment date on the Effective Date immediately prior to the Effective Time.
However, Coast is not required to cause the CPR Trust to issue such CPR
Certificates or to effect the CPR Certificate Distribution until all conditions
to the Merger, other than such distribution, have been satisfied or waived. See
"-- Conditions to Consummation."
Coast has also agreed to cause the CPR Trust to deliver to Coast
immediately prior to the Effective Time a number of CPR Certificates sufficient
for the delivery (or retention by Ahmanson as successor to Coast in certain
circumstances) of CPR Certificates required in connection with Coast Stock
Options, Coast Performance Share Awards, Coast SARs and appraisal rights that
are exercised. See "-- Stock Options; Performance Share Awards; SARs" and
"Appraisal Rights." Ahmanson has agreed to return to the CPR Trust any CPR
Certificates with respect to options that expire prior to exercise.
STOCK OPTIONS; PERFORMANCE SHARE AWARDS; SARS
The Merger Agreement provides that each option to acquire shares of Coast
Common Stock (each, a "Coast Stock Option") which is outstanding at the
Effective Time, all of which are vested, will be converted into an option to
acquire, on the same terms and conditions as were applicable under Coast's 1996
Equity Incentive Plan or Coast's 1985 Stock Option and Stock Appreciation Rights
Plan (collectively, the "Coast Stock Plans"), as the case may be, (a) the number
of shares of Ahmanson Common Stock equal to (i) the number of shares of Coast
Common Stock subject to such Coast Stock Option, multiplied by (ii) the
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Exchange Ratio (such product rounded down to the nearest whole number), at an
exercise price per share (rounded up to the nearest whole cent) equal to (A) the
aggregate exercise price for the shares of Coast Common Stock which were
purchasable pursuant to such Coast Stock Option divided by (B) the number of
full shares of Ahmanson Common Stock subject to the Replacement Option in
accordance with the foregoing and (b) one CPR Certificate for each share of
Coast Common Stock that would have been issuable upon exercise in full of such
Coast Stock Option.
In addition, the Merger Agreement provides that each performance share
award (each, a "Coast Performance Share Award") which is outstanding at the
Effective Time under the Coast Performance Share Plan for Key Employees (the
"Coast Performance Share Award Plan") will be canceled and will only entitle the
holder thereof to receive for each share of Coast Common Stock with respect to
such award (a) one CPR Certificate and (b) an amount in cash equal to the
difference between (i) the result of multiplying the Exchange Ratio by the
average of the last sale prices of one share of Ahmanson Common Stock, as
reported by the NYSE Composite Tape (as reported in The Wall Street Journal or,
if not reported therein, in another authoritative source), for the five NYSE
trading days immediately prior to the Effective Date and (ii) the base price
under such award.
The Merger Agreement further provides that each outstanding stock
appreciation right (each, a "Coast SAR") under the Coast Stock Plans shall be
canceled and only entitle the holder thereof to receive for each share of Coast
Common Stock with respect to such stock appreciation right (a) one CPR
Certificate and (b) an amount in cash equal to the difference between (i) the
result of multiplying the Exchange Ratio by the average of the last sale prices
of one share of Ahmanson Common Stock, as reported by the NYSE Composite Tape
(as reported in The Wall Street Journal or, if not reported therein, in another
authoritative source), for the five NYSE trading days immediately prior to the
Effective Date and (ii) the grant price of such Coast SAR.
However, if Coast is unable to obtain from any holders of such Coast
Performance Share Awards or Coast SARs, as the case may be, the consents
necessary to effect such treatment, such holders will instead be entitled to (a)
with respect to each outstanding Coast Performance Share Award under the Coast
Performance Share Award Plan, an amount in cash equal to the result of
multiplying (i) the difference between the average of the last sale prices of
one share of Coast Common Stock, as reported by the NYSE Composite Tape (as
reported in The Wall Street Journal or, if not reported therein, in another
authoritative source), for the five NYSE trading days immediately prior to the
Effective Date and the base price under such award by (ii) the total number of
shares of Coast Common Stock with respect to such award and (b) with respect to
each outstanding Coast SAR under the Coast Stock Plans, an amount in cash equal
to the result of multiplying (i) the difference between the average of the last
sale prices of one share of Coast Common Stock, as reported by the NYSE
Composite Tape (as reported in The Wall Street Journal or, if not reported
therein, in another authoritative source), for the five NYSE trading days
immediately prior to the Effective Date and the grant price of such stock
appreciation right by (ii) the total number of shares of Coast Common Stock with
respect to such Coast SAR. All CPR Certificates with respect to the Coast
Performance Share Awards and Coast SARs as to which payments are made as
described in this paragraph will be retained by Ahmanson (as successor to
Coast). In addition, in the event that between the date of the Merger Agreement
and the Effective Date any Coast Performance Share Awards or Coast SARs are
exercised, Ahmanson (as successor to Coast) will be entitled to retain any CPR
Certificates that would otherwise have been issuable with respect to such Coast
Performance Share Awards or Coast SARs at the Effective Date.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following summary of the material U.S. federal income tax consequences
of the Merger applies to a holder of Coast Common Stock that holds its shares as
capital assets. This summary may not apply to certain classes of taxpayers,
including foreign holders, insurance companies, tax-exempt organizations,
financial institutions, dealers in securities, traders in securities that elect
to mark to market, persons who acquired or acquire shares of Coast Common Stock
pursuant to the exercise of employee stock options or otherwise as compensation
and persons who hold shares of Coast Common Stock in a hedging transaction or as
part of a
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straddle or conversion transaction. Each holder should consult its own tax
adviser as to the specific tax consequences of the Merger and the CPR
Certificate Distribution to such holder.
This summary represents the opinions of Sullivan & Cromwell, special
counsel to Ahmanson, and Cleary, Gottlieb, Steen & Hamilton, special counsel to
Coast. The parties do not intend to request any ruling from the IRS as to the
U.S. federal income tax consequences of the Merger.
The obligations of Ahmanson and Coast to consummate the Merger are subject
to the condition that they receive opinions (described further below) to the
effect that the Merger will be treated as a reorganization within the meaning of
Section 368(a) of the Code. In rendering such opinions, such counsel may require
and rely upon representations contained in letters from Coast, Ahmanson and
stockholders of Coast and assumptions set forth in the opinions. Assuming the
Merger is such a reorganization, the material federal income tax consequences of
the Merger to each of Ahmanson, Coast and a holder who exchanges shares of Coast
Common Stock for shares of Ahmanson Common Stock pursuant to the Merger will be
as follows:
(a) No gain or loss will be recognized by Ahmanson or Coast as a
result of the consummation of the Merger.
(b) No gain or loss will be recognized by a holder except as follows:
Gain or loss may be recognized by a holder who receives cash in lieu of a
fractional share interest in Ahmanson Common Stock (see (e) below). In
addition, gain (but not loss) may be recognized in an amount not exceeding
the fair market value of such holder's CPR Certificates at the Effective
Time (which will include a proportionate share of the value attributable to
Ahmanson's having entered into the Commitment) (see (f) below).
(c) The aggregate adjusted tax basis of shares of Ahmanson Common
Stock (including any fractional share interest in Ahmanson Common Stock, as
described below) received by a holder will be the same as the aggregate
adjusted tax basis of the shares of Coast Common Stock exchanged therefor,
decreased by the value of the CPR Certificates received by such holder (as
such value is determined in (f)(i) below) and increased by the amount of
gain recognized upon the receipt of CPR Certificates (as described in (f)
below).
(d) The holding period of shares of Ahmanson Common Stock (including a
fractional share interest in Ahmanson Common Stock deemed received and
redeemed, as described below) received by a holder will include the holding
period of the Coast Common Stock exchanged therefor.
(e) A holder who receives cash in lieu of a fractional share interest
in Ahmanson Common Stock will be treated as having received the fractional
share interest and as having received the cash in redemption of that
fractional share interest. Under Section 302 of the Code, if the deemed
redemption is "substantially disproportionate" with respect to the holder
or is "not essentially equivalent to a dividend" after giving effect to the
constructive ownership rules of the Code, the holder will generally
recognize capital gain or loss equal to the difference between the amount
of cash received and the holder's adjusted tax basis in the fractional
share interest (determined under clause (c) above). Such capital gain or
loss will be long-term capital gain or loss if the holder's holding period
in the fractional share interest (determined under clause (d) above) is
more than one year (and will be taxed at the rates set forth in the final
sentence of (f) below).
(f) A holder will recognize gain to the extent of the lesser of:
(i) the fair market value of the holder's CPR Certificates at the
Effective Time (which, at the Effective Time, will include the
proportionate share of the value attributable to Ahmanson's having
entered into the Commitment); and
(ii) the excess of (A) the sum of (i) the fair market value of the
shares of Ahmanson Common Stock (including any fractional share interest
in Ahmanson Common Stock for which cash is received) received by the
holder and (ii) the amount determined in (i) above; over (B) the
holder's adjusted federal income tax basis for the shares of Coast
Common Stock exchanged in the Merger.
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If the shares of Coast Common Stock exchanged in the Merger were
held as capital assets at the Effective Time, any such gain will be
treated as capital gain (which will be long-term capital gain if the
shares of Coast Common Stock were held for more than one year) provided
the holder of Coast Common Stock does not own, either directly or
applying certain ownership attribution rules, contemporaneously with the
Merger any Ahmanson stock other than the Ahmanson Common Stock received
by the holder in the Merger. A holder that owns such additional Ahmanson
stock generally will be entitled to treat such gain as capital gain only
if a distribution of CPR Certificates in a hypothetical redemption by
Ahmanson immediately following the Effective Time of an equivalent
amount of Ahmanson Common Stock would have qualified for capital gain
treatment under the standards of Section 302 of the Code. Holders owning
additional shares of Ahmanson stock should consult their own tax
advisors concerning the treatment of gain as capital gain or ordinary
income. Long-term capital gain of a non-corporate holder is generally
subject to a maximum tax rate of 28% in respect of property held for
more than one year and to a maximum tax rate of 20% in respect of
property held for more than 18 months.
(g) The adjusted tax basis of CPR Certificates received by a holder
will equal the value of the CPR Certificates described in (f)(i) above, and
the holding period of the CPR Certificates will begin on the Effective Date
(and will not include the holding period of the holder's Coast Common
Stock).
Ahmanson's obligation to consummate the Merger is conditioned upon, among
other things, the receipt of an opinion of Sullivan & Cromwell, dated the
Effective Date, to the effect that the Merger is a reorganization under Section
368(a) of the Code and that no gain or income will be recognized by Ahmanson in
the Merger. Coast's obligation to consummate the Merger is conditioned upon,
among other things, the receipt of an opinion of Cleary, Gottlieb, Steen &
Hamilton, dated the Effective Date, to the effect that the Merger is a
reorganization within the meaning of Section 368(a) of the Code and that,
accordingly, (i) no gain or loss will be recognized by Coast as a result of the
Merger and (ii) no gain or loss will be recognized by a stockholder of Coast who
receives shares of Ahmanson Common Stock in exchange for shares of Coast Common
Stock, except (A) with respect to cash received in lieu of fractional share
interests and (B) for gain that may be recognized in an amount not exceeding the
fair market value at the time of the Merger of such stockholder's CPR
Certificates (which represent such stockholder's share of the Commitment
Amount). The opinion of Cleary, Gottlieb, Steen & Hamilton will not apply to
stockholders or persons receiving Ahmanson Common Stock or CPR Certificates as
compensation.
Under the terms of the Merger Agreement, the conditions to the Merger,
including receipt by each party of opinions of counsel relating to tax matters,
may generally be waived by Ahmanson or Coast, as applicable. In the event of a
failure to obtain a tax opinion substantially to the extent set forth above, or
in the event Coast determined to waive such condition to the consummation of the
Merger, Coast would resolicit the votes of its stockholders to approve
consummation of the Merger. See "-- Conditions to Consummation" and
"-- Amendment and Waiver."
BECAUSE CERTAIN TAX CONSEQUENCES OF THE MERGER MAY VARY DEPENDING UPON THE
PARTICULAR CIRCUMSTANCES OF EACH HOLDER OF COAST COMMON STOCK AND OTHER FACTORS,
EACH SUCH HOLDER IS URGED TO CONSULT SUCH HOLDER'S OWN TAX ADVISER AS TO THE
SPECIFIC TAX CONSEQUENCES OF THE MERGER TO SUCH HOLDER (INCLUDING THE
APPLICATION AND EFFECT OF STATE AND LOCAL INCOME AND OTHER TAX LAWS).
For a discussion of certain federal income tax consequences related to the
CPR Certificate Distribution, see "The CPR Trust and the CPR
Certificates -- Certain Federal Income Tax Consequences."
MANAGEMENT AND OPERATIONS AFTER THE MERGER
Ahmanson will be the surviving corporation resulting from the Merger and
will continue to be governed by the laws of the State of Delaware and will
operate in accordance with its certificate of incorporation and bylaws as in
effect immediately prior to the Effective Time until otherwise amended or
repealed after the Effective Time. Under the Merger Agreement, Ahmanson has
agreed to cause Mr. Martin, Chairman of the
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Board and Chief Executive Officer of Coast, to be elected or appointed as
director of Ahmanson at, or as promptly as practicable after, the Effective
Time. The directors and officers of Ahmanson in office immediately prior to the
Effective Time, together with such additional director and such additional
persons as may thereafter be elected, will serve as the directors and officers
of Ahmanson from and after the Effective Time in accordance with Ahmanson's
certificate of incorporation and bylaws.
Ahmanson's Quarterly Report on Form 10-Q for the quarter ended September
30, 1997 contains information concerning issues pertaining to the year 2000 and
Ahmanson's systems, and stockholders of Coast are directed to that report for a
more complete description of such issues. Following consummation of the Merger,
Coast's systems will be replaced with those of Ahmanson. While Ahmanson does not
expect any year 2000 problems to result from integrating Coast into Ahmanson,
there can be no assurance that there will be no such problems.
POST-ACQUISITION COMPENSATION AND BENEFITS
The Merger Agreement provides generally that Ahmanson will, from and after
the Effective Time, (a) honor in accordance with their terms all employment or
severance agreements entered into prior to the date of the Merger Agreement that
were previously disclosed, (b) provide former employees of Coast who remain as
employees of Ahmanson with employee benefit plans no less favorable in the
aggregate than those provided to similarly situated employees of Ahmanson, (c)
provide employees of Coast who remain as employees of Ahmanson credit for years
of service with Coast or any of its subsidiaries prior to the Effective Time for
the purpose of eligibility and vesting and (d) cause any and all pre-existing
condition limitations (to the extent such limitations did not apply to a
pre-existing condition under comparable compensation and benefit plans of Coast)
and eligibility waiting periods under group health plans of Ahmanson to be
waived with respect to former employees of Coast who remain as employees of
Ahmanson (and their eligible dependents) and who become participants in such
group health plans. The Merger Agreement provides, however, that nothing therein
will limit or restrict the right of Ahmanson to (i) terminate the employment of
any employee at any time for any reason whatsoever, with or without cause, and
(ii) modify, amend or terminate any employee benefit or other plans of Ahmanson.
In the Merger Agreement, Ahmanson agreed to pay up to $2,000,000 as retention
bonuses, payable upon dates following consummation of the Merger specified in
the Merger Agreement, to be allocated primarily among non-executive employees of
Coast.
On October 27, 1997, Ahmanson and Coast announced the adoption of the Coast
Federal Bank, Federal Savings Bank Change in Control Severance Pay Plan (the
"Severance Plan") effective from November 1, 1997 with respect to certain
employees of Coast. Ahmanson and Coast have agreed that the adoption of the
Severance Plan is deemed to satisfy and constitutes full performance by Ahmanson
of its obligations described in the last sentence of the immediately preceding
paragraph. The Severance Plan generally provides that employees of Coast Federal
whose employment is terminated without cause as a consequence of the Merger or
the consolidation of branches prior to December 31, 1998 will receive severance
compensation. The severance compensation to be received by an eligible employee
(other than a vice president) will range from four weeks' worth of compensation
to 36 weeks' worth, depending upon such employee's length of service with Coast
Federal. An eligible employee (other than a vice president) who has worked less
than one full year with Coast Federal will receive four weeks' worth of
severance compensation and an eligible employee (other than a vice president)
who has 21 years of service or more with Coast Federal will receive 36 weeks'
worth of severance compensation, with eligible employees with years of service
between one and 21 receiving a number of weeks' worth of compensation based upon
a schedule included in the Severance Plan (e.g., six years of service/ 12 weeks,
12 years of service/24 weeks and 18 years of service/36 weeks). Severance
compensation for eligible employees who are vice presidents will also be based
upon a range of service from less than one year to 21 years or more, with the
actual severance compensation ranging from 13 weeks' worth to 52 weeks' worth of
compensation.
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INTERESTS OF CERTAIN PERSONS IN THE TRANSACTION PROPOSAL
Certain members of Coast's management and the Coast Board may be deemed to
have certain interests in the Merger and the transactions contemplated thereby
in addition to their interests as Coast stockholders. The Coast Board was aware
of these interests in approving the Merger Agreement.
Ahmanson Board of Directors.
As described above, the Merger Agreement provides that Ahmanson agrees to
cause Mr. Martin, Chairman of the Board and Chief Executive Officer of Coast, to
be elected or appointed as a director of Ahmanson at, or as promptly as
practicable after, the Effective Time.
Incentive Plans.
The Merger Agreement provides that all options to acquire Coast Common
Stock outstanding at the Effective Time under the Coast Stock Plans, including
those held by management and members of the Coast Board, will be assumed by
Ahmanson. Each stock option will thereafter constitute an option to acquire
shares of Ahmanson Common Stock and CPR Certificates as set forth above under
"-- Stock Options; Performance Share Awards; SARs." In addition, the Merger
Agreement provides that each outstanding Coast Performance Share Award under the
Coast Performance Share Award Plan and each outstanding Coast SAR, including
those held by management, will be canceled (subject to the consent of the holder
of such Coast Performance Share Award or Coast SAR, as the case may be) and
entitle the holder thereof to a CPR Certificate and an amount in cash generally
based on an average of the Ahmanson Common Stock over a five day period over the
base price or grant price, as applicable. See "-- Stock Options; Performance
Share Awards; SARs."
Indemnification and Insurance.
The Merger Agreement provides that following the Effective Date, Ahmanson
will indemnify, defend and hold harmless the present directors and officers of
Coast and its subsidiaries against all costs or expenses (including reasonable
attorneys' fees), judgments, fines, losses, claims, damages or liabilities as
incurred, in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or investigative, arising
out of actions or omissions occurring at or prior to the Effective Time to the
fullest extent that Coast is permitted to indemnify (and advance expenses to)
its directors and officers under the laws of the State of Delaware, the
certificate of incorporation of Coast (the "Coast Charter") and the by-laws of
Coast (the "Coast By-Laws") as in effect on October 5, 1997. The Merger
Agreement also provides that Ahmanson will use its reasonable best efforts for
four years after the Effective Time to provide directors' and officers'
liability insurance that serves to reimburse the present and former officers and
directors of Coast or any of its subsidiaries with respect to claims against
such directors and officers arising from facts or events which occurred at or
prior to the Effective Time, which insurance will contain at least the same
coverage and amounts, and will contain terms and conditions no less
advantageous, as the coverage currently provided by Coast; provided, however,
that in no event will Ahmanson be required to expend more than 200% of the
current amount expended by Coast to maintain such insurance and that if Ahmanson
is unable to maintain or obtain such insurance, Ahmanson will use its reasonable
best efforts to obtain as much comparable insurance as is available for such
200% amount.
Coast Executive Agreements and Plans.
Change of Control. The Merger will constitute a "change of control" within
the meaning of the agreements and plans described below.
Employment Agreements. Coast Federal currently has employment agreements
with its Chief Executive Officer, President and Senior Executive Vice
Presidents, as well as certain other officers of Coast Federal and its
subsidiaries. Mr. Ray Martin's agreement provides for a three year term renewed
annually by the Coast Board. The agreements with Messrs. Robert Hunt, James
Boyle, Norman Raiden and James Barritt provide for two year terms renewed
annually by the Coast Board. However, in the event of a change in control of
Coast Federal, the term of such executives' agreements automatically converts to
three years renewable annually by
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the Board of Directors. In addition, in the event of a change in control, for
the remainder of the term of the agreement, Coast Federal will pay each
executive a base monthly compensation equal to his monthly salary then in effect
plus 1/12 of the aggregate amount of the higher of the discretionary bonuses
attributable to the last two bonus computation years that ended before the
change in control.
In the event that Coast Federal elects to terminate any of the executives'
employment without cause (as defined therein), or if the executive elects to
terminate his employment (i) within one year of a change of control of Coast
Federal for any reason (with respect to Mr. Martin only), (ii) due to Coast
Federal's failure to comply with certain conditions of service (including
certain additional conditions following a change in control of Coast Federal) or
(iii) within the 30-day period immediately following the one year anniversary of
a change in control of Coast Federal, the affected executive will be entitled to
receive a lump sum payment within 30 days of such termination equal to the
discounted present value of the compensation due under the agreement for the
balance of its term. In addition, the executives will be entitled to receive
medical insurance benefits for the remaining term of the agreement. In the event
of a change in control, each executive will also receive a gross-up payment if
the payments and benefits under the agreement and all other contracts or
arrangements, in the aggregate, exceed the maximum amount that may be paid to
the executive without triggering golden parachute penalties under Section 280G
of the Code and related provisions. Such gross-up payment will be an amount
which, after payment by the executive of all income and excise taxes on the
gross-up payment, equals the excise taxes the executive must pay under Section
4999 of the Code with respect to the payments and benefits for which the
executive is receiving the gross-up payment. Assuming termination of the
employment of Coast's executive officers, pursuant to the employment agreements
described above, the severance payments required to be made to Messrs. Martin,
Hunt, Boyle, Barritt and Raiden would be approximately $2,735,000, $1,933,000,
$1,481,000, $1,335,000 and $1,377,000, respectively, as a result of the Merger
being deemed a change in control under such employment agreements.
Severance Agreements. Coast Federal currently has severance agreements with
its Senior Vice Presidents (including executive officers Messrs. Gerald Rich and
Mark Neal). The terms of such agreements commence on the date of a change in
control of Coast Federal and terminate one year from the date of such change in
control. Such agreements may be terminated earlier upon 30 days notice by either
party to the agreement, provided that if such agreement is terminated by Coast
Federal after a change in control, Coast Federal will remain obligated to make
payments under such agreement. If there has been a change in control while the
executive is still employed by Coast Federal and during the term of the
agreement the executive's employment with Coast Federal is subsequently
terminated, the executive will be entitled to a severance payment, unless such
termination of employment was (i) as a result of the executive's death,
disability (as defined therein) or retirement (as defined therein), or (ii) by
Coast Federal for cause (as defined therein) or (iii) by the executive other
than for good reason (as defined therein). Such severance payment would be a
lump sum amount equal to one year's salary (at the higher of the executive's
salary at the time of the change in control or of the termination of the
executive's employment), payable 50% within 5 days of the executive's
termination of employment and the remainder within 60 days of such termination.
Assuming termination of the employment of Messrs. Rich and Neal, two of Coast's
executive officers, pursuant to the severance agreements described above, the
severance payments required to be made to such executive officers would
aggregate approximately $265,000, as a result of the Merger being deemed a
change in control under such severance agreements.
Supplemental Executive Retirement Plan of Coast Federal. Coast Federal
currently has a non-qualified supplemental executive retirement plan (the
"Supplemental Plan") to provide supplemental retirement benefits to its Chief
Executive Officer, President, Senior Executive Vice Presidents, Senior Vice
Presidents and certain other senior officers of Coast Federal and its
subsidiaries. Monthly benefits are based upon a percent of such participant's
average monthly earnings during the three highest paid consecutive years in the
ten years preceding retirement. Monthly benefits payable under the Supplemental
Plan are reduced (but not below a specified percentage of such average monthly
earnings) by the sum of the benefit payable to the executive under Coast
Federal's qualified pension plan, Social Security and certain other payments. In
general, benefits payable under the Supplemental Plan are reduced if a
participant retires prior to attaining age 65. Participants are generally
eligible to receive benefits under the Supplemental Plan after the completion of
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10 years of service with Coast Federal and attainment of age 60, after
completion of 25 years of service with Coast Federal and attainment of age 55,
or, regardless of the number of years of service, after attaining age 65.
Certain payments may also be made in the case of death or disability (as defined
therein) of the participant. If a participant's employment terminates prior to
eligibility for his or her benefit other than by reason of death or disability
or in the context of a change in control as set forth in the next sentence, such
participant forfeits his or her benefit under the Supplemental Plan, with the
exception of Messrs. Martin, Hunt, Boyle, Raiden and Barritt to whom such
benefit would be paid upon attainment of age 65 in such case. If a participant
is terminated by Coast Federal without cause (as defined therein) or voluntarily
resigns from Coast Federal for good reason (as defined therein) before the third
anniversary of a change in control of Coast Federal, Coast Federal will be
obligated to commence paying in the next calendar month following such
termination of employment such participant's benefit in an annuity or lump sum
as chosen by the participant (subject to certain reductions). The benefit
payable to participants in the case of a change in control may be reduced in
order to avoid the triggering of golden parachute penalties under Section 280G
of the Code, with the exception of Messrs. Martin, Hunt, Boyle, Raiden and
Barritt. Assuming termination of the employment of Coast's executive officers,
lump sum payments made under the Supplemental Plan to Messrs. Martin, Hunt,
Boyle, Barritt and Raiden would be approximately $5,746,000, $1,728,000,
$1,547,000, $680,000 and $2,325,000, respectively, and lump sum payments to
Coast's two other executive officers, Messrs. Rich and Neal, would aggregate
approximately $574,000, as a result of the Merger being deemed a change in
control under the Supplemental Plan.
Deferred Compensation Plan. Coast Federal currently has an unfunded
deferred compensation plan (the "Deferred Compensation Plan") to allow certain
designated officers and directors of Coast Federal to defer for receipt in a
later year a portion of his or her annual compensation. Each participant who
elects to defer compensation must also elect a time and manner for its receipt
in a later year in accordance with the terms of the Deferred Compensation Plan
and generally will not be permitted to receive such deferred compensation prior
to the elected time. Any such deferred compensation will be credited to an
account on behalf of a participant and will be credited with earnings based upon
an interest rate determined by Coast Federal or, if permitted, deemed
investments chosen by the participant. In the event a participant's employment
with Coast Federal is terminated by Coast Federal following a change in control
of Coast Federal or the participant voluntarily terminates employment due to a
material reduction in responsibilities or compensation benefits following a
change in control of Coast Federal, Coast Federal must pay the participant a
lump sum distribution of such participant's account in January of the year
following the year of termination, unless the participant has requested
otherwise in writing at least one year prior to such change in control. Assuming
termination of the employment of Coast's executive officers, lump sum
distributions of their accounts would be made to the executive officers, in
January, 1999, as a result of the Merger being deemed a change in control under
the Deferred Compensation Plan. However, if the participant has elected to
invest amounts deferred under the Deferred Compensation Plan in an illiquid
investment (such as an annuity), such amounts will be paid out in accordance
with the terms of such investment and shall not be subject to the change of
control provisions.
Coast Executives and the CPR Trust.
Four senior Coast executives (Messrs. Martin, Hunt, Raiden and Barritt)
with knowledge of the facts underlying the Litigation will be the Litigation
Trustees of the CPR Trust. Mr. Martin (currently Chairman of the Board and Chief
Executive Officer of Coast and Coast Federal), Mr. Hunt (currently President and
Chief Operating Officer of Coast and Coast Federal) and Mr. Barritt (currently
Senior Executive Vice President and Chief Financial Officer of Coast and Coast
Federal) were officers of Coast and Coast Federal both at the time that Coast
Federal entered into the agreement with the federal government to treat certain
amounts as a permanent addition to Coast Federal's regulatory capital in
connection with Coast Federal's acquisition of Central Savings and Loan
Association, and also at the time of the alleged breach of that agreement by the
federal government that gave rise to the claims underlying the Litigation. Mr.
Martin, Mr. Hunt and Mr. Barritt, together with Mr. Raiden (currently Senior
Executive Vice President of Coast and Coast Federal and General Counsel of
Coast, and who joined Coast soon after the alleged breach of the agreement by
the federal government and served as General Counsel of Coast Federal until
December 3, 1997), have been
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involved in the prosecution of the Litigation to date. The CPR Trust Agreement
will provide that, as Litigation Trustees, they will have sole and exclusive
right to instruct Coast Federal (and its successors) with respect to the
prosecution of the Litigation and Ahmanson shall cause Coast Federal (and its
successors) to follow these instructions other than instructions that are not
reasonable. Litigation Trustees will not be permitted to hold any other
full-time employment during the term of their tenure as Litigation Trustees
prior to the receipt of the Litigation Proceeds by the Ahmanson Group. Each of
the initial Litigation Trustees will, as a condition of his continuation as a
Litigation Trustee, be obligated to retain at least 50% of the CPR Certificates
received in the CPR Certificate Distribution and the Merger and upon exercise of
Replacement Options, until the Litigation Proceeds are received by the Ahmanson
Group. Transfers by a Litigation Trustee to his family members or to any trust
created for the benefit of his family will be included in such 50% calculation
for so long as such transferees retain the CPR Certificates. See "The CPR Trust
and the CPR Certificates -- Management of the Litigation -- The Litigation
Trustees-General."
The CPR Trust Agreement will provide that, as compensation, the CPR Trust
will pay each Litigation Trustee, during the term of his service as a Litigation
Trustee, fees of $400,000 per year for five years (except that if the Litigation
is sooner terminated, the remainder of such fees (but in no event with respect
to a period longer than two years after the year in which such termination
occurs) will be accelerated upon final resolution of the Litigation and receipt
by the Ahmanson Group of the Litigation Proceeds), plus reimbursement of all
reasonable out-of-pocket expenses. If the services of the Litigation Trustees
continue to be necessary after the initial five-year period or such receipt of
Litigation Proceeds, the Litigation Trustees will be entitled to a fee of $200
per hour until termination of the CPR Trust.
The CPR Trust Agreement will provide that the Litigation Trustees will have
no liability to Ahmanson, Coast or CPR Certificate holders unless it is
established in a final judicial determination by clear and convincing evidence
that any decision or action was undertaken with deliberate intent to injure the
CPR Certificate holders or with reckless disregard for the best interests of
such holders, and, in any event, any liability will be limited to actual,
proximate, quantifiable damages. The CPR Trust Agreement will provide that the
CPR Trust will be obligated to indemnify and advance expenses to, without
requirement of bond or other security, each Litigation Trustee against any and
all losses, claims, costs, expenses and liabilities arising out of or relating
to, among other things, the Litigation and actions taken by the Litigation
Trustees except that if CPR Certificate holders meet the burden of establishing
in a final judicial determination by clear and convincing evidence that such
losses, claims, costs, expenses or liabilities arose as the result of actions or
decisions undertaken with deliberate intent to injure the CPR Certificate
holders or with reckless disregard for the best interests of such holders by
such Litigation Trustees, no indemnification shall apply. The CPR Trust
Agreement will provide that the CPR Trust will be obligated to obtain liability
insurance to cover its indemnification obligations to the Litigation Trustees
and others and any other liabilities of the Litigation Trustees.
CONDITIONS TO CONSUMMATION
The obligations of Coast and Ahmanson to consummate the Merger are subject
to the satisfaction or written waiver of the following conditions: (a) the
Transaction Proposal shall have been duly adopted by the requisite vote of the
stockholders of Coast; (b) all regulatory approvals required to consummate the
transactions contemplated by the Merger Agreement shall have been obtained and
shall remain in full force and effect and all statutory waiting periods in
respect thereof shall have expired and no such approvals shall contain any
conditions, restrictions or requirements which would reasonably be expected to
(i) following the Effective Time, have a Material Adverse Effect (as defined in
the Merger Agreement) on Ahmanson and its subsidiaries taken as a whole or (ii)
reduce the benefits of the Merger to such a degree that Ahmanson would not have
entered into the Merger Agreement had such conditions, restrictions or
requirements been known at the date of the Merger Agreement; (c) no
administrative agency or commission or other federal, state or local
governmental authority or instrumentality shall have taken any action
prohibiting the consummation of the transactions contemplated by the Merger
Agreement; (d) the Registration Statements shall have become effective and shall
not be subject to a stop order and, if required, the CPR Trust Agreement shall
have been duly qualified under the Trust Indenture Act of 1939, as amended, and
the rules and regulations thereunder;
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(e) the shares of Ahmanson Common Stock to be issued in the Merger shall have
been approved for listing on the NYSE, subject to official notice of issuance;
(f) Coast shall have received an opinion of Cleary, Gottlieb, Steen & Hamilton,
special counsel to Coast, as to certain tax matters; (g) Ahmanson shall have
received an opinion of Sullivan & Cromwell, special counsel to Ahmanson, as to
certain tax matters; (h) the other party's representations and warranties shall
remain accurate and each party shall have performed in all material respects all
of the obligations required to be performed by it pursuant to the Merger
Agreement, and shall have delivered certificates confirming satisfaction of the
foregoing requirements; (i) each party shall have received a letter of the other
party's independent accountants as to certain financial information of the other
party; (j) in the case of Coast, Ahmanson shall have executed and delivered the
Commitment and made the transfer to the CPR Trust with respect to the Expense
Fund (as defined herein); (k) in the case of Ahmanson, holders of no more than
5% of the outstanding shares of Coast Common Stock shall have given notice that
their shares of Coast Common Stock be treated as Dissenters' Shares; and (l) in
the case of Ahmanson, Coast shall have established the CPR Trust and shall have
caused the CPR Trust to issue the CPR Certificates to Coast and shall have
distributed the CPR Certificates to the stockholders of Coast as required by the
Merger Agreement.
The conditions to consummation of the Merger may generally be waived, in
whole or in part, to the extent permissible under applicable law, by the party
for whose benefit the condition has been imposed, without the approval of the
Coast stockholders. See "-- Amendment and Waiver."
No assurances can be provided as to when or if all of the conditions
precedent to the Merger can or will be satisfied or waived by the appropriate
party. As of the date of this Proxy Statement/Prospectus, Ahmanson and Coast
have no reason to believe that any of the conditions set forth above will not be
satisfied.
REGULATORY APPROVALS
The Merger is subject to the approval of the OTS, under the Home Owners'
Loan Act and related OTS regulations. Ahmanson filed an application for such
approval on November 3, 1997. Approval requires consideration by the OTS of
various factors, including assessments of the competitive effect of the
contemplated transaction, the managerial and financial resources and future
prospects of the resulting institution and the effect of the contemplated
transaction on the convenience and needs of the communities to be served. These
regulatory considerations also include, among other things, an assessment of
compliance with the Community Reinvestment Act of 1977 (the "CRA"). Each of Home
Savings and Coast Federal currently has an "outstanding" CRA rating. The
regulations of the OTS require publication of notice of, and an opportunity for
public comment with respect to, the application filed in connection with the
Merger. The public comment period has expired.
The Merger Agreement provides that the obligation of each of Ahmanson and
Coast to consummate the Merger is conditioned upon, among other things, (i) the
receipt of all requisite regulatory approvals, including the approval of the
OTS, (ii) the termination or expiration of all statutory waiting periods in
respect thereof and (iii) no such approvals containing conditions, restrictions
or requirements which would reasonably be expected to, after the Effective Time,
have a Material Adverse Effect on Ahmanson and its subsidiaries taken as a whole
or reduce the benefits of the transactions contemplated in the Merger Agreement
to such a degree that Ahmanson would not have entered into the Merger Agreement
had such been known at the date of the Merger Agreement.
THE MERGER CANNOT PROCEED IN THE ABSENCE OF THE REQUISITE REGULATORY
APPROVALS. THERE CAN BE NO ASSURANCES THAT ALL SUCH REGULATORY APPROVALS WILL BE
OBTAINED OR AS TO THE DATES OF SUCH APPROVALS. THERE CAN ALSO BE NO ASSURANCE
THAT SUCH APPROVALS WILL NOT CONTAIN A CONDITION, RESTRICTION OR REQUIREMENT
THAT CAUSES SUCH APPROVALS TO FAIL TO SATISFY THE CONDITIONS SET FORTH IN THE
MERGER AGREEMENT. SEE "-- THE EFFECTIVE TIME," "-- CONDITIONS TO CONSUMMATION"
AND "-- AMENDMENT AND WAIVER."
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AMENDMENT AND WAIVER
To the extent permitted by law, Coast and Ahmanson may amend the Merger
Agreement by written agreement at any time prior to the Effective Time. Prior to
the Effective Time, either Coast or Ahmanson may waive any default in the
performance of any term of the Merger Agreement by the other party, may waive or
extend the time for the fulfillment by the other party of any of its obligations
under the Merger Agreement, and may waive any of the conditions precedent to the
obligations of such party under the Merger Agreement, except any condition that,
if not satisfied, would result in the violation of an applicable law or
governmental regulation.
TERMINATION; TERMINATION FEE
The Merger Agreement may be terminated, and the Merger abandoned, at any
time prior to the Effective Time by mutual consent of the boards of directors of
Coast and Ahmanson. In addition, the Merger Agreement may be terminated, and the
Merger abandoned, prior to the Effective Time by (a) either Ahmanson or Coast
if: (i) the other party breaches, and does not timely cure any breach of, a
representation, warranty, covenant or other agreement contained in the Merger
Agreement and such breach, individually or in the aggregate, would be reasonably
likely to have a Material Adverse Effect (as defined in the Merger Agreement) on
the non-breaching party; (ii) any consent or approval of certain regulatory
authorities is denied by final nonappealable action of such authority or the
Coast stockholders fail to approve the Transaction Proposal; or (iii) the Merger
has not been consummated by June 30, 1998; or (b) by Ahmanson, if the Coast
Board has failed to recommend approval of the Merger, has withdrawn such
recommendation or has modified or changed such recommendation in a manner
adverse to Ahmanson.
Coast would be required to pay Ahmanson a Termination Fee of $35 million if
(a) the Merger Agreement is terminated (i) by Ahmanson due to a breach by Coast
of any representation, warranty or covenant contained in the Merger Agreement,
to a failure by the Coast Board to recommend approval of the Merger to Coast
stockholders, or to a withdrawal, modification, or change of such recommendation
in a manner adverse in any respect to the interests of Ahmanson, or (ii) by
Coast because the Coast stockholders vote to reject the Merger, if in either
case an acquisition proposal by a third party with respect to Coast or any of
its subsidiaries exists at the time the event giving rise to such termination
right occurs; and (b) a definitive agreement with respect to an acquisition
proposal by a third party is entered into by Coast or any of its subsidiaries
within 12 months of such termination.
CONDUCT OF BUSINESS PENDING THE MERGER
Coast.
Coast has agreed in the Merger Agreement, unless the prior written consent
of Ahmanson is obtained and except as otherwise previously disclosed, not to,
and to cause each of its subsidiaries not to:
(a) conduct the business of Coast and its subsidiaries other than in
the ordinary and usual course or fail to use reasonable efforts to preserve
intact their business organizations and assets and maintain their rights,
franchises and existing relations with customers, suppliers, employees and
business associates, or take any action reasonably likely to have an
adverse effect upon Coast's ability to perform any of its material
obligations under the Merger Agreement;
(b) other than pursuant to securities or obligations convertible into
or exercisable or exchangeable for, or giving any person any right to
subscribe for or acquire, or any options, calls or commitments relating to,
or any stock appreciation right or other instrument the value of which is
determined in whole or in part by reference to the market price or value
of, shares of capital stock of such person (each, a "Right") previously
disclosed and outstanding on the date of the Merger Agreement, (i) issue,
sell or otherwise permit to become outstanding, or authorize the creation
of, any additional shares of Coast Common Stock or Coast preferred stock or
any Rights, (ii) enter into any agreement with respect to the foregoing, or
(iii) permit any additional shares of Coast Common Stock or Coast preferred
stock to
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become subject to new grants of employee or director stock options, other
Rights or similar stock-based employee rights.
(c) (i) make, declare, pay or set aside for payment any dividend
(other than dividends from wholly owned subsidiaries to Coast or another
wholly owned subsidiary of Coast) on or in respect of, or declare or make
any distribution on any shares of Coast Common Stock or Coast preferred
stock or (ii) directly or indirectly adjust, split, combine, redeem,
reclassify, purchase or otherwise acquire, any shares of its capital stock;
(d) enter into or amend or renew any employment, consulting, severance
or similar agreements or arrangements with any director, officer or
employee of Coast or its subsidiaries, or hire any new employees at the
rank of senior vice president or above, or grant any salary or wage
increase or increase any employee benefit (including incentive or bonus
payments), except (i) for normal individual increases in compensation to
employees (other than any senior vice presidents or any employees ranking
senior to senior vice presidents) in the ordinary course of business
consistent with past practice as previously disclosed, (ii) for other
changes that are required by applicable law, (iii) to satisfy contractual
obligations previously disclosed and existing as of the date of the Merger
Agreement, or (iv) for grants of awards to newly hired employees consistent
with past practice and as previously disclosed, (v) agreements to provide
retention bonuses to employees made in accordance with the terms of the
Merger Agreement, (vi) the annual rollover of executive employment
agreements as previously disclosed or (vii) agreements to provide bonuses
for the 1997 calendar year consistent with past practice up to an aggregate
of $1.9 million;
(e) enter into, establish, adopt or amend (except (i) as may be
required by applicable law, (ii) to satisfy contractual obligations
previously disclosed and existing as of the date of the Merger Agreement or
(iii) as otherwise provided in the Merger Agreement) any pension,
retirement, stock option, stock purchase, savings, profit sharing, deferred
compensation, consulting, bonus, group insurance or other employee benefit,
incentive or welfare contract, plan or arrangement, or any trust agreement
(or similar arrangement) related thereto, in respect of any director,
officer or employee of Coast or its subsidiaries, or take any action to
accelerate the vesting or exercisability of stock options, restricted stock
or other compensation or benefits payable thereunder;
(f) except as previously disclosed, sell, transfer, mortgage, encumber
or otherwise dispose of or discontinue any of its assets, deposits,
business or properties except in the ordinary course of business and in a
transaction that is not material to Coast and its subsidiaries taken as a
whole;
(g) except as previously disclosed, acquire (other than by way of
foreclosures or acquisitions of control in a bona fide fiduciary capacity
or in satisfaction of debts previously contracted in good faith, in each
case in the ordinary and usual course of business consistent with past
practice) all or any portion of, the assets, business, deposits or
properties of any other entity except in the ordinary course of business
and in a transaction that is not material to Coast and its subsidiaries
taken as a whole;
(h) amend the Coast Charter, Coast By-laws or the certificate of
incorporation or by-laws (or similar governing documents) of any of Coast's
subsidiaries;
(i) implement or adopt any change in its accounting principles,
practices or methods, other than as may be required by generally accepted
accounting principles;
(j) (i) amend, or take any action adverse to Ahmanson with respect to,
the Coast Rights Plan (as defined herein) or (ii), except in the ordinary
course of business consistent with past practice or with the consent of
Ahmanson (which consent shall not be unreasonably withheld or delayed),
enter into or terminate any contract material to its assets, business or
operations or amend or modify in any material respect any such existing
material contract;
(k) except in the ordinary course of business consistent with past
practice or with the consent of Ahmanson (which consent shall not be
unreasonably withheld or delayed), settle any claim, action or proceeding
against it, except for any claim, action or proceeding involving solely
money damages in an
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amount, individually or in the aggregate for all such settlements, that is
not material to Coast and its subsidiaries, taken as a whole and that does
not create precedent for claims that are reasonably likely to be material
to Coast and its subsidiaries taken as a whole;
(l) (i) take any action while knowing that such action would, or is
reasonably likely to, prevent or impede the Merger from qualifying as a
reorganization within the meaning of Section 368 of the Code; or (ii) take
any action that is intended or is known to be reasonably likely to result
in (A) any of its representations and warranties set forth in the Merger
Agreement being or becoming untrue in any material respect at any time at
or prior to the Effective Time, (B) any of the conditions to the Merger set
forth under "-- Conditions to Consummation" not being satisfied or (C) a
material violation of any provision of the Merger Agreement except, in each
case, as may be required by applicable law or regulation;
(m) except as required by applicable law or regulation or with the
consent of Ahmanson (which consent shall not be unreasonably withheld or
delayed), (i) implement or adopt any material change in its interest rate
and other risk management policies, procedures or practices or (ii) fail to
follow in all material respects its existing policies or practices with
respect to managing its exposure to interest rate and other risk;
(n) incur any indebtedness for borrowed money other than in the
ordinary course of business; or
(o) agree or commit to do any of the foregoing.
Ahmanson.
Ahmanson has agreed in the Merger Agreement, unless the prior written
consent of Coast is obtained, and except as otherwise contemplated by the Merger
Agreement, not to:
(a) make, declare, pay or set aside for payment any dividends other
than quarterly dividends in an amount, and with record and payment dates,
consistent with past practice (provided that Ahmanson may raise its regular
quarterly dividend rate by an amount not exceeding 20%);
(b) (i) take any action while knowing that such action would, or is
reasonably likely to, prevent or impede the Merger from qualifying as a
reorganization within the meaning of Section 368 of the Code; (ii)
repurchase any Ahmanson Common Stock or Ahmanson Preferred Stock (as
defined herein) such that an Ahmanson stockholder vote would be required
for consummation of the Merger or which would have the effect of a
recapitalization of Ahmanson or at prices reflecting a significant premium
to the prices at which the Ahmanson Common Stock is then trading; or (iii)
take any action that is intended or is known to be reasonably likely to
result in (A) any of its representations and warranties set forth in the
Merger Agreement being or becoming untrue in any material respect at any
time at or prior to the Effective Time, (B) any of the conditions to the
Merger set forth under "-- Conditions to Consummation" not being satisfied
or (C) a material violation of any provision of the Merger Agreement
except, in each case, as may be required by applicable law or regulation;
or
(c) agree or commit to do any of the foregoing.
EXPENSES AND FEES
The Merger Agreement provides that each party shall be responsible for all
expenses incurred by it in connection with the Merger Agreement and the
transactions contemplated by the Merger Agreement, except that Ahmanson and
Coast have agreed to share equally all Commission filing fees and all printing
expenses payable in connection with the Registration Statements and this Proxy
Statement/Prospectus. In the event of a termination of the Merger Agreement
under certain circumstances, Coast would be obligated to pay Ahmanson a fee of
$35 million. See "-- Termination; Termination Fee."
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ACCOUNTING TREATMENT
Upon consummation of the Merger, Ahmanson will account for the acquisition
of Coast using the purchase method of accounting. Accordingly, the consideration
to be paid in the Merger will be allocated to assets acquired and liabilities
assumed based on their estimated fair values at the Effective Date. Income (or
loss) of Coast prior to the Effective Date will not be included in income of the
combined company.
STOCK EXCHANGE LISTING OF AHMANSON COMMON STOCK
Ahmanson has agreed to use its reasonable best efforts to list, prior to
the Effective Date, on the NYSE, subject to official notice of issuance, the
shares of Ahmanson Common Stock to be issued to the holders of Coast Common
Stock in the Merger, and such listing is a condition to consummation of the
Merger.
RESALES OF AHMANSON COMMON STOCK
The shares of Ahmanson Common Stock issued in connection with the Merger
will be freely transferable under the Securities Act, except for shares issued
to any stockholder who may be deemed to be an "affiliate" (generally including,
without limitation, directors, certain executive officers, and beneficial owners
of 10% or more of any class of capital stock) of Coast for purposes of Rule 145
under the Securities Act as of the date of the Special Meeting. Such affiliates
may not sell their shares of Ahmanson Common Stock acquired in connection with
the Merger except pursuant to an effective registration statement under the
Securities Act or other applicable exemption from the registration requirements
of the Securities Act.
Coast has agreed in the Merger Agreement to use its reasonable best efforts
to cause each person who may be deemed to be an "affiliate" of Coast to execute
and deliver to Ahmanson an agreement pursuant to which such person agrees, among
other things, not to offer to sell, transfer or otherwise dispose of any of the
shares of Ahmanson Common Stock distributed to them pursuant to the Merger
except in compliance with Rule 145 under the Securities Act, or in a transaction
that, in the opinion of counsel reasonably satisfactory to Ahmanson, is
otherwise exempt from the registration requirements of the Securities Act, or in
an offering which is registered under the Securities Act. Ahmanson may place
restrictive legends on certificates representing Ahmanson Common Stock issued to
all persons who are deemed to be "affiliates" of Coast under Rule 145. This
Proxy Statement/Prospectus does not cover resales of Ahmanson Common Stock
received by any person who may be deemed to be an affiliate of Coast.
ACQUISITION PROPOSALS
Coast has agreed in the Merger Agreement that it shall not, and shall cause
its subsidiaries and its and its subsidiaries' officers, directors, agents,
advisors and affiliates not to, solicit or encourage inquiries or proposals with
respect to, or engage in any negotiations concerning, or provide any
confidential information to, or have any discussions with, any person relating
to, any tender or exchange offer, proposal for a merger, consolidation or other
business combination involving Coast or any of its subsidiaries or any proposal
or offer to acquire in any manner a substantial equity interest in, or a
substantial portion of the assets or deposits of, Coast or any of its
subsidiaries (an "Acquisition Proposal"), or waive any provision of or amend the
terms of the Coast Rights Plan in respect of an Acquisition Proposal; provided,
however, that the Merger Agreement does not (a) require the Coast Board to
recommend stockholder approval of the Merger following an Acquisition Proposal,
(b) prevent Coast or the Coast Board from (i) engaging in any discussions or
negotiations with, or providing any information to, any person in response to an
unsolicited bona fide written Acquisition Proposal by any such person or (ii)
recommending such an unsolicited bona fide written Acquisition Proposal to the
holders of Coast Common Stock or (c) prevent Coast from waiving any provision of
or amending the terms of the Coast Rights Plan in respect of an Acquisition
Proposal, if and only if, with respect to the actions described in clause (a),
(b) or (c), as applicable, (A) the Coast Board concludes in good faith that the
Acquisition Proposal, if consummated, would result in a transaction more
favorable to holders of Coast Common Stock than the transaction contemplated by
the Merger Agreement, (B) the Coast Board determines in good faith based upon
the advice of outside counsel that such action is legally necessary for it to
act in a manner consistent with its fiduciary duties under applicable law; and
(C) prior to providing any information or data to
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any person or entering into discussions or negotiations with any person, the
Coast Board notifies Ahmanson immediately of such inquiries, proposals or offers
received by, any such information requested from, or any such discussions or
negotiations sought to be initiated or continued with Coast or any subsidiary of
Coast. Coast has agreed promptly (within 24 hours) to advise Ahmanson following
the receipt by Coast of any Acquisition Proposal and the substance thereof
(including the identity of the person making such Acquisition Proposal), and to
advise Ahmanson of any developments with respect to such Acquisition Proposal
immediately upon the occurrence thereof.
EARNINGS ESTIMATES
In connection with the announcement of the Merger, Ahmanson announced that
it estimated that the Merger will be accretive to Ahmanson's reported earnings
per share in 1998, 1999 and 2000 by 2%, 4% and 6%, respectively, and to
Ahmanson's cash earnings per share (i.e., reported earnings before amortization
of intangibles) in 1998, 1999 and 2000 by 6%, 10% and 10%, respectively. This
estimate includes Ahmanson's current estimates of annual cost savings equal to
$75 million pre-tax (substantially all of which Ahmanson expects to be able to
achieve within 12 months of the Effective Date) and no revenue enhancements.
Ahmanson estimates it will incur a $75 million pre-tax charge in connection with
the Merger. See "Cautionary Statement Regarding Forward-Looking Statements" on
page 6 hereof.
APPRAISAL RIGHTS
Record holders of Coast Common Stock are entitled to appraisal rights under
Section 262 of the DGCL ("Section 262"). The following discussion represents a
summary of the material provisions of Section 262. For additional information,
reference is made to the full text of Section 262, which is reprinted in its
entirety as Appendix E to this Proxy Statement/Prospectus. A person having a
beneficial interest in shares of Coast Common Stock held of record in the name
of another person, such as a broker or nominee, must act promptly to cause the
record holder to follow the steps summarized below properly and in a timely
manner to perfect the appraisal rights provided under Section 262.
Under Section 262, where a merger is to be submitted for approval at a
meeting of stockholders, as in the case of the Special Meeting, not less than 20
days prior to the meeting, a constituent corporation must notify each of the
holders of its stock for which appraisal rights are available that such
appraisal rights are available and include in each such notice a copy of Section
262. THIS PROXY STATEMENT/PROSPECTUS SHALL CONSTITUTE SUCH NOTICE TO THE RECORD
HOLDERS OF COAST COMMON STOCK. ANY SUCH STOCKHOLDER WHO WISHES TO EXERCISE SUCH
APPRAISAL RIGHTS SHOULD REVIEW THE FOLLOWING DISCUSSION AND APPENDIX E
CAREFULLY, BECAUSE FAILURE TO TIMELY AND PROPERLY COMPLY WITH THE PROCEDURES
SPECIFIED WILL RESULT IN THE LOSS OF APPRAISAL RIGHTS UNDER THE DGCL. Moreover,
because of the complexities of the procedures for exercising the right to seek
appraisal of the Coast Common Stock, Coast recommends that Coast stockholders
who consider exercising such rights seek the advice of counsel.
Under the DGCL, a record holder of shares of Coast Common Stock who makes
the demand described below with respect to such shares, who continuously is the
record holder of such shares through the Effective Time, who otherwise complies
with the statutory requirements set forth in Section 262 and who neither votes
in favor of approval of the Transaction Proposal nor consents thereto in writing
will be entitled to have their shares of Coast Common Stock appraised by the
Delaware Court of Chancery and to receive payment of the "fair value" of such
shares as described below. Accordingly, in connection with any appraisal
proceeding, the "fair value" of shares of Coast Common Stock is to be determined
as of immediately prior to the CPR Certificate Distribution and the Merger. Such
holders are, in such circumstances, entitled to appraisal rights because they
hold stock of a constituent corporation to the Merger and may be required by the
Merger Agreement to accept consideration in the Merger, at least in part, other
than in the form of Ahmanson Common Stock. Specifically, Ahmanson's entering
into of the Commitment constitutes part of the Merger Consideration to the
stockholders of Coast. Since holders of shares of Coast Common Stock wishing to
exercise appraisal rights must not vote in favor of approval of the Transaction
Proposal, such holders should
60
<PAGE> 67
not deliver unmarked proxies (i.e., proxies without instructions) to Coast as
such proxies will be voted FOR such approval.
A holder of shares of Coast Common Stock wishing to exercise his or her
appraisal rights must deliver to the Secretary of Coast, before the vote on the
Merger Agreement at the Special Meeting, a written demand for appraisal of his
or her shares of Coast Common Stock. Merely voting or delivering a proxy
directing a vote against approval of the Transaction Proposal will not
constitute a demand for appraisal. A written demand is essential. Such written
demand must reasonably inform Coast of the identity of the holder and that such
holder intends thereby to demand appraisal of the holder's shares. All written
demands for appraisal of Coast Common Stock should be sent or delivered to Coast
Savings Financial, Inc., 1000 Wilshire Boulevard, Los Angeles, California 90017,
Attn: Corporate Secretary. In addition, a holder of shares of Coast Common Stock
wishing to exercise his or her appraisal rights must hold such shares of record
on the date the written demand for appraisal is made and must hold such shares
continuously through the Effective Time. A demand for appraisal should be
executed by or on behalf of the stockholder of record, fully and correctly, as
such stockholder's name appears on such stockholder's stock certificates, should
specify the stockholder's name and mailing address, the number of shares of
Coast Common Stock owned and that such stockholder intends thereby to demand
appraisal of such stockholder's stock. However, such demand will be sufficient
if it reasonably informs Coast of the stockholder's identity and intent to
demand the appraisal of his shares. If the shares are owned of record in a
fiduciary capacity, such as by a trustee, guardian or custodian, execution of
the demand should be made in that capacity, and if the shares of the Coast
Common Stock are owned of record by more than one person, as in a joint tenancy
or tenancy in common, the demand should be executed by or on behalf of all joint
owners. An authorized agent, including one or more joint owners, may execute a
demand for appraisal on behalf of a holder of record; however, the agent must
identify the record owner or owners and expressly disclose the fact that in
executing the demand for appraisal, the agent is agent for such owner or owners.
A record holder (such as a broker) who holds shares of Coast Common Stock as a
nominee for several beneficial owners may exercise appraisal rights with respect
to the shares of Coast Common Stock held for one or more beneficial owners while
not exercising such rights with respect to the shares of Coast Common Stock held
for other beneficial owners; in such case, the written demand should set forth
the number of shares as to which appraisal is sought and where no number of
shares is expressly mentioned, the demand will be presumed to cover all shares
of Coast Common Stock held in the name of the record owner. Stockholders who
hold their shares of Coast Common Stock in brokerage accounts or other nominee
forms and who wish to exercise appraisal rights must take all necessary steps in
order that a demand for appraisal is made by the record holder of such shares
and are urged to consult with their brokers to determine the appropriate
procedures for the making of a demand for appraisal by the record holder.
Within ten days after the Effective Time of the Merger, Ahmanson, as the
surviving corporation, must send a notice as to the effectiveness of the Merger
to each person who has satisfied the appropriate provisions of Section 262 and
who is entitled to appraisal rights under Section 262. Within 120 days after the
Effective Time, any holder of record of shares of Coast Common Stock who has
complied with the requirements for exercise of appraisal rights will be
entitled, upon written request, to receive from the surviving corporation, a
statement setting forth (a) the aggregate number of shares of Coast Common Stock
not voted in favor of the Merger Agreement and with respect to which demands for
appraisal have been received and (b) the aggregate number of holders of such
shares. Any such statement must be mailed within ten days after a written
request therefor has been received by Ahmanson, as the surviving corporation.
Within 120 days after the Effective Time, but not thereafter, Ahmanson, as
the surviving corporation, or any holder of shares of Coast Common Stock who has
complied with the foregoing procedures and who is entitled to appraisal rights
under Section 262 may file a petition in the Delaware Court of Chancery
demanding a determination of the "fair value" of such shares. Ahmanson, as the
surviving corporation, is not under any obligation to file a petition with
respect to the appraisal of the "fair value" of the shares of Coast Common Stock
and neither Ahmanson nor Coast presently intends that Ahmanson, as the surviving
corporation, file such a petition. Accordingly, it is the obligation of the
stockholders to initiate all necessary action to perfect their appraisal rights
within the time prescribed in Section 262. A holder of shares of Coast
61
<PAGE> 68
Common Stock will fail to perfect, or effectively lose, his or her right to
appraisal if no petition for appraisal of shares of Coast Common Stock is filed
within 120 days after the Effective Time.
If a petition for an appraisal is timely filed, after a hearing on such
petition, the Delaware Court of Chancery will determine the holders of shares of
Coast Common Stock entitled to appraisal rights and will appraise the "fair
value" of the shares of Coast Common Stock, exclusive of any element of value
arising from the accomplishment or expectation of the Merger. Holders
considering seeking appraisal should be aware that the "fair value" of their
shares of Coast Common Stock as determined under Section 262 could be more than,
the same as, or less than the value of the merger consideration they would
receive if they did not seek appraisal. The Delaware Supreme Court has stated
that "proof of value by any techniques or methods which are generally considered
acceptable in the financial community and otherwise admissible in court" should
be considered in the appraisal proceedings. The Delaware Supreme Court has also
stated that, in making this determination of fair value, the court must consider
market value, asset value, dividends, earnings prospects, the nature of the
enterprise and any other facts which could be ascertained as of the date of the
merger that throw any light on future prospects of the merged corporation. The
Delaware Supreme Court has also stated that "elements of future value, including
the nature of the enterprise, which are known or susceptible of proof as of the
date of the merger and not the product of speculation, may be considered." In
addition, Delaware courts have decided that the statutory appraisal remedy,
depending on factual circumstances, may or may not be a dissenter's exclusive
remedy.
The Delaware Court of Chancery will determine the amount of interest, if
any, to be paid upon the amounts to be received by persons whose shares of Coast
Common Stock have been appraised. The costs of the action may be determined by
such court and taxed upon the parties as the court deems equitable. The Delaware
Court of Chancery may also order that all or a portion of the expenses incurred
by any holder of shares of Coast Common Stock in connection with an appraisal,
including, without limitation, reasonable attorneys' fees and the fees and
expenses of experts utilized in the appraisal proceeding, be charged pro rata
against the value of all of the shares of Coast Common Stock entitled to
appraisal.
A holder may withdraw his or her demand for appraisal by delivering to
Ahmanson, as the surviving corporation, a written withdrawal of his or her
demand for appraisal and acceptance of the Merger, except that any such attempt
to withdraw made more than 60 days after the Effective Time will require the
written approval of Ahmanson, as the surviving corporation. Failure to follow
the steps required by Section 262 for perfecting appraisal rights will result in
the loss of such rights.
Any holder of shares of Coast Common Stock who has duly demanded an
appraisal in compliance with Section 262 will not, after the Effective Time, be
entitled to vote the shares of Coast Common Stock subject to such demand for any
purpose or be entitled to the payment of dividends or other distributions on
those shares (except dividends or other distributions payable to holders of
record of shares of Coast Common Stock as of a date prior to the Effective
Time).
Each CPR Certificate distributed to each Coast stockholder provides that it
shall automatically be redeemed by Ahmanson, as the surviving corporation, for
$0.01 in cash immediately following the Merger if the holder of the share as to
which such CPR Certificate was issued has given notice of an intent to exercise
appraisal rights (if any). If any such Coast stockholder subsequently withdraws,
or fails to perfect, such appraisal demand, Ahmanson will deliver to such holder
CPR Certificates as to the number of Coast shares as to which such appraisal
demand was withdrawn or not perfected.
It is a condition to the obligation of Ahmanson to consummate the Merger
that holders of no more than 5% of the outstanding shares of Coast Common Stock
shall have given notice that their shares of Coast Common Stock be treated as
Dissenters' Shares.
FAILURE TO COMPLY STRICTLY WITH THE PROCEDURES SET FORTH IN SECTION 262 OF
THE DGCL WILL RESULT IN THE LOSS OF A COAST STOCKHOLDER'S STATUTORY APPRAISAL
RIGHTS WITH RESPECT TO SHARES OF COAST COMMON STOCK. CONSEQUENTLY, ANY COAST
STOCKHOLDER WISHING TO EXERCISE APPRAISAL RIGHTS IS URGED TO CONSULT LEGAL
COUNSEL BEFORE ATTEMPTING TO EXERCISE SUCH RIGHTS.
62
<PAGE> 69
AHMANSON AND COAST UNAUDITED
PRO FORMA COMBINED FINANCIAL INFORMATION
The following unaudited pro forma combined financial statements were
prepared in connection with the proposed Merger (in which each outstanding share
of Coast Common Stock will be exchanged for 0.8082 of a share of Ahmanson Common
Stock, valued for purposes of accounting for the Merger at a price per share of
Ahmanson Common Stock of $56.45, based on the quoted market price of Ahmanson
Common Stock for a period of time shortly before and after the points in time
Ahmanson and Coast reached agreement on the purchase price and the terms and
conditions of the proposed Merger were publicly announced), and give effect to
the purchase accounting adjustments and other assumptions described in the
accompanying notes. The unaudited pro forma combined statement of financial
condition is based upon the condensed consolidated statements of financial
condition (unaudited) of Ahmanson and Coast as of September 30, 1997. The
unaudited pro forma combined statement of operations for the year ended December
31, 1996 is based upon the consolidated statements of operations of Ahmanson and
Coast for the year ended December 31, 1996. The unaudited pro forma combined
statement of operations for the nine months ended September 30, 1997 is based
upon the condensed consolidated statement of operations (unaudited) of Ahmanson
and Coast for the nine months ended September 30, 1997.
The adjustments included in the unaudited pro forma combined financial
statements are subject to update as additional information becomes available. An
increase in the unallocated portion of the purchase price remaining after fair
value adjustments will result in a greater final allocation to goodwill, which
will increase amortization expense and will reduce tangible common equity. A
decrease in the unallocated portion of the purchase price remaining after fair
value adjustments will have the opposite effects. Any CPR Certificates received
by Ahmanson in connection with the Merger will be recorded at fair value and
will also reduce goodwill. Accordingly, the final pro forma combined amounts
will differ from those set forth in the unaudited pro forma combined financial
statements set forth herein.
The information shown below should be read in conjunction with, and is
qualified in its entirety by reference to, the consolidated statement of
financial condition and consolidated statement of operations at and for the year
ended December 31, 1996 of Ahmanson and the consolidated statement of financial
condition and consolidated statement of operations at and for the year ended
December 31, 1996 of Coast. The pro forma data are presented for informational
purposes and are not necessarily indicative of the financial position or the
results of operations of the combined company that actually would have occurred
had the Merger been consummated as of the dates or at the beginning of the
periods presented. The pro forma amounts are also not necessarily indicative of
the future financial position or future results of operations of Ahmanson as the
surviving corporation. In particular, Ahmanson expects to achieve significant
operating cost savings as a result of the Merger. These cost savings, assuming
they are realized, would significantly reduce non-interest expense and increase
net income. Additionally, Ahmanson believes opportunities exist to enhance
certain revenues through the expansion of consumer and business loans, cash
management services, retail banking and investment sales generated through Coast
Federal branches. These revenue enhancements, if they are realized (which cannot
be assured as to amount or timing), would increase net interest income or fee
income and increase net income. No adjustment has been included in the pro forma
amounts for such cost savings or revenue enhancements.
63
<PAGE> 70
AHMANSON AND COAST
PRO FORMA COMBINED STATEMENT OF FINANCIAL CONDITION
SEPTEMBER 30, 1997
(UNAUDITED)
<TABLE>
<CAPTION>
HISTORICAL
---------------- PRO FORMA PRO FORMA
AHMANSON COAST ADJUSTMENTS COMBINED
------- ------ ------------ ----------
(IN MILLIONS)
<S> <C> <C> <C> <C>
ASSETS
Cash and investment securities.................... $1,084 $ 592 $ -- $ 1,676
Mortgage-backed securities (MBS).................. 13,157 2,068 11 15,236
Loans, net of the allowance for loan losses....... 30,684 6,068 12 36,764
Goodwill and core deposit intangibles............. 286 5 416 707
Other assets...................................... 1,588 307 -- 1,895
------- ------ ---- -------
Total assets.................................... $46,799 $9,040 $ 439 $ 56,278
======= ====== ==== =======
LIABILITIES, COMPANY-OBLIGATED CAPITAL SECURITIES
OF SUBSIDIARY TRUST AND STOCKHOLDERS' EQUITY
Deposits.......................................... $32,447 $6,446 $ 10 $ 38,903
Borrowings........................................ 10,576 1,989 6 12,571
Other liabilities................................. 1,242 135 42 1,419
------- ------ ---- -------
Total liabilities............................... 44,265 8,570 58 52,893
Company-obligated Capital Securities of Subsidiary
Trust........................................... 148 -- -- 148
Stockholders' equity
Preferred stock................................... 483 -- -- 483
Common stock...................................... 1 -- -- 1
Additional paid-in capital, net of treasury
stock........................................... (165) 267 584 686
Retained earnings................................. 2,071 202 (202) 2,071
Other............................................. (4) 1 (1) (4)
------- ------ ---- -------
Total stockholders' equity...................... 2,386 470 381 3,237
------- ------ ---- -------
Total liabilities, Company-obligated Capital
Securities of Subsidiary Trust and
stockholders' equity......................... $46,799 $9,040 $ 439 $ 56,278
======= ====== ==== =======
</TABLE>
See accompanying Notes to Pro Forma Combined Financial Statements.
64
<PAGE> 71
AHMANSON AND COAST
PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997
(UNAUDITED)
<TABLE>
<CAPTION>
HISTORICAL
------------------ PRO FORMA PRO FORMA
AHMANSON COAST ADJUSTMENTS COMBINED
-------- ----- ----------- ---------
(IN MILLIONS, EXCEPT PER COMMON SHARE DATA)
<S> <C> <C> <C> <C>
Interest income
Loans............................................ $1,733 $ 359 $ (2) $ 2,090
MBS.............................................. 777 97 (1) 873
Other............................................ 51 17 -- 68
------ ---- --- ------
Total interest income.......................... 2,561 473 (3) 3,031
------ ---- --- ------
Interest expense
Deposits......................................... 1,115 220 (4) 1,331
Borrowings....................................... 518 87 -- 605
------ ---- --- ------
Total interest expense......................... 1,633 307 (4) 1,936
------ ---- --- ------
Net interest income.............................. 928 166 1 1,095
Provision for loan losses........................ 57 21 -- 78
------ ---- --- ------
Net interest income after provision for loan
losses......................................... 871 145 1 1,017
------ ---- --- ------
Non-interest income.............................. 265 37 -- 302
Non-interest expense............................. 635 120 17 772
------ ---- --- ------
Income before income taxes....................... 501 62 (16) 547
Income taxes..................................... 187 17 (2) 202
------ ---- --- ------
Net income....................................... $ 314 $ 45 $ (14) $ 345
====== ==== === ======
Net income applicable to common stock............ $ 289 $ 45 $ (14) $ 320
====== ==== === ======
Net income per common share
Primary........................................ $ 2.89 $ 2.78
====== ======
Fully diluted.................................. $ 2.69 $ 2.61
====== ======
Dividends declared............................... $ 0.66 $ 0.66
====== ======
Weighted average common shares outstanding
Primary........................................ 100.0 15.1 115.1
====== === ======
Fully diluted.................................. 112.4 15.1 127.5
====== === ======
</TABLE>
See accompanying Notes to Pro Forma Combined Financial Statements.
65
<PAGE> 72
AHMANSON AND COAST
PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 30, 1996
(UNAUDITED)
<TABLE>
<CAPTION>
HISTORICAL
----------------- PRO FORMA PRO FORMA
AHMANSON COAST ADJUSTMENTS COMBINED
-------- ----- ----------- ---------
(IN MILLIONS, EXCEPT PER COMMON SHARE DATA)
<S> <C> <C> <C> <C>
Interest income
Loans................................................... $2,297 $ 450 $ (2) $ 2,745
MBS..................................................... 1,161 132 (2) 1,291
Other................................................... 57 22 -- 79
------ ---- ---- ------
Total interest income................................. 3,515 604 (4) 4,115
------ ---- ---- ------
Interest expense
Deposits................................................ 1,524 286 (5) 1,805
Borrowings.............................................. 738 103 -- 841
------ ---- ---- ------
Total interest expense................................ 2,262 389 (5) 2,646
------ ---- ---- ------
Net interest income..................................... 1,253 215 1 1,469
Provision for loan losses............................... 145 70 -- 215
------ ---- ---- ------
Net interest income after provision for loan losses..... 1,108 145 1 1,254
------ ---- ---- ------
Non-interest income..................................... 252 50 -- 302
Non-interest expense
SAIF recapitalization................................... 244 42 -- 286
Other................................................... 935 164 23 1,122
------ ---- ---- ------
Total non-interest expense............................ 1,179 206 23 1,408
------ ---- ---- ------
Income before income taxes.............................. 181 (11) (22) 148
Income tax expense (benefit)............................ 35 (22) (4) 9
------ ---- ---- ------
Net income.............................................. $ 146 $ 11 $ (18) $ 139
====== ==== ==== ======
Net income applicable to common stock................... $ 100 $ 11 $ (18) $ 93
====== ==== ==== ======
Net income per common share
Primary............................................... $ 0.91 $ 0.75
====== ======
Fully diluted......................................... $ 0.91 $ 0.74
====== ======
Dividends declared...................................... $ 0.88 $ 0.88
====== ======
Weighted average common shares outstanding
Primary............................................... 109.7 15.1 124.8
====== ==== ======
Fully diluted......................................... 109.7 15.1 124.8
====== ==== ======
</TABLE>
See accompanying Notes to Pro Forma Combined Financial Statements.
66
<PAGE> 73
AHMANSON AND COAST
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE A: BASIS OF PRESENTATION
The unaudited pro forma combined statement of financial condition combines
the historical consolidated statements of financial condition (unaudited) of
Ahmanson and Coast as if the Merger had become effective on September 30, 1997.
The unaudited pro forma combined statement of operations for the year ended
December 31, 1996 combines the audited historical consolidated statements of
operations of Ahmanson and Coast as if the Merger had become effective prior to
January 1, 1996. The unaudited pro forma combined statement of operations for
the nine months ended September 30, 1997 combines the historical condensed
consolidated statements of operations (unaudited) of Ahmanson and Coast as if
the Merger had become effective prior to January 1, 1997. Certain items in the
unaudited pro forma combined financial statements related to Coast have been
reclassified to conform to the Ahmanson presentation.
The Merger will be accounted for as a purchase. Under this method of
accounting, assets and liabilities of Coast are adjusted to their estimated fair
value and combined with the recorded book values of the assets and liabilities
of Ahmanson. Applicable income tax effects of such adjustments are included as a
component of Ahmanson's net deferred tax asset with a corresponding offset to
goodwill.
For purposes of the pro forma financial statements, estimates of the fair
value of Coast's assets and liabilities as of September 30, 1997 have been
combined with the recorded values of the assets and liabilities of Ahmanson.
Fair value adjustments are subject to update as additional information becomes
available.
Following the Merger, Ahmanson intends to combine the operations of and,
subject to regulatory approvals, to merge Home Savings and Coast Federal as well
as certain other operations. Ahmanson expects to achieve significant operating
cost savings as a result of the Merger. These cost savings, assuming they are
realized, would significantly reduce non-interest expense and increase net
income. Additionally, Ahmanson believes opportunities exist to enhance certain
revenues through the expansion of consumer and business loans, cash management
services, retail banking and investment sales generated through Coast Federal
branches. These revenue enhancements, if they are realized (which cannot be
assured as to amount or timing), would increase net interest income or fee
income and increase net income. No adjustment has been included in the unaudited
pro forma combined financial statements for such cost savings or revenue
enhancements.
NOTE B: PURCHASE PRICE
The purchase price is based on exchanging 0.8082 of a share of Ahmanson
Common Stock for each outstanding share of Coast Common Stock. Shares issuable
upon the exercise of Coast Stock Options are not included in the number of
outstanding shares of Coast Common Stock on the assumption that all options will
become equivalent options to purchase Ahmanson Common Stock. In addition, the
number of the shares of Coast Common Stock used in calculating the total market
value of Ahmanson Common Stock to be issued in connection with the Merger
reflects an exchange of Ahmanson Common Stock for the outstanding shares of
Coast Common Stock, exclusive of Coast's common stock equivalents, which include
Coast Stock Options.
The total market value of the Ahmanson Common Stock to be issued in
connection with the Merger is calculated as follows:
<TABLE>
<S> <C>
Coast's common shares outstanding on September 30, 1997 (in thousands)..... 18,644
Exchange ratio............................................................. 0.8082
-------
Ahmanson Common Stock to be issued (in thousands).......................... 15,068
Value per share of Ahmanson Common Stock................................... $ 56.45
-------
Total market value of Ahmanson Common Stock to be issued (in millions)... $ 851
=======
</TABLE>
67
<PAGE> 74
AHMANSON AND COAST
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(UNAUDITED)
The shares of Ahmanson Common Stock to be issued to the stockholders of
Coast in connection with the proposed Merger have been valued at $56.45 per
share for purposes of the pro forma consolidated financial statements, based on
the quoted market price of Ahmanson Common Stock for a period of time shortly
before and after the points in time Ahmanson and Coast reached agreement on the
purchase price and the terms and conditions of the proposed Merger were publicly
announced.
In addition to the total market value of the Ahmanson Common Stock to be
issued, the total purchase price will include other direct acquisition costs,
such as investment banking, legal, accounting and other professional fees;
printing and mailing costs; Commission filing fees and other miscellaneous
expenses. These costs, which are not expected to be material to the transaction
and are preliminarily expected to be approximately $10 million, have not been
included in the unaudited pro forma combined financial statements.
NOTE C: RESTRUCTURING CHARGES
Ahmanson's management estimates that approximately $75 million of costs
related to premises, severance and other restructuring charges will be incurred
in connection with the Merger; these estimates of costs are not yet based on
sufficient factual data so as to be included as adjustments to the unaudited pro
forma combined financial statements and are subject to change as additional
information becomes available. Of this amount, approximately $57 million of
costs relate to Coast's premises, employees and operations and will affect the
final amount of goodwill as of the consummation of the Merger, which goodwill
will be amortized as described in Note G below. The remaining estimated amount
of approximately $18 million of costs relates to Ahmanson's premises, employees
and operations, as well as all costs relating to systems conversions and other
indirect integration costs, and will be expensed, either upon consummation of
the Merger or as incurred. With respect to timing, it has been assumed that the
integration will be complete and that the costs referred to above will be
incurred not later than 12 months after the closing of the Merger.
The estimated restructuring charges are expected to be incurred as set
forth in the following table:
<TABLE>
<CAPTION>
(IN MILLIONS)
-----------------------------------------------------------------------
<S> <C>
Owned premises......................................................... $25
Leased premises........................................................ 10
Severance.............................................................. 22
Other restructuring.................................................... 18
---
Total restructuring.......................................... $75
===
</TABLE>
Ahmanson's management estimates that the total severance costs in
connection with the Merger will be approximately $22 million. The estimate is
based on anticipated aggregate terminations, assumptions regarding severance
benefits on an aggregate basis and Ahmanson's experience in the integration of
mergers and does not reflect any information as to which employees will be
terminated as this information is not yet available.
Ahmanson's estimate of $75 million in restructuring charges is in the range
of restructuring charges announced in connection with other similar transactions
and is based on the assumption that Ahmanson's experience in integrating Coast's
organization and operations will be similar to comparable transactions in the
past.
68
<PAGE> 75
AHMANSON AND COAST
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(UNAUDITED)
NOTE D: ALLOCATION OF PURCHASE PRICE
Certain matters are still pending that will have an effect on the ultimate
allocation of the purchase price. Accordingly, the allocation of the purchase
price has not been finalized and the portion of the purchase price allocated to
fair value adjustments, goodwill and the identifiable intangibles (discussed
below) is subject to change.
Subject to the foregoing, the purchase price has been allocated as
described in the table below:
<TABLE>
<CAPTION>
(IN MILLIONS)
----------------------------------------------------------------------
<S> <C> <C>
Net assets applicable to Coast's common stock at September 30, 1997... $ 470
Increase (decrease) to Coast's net asset value at September 30, 1997
as a result of estimated fair value adjustments (see Note G)*
Loans............................................................... 7
MBS................................................................. 7
Deposits............................................................ (6)
Borrowings.......................................................... (4)
----
Estimated fair value adjustments (total excluding core deposit
intangibles)..................................................... 4
Core deposit intangibles............................................ 58
----
Total estimated fair value adjustments...................... 62
Elimination of Coast's existing goodwill, net of applicable income tax
effects............................................................. (5)
-----
Total preliminary allocation of purchase price.............. 527
Goodwill due to the Merger............................................ 324
-----
Total purchase price........................................ $ 851
=====
</TABLE>
- ---------------
* Amounts are net of applicable income tax effects, using an estimated marginal
tax rate of 40.0%.
NOTE E: CALCULATION OF GOODWILL ADJUSTMENT AND TOTAL GOODWILL DUE TO MERGER
<TABLE>
<CAPTION>
(IN MILLIONS)
---------------------------------------------------------------------------
<S> <C>
Purchase price............................................................. $ 851
Coast total common stockholders' equity.................................... (470)
Estimated fair value adjustments (excluding core deposit intangibles)*..... (4)
Core deposit intangibles*.................................................. (58)
-----
Goodwill adjustment........................................................ 319
Coast existing goodwill.................................................... 5
-----
Total goodwill due to Merger............................................... $ 324
=====
</TABLE>
- ---------------
* Net of applicable income tax effects.
For purposes of the pro forma combined Statement of Financial Condition,
estimates have been made of the fair value of Coast's assets and liabilities as
of September 30, 1997.
69
<PAGE> 76
AHMANSON AND COAST
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(UNAUDITED)
NOTE F: STOCKHOLDERS' EQUITY
In the Merger, Ahmanson will issue 0.8082 of a share of Ahmanson Common
Stock in exchange for each of the 18,644,177 outstanding shares of Coast Common
Stock (based on the number of shares outstanding as of September 30, 1997).
Adjustments to stockholders' equity are as follows:
<TABLE>
<CAPTION>
COAST
PURCHASE COMMON
(IN MILLIONS) PRICE EQUITY ADJUSTMENT
----------------------------------------------------- -------- ------ ----------
<S> <C> <C> <C>
Common stock......................................... $ -- $ -- $ --
Additional paid-in capital........................... 851 (267) 584
Retained earnings.................................... -- (202) (202)
Other (net unrealized gains on
available-for-sale-securities)..................... -- (1) (1)
---- ----- -----
Total common stockholders' equity.................... $851 $(470) $ 381
==== ===== =====
</TABLE>
NOTE G: PURCHASE ACCOUNTING ADJUSTMENTS
Adjustments are made to reflect recording the tangible assets and
liabilities at fair value and identifiable and unidentifiable intangibles as
well as to eliminate any intangible balances previously recorded by Coast in
accordance with the purchase method of accounting. Purchase accounting
adjustments as of September 30, 1997 will be booked on a gross basis with
related adjustments to Ahmanson's net deferred tax asset as follows:
<TABLE>
<CAPTION>
RELATED
RELATED (INCREASE)
(INCREASE) DECREASE TO
DECREASE TO NET INCOME
(IN MILLIONS) NET OF NET INCOME FOR NINE
- -------------------------------------------------- APPLICABLE FOR YEAR MONTHS
INCOME ENDED ENDED
DEBIT (CREDIT) TAXES GROSS 12/31/96 9/30/97
---------- ----- ----------- ------------
<S> <C> <C> <C> <C>
Estimated fair value adjustments*
Loans........................................... $ 7 $ 12 $ 2 $ 2
MBS............................................. 7 11 2 1
Deposits........................................ (6) (10) (5) (4)
Borrowings...................................... (4) (6) -- --
---- ---- --- ---
Estimated fair value adjustments (total excluding
core deposit intangibles)....................... 4 7 (1) (1)
Goodwill and core deposit intangibles of Coast
................................................ (5) (5) -- --
Goodwill due to the Merger*....................... 324 324 13 10
Core deposit intangibles due to the Merger*....... 58 97 10 7
---- ---- --- ---
381 423 22 16
Adjustment to Ahmanson net deferred tax liability
related to purchase accounting adjustments...... -- (42) (4) (2)
---- ---- --- ---
Total............................................. $381 $ 381 $18 $ 14
==== ==== === ===
</TABLE>
- ---------------
* Goodwill due to the Merger will be amortized on a straight-line basis over 25
years. Core deposit intangibles due to the Merger will be amortized on a
straight-line basis over 10 years. Fair value adjustments will be amortized
over the estimated remaining life of the related asset or liability.
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<PAGE> 77
AHMANSON AND COAST
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(UNAUDITED)
The incremental effect on net income of the purchase accounting adjustments
is estimated to be a net after-tax expense of approximately $18 million for the
first and second 12-month periods subsequent to the Merger, and approximately
$21 million for the third, fourth and fifth 12-month periods subsequent to the
Merger. Amounts exclude amortization of existing goodwill of Coast.
NOTE H: OTHER LIABILITIES
Adjustments to other liabilities are as follows:
<TABLE>
<CAPTION>
(IN MILLIONS)
-------------------------------------------------------------------------------
<S> <C>
Deferred tax liability from fair value adjustments............................. $ 3
(excluding core deposit intangibles)
Deferred tax liability from core deposit intangibles........................... 39
---
Total adjustment to other liabilities................................ $42
===
</TABLE>
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<PAGE> 78
DESCRIPTION OF AHMANSON CAPITAL STOCK
AHMANSON COMMON STOCK
Ahmanson is currently authorized to issue up to 220,000,000 shares of
Ahmanson Common Stock. As of September 30, 1997, there were 94,411,284 shares of
Ahmanson Common Stock issued and outstanding, outstanding options to purchase an
additional 3,430,419 shares of Ahmanson Common Stock and 11,814,238 shares of
Ahmanson Common Stock issuable upon conversion of the Ahmanson Series D
Preferred Stock (as defined herein).
Since 1995, Ahmanson has been engaged in stock repurchase programs. For a
description of these programs see "-- Repurchases of Ahmanson Common Stock."
Holders of shares of Ahmanson Common Stock are entitled to one vote per
share for each share held.
Subject to the rights of holders of shares of the Ahmanson Preferred Stock
(as described below), holders of shares of Ahmanson Common Stock are entitled to
receive such dividends as may be declared by the Ahmanson Board from funds
legally available therefor and, in the event of liquidation, from the net assets
of Ahmanson available for distribution to stockholders. Ahmanson may not declare
any dividends on the Ahmanson Common Stock (other than in shares of Ahmanson
Common Stock) unless full preferential amounts to which holders of Ahmanson
Preferred Stock are entitled have been paid or declared and set apart for
payment upon all outstanding shares of Ahmanson Preferred Stock. Ahmanson is
also subject to regulatory restrictions on the payment of dividends. See
"-- Certain Regulatory Considerations."
The holders of shares of Ahmanson Common Stock do not have preemptive
rights or preferential rights of subscription for any shares of Ahmanson Common
Stock or other securities of Ahmanson. Outstanding shares of Ahmanson Common
Stock are, and shares to be issued in the Merger will be, validly issued, fully
paid and nonassessable.
The Ahmanson Common Stock is listed on the NYSE and the Pacific Exchange.
Application will be made to list the shares of Ahmanson Common Stock to be
issued in the Merger on the NYSE and the Pacific Exchange.
For a description of the Ahmanson Rights Plan, see "Certain Differences in
the Rights of Ahmanson Stockholders and Coast Stockholders."
REPURCHASES OF AHMANSON COMMON STOCK
Starting with the fourth quarter of 1995, Ahmanson has announced four stock
purchase programs. As of September 30, 1997, Ahmanson had purchased an aggregate
of 25.8 million shares of Ahmanson Common Stock at an average purchase price of
$31.68 per share. Of the $250 million authorized for the fourth stock purchase
program, $83.5 million remained available for purchases of Ahmanson Common Stock
at September 30, 1997. Ahmanson intends to continue its repurchase program on
generally the same basis as it has been conducted over the last two years,
although it has suspended its stock repurchase program from the date one
business day prior to the date of mailing of this Proxy Statement/Prospectus
until the consummation of the Merger.
The source of funds for the repurchase plan will be primarily dividends
from Home Savings and other subsidiaries. Home Savings and Ahmanson's other
subsidiaries are projected to generate sufficient cash to provide the dividends
necessary to accomplish the contemplated repurchases while maintaining the
capital of Home Savings at a level sufficient to qualify as "well capitalized"
for regulatory purposes. Anticipated stock repurchases impact earnings per share
in two ways. Earnings per share are increased by reducing shares outstanding and
to a lesser extent earnings per share are decreased by lower net interest
margins.
AHMANSON PREFERRED STOCK
The certificate of incorporation of Ahmanson (the "Ahmanson Charter")
provides that Ahmanson is authorized to issue 10,000,000 shares of Ahmanson
Preferred Stock. The Ahmanson Preferred Stock may be
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<PAGE> 79
issued from time to time in one or more series and the Ahmanson Board is
authorized to fix the voting rights, designations, powers, preferences and the
relative, participating, optional or other rights, if any, and the
qualifications, limitations or restrictions thereof, of any wholly unissued
series of Ahmanson Preferred Stock, and to fix the number of shares constituting
such series, and to increase or decrease the number of shares of any such
series, all without further action by the holders of Ahmanson Common Stock.
Because Ahmanson is a holding company, its rights, the rights of its
creditors and of its stockholders, including the holders of the shares of the
Ahmanson Preferred Stock, to participate in any distribution of the assets of
any subsidiary upon the latter's liquidation or recapitalization will be subject
to the prior claims of the subsidiary's creditors, except to the extent that
Ahmanson may itself be a creditor with recognized claims against the subsidiary.
The principal source of Ahmanson's revenues are dividends received from its
banking and other subsidiaries. Various statutory provisions limit the amount of
dividends its banking subsidiaries may pay without regulatory approval, and
various regulations can also restrict the payment of dividends. In addition,
federal statutes limit the ability of certain subsidiaries to make loans to
Ahmanson. See "-- Certain Regulatory Considerations."
The following is a brief description of certain terms of the outstanding
series of Ahmanson Preferred Stock. This description does not purport to be
complete and is qualified in its entirety by reference to the Ahmanson
Certificate, including the certificate of designations with respect to each such
series.
The shares of Ahmanson Preferred Stock currently outstanding have
preference over Ahmanson Common Stock with respect to the payment of dividends
and the distribution of assets in the event of liquidation, winding up or
dissolution of Ahmanson. Each outstanding series ranks on a parity with the
other as to dividends and the distribution of assets upon liquidation, winding
up or dissolution.
Generally, the holders of each series of Ahmanson Preferred Stock have no
voting rights. However, if the equivalent of six quarterly dividends payable on
a series of Ahmanson Preferred Stock are in default, the number of directors of
Ahmanson will be increased by two and the holders of such outstanding series of
Ahmanson Preferred Stock together with the holders of shares of every other
series of Ahmanson Preferred Stock similarly entitled to vote for the election
of two directors, acting together as a single class, will be entitled to elect
two of the authorized number of members of the Ahmanson Board at the next annual
meeting and at each subsequent annual meeting of stockholders, to serve until
all dividends accumulated have been fully paid for four consecutive quarterly
dividend periods, including the last preceding quarterly dividend period.
Ahmanson Depositary Shares representing each series of Ahmanson Preferred Stock
are listed on the NYSE.
Ahmanson Series C Preferred Stock.
As of September 30, 1997, there were issued and outstanding 780,000 shares
of Ahmanson 8.40% Preferred Stock, Series C, liquidation preference $250 per
share (the "Ahmanson Series C Preferred Stock"), represented by 7,800,000
depositary shares, each representing a one-tenth interest in a share of Ahmanson
Series C Preferred Stock. The Ahmanson Series C Preferred Stock is redeemable at
the option of Ahmanson in whole or in part, on and after March 1, 1998 at a
price of $250 per share (equivalent to $25 per depositary share) plus accrued
and unpaid dividends to the redemption date. On January 6, 1998, Ahmanson
announced it would redeem all of the outstanding Ahmanson Series C Preferred
Stock on March 2, 1998.
Dividends on the Ahmanson Series C Preferred Stock of $21.00 per share
(8.40% annualized rate) are cumulative and paid quarterly on the first day of
March, June, September and December (equivalent to $2.10 per annum per
depositary share).
Ahmanson Series D Preferred Stock.
As of September 30, 1997, there were issued and outstanding 569,000 shares
of 6% Cumulative Convertible Preferred Stock, Series D, liquidation preference
$500 per share (the "Ahmanson Series D Preferred Stock"), evidenced by 5,690,000
depositary shares, each representing a one-tenth interest in a share of Ahmanson
Series D Preferred Stock. The Ahmanson Series D Preferred Stock is redeemable at
the option
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<PAGE> 80
of Ahmanson, in whole or in part, on and after September 1, 1998 at a price
commencing at $515 per share and declining to $500 per share on September 1,
2003 and thereafter, plus accrued and unpaid dividends to the redemption date.
Dividends on the Ahmanson Series D Preferred Stock of $30 per share (6%
annualized rate) are cumulative and are paid quarterly on the first day of
March, June, September and December (equivalent to $3 per annum per depositary
share).
The Ahmanson Series D Preferred Stock is convertible into Ahmanson Common
Stock, at the option of its holders, at a conversion rate of approximately
20.5465 shares of Ahmanson Common Stock per share of Ahmanson Series D Preferred
Stock (equivalent to a conversion rate of 2.05465 shares of Ahmanson Common
Stock per depositary share) (subject to adjustments upon the occurrence of
certain events).
CERTAIN REGULATORY CONSIDERATIONS
The following discussion addresses in general terms the regulatory
framework applicable to savings and loan holding companies and their
subsidiaries, and provides certain information relevant to Ahmanson. Regulation
of financial institutions such as Ahmanson and its subsidiaries is intended
primarily for the protection of depositors, the deposit insurance funds of the
Federal Deposit Insurance Corporation and the banking system as a whole, and
generally is not intended for the protection of stockholders or other investors.
General.
Ahmanson is a savings and loan holding company and, as such, is subject to
the OTS's regulations, examination, supervision and reporting requirements. Home
Savings is a federal savings bank and a member of the Federal Home Loan Bank
System, and its deposits are insured by the Federal Deposit Insurance
Corporation (the "FDIC"). It is subject to examination and supervision by the
OTS and the FDIC and to regulations governing such matters as capital standards,
mergers, establishment and closing of branch offices, subsidiary investments and
activities, and general investment authority.
The descriptions of the statutes and regulations that are applicable to
Ahmanson and the effects thereof that are set forth below and elsewhere in this
document do not purport to be a complete description of such statutes and
regulations and their effects on Ahmanson or to identify every statute and
regulation that may apply to Ahmanson.
Savings and Loan Holding Company Regulations.
Subject to certain limited exceptions, control of a savings association or
a savings and loan holding company may only be obtained with the approval (or in
the case of an acquisition of control by an individual, the absence of
disapproval) of the OTS, after a public comment and application review process.
Any company acquiring control of a savings association becomes a savings and
loan holding company, must register and file periodic reports with the OTS, and
is subject to OTS examination.
Affiliate and Insider Transactions.
Savings associations are subject to affiliate and insider transaction rules
under section 11 of the Home Owner's Loan Act; including those applicable to
member banks of the Federal Reserve System set forth in sections 23A, 23B, 22(g)
and 22(h) of the Federal Reserve Act. These provisions, among other things,
prohibit or limit a savings association from extending credit to, or entering
into certain transactions with, its affiliates (which generally include holding
companies such as Ahmanson and any company under common control with the savings
association) and principal stockholders, directors and executive officers of the
savings association and its affiliates.
Limitations on Acquisitions.
Ahmanson is generally prohibited, either directly or indirectly, from
acquiring control of any savings association or savings and loan holding company
absent prior approval by the OTS and from acquiring more
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<PAGE> 81
than 5% of any class of voting stock of any savings association or savings and
loan holding company that is not a subsidiary of Ahmanson.
Payment of Dividends.
Ahmanson's principal sources of funds are cash dividends paid to it by Home
Savings and other subsidiaries, investment income and borrowings. There are
restrictions on the ability of Home Savings to pay dividends to Ahmanson.
Savings association subsidiaries of savings and loan holding companies, such as
Home Savings, must notify the OTS of their intent to declare dividends at least
30 days before declaration. The OTS has the authority to preclude those
associates from declaring a dividend.
OTS regulations impose limitations upon certain "capital distributions" by
savings associations, including dividends. The regulations establish a
three-tiered system of regulation, with the greatest flexibility being afforded
to institutions that meet or exceed the fully phased-in capital requirements.
A savings institution that has capital immediately prior to, and on a pro
forma basis after giving effect to, a proposed capital distribution that is at
least equal to its fully phased-in capital requirements is considered a Tier I
institution ("Tier I Institution"). At September 30, 1997, Home Savings was a
Tier I Institution. A Tier I Institution may, without the approval of but with
prior notice to the OTS, make capital distributions during a calendar year up to
the greater of (1) 100% of its net income to date during the calendar year plus
the amount that would reduce the savings institution's "surplus capital ratio"
(the excess over its fully phased-in risk-based capital requirement) to one-half
of its surplus capital ratio at the beginning of the calendar year or (2) 75% of
the institution's net income over the most recent four quarter period. Any
additional capital distributions would require prior regulatory approval. The
OTS retains discretion to subject Tier I Institutions to the more stringent
capital distribution rules applicable to institutions with less capital if the
OTS determines that the institution is in need of more than normal supervision
and has provided the institution with notice to that effect. The OTS also
retains the authority to prohibit any capital distribution otherwise authorized
under the regulations if the OTS determines that the capital distribution would
constitute an unsafe or unsound practice.
Deposit Insurance.
The FDIC administers two separate deposit insurance funds: the Bank
Insurance Fund (the "BIF"), which insures the deposits of institutions the
deposits of which were insured by the FDIC prior to the enactment of FIRREA, and
the Savings Association Insurance Fund (the "SAIF"), which insures the deposits
of institutions the deposits of which were insured by the Federal Savings and
Loan Insurance Corporation. Home Savings is a member of the BIF and currently is
obligated to pay deposit insurance assessments ratably to the SAIF and the BIF
based on 85% and 15% of total deposits, respectively. These percentages are
subject to change in the future based on future events.
The FDIC has established a risk-based system for setting deposit insurance
assessments. Under the risk-based assessment system, an institution's insurance
assessments vary depending upon the level of capital the institution holds and
the degree to which it is the subject of supervisory concern to the FDIC. During
the first three quarters of 1996, the assessment rate for SAIF deposits varied
from 0.23% of covered deposits for well-capitalized institutions that were
deemed to have no more than a few minor weaknesses, to 0.31% of covered deposits
for less than adequately capitalized institutions that posed substantial
supervisory concern. The lowest assessment rate for BIF deposits was $2,000 per
institution per year. The assessment rate for both SAIF and BIF deposits
currently varies from zero to 0.27% of covered deposits. Ahmanson paid $55.1
million in deposit insurance premiums to SAIF in 1996 compared to $79.9 million
in 1995.
Prior to enactment of the Deposit Insurance Funds Act of 1996 ("DIFA"), the
SAIF's three major obligations were to fund losses associated with the failure
of institutions with SAIF-insured deposits; to increase its reserves to 1.25% of
insured deposits over a reasonable period of time; and to make interest payments
on debt incurred through the Financing Corporation to provide funds to the
former Federal Savings and Loan Insurance Corporation ("FICO Debt"). The
reserves of the SAIF were lower than the reserves of the BIF and the BIF did not
have an obligation to pay interest on the FICO Debt. Therefore, premiums
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assessed on deposits insured by the SAIF were higher than premiums assessed on
deposits insured by the BIF. Such a premium structure provided FDIC-insured
institutions whose deposits were exclusively or primarily BIF-insured (such as
almost all commercial banks) certain competitive advantages over institutions
whose deposits were primarily SAIF-insured (such as Home Savings).
DIFA required FDIC-insured depository institutions with SAIF-insured
deposits to pay a special assessment designed to increase the SAIF's reserves to
the required 1.25% of insured deposits. The amount of the special assessment
imposed on Home Savings was $243.9 million. DIFA also altered the obligation to
make interest payments on the FICO Debt so that assessments to collect the
necessary funds are imposed separately from the deposit insurance premium and
are now assessed on BIF-insured deposits, although at a lower rate, as well as
on SAIF-insured deposits. Because the reserves of both the SAIF and the BIF
equal or exceed the required minimum amount and FICO Debt assessments are
collected separately from deposit insurance assessments, deposit insurance
premiums are currently assessed on SAIF-insured and BIF-insured deposits
according to the same schedule.
The FDIC may initiate a proceeding to terminate an institution's deposit
insurance after a 30-day notice period if, among other things, the institution
is in an unsafe and unsound condition to continue operations. It is the policy
of the FDIC to deem an insured institution to be in an unsafe and unsound
condition if its ratio of Tier I capital to total assets is less than 2%. Tier I
capital is similar to core capital but includes certain investments in and
extensions of credit to subsidiaries engaged in activities not permitted for
national banks. In addition, the FDIC has the power to suspend temporarily a
savings association's insurance on deposits received after the issuance of a
suspension order in the event that the savings association has no tangible
capital.
FICO Debt.
Until December 31, 1999 or, if earlier, the date on which the last savings
association ceases to exist, the rate at which SAIF-insured deposits are
assessed with respect to FICO Debt interest payments will be five times the rate
at which BIF-insured deposits are assessed. Accordingly, institutions whose
deposits are exclusively or primarily BIF-insured (such as almost all commercial
banks) continue to have a competitive advantage over institutions whose deposits
are primarily SAIF-insured (such as Home Savings) although the extent of the
advantage is less than the deposit insurance premium advantage which existed
prior to the enactment of DIFA.
Classification of Assets.
Federal regulations require savings associations to review their assets on
a regular basis and to classify them as "substandard," "doubtful" or "loss" if
warranted. Adequate valuation allowances for loan losses are required for assets
classified as substandard or doubtful. If an asset is classified as loss, the
institution must either establish a specific allowance for loss in the amount
classified as loss or charge off such amount. The institution's OTS District
Director has the authority to approve, disapprove or modify any asset
classification and any amounts established as allowances for loan losses.
At present, certain general allowances may be included within regulatory
capital, while specific allowances may not. If an OTS examiner concludes that
additional assets should be classified or that the valuation allowances
established by the savings association are inadequate, the examiner may
determine, subject to internal review by the OTS, the need for and extent of
additional classification or any increase necessary in the savings association's
general or specific valuation allowances. An insured savings association is also
required to set aside adequate valuation allowances to the extent that an
affiliate possesses assets posing a risk to the institution and to establish
liabilities for off-balance sheet items, such as letters of credit when loss
becomes probable and estimable.
Capital Requirements.
The OTS has adopted capital regulations ("Capital Regulations") for savings
associations which establish three capital requirements -- a core capital
requirement, a tangible capital requirement and a risk-
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based capital requirement. The capital standards contained in the Capital
Regulations generally must be no less stringent than the capital standards
applicable to national banks. The Capital Regulations require savings
associations to maintain core capital of at least 3% of adjusted total assets,
tangible capital of at least 1.5% of adjusted total assets and total capital
(being the sum of Core Capital and Supplementary Capital) of at least 8% of
risk-weighted assets. In addition, institutions whose exposure to interest-rate
risk is deemed to be above normal will be required to deduct a portion of such
exposure in calculating their risk-based capital. The OTS may establish, on a
case by case basis, individual minimum capital requirements for savings
associations that vary from the requirements that would otherwise apply under
the Capital Regulations. The OTS has not established such individual minimum
capital requirements for Home Savings. Home Savings was in compliance with the
Capital Regulations at September 30, 1997. As of September 30, 1997, Home
Savings' core capital ratio was 5.89%. The Capital Regulations do not apply to
Ahmanson, on a consolidated or non-consolidated basis.
Core capital generally includes common stockholders' equity (including
retained earnings but excluding the net unrealized gain or loss on securities
available for sale), noncumulative perpetual preferred stock and related surplus
and minority interests in the equity accounts of fully consolidated
subsidiaries. Intangible assets (other than a limited amount of mortgage
servicing rights and purchased credit card relationships) must be deducted from
core capital. Certain deferred tax assets also must be deducted.
Tangible capital generally means core capital less any intangible assets
(other than a limited amount of mortgage servicing rights).
Supplementary capital includes, among other things, certain types of
preferred stock and subordinated debt and, subject to certain limits, general
valuation loan and lease loss allowances. A savings association's supplementary
capital may be used to satisfy the risk-based capital requirement only to the
extent of that institution's core capital. Risk-weighted assets are determined
by multiplying each category of an institution's assets, including off balance
sheet equivalents, by a risk weight assigned by the OTS based on the credit risk
associated with those assets, and adding the resulting amounts. The risk weight
categories range from zero percent for cash and government securities to 100%
for assets that do not quality for preferential risk weighting as determined by
the OTS.
The Capital Regulations treat asset sales with recourse as if they did not
occur, and generally require a savings association to maintain capital against
the entire amount of assets sold with recourse, even if recourse is for less
than the full amount. However, when assets are sold with recourse and the amount
of recourse is less than the risk-based capital requirement for such assets, the
assets are not included in risk-weighted assets and capital is required to be
maintained in an amount equal to such recourse amount. A savings association's
retention of the subordinated portion of a senior/subordinated loan
participation or package of loans is treated in the same manner as an asset sale
with recourse.
The Capital Regulations contain special capital rules affecting savings
associations with certain kinds of subsidiaries. For purposes of determining
compliance with each of the capital standards, a savings association's
investments in and extensions of credit to subsidiaries engaged in activities
not permissible for a national bank are deducted from the savings association's
capital, net of reserves against such investment. Home Savings' REI subsidiary
is its only significant subsidiary engaged in activities not permissible for a
national bank. At September 30, 1997, Home Savings' investment in its REI
subsidiary aggregated $41.5 million, of which $38.3 million was required to be
deducted from Home Savings' capital.
Each bank regulatory agency and the OTS is required to review its capital
standards every two years to determine whether those standards require
sufficient capital to facilitate prompt corrective action to prevent or minimize
loss to the deposit insurance funds.
Prompt Corrective Action.
Under OTS regulations which implement the "prompt corrective action" system
established in the Federal Deposit Insurance Act (the "FDIA"), an FDIC-insured
savings association is well capitalized if its ratio of total capital to
risk-weighted assets is 10% or more, its ratio of core capital to risk weighted
assets is 6%
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or more, its ratio of core capital to total assets is 5% or more and it is not
subject to any written agreement, order or directive to meet a specified capital
level. At September 30, 1997 Home Savings met these standards. An institution
which is not well capitalized is "adequately capitalized" if its ratio of total
capital to risk-weighted assets is at least 8%, its ratio of core capital to
risk-adjusted assets is at least 4% and its ratio of core capital to total
assets is at least 4% (3% if the institution receives the highest rating on the
OTS's CAMEL rating system). Any institution which is not adequately capitalized
is undercapitalized, significantly undercapitalized or critically
undercapitalized, depending upon its capital ratios.
An FDIC-insured savings association that is undercapitalized must submit a
capital restoration plan to the OTS. The plan may be approved only if the OTS
determines it is likely to succeed in restoring the institution's capital and
will not appreciably increase the risks to which the institution is exposed. The
association's performance under the plan must be guaranteed by any company which
controls the association, up to a maximum of 5% of the institution's assets. The
OTS may also require the association to take various actions deemed appropriate
to minimize potential losses to the deposit insurance fund. A significantly
undercapitalized association is subject to additional sanctions and a critically
undercapitalized association generally must be placed in receivership or
conservatorship.
Enforcement and Penalties.
The FDIA contains extensive enforcement provisions applicable to all
FDIC-insured depository institutions, including savings associations and
"institution-affiliated parties," which includes, among others, directors,
officers, employees, agents and controlling stockholders of depository
institutions, including holding companies such as Ahmanson. An institution or
institution-affiliated party may be subject to a three tier penalty regime that
ranges from a maximum penalty of $5,000 per day for a simple violation to a
maximum penalty of $1 million per day for certain knowing violations including
the failure to submit or submission of incomplete, false or misleading reports.
An institution-affiliated party may also be subject to loss of voting rights
with respect to the stock of depository institutions.
Whenever the OTS has reasonable cause to believe that the continuation by a
savings and loan holding company of any activity or of ownership or control of
any subsidiary not insured by the FDIC constitutes a serious risk to the
financial safety, soundness or stability of a subsidiary savings association and
is inconsistent with the sound operation of the savings association, the OTS may
order the holding company to terminate such activities or divest such
non-insured subsidiary. The OTS, without notice or opportunity for hearing, may
also (a) limit the payment of dividends by the savings association, (b) limit
transactions between the savings association and its holding company or other
affiliates and (c) limit any activity of the savings association which creates a
serious risk that the liabilities of the holding company and its affiliates may
be imposed upon the savings association.
FDIA, as amended, requires the OTS to prescribe minimum operational and
managerial standards and standards for asset quality, earnings and stock
valuation for savings associations. Any savings association that fails to meet
the standards may be required to submit a plan for corrective action. If a
savings association fails to submit or implement an acceptable plan, the OTS may
require the association to take any action the OTS determines will best carry
out the purpose of prompt corrective action. The OTS and the bank regulatory
agencies have jointly published a regulation prescribing the required safety and
soundness standards. Home Savings believes that it is in compliance with the
regulation.
Loans and Investments.
Aggregate loans to a single borrower are limited to specified percentages
of a savings association's capital, depending upon the existence and type of any
collateral. Aggregate loans secured by non-residential real property are limited
to a specified percentage of capital.
Savings associations generally may not invest directly in equity
securities, non-investment grade securities or real estate. Indirect investments
in real estate are permitted through subsidiaries subject to limitations based,
generally, on the institution's capital ratios. Investments in subsidiaries, and
the activities conducted through subsidiaries, are subject to regulatory
restrictions.
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FHLB System.
The FHLBs provide a central credit facility for member institutions. As a
federal savings bank, Home Savings is required to be a member of the FHLB
System. Members of the FHLB System are required to own capital stock in an FHLB
at least equal to the greater of 1% of the member's outstanding home mortgage
loans and 5% of the member's advances from the FHLB. At September 30, 1997, Home
Savings' investment in FHLB stock was $405.6 million, substantially all of which
can not be withdrawn as long as Home Savings' real estate loan portfolio remains
at its current size.
Federal Reserve System.
Home Savings is subject to various regulations promulgated by the Federal
Reserve Board, including, among others, Regulation B (Equal Credit Opportunity),
Regulation D (Reserves), Regulation E (Electronic Fund Transfers), Regulation Z
(Truth in Lending), Regulation CC (Availability of Funds) and Regulation DD
(Truth in Savings). As holders of loans secured by real property, and as owners
of real property, financial institutions, including Home Savings, may be subject
to potential liability under various statutes and regulations applicable to
property owners generally, including statutes and regulations relating to the
environmental condition of the property.
Liquidity.
OTS regulations require a savings association to maintain, for each
calendar month, an average daily balance of liquid assets equal to at least 4%
of the average daily balance of its net withdrawable accounts plus short-term
borrowings during the preceding calendar month. The OTS may vary the required
percentage within a range of 4% to 10% and may also vary the definition of
liquid assets. Monetary penalties may be imposed for failure to meet liquidity
ratio requirements.
Community Reinvestment Act.
The CRA requires each savings association, as well as other depository
institutions, to identify the communities served by the institution's offices
and to identify the types of credit the institution is prepared to extend within
such communities. The CRA also requires the OTS to assess the performance of the
institution in meeting the credit needs of its community and to take such
assessments into consideration in reviewing applications for mergers,
acquisitions and other transactions. In connection with its assessment of a
savings association's CRA performance, the OTS will assign a rating of
"outstanding," "satisfactory," "needs to improve" or "substantial
noncompliance." Based on an examination conducted as of September 5, 1995, Home
Savings was rated "outstanding."
Qualified Thrift Lender.
A savings association must invest at least 65% of its portfolio assets in
"qualified thrift investments" (each as defined by statute and OTS regulations)
on a monthly average basis in nine out of every 12 months on a rolling 12-month
"look back" basis. Home Savings was in compliance with this requirement as of
September 30, 1997 and would be in compliance on a pro forma basis after giving
effect to the Merger.
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CERTAIN DIFFERENCES IN THE RIGHTS OF AHMANSON STOCKHOLDERS AND COAST
STOCKHOLDERS
As a consequence of the Merger and the transactions contemplated thereby,
stockholders of Coast would become stockholders of Ahmanson. The following is a
summary of certain similarities and all material differences between the rights
of holders of shares of Coast Common Stock and the rights of holders of Ahmanson
Common Stock. Because each of Coast and Ahmanson is organized under the laws of
Delaware, these differences arise solely from various provisions of the
certificate of incorporation and by-laws of each of Coast and Ahmanson, as well
as from the Ahmanson Rights Agreement, dated as of November 7, 1997, between
Ahmanson and First Chicago Trust Company of New York, as rights agent (the
"Ahmanson Rights Plan") and the Coast Rights Agreement, dated as of August 25,
1989, between Coast and Manufacturers Hanover Trust of California, as rights
agent (the "Coast Rights Plan").
The following summary does not purport to be a complete statement of the
rights of stockholders under the Coast Charter, the Coast By-laws and the Coast
Rights Plan as compared with the rights of Ahmanson's stockholders under the
Ahmanson Charter, the by-laws of Ahmanson (the "Ahmanson By-Laws") and the
Ahmanson Rights Plan, or a complete description of the specific provisions
referred to herein. The summary is qualified in its entirety by reference to the
governing corporate instruments, including the aforementioned instruments, of
Coast and Ahmanson, copies of which have been filed as exhibits hereto or to
documents incorporated herein by reference.
MEETINGS OF STOCKHOLDERS
Under Delaware law, special meetings of the stockholders may be called by
the board of directors or such other persons as may be authorized by the
certificate of incorporation or by-laws. The Coast Charter and By-Laws do not
authorize any other person to call a special meeting. The Ahmanson Charter and
By-Laws provide that a special meeting may also be called by a committee of the
Ahmanson Board which has been designated by the Ahmanson Board and authorized to
call a special meeting by a resolution of the Ahmanson Board or by the Ahmanson
By-Laws.
NUMBER AND ELECTION OF DIRECTORS
Number of Directors. Under Delaware law, the number of directors shall be
fixed by or in the manner provided in the by-laws, unless the certificate of
incorporation fixes the number of directors, in which case a change in the
number of directors shall be made only by amendment to the certificate. The
Coast Charter and By-laws provide that the number of directors shall be
determined by a resolution of the majority of the Coast Board. The Ahmanson
By-Laws provide that the number of directors shall be determined by a resolution
of the majority of the Ahmanson Board or a majority of the voting power of the
outstanding shares of voting stock.
Advance Notice of Stockholder Nominations of Directors. Under the Coast
By-laws, nominations of persons for election to the Coast Board may be made at a
meeting of stockholders by any stockholder, provided that the Secretary of Coast
receives written notice not less than 30 days prior to the annual meeting.
Under the Ahmanson By-Laws, nominations of persons for election to the
Ahmanson Board may be made at a meeting of stockholders by any stockholder,
provided that the Secretary of Ahmanson receives written notice not less than 60
days nor more than 120 days prior to the meeting. If less than 65 days' notice
or prior public disclosure of the date of the meeting is given or made by
Ahmanson to stockholders, the notice of a nomination must be received not later
than the close of business on the tenth day following the day on which such
notice of the date of the annual meeting was mailed or public disclosure was
made. Stockholder notices must state, among other things, a brief description of
the business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, the name and record address of
the stockholder proposing the business, the class and number of shares of
Ahmanson stock beneficially owned by the stockholder, any material interest in
such business and any other information relating to the stockholder or the
proposal required to be disclosed in solicitations for proxies for the election
of directors pursuant to Regulation 14A under the Exchange Act.
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<PAGE> 87
Classification of Board of Directors. Delaware law permits (but does not
require) a certificate of incorporation to provide that a board of directors be
divided into classes, with each class having a term of office longer than one
year but not longer than three years. The Coast Charter provides that the Coast
Board shall have three classes. The directors of each class shall serve for a
term ending at the third annual meeting following the annual meeting at which
they were elected. The Ahmanson Charter does not provide for a classified board.
Accordingly, all members of the Ahmanson Board are elected at each annual
meeting.
INDEMNIFICATION
The Coast Charter generally provides for the indemnification of persons
serving as a director or officer of Coast or at the request of Coast as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise against all costs and expenses reasonably incurred by such
person or on such person's behalf in connection with such action, suit or
proceeding and any appeal therefrom, if such person acted in good faith and in a
manner such person reasonably believed to be in the best interests of the
corporation and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The Ahmanson Charter and
By-Laws generally provide for the indemnification of persons serving as a
director, officer, employee or agent of Ahmanson or at the request of Ahmanson
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, to the fullest extent
authorized by the DGCL. The Ahmanson By-Laws provide that such right to
indemnification may only be extended to employees and agents in a specific case
by action of the Ahmanson Board.
CERTAIN VOTING RIGHTS
With Respect to Proposed Mergers. Under Delaware law, certain mergers and
consolidations or the sale of all or substantially all of the assets of a
corporation requires the approval of the holders of a majority (unless the
certificate of incorporation requires a higher percentage) of the outstanding
shares of such corporation entitled to vote thereon. Neither the Coast Charter
nor the Ahmanson Charter requires a higher percentage generally, except under
certain situations involving substantial stockholders discussed below.
With Respect to Transactions with Substantial Stockholders. The Coast
Charter provides that certain transactions between Coast and a substantial
stockholder (generally a person holding more than 10% of the outstanding voting
stock of Coast) require the approval of the holders of two-thirds of all
outstanding shares of capital stock of Coast entitled to vote generally in the
election of directors, including (i) the merger or consolidation of Coast or any
subsidiary of Coast; (ii) the sale, lease or other disposition of any assets of
Coast having an aggregate fair market value of $20 million or more; (iii) the
issuance or transfer by Coast or any subsidiary of Coast of securities of Coast
or a subsidiary of Coast having an aggregate fair market value of $20 million or
more; (iv) the adoption of a plan or proposal for the liquidation of dissolution
of any subsidiary of Coast; (v) the reclassification of securities,
recapitalization, consolidation or any other transaction that has the direct or
indirect effect of increasing the voting power of any such substantial
stockholder in any class or series of capital stock of Coast or any subsidiary
of Coast; or (vi) any agreement, contract or other arrangement providing
directly or indirectly for any of the foregoing; except, in each case, for any
transaction approved by a vote of a majority of directors unaffiliated with the
Substantial Stockholder and its affiliates, or any transaction to be consummated
within three years after the Substantial Stockholder becomes a Substantial
Stockholder and if certain conditions are met.
The Ahmanson Charter provides that certain transactions between Ahmanson
and a substantial stockholder (generally a person or group holding capital stock
representing 10% or more of the outstanding voting power of Ahmanson) require
the approval of the holders of 80% of the capital stock of Ahmanson entitled to
vote for the election of directors, including (i) the repurchase by Ahmanson of
capital stock representing 10% or more of the total voting power of Ahmanson
from such a substantial stockholder under certain circumstances, (ii) certain
mergers, consolidations, combinations or reorganizations of Ahmanson or the sale
of all or a substantial part of the assets of Ahmanson or its subsidiaries where
such a substantial stockholder or its affiliates are parties to the transaction
and (iii) certain other exchanges of securities, cash or other properties or
assets of Ahmanson involving such a substantial stockholder or its affiliates,
except, in the
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case of (ii) or (iii), for any transaction which has been approved by the
Ahmanson Board, including by the vote of at least two-thirds of the directors
unaffiliated with the substantial stockholder and its affiliates.
Cumulative Voting. Under Delaware law, stockholders of a corporation are
not entitled to cumulate their votes in the election of directors unless the
corporation's certificate of incorporation so provides. Neither the Coast
Charter nor the Ahmanson Charter provides for cumulative voting.
REMOVAL OF DIRECTORS; FILLING VACANCIES ON THE BOARD OF DIRECTORS
Under Delaware law, any or all directors of a corporation which does not
have cumulative voting or a classified board may be removed, with or without
cause, by the holders of a majority of the shares entitled to vote at an
election of directors, unless such corporation's certificate of incorporation
provides otherwise. Coast has a classified board and the Coast Charter provides
that directors may be removed only for cause, which is defined in the Coast
Charter to mean conviction for a felony or a non-appealable adjudication against
the director for gross negligence or misconduct. The Ahmanson Charter does not
limit the right of stockholders to remove directors with or without cause.
Under Delaware law, unless otherwise provided in the corporation's
certificate of incorporation or by-laws, vacancies and newly-created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors in office. The Coast Charter
provides that any vacancy, whether arising through death, resignation,
retirement, disqualification, removal or other cause, may be filled only by a
majority vote of the remaining directors or by the sole remaining director if
only one such director remains or by the stockholders if the directors or
director fail to so act. Neither the Ahmanson Charter nor the Ahmanson By-Laws
provides for vacancies or newly-created directorships to be filled by
stockholder vote.
STOCKHOLDER ACTION BY WRITTEN CONSENT
Under Delaware law, unless otherwise provided in the certificate of
incorporation, any action which may be taken at any annual or special meeting
may be taken without a meeting and without prior notice if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
shares having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. The Coast Charter and By-laws provide that
any action by written stockholder consent must be signed by all the stockholders
of Coast entitled to vote. The Ahmanson Charter prohibits any action by written
stockholder consent.
AMENDMENT OF BY-LAWS
Under Delaware law, the power to adopt, amend or repeal by-laws is vested
in the stockholders unless the certificate of incorporation confers the power to
adopt, amend or repeal by-laws upon the directors as well. Both the Coast
Charter and the Ahmanson Charter grant such power to their respective boards of
directors. The Coast By-laws provide that the Coast By-laws may not be amended
or repealed by the stockholders without the approval of the holders of
two-thirds of the voting stock of Coast.
RIGHTS PLANS
Ahmanson Rights Plan. On November 7, 1997, the Ahmanson Board declared a
dividend distribution of one preferred stock purchase right (a "Right"), to
holders of Ahmanson Common Stock outstanding on November 17, 1997.
In the event that any person or affiliated group becomes the beneficial
owner of 15% or more of the outstanding shares of Ahmanson Common Stock, each
holder of a Right (other than Rights beneficially owned by the 15% beneficial
owner) will thereafter have the right to purchase from Ahmanson that number of
shares of Ahmanson Common Stock having a market value equal to two times the
exercise price of the Right. If Ahmanson thereafter is acquired in a merger or
other business combination transaction or 50% or more of its consolidated assets
or earning power are sold, proper provision will be made so that each holder of
a Right, will thereafter have the right to receive, upon the exercise thereof at
the then current exercise price of the
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Right (currently, $240), that number of shares of common stock of the acquiring
company which at the time of such transaction will have a market value of two
times the exercise price of the Right.
Coast Rights Plan. On August 23, 1989, the Coast Board declared a dividend
distribution of one Coast Right for each share of Coast Common Stock outstanding
on September 6, 1989.
In the event that any person becomes the beneficial owner of 15% or more of
the outstanding shares of Coast Common Stock, proper provision is required to be
made so that each holder of a Coast Right, other than Coast Rights beneficially
owned by the acquiring person, will thereafter have the right to receive upon
exercise that number of shares of Coast Common Stock having a market value equal
to two times the exercise price of the Coast Right. In the event that, at any
time following such acquisition of 15% or more of the outstanding shares, Coast
is acquired in a merger or other business combination transaction or 50% or more
of its consolidated assets or earning power are sold (with certain exceptions),
proper provision will be made so that each holder of a Coast Right will
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Coast Right, that number of shares of common stock
of the acquiring company which at the time of such transaction will have a
market value equal to two times the exercise price of the Coast Right. At the
Effective Time, the Coast Rights, which currently trade with, and are
represented by the certificates for, Coast Common Stock, will be canceled and no
additional consideration will be payable with respect thereto.
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<PAGE> 90
COMPARATIVE MARKET PRICES AND DIVIDENDS
AHMANSON
Ahmanson Common Stock is traded on the NYSE under the symbol "AHM" and is
also listed on the Pacific Exchange. The following table sets forth, for the
indicated periods, the high and low closing sale prices for Ahmanson Common
Stock as reported on the NYSE Composite Tape, together with the per share
dividends declared by Ahmanson, during the indicated periods.
<TABLE>
<CAPTION>
PRICE RANGE
------------ CASH DIVIDENDS
QUARTER HIGH LOW DECLARED PER SHARE
- -------------------------------------------------- ---- --- ------------------
<S> <C> <C> <C> <C>
1996:
First...................................... $26 3/4 $21 1/4 .22
Second..................................... 27 5/8 22 1/4 .22
Third...................................... 28 3/8 23 3/8 .22
Fourth..................................... 34 1/2 27 7/8 .22
1997:
First...................................... $45 1/4 $32 .22
Second..................................... 47 3/8 34 3/4 .22
Third...................................... 58 1/16 43 5/8 .22
Fourth..................................... 68 54 3/16 .22
1998:
First (through January 12, 1998)........... 64 11/16 52 3/4 *
</TABLE>
- ---------------
* Dividends for the first quarter of 1998 have not yet been declared.
On October 3, 1997, the last trading day before public announcement of the
Merger, the closing price per share of Ahmanson Common Stock on the NYSE was
$57 1/8 (as reported on the NYSE Composite Tape). On January 12, 1998, the last
practicable date prior to the mailing of this Proxy Statement/Prospectus, the
closing price per share of Ahmanson Common Stock was 54 1/4 (as reported on the
NYSE Composite Tape). Past price performance is not necessarily indicative of
future price performance. Holders of Coast Common Stock are urged to obtain
current market quotations for shares of Ahmanson Common Stock.
The holders of Ahmanson Common Stock are entitled to receive dividends when
and if declared by the Ahmanson Board out of funds legally available therefor.
Although Ahmanson currently intends to continue paying quarterly cash dividends
on the Ahmanson Common Stock, there can be no assurance that Ahmanson's dividend
policy will remain unchanged after completion of the Merger. The declaration and
payment of dividends thereafter will depend upon business conditions, operating
results, capital and reserve requirements, and the Ahmanson Board's
consideration of other relevant factors.
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COAST
Coast Common Stock is traded on the NYSE under the symbol "CSA" and is also
listed on the Pacific Exchange. The following table sets forth, for the
indicated periods, the high and low closing sale prices for Coast Common Stock
as reported on the NYSE Composite Tape. Coast did not pay any dividends on the
Coast Common Stock for the periods indicated.
<TABLE>
<CAPTION>
PRICE RANGE
-----------------
QUARTER HIGH LOW
------------------------------------------------------- ---- ---
<S> <C> <C>
1996:
First................................................ 33 3/4 26 1/2
Second............................................... 34 29 1/2
Third................................................ 35 1/8 29 1/4
Fourth............................................... 37 3/8 31 3/8
1997:
First................................................ 48 3/4 35 7/8
Second............................................... 46 38 7/8
Third................................................ 52 3/4 44 7/16
Fourth............................................... 68 15/16 52 7/16
1998:
First (through January 12, 1998)..................... 67 1/2 55 59/64
</TABLE>
On October 3, 1997, the last trading day before public announcement of the
Merger, the closing price per share of Coast Common Stock on the NYSE was $54
(as reported on the NYSE Composite Tape). On January 12, 1998, the last
practicable date prior to the mailing of this Proxy Statement/Prospectus, the
closing price per share of Coast Common Stock was 56 5/16 (as reported on the
NYSE Composite Tape). Past price performance is not necessarily indicative of
likely future price performance. Holders of Coast Common Stock are urged to
obtain current market quotations for shares of Coast Common Stock.
NO EXISTING TRADING MARKET FOR THE CPR CERTIFICATES
There is no current market for the CPR Certificates. Coast, on behalf of
the CPR Trust, has applied for inclusion of the CPR Certificates on the NASDAQ
National Market System under the symbol "CCPR." No assurance can be given that
the CPR Certificates will satisfy the listing requirements for inclusion on the
NASDAQ National Market System or any other trading system. In the event that the
CPR Certificates cannot be listed on any trading system, there would likely be
only minimal or no trading channels for the CPR Certificates, resulting in
severely reduced or no liquidity for investors in the CPR Certificates. Even if
such listing is achieved, there can be no assurance that an active market for
the CPR Certificates will develop or be sustained. If such a market develops,
there can be no assurance as to the price at which the CPR Certificates would
trade at any time and such price could be subject to rapid and substantial
change. See "Risk Factors."
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VOTING SECURITIES AND PRINCIPAL STOCKHOLDERS OF COAST
PRINCIPAL BENEFICIAL OWNERS
The following table lists the only stockholder known by Coast to be the
beneficial owner of more than five percent of outstanding Coast Common Stock.
<TABLE>
<CAPTION>
NAME AND ADDRESS OF AMOUNT AND NATURE OF PERCENT OF
BENEFICIAL OWNER(1) BENEFICIAL OWNERSHIP(1) COMMON STOCK(1)
------------------------------------------------ ----------------------- ---------------
<S> <C> <C>
Jenswold, King and Associates, Inc.............. 1,041,166.00 5.46%
Two Post Oak Central
1980 Post Oak Boulevard, Suite 2400
Houston, Texas 77056-3898
</TABLE>
- ---------------
(1) Information based on Schedule 13G filed by Jenswold, King and Associates,
Inc. on March 5, 1997.
SHARES BENEFICIALLY OWNED BY DIRECTORS AND EXECUTIVE OFFICERS
Following is a table which indicates as of September 30, 1997 the amount
and the percent of beneficial ownership of Coast Common Stock for each director,
the Chief Executive Officer and the four other most highly compensated executive
officers, and all directors and executive officers as a group. Unless otherwise
noted, each individual has sole voting and sole investment power with respect to
the number of shares set forth opposite his name.
<TABLE>
<CAPTION>
NAME OF BENEFICIAL OWNER NUMBER OF SHARES
OR NUMBER OF PERSONS IN GROUP(1) BENEFICIALLY OWNED
----------------------------------------------------- ------------------
<S> <C>
Leon S. Angvire...................................... 25,547(2)
John C. Argue........................................ 9,000(2)
James F. Barritt..................................... 133,985
Gerald D. Barrone.................................... 86,301
James R. Boyle....................................... 75,000
Joan Milke Flores.................................... 6,834(2)
Robert L. Hunt II.................................... 252,003
Jack P. Libby........................................ 7,000(2)
Ray Martin........................................... 319,956
Thomas V. McKernan, Jr............................... 6,500(2)
James P. Miscoll..................................... 15,000(2)
Norman H. Raiden..................................... 111,772
Keith W. Renken...................................... 8,500(2)
Harold B. Starkey, Jr................................ 10,600(2)
All directors and executive officers as a group(16
persons)........................................... 1,142,349
</TABLE>
- ---------------
(1) Each of the named persons owns less than 1% of the outstanding shares of
Coast Common Stock except for Mr. Martin who owns 1.69% and Mr. Hunt who
owns 1.34%. All directors and executive officers as a group own 5.83% of the
outstanding shares of Coast Common Stock. The foregoing percentages and the
share amounts shown in the table include with respect to Messrs. Barritt,
Barrone, Boyle, Hunt, Martin, Raiden and all directors and executive
officers as a group (including those named) 132,185 shares, 79,301 shares,
70,000 shares, 208,211 shares, 295,441 shares, 105,772 shares and 1,004,661
shares, respectively, that are subject to options which are exercisable.
(2) Includes 5,000 exercisable options.
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THE CPR TRUST AND THE CPR CERTIFICATES
SUMMARY
The following is a summary of certain information contained in "The CPR
Trust and the CPR Certificates." This summary is not intended to be a complete
description of the matters covered in "The CPR Trust and the CPR Certificates"
and is subject to and qualified in its entirety by reference to the more
detailed information contained elsewhere in "The CPR Trust and the CPR
Certificates."
Coast Federal Litigation Contingent Payment Rights Trust.
The CPR Trust is a statutory business trust created under Delaware law
pursuant to a Declaration of Trust and the filing of a Certificate of Trust with
the Delaware Secretary of State on January 8, 1998 for the purpose of holding
the Commitment. The Litigation relates to the federal government's alleged
breach of the agreement entered into in 1987, in connection with Coast Federal's
acquisition of Central Savings and Loan Association, to treat certain amounts as
a permanent addition to Coast Federal's regulatory capital. The four senior
executives of Coast with knowledge of the facts underlying the Litigation will
be appointed as "Litigation Trustees" of the CPR Trust, and will be delegated
full authority to make all decisions on behalf of Coast Federal (and its
successors) with respect to the prosecution of the Litigation, including the
selection and supervision of existing and any new counsel and deciding whether
or not to accept any settlement offer. See "-- Management of the Litigation."
Certain other aspects of the CPR Trust will also be administered by Bankers
Trust Company (the "Institutional Trustee") and Bankers Trust (Delaware) (the
"Delaware Trustee"), as required by Delaware law. The Litigation will remain an
asset of Coast Federal and its successors.
Immediately prior to the Effective Time of the Merger, Coast, the
Litigation Trustees, the Institutional Trustee and the Delaware Trustee will
enter into an Amended and Restated Declaration of Trust (the "CPR Trust
Agreement") substantially in the form attached as Appendix B to this Proxy
Statement/Prospectus. The CPR Trust Agreement will govern the terms and
conditions of the CPR Trust.
Description of the CPR Certificates.
Each CPR Certificate will represent an undivided beneficial interest in the
assets of the CPR Trust, and will, as a result of Ahmanson's entering into of
the Commitment, represent a pro rata interest in the right to receive an amount
equal to the net after-tax proceeds, if any, that may be received in the
Litigation, as described below.
The CPR Certificate Distribution.
Immediately prior to the Effective Time of the Merger (provided that all
other conditions to consummation of the Merger under the Merger Agreement have
been satisfied or waived), the CPR Trust will issue the CPR Certificates to
Coast. Coast will then distribute one CPR Certificate to each Coast stockholder
for each share of Coast Common Stock held by such stockholder, and will retain a
certain number of CPR Certificates as described in "-- The CPR Certificate
Distribution."
The Commitment.
At the Effective Time, and effective at the Effective Time, Ahmanson will
enter into the Commitment (the "Commitment"), substantially in the form attached
as Appendix C to this Proxy Statement/Prospectus, pursuant to which Ahmanson
will be obligated to pay to the CPR Trust from time to time an amount equal to
the Commitment Amount. See "-- The Commitment."
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Definitions Related to the CPR Trust.
As used in this Proxy Statement/Prospectus, the "Commitment Amount" means
the Litigation Proceeds minus the Reimbursements plus the Assumed Tax Benefit
(as defined in "-- Description of the CPR Certificates.)"
"Litigation Proceeds" means any and all cash payments (the "Cash Proceeds")
actually received by Ahmanson, Coast Federal or Home Savings or any of their
affiliates (the "Ahmanson Group") pursuant to a final, non-appealable judgment
or a final settlement of the Litigation and the non-cash payments (the "Non-Cash
Proceeds"), if any, actually received by the Ahmanson Group pursuant to a final,
non-appealable judgment or a final settlement of the Litigation.
"Reimbursements" means (a) an amount equal to the Expense Fund plus (b)
interest on the portions of the Expense Fund withdrawn by the CPR Trust
calculated from the time of any such withdrawal at an annual interest rate equal
to the Reference Rate plus 250 basis points, compounded quarterly plus (c) the
Assumed Tax Liability (as defined in "-- Description of the CPR Certificates")
plus (d) in the event Litigation Proceeds are required to be included in income
for federal income tax purposes in a taxable year prior to the year such
proceeds are received in cash (either because of the accrual of Cash Proceeds
before the payment thereof or the time required to liquidate Non-Cash Proceeds),
interest at the Reference Rate plus 250 basis points from the date of such
payment of taxes on such income to the date of receipt of cash.
The "Expense Fund" means an amount equal to $20 million, less the expenses
relating to the Litigation incurred and paid between August 31, 1997 and the
Effective Date, which amount Ahmanson will deposit at the Effective Time in a
non-interest bearing demand-deposit account in the name of the CPR Trust at Home
Savings.
The "Payment Amount" means the Commitment Amount received (including the
amount of cash resulting from the monetization by Ahmanson of any Non-Cash
Proceeds), less the amount of any accrued but unpaid expenses payable by the CPR
Trust and, for any reason, not covered by the Expense Fund, less amounts
retained by the CPR Trust as the "Retained Amount" (as defined in
"-- Description of the CPR Certificates -- The Expense Fund, Other Expenses and
the Retained Amount").
Rights of Holders of the CPR Certificates.
Within 60 days of the receipt of any Commitment Amount, the CPR Trust will
pay the Payment Amount to the holders of the CPR Certificates. The only assets
of the CPR Trust will be the Commitment and the right to draw on amounts in the
Expense Fund for the purpose of funding any expenses of the CPR Trust.
The Commitment and the CPR Trust Agreement will provide that holders of CPR
Certificates will have no rights to bring any action against Ahmanson or any
member of the Ahmanson Group, although the CPR Trust (or the Litigation Trustees
on behalf of the CPR Trust) may bring an action against Ahmanson for breach of
the Commitment or, after the Effective Time, under the CPR Trust Agreement, for
failure to deliver any CPR Certificate when due or to return to the CPR Trust
for cancellation any CPR Certificate required to be returned when so required,
for failure to deposit the Expense Fund at the Effective Time in a non-interest
bearing demand-deposit account in the name of the CPR Trust at Home Savings or
against Home Savings for breach of any depository relationship obligations it
may have with respect to the Expense Fund. The CPR Trust Agreement will provide
that the Litigation Trustees may only be held liable to the holders of the CPR
Certificates if it is established in a final judicial determination by clear and
convincing evidence that any decision or action of the Litigation Trustees was
undertaken with deliberate intent to injure the CPR Certificate holders or with
reckless disregard for the best interests of such holders, and, in any event,
any liability will be limited to actual, proximate, quantifiable damages. See
"-- Description of the CPR Certificates -- Limitations on Rights of CPR
Certificate Holders."
Expenses of the CPR Trust.
The Expense Fund will be used to pay all expenses of the CPR Trust,
including expenses of the Litigation, fees and expenses of the Litigation
Trustees and all administrative expenses. The CPR Trust may
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issue additional CPR Certificates after the Effective Time that represent pro
rata interests in the assets of the CPR Trust to pay expenses. The CPR Trust may
borrow funds in order to pay expenses if such borrowings represent debt of the
CPR Trust (and not ownership interests) for federal income tax purposes. See
"Risk Factors -- Adequacy of the Expense Fund."
FORMATION OF THE CPR TRUST
The CPR Trust is a statutory business trust created under Delaware law
pursuant to a Declaration of Trust and the filing of a Certificate of Trust with
the Delaware Secretary of State on January 8, 1998, for the purpose of holding
the Commitment. Immediately prior to the Effective Time of the Merger, Coast,
the Litigation Trustees, the Institutional Trustee and the Delaware Trustee will
enter into the CPR Trust Agreement, substantially in the form attached hereto as
Appendix B. The CPR Trust Agreement will govern the terms and conditions of the
CPR Trust. Pursuant to the CPR Trust Agreement, the four senior executives of
Coast with knowledge of the facts underlying the Litigation will be appointed as
Litigation Trustees of the CPR Trust, and will be given full authority to make
all decisions on behalf of Coast Federal (and its successors) with respect to
the prosecution of the Litigation at the CPR Trust's expense, including
selection and supervision of existing and any new counsel and deciding whether
or not to accept any settlement offer. See "-- Management of the Litigation."
Administration of the CPR Trust (including with respect to transfers of CPR
Certificates and receipt, holding and payment of funds) will be conducted by the
Institutional Trustee. As required by Delaware law, there will also be a
Delaware Trustee. The Litigation will remain a contingent asset of Coast Federal
and its successors (including Home Savings, if, following the Merger, Ahmanson
causes Coast Federal to merge into Home Savings) and thus will become a
contingent asset of Ahmanson as successor to Coast and as parent company of
Coast Federal upon effectiveness of the Merger.
THE LITIGATION
The following description of the Litigation does not purport to be a full
or complete description of the legal or factual issues presented, the court
opinions rendered or the relevant law, and the description is in all respects
qualified by reference to the documents filed in the Litigation, such opinions
and the relevant law. See "Available Information."
Introduction.
On July 9, 1992, Coast Federal commenced litigation entitled Coast Federal
Bank, Federal Savings Bank v. United States, Civil Action Number 92-466C,
against the United States in the U.S. Claims Court (now the U.S. Court of
Federal Claims, the "Claims Court") alleging that the United States is in breach
of contract with Coast Federal and has unlawfully taken Coast Federal's property
without just compensation or due process of law in violation of the U.S.
Constitution. Coast Federal's claims arose from changes, mandated by FIRREA and
certain regulations promulgated thereunder, with respect to the rules for
computing Coast Federal's regulatory capital. The United States has not yet
filed an answer to Coast Federal's complaint in the Litigation. However, on
March 25, 1993, Coast Federal filed a motion for partial summary judgment as to
the federal government's liability. This motion is still pending.
The Litigation.
On April 10, 1987, Coast Federal acquired substantially all of the assets
and liabilities of Central Savings and Loan Association ("Central") from the
Federal Savings and Loan Insurance Corporation (the "FSLIC") in a supervisory
transaction (the "Acquisition") that Coast Federal alleges was induced and
arranged by the FSLIC and the Federal Home Loan Bank Board ("FHLBB"). As part of
the Acquisition, Coast Federal entered into a contract with the FSLIC (the
"Assistance Agreement") under which the FSLIC made a cash contribution to Coast
Federal in the amount of $298.3 million (the "Capital Credit"). In the
Litigation, Coast Federal alleges that the Assistance Agreement and certain
resolutions and a forbearance letter issued by the FHLBB in connection with the
Assistance Agreement each expressly provided that the Capital Credit was to be
treated as a permanent addition to Coast Federal's regulatory capital. Coast
Federal further alleges that
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such treatment of the Capital Credit for regulatory capital purposes was
essential to inducing Coast Federal to consummate the Acquisition.
Pursuant to FIRREA, which became effective on August 9, 1989, the FSLIC and
the FHLBB were eliminated and were replaced as the regulators of federally
insured thrift institutions by the Office of Thrift Supervision (the "OTS"). In
regulations implementing FIRREA (the "Capital Regulations") and subsequent
actions, the OTS took the position that the Capital Credit should be classified
as supervisory goodwill, as defined in the Capital Regulations, which action
resulted in an immediate exclusion of the Capital Credit from one of the three
measures of Coast Federal's regulatory capital and effected a five year
phase-out of the Capital Credit from such inclusion in the other two measures.
Coast Federal alleges that FIRREA and the Capital Regulations constituted a
breach by the United States of its contractual commitment regarding the
regulatory capital treatment of the Capital Credit and an unlawful taking of
Coast Federal's property rights in the Capital Credit. Coast Federal seeks
damages for such breach by the United States of the alleged contract.
Related Cases.
The Litigation is one of a number of cases filed against the federal
government in the Claims Court involving acquisitions of failed savings
institutions and alleging that the changes in regulatory capital calculation
brought about by FIRREA and the Capital Regulations constitute a breach of the
contract between the acquiring institution and the federal government. For
purposes of the administration of such claims, the Claims Court bifurcated the
trial proceedings in the first three of such cases to be heard by it (Winstar
Corporation, et al. v. United States, Docket No. 90-8C; Statesman Savings
Holding Corp., et al. v. United States, Docket No. 90-773C (the "Statesman
Case"); and Glendale Federal Bank v. United States, Docket No. 90-772C (the
"Glendale Case"), which cases are collectively referred to herein as the
"Related Cases"). The Claims Court decided to first take testimony and to issue
a ruling on the question of whether the federal government is in breach of the
respective contracts alleged by each of the plaintiffs in the Related Cases and
thereafter to take testimony and render a decision on the amount of damages, if
any, to which each such plaintiff is entitled. In July 1992, the Claims Court
ruled in favor of the plaintiffs on the initial liability question, finding in
each case that the plaintiff had a contract as alleged with the federal
government and that the federal government is in breach of that contract as a
result of the enactment of FIRREA and the issuance of the Capital Regulations
thereunder. The Claims Court did not rule on the respective plaintiffs'
constitutional or other claims and such claims remain pending and unresolved. In
connection with the Related Cases, the United States raised a number of defenses
against liability. Among other things, the United States claimed that the
agreements, resolutions, discussions and correspondence between the plaintiff
banks, the FHLBB and the FSLIC and the actions taken by those agencies did not
grant the subject plaintiffs any unmistakable contract rights regarding the
treatment of supervisory goodwill or contributions to a bank's permanent capital
by the FSLIC, such as the Capital Credit. The United States also maintained that
it is absolved of any liability by the "sovereign acts" doctrine, which
provides, generally, that although sovereign acts of the government may cause
injury to parties that have contracted with the government, no liability arises
if such acts were performed for the general good and without intent to repudiate
or alter the government's contractual obligations. The United States further
contended that the contracts did not prohibit changes in the regulatory
treatment of capital based upon subsequent legislative enactments and that the
plaintiff banks bore the risk of such changes.
The decision of the Claims Court on liability was appealed by the federal
government. After extended appellate proceedings, culminating in an appeal to
the Supreme Court, the Supreme Court ruled in favor of the plaintiffs in the
Related Cases in United States v. Winstar Corp., et al., No. 95-865 (the
"Winstar Case"). The Supreme Court ruled that each of the plaintiffs in the
Related Cases (each of which involved different forms of regulatory financial
assistance and contractual documentation) had an express and enforceable
contractual right to treat supervisory goodwill as an asset includible in
capital for regulatory purposes and to amortize it over a specified period of
years. The Supreme Court also ruled that the plaintiffs in Statesman had an
express and enforceable contractual right to treat an FSLIC cash contribution as
a direct credit to its regulatory capital. The Supreme Court further held that,
by the passage and implementation of FIRREA, the
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United States breached those contractual rights. The Supreme Court also held
that the United States was not immune from liability under the various defenses
described above.
The Glendale Case is currently in trial on the issue of damages resulting
from the United States' breach of contract and the Statesman Case is scheduled
to begin trial on the same issue in 1998. In an attempt to manage the numerous
cases against the federal government involving the calculation of regulatory
capital as a result of the adoption of FIRREA, the Claims Court has determined
that no other case, including the Litigation, will go to trial until the damages
trials in both the Glendale Case and the Statesman Case have been completed. In
addition, the Claims Court has designated twelve cases as priority cases which
will be the first cases to go to trial following the trials on damages in the
Glendale Case and the Statesman Case. The first of the priority cases is
expected to begin trial in late 1998 or early 1999. The Litigation is scheduled
to be among the first group of thirty cases to go to trial following completion
of trial in the priority cases.
Relation of the Litigation to the Related Cases.
The Claims Court stayed proceedings in each of the other cases against the
federal government, including the Litigation, pending the outcome of the
liability phase of the Related Cases. Subsequent to the Supreme Court's decision
in the Winstar Case in July of 1996, such stay was lifted and Coast reinstated
its motion for partial summary judgment as to the federal government's
liability, which had been pending since March of 1993.
Coast Federal believes that the language in the Assistance Agreement, the
FHLBB resolutions and the related FHLBB forbearance letter concerning Coast
Federal's contractual right to include the Capital Credit in its regulatory
capital, which forms the basis for the Litigation, is substantially similar to
the language and contract documentation at issue in the Statesman Case.
Moreover, in response to Coast Federal's motion for summary judgment, the United
States has admitted that a contract was entered into with Coast, that FIRREA and
the Capital Regulations are inconsistent with that contract and that it is not
aware of any affirmative defenses to Coast's breach of contract claim. However,
the United States does not admit liability for any breach of the contract and
has sought certain limited discovery in what Coast believes to be an attempt to
ascertain whether any defenses may exist. There can be no assurance that the
Claims Court will grant Coast Federal's motion for partial summary judgment,
that the United States will not raise grounds in opposition to Coast Federal's
claim that were not previously ruled upon in the Related Cases or that Coast
Federal will ultimately prevail in the Litigation.
Damages.
Coast Federal has not to date specified the type or quantified the amount
of damages it seeks in the Litigation. In addition, there has been no final
ruling in the Related Cases with respect to the amount or appropriate measure of
damages.
Each savings institution affected by FIRREA's and the Capital Regulations'
limitation on the inclusion in regulatory capital of supervisory goodwill or
FSLIC capital contributions reacted to the resulting reduction in their
regulatory capital in an individual fashion dictated by the unique facts and
circumstances faced by the institution. Accordingly, the extent and amount of
damages awarded to each such institution that has brought an action against the
federal government is expected to be fact specific. Even if the plaintiffs in
the Related Cases are successful in securing damage awards, there can be no
assurance that Coast Federal will obtain a damage award.
Coast Federal alleges in its complaint (the "Complaint") that as a direct
and proximate result of the OTS' application of the Capital Regulations, Coast
Federal fell out of compliance with the risk-based capital standard of FIRREA
and the Capital Regulations. Coast Federal further alleges that as a direct
result of the breach of FSLIC's and FHLBB's agreements with Coast Federal, Coast
Federal was forced to decrease its size to meet its regulatory capital
requirements. In May 1989, Coast Federal had approximately $13 billion in
assets. By December 31, 1990, Coast Federal had reduced its size to $10.2
billion in assets. By March 31, 1992, Coast Federal had further reduced its size
to $8.7 billion in assets.
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The Complaint further alleges that on January 23, 1991, Coast Federal
entered into a Supervisory Agreement with the OTS, which Supervisory Agreement,
among other things, required Coast Federal to (i) submit a capital plan to OTS
within 60 days of when Coast Federal went out of compliance with the capital
requirements (by March 2, 1991), (ii) refrain from declaring or paying any
dividends for any class of stock, repurchasing any class of stock or redeeming
any outstanding subordinated debt includible as supplementary capital without
the approval of OTS, (iii) limit growth of liabilities and (iv) undertake a
comprehensive review of executive compensation.
The Complaint alleges that the restrictions, supervisory consequences, and
potential penalties that FIRREA and the Capital Regulations imposed on federally
insured thrifts for failing to satisfy minimum regulatory capital requirements
caused ongoing and severe injury to Coast Federal. Under the restrictions
outlined above, Coast Federal was allegedly subjected to substantial competitive
disadvantage in the marketplace for loans and deposits. The Complaint alleges
that Coast Federal -- on pain of the full range of regulatory economic
sanctions, from cease and desist orders to receivership and liquidation -- was
subjected not only to OTS's close supervisory scrutiny, but to its direction and
control regarding virtually all of its business operations. It is further
alleged that Coast Federal's managerial discretion, which had produced a record
of conservative, sound and efficient management, was greatly circumscribed.
The Complaint further alleges that, in addition to the severe injury caused
by Coast Federal's inability to run its own business, the restrictions imposed
by FIRREA and the Capital Regulations produced other damaging results. It is
alleged that the restrictions reduced Coast Federal's ability to generate
mortgages and other loans, reduced its access to secondary mortgage markets, and
impaired its ability to generate profits. The growth restrictions allegedly
reduced Coast Federal's ability to obtain the advantages of growth available to
thrifts, banks, and other financial institutions competing with it for the
provision of mortgages and other loans and services in its market area.
Moreover, the restrictions imposed under FIRREA and the Capital Regulations
allegedly impaired Coast Federal's ability to serve the needs of savers and home
buyers in its market area.
The Complaint further alleges that other equally severe injury was visited
upon Coast Federal and its valuable business reputation as a consequence of the
federal government's breach of its contractual obligations to Coast Federal and
the resulting characterization of Coast Federal as an under-capitalized
institution. It is alleged that this obvious threat to public confidence in
Coast Federal impaired Coast Federal's ability to attract and retain depositors,
as well as its ability to borrow in capital markets.
Coast Federal's complaint concludes by alleging that as a direct and
proximate result of the federal government's repudiation of its contract with
Coast Federal, Coast Federal suffered substantial damages, including lost
profits.
Although Coast Federal has conducted preliminary reviews of the damages
allegedly suffered by Coast Federal, no conclusive determinations have been made
regarding the amount or type of such damages. The United States has argued in
the Related Cases that some or all of the damages alleged by the plaintiffs in
the Related Cases are too speculative to permit a recovery. Assuming Coast
Federal successfully establishes the federal government's liability, any trial
of Coast Federal's damage claims will occur after the trial of the damage phases
of two of the Related Cases, and rulings in the Related Cases may adversely
affect some or all of Coast Federal's damage claims. In addition, other cases
representing similar claims are scheduled for trial before the damages phase of
Coast Federal's case is likely to go to trial, and rulings in those cases may
also adversely affect some or all of Coast Federal's damage claims. For these
and related reasons, even if Coast Federal prevails in establishing the
liability of the United States, there can be no assurance as to the amount, if
any, and type of damages that Coast Federal may recover. Without limiting the
generality of the foregoing, there can be no assurance that Coast Federal will
obtain any monetary recovery in the Litigation.
THE CPR CERTIFICATE DISTRIBUTION
Immediately prior to the Merger, the CPR Trust will issue to Coast the CPR
Certificates representing undivided beneficial interests in the assets of the
CPR Trust. Immediately thereafter, and immediately prior to the Effective Time
of the Merger (and when all other conditions to consummation of the Merger under
the
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Merger Agreement have been satisfied or waived), Coast will distribute to each
Coast stockholder one CPR Certificate for each share of Coast Common Stock held
by such stockholder (the "CPR Certificate Distribution"). The record and payment
dates for the CPR Certificate Distribution will be immediately prior to the
Effective Time of the Merger on the Effective Date of the Merger.
In addition to such number of CPR Certificates to be issued to Coast in
order to permit the CPR Certificate Distribution, the CPR Trust will initially
issue to Coast (i) one additional CPR Certificate for each share of Coast Common
Stock underlying the Coast SARs and Coast Performance Awards outstanding as of
the date of the Merger Agreement; (ii) one additional CPR Certificate for each
share of Coast Common Stock as to which a Coast Stock Option was outstanding
immediately prior to the Merger; and (iii) one additional CPR Certificate for
each share of Coast Common Stock with respect to which appraisal rights are
exercised. Ahmanson (as successor to Coast) will retain (and will be able to
sell) CPR Certificates in an amount equal to (x) the number of Coast shares as
to which stockholders have demanded to exercise appraisal rights, plus (y) the
number of Coast shares underlying Coast SARs and Coast Performance Awards that
are exercised for cash prior to the Merger or which are surrendered solely for
cash (rather than a combination of cash and CPR Certificates) in the Merger.
Ahmanson will also retain the number of CPR Certificates that is equal to the
number of Coast shares underlying Coast Stock Options outstanding immediately
prior to the Merger, for delivery by Ahmanson upon exercise of Replacement
Options following the Merger. If any Replacement Options are canceled or expire
unexercised, Ahmanson will return the related number of CPR Certificates to the
CPR Trust for cancellation.
Each CPR Certificate distributed by the CPR Trust to each Coast stockholder
will be automatically redeemed for $0.01 in cash immediately following the
Merger if the holder of the share as to which such CPR Certificate was issued
has given notice, pursuant to Section 262 of the DGCL, of an intent to exercise
appraisal rights. If any such Coast stockholder subsequently withdraws, or fails
to perfect, as required by Section 262 of the DGCL, such appraisal demand,
Ahmanson will deliver to such stockholder CPR Certificates equal to the number
of Coast shares as to which such appraisal demand was withdrawn or not
perfected. As described under "Appraisal Rights," the "fair value" of shares of
Coast Common Stock is to be determined as of immediately prior to the CPR
Certificate Distribution and the Merger.
THE COMMITMENT
At the Effective Time and effective at the Effective Time, Ahmanson will
enter into the Commitment, substantially in the form attached hereto as Appendix
C. Under the terms of the Commitment, Ahmanson will be obligated to pay to the
CPR Trust from time to time an amount equal to the Commitment Amount at the time
specified under "-- Description of the CPR Certificates -- Payment Procedures"
below. The Commitment will rank pari passu with other senior indebtedness of
Ahmanson. The terms of the Commitment provide that Ahmanson will not, and will
not permit Coast Federal or Home Savings (as applicable) to, "assign" (within
the meaning of 31 U.S.C. Section 3727, which prohibits such assignment without
prior approval of the federal government) any interest in the Litigation
following consummation of the Merger. The parties acknowledge that any merger of
Ahmanson or Home Savings with any other party will not be deemed to be or to
effect an assignment (within the meaning of 31 U.S.C. Section 3727) of the
Litigation.
The Commitment will provide that Ahmanson (a) shall not (i) sell, transfer
or otherwise dispose of any shares of any series of Voting Stock (as defined
herein) of Home Savings or (ii) permit Home Savings to issue, sell or otherwise
dispose of shares of its Voting Stock unless in either case Home Savings remains
a Controlled Subsidiary (as defined herein), and (b) shall not permit Home
Savings to (i) merge or consolidate unless the surviving entity is Ahmanson or a
Controlled Subsidiary or (ii) convey or transfer its properties and assets
substantially as an entirety to any person, except to Ahmanson or a Controlled
Subsidiary.
The Commitment will also provide that Ahmanson shall not create, assume,
incur or suffer to exist, as security for indebtedness for borrowed money, any
mortgage, pledge, encumbrance, lien or charge of any kind upon the Voting Stock
of Home Savings (other than directors' qualifying shares) without effectively
providing that the CPR Certificates shall be secured equally and ratably with
(or prior to) such indebtedness; provided, however, that Ahmanson may create,
assume, incur or suffer to exist any such mortgage, pledge, encum-
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brance, lien or charge without regard to the foregoing provisions so long as
after giving effect thereto Ahmanson will own directly or indirectly at least
80% of the Voting Stock of Home Savings then issued and outstanding, free and
clear of any such mortgage, pledge, encumbrance, lien or charge. "Voting Stock"
will be defined in the Commitment to mean, with respect to any person, stock of
any class or classes, however designated, having ordinary voting power for the
election of a majority of the board of such person, other than stock having such
power only by reason of the happening of a contingency. "Controlled Subsidiary"
will be defined in the Commitment to mean any person at least 80% of the
outstanding shares of Voting Stock (except for directors' qualifying shares) of
which is at the time owned directly or indirectly by Ahmanson.
The Commitment will also provide that, notwithstanding the foregoing,
Ahmanson may avoid the restrictions described above if prior to any such
transaction Home Savings shall have unconditionally guaranteed payment when due
of the Commitment Amount, if any, Home Savings shall have obtained all
regulatory approvals, if any, required to permit the guarantee of the payment of
the Commitment Amount, and Ahmanson shall have delivered to the Institutional
Trustee an opinion of counsel stating that the guarantee of the payment of the
Commitment Amount by Home Savings has been duly authorized, executed and
delivered and constitutes a valid, legally binding and enforceable obligation of
Home Savings.
DESCRIPTION OF THE CPR CERTIFICATES
General.
Each CPR Certificate will represent an assignable and transferable
undivided beneficial interest in the assets of the CPR Trust and, as a result of
Ahmanson's entering into of the Commitment, will represent an interest in the
right to receive a pro rata share of the Payment Amount. Each CPR Certificate
will entitle the holder to receive (i) a fraction of the Payment Amount equal to
1 divided by the total number of CPR Certificates then outstanding and (ii) a
fraction of the Retained Amount (as defined in "-- The Expense Fund, Other
Expenses and the Retained Amount") remaining at the expiration of the Retained
Amount Period (as defined in "-- The Expense Fund, Other Expenses and the
Retained Amount") equal to 1 divided by the total number of CPR Certificates
then outstanding.
Resales of CPR Certificates.
The CPR Certificates will be freely transferable by the holders of such CPR
Certificates under the Securities Act, except for CPR Certificates issued to any
holder of CPR Certificates who may be deemed to be an "affiliate" of the CPR
Trust for purposes of Rule 145 under the Securities Act as of the date of the
Special Meeting. Such affiliates may not sell their CPR Certificates except
pursuant to an effective registration statement under the Securities Act or
other applicable exemption from the registration requirements of the Securities
Act.
Tradability.
The CPR Trust Agreement will require the CPR Trust to use its reasonable
best efforts to permit trading of the CPR Certificates on the NASDAQ National
Market System (or, if such trading is not possible, on such other NASDAQ or
other market selected in an effort to maximize liquidity). Coast, on behalf of
the CPR Trust, has applied for inclusion of the CPR Certificates on the NASDAQ
National Market System.
No assurance can be given that the CPR Certificates will satisfy the
listing requirements for inclusion on the NASDAQ National Market System or any
other trading system. In the event that the CPR Certificates cannot be listed on
any trading system, there would likely be only minimal or no trading channels
for the CPR Certificates, resulting in severely reduced or no liquidity for
investors in the CPR Certificates. Even if such listing is achieved, there can
be no assurance that an active market for the CPR Certificates will develop or
be sustained. If such a market develops, there can be no assurance as to the
price at which the CPR Certificates would trade at any time and such price could
be subject to rapid and substantial change, depending upon, among other things,
developments in the Litigation and similar pending litigation.
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Payment of Commitment Amount to the CPR Trust.
The terms of the Commitment will require Ahmanson to pay to the CPR Trust
the Commitment Amount within the time specified under "-- Payment Procedures"
below. Any Litigation Proceeds actually received by the Ahmanson Group will
first be applied to the reimbursement to the Ahmanson Group of the
Reimbursements. The Commitment Amount may be paid to the CPR Trust in
installments if the terms of the judgment or settlement of the Litigation
provide that the Litigation Proceeds are to be paid in installments or if Coast
Federal receives the Litigation Proceeds in installments. If Ahmanson does not
timely pay the Commitment Amount to the CPR Trust, it must pay to the CPR Trust
such Commitment Amount plus interest accrued at the Reference Rate plus 250
basis points per annum. However, pursuant to the Commitment, Ahmanson will not
be obligated to pay all or any portion of the Commitment Amount when due under
certain circumstances more fully described below under "-- Payment Procedures."
Payment Procedures.
Pursuant to the Commitment, within 10 days of the receipt by the Ahmanson
Group of any Litigation Proceeds, Ahmanson will deliver to the Litigation
Trustees a written notice (the "Proceeds Notice") specifying that such
Litigation Proceeds have been received and describing the type and amount of any
Non-Cash Proceeds received. Within 10 days of the delivery of the Proceeds
Notice, the Litigation Trustees shall deliver to Ahmanson written instructions
to liquidate the Non-Cash Proceeds received. If so instructed, Ahmanson will
then liquidate or cause to be liquidated the Non-Cash Proceeds in accordance
with the instructions. As promptly as practicable but in no event later than 30
days after the later of the receipt by Ahmanson of the Litigation Proceeds and
the liquidation by Ahmanson of Non-Cash Proceeds, Ahmanson will deliver to the
Litigation Trustees a certificate (the "Ahmanson Certificate") setting forth the
calculation of the portion of the Commitment Amount with respect to such
Litigation Proceeds, which Ahmanson Certificate will be valid and binding absent
manifest error. The Ahmanson Certificate will set forth each of the items
required under the Commitment to calculate the Commitment Amount, including the
amount of Litigation Proceeds and the amount of (and calculation of) each
component of the Reimbursements and the assumptions underlying the determination
of each item, and Ahmanson will attach to the Ahmanson Certificate financial and
other documentation reasonably sufficient to support each item and assumption
used to calculate the Commitment Amount. Within 30 days of delivery of the
Ahmanson Certificate, the CPR Trust will give written notice specifying whether
it agrees or objects (a "Notice of Agreement" and a "Notice of Objection,"
respectively) to the calculation in the Ahmanson Certificate of the portion of
the Commitment Amount with respect to such Litigation Proceeds. If the CPR Trust
delivers a Notice of Agreement, Ahmanson will then deliver the portion of the
Commitment Amount with respect to such Litigation Proceeds to the Institutional
Trustee within 5 business days of such Notice of Agreement. If the CPR Trust
delivers a Notice of Objection within such 30-day period, Ahmanson will deliver
such portion of the Commitment Amount only upon a Resolution.
If the CPR Trust delivers a Notice of Objection within such 30-day period,
the CPR Trust will, as promptly as practicable thereafter, deliver to Ahmanson a
certificate (the "CPR Calculation Certificate") setting forth its calculation of
such portion of the Commitment Amount. The CPR Calculation Certificate will set
forth each of the items required under the Commitment to calculate such portion
of the Commitment Amount, including the amount of Litigation Proceeds and the
amount of (and calculation of) each component of the Reimbursements and the
assumptions underlying the determination of each item, and the CPR Trust will
attach to the CPR Calculation Certificate financial and other documentation
reasonably sufficient to support each item and assumption used to calculate such
portion of the Commitment Amount. If Ahmanson does not agree with the CPR
Trust's calculation of such portion of the Commitment Amount, then within 10
business days of the delivery by the CPR Trust of the CPR Calculation
Certificate, Ahmanson and the CPR Trust will submit the calculation of such
portion of the Commitment Amount to a mutually agreed upon independent certified
public accountant (the "Accountant"). If Ahmanson and the CPR Trust cannot agree
upon such independent certified public accountant, then the Commitment will
provide that the Accountant will be Price Waterhouse. The Accountant will be
instructed to determine whether the calculation set forth in the Ahmanson
Certificate contained manifest error and the Accountant will be instructed to
conclude (i) that
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the calculation set forth in the Ahmanson Certificate does not contain manifest
error so long as the calculation is a reasonable calculation of such portion of
the Commitment Amount based upon a reasonable interpretation of the provisions
of the Commitment and (ii) that the calculation set forth in the Ahmanson
Certificate contains manifest error if the calculation is not a "reasonable
calculation of the Commitment Amount based upon a reasonable interpretation of
the provisions of the Commitment." If the Accountant determines (a) that the
calculation set forth in the Ahmanson Certificate did not contain manifest
error, such portion of the Commitment Amount will be as calculated in the
Ahmanson Certificate or (b) that the calculation set forth in the Ahmanson
Certificate did contain manifest error, the Accountant will recompute such
portion of the Commitment Amount based upon the formulae and definitions set
forth in the Commitment and described herein and the Accountant's calculation
will be binding on both Ahmanson and Coast (in either of case (a) or (b), a
"Resolution"). In the event it is determined that Ahmanson's calculation
contained manifest error, in addition to such portion of the Commitment Amount,
Ahmanson will pay to the CPR Trust interest on such portion of the Commitment
Amount calculated from the date that the CPR Trust delivered its Notice of
Objection at an annual interest rate equal to the Reference Rate plus 250 basis
points. If the CPR Trust delivers a Notice of Objection with respect to the
payment of any portion of the Commitment Amount within the applicable 30-day
period and prior to the Resolution there is a Determination to the effect that
no deduction is allowed (or that any allowed deduction is limited) in respect of
payments of the Commitment Amount under Section 483(a) in whole or in part, then
Ahmanson will have the right to deliver a new Ahmanson Certificate with a new
calculation of that portion of the Commitment Amount, and the previously
delivered Ahmanson Certificate with respect to that portion of the Commitment
Amount will be considered null and void; provided, however, that if Ahmanson
delivers such a new Ahmanson Certificate, Ahmanson will be required to pay
interest on that portion of the Commitment Amount from the date of delivery of
the first Ahmanson Certificate relating to such portion of the Commitment Amount
to the date of delivery of the new Ahmanson Certificate relating to such portion
of the Commitment Amount at a rate equal to Home Savings' cost of funds as
submitted monthly to the FHLBSF. The same procedures described in this Section
2.02(b) for the resolution of any disputes with respect to the calculation
contained in an Ahmanson Certificate will apply equally to the calculation in
the new Ahmanson Certificate with respect to such portion of the Commitment
Amount.
Pursuant to the Commitment, Ahmanson will pay to the CPR Trust the portion
of the Commitment Amount with respect to the relevant Litigation Proceeds (a) if
the CPR Trust does not deliver a Notice of Objection within the 30-day period
described above, within 5 business days of the earlier of the delivery of the
Notice of Agreement with respect to such Ahmanson Certificate or the 30th day
following the delivery by Ahmanson of such Ahmanson Certificate or (b) if the
CPR Trust does deliver a Notice of Objection with respect to such Ahmanson
Certificate within the 30-day period described above within 5 business days of
the Resolution with respect to such portion of the Commitment Amount (each, a
"Due Date"). If Ahmanson does not pay such portion of the Commitment Amount by
the appropriate Due Date, Ahmanson will be obligated to pay to the CPR Trust
such portion of the Commitment Amount plus interest on such portion of the
Commitment Amount from the Due Date until the date such portion of the
Commitment Amount is paid, calculated at an annual interest rate equal to the
Reference Rate plus 250 basis points.
Notwithstanding the foregoing, Ahmanson will not be obligated to pay the
Commitment Amount or any portion thereof at the Due Date and will be deemed not
to be in default of the Commitment and not to have violated its obligations
thereunder by virtue of not having paid the Commitment Amount or such portion
thereof (i) to the extent that Home Savings is not permitted due to regulatory
restrictions to distribute to Ahmanson the Litigation Proceeds and (ii) if prior
to the Due Date, Ahmanson has delivered to the CPR Trust a certificate (an
"Officer's Certificate") from the chief financial officer of Home Savings
specifying that portion of the Litigation Proceeds that cannot be paid due to
regulatory restrictions and the applicable law, regulation or other action of a
regulatory authority that is the source of the regulatory restrictions
preventing the distribution by Home Savings and either (i) an opinion of outside
counsel substantially to the effect that the distribution by Home Savings of the
Litigation Proceeds or the applicable portion thereof, as the case may be, would
result in the violation of the applicable law, regulation or other action of a
regulatory authority that is the source of the regulatory restrictions
preventing the distribution by Home Savings (an "Opinion of Counsel") or (ii)
either (A) a copy of written documentation from the applicable regulatory
authority to the
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effect that Home Savings may not distribute the Litigation Proceeds, or any
portion thereof, to Ahmanson, or (B), prior to the expiration of any applicable
prior notice or application period following Home Savings' submission to the
applicable regulatory authority of a notice or application for approval of a
distribution of the Litigation Proceeds to Ahmanson, an officer's certificate
from the chief financial officer of Home Savings certifying that Home Savings
has submitted such a notice or application and that Home Savings has not
received any written documentation from such regulatory authority to the effect
that Home Savings may make such distribution (in either of case (A) or (B), a
"Regulatory Document"). Under the Commitment, Ahmanson will be entitled not to
pay the Commitment Amount or any portion thereof as specified in the immediately
preceding sentence with the consequences specified in the immediately preceding
sentence for a period of two years from the Due Date on which the Commitment
Amount or such portion thereof would otherwise have been payable so long as (x)
Home Savings continues not to be permitted to distribute such portion of the
Litigation Proceeds to Ahmanson due to regulatory restrictions and (y) Ahmanson
delivers on a quarterly basis beginning with the first full fiscal quarter
following the Due Date an Officer's Certificate and either an Opinion of Counsel
or a Regulatory Document. After this two year period, if Ahmanson does not pay
that portion of the Commitment Amount that is due, Ahmanson will be in default
of the Commitment.
Notwithstanding the foregoing, Ahmanson will be deemed to be in default of
the Commitment, when payment of the Commitment Amount or such portion thereof
would otherwise be due but when Ahmanson would be entitled not to make such
payment and would be deemed not to be in default due to the regulatory
restrictions described therein if, at such time, there exists a default under
any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for money borrowed by
Ahmanson (but not including any such mortgage, indenture or instrument pursuant
to which the creditor's remedy is limited to foreclosure of collateral), whether
such indebtedness now exists or will hereafter be created, which default will
constitute a failure to pay principal of such indebtedness in an amount
exceeding $50 million when due and payable after the expiration of any
applicable grace period with respect thereto or will have resulted in such
indebtedness in an aggregate principal amount exceeding $50 million becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness being discharged, or such
acceleration having been rescinded or annulled, within a period of 35 days after
the occurrence of the event that gave rise to such default provided that any
such event of default will not be deemed to have occurred so long as Ahmanson is
contesting the validity thereof in good faith by appropriate proceedings.
Ahmanson will be obligated to pay the Commitment Amount or such portion
thereof at the earlier of such time as such regulatory restrictions no longer
exist or the second anniversary of the due date for the payment of the
Commitment Amount, and interest on the Commitment Amount or such portion
thereof, as the case may be, from the Due Date until the date the Commitment
Amount or such portion thereof is paid, calculated at an annual interest rate
equal to the Reference Rate plus 250 basis points.
In the event that Home Savings is not permitted due to regulatory
restrictions to distribute to Ahmanson Litigation Proceeds as described hereof,
Ahmanson agrees to use its reasonable best efforts, or to cause Home Savings to
use its reasonable best efforts, to obtain regulatory approval for the
distribution to Ahmanson of such Litigation Proceeds.
Payment of Payment Amount to Holders.
The CPR Trust Agreement and the CPR Certificates will require that the CPR
Trust will make payments from time to time to the CPR Certificate holders of the
Payment Amount upon the receipt of the applicable Commitment Amount from
Ahmanson. The CPR Trust Agreement will also provide that upon the expiration of
the Retained Amount Period, the CPR Trust will pay to each CPR Certificate
holder its pro rata share of any funds left in the Retained Amount at such time.
Pursuant to the CPR Trust Agreement, each CPR Certificate will entitle the
holder to receive (i) a fraction of the Payment Amount equal to 1 divided by the
total number of CPR Certificates then outstanding, and (ii) a fraction of the
amount remaining in the Retained Amount (as defined in "-- The Expense Fund,
Other Expenses and the Retained Amount") at the expiration of the Retained
Amount Period (as defined in
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"-- The Expense Fund, Other Expenses and the Retained Amount") equal to 1
divided by the total number of CPR Certificates then outstanding.
Timing of Payments.
Pursuant to the CPR Trust Agreement, the CPR Trust will make payments of
the Payment Amount to the holders of CPR Certificates as of record dates
determined by the Litigation Trustees. Payment will be made on payment dates,
which will also be set by the Litigation Trustees, and which will be within 60
days after the CPR Trust receives a payment pursuant to the Commitment.
The Expense Fund, Other Expenses and the Retained Amount.
Pursuant to the Merger Agreement, at the Effective Time of the Merger,
Ahmanson will deposit in a non-interest bearing demand-deposit account in the
name of the CPR Trust at Home Savings an amount (the "Expense Fund") equal to
$20 million less the expenses relating to the Litigation incurred and paid
between August 31, 1997 and the Effective Date. The CPR Trust shall have the
right to draw on the Expense Fund for the purpose of funding any expenses of the
CPR Trust, including administration expenses, expenses of the Litigation, fees
and expenses of the Litigation Trustees, the Institutional Trustee and the
Delaware Trustee, amounts paid as indemnity to the Trustees or Ahmanson,
premiums for liability insurance, and fees and expenses of attorneys,
consultants and other experts retained by, or at the direction of, the
Litigation Trustees. Coast and Litigation Counsel have a tentative understanding
for a contingent fee arrangement pursuant to which Litigation Counsel would
defer or waive certain fees that they would otherwise be entitled to receive
and, in consideration thereof, they would be entitled to receive from the CPR
Trust an amount equal to 1% of the Commitment Amount, which payment to
Litigation Counsel would reduce the Payment Amount to be paid to holders of CPR
Certificates. However, there can be no assurance that a contingent fee
arrangement will be entered into on such terms or on any other terms. Any
contingent payment by the CPR Trust could significantly increase the CPR Trust's
expenses and thus significantly reduce the Payment Amount with respect to the
CPR Certificates. See "Risk Factors -- Adequacy of Expense Fund."
The CPR Trust may issue additional CPR Certificates after the Effective
Time which represent pro rata interests in the CPR Trust in order to pay
expenses upon depletion of the Expense Fund; the CPR Trust may issue CPR
Certificates of a different class than the CPR Certificates issued immediately
prior to the Merger or that represent non-pro rata interests in the CPR Trust,
if the CPR Trust obtains an opinion of nationally recognized counsel with
experience in tax matters that such issuance will not result in the CPR Trust
being classified as a taxable entity for federal income tax purposes. The CPR
Trust will be authorized to borrow additional funds for the sole purpose of
funding expenses of the CPR Trust upon depletion of the Expense Fund so long as
such indebtedness represents debt of the CPR Trust (and not an ownership
interest) for federal income tax purposes. Furthermore, it may not be possible
for the CPR Trust to borrow funds or to issue additional CPR Certificates. See
"Risk Factors -- Adequacy of Expense Fund." If the CPR Trust accrues expenses
(including interest on borrowings) in addition to the amounts withdrawn from the
Expense Fund, whether before or after it receives the Commitment Amount from
Ahmanson, it will deduct the amount of such expenses from the Commitment Amount
in order to calculate the Payment Amount.
Pursuant to the Commitment, if the amount of the Litigation Proceeds is
such that there would be no Commitment Amount payable under the Commitment to
the CPR Trust and if at the time of receipt of the Litigation Proceeds by the
Ahmanson Group (or at the time of a final judicial determination that there will
be no Litigation Proceeds) there are amounts remaining in the Expense Fund, the
CPR Trust will, as promptly as practicable, return to Ahmanson such amounts less
expenses (including obligations to compensate the Trustees) incurred by the CPR
Trust through the time of receipt of the Litigation Proceeds by the Ahmanson
Group (or the time of such final judicial determination) and expenses necessary,
in the reasonable judgment of the Litigation Trustees, to terminate the CPR
Trust pursuant to the CPR Trust Agreement. Alternatively, Ahmanson will have the
right to cause Home Savings to offset such amounts remaining in the Expense Fund
deposited with Home Savings against the amounts due to Ahmanson.
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The Litigation Trustees' obligation to make payments to the holders of the
CPR Certificates shall be subject to the requirement that the CPR Trust retain,
from amounts remaining in the Expense Fund and from payments of the Commitment
Amount, the Retained Amount for a period (the "Retained Amount Period") of two
years (or such longer period as the Litigation Trustees reasonably determine may
be reasonably likely to be required) to cover all expenses, costs and claims and
the indemnification obligations of the CPR Trust which may be incurred or which
may arise after payment of the Commitment Amount is paid in full. The "Retained
Amount" shall mean $10 million (or such greater amount as the Litigation
Trustees shall reasonably determine may be reasonably likely to be required to
pay additional expenses or to satisfy the CPR Trust's indemnification
obligations).
The CPR Trust shall invest the Retained Amount in a Permitted Investment,
to the extent that portions of the Retained Amount are not required to be
disbursed for expenses of the CPR Trust, until the expiration of the Retained
Amount Period. "Permitted Investment" means the Merrill Lynch Government Fund
money market fund (including any successor) or, if at the time of the receipt of
the applicable Commitment Amount by the CPR Trust (i) such fund is not in
existence, (ii) such fund is no longer limited to investing in short-terms
obligations of or guaranteed by the United States government, (iii) such find is
not accepting new investors or new investments or will not accept the investment
of the Commitment Amount or the Retained Amount, as the case may be, or (iv)
such fund is not AAA rated by Standard & Poors, the AAA rated money market fund
reported in IBC Rated Money Fund Report to have the largest amount of assets
under management as of the end of the most recent year for which information is
publicly available and which will accept such investment.
Tax Assumptions.
Pursuant to the Commitment, regardless of any position taken by the
Ahmanson Group on any tax return or in any claim for refund with respect to the
receipt of the Litigation Proceeds or payments of the Commitment Amount (or of
the actual payment or actual receipt of any taxes with respect thereto), the
Assumed Tax Liability will, (a) if there is no Determination, be computed based
on the Tax Assumptions and (b) if there is a Determination to the effect that
Litigation Proceeds are not includible in gross income in whole or in part, be
computed on the basis of the Tax Assumptions as such Tax Assumptions are
modified by such Determination. In addition, pursuant to the Commitment,
regardless of any position taken by the Ahmanson Group on any tax return or in
any claim for refund with respect to the receipt of the Litigation Proceeds or
payments of the Commitment Amount (or of the actual payment or actual receipt of
any taxes with respect thereto), the Assumed Tax Benefit will, (i) if there is
no Determination, be computed based on the Tax Assumptions and (ii) if there is
a Determination that no deduction is allowed (or that any allowed deduction is
limited) with respect to the application of Section 483(a) to payments of the
Commitment Amount, be computed on the basis of the Tax Assumptions as such Tax
Assumptions are modified by such Determination.
As used herein, the "Assumed Tax Liability" means an amount equal to the
income (including franchise) tax liability of the Ahmanson Group (not giving
effect to any deductions attributable to payments of the Commitment Amount)
attributable to the receipt of the Litigation Proceeds computed in the manner
set forth above. As used herein, the "Assumed Tax Benefit" means an amount equal
to the tax benefit that would be allowed to the Ahmanson Group under Section
483(a) of the Code computed in the manner set forth above.
As used herein, the "Tax Assumptions"means (i) if there is no
Determination, the following assumptions, or (ii) if there is a Determination,
the following assumptions as modified by such Determination:
(a) The Litigation Proceeds will be includible in gross income as
ordinary income in full.
(b) Payments of the Commitment Amount will not be deductible except
that Section 483(a) will apply to payments of the Commitment Amount, other
than those allocable to CPR Certificates issued on exercise of employee
options or otherwise in a transaction that is not a sale or exchange, and
payments of the Commitment Amount will be deductible to the extent treated
by Section 483(a) as interest expense; it being understood that it is not
intended that the distribution of the CPR Certificates immediately prior
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to the Effective Time of the Merger will result in the characterization of
such distribution as not constituting "a sale or exchange."
(c) The income tax liability attributable to the assumed inclusion of
all or a portion of the Litigation Proceeds in gross income as ordinary
income and the benefit of any deduction assumed to be allowed under Section
483(a) will be (i) the product of the amount of such income or deduction
and the highest statutory rate of federal income tax applicable to
corporations for the year in which the income is assumed to be included or
the deduction is assumed to be realized plus (ii) the product of such
income or deduction and the net combined marginal rate of state and local
income (or franchise) tax of the relevant member or members of the Ahmanson
Group for the year in which the income is assumed to be included and the
deduction is assumed to be realized, net of the federal income tax benefit
(calculated based on the rate in clause (i)) of such state or local income
(or franchise) tax. The relevant member or members of the Ahmanson Group
will be the member or members that is or are assumed to include the
Litigation Proceeds in income or is or are assumed to be allowed a
deduction under Section 483(a).
(d) Any benefit from any deduction allowable to the Ahmanson Group
under paragraph (c) of these Tax Assumptions for payments of the Commitment
Amount will be assumed to be realized (i) when those payments are made to
the extent those payments do not exceed the Litigation Proceeds included in
income for the same taxable year, or (ii) otherwise when, taking into
account other deductions or losses or credits of the Ahmanson Group, the
deduction would reduce the tax otherwise payable or result in a refund of
tax already paid.
(e) Ahmanson will be entitled to rely on a written opinion of either
Sullivan & Cromwell or another nationally recognized law firm with
expertise on the matter on which the opinion is sought (with a copy of such
opinion to the Litigation Trustees) that is selected by Ahmanson and
(unless such law firm is principal outside tax counsel to Ahmanson)
reasonably acceptable to the Litigation Trustees in determining whether
there has been a Determination and in otherwise applying the Tax
Assumptions to determine the income (including franchise) tax liability of
the Ahmanson Group attributable to the receipt of the Litigation Proceeds
and payments of the Commitment Amount and any tax benefit attributable to
payments of the Commitment Amount.
(f) If the Assumed Tax Liability or the Assumed Tax Benefit cannot be
computed at the time of the receipt of the Cash Proceeds or a payment of
the Commitment Amount because of the absence of information as to tax rates
and other factors described in the definition of Assumed Tax Liability or
the definition of Assumed Tax Benefit, as the case may be, the Ahmanson
Group will compute a tentative Assumed Tax Liability or a tentative Assumed
Tax Benefit, as the case may be, which are consistent with respect to the
Assumed Tax Liability and the Assumed Tax Benefit, that in the reasonable
opinion of the Ahmanson Group would protect the Ahmanson Group against any
risk of loss. The payment of the Commitment Amount will be based on such
tentative Assumed Tax Liability or such tentative Assumed Tax Benefit
computation, as the case may be. As soon as feasible, but in no event later
than 12 months after the end of the taxable year in which the Commitment
Amount is paid, the Ahmanson Group will recompute the Assumed Tax Liability
or the Assumed Tax Benefit, as the case may be, and pay to the CPR Trust
any excess of the re-computed Commitment Amount over the Commitment Amount
that was initially calculated plus interest for the period over which the
payment was deferred at a rate of Home Savings' cost of funds as submitted
monthly to the Federal Home Loan Bank of San Francisco.
Determination.
Under the Commitment, a Determination that Litigation Proceeds are not
includible in gross income in whole or in part will be deemed to be made on the
earlier of (a) the date a final judicial determination to such effect, binding
upon Coast Federal (or its successor), is made in the Litigation, (b) the date a
final agreement to which Ahmanson is a party with the federal government to such
effect is entered into at the direction of the Litigation Trustees as part of
the resolution of the Litigation or a related Internal Revenue Service ("IRS")
ruling to such effect issued to a member of the Ahmanson Group in connection
with such agreement (it being understood that the Ahmanson Group will be under
no obligation to seek such a ruling or refund or enter into
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such an agreement; provided that if requested the Ahmanson Group will enter into
such an agreement if such agreement does not impose any liability or obligation
whatsoever (other than a standard settlement release relating only to the
Litigation or other related claims that Coast or Coast Federal or Coast's
stockholders might have been able to bring as of immediately prior to the
Merger) on the Ahmanson Group or adversely affect or restrict the conduct of its
business or adversely affect its tax posture with respect to other matters) and
(iii) the effective date of a law, regulation or IRS ruling to such effect that
applies to Ahmanson or taxpayers generally, and would be applicable to claims
against the federal government arising out of capital credits affected by
Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA").
Notwithstanding the foregoing, no such Determination will be deemed to be made
unless it is made prior to the earlier of (x) thirty days before the date of
filing by the Ahmanson Group of the federal tax return for the taxable year in
which the Litigation Proceeds are assumed to be includible in gross income or
(y) the receipt by the Ahmanson Group of the Litigation Proceeds.
Under the Commitment, a Determination with respect to the application of
Section 483(a) to payments of the Commitment Amount will be deemed to be made on
the earlier of (i) the date a final judicial determination to such effect
binding upon Ahmanson is made in the Litigation, (ii) the date a final agreement
to which Ahmanson is a party with the federal government to such effect is
entered into at the direction of the Litigation Trustees as part of the
resolution of the Litigation or a related IRS ruling to such effect issued to a
member of the Ahmanson Group in connection with such agreement (it being
understood that the Ahmanson Group will be under no obligation to seek such a
ruling or refund or enter into such an agreement; provided that if requested the
Ahmanson Group will enter into such an agreement if such agreement does not
impose any liability or obligation whatsoever (other than a standard settlement
release relating only to the Litigation or other related claims that Coast or
Coast Federal or Coast's stockholders might have been able to bring as of
immediately prior to the Merger) on the Ahmanson Group or adversely affect or
restrict the conduct of its business or adversely affect its tax posture with
respect to other matters) and (iii) the effective date of a law, regulation or
IRS ruling or a judicial decision to such effect that applies to Ahmanson or
taxpayers generally. A deduction will be considered allowed under Section 483(a)
to the extent that a deduction is allowed, in an amount up to the deduction
calculated under Section 483(a), under another substantially equivalent
provision. Notwithstanding the foregoing, no such Determination will be deemed
to be made with respect to any payment of the Commitment Amount unless such
Determination is made prior to (i) the end of the 30th day following the
delivery to the CPR Trust of the Ahmanson Certificate with respect to such
payment of the Commitment Amount, if the CPR Trust does not deliver a Notice of
Objection within such 30-day period with respect to such Ahmanson Certificate,
or (ii) the Resolution with respect to such payment of the Commitment Amount, if
the CPR Trust delivers a Notice of Objection within such 30-day period with
respect to such Ahmanson Certificate. Subject to a Determination, the parties
intend to treat a portion of each payment of the Commitment Amount as interest
to the extent such payment is treated as interest under Section 483(a).
Indemnification Obligations of the CPR Trust; Liability Insurance.
Pursuant to the CPR Trust Agreement, the CPR Trust will indemnify and
advance expenses, without requirement of bond or other security, to each
Litigation Trustee, the Institutional Trustee and the Delaware Trustee against
any and all losses, liabilities, damages, judgments, demands, suits, claims,
assessments, charges, fines, penalties, costs and expenses (including reasonable
attorney's fees and expenses and other costs and expenses associated with the
defense of a claim or incurred in obtaining indemnification under the applicable
agreement, whether or not in a formal proceeding) arising out of or relating to
the CPR Trust, the CPR Certificate Distribution, the Litigation or actions by
the Trustees in their capacity or purportedly in their capacity as Trustees, or
any actions taken by the Litigation Trustees (including actions taken by the
Litigation Trustees in their capacity as officers or directors of Coast or
Ahmanson so long as such actions relate to the CPR Trust including, without
limitation, the negotiation of the terms of the CPR Trust and the CPR
Certificates and the approval of the establishment of the CPR Trust and the CPR
Certificate Distribution and related transactions, but otherwise excluding
actions taken by the Litigation Trustees in such capacities, except, in the case
of the indemnification of any Litigation Trustee, the Institutional Trustee or
the Delaware Trustee, if CPR Certificate holders meet the burden of establishing
in a final judicial determination by clear
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and convincing evidence that such losses, claims, costs, expenses or liabilities
arose as the result of actions or decisions undertaken with deliberate intent to
injure the CPR Certificate holders or with reckless disregard for the best
interests of such holders by such Litigation Trustee, the Institutional Trustee
or the Delaware Trustee, no indemnification shall apply.
Pursuant to the Commitment and the CPR Trust Agreement, the CPR Trust will
indemnify and advance expenses, without requirement of bond or other security,
to Ahmanson, Home Savings, and their respective affiliates, officers, directors,
employees and agents (such persons and entities, the "Ahmanson Indemnified
Parties" and, individually, an "Ahmanson Indemnified Party"), against any and
all losses, liabilities, damages, judgments, demands, suits, claims,
assessments, charges, fines, penalties, costs and expenses, including reasonable
attorney's fees and expenses and other costs and expenses associated with
defense of a claim or incurred in obtaining indemnification hereunder, whether
or not in a formal proceeding ("Damages") (other than in connection with claims
by stockholders of Ahmanson against Ahmanson's directors with respect to actions
taken at or prior to the Merger), arising out of or relating to (a) with respect
to claims brought by holders of CPR Certificates in their capacity as holders of
CPR Certificates, any matter whatsoever and (b) with respect to claims brought
by any other party, any matter relating to the CPR Trust, the CPR Certificates,
the CPR Certificate Distribution, the Litigation or any actions taken by the
Litigation Trustees (including actions taken by the Litigation Trustees in their
capacity as officers or directors of Coast or Ahmanson so long as such actions
relate to the CPR Trust including, without limitation, the negotiation of the
terms of the CPR Trust and the CPR Certificates and the approval of the
establishment of the CPR Trust and the CPR Certificate Distribution and related
transactions, but otherwise excluding actions taken by the Litigation Trustees
in such capacities), other than with respect to Damages arising from claims
against (i) Ahmanson for breach of its obligations under the Commitment, (ii)
Ahmanson for breach after the Effective Time of its obligations as successor to
Coast under the CPR Trust Agreement, (iii) Ahmanson for failure to deliver any
CPR Certificate when due or to return to the CPR Trust for cancellation of any
CPR Certificate required to be returned when so required, (iv) Ahmanson for
failure to deposit the Expense Fund in a non-interest bearing demand-deposit
account in the name of the CPR Trust at Home Savings at the Effective Time or
(v) Home Savings for breach of any depositary relationship obligations it may
have with respect to the Expense Fund. Pursuant to the Commitment promptly after
receipt by an Ahmanson Indemnified Party of notice of the commencement of any
action, such Ahmanson Indemnified Party will, if a claim in respect thereof is
to be made against the CPR Trust, notify the CPR Trust of the commencement
thereof; but the omission so to notify the CPR Trust will not relieve the CPR
Trust from any liability which it may have to any Ahmanson Indemnified Party
otherwise than under the immediately preceding sentence.
Pursuant to the Commitment, if the indemnification provided for is
unavailable to or insufficient to hold harmless an Ahmanson Indemnified Party in
respect of any Damages referred to above, then the CPR Trust will contribute to
the amount paid or payable by such Ahmanson Indemnified Party as a result of
such Damages.
The CPR Trust will obtain liability insurance to cover its indemnification
obligations and any liabilities of the Litigation Trustees. The CPR Trust will
use amounts from the Expense Fund (or, upon depletion of the Expense Fund,
amounts from other sources of the CPR Trust) to pay for any liability insurance.
Limitation on Rights of CPR Certificate Holders.
The CPR Trust Agreement will provide that the Litigation Trustees will have
no liability to CPR Certificate holders unless it shall be established in a
final judicial determination by clear and convincing evidence that any decision
or action of the Litigation Trustees was undertaken with deliberate intent to
injure the CPR Certificate holders or with reckless disregard for the best
interests of such holders, and, in any event, any liability will be limited to
actual, proximate, quantifiable damages. In addition, the CPR Trust Agreement
will provide that the Institutional Trustee and the Delaware Trustee will have
no liability to the CPR Certificate holders other than for acts or omissions
committed with gross negligence or willful misconduct. Insofar as this
limitation on liability would apply to claims under the federal securities laws,
such limitation on liability may be unenforceable.
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The CPR Trust Agreement and the CPR Certificates will provide that no CPR
Certificate holder will have the right to enforce, institute or maintain any
suit, action or proceeding against the Litigation Trustees to enforce or
otherwise act in respect of the CPR Certificates unless such holder has
previously given written notice to the Litigation Trustees of the substance of
such dispute, and holders of at least a majority in interest of the issued and
outstanding CPR Certificates have given written notice to such parties of their
support for the institution of such proceeding to resolve such dispute.
The Commitment, the CPR Trust Agreement and the CPR Certificates will also
provide that none of Ahmanson, Home Savings, their respective affiliates,
officers, directors, employees or agents shall have any liability to the CPR
Trust, the Trustees or the holders of CPR Certificates. Without limiting the
generality of the foregoing, the CPR Certificate holders, the Trustees and the
CPR Trust will not have the right to enforce, institute or maintain any suit,
action or proceeding against Ahmanson, Home Savings, their affiliates, officers,
directors, employees or agents relating to the formation of the CPR Trust, the
entering into of the Commitment, the distribution of the CPR Certificates, the
Litigation or the performance by the Litigation Trustees of their duties as
Litigation Trustees. Notwithstanding the foregoing, the CPR Trust, or the
Litigation Trustees on behalf of the CPR Trust, may enforce, institute or
maintain a suit, action or proceeding against (i) Ahmanson for breach of the
Commitment, (ii) Ahmanson for breach after the Effective Time of its obligations
as successor to Coast under the CPR Agreement, (iii) Ahmanson for failure to
deliver any CPR Certificate when due or to return to the CPR Trust for
cancellation any CPR Certificate required to be returned pursuant to the Merger
Agreement when so required, (iv) Ahmanson for failure to deposit the Expense
Fund at the Effective Time in a non-interest bearing demand-deposit account in
the name of the CPR Trust at Home Savings or (v) Home Savings for breach of any
depository relationship obligations it may have with respect to the Expense
Fund.
The Commitment will provide that except as expressly set forth in the
Commitment (or in any other documents to which Ahmanson has succeeded as a
matter of law), Ahmanson will have no other obligations to the CPR Trust, the
Litigation Trustees or the holders of CPR Certificates. Without limiting the
generality of the foregoing and except as provided in the Merger Agreement,
Ahmanson will have no obligation to advance funds to the CPR Trust, the
Litigation Trustees or the holders of CPR Certificates.
The CPR Trust Agreement will provide that the CPR Certificate holders will
have no voting rights, except the rights described in the following two
sentences, no liquidation preference and no rights to dividends or distributions
other than their pro rata share of the Payment Amount and any portion of the
Retained Amount remaining at the expiration of the Retained Amount Period, plus
any other CPR Trust assets. The CPR Trust Agreement provides that amendments to
the CPR Trust Agreement must be approved by a majority of the holders of CPR
Certificates outstanding, except that the CPR Trust Agreement may be amended by
the Institutional Trustees and a majority of the Litigation Trustees without the
consent of the holders of CPR Certificates to (i) cure any ambiguity; (ii)
correct or supplement any provision in the CPR Trust Agreement that may be
defective or inconsistent with any other provision of the CPR Trust Agreement;
(iii) add to the covenants, restrictions or obligations of the Litigation
Trustees or to alter the allocation of duties between the Litigation Trustees
and the Institutional Trustee; (iv) to modify, eliminate or add to any provision
of the CPR Trust Agreement to ensure that the CPR Trust (A) will be classified
for United States federal income tax purposes at all times as a grantor trust,
(B) will not be required to register as an "investment company" under the
Investment Company Act of 1940, or (C) is able to issue additional CPR
Certificates. In addition, the holders of a majority of the outstanding CPR
Certificates may remove either the Institutional Trustee or the Delaware Trustee
with cause or, if a default by the CPR Trust with respect to its payment
obligations has occurred and is continuing, with or without cause. The holders
of the CPR Certificates will have no rights to elect remove or replace the
Litigation Trustees.
MANAGEMENT OF THE LITIGATION
The Litigation Trustees -- General.
The Litigation Trustees will be Ray Martin, Robert L. Hunt II, Norman H.
Raiden and James F. Barritt, who are four current senior Coast executives with
knowledge of the facts underlying the Litigation.
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Mr. Martin, Mr. Hunt and Mr. Barritt were officers of Coast and Coast Federal
both at the time of the agreement with the federal government (to treat certain
amounts as a permanent addition to Coast Federal's regulatory capital) in
connection with Coast Federal's acquisition of Central Savings and Loan
Association, and also at the time of the alleged breach of this agreement by the
federal government, which gave rise to the claims underlying the Litigation. Mr.
Martin, Mr. Hunt and Mr. Barritt, together with Mr. Raiden, (who joined Coast
soon after the alleged breach of the agreement by the federal government), have
been involved in the prosecution of the Litigation to date. Pursuant to the CPR
Trust Agreement, the Litigation Trustees will have sole and exclusive right to
instruct Coast Federal (and its successors) with respect to the prosecution of
the Litigation (including all decisions as to retention, dismissal and the terms
of engagement of existing or new counsel for Coast Federal (which retention may
involve fees that are partly contingent) and other advisors), and Ahmanson shall
cause Coast Federal (and its successors) to follow these instructions other than
instructions that are not reasonable. Litigation Trustees may hold no other
full-time employment during the term of their tenure as Litigation Trustees
prior to the receipt of the Litigation Proceeds by the Ahmanson Group.
Mr. Martin is 61 years old and currently serves as Chairman of the Board,
Chief Executive Officer and Director of Coast and Coast Federal. In the Merger
Agreement, Ahmanson has agreed to appoint Mr. Martin to the Ahmanson board after
consummation of the Merger. Mr. Hunt is 46 years old and currently serves as
Director, President and Chief Operating Officer of Coast and Coast Federal. Mr.
Raiden is 65 years old and currently serves as Senior Executive Vice President
of Coast and Coast Federal and General Counsel of Coast, and until December 3,
1997, served as General Counsel of Coast Federal. Mr. Barritt is 38 years old
and currently serves as Senior Executive Vice President and Chief Financial
Officer of Coast and Coast Federal.
The CPR Trust Agreement will provide that the Litigation Trustees will have
the right, in their sole discretion and for any reason whatsoever, to instruct
Coast Federal (and its successors) to dismiss, settle or cease prosecution of
the Litigation at any time and on any terms and Ahmanson shall cause Coast
Federal (and its successors) to follow these instructions other than
instructions that are not reasonable. No settlement agreement or other ruling or
agreement entered into at the direction of the Litigation Trustees as part of
the resolution of the Litigation or a related IRS ruling to such effect issued
to a member of the Ahmanson Group in connection with such agreement may impose
any liability or obligation whatsoever (other than a standard settlement release
relating only to the Litigation or other related claims that Coast or Coast
Federal or Coast's stockholders might have been able to bring as of immediately
prior to the Merger) on any member or members of the Ahmanson Group or adversely
affect or restrict the conduct of its business or adversely affect its tax
posture with respect to other matters.
The CPR Trust Agreement will provide that as compensation, the CPR Trust
will pay each Litigation Trustee, during the term of his service as a Litigation
Trustee, fees of $400,000 per year for five years (except that if the Litigation
is sooner terminated, the remainder of such fees (but in no event with respect
to a period longer than the remainder of such year plus two additional years)
will be accelerated upon final resolution of the Litigation and receipt by the
Ahmanson Group of the Litigation Proceeds), plus reimbursement of all reasonable
out-of-pocket expenses. If the services of the Litigation Trustees continue to
be necessary after the initial five-year period or such receipt of Litigation
Proceeds, the Litigation Trustees shall be entitled to a fee of $200 per hour
until termination of the CPR Trust. Pursuant to the CPR Trust Agreement, each
Litigation Trustee may, but is not obligated to, defer all or part of his
compensation until 30 days after the earliest to occur of (i) the date on which
he elected to defer such compensation, (ii) the date he ceases to be a
Litigation Trustee, and (iii) the date of the receipt of the Commitment Amount
in full by the CPR Trust. Any Litigation Trustee electing to so defer will
receive the compensation he would have received plus an amount, calculated on a
monthly basis during the period of deferral (and included in the amount
deferred), equal to the product of the monthly balance of the amount deferred
and an annual rate equal to the Reference Rate plus 250 basis points. At the
date of this Proxy Statement/Prospectus, no Litigation Trustee has indicated his
intent to defer all or part of his compensation.
Pursuant to the CPR Trust Agreement, each of the initial Litigation
Trustees shall, as a condition of his continuation as a Litigation Trustee, be
obligated to retain not less than 50% of the CPR Certificates received in the
CPR Certificate Distribution and in respect of Coast Performance Share Awards,
Coast SARs, and/or
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Replacement Options held by such Litigation Trustee, until the Litigation
Proceeds are received by the Ahmanson Group. Transfers by a Litigation Trustee
to his family members or to any trust created for the benefit of his family
shall be included in such 50% calculation for so long as these transferees
retain the CPR Certificates. The number of CPR Certificates received by each
Litigation Trustee in the CPR Certificate Distribution and in respect of Coast
Performance Share Awards, Coast SARs, and/or Replacement Options will depend
upon the number of shares of Coast Common Stock, Coast Performance Share Awards,
Coast SARs and/or Coast Stock Options that such Litigation Trustee holds
immediately prior to the Effective Time, which number may be fewer than the
number held as of the date of this Proxy Statement/Prospectus.
The terms of the CPR Trust Agreement will require that there must be at
least three Litigation Trustees at all times. If a Litigation Trustee resigns,
dies, becomes incapacitated, or is no longer qualified, and as a result there
would be fewer than three Litigation Trustees, the remaining Litigation Trustees
will appoint a successor Litigation Trustee who will receive fees as determined
by the other Litigation Trustees (but in no event more than the fees payable to
the initial Litigation Trustees).
The Litigation Trustees -- Authority.
The CPR Trust Agreement will provide that the Litigation Trustees may adopt
their own rules and procedures but may act only with the agreement of a majority
of the Litigation Trustees then in office. They may, in their discretion,
delegate to one or more of the Litigation Trustees the authority to act on
behalf of the Litigation Trustees as the Litigation Trustees may determine
appropriate (other than with respect to the retention or dismissal of counsel
for Coast Federal or the Litigation Trustees, or the approval of a settlement or
dismissal of the Litigation). The CPR Trust Agreement will provide that the
Litigation Trustees shall also have the authority to retain or dismiss counsel
for the Litigation Trustees and other experts, consultants or support staff as
the Litigation Trustees deem appropriate. The Litigation Trustees will have full
authority on behalf of Coast Federal (and its successors) to consult with and
instruct the attorneys for Coast Federal (and its successors) in connection with
the Litigation. Pursuant to the CPR Trust Agreement, Ahmanson will provide the
Litigation Trustees with access to the books, records, facilities,
representatives and independent accountants of Coast and Coast Federal as the
Litigation Trustees may reasonably require.
Liability of the Litigation Trustees.
The CPR Trust Agreement will provide that the Litigation Trustees will have
no liability to Ahmanson, Coast or CPR Certificate holders unless it shall be
established in a final judicial determination by clear and convincing evidence
that any decision or action was undertaken with deliberate intent to injure the
CPR Certificate holders or with reckless disregard for the best interests of
such holders, and, in any event, any liability will be limited to actual,
proximate, quantifiable damages. See "Risk Factors -- Limitation on Rights of
CPR Certificate Holders" and "-- Description of the CPR
Certificates -- Limitation on Rights of CPR Certificate Holders."
FILING OF EXCHANGE ACT REPORTS
The CPR Certificates will be registered under the Exchange Act. So long as
the CPR Certificates remain so registered, the CPR Trust will be subject to the
reporting obligations of Section 13(a) of the Exchange Act, and will be
obligated thereby to file with the Commission annual reports on Form 10-K and
quarterly reports on Form 10-Q. Unless otherwise required by the Commission,
such reports will contain only an overview of the status of the Litigation and
disclosure of the amounts of the Expense Fund that have been disbursed for the
relevant period and any contingent or incurred but unpaid expenses that the CPR
Trust will be obligated to pay from the Expense Fund or in the Commitment Amount
in the future. The CPR Trust will also file a report on Form 8-K upon the
occurrence of a material judicial decision in the Litigation or in the event of
any agreement to settle the Litigation. Such reports will not include financial
statements or any valuation of the Litigation. The CPR Trust's ability to
disclose details of the Litigation may be limited, however, by the inherent
nature and rules of judicial proceedings, including, among other things,
proceedings and filings that are sealed by the court, matters involving
attorney-client privilege and proceedings that are conducted on a confidential
basis by agreement of the parties, such as settlement negotiations.
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following summary of the material United States federal income tax
consequences of the holding and sale of CPR Certificates applies to holders of
Coast Common Stock who receive CPR Certificates in the CPR Certificate
Distribution and hold them as capital assets. The discussion may not apply to
certain classes of taxpayers, including foreign holders, insurance companies,
tax-exempt organizations, financial institutions, dealers in securities, traders
in securities that elect to mark to market, persons who hold CPR Certificates in
a hedging transaction or as part of a straddle or conversion transaction and
persons to whom CPR Certificates are issued on the exercise of employee options
or otherwise in a transaction that is not a sale or exchange.
THERE ARE NO AUTHORITIES CONSIDERING THE TAX TREATMENT OF INSTRUMENTS THAT
ARE SUBSTANTIALLY THE SAME AS THE CPR CERTIFICATES. AS A RESULT, THEIR TAX
TREATMENT IS SOMEWHAT UNCERTAIN, AND COULD DIFFER FROM THE TREATMENT DESCRIBED
HEREIN. CPR CERTIFICATE HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING
THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES TO THEM OF THE RECEIPT,
OWNERSHIP AND DISPOSITION OF THE CPR CERTIFICATES.
This summary represents the opinion of Cleary, Gottlieb, Steen & Hamilton,
special counsel to Coast. The parties do not intend to request any ruling from
the Internal Revenue Service as to the United States federal income tax
treatment of the CPR Certificates or CPR Trust.
Characterization of the CPR Certificates and the CPR Trust.
The following is the opinion of Cleary, Gottlieb, Steen & Hamilton, special
counsel to Coast. The CPR Certificates represent pro rata beneficial interests
in the CPR Trust. It is anticipated that the CPR Trust will be treated as a
grantor trust for federal income tax purposes, rather than as a separate taxable
entity, and it is a condition to Coast's obligation to consummate the Merger
that it receive an opinion of Cleary, Gottlieb, Steen & Hamilton, dated the
Effective Date, to the effect that the CPR Trust will not itself be subject to
any material federal income tax. Under the grantor trust rules, each holder of a
CPR Certificate will be treated for federal income tax purposes as the owner of
a pro rata share of the CPR Trust's assets and will be treated as receiving any
amounts received by the CPR Trust when those amounts are received by the CPR
Trust (and as making any payments to third parties when those amounts are paid
by the CPR Trust). Accordingly, a holder may (depending upon such holder's basis
in its interest in the assets of the CPR Trust) realize income attributable to
its pro rata share of the payments received by the CPR Trust without regard to
whether those payments have been distributed to the holder. Following the
Effective Time, the assets of the CPR Trust will consist of the Commitment and
rights to apply amounts in the Expense Fund to Litigation- and CPR Trust-related
expenses. For federal income tax purposes, the CPR Trust intends to treat the
Expense Fund as an asset of Ahmanson, and to treat any amounts paid out of the
Expense Fund as expenditures of Ahmanson that do not affect the CPR Trust except
to the extent they result in reductions in the Commitment Amount. In the absence
of a change in law, the CPR Trust will file returns and report to investors in a
manner consistent with this intention.
Income of the Trust which will be taxable to holders whether or not
distributed will include income attributable to the Commitment as well as income
from the temporary investment of proceeds of the Commitment by the Trust
(including proceeds that are retained by the Trust for a period of two years or
more as part of the Retained Amount).
Characterization of the Commitment; Section 483.
As described above, for federal income tax purposes, the CPR Certificates
are equivalent to an ownership interest in the Commitment. The CPR Trust
intends, under current law, that the payments made under the Commitment, to the
extent attributable to CPR Certificates issued to Coast stockholders in the
Merger, will be treated as payments under a contract for the sale or exchange of
Coast Common Stock that are subject to Section 483 of the Code. Given the wholly
contingent nature of the Commitment, it is not anticipated that the Commitment
will be treated as a debt instrument for federal income tax purposes.
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Under Section 483, a holder of a CPR Certificate will not be required to
include any amount in income with respect to the CPR Certificate until payments
on the Commitment are received by the CPR Trust (or in some circumstances
described below, until the right to those payments becomes fixed), or the CPR
Certificate is sold. When a payment is received on the Commitment or the CPR
Certificate is sold, a portion of the amount received will be treated under
Section 483 as interest income that is ordinary income to the holder. The
balance of the amount will be treated as sales proceeds or amounts received in
respect of the Commitment, with the consequences described below. The interest
amount will equal the excess of the amount received over its present value as of
the Effective Date, calculated using as the discount rate the applicable federal
rate (AFR). The AFR is a rate reflecting an average of market yields on Treasury
debt obligations for different ranges of maturities that is published monthly by
the Internal Revenue Service. The relevant AFR will be the lower of (i) the
lowest AFR in effect during the 3-month period ending with the month which
includes the date on which the Agreement was signed or (ii) the lowest AFR in
effect during the 3-month period ending with the month which includes the
Effective Date; in each case, the maturity range of the relevant AFR will
correspond to the period from the Effective Date to the date the amount is
received or deemed received. Where a payment is due more than six months after
it is fixed, (i) the payment will be discounted back to the date when it became
fixed, using a discount rate equal to the AFR that would apply under Section 483
to a payment on the initial Commitment that is made when the fixed payment is
due, (ii) the discount on the deferred payment is treated as interest accruing
over the period of deferral, and (iii) the discounted amount is divided between
interest and principal under Section 483 as if it were paid in cash on the date
it becomes fixed. The Section 483 interest must be included in income by a
holder under its regular method of accounting (e.g., the accrual method or the
cash method).
The calculation of interest income realized by a holder under Section 483
does not depend on the period for which the holder has held its CPR
Certificates. Accordingly, a holder who bought CPR Certificates after the
Effective Date may be treated as receiving interest under Section 483 that
includes interest for the period from the Effective Date to the date of the
holder's purchase of the CPR Certificates. Although there are no specific rules
addressing the issue under current law, it is reasonable to assume that a
purchaser of CPR Certificates would be permitted to treat the portion of the
purchase price that is treated as interest to the seller under Section 483 as a
payment of accrued interest that may be offset against the portion of any amount
received by the purchaser that is treated as interest under Section 483.
Sale of Certificates.
Upon a sale of a CPR Certificate, a holder will recognize gain or loss
equal to the difference between the amount realized on the sale, net of imputed
interest under Section 483, and the holder's adjusted tax basis in the CPR
Certificate. Any such gain or loss will be treated as capital gain or loss
(which will be long-term if the holder has held the CPR Certificates for more
than one year). Long-term capital gain of a non-corporate holder is generally
subject to a maximum tax rate of 28% in respect of property held for more than
one year and to a maximum tax rate of 20% in respect of property held in excess
of 18 months.
Receipt of Payments on the Commitment.
When a payment is received on the Commitment by the CPR Trust, a holder of
CPR Certificates will recognize gain equal to the difference between the amount
of the payment allocated to the CPR Certificates, net of imputed interest under
Section 483, and the portion of the holder's basis in the CPR Certificates that
is allocable to such payment. If multiple payments may be received on the
Commitment, the holder may be required to allocate its basis among those
payments. The method for making such allocation is unclear. If a holder receives
a payment that is less than its basis in the Commitment, the holder may not be
allowed a loss until it is determined that no further payments will be made.
Where the receipt of a payment terminates all rights of the CPR Trust under the
Commitment, any gain or loss attributable to the payment generally would be
capital gain or loss under Section 1234A of the Code. It is not clear whether
the same treatment would apply to a partial payment.
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Lack of a Cash Recovery.
If identifiable events occur which establish the worthlessness of the CPR
Certificates, a CPR Certificate holder would be entitled to deduct as a capital
loss, in the year of such identifiable event, such holder's adjusted tax basis
in its CPR Certificates.
Other Characterizations.
Although unlikely, the Internal Revenue Service could take the position
that amounts drawn from the Expense Fund to pay expenses should be treated as a
payment by Ahmanson to the CPR Trust that is applied to pay expenses of the CPR
Trust. Such a payment could potentially be treated as current income to the CPR
Trust or as a deemed loan. Such a deemed loan would be repayable, with interest,
solely out of future payments on the Commitment. Under this characterization,
reductions in the Commitment amount paid to the CPR Trust that are attributable
to the reimbursement of such expenses or a related interest factor would be
treated as additional amounts on the Commitment that are paid to the CPR Trust
and applied by it to make payments of principal and interest on the deemed loan.
Deductions would be allowed for interest deemed paid only to the extent
permitted under the general rules of the Code. Further, if the deemed loan is
not repaid, the CPR Trust could have discharge of indebtedness income when the
loan is deemed to be discharged. In addition, any holders of CPR Certificates
that are pension plans or other tax-exempt organizations subject to the tax on
unrelated business taxable income may be required to treat income attributable
to the portion of the Commitment that is considered debt financed as unrelated
business taxable income.
Funding of Additional Expenses.
The CPR Trust Agreement permits the issuance of additional CPR Certificates
that represent pro rata interests in the CPR Trust and permits borrowings to pay
expenses so long as the indebtedness represents debt of the CPR Trust (and not
an ownership interest) for federal income tax purposes. Any such issuance will
be treated as a sale by holders of existing CPR Certificates of a pro rata
interest in the Commitment corresponding to the interest in the Commitment
allocated to the newly issued CPR Certificates. Any borrowing will have the
consequences described in "-- Other Characterizations" above.
Back-Up Withholding and Information Reporting.
A CPR Certificate holder may be subject to a backup withholding tax of 31%
on the receipt of proceeds of a sale, exchange, redemption or satisfaction of
the CPR Certificates. In general, backup withholding will only apply if a holder
fails to comply with certain identification requirements. Backup withholding is
not an additional tax and may be claimed as a credit against the U.S. federal
income tax liability of a holder, provided that the required information is
furnished to the Internal Revenue Service. Holders should consult their tax
advisors regarding their qualification for exemption from back-up withholding
and the procedure for obtaining any applicable exemption. Payments of amounts
treated as interest under Section 483 will also be subject to information
reporting unless an exemption applies.
VALIDITY OF THE CPR CERTIFICATES
The validity of the CPR Certificates being offered hereby will be passed
upon for the CPR Trust by Morris, James, Hitchens & Williams, Wilmington,
Delaware.
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EXPERTS
The consolidated financial statements of Ahmanson as of December 31, 1996
and 1995, and for each of the years in the three-year period ended December 31,
1996, have been incorporated by reference herein in reliance upon the report of
KPMG Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
The consolidated financial statements of Coast as of December 31, 1996 and
1995, and for each of the years in the three-year period ended December 31,
1996, have been incorporated by reference herein in reliance upon the report of
KPMG Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
VALIDITY OF AHMANSON COMMON STOCK
The validity of the shares of Ahmanson Common Stock being offered hereby
will be passed upon for Ahmanson by Sullivan & Cromwell, Los Angeles.
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APPENDIX A
================================================================================
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
DATED AS OF OCTOBER 5, 1997
BY AND BETWEEN
H. F. AHMANSON & COMPANY
AND
COAST SAVINGS FINANCIAL, INC.
================================================================================
<PAGE> 117
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C> <C>
ARTICLE I
CERTAIN DEFINITIONS
1.01 Certain Definitions............................................................ A-1
ARTICLE II
THE MERGER
2.01 The Merger..................................................................... A-5
2.02 Effective Date and Effective Time.............................................. A-5
ARTICLE III
CONSIDERATION; EXCHANGE PROCEDURES
3.01 Merger Consideration........................................................... A-5
3.02 Rights as Stockholders; Stock Transfers........................................ A-6
3.03 Fractional Shares.............................................................. A-6
3.04 Exchange Procedures............................................................ A-6
3.05 Anti-Dilution Provisions....................................................... A-7
3.06 Options, Performance Shares and Stock Appreciation Rights...................... A-7
3.07 Dissenters Rights.............................................................. A-8
ARTICLE IV
ACTIONS PENDING ACQUISITION
4.01 Forebearances of Coast......................................................... A-8
4.02 Forebearances of Ahmanson...................................................... A-10
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Disclosure Schedules........................................................... A-10
5.02 Standard....................................................................... A-10
5.03 Representations and Warranties of Coast........................................ A-10
5.04 Representations and Warranties of Ahmanson..................................... A-18
ARTICLE VI
COVENANTS
6.01 Reasonable Best Efforts........................................................ A-20
6.02 Stockholder Approval........................................................... A-20
6.03 Registration Statements........................................................ A-21
6.04 Press Releases................................................................. A-22
6.05 Access; Information............................................................ A-22
6.06 Acquisition Proposals.......................................................... A-23
6.07 Affiliate Agreements........................................................... A-23
6.08 Takeover Laws.................................................................. A-23
6.09 Certain Policies............................................................... A-23
6.10 NYSE Listing................................................................... A-23
6.11 Regulatory Applications........................................................ A-23
6.12 Indemnification................................................................ A-24
6.13 Benefit Plan; Retention Bonuses................................................ A-25
</TABLE>
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<PAGE> 118
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
6.14 Accountants' Letters........................................................... A-25
6.15 Notification of Certain Matters................................................ A-25
6.16 Officers and Directors......................................................... A-25
6.17 CPR Trust...................................................................... A-25
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
7.01 Conditions to Each Party's Obligation to Effect the Merger..................... A-26
7.02 Conditions to Obligation of Coast.............................................. A-26
7.03 Conditions to Obligation of Ahmanson........................................... A-27
ARTICLE VIII
TERMINATION
8.01 Termination.................................................................... A-28
8.02 Effect of Termination and Abandonment.......................................... A-28
ARTICLE IX
MISCELLANEOUS
9.01 Survival....................................................................... A-29
9.02 Waiver; Amendment.............................................................. A-29
9.03 Counterparts................................................................... A-29
9.04 Governing Law.................................................................. A-29
9.05 Expenses....................................................................... A-29
9.06 Notices........................................................................ A-29
9.07 Entire Understanding; No Third Party Beneficiaries............................. A-30
9.08 Interpretation; Effect......................................................... A-30
</TABLE>
EXHIBIT A Form of Coast Affiliate Agreement
-ii-
<PAGE> 119
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of October 5,
1997 (this "Agreement"), by and between Coast Savings Financial, Inc. ("Coast")
and H. F. Ahmanson & Company ("Ahmanson").
RECITALS
A. Coast Savings Financial, Inc. Coast is a Delaware corporation, having
its principal place of business in Los Angeles, California.
B. H. F. Ahmanson & Company. Ahmanson is a Delaware corporation, having its
principal place of business in Irwindale, California.
C. Intentions of the Parties. It is the intention of the parties to this
Agreement that the business combination contemplated hereby be treated as a
"reorganization" under Section 368 of the Internal Revenue Code of 1986, as
amended (the "Code").
D. Board Action. The respective Boards of Directors of each of Ahmanson and
Coast have determined that it is in the best interests of their respective
companies and their stockholders to consummate the strategic business
combination transaction provided for herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements contained herein the
parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 Certain Definitions. The following terms are used in this Agreement
with the meanings set forth below:
"Acquisition Proposal" means any tender or exchange offer, proposal
for a merger, consolidation or other business combination involving Coast
or any of its Subsidiaries or any proposal or offer to acquire in any
manner a substantial equity interest in, or a substantial portion of the
assets or deposits of, Coast or any of its Subsidiaries, other than the
transactions contemplated by this Agreement.
"Agreement" means this Agreement, as amended or modified from time to
time in accordance with Section 9.02.
"Ahmanson" has the meaning set forth in the preamble to this
Agreement.
"Ahmanson Board" means the Board of Directors of Ahmanson.
"Ahmanson Common Stock" means the common stock, par value $.01 per
share, of Ahmanson.
"Ahmanson Preferred Stock" means the preferred stock, par value $.01
per share, of Ahmanson, including its outstanding shares of 8.40% Series C
preferred stock and 6% Cumulative Convertible Series D preferred stock.
"Ahmanson Registration Statement" has the meaning set forth in Section
6.03.
"Ahmanson Rights" means the preferred share purchase rights issued
under the Ahmanson Rights Agreement.
"Ahmanson Rights Agreement" means the Rights Agreement, dated as of
July 26, 1988, between Ahmanson and Union Bank, as rights agent.
"Ahmanson Stock" means, collectively, Ahmanson Common Stock and
Ahmanson Preferred Stock.
"Coast" has the meaning set forth in the preamble to this Agreement.
"Coast Affiliate" has the meaning set forth in Section 6.07(a).
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<PAGE> 120
"Coast Board" means the Board of Directors of Coast.
"Coast By-Laws" means the By-laws of Coast.
"Coast Certificate" means the Certificate of Incorporation of Coast.
"Coast Common Stock" means the common stock, par value $.01 per share,
of Coast.
"Coast Federal" means Coast Federal Bank, Federal Savings Bank.
"Coast Meeting" has the meaning set forth in Section 6.02.
"Coast Performance Share Award Plan" means the Coast Performance Share
Plan for Key Employees.
"Coast Preferred Stock" means the serial preferred stock, no par value
per share, of Coast.
"Coast Rights" means the preferred share purchase rights issued under
the Coast Rights Agreement.
"Coast Rights Agreement" means the Rights Agreement, dated as of
August 25, 1989, between Coast and Manufacturers Hanover Trust of
California, as rights agent.
"Coast Stock" means, collectively, Coast Common Stock and Coast
Preferred Stock.
"Coast Stock Option" has the meaning set forth in Section 3.06.
"Coast Stock Plans" means the 1996 Equity Incentive Plan and the 1985
Stock Option and Stock Appreciation Rights Plan.
"Code" has the meaning set forth in the recitals.
"Commitment" has the meaning set forth in Annex I hereto.
"Compensation and Benefit Plans" has the meaning set forth in Section
5.03(m).
"Consultants" has the meaning set forth in Section 5.03(m).
"Costs" has the meaning set forth in Section 6.12(a).
"CPR Certificates" has the meaning set forth in Annex I hereto.
"CPR Prospectus" has the meaning set forth in Section 6.03.
"CPR Trust" means the trust formed for the purpose of issuing the CPR
Certificates.
"CPR Trust Registration Statement" has the meaning set forth in
Section 6.03.
"Delaware Secretary" has the meaning set forth in Section 2.01.
"DGCL" means the Delaware General Corporation Law.
"Directors" has the meaning set forth in Section 5.03(m).
"Disclosure Schedule" has the meaning set forth in Section 5.01.
"Dissenters' Shares" has the meaning set forth in Section 3.01(a).
"Dissenting Shareholders" has the meaning set forth in Section
3.01(a).
"Effective Date" means the date on which the Effective Time occurs.
"Effective Time" means the effective time of the Merger, as provided
for in Section 2.02.
"Employees" has the meaning set forth in Section 5.03(m).
"Environmental Laws" means all applicable local, state and federal
environmental, health and safety laws and regulations, including, without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation, and Liability Act, the Clean Water
Act, the
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Federal Clean Air Act, and the Occupational Safety and Health Act, each as
amended, regulations promulgated thereunder, and state counterparts.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" has the meaning set forth in Section 5.03(m).
"ERISA Affiliate Plan" has the meaning set forth in Section 5.03(m).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Exchange Agent" has the meaning set forth in Section 3.04.
"Exchange Ratio" has the meaning set forth in Section 3.01.
"Expense Fund" has the meaning set forth in Annex I hereto.
"FDIC" means the Federal Deposit Insurance Corporation.
"FHLBSF" means the Federal Home Loan Bank of San Francisco.
"Governmental Authority" means any court, administrative agency or
commission or other federal, state or local governmental authority or
instrumentality.
"HOLA" means the Home Owners' Loan Act, as amended.
"Home Savings" means Home Savings of America, FSB.
"Indemnified Party" has the meaning set forth in Section 6.12(a).
"Insurance Amount" has the meaning set forth in Section 6.12(b).
"Insurance Policies" has the meaning set forth in Section 5.03(t).
"IRS" has the meaning set forth in Section 5.03(m).
"Liens" means any charge, mortgage, pledge, security interest,
restriction, claim, lien, or encumbrance.
"Litigation Trustees" has the meaning set forth in Annex I hereto.
"Material Adverse Effect" means, with respect to Ahmanson or Coast,
any effect that (i) is material and adverse to the financial position,
results of operations or business of Ahmanson and its Subsidiaries taken as
a whole or Coast and its Subsidiaries taken as a whole, respectively, or
(ii) would materially impair the ability of either Ahmanson or Coast to
perform its obligations under this Agreement or otherwise materially impede
the consummation of the Merger and the other transactions contemplated by
this Agreement, provided that Material Adverse Effect shall not be deemed
to include a change in condition resulting from a general downturn in the
California economy.
"Merger" has the meaning set forth in Section 2.01.
"Merger Consideration" has the meaning set forth in Section 3.01.
"Multiemployer Plans" has the meaning set forth in Section 5.03(m).
"New Certificate" has the meaning set forth in Section 3.04.
"NYSE" means the New York Stock Exchange, Inc.
"Old Certificate" has the meaning set forth in Section 3.04.
"OTS" means the Office of Thrift Supervision.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" has the meaning set forth in Section 5.03(m).
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"Person" means any individual, savings association, bank, corporation,
limited liability company, partnership, association, joint-stock company,
business trust or unincorporated organization.
"Previously Disclosed" by a party means information set forth in its
Disclosure Schedule.
"Proxy Statement" has the meaning set forth in Section 6.03.
"Registration Statements" has the meaning set forth in Section 6.03.
"Regulatory Authorities" has the meaning set forth in Section 5.03(i).
"Regulatory Documents" means documents filed with the SEC or the OTS,
as applicable, of the types referred to in Section 5.03(g) and Section
5.04(g).
"Replacement Option" has the meaning set forth in Section 3.06.
"Representatives" means, with respect to any Person, such Person's
directors, officers, employees, legal or financial advisors or any
representatives of such legal or financial advisors.
"Rights" means, with respect to any Person, securities or obligations
convertible into or exercisable or exchangeable for, or giving any person
any right to subscribe for or acquire, or any options, calls or commitments
relating to, or any stock appreciation right or other instrument the value
of which is determined in whole or in part by reference to the market price
or value of, shares of capital stock of such person.
"SAIF" means the Savings Association Insurance Fund of the Federal
Deposit Insurance Corporation. "SEC" means the Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Subsidiary" and "Significant Subsidiary" have the meanings ascribed
to them in Rule 1-02 of Regulation S-X of the SEC.
"Surviving Corporation" has the meaning set forth in Section 2.01.
"Takeover Laws" has the meaning set forth in Section 5.03(o).
"Tax" and "Taxes" means all federal, state, local or foreign taxes,
charges, fees, levies or other assessments, however denominated, including,
without limitation, all net income, gross income, gains, gross receipts,
sales, use, ad valorem, goods and services, capital, production, transfer,
franchise, windfall profits, license, withholding, payroll, employment,
disability, employer health, excise, estimated, severance, stamp,
occupation, property, environmental, unemployment or other taxes, custom
duties, fees, assessments or charges of any kind whatsoever, together with
any interest and any penalties, additions to tax or additional amounts
imposed by any taxing authority whether arising before, on or after the
Effective Date.
"Tax Returns" means any return, amended return or other report
(including elections, declarations, disclosures, schedules, estimates and
information returns) required to be filed with respect to any Tax.
"Treasury Stock" shall mean shares of Coast Stock held by Coast or any
of its Subsidiaries or by Ahmanson or any of its Subsidiaries, in each case
other than in a fiduciary (including custodial or agency) capacity or as a
result of debts previously contracted in good faith.
"Trust Agreement" has the meaning set forth in Annex I hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and the rules and regulations thereunder.
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ARTICLE II
THE MERGER
2.01 The Merger. (a) At the Effective Time, Coast shall merge with and
into Ahmanson (the "Merger"), the separate corporate existence of Coast shall
cease and Ahmanson shall survive and continue to exist as a Delaware corporation
(Ahmanson, as the surviving corporation in the Merger, sometimes being referred
to herein as the "Surviving Corporation"). Ahmanson may at any time prior to the
mailing of the Proxy Statement change the method of effecting the combination
with Coast (including, without limitation, the provisions of this Article II) if
and to the extent it deems such change to be necessary, appropriate or
desirable; provided, however, that no such change shall (i) alter or change the
amount or kind of consideration to be issued to holders of Coast Common Stock as
provided for in this Agreement, (ii) adversely affect the tax treatment of
Coast's stockholders as a result of the transactions contemplated hereby or any
payments made with respect to CPR Certificates or (iii) materially impede or
delay consummation of the transactions contemplated by this Agreement.
(b) Subject to the satisfaction or waiver of the conditions set forth
in Article VII, the Merger shall become effective upon the occurrence of
the filing in the office of the Secretary of State of Delaware (the
"Delaware Secretary") of a certificate of merger in accordance with Section
251 of the DGCL or such later date and time as may be set forth in such
certificate. The Merger shall have the effects prescribed in the DGCL.
(c) Articles of Incorporation and By-Laws. The articles of
incorporation and by-laws of Ahmanson immediately after the Merger shall be
those of Ahmanson as in effect immediately prior to the Effective Time.
(d) Directors and Officers of the Surviving Corporation. Subject to
Section 6.16, the directors and officers of Ahmanson immediately after the
Merger shall be the directors and officers of Ahmanson immediately prior to
the Effective Time, until such time as their successors shall be duly
elected and qualified.
2.02 Effective Date and Effective Time. Subject to the satisfaction or
waiver of the conditions set forth in Article VII, the parties shall cause the
effective date of the Merger (the "Effective Date") to occur on (i) the fifth
business day to occur after the last of the conditions set forth in Section 7.01
shall have been satisfied or waived in accordance with the terms of this
Agreement (or, at the election of Ahmanson, on the last business day of the
month in which such day occurs or, if such last business day occurs on one of
the last five business days of such month, on the last business day of the
succeeding month) or (ii) such other date to which the parties may agree in
writing. The time on the Effective Date when the Merger shall become effective
is referred to as the "Effective Time."
ARTICLE III
CONSIDERATION; EXCHANGE PROCEDURES
3.01 Merger Consideration. Subject to the provisions of this Agreement, at
the Effective Time, and except in the case of the second paragraph of (a) below,
automatically by virtue of the Merger and without any action on the part of any
Person:
(a) Outstanding Coast Common Stock and Coast Rights. Each share
(excluding (i) Treasury Stock and (ii) shares held by holders of Coast
Common Stock (each a "Dissenting Shareholder") who perfect their rights to
dissent under the DGCL (the "Dissenters' Shares")) of Coast Common Stock
issued and outstanding immediately prior to the Effective Time, together
with each associated Coast Right, shall become and be converted into the
right to receive 0.8082 of a share of Ahmanson Common Stock (the "Exchange
Ratio") (with the appropriate number of Ahmanson Rights as provided in the
Ahmanson Rights Agreement, whether or not such Ahmanson Rights shall still
be attached to such shares). The Exchange Ratio shall be subject to
adjustment as set forth in Section 3.05.
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Ahmanson shall enter into the Commitment with the CPR Trust at or prior to
the Effective Time and effective at the Effective Time. The shares of Ahmanson
Common Stock to be issued hereunder and the entering into of the Commitment
shall constitute the "Merger Consideration."
(b) Outstanding Ahmanson Stock. Each share of Ahmanson Stock issued
and outstanding immediately prior to the Effective Time shall remain issued
and outstanding and unaffected by the Merger.
(c) Treasury Shares. Each share of Coast Stock held as Treasury Stock
immediately prior to the Effective Time shall be canceled and retired at
the Effective Time and no consideration shall be issued in exchange
therefor.
3.02 Rights as Stockholders; Stock Transfers. At the Effective Time,
holders of Coast Common Stock shall cease to be, and shall have no rights as,
stockholders of Coast, other than to receive any dividend or other distribution
with respect to such Coast Common Stock with a record date occurring prior to
the Effective Time and the consideration provided under this Article III. After
the Effective Time, there shall be no transfers on the stock transfer books of
Coast or the Surviving Corporation of shares of Coast Stock.
3.03 Fractional Shares. Notwithstanding any other provision hereof, no
fractional shares of Ahmanson Common Stock and no certificates or scrip
therefor, or other evidence of ownership thereof, will be issued in the Merger;
instead, Ahmanson shall pay to each holder of Coast Common Stock who would
otherwise be entitled to a fractional share of Ahmanson Common Stock (after
taking into account all Old Certificates delivered by such holder) an amount in
cash (without interest) determined by multiplying such fraction by the average
of the last sale prices of Ahmanson Common Stock, as reported by the NYSE
Composite Transactions Reporting System (as reported in The Wall Street Journal
or, if not reported therein, in another authoritative source), for the five NYSE
trading days immediately preceding the Effective Date.
3.04 Exchange Procedures.
(a) At or prior to the Effective Time, Ahmanson shall deposit, or
shall cause to be deposited, with a depository institution of recognized
standing selected by Ahmanson (in such capacity, the "Exchange Agent"), for
the benefit of the holders of certificates formerly representing shares of
Coast Common Stock ("Old Certificates") to be exchanged in accordance with
this Article III, certificates representing the shares of Ahmanson Common
Stock ("New Certificates") to which the holders of the Old Certificates are
entitled pursuant to this Agreement, together with an estimated amount of
cash to be paid pursuant to this Article III in exchange for outstanding
shares of Coast Common Stock.
(b) As promptly as practicable after the Effective Date, Ahmanson
shall send or cause to be sent to each former holder of record of shares of
Coast Common Stock immediately prior to the Effective Time transmittal
materials for use in exchanging such stockholder's Old Certificates for the
consideration set forth in this Article III. Ahmanson shall cause the New
Certificates and/or any check in respect of any fractional share interests
or dividends or distributions which such person shall be entitled to
receive to be delivered to such stockholder upon delivery to the Exchange
Agent of Old Certificates representing such shares of Coast Common Stock
(or indemnity reasonably satisfactory to Ahmanson and the Exchange Agent,
if any of such certificates are lost, stolen or destroyed) owned by such
stockholder. No interest will be paid on any such cash to be paid in lieu
of fractional share interests or in respect of dividends or distributions
which any such person shall be entitled to receive pursuant to this Article
III upon such delivery.
(c) Notwithstanding the foregoing, neither the Exchange Agent nor any
party hereto shall be liable to any former holder of Coast Common Stock for
any amount properly delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws.
(d) At the election of Ahmanson, no dividends or other distributions
with respect to Ahmanson Common Stock with a record date occurring after
the Effective Time shall be paid to the holder of any unsurrendered Old
Certificate representing shares of Coast Common Stock converted in the
Merger into the right to receive shares of such Ahmanson Common Stock. Upon
surrender of Old Certificates (or
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indemnity reasonably satisfactory to Ahmanson and the Exchange Agent, if
any of such certificates are lost, stolen or destroyed) in accordance with
this Section 3.04, the record holder thereof shall be entitled to receive
any such dividends or other distributions, without any interest thereon,
which theretofore had become payable with respect to shares of Ahmanson
Common Stock such holder had the right to receive upon surrender of Old
Certificates (or delivery of such indemnity).
3.05 Anti-Dilution Provisions. In the event Ahmanson changes (or
establishes a record date for changing) the number or kind of shares of Ahmanson
Common Stock issued and outstanding prior to the Effective Date as a result of a
stock split, stock dividend, recapitalization, reclassification, reorganization
or similar transaction with respect to the outstanding Ahmanson Common Stock and
the record date therefor shall be prior to the Effective Date, the Exchange
Ratio shall be proportionately adjusted in such manner as Coast and Ahmanson
shall agree, which adjustment may include, as appropriate, the issuance of
securities, property or cash on the same basis as that on which any of the
foregoing shall have been issued, distributed or paid to the holders of Ahmanson
Common Stock generally.
3.06 Options, Performance Shares and Stock Appreciation Rights. (a) At the
Effective Time, each outstanding option to purchase shares of Coast Common Stock
under the Coast Stock Plans (each, a "Coast Stock Option"), whether vested or
unvested, shall be converted into an option (a "Replacement Option") to acquire,
on the same terms and conditions as were applicable under such Coast Stock
Option, (a) the number of shares of Ahmanson Common Stock equal to (i) the
number of shares of Coast Common Stock subject to the Coast Stock Option,
multiplied by (ii) the Exchange Ratio (such product rounded down to the nearest
whole number), at an exercise price per share (rounded up to the nearest whole
cent) equal to (A) the aggregate exercise price for the shares of Coast Common
Stock which were purchasable pursuant to such Coast Stock Option divided by (B)
the number of full shares of Ahmanson Common Stock subject to such Replacement
Option in accordance with the foregoing and (b) one CPR Certificate for each
share of Coast Common Stock that would have been issuable upon exercise in full
of such Coast Stock Option. At or prior to the Effective Time, Coast shall take
all necessary action, if any, including obtaining any necessary consents from
optionees, with respect to the Coast Stock Plans to permit the replacement of
the outstanding Coast Stock Options by Replacement Options pursuant to this
Section and to permit Ahmanson to assume the Coast Stock Plans. At the Effective
Time, Ahmanson shall assume the Coast Stock Plans; provided, that such
assumption shall be only in respect of the Replacement Options and that Ahmanson
shall have no obligation with respect to any awards under the Coast Stock Plans
other than the Replacement Options and shall have no obligation to make any
additional grants or awards under such assumed Coast Stock Plans.
(b) Immediately prior to the Effective Time, each outstanding
performance share award under the Coast Performance Share Award Plan shall
be canceled and only entitle the holder thereof to receive for each share
of Coast Common Stock with respect to such award (i) one CPR Certificate
and (ii) an amount in cash equal to the difference between (A) the result
of multiplying the Exchange Ratio by the average of the last sale prices of
one share of Ahmanson Stock, as reported by the NYSE Composite Transactions
Reporting System (as reported in The Wall Street Journal or, if not
reported therein, in another authoritative source) for the five NYSE
trading days immediately prior to the Effective Date and (B) the base price
under such award. Prior to the Effective Date, Coast shall take all
necessary action with respect to such cancellation, including obtaining any
necessary consents from the holders of such awards.
(c) Immediately prior to the Effective Time, each outstanding stock
appreciation right under the Coast Stock Plans shall be canceled and only
entitle the holder thereof to receive for each share of Coast Stock with
respect to such stock appreciation right (i) one CPR Certificate and (ii)
an amount in cash equal to the difference between (A) the result of
multiplying the Exchange Ratio by the average of the last sale prices of
one share of Ahmanson Stock, as reported by the NYSE Composite Transactions
Reporting System (as reported in The Wall Street Journal or, if not
reported therein, in another authoritative source) for the five NYSE
trading days immediately prior to the Effective Date and (B) the grant
price of such stock appreciation right. Prior to the Effective Date, Coast
shall take all necessary action with respect to such cancellation,
including obtaining any necessary consents from the holders of such stock
appreciation rights.
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(d) If the necessary consents referred to in paragraphs (b) and (c)
above are not obtained, the holders who do not consent shall only be
entitled to (i) with respect to each outstanding performance share award
under the Coast Performance Share Award Plan an amount in cash equal to the
result of multiplying (A) the difference between the average of the last
sale prices of one share of Coast Stock, as reported by the NYSE Composite
Transactions Reporting System (as reported in The Wall Street Journal or,
if not reported therein, in another authoritative source) for the five NYSE
trading days immediately prior to the Effective Date and the base price
under such award by (B) the total number of shares of Coast Stock with
respect to such award and (ii) with respect to each outstanding stock
appreciation right under the Coast Stock Plans, an amount in cash equal to
the result of multiplying (A) the difference between the average of the
last sale prices of one share of Coast Stock, as reported by the NYSE
Composite Transactions Reporting System (as reported in The Wall Street
Journal or, if not reported therein, in another authoritative source) for
the five NYSE trading days immediately prior to the Effective Date and the
grant price of such stock appreciation right by (B) the total number of
shares of Coast Stock with respect to such stock appreciation right. All
CPR Certificates with respect to the performance share awards and stock
appreciation rights referred to in this Section shall be issued to
Ahmanson. In the event that between the date hereof and the Effective Date
any performance share awards or stock appreciation rights are exercised,
Ahmanson will be entitled to retain any CPR Certificates that would
otherwise have been issuable with respect to such performance share awards
or stock appreciation rights upon such exercise at the Effective Date.
3.07 Dissenters Rights. Any Dissenting Shareholder who shall be entitled
to be paid the "fair value" of his or her Dissenters' Shares, as provided in
Section 262 of the DGCL, shall not be entitled to the Merger Consideration in
respect thereof provided for under Section 3.01(a) unless and until such
Dissenting Shareholder shall have failed to perfect or shall have withdrawn or
lost such Dissenting Shareholder's right to dissent from the Merger under the
DGCL, and shall be entitled to receive only the payment provided for by Section
262 of the DGCL with respect to such Dissenters' Shares. If any Dissenting
Shareholder shall fail to perfect or shall have been withdrawn or lost such
right to dissent, the Dissenters' Shares held by such Dissenting Shareholder
shall thereupon be treated as though such Dissenters' Shares had been converted
into the right to receive the Merger Consideration pursuant to Section 3.01(a)
hereof.
ARTICLE IV
ACTIONS PENDING ACQUISITION
4.01 Forebearances of Coast. From the date hereof until the Effective
Time, except as expressly contemplated by this Agreement or as set forth in
paragraph 4.01 of Coast's Disclosure Schedule, without the prior written consent
of Ahmanson, Coast will not, and will cause each of its Subsidiaries not to:
(a) Ordinary Course. Conduct the business of Coast and its
Subsidiaries other than in the ordinary and usual course or fail to use
reasonable efforts to preserve intact their business organizations and
assets and maintain their rights, franchises and existing relations with
customers, suppliers, employees and business associates, or take any action
reasonably likely to have an adverse effect upon Coast's ability to perform
any of its material obligations under this Agreement.
(b) Capital Stock. Other than pursuant to Rights Previously Disclosed
and outstanding on the date hereof, (i) issue, sell or otherwise permit to
become outstanding, or authorize the creation of, any additional shares of
Coast Stock or any Rights, (ii) enter into any agreement with respect to
the foregoing, or (iii) permit any additional shares of Coast Stock to
become subject to new grants of employee or director stock options, other
Rights or similar stock-based employee rights.
(c) Dividends, Etc. (a) Make, declare, pay or set aside for payment
any dividend (other than dividends from wholly owned Subsidiaries to Coast
or another wholly owned Subsidiary of Coast) on or in respect of, or
declare or make any distribution on any shares of Coast Stock or (b)
directly or indirectly adjust, split, combine, redeem, reclassify, purchase
or otherwise acquire, any shares of its capital stock.
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(d) Compensation; Employment Agreements; Etc. Enter into or amend or
renew any employment, consulting, severance or similar agreements or
arrangements with any director, officer or employee of Coast or its
Subsidiaries, or hire any new employees at the rank of senior vice
president or above, or grant any salary or wage increase or increase any
employee benefit (including incentive or bonus payments), except (i) for
normal individual increases in compensation to employees (other than any
senior vice presidents or any employees ranking senior to senior vice
presidents) in the ordinary course of business consistent with past
practice as Previously Disclosed, (ii) for other changes that are required
by applicable law, (iii) to satisfy Previously Disclosed contractual
obligations existing as of the date hereof, or (iv) for grants of awards to
newly hired employees consistent with past practice as Previously
Disclosed, (v) agreements to provide retention bonuses to employees made
pursuant to Section 6.13(b), (vi) the annual rollover of executive
employment agreements Previously Disclosed or (vii) agreements to provide
bonuses for the 1997 calendar year consistent with past practice up to an
aggregate of $1.9 million.
(e) Benefit Plans. Enter into, establish, adopt or amend (except (i)
as may be required by applicable law, (ii) to satisfy Previously Disclosed
contractual obligations existing as of the date hereof or (iii) as
otherwise provided herein) any pension, retirement, stock option, stock
purchase, savings, profit sharing, deferred compensation, consulting,
bonus, group insurance or other employee benefit, incentive or welfare
contract, plan or arrangement, or any trust agreement (or similar
arrangement) related thereto, in respect of any director, officer or
employee of Coast or its Subsidiaries, or take any action to accelerate the
vesting or exercisability of stock options, restricted stock or other
compensation or benefits payable thereunder.
(f) Dispositions. Except as Previously Disclosed, sell, transfer,
mortgage, encumber or otherwise dispose of or discontinue any of its
assets, deposits, business or properties except in the ordinary course of
business and in a transaction that is not material to it and its
Subsidiaries taken as a whole.
(g) Acquisitions. Except as Previously Disclosed, acquire (other than
by way of foreclosures or acquisitions of control in a bona fide fiduciary
capacity or in satisfaction of debts previously contracted in good faith,
in each case in the ordinary and usual course of business consistent with
past practice) all or any portion of, the assets, business, deposits or
properties of any other entity except in the ordinary course of business
and in a transaction that is not material to it and its Subsidiaries taken
as a whole.
(h) Governing Documents. Amend the Coast Certificate, Coast By-laws or
the certificate of incorporation or by-laws (or similar governing
documents) of any of Coast's Subsidiaries.
(i) Accounting Methods. Implement or adopt any change in its
accounting principles, practices or methods, other than as may be required
by generally accepted accounting principles.
(j) Contracts. (i) Amend, or take any action adverse to Ahmanson with
respect to, the Coast Rights Agreement or (ii), except in the ordinary
course of business consistent with past practice or with the consent of
Ahmanson (which consent shall not be unreasonably withheld or delayed),
enter into or terminate any contract material to its assets, business or
operations or amend or modify in any material respect any such existing
material contract.
(k) Claims. Except in the ordinary course of business consistent with
past practice or with the consent of Ahmanson (which consent shall not be
unreasonably withheld or delayed), settle any claim, action or proceeding
against it, except for any claim, action or proceeding involving solely
money damages in an amount, individually or in the aggregate for all such
settlements, that is not material to Coast and its Subsidiaries, taken as a
whole and that does not create precedent for claims that are reasonably
likely to be material to Coast and its Subsidiaries taken as a whole.
(l) Adverse Actions. (a) Take any action while knowing that such
action would, or is reasonably likely to, prevent or impede the Merger from
qualifying as a reorganization within the meaning of Section 368 of the
Code; or (b) take any action that is intended or is known to be reasonably
likely to result in (i) any of its representations and warranties set forth
in this Agreement being or becoming untrue in any material respect at any
time at or prior to the Effective Time, (ii) any of the conditions to
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the Merger set forth in Article VII not being satisfied or (iii) a material
violation of any provision of this Agreement except, in each case, as may
be required by applicable law or regulation.
(m) Risk Management. Except as required by applicable law or
regulation or with the consent of Ahmanson (which consent shall not be
unreasonably withheld or delayed), (i) implement or adopt any material
change in its interest rate and other risk management policies, procedures
or practices or (ii) fail to follow in all material respects its existing
policies or practices with respect to managing its exposure to interest
rate and other risk.
(n) Indebtedness. Incur any indebtedness for borrowed money other than
in the ordinary course of business.
(o) Commitments. Agree or commit to do any of the foregoing.
4.02 Forebearances of Ahmanson. From the date hereof until the Effective
Time, except as expressly contemplated by this Agreement, without the prior
written consent of Coast, Ahmanson will not:
(a) Dividends. Make, declare, pay or set aside for payment any
dividends other than quarterly dividends in an amount, and with record and
payment dates, consistent with past practice (provided that Ahmanson may
raise its regular quarterly dividend rate by an amount not exceeding 20%).
(b) Adverse Actions. (a) Take any action while knowing that such
action would, or is reasonably likely to, prevent or impede the Merger from
qualifying as a reorganization within the meaning of Section 368 of the
Code; (b) repurchase any Ahmanson Stock such that an Ahmanson stockholder
vote would be required for consummation of the Merger or which would have
the effect of a recapitalization of Ahmanson or at prices reflecting a
significant premium to the prices at which the Ahmanson Common Stock is
then trading; (c) take any action that is intended or is known to be
reasonably likely to result in (i) any of its representations and
warranties set forth in this Agreement being or becoming untrue in any
material respect at any time at or prior to the Effective Time, (ii) any of
the conditions to the Merger set forth in Article VII not being satisfied
or (iii) a material violation of any provision of this Agreement except, in
each case, as may be required by applicable law or regulation; or
(c) Commitments. Agree or commit to do any of the foregoing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Disclosure Schedules. On or prior to the date hereof, Coast has
delivered to Ahmanson a schedule (its "Disclosure Schedule") setting forth,
among other things, items the disclosure of which is necessary or appropriate
either in response to an express disclosure requirement contained in a provision
hereof or as an exception to one or more representations or warranties contained
in Section 5.03 or to one or more of its covenants contained in Article IV;
provided, that the mere inclusion of an item in a Disclosure Schedule as an
exception to a representation or warranty shall not be deemed an admission by
Coast that such item represents a material exception or fact, event or
circumstance or that such item is reasonably likely to result in a Material
Adverse Effect. Coast represents and warrants that its Disclosure Schedule is
true and correct in all material respects and does not omit any item or
information material to the applicable paragraph in Section 5.03 and required to
be disclosed therein.
5.02 Standard. No representation or warranty of Coast or Ahmanson
contained in Section 5.03 or 5.04, shall be deemed untrue or incorrect, and no
party hereto shall be deemed to have breached a representation or warranty, as a
consequence of the existence of any fact, event or circumstance unless such
fact, circumstance or event, individually or taken together with all other
facts, events or circumstances inconsistent with any representation or warranty
contained in Section 5.03 or 5.04 has had or is reasonably likely to have a
Material Adverse Effect on the party making such representation or warranty.
5.03 Representations and Warranties of Coast. Subject to Sections 5.01 and
5.02 and except as Previously Disclosed in the applicable paragraph of its
Disclosure Schedule, or any other paragraph of the
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Disclosure Schedule so long as it is clear from the context of the disclosure
that the disclosure in such other paragraph of the Disclosure Schedule is also
applicable to the paragraph of this Section 5.03 in question, Coast hereby
represents and warrants to Ahmanson:
(a) Organization, Standing and Authority. Coast is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware. Coast is duly qualified to do business and is in good
standing in the states of the United States and any foreign jurisdictions
where its ownership or leasing of property or assets or the conduct of its
business requires it to be so qualified. Coast is duly registered as a
savings and loan holding company under HOLA. Coast Federal is a qualified
thrift lender pursuant to Section 10(m) of HOLA and its deposits are
insured by the FDIC through the SAIF to the fullest extent permitted by
law. Coast Federal is a member in good standing of the FHLBSF.
(b) Coast Stock. As of the date hereof, the authorized capital stock
of Coast consists solely of (i) 100,000,000 shares of Coast Common Stock,
of which no more than 18,645,327 shares are outstanding as of the date
hereof and (ii) 50,000,000 shares of Coast Preferred Stock, of which no
shares are outstanding as of the date hereof. As of the date hereof, no
shares of Coast Common Stock and no shares of Coast Preferred Stock were
held in treasury by Coast or otherwise owned by Coast or its Subsidiaries.
The outstanding shares of Coast Common Stock have been duly authorized and
are validly issued and outstanding, fully paid and nonassessable, and
subject to no preemptive rights (and were not issued in violation of any
preemptive rights). As of the date hereof, except as Previously Disclosed,
there are no shares of Coast Stock authorized and reserved for issuance,
Coast does not have any Rights issued or outstanding with respect to Coast
Stock, and Coast does not have any commitment to authorize, issue or sell
any Coast Stock or Rights. The number of shares of Coast Common Stock which
are issuable and reserved for issuance upon exercise of Coast Stock Options
as of the date hereof (and the exercise price thereof) are Previously
Disclosed in Coast's Disclosure Schedule.
(c) Subsidiaries. (i)(A) Coast has Previously Disclosed in its
Disclosure Schedule a list of all of its Subsidiaries together with the
jurisdiction of organization of each such Subsidiary, (B) except as
Previously Disclosed, it owns, directly or indirectly, all the issued and
outstanding equity securities of each of its Subsidiaries, (C) no equity
securities of any of its Subsidiaries are or may become required to be
issued (other than to it or its wholly-owned Subsidiaries) by reason of any
Right or otherwise, (D) there are no contracts, commitments, understandings
or arrangements by which any of such Subsidiaries is or may be bound to
sell or otherwise transfer any equity securities of any such Subsidiaries
(other than to it or its wholly-owned Subsidiaries), (E) there are no
contracts, commitments, understandings, or arrangements relating to its
rights to vote or to dispose of such securities and (F) all the equity
securities of each Subsidiary held by Coast or its Subsidiaries are fully
paid and nonassessable and are owned by Coast or its Subsidiaries free and
clear of any Liens.
(ii) Coast does not own beneficially, directly or indirectly, any
equity securities or similar interests of any Person (other than in a
fiduciary capacity or in connection with the foreclosure of security
interests or as a result of similar enforcement remedies in connection
with loans made in the ordinary course of business), or any interest in
a partnership or joint venture of any kind, other than in its
Subsidiaries.
(iii) Each of Coast's Subsidiaries has been duly organized and is
validly existing in good standing under the laws of the jurisdiction of
its organization, and is duly qualified to do business and in good
standing in the jurisdictions where its ownership or leasing of property
or the conduct of its business requires it to be so qualified.
(d) Corporate Power. Coast and each of its Subsidiaries has the
corporate power and authority to carry on its business as it is now being
conducted and to own all its properties and assets; and Coast has the
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby.
(e) Corporate Authority. Subject in the case of this Agreement to
receipt of the requisite approval of the agreement of merger set forth in
this Agreement by the holders of a majority of the outstanding
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shares of Coast Common Stock entitled to vote thereon (which is the only
stockholder vote required thereon), this Agreement and the transactions
contemplated hereby have been authorized by all necessary corporate action
of Coast and the Coast Board on or prior to the date hereof. This Agreement
is a valid and legally binding obligation of Coast, enforceable in
accordance with its terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws of general applicability relating to or affecting
creditors' rights or by general equity principles). The Coast Board has
received the written opinion of Goldman, Sachs & Co. to the effect that as
of the date hereof the consideration to be received by the holders of Coast
Common Stock in the Merger is fair to the holders of Coast Common Stock
from a financial point of view.
(f) Regulatory Approvals; No Defaults. (i) No consents or approvals
of, or filings or registrations with, any Governmental Authority or with
any third party are required to be made or obtained by Coast or any of its
Subsidiaries in connection with the execution, delivery or performance by
Coast of this Agreement or to consummate the Merger except for (A) filings
and approvals of applications with and by the OTS, (B) filings with the SEC
and state securities authorities and the approval of this Agreement by the
stockholders of Coast, and (C) the filing of a certificate of merger with
the Delaware Secretary pursuant to the DGCL. As of the date hereof, Coast
is not aware of any reason why the approvals set forth in Section 7.01(b)
will not be received without the imposition of a condition, restriction or
requirement of the type described in Section 7.01(b).
(ii) Subject to receipt of the regulatory approvals referred to in
the preceding paragraph, and expiration of related waiting periods, and
required filings under federal and state securities laws, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (A) constitute a
breach or violation of, or a default under, or give rise to any Lien,
any acceleration of remedies or any right of termination under, any law,
rule or regulation or any judgment, decree, order, governmental permit
or license, or agreement, indenture or instrument of Coast or of any of
its Subsidiaries or to which Coast or any of its Subsidiaries or
properties is subject or bound, (B) constitute a breach or violation of,
or a default under, the Coast Certificate or the Coast By-Laws, or (C)
require any consent or approval under any such law, rule, regulation,
judgment, decree, order, governmental permit or license, agreement,
indenture or instrument.
(g) Financial Reports and Regulatory Documents. (i) Coast's Annual
Reports on Form 10-K for the fiscal years ended December 31, 1994, 1995 and
1996, and all other reports, registration statements, definitive proxy
statements or information statements filed or to be filed by it or any of
its Subsidiaries subsequent to December 31, 1994 under the Securities Act,
under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act or under the
securities regulations of the OTS, in the form filed or to be filed
(collectively, Coast's "Regulatory Documents") with the SEC or the OTS, as
applicable, as of the date filed, (A) complied or will comply in all
material respects as to form with the applicable requirements under the
Securities Act, the Exchange Act or the securities regulations of the OTS,
as the case may be, and (B) did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and each
of the consolidated balance sheets contained in or incorporated by
reference into any such Regulatory Document (including the related notes
and schedules thereto) fairly presents, or will fairly present, the
consolidated financial position of Coast and its Subsidiaries as of its
date, and each of the consolidated statements of income and changes in
stockholders' equity and cash flows or equivalent statements in such
Regulatory Documents (including any related notes and schedules thereto)
fairly presents, or will fairly present, the consolidated results of
operations, changes in stockholders' equity and changes in cash flows, as
the case may be, of Coast and its Subsidiaries for the periods to which
they relate, in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved, except in each
case as may be noted therein, subject to normal year-end audit adjustments
and the lack of complete footnote disclosure in the case of unaudited
statements.
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(ii) Except as Previously Disclosed in its Disclosure Schedule,
since December 31, 1996, Coast and its Subsidiaries have not incurred
any liability other than in the ordinary course of business consistent
with past practice (other than liabilities (A) with respect to expenses
related to this Agreement and the transactions contemplated hereby and
(B) with respect to other possible merger transactions all of which have
been expensed or reserved for).
(iii) Since December 31, 1996, (A) Coast and its Subsidiaries have
conducted their respective businesses in the ordinary and usual course
consistent with past practice (excluding the incurrence of expenses
related to this Agreement and the transactions contemplated hereby and
other possible merger transactions) and (B) no event has occurred or
circumstance arisen that, individually or taken together with all other
facts, circumstances and events (described in any paragraph of Section
5.03 or otherwise), is reasonably likely to have a Material Adverse
Effect with respect to Coast.
(h) Litigation. No litigation, claim or other proceeding before any
court or governmental agency is pending against Coast or any of its
Subsidiaries and, to Coast's knowledge, no such litigation, claim or other
proceeding has been threatened.
(i) Regulatory Matters. (i) Neither Coast nor any of its Subsidiaries
or properties is a party to or is subject to any order, decree, agreement,
memorandum of understanding or similar arrangement with, or a commitment
letter or similar submission to, or extraordinary supervisory letter from,
any federal or state governmental agency or authority charged with the
supervision or regulation of financial institutions or issuers of
securities or engaged in the insurance of deposits (including, without
limitation, the OTS and the FDIC) or the supervision or regulation of it or
any of its Subsidiaries (collectively, the "Regulatory Authorities").
(ii) Neither Coast nor any of its Subsidiaries has been advised by
any Regulatory Authority that such Regulatory Authority is contemplating
issuing or requesting (or is considering the appropriateness of issuing
or requesting) any such order, decree, agreement, memorandum of
understanding, commitment letter, supervisory letter or similar
submission.
(j) Compliance with Laws. Coast and each of its Subsidiaries:
(i) is in compliance with all applicable federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments,
orders or decrees applicable thereto or to the employees conducting such
businesses, including, without limitation, the Equal Credit Opportunity
Act, the Fair Housing Act, the Community Reinvestment Act, the Home
Mortgage Disclosure Act and all other applicable fair lending laws and
other laws relating to discriminatory business practices;
(ii) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and registrations
with, all Governmental Authorities that are required in order to permit
them to own or lease their properties and to conduct their businesses
substantially as presently conducted; all such permits, licenses,
certificates of authority, orders and approvals are in full force and
effect; and, to Coast's knowledge, no suspension or cancellation of any
of them is threatened; and
(iii) has received, since December 31, 1996, no notification or
communication from any Governmental Authority (A) asserting that Coast
or any of its Subsidiaries is not in compliance with any of the
statutes, regulations, or ordinances which such Governmental Authority
enforces or (B) threatening to revoke any license, franchise, permit, or
governmental authorization (nor, to Coast's knowledge, do any grounds
for any of the foregoing exist).
(k) Material Contracts; Defaults. Except for those agreements and
other documents filed as exhibits to its Regulatory Documents, neither
Coast nor any of its Subsidiaries is a party to, bound by or subject to any
agreement, contract, arrangement, commitment or understanding (whether
written or oral) (i) that is a "material contract" within the meaning of
Item 601(b)(10) of the SEC's Regulation S-K or (ii) that materially
restricts the conduct of business by it or any of its Subsidiaries.
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Neither Coast nor any of its Subsidiaries is in default in any material
respect under any material contract, agreement, commitment, arrangement,
lease, insurance policy or other instrument to which it is a party, by
which its respective assets, business, or operations may be bound or
affected, or under which it or its respective assets, business, or
operations receives benefits, or under any other contract if such default
could reasonably be expected to have a Material Adverse Effect on Coast,
and in either case there has not occurred any event that, with the lapse of
time or the giving of notice or both, would constitute such a default.
(l) No Brokers. No action has been taken by Coast that would give rise
to any valid claim against any party hereto for a brokerage commission,
finder's fee or other like payment with respect to the transactions
contemplated by this Agreement, excluding a Previously Disclosed fee to be
paid to Goldman, Sachs & Co.
(m) Employee Benefit Plans. (i) Section 5.03(m)(i) of Coast's
Disclosure Schedule contains a complete and accurate list of all existing
bonus, incentive, deferred compensation, pension, retirement,
profit-sharing, thrift, savings, employee stock ownership, stock bonus,
stock purchase, restricted stock, stock option, severance, welfare and
fringe benefit plans, employment or severance agreements and all similar
practices, policies and arrangements in which any employee or former
employee (the "Employees"), consultant or former consultant (the
"Consultants") or director or former director (the "Directors") of Coast or
any of its Subsidiaries participates or to which any such Employees,
Consultants or Directors are a party (the "Compensation and Benefit
Plans"). Neither Coast nor any of its Subsidiaries has any commitment to
create any additional Compensation and Benefit Plan or to modify or change
any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and
administered in all material respects in accordance with its terms and
with applicable law, including, but not limited to, ERISA, the Code, the
Securities Act, the Exchange Act, the Age Discrimination in Employment
Act, or any regulations or rules promulgated thereunder, and all
filings, disclosures and notices required by ERISA, the Code, the
Securities Act, the Exchange Act, the Age Discrimination in Employment
Act and any other applicable law have been timely made. Each
Compensation and Benefit Plan which is an "employee pension benefit
plan" within the meaning of Section 3(2) of ERISA (a "Pension Plan") and
which is intended to be qualified under Section 401(a) of the Code has
received a favorable determination letter (including a determination
that the related trust under such Compensation and Benefit Plan is
exempt from tax under Section 501(a) of the Code) from the Internal
Revenue Service ("IRS") for "TRA" (as defined in Rev. Proc. 93-39), or
will file for such determination letter prior to the expiration of the
remedial amendment period for such Compensation and Benefit Plan, and
Coast is not aware of any circumstances likely to result in revocation
of any such favorable determination letter. There is no material pending
or, to the knowledge of Coast, threatened legal action, suit or claim
relating to the Compensation and Benefit Plans. Neither Coast nor any of
its Subsidiaries has engaged in a transaction, or omitted to take any
action, with respect to any Compensation and Benefit Plan that would
reasonably be expected to subject Coast or any of its Subsidiaries to a
tax or penalty imposed by either Section 4975 of the Code or Section 502
of ERISA, assuming for purposes of Section 4975 of the Code that the
taxable period of any such transaction expired as of the date hereof.
(iii) No liability (other than for payment of premiums to the PBGC
which have been made or will be made on a timely basis) under Title IV
of ERISA has been or is expected to be incurred by Coast or any of its
Subsidiaries with respect to any ongoing, frozen or terminated
"single-employer plan", within the meaning of Section 4001(a)(15) of
ERISA, currently or formerly maintained by any of them, or any
single-employer plan of any entity (an "ERISA Affiliate") which is
considered one employer with Coast under Section 4001(a)(14) of ERISA or
Section 414(b) or (c) of the Code (an "ERISA Affiliate Plan"). None of
Coast, any of its Subsidiaries or any ERISA Affiliate has contributed,
or has been obligated to contribute, to a multiemployer plan under
Subtitle E of Title IV of ERISA during the preceding five calendar
years. No notice of a "reportable event," within the meaning of Section
4043 of ERISA for which the 30-day reporting requirement has not
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been waived, has been required to be filed for any Compensation and
Benefit Plan or by any ERISA Affiliate Plan within the 12-month period
ending on the date hereof, and no such notice will be required to be
filed as a result of the transactions contemplated by this Agreement.
The PBGC has not instituted proceedings to terminate any Pension Plan or
ERISA Affiliate Plan and, to Coast's knowledge, no condition exists that
presents a material risk that such proceedings will be instituted. To
the knowledge of Coast, there is no pending investigation or enforcement
action by the PBGC, the Department of Labor or IRS or any other
governmental agency with respect to any Compensation and Benefit Plan.
Under each Pension Plan and ERISA Affiliate Plan, as of the date of the
most recent actuarial valuation performed prior to the date of this
Agreement, the actuarially determined present value of all "benefit
liabilities," within the meaning of Section 4001(a)(16) of ERISA (as
determined on the basis of the actuarial assumptions contained in such
actuarial valuation of such Pension Plan or ERISA Affiliate Plan), did
not exceed the then current value of the assets of such Pension Plan or
ERISA Affiliate Plan and since such date there has been neither an
adverse change in the financial condition of such Pension Plan or ERISA
Affiliate Plan nor any amendment or other change to such Pension Plan or
ERISA Affiliate Plan that would increase the amount of benefits
thereunder which in either case reasonably could be expected to change
such result.
(iv) All contributions required to be made under the terms of any
Compensation and Benefit Plan or ERISA Affiliate Plan or any employee
benefit arrangements under any collective bargaining agreement to which
Coast or any of its Subsidiaries is a party have been timely made or
have been reflected on Coast's financial statements to the extent
required by generally accepted accounting principles. Neither any
Pension Plan nor any ERISA Affiliate Plan has an "accumulated funding
deficiency" (whether or not waived) within the meaning of Section 412 of
the Code or Section 302 of ERISA and all required payments to the PBGC
with respect to each Pension Plan or ERISA Affiliate Plan have been made
on or before their due dates. None of Coast, any of its Subsidiaries or
any ERISA Affiliate (x) has provided, or would reasonably be expected to
be required to provide, security to any Pension Plan or to any ERISA
Affiliate Plan pursuant to Section 401(a)(29) of the Code, and (y) has
taken any action, or omitted to take any action, that has resulted, or
would reasonably be expected to result, in the imposition of a lien
under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Coast nor any of its Subsidiaries has any obligations
to provide retiree health and life insurance or other retiree death
benefits under any Compensation and Benefit Plan, other than benefits
mandated by Section 4980B of the Code, and each such Compensation and
Benefit Plan may be amended or terminated without incurring liability
thereunder. There has been no communication to Employees by Coast or any
of its Subsidiaries that would reasonably be expected to promise or
guarantee such Employees retiree health or life insurance or other
retiree death benefits on a permanent basis.
(vi) Coast and its Subsidiaries do not maintain any Compensation
and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if
applicable, Coast has provided or made available to Ahmanson, true and
complete copies of its existing (A) Compensation and Benefit Plan
documents and amendments thereto and (B) trust instruments and insurance
contracts.
(viii) The consummation of the transactions contemplated by this
Agreement would not, directly or indirectly (including, without
limitation, as a result of any termination of employment prior to or
following the Effective Time) reasonably be expected to (A) entitle any
Employee, Consultant or Director to any payment (including severance pay
or similar compensation) or any increase in compensation, (B) result in
the vesting or acceleration of any benefits under any Compensation and
Benefit Plan or (C) result in any material increase in benefits payable
under any Compensation and Benefit Plan.
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(ix) Neither Coast nor any of its Subsidiaries maintains any
compensation plans, programs or arrangements the payments under which
would not reasonably be expected to be deductible as a result of the
limitations under Section 162(m) of the Code and the regulations issued
thereunder.
(x) As a result, directly or indirectly, of the transactions
contemplated by this Agreement (including, without limitation, as a
result of any termination of employment prior to or following the
Effective Time), none of Ahmanson, Coast or the Surviving Corporation,
or any of their respective Subsidiaries will be obligated to make a
payment that would be characterized as an "excess parachute payment" to
an employee or consultant of Coast who is a "disqualified individual"
(as such terms are defined in Section 280G of the Code), without regard
to whether such payment is reasonable compensation for personal services
performed or to be performed in the future.
(n) Labor Matters. Neither Coast nor any of its Subsidiaries is a
party to or is bound by any collective bargaining agreement, contract or
other agreement or understanding with a labor union or labor organization,
nor is Coast or any of its Subsidiaries the subject of a proceeding
asserting that it or any such Subsidiary has committed an unfair labor
practice (within the meaning of the National Labor Relations Act) or
seeking to compel Coast or any such Subsidiary to bargain with any labor
organization as to wages or conditions of employment, nor is there any
strike or other labor dispute involving it or any of its Subsidiaries
pending or, to Coast's knowledge, threatened, nor is Coast aware of any
activity involving its or any of its Subsidiaries' employees seeking to
certify a collective bargaining unit or engaging in other organizational
activity.
(o) Takeover Laws; Dissenters Rights. Coast has taken all action
required to be taken by it in order to exempt this Agreement, and the
transactions contemplated hereby from, and this Agreement and the
transactions contemplated hereby are exempt from, the requirements of any
"moratorium," "control share," "fair price," "affiliate transaction,"
"business combination" or other antitakeover laws and regulations of any
state (collectively, "Takeover Laws"), including, without limitation, the
State of Delaware, and including, without limitation, Section 203 of the
DGCL.
(p) Environmental Matters. To the best knowledge of Coast, neither the
conduct nor operation of Coast or its Subsidiaries nor any condition of any
property presently or previously owned, leased or operated by any of them
(including, without limitation, in a fiduciary or agency capacity), or on
which any of them holds a Lien, violates or violated Environmental Laws and
no condition has existed or event has occurred with respect to any of them
or any such property that, with notice or the passage of time, or both, is
reasonably likely to result in liability under Environmental Laws. Neither
Coast nor any of its Subsidiaries has received any notice from any person
or entity that Coast or its Subsidiaries or the operation or condition of
any property ever owned, leased, operated, or held as collateral or in a
fiduciary capacity by any of them are or were in violation of or otherwise
are alleged to have liability under any Environmental Law, including, but
not limited to, responsibility (or potential responsibility) for the
cleanup or other remediation of any pollutants, contaminants, or hazardous
or toxic wastes, substances or materials at, on, beneath, or originating
from any such property.
(q) Tax Matters. (i)(A) All federal, state, local and foreign Tax
Returns (including information returns) required to be filed by or on
behalf of Coast or its Subsidiaries have been prepared in good faith and
duly and timely filed, and all such filed Tax Returns are complete and
accurate in all material respects. (B) Coast and each of its Subsidiaries
have paid in full all Taxes due (including interest and penalties) or have
provided adequate reserves for any such Taxes in the financial statements
of Coast in accordance with generally accepted accounting principles,
whether or not shown as being due on any of the Tax Returns referred to in
clause (i)(A). (C) Neither Coast nor any of its Subsidiaries has received
any memorandum or opinion from legal counsel that was sought in order to
satisfy the reasonable cause exception (set forth in Section 6664(c) of the
Code) applicable to the penalties for certain underpayments of Taxes set
forth in Sections 6662 through 6664 of the Code. (D) There is no pending or
threatened audit, examination, assessment or proposed assessment of a
deficiency, or refund litigation with respect to any Taxes of Coast or its
Subsidiaries. (E) All Taxes, interest, additions and penalties due with
respect to completed and settled examinations or concluded litigation
relating to Taxes of Coast or
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its Subsidiaries have been paid in full or adequate provision has been made
for any such Taxes (in accordance with generally accepted accounting
principles) on the financial statements of Coast. (F) Neither Coast nor its
Subsidiaries has executed an extension or waiver of any statute of
limitations on the assessment or collection of any Tax due that is
currently in effect. (G) No power of attorney has been granted by or with
respect to Coast or any of its Subsidiaries with respect to any matter
relating to Taxes. (H) Neither Coast nor any of its Subsidiaries has made
or will make a material election as to Taxes during the period from January
1, 1997 through the Effective Time, other than elections made on tax
returns filed for the year ended on December 31, 1996.
(ii)(A) No liens or other security interests have been imposed on
any assets of Coast or its Subsidiaries in connection with any failure
(or alleged failure) to pay any Tax. (B) Coast and its Subsidiaries have
timely withheld, and paid over to the relevant governmental authority or
other appropriate payee, all Taxes required to have been withheld and
paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, stockholder, or other person. (C)
Neither Coast nor any of its Subsidiaries is a party to any tax
allocation or sharing agreement under which it has obligations to a
party other than Coast or its Subsidiaries, is or has been a member of
an affiliated group filing consolidated or combined tax returns (other
than a group the common parent of which is or was Coast) or otherwise
has any liability for the Taxes of any person (other than Coast or its
Subsidiaries). (D) Neither Coast nor any of its Subsidiaries has any
deferred intercompany gain or loss arising as a result of a deferred
intercompany transaction within the meaning of Treasury Regulation
Section 1.1502-13 (or similar provision under state, local or foreign
law) or any excess loss accounts within the meaning of Treasury
Regulation Section 1.1502-19. (E) Coast is not and has not been a United
States real property holding corporation (as defined in Section
897(c)(2) of the Code) during the applicable period specified in Section
897(c)(1)(ii) of the Code.
(iii) As of the date hereof, neither Coast nor any of its
Subsidiaries has any reason to believe that any conditions exist that
might prevent or impede the Merger from qualifying as a reorganization
within the meaning of Section 368 of the Code, or otherwise prevent the
conditions in Section 7.02 from being met.
(r) Risk Management Instruments. All interest rate swaps, caps,
floors, option agreements, futures and forward contracts and other similar
risk management arrangements, whether entered into for Coast's own account,
or for the account of one or more of Coast's Subsidiaries or their
customers (all of which are listed on Coast's Disclosure Schedule), were
entered into in accordance with all applicable laws, rules, regulations and
regulatory policies and with counterparties believed to be financially
responsible at the time; each of them constitutes the valid and legally
binding obligation of Coast or one of its Subsidiaries, enforceable in
accordance with its terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws of general applicability relating to or affecting
creditors' rights or by general equity principles), and are in full force
and effect. Neither Coast nor its Subsidiaries, nor to Coast's knowledge,
any other party thereto, is in breach of any of its obligations under any
such agreement or arrangement.
(s) Books and Records. The books and records of Coast and its
Subsidiaries have been fully, properly and accurately maintained in all
material respects, and there are no material inaccuracies or discrepancies
of any kind contained or reflected therein, and they fairly present the
financial position of Coast and its Subsidiaries.
(t) Insurance. Coast's Disclosure Schedule sets forth all of the
insurance policies, binders, or bonds maintained by Coast or its
Subsidiaries ("Insurance Policies"). Coast and its Subsidiaries are insured
with reputable insurers against such risks and in such amounts as the
management of Coast reasonably has determined to be prudent in accordance
with industry practices. All the Insurance Policies are in full force and
effect; Coast and its Subsidiaries are not in material default thereunder;
and all claims thereunder have been filed in due and timely fashion.
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(u) Disclosure. The representations and warranties contained in this
Section 5.03 do not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements and
information contained in this Section 5.03 not misleading.
5.04 Representations and Warranties of Ahmanson. Subject to Section 5.02,
Ahmanson hereby represents and warrants to Coast as follows:
(a) Organization, Standing and Authority. Ahmanson is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Ahmanson is duly qualified to do business and is in good
standing in the states of the United States and foreign jurisdictions where
its ownership or leasing of property or assets or the conduct of its
business requires it to be so qualified. Ahmanson has in effect all
federal, state, local, and foreign governmental authorizations necessary
for it to own or lease its properties and assets and to carry on its
business as it is now conducted. Ahmanson is duly registered as a savings
and loan holding company under HOLA.
(b) Ahmanson Stock. (i) As of the date hereof, the authorized capital
stock of Ahmanson consists solely of 220,000,000 shares of Ahmanson Common
Stock, of which no more than 94,441,674 shares were outstanding as of the
date hereof, and 10,000,000 shares of Ahmanson Preferred Stock, of which no
more than 780,000 shares of 8.40% Series C preferred stock and 575,000
shares of 6% Cumulative Convertible Series D preferred stock were
outstanding as of the date hereof. As of the date hereof, except for Rights
issued pursuant to the Ahmanson Rights Agreement, Ahmanson's 1996
Nonemployee Directors' Stock Incentive Plan, Ahmanson's 1993 Stock
Incentive Plan, Ahmanson's 1988 Directors' Stock Incentive Plan and
Ahmanson's 1984 Stock Incentive Plan or upon conversion of Ahmanson's 6%
Cumulative Convertible Series D preferred stock, Ahmanson does not have any
Rights issued or outstanding with respect to Ahmanson Stock and Ahmanson
does not have any commitment to authorize, issue or sell any Ahmanson Stock
or Rights, except pursuant to this Agreement.
(ii) The shares of Ahmanson Common Stock to be issued in exchange
for shares of Coast Common Stock in the Merger, when issued in
accordance with the terms of this Agreement, will be duly authorized,
validly issued, fully paid and nonassessable and not subject to
pre-emptive rights.
(c) Subsidiaries. Each of Ahmanson's Significant Subsidiaries has been
duly organized and is validly existing in good standing under the laws of
the jurisdiction of its organization, and is duly qualified to do business
and in good standing in the jurisdictions where its ownership or leasing of
property or the conduct of its business requires it to be so qualified and
it owns, directly or indirectly, all the issued and outstanding equity
securities of each of its Significant Subsidiaries.
(d) Corporate Power. Ahmanson and each of its Significant Subsidiaries
has the corporate power and authority to carry on its business as it is now
being conducted and to own all its properties and assets; and Ahmanson has
the corporate power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby.
(e) Corporate Authority. (i) This Agreement and the transactions
contemplated hereby have been authorized by all necessary corporate action
of Ahmanson and the Ahmanson Board. This Agreement is a valid and legally
binding agreement of Ahmanson enforceable in accordance with its terms
(except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar
laws of general applicability relating to or affecting creditors' rights or
by general equity principles). No Ahmanson stockholder approval is required
for this Agreement and the transactions contemplated hereby under the DGCL,
Ahmanson's certificate of incorporation or Ahmanson's by-laws or the rules
of the NYSE.
(ii) The entering into of the Commitment has been authorized by all
necessary corporate action of Ahmanson. The entering into of the
Commitment will not (A) constitute a breach or violation of, or a
default under, or give rise to any Lien, any acceleration of remedies or
any right of termination under, any law, rule or regulation or any
judgment, decree, order, governmental permit or license, or agreement,
indenture or instrument of Ahmanson or of any of its Subsidiaries or to
which Ahmanson or any of its Subsidiaries or properties is subject or
bound, (B) constitute a breach
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or violation of, or a default under, the certificate of incorporation or
by-laws of Ahmanson, or (C) require any consent or approval under any
such law, rule, regulation, judgment, decree, order, governmental permit
or license, agreement, indenture or instrument.
(f) Regulatory Approvals; No Defaults. (i) No consents or approvals
of, or filings or registrations with, any Governmental Authority or with
any third party are required to be made or obtained by Ahmanson or any of
its Subsidiaries in connection with the execution, delivery or performance
by Ahmanson of this Agreement or to consummate the Merger except for (A)
the filings and approvals of applications with and by the OTS; (B) approval
of the listing on the NYSE of Ahmanson Common Stock to be issued in the
Merger; (C) the filing and declaration of effectiveness of the Ahmanson
Registration Statement; (D) the filing of a certificate of merger with the
Delaware Secretary pursuant to the DGCL; and (E) such filings as are
required to be made or approvals as are required to be obtained under the
securities or "Blue Sky" laws of various states in connection with the
issuance of Ahmanson Stock in the Merger. As of the date hereof, Ahmanson
is not aware of any reason why the approvals set forth in Section 7.01(b)
will not be received without the imposition of a condition, restriction or
requirement of the type described in Section 7.01(b).
(ii) Subject to receipt of the regulatory approvals referred to in
the preceding paragraph and expiration of the related waiting periods,
and required filings under federal and state securities laws, the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
(A) constitute a breach or violation of, or a default under, or give
rise to any Lien, any acceleration of remedies or any right of
termination under, any law, rule or regulation or any judgment, decree,
order, governmental permit or license, or agreement, indenture or
instrument of Ahmanson or of any of its Subsidiaries or to which
Ahmanson or any of its Subsidiaries or properties is subject or bound,
(B) constitute a breach or violation of, or a default under, the
certificate of incorporation or by-laws (or similar governing documents)
of Ahmanson or any of its Subsidiaries, or (C) require any consent or
approval under any such law, rule, regulation, judgment, decree, order,
governmental permit or license, agreement, indenture or instrument.
(g) Financial Reports and Regulatory Documents; Material Adverse
Effect. (i) Ahmanson's Regulatory Documents, as of the date filed, (A)
complied or will comply in all material respects as to form with the
applicable requirements under the Securities Act or the Exchange Act, as
the case may be, and (B) did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each of the
balance sheets contained in or incorporated by reference into any such
Regulatory Document (including the related notes and schedules thereto)
fairly presents, or will fairly present, the financial position of Ahmanson
and its Subsidiaries as of its date, and each of the statements of income
and changes in stockholders' equity and cash flows or equivalent statements
in such Regulatory Documents (including any related notes and schedules
thereto) fairly presents, or will fairly present, the results of
operations, changes in stockholders' equity and changes in cash flows, as
the case may be, of Ahmanson and its Subsidiaries for the periods to which
they relate, in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved, except in each
case as may be noted therein, subject to normal year-end audit adjustments
and the lack of complete footnote disclosure in the case of unaudited
statements.
(ii) Since December 31, 1996, no event has occurred or circumstance
arisen that, individually or taken together with all other facts,
circumstances and events (described in any paragraph of Section 5.04 or
otherwise), is reasonably likely to have a Material Adverse Effect with
respect to it.
(h) Litigation; Regulatory Action. (i) Other than as set forth in its
Regulatory Documents filed on or before the date hereof, no litigation, claim or
other proceeding before any Governmental Authority is pending against Ahmanson
or any of its Subsidiaries and, to the best of Ahmanson's knowledge, no such
litigation, claim or other proceeding has been threatened.
(ii) Neither Ahmanson nor any of its Subsidiaries or properties is
a party to or is subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a
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commitment letter or similar submission to, or extraordinary supervisory
letter from a Regulatory Authority, nor has Ahmanson or any of its
Subsidiaries been advised by a Regulatory Authority that such agency is
contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, commitment letter, supervisory
letter or similar submission.
(i) Compliance with Laws. Ahmanson and each of its Subsidiaries:
(i) is in compliance with all applicable federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders
or decrees applicable thereto or to the employees conducting such
businesses, including, without limitation, the Equal Credit Opportunity
Act, the Fair Housing Act, the Community Reinvestment Act, the Home
Mortgage Disclosure Act and all other applicable fair lending laws and
other laws relating to discriminatory business practices;
(ii) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and registrations
with, all Governmental Authorities that are required in order to permit
them to conduct their businesses substantially as presently conducted;
all such permits, licenses, certificates of authority, orders and
approvals are in full force and effect and, to the best of its
knowledge, no suspension or cancellation of any of them is threatened;
and
(iii) has received, since December 31, 1996, no notification or
communication from any Governmental Authority (A) asserting that
Ahmanson or any of its Subsidiaries is not in compliance with any of the
statues, regulations, or ordinances which such Governmental Authority
enforces or (B) threatening to revoke any license, franchise, permit, or
governmental authorization (nor, to Ahmanson's knowledge, do any grounds
for any of the foregoing exist).
(j) No Brokers. No action has been taken by Ahmanson that would give
rise to any valid claim against any party hereto for a brokerage
commission, finder's fee or other like payment with respect to the
transactions contemplated by this Agreement, excluding a fee to be paid to
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
(k) Tax Matters. As of the date hereof, neither Ahmanson nor any of
its Subsidiaries has any reason to believe that any conditions exist that
might prevent or impede the Merger from qualifying as a reorganization
within the meaning of Section 368 of the Code, or otherwise prevent the
conditions in Section 7.03 from being met.
(l) Disclosure. The representations and warranties contained in this
Section 5.04 do not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements and
information contained in this Section 5.04 not misleading.
ARTICLE VI
COVENANTS
6.01 Reasonable Best Efforts. Subject to the terms and conditions of this
Agreement, each of Coast and Ahmanson agrees to use its reasonable best efforts
in good faith to take, or cause to be taken, all actions, and to do, or cause to
be done, all things necessary, proper or desirable, or advisable under
applicable laws, so as to permit consummation of the Merger as promptly as
practicable and otherwise to enable consummation of the transactions
contemplated hereby and shall cooperate fully with the other party hereto to
that end.
6.02 Stockholder Approval. Coast agrees to take in accordance with
applicable law and its certificate of incorporation and by-laws all action
necessary to convene a meeting of its stockholders to consider and vote upon the
approval and adoption of this Agreement and the transactions contemplated hereby
(including the approval of the establishment of the CPR Trust, the engagement of
the Litigation Trustees (including the terms of their engagement) and the terms
of the Commitment and the rights of holders of Trust Certificates) and any other
matters required to be approved by Coast's stockholders for consummation of the
Merger (including any adjournment or postponement, the "Coast Meeting"), as
promptly as practicable after the
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Registration Statements are declared effective. Subject to the proviso in the
first sentence of Section 6.06, the Coast Board shall recommend such approval,
and Coast shall take all reasonable, lawful action to solicit such approval by
its stockholders.
6.03 Registration Statements. (a) Ahmanson agrees to prepare a registration
statement on Form S-4 or other applicable form (the "Ahmanson Registration
Statement") to be filed by Ahmanson with the SEC in connection with the issuance
of Ahmanson Common Stock in the Merger (including the proxy statement and
prospectus and other proxy solicitation materials of Coast constituting a part
thereof (the "Proxy Statement") and all related documents). Coast agrees to
cooperate, and to cause its Subsidiaries to cooperate, with Ahmanson, its
counsel and its accountants, in the preparation of the Ahmanson Registration
Statement and the Proxy Statement; and Coast agrees to file the Proxy Statement
in preliminary form with the SEC as promptly as reasonably practicable, and
Ahmanson agrees to file the Ahmanson Registration Statement with the SEC as soon
as reasonably practicable after any SEC comments with respect to the preliminary
Proxy Statement are resolved. Each of Coast and Ahmanson agrees to use all
reasonable efforts to cause the Ahmanson Registration Statement to be declared
effective under the Securities Act as promptly as reasonably practicable after
filing thereof. Ahmanson also agrees to use all reasonable efforts to obtain all
necessary state securities law or "Blue Sky" permits and approvals required to
carry out the transactions contemplated by this Agreement. Coast agrees to
furnish to Ahmanson all information concerning Coast, its Subsidiaries,
officers, directors and stockholders as may be reasonably requested in
connection with the foregoing. Coast agrees to prepare a registration statement
on Form S-1 or other applicable form (the "CPR Trust Registration Statement"
and, together with the Ahmanson Registration Statement, the "Registration
Statements") to be filed by the CPR Trust with the SEC in connection with the
distribution of the CPR Certificates (including the prospectus constituting a
part thereof (the "CPR Prospectus") and all related documents). Coast agrees to
cause the CPR Trust Registration Statement to be filed with the SEC as soon as
reasonably practicable after the date hereof. Coast agrees to use all reasonable
efforts to cause the CPR Trust Registration Statement to be declared effective
under the Securities Act as promptly as reasonably practicable after filing
thereof and to cause the Trust Agreement to be qualified under the Trust
Indenture Act. Coast also agrees to use all reasonable efforts to obtain all
necessary state securities law or "Blue Sky" permits and approvals required to
carry out the distribution of the CPR Certificates by Coast. Ahmanson agrees to
furnish to Coast all information concerning Ahmanson, its Subsidiaries,
officers, directors and stockholders as may be reasonably requested in
connection with the foregoing.
(b) Each of Coast and Ahmanson agrees, as to itself and its
Subsidiaries, that none of the information supplied or to be supplied by it
for inclusion or incorporation by reference in the Registration Statements
will, at the time the Registration Statements and each amendment or
supplement thereto, if any, becomes effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, the Proxy Statement and any amendment or
supplement thereto will, at the date of mailing to stockholders and at the
time of the Coast Meeting contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or any statement
which, in the light of the circumstances under which such statement is
made, will be false or misleading with respect to any material fact, or
which will omit to state any material fact necessary in order to make the
statements therein not false or misleading or necessary to correct any
statement in any earlier statement in the Proxy Statement or any amendment
or supplement thereto and the CPR Prospectus and any amendment or
supplement thereto will, as of its date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or any
statement which, in the light of the circumstances under which such
statement is made, will be false or misleading with respect to any material
fact, or which will omit to state any material fact necessary in order to
make the statements therein not false or misleading or necessary to correct
any statement in any earlier statement in the CPR Prospectus or any
amendment or supplement thereto. Each of Coast and Ahmanson further agrees
that if it shall become aware prior to the Effective Date of any
information furnished by it that would cause any of the statements in the
Proxy Statement, CPR Prospectus, CPR Trust Registration Statement or
Ahmanson Registration Statement to be false or misleading with respect to
any material fact, or to omit
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to state any material fact necessary to make the statements therein not
false or misleading, to promptly inform the other party thereof and to take
the necessary steps to correct the Proxy Statement, CPR Prospectus, CPR
Trust Registration Statement or the Ahmanson Registration Statement.
(c) Each of Ahmanson and Coast agrees to advise the other party,
promptly after Ahmanson or Coast, as the case may be, receives notice
thereof, of the time when the Ahmanson Registration Statement or the CPR
Trust Registration Statement, as the case may be, has become effective or
any supplement or amendment has been filed, of the issuance of any stop
order or the suspension of the qualification of Ahmanson Common Stock or
the CPR Certificates as the case may be, for offering or sale in any
jurisdiction, of the initiation or threat of any proceeding for any such
purpose, or of any request by the SEC for the amendment or supplement of
the Ahmanson Registration Statement or the CPR Trust Registration
Statement, as the case may be, or for additional information.
6.04 Press Releases. Each of Coast and Ahmanson agrees that it will not,
without prior consultation with the other party, issue any press release or
written statement for general circulation relating to the transactions
contemplated hereby, except as otherwise required by applicable law or
regulation or NYSE rules. Each of Ahmanson and Coast will agree upon the joint
initial press release made with respect to the transactions contemplated hereby.
6.05 Access; Information. (a) Each of Coast and Ahmanson agrees that upon
reasonable notice and subject to applicable laws relating to the exchange of
information, it shall afford the other party and the other party's officers,
employees, counsel, accountants and other authorized representatives, such
access during normal business hours throughout the period prior to the Effective
Time to the books, records (including, without limitation, tax returns and work
papers of independent auditors), properties, personnel and to such other
information as any party may reasonably request and, during such period, it
shall furnish promptly to such other party (i) a copy of each material report,
schedule and other document filed by it pursuant to the requirements of federal
or state securities or banking laws, and (ii) all other information concerning
the business, properties and personnel of it as the other may reasonably
request.
(b) Each agrees that it will not, and will cause its representatives
not to, use any information obtained pursuant to this Section 6.05 (as well
as any other information obtained prior to the date hereof in connection
with the entering into of this Agreement) for any purpose unrelated to the
consummation of the transactions contemplated by this Agreement. Subject to
the requirements of law, each party will keep confidential, and will cause
its representatives to keep confidential, all information and documents
obtained pursuant to this Section 6.05 (as well as any other information
obtained prior to the date hereof in connection with the entering into of
this Agreement) unless such information (i) was already known to such
party, (ii) becomes available to such party from other sources not known by
such party to be bound by a confidentiality obligation, (iii) is disclosed
with the prior written approval of the party to which such information
pertains or (iv) is or becomes readily ascertainable from published
information or trade sources. In the event that this Agreement is
terminated or the transactions contemplated by this Agreement shall
otherwise fail to be consummated, each party shall promptly cause all
copies of documents or extracts thereof containing information and data as
to another party hereto to be returned to the party which furnished the
same (or confirm in writing that all such copies have been destroyed). No
investigation by either party of the business and affairs of the other
shall affect or be deemed to modify or waive any representation, warranty,
covenant or agreement in this Agreement, or the conditions to either
party's obligation to consummate the transactions contemplated by this
Agreement.
(c) Except as contemplated by this Agreement and following termination
of this Agreement, each party hereto agrees that for two years from
September 18, 1997 it (and its affiliates) will not, alone or with others,
in any manner, (a) acquire, agree to acquire, or make any offer or proposal
(other than a confidential request to the Chairman of the Board for
permission to make an offer or proposal) to acquire beneficial ownership of
any securities or material properties of the other party (and its
Subsidiaries), unless such acquisition or agreement or the making of such
offer or proposal, shall have been expressly first approved by the other
party's Board of Directors or (b) solicit proxies from stockholders of the
other party.
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6.06 Acquisition Proposals. Coast agrees that it shall not, and shall
cause its Subsidiaries and its and its Subsidiaries' officers, directors,
agents, advisors and affiliates not to, solicit or encourage inquiries or
proposals with respect to, or engage in any negotiations concerning, or provide
any confidential information to, or have any discussions with, any person
relating to, any Acquisition Proposal or waive any provision of or amend the
terms of the Coast Rights Agreement in respect of an Acquisition Proposal;
provided, however, that nothing in this Agreement shall (x) require the Coast
Board to recommend stockholder approval of the Merger following an Acquisition
Proposal, (y) prevent Coast or the Coast Board from (i) engaging in any
discussions or negotiations with, or providing any information to, any Person in
response to an unsolicited bona fide written Acquisition Proposal by any such
Person or (ii) recommending such an unsolicited bona fide written Acquisition
Proposal to the holders of Coast Common Stock or (z) prevent Coast from waiving
any provision of or amending the terms of the Coast Rights Agreement in respect
of an Acquisition Proposal, if and only if, with respect to the actions
described in clause (x), (y) or (z), as applicable, (A) the Coast Board
concludes in good faith that the Acquisition Proposal, if consummated, would
result in a transaction more favorable to holders of Coast Common Stock than the
transaction contemplated by this Agreement; (B) the Coast Board determines in
good faith based upon the advice of outside counsel that such action is legally
necessary for it to act in a manner consistent with its fiduciary duties under
applicable law; and (C) prior to providing any information or data to any person
or entering into discussions or negotiations with any Person, the Coast Board
notifies Ahmanson immediately of such inquiries, proposals or offers received
by, any such information requested from, or any such discussions or negotiations
sought to be initiated or continued with Coast or any Subsidiary thereof. Coast
shall immediately cease and cause to be terminated any activities, discussions
or negotiations conducted prior to the date of this Agreement with any parties
other than Ahmanson with respect to any of the foregoing and shall use its
reasonable best efforts to enforce any confidentiality or similar agreement
relating to an Acquisition Proposal. Coast shall promptly (within 24 hours)
advise Ahmanson following the receipt by Coast of any Acquisition Proposal and
the substance thereof (including the identity of the person making such
Acquisition Proposal), and advise Ahmanson of any developments with respect to
such Acquisition Proposal immediately upon the occurrence thereof.
6.07 Affiliate Agreements. (a) Not later than the 15th day prior to the
mailing of the Proxy Statement, Coast shall deliver to Ahmanson a schedule of
each person that, to the best of its knowledge, is or is reasonably likely to
be, as of the date of the Coast Meeting, deemed to be an "affiliate" of Coast
(each, a "Coast Affiliate") as that term is used in Rule 145 under the
Securities Act or SEC Accounting Series Releases 130 and 135.
(b) Coast shall use its reasonable best efforts to cause each person
who may be deemed to be a Coast Affiliate to execute and deliver to
Ahmanson on or before the date of mailing of the Proxy Statement an
agreement in the form attached hereto as Exhibit A.
6.08 Takeover Laws. No party hereto shall take any action that would cause
the transactions contemplated by this Agreement to be subject to requirements
imposed by any Takeover Law and each of them shall take all necessary steps
within its control to exempt (or ensure the continued exemption of) the
transactions contemplated by this Agreement from, or if necessary challenge the
validity or applicability of, any applicable Takeover Law, as now or hereafter
in effect.
6.09 Certain Policies. Prior to the Effective Date, Coast shall,
consistent with generally accepted accounting principles and on a basis mutually
satisfactory to it and Ahmanson, modify and change its loan, litigation and real
estate valuation policies and practices (including loan classifications and
levels of reserves) so as to be applied on a basis that is consistent with that
of Ahmanson; provided, however, that Coast shall not be obligated to take any
such action pursuant to this Section 6.09 unless and until Ahmanson acknowledges
that all conditions to its obligation to consummate the Merger have been
satisfied.
6.10 NYSE Listing. Ahmanson agrees to use its reasonable best efforts to
list, prior to the Effective Date, on the NYSE, subject to official notice of
issuance, the shares of Ahmanson Common Stock to be issued to the holders of
Coast Common Stock in the Merger.
6.11 Regulatory Applications. (a) Ahmanson and Coast and their respective
Subsidiaries shall cooperate and use their respective reasonable best efforts to
prepare all documentation, to effect all filings and
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to obtain all permits, consents, approvals and authorizations of all third
parties and Governmental Authorities necessary to consummate the transactions
contemplated by this Agreement. Each of Ahmanson and Coast shall have the right
to review in advance, and to the extent practicable each will consult with the
other, in each case subject to applicable laws relating to the exchange of
information, with respect to all material written information submitted to any
third party or any Governmental Authority in connection with the transactions
contemplated by this Agreement. In exercising the foregoing right, each of the
parties hereto agrees to act reasonably and as promptly as practicable. Each
party hereto agrees that it will consult with the other party hereto with
respect to the obtaining of all material permits, consents, approvals and
authorizations of all third parties and Governmental Authorities necessary or
advisable to consummate the transactions contemplated by this Agreement and each
party will keep the other party appraised of the status of material matters
relating to completion of the transactions contemplated hereby.
(b) Each party agrees, upon request, to furnish the other party with
all information concerning itself, its Subsidiaries, directors, officers
and stockholders and such other matters as may be reasonably necessary or
advisable in connection with any filing, notice or application made by or
on behalf of such other party or any of its Subsidiaries to any third party
or Governmental Authority.
6.12 Indemnification. (a) Following the Effective Date, Ahmanson shall
indemnify, defend and hold harmless the present directors and officers of Coast
and its Subsidiaries (each, an "Indemnified Party") against all costs or
expenses (including reasonable attorneys' fees), judgments, fines, losses,
claims, damages or liabilities (collectively, "Costs") as incurred, in
connection with any claim, action, suit, proceeding or investigation, whether
civil, criminal, administrative or investigative, arising out of actions or
omissions occurring at or prior to the Effective Time (including, without
limitation, the transactions contemplated by this Agreement) to the fullest
extent that Coast is permitted to indemnify (and advance expenses to) its
directors and officers under the laws of the State of Delaware, the Coast
Certificate and the Coast By-Laws as in effect on the date hereof; provided that
any determination required to be made with respect to whether an officer's or
director's conduct complies with the standards set forth under Delaware law, the
Coast Certificate and the Coast By-Laws shall be made by independent counsel
(which shall not be counsel that provides material services to Ahmanson)
selected by Ahmanson and reasonably acceptable to such officer or director.
(b) For a period of four years from the Effective Time, Ahmanson shall
use its reasonable best efforts to provide that portion of director's and
officer's liability insurance that serves to reimburse the present and
former officers and directors of Coast or any of its Subsidiaries
(determined as of the Effective Time) (as opposed to Coast) with respect to
claims against such directors and officers arising from facts or events
occurring at or prior to the Effective Time (including the transactions
contemplated by this Agreement) which insurance shall contain at least the
same coverage and amounts, and contain terms and conditions no less
advantageous, as that coverage currently provided by Coast; provided,
however, that in no event shall Ahmanson be required to expend more than
200% of the Previously Disclosed current amount expended by Coast (the
"Insurance Amount") to maintain or procure such directors and officers
insurance coverage; provided, further, that if Ahmanson is unable to
maintain or obtain the insurance called for by this Section 6.12(b),
Ahmanson shall use its reasonable best efforts to obtain as much comparable
insurance as is available for the Insurance Amount; provided, further, that
officers and directors of Coast or any Subsidiary may be required to make
application and provide customary representations and warranties to
Ahmanson's insurance carrier for the purpose of obtaining such insurance.
(c) Any Indemnified Party wishing to claim indemnification under
Section 6.12(a), upon learning of any claim, action, suit, proceeding or
investigation described above, shall promptly notify Ahmanson thereof;
provided that the failure so to notify shall not affect the obligations of
Ahmanson under Section 6.12(a) unless and to the extent that Ahmanson is
actually prejudiced as a result of such failure.
(d) If Ahmanson or any of its successors or assigns shall consolidate
with or merge into any other entity and shall not be the continuing or
surviving entity of such consolidation or merger or shall transfer all or
substantially all of its assets to any other entity, then and in each case,
Ahmanson shall cause proper
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provision to be made so that the successors and assigns of Ahmanson shall
assume the obligations set forth in this Section 6.12.
(e) The provisions of this Section 6.12 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party and his or
her heirs and representatives.
6.13 Benefit Plan; Retention Bonuses. (a) Ahmanson shall, from and after
the Effective Time, (i) honor in accordance with their terms all employment or
severance agreements entered into prior to the date hereof and Previously
Disclosed, (ii) provide former employees of Coast who remain as employees of
Ahmanson with employee benefit plans no less favorable in the aggregate than
those provided to similarly situated employees of Ahmanson, (iii) provide
employees of Coast who remain as employees of Ahmanson credit for years of
service with Coast or any of its subsidiaries prior to the Effective Time for
the purpose of eligibility and vesting and (iv) cause any and all pre-existing
condition limitations (to the extent such limitations did not apply to a
pre-existing condition under comparable Compensation and Benefit Plans) and
eligibility waiting periods under group health plans of Ahmanson to be waived
with respect to former employees of Coast who remain as employees of Ahmanson
(and their eligible dependents) and who become participants in such group health
plans. Nothing in this Agreement shall limit or restrict the right of Ahmanson
to (A) terminate the employment of any employee at any time for any reason
whatsoever, with or without cause, and (B) modify, amend or terminate any
employee benefit or other plans of Ahmanson. Ahmanson acknowledges that the
Merger constitutes a change in control under the terms of the plans and
agreements listed in Coast's Disclosure Schedule under the heading "Disclosures
with respect to Section 5.03(m)(i): Employee Benefit Plans."
(b) Prior to the Effective Time, Coast may agree to pay up to
$2,000,000 as retention bonuses, payable upon the day 180 days following
the Effective Date or on such earlier day as Ahmanson may determine or upon
the earlier termination of the applicable employee by Ahmanson without
cause, and to be allocated primarily among non-executive employees of
Coast. The allocation of all such payments shall be determined in
consultation with Ahmanson and shall be subject to the approval of Ahmanson
in its sole discretion.
6.14 Accountants' Letters. Each of Coast and Ahmanson shall use its
reasonable best efforts to cause to be delivered to the other party, and to
Ahmanson's directors and officers who sign the Registration Statement, a letter
of KPMG Peat Marwick LLP, independent auditors for each of Coast and Ahmanson,
dated (i) the date on which the Registration Statement shall become effective
and (ii) a date shortly prior to the Effective Date, and addressed to such other
party, and such directors and officers, in form and substance customary for
"comfort" letters delivered by independent accountants in accordance with
Statement of Accounting Standards No. 72.
6.15 Notification of Certain Matters. Each of Coast and Ahmanson shall
give prompt notice to the other of any fact, event or circumstance known to it
that (i) is reasonably likely, individually or taken together with all other
facts, events and circumstances known to it, to result in any Material Adverse
Effect with respect to it or (ii) would cause or constitute a material breach of
any of its representations, warranties, covenants or agreements contained
herein.
6.16 Officers and Directors. Ahmanson agrees to cause Mr. Ray Martin to be
elected or appointed as a director of Ahmanson at, or as promptly as practicable
after, the Effective Time. Coast shall cause such executive officers and
directors of Coast Federal as Ahmanson shall specify in writing to cease to be
executive officers and directors of Coast Federal prior to the Effective Date.
6.17 CPR Trust. Coast agrees to take all actions necessary to cause the
CPR Trust to be formed. In addition, Coast agrees to take all actions necessary
to cause the issuance of the CPR Certificates by the CPR Trust to Coast and to
distribute such CPR Certificates to the stockholders of Coast with a record date
and payment date on the Effective Date immediately prior to the Effective Time;
provided, however, that Coast shall not be required to cause the CPR Trust to
issue such CPR Certificates or be required to so distribute the CPR Certificates
until all conditions to the Merger, other than such distribution, have been
satisfied or waived. Except as set forth in this Section, the terms of the CPR
Trust and the CPR Certificates shall be as set forth
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<PAGE> 144
in Annex I. Coast agrees to cause the CPR Trust immediately prior to the
Effective Time to deliver to Coast a number of CPR Certificates sufficient for
the delivery of CPR Certificates required pursuant to Section 3.06. Ahmanson
agrees to return to the CPR Trust any CPR Certificates with respect to
Replacement Options that expire prior to exercise.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
7.01 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each of Ahmanson and Coast to consummate the Merger is
subject to the fulfillment or written waiver by Ahmanson and Coast prior to the
Effective Time of each of the following conditions:
(a) Stockholder Approvals. This Agreement and the transactions
contemplated hereby (including the approval of the establishment of the CPR
Trust, the engagement of the Litigation Trustees (including their terms of
engagement) and the terms of the Commitment and the rights of holders of
Trust Certificates) and the Merger shall have been duly adopted by the
requisite vote of the stockholders of Coast.
(b) Regulatory Approvals. All regulatory approvals required to
consummate the transactions contemplated hereby, shall have been obtained
and shall remain in full force and effect and all statutory waiting periods
in respect thereof shall have expired and no such approvals shall contain
any conditions, restrictions or requirements which would reasonably be
expected to (i) following the Effective Time, have a Material Adverse
Effect on the Surviving Corporation and its Subsidiaries taken as a whole
or (ii) reduce the benefits of the transactions contemplated hereby to such
a degree that Ahmanson would not have entered into this Agreement had such
conditions, restrictions or requirements been known at the date hereof.
(c) No Injunction. No Governmental Authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any statute,
rule, regulation, judgment, decree, injunction or other order (whether
temporary, preliminary or permanent) which is in effect and prohibits
consummation of the transactions contemplated by this Agreement.
(d) Registration Statements; Trust Indenture Act. The Registration
Statements shall have become effective under the Securities Act and no stop
order suspending the effectiveness of the Registration Statements shall
have been issued and be in effect and no proceedings for that purpose shall
have been initiated or threatened by the SEC and not withdrawn. If
required, the Trust Agreement shall have been duly qualified under the
Trust Indenture Act.
(e) Listing. The shares of Ahmanson Common Stock to be issued in the
Merger shall have been approved for listing on the NYSE, subject to
official notice of issuance.
7.02 Conditions to Obligation of Coast. The obligation of Coast to
consummate the Merger is also subject to the fulfillment or written waiver by
Coast prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. Subject to Sections 5.01 and 5.02,
the representations and warranties of Ahmanson set forth in this Agreement
shall be true and correct as of the date of this Agreement and as of the
Effective Date as though made on and as of the Effective Date (except that
representations and warranties that by their terms speak as of the date of
this Agreement or some other date shall be true and correct as of such
date), and Coast shall have received a certificate, dated the Effective
Date, signed on behalf of Ahmanson by the Chief Executive Officer and the
Chief Financial Officer of Ahmanson to such effect.
(b) Performance of Obligations of Ahmanson. Ahmanson shall have
performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Effective Time, and Coast
shall have received a certificate, dated the Effective Date, signed on
behalf of Ahmanson by the Chief Executive Officer and the Chief Financial
Officer of Ahmanson to such effect.
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<PAGE> 145
(c) Opinion of Coast's Counsel. Coast shall have received an opinion
of Cleary, Gottlieb, Steen & Hamilton, special counsel to Coast, dated the
Effective Date, to the effect that, on the basis of facts, representations
and assumptions set forth in such opinion, (A) the Merger constitutes a
"reorganization" within the meaning of Section 368 of the Code that,
accordingly, (i) no gain or loss will be recognized by Coast as a result of
the Merger and (ii) no gain or loss will be recognized by a stockholder of
Coast who receives shares of Ahmanson Common Stock in exchange for shares
of Coast Common Stock, except (x) with respect to cash received in lieu of
fractional share interests and (y) for gain that may be recognized in an
amount not exceeding the fair market value at the time of the Merger of
such stockholder's CPR Certificates (which represent such stockholder's
share of the Commitment Amount), and (B) the CPR Trust will not itself be
subject to any material federal income taxes. In rendering its opinion,
such counsel may require and rely upon representations contained in letters
from Coast, Ahmanson and stockholders of Coast. The foregoing opinion will
not apply to stockholders or persons receiving Ahmanson Common Stock or CPR
Certificates as compensation.
(d) Accountants' Letters. Coast and Mr. Martin shall have received the
letters referred to in Section 6.14 from KPMG Peat Marwick LLP, Ahmanson's
independent auditors.
(e) Commitment. Ahmanson shall have executed and delivered the
Commitment and made the transfer to the CPR Trust with respect to the
Expense Fund.
7.03 Conditions to Obligation of Ahmanson. The obligation of Ahmanson to
consummate the Merger is also subject to the fulfillment or written waiver by
Ahmanson prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
of Coast set forth in this Agreement shall be true and correct as of the
date of this Agreement and as of the Effective Date as though made on and
as of the Effective Date (except that representations and warranties that
by their terms speak as of the date of this Agreement or some other date
shall be true and correct as of such date) and Ahmanson shall have received
a certificate, dated the Effective Date, signed on behalf of Coast by the
Chief Executive Officer and the Chief Financial Officer of Coast to such
effect.
(b) Performance of Obligations of Coast. Coast shall have performed in
all material respects all obligations required to be performed by it under
this Agreement at or prior to the Effective Time, and Ahmanson shall have
received a certificate, dated the Effective Date, signed on behalf of Coast
by the Chief Executive Officer and the Chief Financial Officer of Coast to
such effect.
(c) Opinion of Ahmanson's Counsel. Ahmanson shall have received an
opinion of Sullivan & Cromwell, special counsel to Ahmanson, dated the
Effective Date, to the effect that, on the basis of facts, representations
and assumptions set forth in such opinion, the Merger constitutes a
reorganization under Section 368(a)(1)(A) of the Code and no gain or income
will be recognized by Ahmanson in the Merger. In rendering its opinion,
Sullivan & Cromwell may require and rely upon representations contained in
letters from Coast, Ahmanson and stockholders of Coast.
(d) Accountants' Letters. Ahmanson and its directors and officers who
sign the Registration Statement shall have received the letters referred to
in Section 6.14 from KPMG Peat Marwick LLP, Coast's independent auditors.
(e) Dissenters' Shares. Holders of no more than 5% of the outstanding
shares of Coast Common Stock shall have given notice that their shares of
Coast Common Stock be treated as Dissenters' Shares.
(f) CPR Trust. Coast shall have established the CPR Trust and shall
have caused the CPR Trust to issue the CPR Certificates to Coast and shall
have distributed the CPR Certificates to the stockholders of Coast as
required by Section 6.17 hereof.
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<PAGE> 146
ARTICLE VIII
TERMINATION
8.01 Termination. This Agreement may be terminated, and the Acquisition
may be abandoned:
(a) Mutual Consent. At any time prior to the Effective Time, by the
mutual consent of Ahmanson and Coast, if the Board of Directors of each so
determines by vote of a majority of the members of its entire Board.
(b) Breach. At any time prior to the Effective Time, by Ahmanson or
Coast, if its Board of Directors so determines by vote of a majority of the
members of its entire Board, in the event of either: (i) a breach by the
other party of any representation or warranty contained herein (subject if
applicable to the standard set forth in Section 5.02), which breach cannot
be or has not been cured within 20 calendar days after the giving of
written notice to the breaching party of such breach; or (ii) a breach by
the other party of any of the covenants or agreements contained herein,
which breach cannot be or has not been cured within 20 calendar days after
the giving of written notice to the breaching party of such breach,
provided that such breach (whether under (i) or (ii)) would be reasonably
likely, individually or in the aggregate with other breaches, to result in
a Material Adverse Effect.
(c) Delay. At any time prior to the Effective Time, by Ahmanson or
Coast, if its Board of Directors so determines by vote of a majority of the
members of its entire Board, in the event that the Merger is not
consummated by June 30, 1998, except to the extent that the failure of the
Merger then to be consummated arises out of or results from the knowing
action or inaction of the party seeking to terminate pursuant to this
Section 8.01(c), which action or inaction is in violation of its
obligations under this Agreement.
(d) No Approval. By Coast or Ahmanson, if its Board of Directors so
determines by a vote of a majority of the members of its entire Board, in
the event (i) the approval of any Governmental Authority required for
consummation of the Merger and the other transactions contemplated by this
Agreement shall have been denied by final nonappealable action of such
Governmental Authority or (ii) the stockholder approval required by Section
7.01(a) herein is not obtained at the Coast Meeting.
(e) Failure to Recommend, Etc. At any time prior to the Coast Meeting,
by Ahmanson if the Coast Board shall have failed to make its recommendation
referred to in Section 6.02, withdrawn such recommendation or modified or
changed such recommendation in a manner adverse in any respect to the
interests of Ahmanson.
8.02 Effect of Termination and Abandonment. (a) In the event of
termination of this Agreement and the abandonment of the Merger pursuant to this
Article VIII, subject to the provisions of Section 8.02(b), no party to this
Agreement shall have any liability or further obligation to any other party
hereunder except that termination will not relieve a breaching party from
liability for any breach of this Agreement giving rise to such termination.
(b) If (a) this Agreement shall be terminated (i) by Ahmanson pursuant
to Section 8.01(b) or Section 8.01(e) and, at the time of the occurrence of
the circumstance permitting termination pursuant to such Section, there
shall exist an Acquisition Proposal with respect to Coast or any of its
Subsidiaries, or (ii) by Coast pursuant to Section 8.01(d)(ii) and, at the
time of the occurrence of the circumstance permitting termination pursuant
to such Section, there shall exist an Acquisition Proposal with respect to
Coast or any of its Subsidiaries, and (b) within 12 months after any such
termination Coast or any of its Subsidiaries enters into a definitive
agreement with respect to an Acquisition Proposal, Coast shall promptly pay
to Ahmanson a termination fee equal to $35 million.
A-28
<PAGE> 147
ARTICLE IX
MISCELLANEOUS
9.01 Survival. No representations, warranties, agreements and covenants
contained in this Agreement shall survive the Effective Time (other than Section
6.12, the penultimate sentence of Section 6.17 and this Article IX which shall
survive the Effective Time).
9.02 Waiver; Amendment. Prior to the Effective Time, any provision of this
Agreement may be (i) waived by the party benefitted by the provision, or (ii)
amended or modified at any time, by an agreement in writing between the parties
hereto executed in the same manner as this Agreement, except that after the
Coast Meeting, this Agreement may not be amended if it would violate the DGCL or
reduce the consideration to be received by Coast stockholders in the Merger.
9.03 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original.
9.04 Governing Law. This Agreement shall be governed by, and interpreted
in accordance with, the laws of the State of California applicable to contracts
made and to be performed entirely within such State (except to the extent that
mandatory provisions of Federal law or of the DGCL are applicable).
9.05 Expenses. Each party hereto will bear all expenses incurred by it in
connection with this Agreement and the transactions contemplated hereby, except
that printing expenses and SEC fees shall be shared equally between Coast and
Ahmanson. Coast's expenses in connection with the transactions contemplated by
this Agreement, including without limitation fees of legal counsel and financial
advisors (but excluding expenses of any litigation relating to the transactions
contemplated by this Agreement, printing and mailing expenses, SEC and Blue Sky
filing fees and accountants' fees) shall not exceed the amounts set forth in
paragraph 9.05 of Coast's Disclosure Schedule.
9.06 Notices. All notices, requests and other communications hereunder to
a party shall be in writing and shall be deemed given if personally delivered,
telecopied (with confirmation) or mailed by registered or certified mail (return
receipt requested) to such party at its address set forth below or such other
address as such party may specify by notice to the parties hereto.
If to Coast, to:
Coast Savings Financial, Inc.
1000 Wilshire Boulevard
Los Angeles, California 90017-2457
Attention: Ray Martin
Facsimile: (213) 688-0837
With copies to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Victor Lewkow
Facsimile: (212) 225-3999
and
Mayer, Brown & Platt
350 South Grand Avenue
Los Angeles, California 90017-1503
Attention: James R. Walther
Facsimile: (213) 625-0248
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<PAGE> 148
If to Ahmanson, to:
H. F. Ahmanson & Company
4900 Rivergrade Road
Irwindale, California 91706
Attention: Madeleine Kleiner
Facsimile: (626) 814-6750
With a copy to:
Sullivan & Cromwell
444 S. Flower Street, 12th Floor
Los Angeles, California 90071
Attention: Alison S. Ressler
Facsimile: (213) 683-0457
9.07 Entire Understanding; No Third Party Beneficiaries. This Agreement,
including the Exhibits, Schedules and Annexes to this Agreement represents the
entire understanding of the parties hereto with reference to the transactions
contemplated hereby and thereby and this Agreement supersedes any and all other
oral or written agreements heretofore made prior to October 5, 1997. Except for
Section 6.12, nothing in this Agreement expressed or implied is intended to
confer upon any person, other than the parties hereto or their respective
successors, any rights, remedies, obligations or liabilities under or by reason
of this Agreement.
9.08 Interpretation; Effect. When a reference is made in this Agreement to
Sections, Exhibits, Schedules or Annexes, such reference shall be to a Section
of, or Exhibit, Schedule or Annex to, this Agreement unless otherwise indicated.
The table of contents and headings contained in this Agreement are for reference
purposes only and are not part of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." No provision of this Agreement shall
be construed to require Coast, Ahmanson or any of their respective Subsidiaries,
affiliates or directors to take any action or omit to take any action which
action or omission would violate applicable law (whether statutory or common
law), rule or regulation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in counterparts by their duly authorized officers, all as of the day
and year first above written.
COAST SAVINGS FINANCIAL, INC.
By: /s/ RAY MARTIN
------------------------------------
Name: Ray Martin
Title: Chairman and Chief Executive
Officer
H. F. AHMANSON & COMPANY
By: /s/ MADELEINE A. KLEINER
------------------------------------
Name: Madeleine A. Kleiner
Title: Senior Executive Vice
President and
Chief Administrative Officer
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<PAGE> 149
APPENDIX B
================================================================================
AMENDED
AND
RESTATED DECLARATION
OF TRUST
COAST FEDERAL LITIGATION
CONTINGENT PAYMENT RIGHTS TRUST
DATED AS OF
================================================================================
<PAGE> 150
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.............................................................. B-2
ARTICLE II
ORGANIZATION
SECTION 2.1 Name..................................................................... B-6
SECTION 2.2 Office................................................................... B-6
SECTION 2.3 Purposes and Powers of the Trust......................................... B-6
SECTION 2.4 Title to Property of the Trust........................................... B-7
SECTION 2.5 Mergers.................................................................. B-7
ARTICLE III
TRUSTEES
SECTION 3.1 Authority................................................................ B-8
SECTION 3.2 Number of Trustees....................................................... B-8
SECTION 3.3 Delaware Trustee......................................................... B-8
SECTION 3.4 Institutional Trustee; Eligibility....................................... B-9
SECTION 3.5 Appointment, Removal and Resignation of the Institutional and Delaware
Trustees................................................................. B-9
SECTION 3.6 Vacancies Among Relevant Trustees; Effect of Vacancies................... B-10
SECTION 3.7 The Litigation Trustees.................................................. B-11
SECTION 3.8 Compensation of the Litigation Trustees.................................. B-11
SECTION 3.9 Limitation on Liability of Litigation Trustees........................... B-12
SECTION 3.10 Resignation of a Litigation Trustee...................................... B-12
SECTION 3.11 Appointment of Successor Litigation Trustees............................. B-12
SECTION 3.12 Meetings of the Trustees................................................. B-13
SECTION 3.13 Powers and Duties of the Sponsor, the Litigation Trustees and the
Institutional Trustee.................................................... B-13
SECTION 3.14 Certain Duties and Responsibilities of the Trustees...................... B-17
SECTION 3.15 Certain Rights of the Institutional Trustee.............................. B-18
SECTION 3.16 Lists of Holders of CPR Certificates..................................... B-19
SECTION 3.17 Execution of Documents................................................... B-20
SECTION 3.18 Not Responsible for Recitals or Issuance of CPR Certificates............. B-20
SECTION 3.19 Filings with the Commission.............................................. B-20
SECTION 3.20 Default; Notice.......................................................... B-20
ARTICLE IV
PAYMENTS TO HOLDERS
SECTION 4.1 Payment to Holders........................................................ B-20
SECTION 4.2 Timing of Payments........................................................ B-21
SECTION 4.3 Default; Waiver........................................................... B-21
</TABLE>
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<TABLE>
<CAPTION>
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<S> <C>
ARTICLE V
EXPENSES: THE EXPENSE FUND AND THE RETAINED AMOUNT
SECTION 5.1 Expense Fund............................................................. B-21
SECTION 5.2 Return of Expense Fund................................................... B-21
SECTION 5.3 Retained Amount.......................................................... B-21
ARTICLE VI
MANAGEMENT OF THE LITIGATION
SECTION 6.1 Authority of the Litigation Trustees..................................... B-22
SECTION 6.2 Retention of Attorneys, Accountants and Other Professionals.............. B-22
SECTION 6.3 Cooperation by the Sponsor............................................... B-23
ARTICLE VII
ISSUANCE AND DISTRIBUTION OF CPR CERTIFICATES
SECTION 7.1 General Provisions Regarding CPR Certificates............................ B-23
SECTION 7.2 Paying Agent, Transfer Agent and Registrar............................... B-24
SECTION 7.3 Form and Dating.......................................................... B-24
(a) Definitive and Global CPR Certificates......................... B-25
(b) Book-Entry Provisions.......................................... B-25
(c) Definitive CPR Certificates.................................... B-25
SECTION 7.4 Mutilated, Destroyed, Lost or Stolen Certificates........................ B-25
SECTION 7.5 Temporary CPR Certificates............................................... B-25
SECTION 7.6 Issuance of CPR Certificates on the Effective Date....................... B-26
SECTION 7.7 Redemption and Cancellation.............................................. B-26
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust..................................... B-26
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 General.................................................................. B-27
SECTION 9.2 Transfer Procedures...................................................... B-27
(a) Transfer and Exchange of Definitive CPR Certificates........... B-27
(b) Restrictions on Transfer of a Definitive CPR Certificate for a
Beneficial Interest in a Global CPR Certificate................ B-27
(c) Transfer and Exchange of Global CPR Certificates............... B-28
(d) Transfer of a Beneficial Interest in a Global CPR Certificate
for a Definitive CPR Certificate............................... B-28
(e) Definitive CPR Certificates If No Depositary................... B-28
(f) Cancellation or Adjustment of a Global CPR Certificate......... B-28
(g) Obligations with Respect to Transfers and Exchanges of CPR
Certificates................................................... B-29
SECTION 9.3 Deemed CPR Certificate Holders........................................... B-29
SECTION 9.4 Notices to Clearing Agency............................................... B-29
SECTION 9.5 Appointment of Successor Clearing Agency................................. B-29
</TABLE>
ii
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<TABLE>
<CAPTION>
PAGE
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<S> <C>
ARTICLE X
HOLDERS OF CPR CERTIFICATES
SECTION 10.1 Limitations on Rights of Holders......................................... B-29
SECTION 10.2 Limitations on Suits by Holders.......................................... B-30
ARTICLE XI
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 11.1 Liability................................................................ B-31
SECTION 11.2 Exculpation.............................................................. B-31
SECTION 11.3 Fiduciary Duty........................................................... B-32
SECTION 11.4 Indemnification.......................................................... B-32
SECTION 11.5 Outside Businesses....................................................... B-34
SECTION 11.6 Compensation; Fee........................................................ B-34
ARTICLE XII
ACCOUNTING
SECTION 12.1 Fiscal Year.............................................................. B-34
SECTION 12.2 Certain Accounting Matters............................................... B-35
SECTION 12.3 Banking.................................................................. B-35
SECTION 12.4 Withholding.............................................................. B-35
ARTICLE XIII
AMENDMENTS AND MEETINGS
SECTION 13.1 Amendments............................................................... B-35
SECTION 13.2 Meetings of Holders of CPR Certificates; Action by Written Consent....... B-36
ARTICLE XIV
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 14.1 Representations and Warranties of the Institutional Trustee.............. B-37
SECTION 14.2 Representations and Warranties of the Delaware Trustee................... B-38
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.................................................................. B-38
SECTION 15.2 Governing Law............................................................ B-39
SECTION 15.3 Intention of Parties..................................................... B-39
SECTION 15.4 Headings................................................................. B-39
SECTION 15.5 Successors and Assigns................................................... B-40
SECTION 15.6 Partial Enforceability................................................... B-40
SECTION 15.7 Specific Performance..................................................... B-40
SECTION 15.8 Counterparts............................................................. B-40
EXHIBITS AND ANNEXES
EXHIBIT A Form of Commitment Agreement
EXHIBIT B Form of Contingent Payment Right Certificate
EXHIBIT C Board Resolutions
</TABLE>
iii
<PAGE> 153
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
[DATE]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of [date], by the Trustees (as defined herein), the Sponsor (as
defined herein) and by the holders, from time to time, of undivided beneficial
interests in the assets of the Coast Federal Litigation Contingent Payment
Rights Trust (the "Trust") to be issued pursuant to this Declaration;
WHEREAS, the Institutional Trustee (as defined herein), the Delaware
Trustee (as defined herein) and the Sponsor established the Trust, a statutory
business trust under the Delaware Business Trust Act, pursuant to a Declaration
of Trust dated as of January 8, 1998 (the "Original Declaration") and a
Certificate of Trust filed with the Secretary of State of the State of Delaware
on January 8, 1998, for the sole purpose of filing a registration statement
under the Securities Act (as defined herein) with the Securities and Exchange
Commission for the issuance of Contingent Payment Right Certificates;
WHEREAS, the Sponsor and H.F. Ahmanson & Company ("Ahmanson") have entered
into an Amended and Restated Agreement and Plan of Merger (the "Merger
Agreement"), dated as of October 5, 1997, pursuant to which (i) the Sponsor will
merge (the "Merger") with and into Ahmanson on the effective date (the
"Effective Date") and at the effective time (the "Effective Time") of the
Merger, (ii) immediately prior to the Effective Time, the Trust will issue to
the Sponsor CPR Certificates (as defined herein), representing assignable and
transferable undivided beneficial interests in the assets of the Trust, (iii)
upon such issuance, and immediately prior to the Effective Time (and provided
that all other conditions to consummation of the Merger have been satisfied or
waived), the Sponsor will distribute substantially all of the CPR Certificates
to its stockholders and, at the Effective Time, to the holders of its
outstanding stock appreciation rights and performance share awards, and (iv) at
the Effective Time, and effective at the Effective Time, Ahmanson will enter
into a Commitment Agreement (the "Commitment"), substantially in the form
attached hereto as Exhibit A, pursuant to which Ahmanson will be obligated to
pay to the Trust from time to time an aggregate amount equal to the Commitment
Amount (as defined herein);
WHEREAS, the Trust will hold the Commitment and the Litigation Trustees (as
defined herein) will, upon the effectiveness of the Commitment, instruct Coast
Federal (as defined herein) pursuant to the terms of this Declaration as to the
administration of the litigation claims of Coast Federal Bank, Federal Savings
Bank ("Coast Federal"), a wholly-owned subsidiary of the Sponsor, and any of its
successors, in Coast Federal Bank, Federal Savings Bank v. United States, Civil
Action Number 92-466C (Cl. Ct. filing July 9, 1992) or any substitute or
ancillary action, litigation or arbitration with respect to the claims made in
such action (the "Litigation");
WHEREAS, nothing in this Declaration shall be deemed to be or to effect an
assignment (within the meaning of 31 U.S.C. sec. 3727) of the Litigation;
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a statutory business trust under the Business Trust Act (as defined
herein) and that this Declaration constitute the governing instrument of such
statutory business trust, the Trustees declare that all assets contributed to
the Trust will be held in trust for the benefit of the holders, from time to
time, of the CPR Certificates issued
B-1
<PAGE> 154
hereunder representing undivided beneficial interests in the assets of the
Trust, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration, in its entirety, as modified, supplemented or amended
from time to time, and not to any particular Article, Section or
subsection;
(d) all references to "herein" or "hereunder" refer to this
Declaration in its entirety, as modified, supplemented or amended from time
to time, and not to any particular Article, Section or subsection;
(e) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration
unless otherwise specified;
(f) a reference to the singular includes the plural and vice versa;
and
(g) a reference to the masculine includes the feminine and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Ahmanson" has the meaning set forth in the recitals hereof.
"Ahmanson Group" means Ahmanson, Home Savings and, after the Effective
Time, Coast Federal, and any of their respective Affiliates.
"Ahmanson Indemnified Persons" means Ahmanson, Home Savings, and their
respective Affiliates, officers, directors, employees and agents.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial interest in one or more Global CPR
Certificates, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.2.
"Business Day" means any day other than Saturday, Sunday or any other day
on which banking institutions in New York City (in the State of New York), Los
Angeles (in the State of California), or Wilmington (in the State of Delaware)
are permitted or required by any applicable law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code sec. 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as depositary for the
CPR Certificates and in whose name (or in the name of a nominee of that
organization) shall be registered a Global CPR Certificate and which shall
undertake to effect book entry transfers and pledges of the CPR Certificates.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
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"Coast" means Coast Savings Financial, Inc., a Delaware corporation.
"Coast Federal" has the meaning set forth in the recitals hereof.
"Coast Performance Share Awards" has the meaning set forth in Section
7.7(c).
"Coast SARs" has the meaning set forth in Section 7.7(c).
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Commitment" has the meaning set forth in the recitals hereof.
"Commitment Amount" has the meaning set forth in the Commitment.
"Contract Year" has the meaning set forth in Section 3.8(a).
"Corporate Trust Office" means the office of the Institutional Trustee at
which the corporate trust business of the Institutional Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Declaration is located at Four Albany Street, New York, New
York 10006, Attention: Corporate Trust and Agency Group, Corporate Market
Services; facsimile number (212) 250-6961.
"CPR Certificates" means the Contingent Payment Right Certificates,
including the Contingent Payment Right Certificates issued immediately prior to
the Effective Time and any other Contingent Payment Right Certificates issued by
the Trust.
"Damages" has the meaning set forth in Section 11.4(a).
"Declaration" has the meaning set forth in the preamble hereto.
"Deferral Amount" has the meaning set forth in Section 3.8(b).
"Definitive CPR Certificate" has the meaning set forth in Section 7.3(a).
"Delaware Trustee" has the meaning set forth in Section 3.3(a).
"Depositary" means, with respect to the CPR Certificates, DTC or another
Clearing Agency.
"DTC" means The Depository Trust Company, New York, New York, the initial
Clearing Agency.
"Effective Date" has the meaning set forth in the recitals hereof.
"Effective Time" has the meaning set forth in the recitals hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Expense Fund" means an amount equal to $20 million, less the expenses
relating to the Litigation incurred and paid by Coast Federal between August 31,
1997 and the Effective Date, which amount Ahmanson will deposit at the Effective
Time in a non-interest bearing demand deposit account in the name of the Trust
at Home Savings.
"Fiscal Year" has the meaning set forth in Section 12.1.
"Global CPR Certificate" has the meaning set forth in Section 7.3(a).
"Holder" means a Person in whose name a CPR Certificate is registered on
the register maintained by the Registrar pursuant to Section 7.2, such Person
being a beneficial owner within the meaning of the Business Trust Act.
"Home Savings" means Home Savings of America, FSB, and its successors.
"Indemnified Person" means a Trust Indemnified Person or an Ahmanson
Indemnified Person.
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"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 3.4 and duly appointed pursuant to this
Declaration.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"List of Holders" has the meaning set forth in Section 3.16.
"Litigation" has the meaning set forth in the recitals hereof.
"Litigation Proceeds" has the meaning set forth in the Commitment.
"Litigation Trustee" has the meaning set forth in Section 3.7.
"Merger" has the meaning set forth in the recitals hereof.
"Merger Agreement" has the meaning set forth in the recitals hereof.
"Non-Cash Proceeds" has the meaning set forth in the Commitment.
"Officers' Certificates" means, (i) with respect to any Person other than
Litigation Trustees, a certificate signed by two Authorized Officers of such
Person, and (ii) with respect to the Litigation Trustees, a certificate signed
by a majority of the Litigation Trustees then in office. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in the Declaration shall include:
(a) a brief statement of the nature and scope of the examination or
investigation undertaken by each Authorized Officer or Litigation
Trustee in rendering the Certificate; and
(b) a statement as to whether, in the opinion of each such Authorized
Officer or Litigation Trustee, such condition or covenant has been
complied with.
"Original Declaration" has the meaning set forth in the recitals hereof.
"Paying Agent" has the meaning specified in Section 7.2.
"Payment Amount" shall mean, with respect to each payment of the Commitment
Amount received by the Trust pursuant to the Commitment, such payment of the
Commitment Amount received by the Trust (including the amount of cash resulting
from the monetization by Ahmanson of any Non-Cash Proceeds) less the amount of
any accrued but unpaid expenses payable by the Trust and, for any reason, not
covered by the Expense Fund (including, without limitation, contingent amounts
payable to attorneys, experts or others retained by the Trust or Coast Federal
(or any successor thereto) in connection with the prosecution of the Litigation
by Coast Federal (or any successor thereto)), plus interest or income, if any,
received by the Trust on such payment of the Commitment Amount, less amounts
retained by the Trust as the Retained Amount.
"Permitted Investment" means the Merrill Lynch Government Fund money market
fund (including any successor) or, if at the time of the receipt of the
applicable payment of the Commitment Amount by the Trust (i) such fund is not in
existence, (ii) such fund is no longer limited to investing in short-term
obligations of or guaranteed by the United States government, (iii) such fund is
not accepting new investors or new investments or will not accept the investment
of the Commitment Amount or the Retained Amount, as the case may be, or (iv)
such fund is not AAA rated by Standard and Poor's, the AAA rated money market
fund reported in the IBC Rated Money Fund Report to have the largest amount of
assets under management as of the end of the most recent year for which
information is publicly available and which will accept such investment.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Reference Rate" means the reference rate or an equivalent rate publicly
announced from time to time of the Bank of America or any successor (or, if no
successor remains in existence or publicly announces a rate,
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the commercial bank with the largest amount of deposits in the State of
California as of the most recent year end prior to the applicable date for which
information is publicly available and which publicly announces such a rate, as
determined in good faith by Ahmanson's Board of Directors), as in effect from
time to time.
"Registrar" has the meaning set forth in Section 7.2.
"Reimbursements" has the meaning set forth in the Commitment.
"Relevant Trustee" has the meaning set forth in Section 3.5.
"Replacement Options" has the meaning set forth in the Merger Agreement.
"Responsible Officer" means, with respect to the Institutional Trustee, any
officer within the Corporate Trust Office of the Institutional Trustee,
including any managing director, vice-president, any assistant vice-president,
any assistant secretary, the treasurer, any assistant treasurer or other officer
of the Corporate Trust Office of the Institutional Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Retained Amount" has the meaning set forth in Section 5.3(a).
"Retained Amount Period" has the meaning set forth in Section 5.3(a).
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Sponsor" means Coast or any successor entity in a merger, consolidation or
amalgamation (including Ahmanson or any successor entity).
"Successor Certificates" has the meaning set forth in Section 2.5(b)(i)(B).
"Successor Delaware Trustee" has the meaning set forth in Section 3.5(a).
"Successor Entity" has the meaning set forth in Section 2.5(b)(i).
"Successor Institutional Trustee" has the meaning set forth in Section
3.5(a).
"Tax Opinion" means the opinion of Cleary, Gottlieb, Steen & Hamilton, or
Mayer, Brown & Platt or any other law firm selected by the Litigation Trustees
that is nationally recognized for its expertise in tax matters, to the effect
that the undertaking of a specified action would not cause the Trust to fail to
be classified as a grantor trust for United States federal income tax purposes.
"Transfer Agent" has the meaning set forth in Section 7.2.
"Trust" has the meaning set forth in the first paragraph of this
Declaration.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Institutional Trustee, Delaware Trustee or
Litigation Trustee in accordance with the provisions hereof, and references
herein to a Trustee or the Trustees shall refer to such Person or Persons solely
in their capacity as trustees hereunder.
"Trust Indemnified Person" means (a) the Institutional Trustee, the
Delaware Trustee, any Affiliate of the Institutional Trustee or the Delaware
Trustee, and any officers, directors, stockholders, members, partners,
employees, representatives, custodians, nominees or agents of the Institutional
Trustee and the Delaware Trustee; (b) any Litigation Trustee; (c) any Affiliate
of any Litigation Trustee; (d) any partners, employees, representatives or
agents of any Litigation Trustee; or (e) any officer, employee or agent of the
Trust or its Affiliates.
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"Trust Property" means (a) the Commitment and all proceeds and rights in
respect of the Commitment, (b) the right to draw on amounts in the Expense Fund
for the purpose of funding expenses of the Trust and (c) any other assets that
may be held from time to time by the Trust.
"Trust Purpose" shall have the meaning set forth in Section 2.3.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust is named "Coast Federal Litigation Contingent
Payment Rights Trust", as such name may be modified from time to time by the
Litigation Trustees following written notice to the Holders. The Trust's
activities may be conducted under the name of the Trust or any other name deemed
advisable by the Litigation Trustees.
SECTION 2.2 Office. The address of the principal office of the Trust on
the date of execution of this Declaration is:
E.A. Delle Donne Corporate Center
Montgomery Building
1011 Centre Road
Wilmington, Delaware 19805-1266
Attention: Lisa Wilkins
Facsimile: (302) 636-3222
On ten Business Days written notice to the Holders, the Institutional
Trustee may designate another principal office at the instruction of the
Litigation Trustees.
SECTION 2.3 Purposes and Powers of the Trust. (a) The exclusive purposes
and functions of the Trust (each, a "Trust Purpose") are (i) to issue the CPR
Certificates, (ii) to hold the Commitment, (iii) for the purpose of, and in a
manner consistent with, achieving the realization and distribution of amounts
payable pursuant to the Commitment, upon the effectiveness of the Commitment, to
instruct Coast Federal and its successors to prosecute, appeal, resolve, settle,
compromise or otherwise pursue the Litigation, and (iv) upon receipt of payments
pursuant to the Commitment, to distribute the Payment Amount as provided herein,
and thereafter as provided herein, any portion of the Retained Amount remaining
at the end of the Retained Amount Period, to the Holders in as prompt and
orderly a fashion as possible consistent with this Declaration. Anything to the
contrary herein or in the Business Trust Act notwithstanding, the Trustees shall
not at any time, on behalf of the Trust or the Holders, enter into or engage in
any profit-making trade or business, and the Trustees shall have no powers to
take, and shall not take, any actions hereunder other than such as are
reasonably necessary and incidental to the achievement of the foregoing sole
Trust Purposes.
(b) Notwithstanding anything in this Declaration or in the Business Trust
Act to the contrary, none of the Trustees or any other Person in carrying out
the Trust Purposes to hold and liquidate Trust Property as described in Section
2.3(a) shall have any power to (i) modify the terms of the Commitment unless a
breach of Ahmanson has occurred thereunder or is reasonably foreseeable, (ii)
invest money held by the Trust except amounts held, pursuant to Sections
3.13(b)(ii)(D) and 5.3 hereof, pending their use to pay expenses or make
distributions, or (iii) after the Effective Time, issue any CPR Certificates
except as described in Sections 2.3(c)(i) and 9.2.
(c) In order to raise funds for, or meet its obligation to pay, expenses
reasonably necessary to preserve or protect assets of the Trust or to administer
the Trust (including, without limitation, expenses related to the Litigation and
expenses related to the liability and indemnification obligations of the Trust),
and solely in furtherance of Trust Purposes, the Trust (pursuant to a
determination by the Litigation Trustees on behalf of the Trust) may undertake
the following:
(i) issue additional CPR Certificates of the same class as the CPR
Certificates issued immediately prior to the Effective Time, which
represent pro rata interests in the Trust; provided, however, that the
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Trust may issue CPR Certificates of a different class than the CPR
Certificates issued immediately prior to the Effective Time or that
represent non-pro rata interests in the Trust, if the Trust receives a Tax
Opinion;
(ii) enter into, subject to the limitations set forth in Section
6.2(a), customary fee arrangements (including fees contingent on receipt by
the Trust of, and determined by reference to, all or any portion of the
Commitment Amount) with counsel for the Litigation, to the Trust or to the
Litigation Trustees, experts or consultants, which arrangements either (x)
provide for such counsel, experts or consultants to receive amounts that
represent for federal income tax purposes arms-length compensation for
services when paid in cash by the Trust or (y) otherwise do not create
ownership interests in the Trust for federal income tax purposes other than
CPR Certificates of the same class as the CPR Certificates issued
immediately prior to the Merger representing pro rata interests in the
Trust; and
(iii) incur indebtedness that represents debt of the Trust (and not an
ownership interest) for federal income tax purposes.
In satisfaction of its obligation to obtain a Tax Opinion in a specific
instance contemplated by clause (i) above, the Trust may rely upon a Tax
Opinion, which may have been issued prior to such specific instance, to the
effect that a course of conduct or type of action that includes the action the
Trust wishes to undertake in such specific instance would not cause the Trust to
fail to be classified as a grantor trust for United States federal income tax
purposes.
SECTION 2.4 Title to Property of the Trust. Legal title to all assets of
the Trust shall be vested in the Trust. The Holders shall not have legal title
to any part of the assets of the Trust, but shall have an undivided beneficial
interest in the assets of the Trust.
SECTION 2.5 Mergers. (a) The Trust may not consolidate, amalgamate, merge
with or into, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other body, except (i)
as described in paragraph (b) of this Section 2.5, (ii) in a liquidation of the
Trust in accordance with this Declaration, or (iii) as contemplated in Section
4.1 or Section 5.3 hereof.
(b) The Trust may, with the consent of the Institutional Trustee (acting in
reliance on the opinions delivered hereunder) and a majority of the Litigation
Trustees and without the consent of the Delaware Trustee or the Holders of the
CPR Certificates, consolidate, amalgamate, merge with or into, or be replaced by
a trust organized as such under the laws of any state of the United States;
provided that:
(i) if the Trust is not the survivor, such successor entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under the
CPR Certificates; or
(B) substitutes for the CPR Certificates other securities having
substantially the same terms as the CPR Certificates (the "Successor
Certificates");
(ii) the Successor Certificates remain listed, or any Successor
Certificates will be listed or quoted upon notification of issuance, on any
national securities exchange or automated quotation system on which the CPR
Certificates are then listed or quoted, if any;
(iii) such merger, consolidation, amalgamation or replacement does not
result in any material alteration of the Trust Property or adversely affect
the rights, preferences and privileges of the Holders (including any
Successor Certificates) in any material respect (other than with respect to
any dilution of such Holders' interests in the Successor Entity);
(iv) such Successor Entity solely has purposes that are substantially
identical to that of the Trust;
(v) prior to such merger, consolidation, amalgamation or replacement,
the Trust has received an opinion of nationally recognized outside counsel
to the Trust experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the
Holders (including any Successor Certificates) in any
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material respect (other than with respect to any dilution of the
Holders' interest in the Successor Entity);
(B) such merger, consolidation, amalgamation or replacement, will
not cause the Trust (or the Successor Entity) to fail to be classified
as a grantor trust for United States federal income tax purposes;
provided, however, that the Trust shall not be required to receive
the opinion set forth in clause (B) if a majority of the Holders of CPR
Certificates outstanding shall have approved such merger, consolidation,
amalgamation or replacement;
(vi) without the unanimous consent of the Litigation Trustees, such
merger, consolidation, amalgamation or replacement shall not result in any
material change to the rights of the Litigation Trustees, including,
without limitation, their rights to indemnification, exculpation and
compensation set forth in this Declaration and under Delaware law; and
(vii) prior to such merger, consolidation, amalgamation or replacement
the Institutional Trustee shall have received an opinion of counsel to the
effect that all conditions precedent of this paragraph (b) to such
transaction have been satisfied.
(c) pursuant to Section 3815(f) of the Business Trust Act, in the case of a
consolidation, amalgamation, or merger of the Trust with or into, or the
replacement by, a trust organized as such under the laws of any state of the
United States, subject to the requirements described in Section 2.5(b) above,
the agreement of merger or consolidation may effect any amendment to this
Declaration, or effect the adoption of a new governing instrument of the Trust
if it is the surviving or resulting business trust in the merger or
consolidation. Such amendment or new governing instrument shall be effective at
the effective time or date of the merger or consolidation.
ARTICLE III
TRUSTEES
SECTION 3.1 Authority. Except as specifically provided in this
Declaration, the Institutional Trustee and the Litigation Trustees shall have
exclusive and complete authority to carry out the Trust Purposes. An action
taken by a Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust, it being understood that except as provided expressly
herein the Litigation Trustees may act only upon the vote or consent (such
consent to be evidenced by a writing executed contemporaneously with or promptly
following any oral consent) of a majority of the Litigation Trustees. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Declaration.
SECTION 3.2 Number of Trustees. There shall be one Delaware Trustee if
required by Section 3.3; the Institutional Trustee may also serve as Delaware
Trustee if it meets the applicable requirements, in which case Section 3.3 shall
have no application to such entity in its capacity as Institutional Trustee.
There shall be one Institutional Trustee as required by Section 3.4. There shall
be four initial Litigation Trustees, and, subject to Section 3.12(b), there
shall at all times be at least three Litigation Trustees.
SECTION 3.3 Delaware Trustee. (a) If required by the Business Trust Act,
one trustee (the "Delaware Trustee") shall be:
(i) a natural person who is a resident of the State of Delaware; or
(ii) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements
of applicable law, including sec. 3807 of the Business Trust Act.
(b) The Delaware Trustee shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more Authorized
Officers.
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(c) The initial Delaware Trustee shall be Bankers Trust (Delaware).
(d) Notwithstanding any other provision of this Declaration, the Delaware
Trustee shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities of any of the Trustees
described in this Declaration. Except as set forth in this Section 3.3, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of sec. 3807 of the Business Trust Act.
SECTION 3.4 Institutional Trustee; Eligibility. (a) There shall at all
times be one Trustee which shall act as Institutional Trustee, which Trustee
shall:
(i) not be an Affiliate of the Sponsor or of Ahmanson;
(ii) not offer or provide credit or credit enhancement to the Trust;
and
(iii) be a corporation or banking association organized and doing
business under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation or banking association publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above,
then for the purposes of this Section 3.4(a)(iii), the combined capital and
surplus of such corporation or banking association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Institutional Trustee shall cease to be eligible to
so act under Section 3.4(a), the Institutional Trustee shall immediately resign
in the manner and with the effect set forth in Section 3.5(a).
(c) The initial Institutional Trustee shall be Bankers Trust Company.
(d) The Institutional Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and all amounts received
or receivable or potentially receivable pursuant to the Commitment
(including the final payment of the Commitment Amount and any portion
remaining in the Retained Amount upon the expiration of the Retained Amount
Period) and not otherwise applied as provided herein and any other amounts
shall have been distributed to the Holders pursuant to the terms hereof and
of the CPR Certificates; or
(ii) a Successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 3.5.
SECTION 3.5 Appointment, Removal and Resignation of the Institutional and
Delaware Trustees. (a) No resignation or removal of the Institutional or
Delaware Trustee (the "Relevant Trustee") and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of this Section 3.5.
Subject to the immediately preceding paragraph, a Relevant Trustee may
resign at any time by giving written notice thereof to the Litigation Trustees
and the Holders. Upon the resignation of the Relevant Trustee, the Litigation
Trustees shall appoint a successor (the "Successor Institutional Trustee" or the
"Successor Delaware Trustee," as applicable) who shall execute an instrument of
acceptance as described in Section 3.5(b) below. If the instrument of acceptance
by the successor Relevant Trustee required by this Section 3.5 shall not have
been delivered to the Relevant Trustee within 60 days after the giving of such
notice of resignation, the Relevant Trustee may petition, at the expense of the
Trust, any court of competent jurisdiction for the appointment of a successor
Relevant Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Relevant Trustee. The resigning Relevant
Trustee shall have no liability for the selection of such successor pursuant to
this Section 3.5.
The Institutional Trustee or the Delaware Trustee, or both of them, may be
removed by (i) the act of a majority of the Litigation Trustees or (ii) the act
of Holders of a majority of the CPR Certificates outstanding, in each case by
delivery of notification of removal to the Relevant Trustee (in its individual
capacity and on
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behalf of the Trust), and in each case for cause, or, if a default by the Trust
with respect to its payment obligations under Article IV shall have occurred and
be continuing, with or without cause. A Delaware Trustee who is a natural person
may also be removed by the act of a majority of the Litigation Trustees if such
Delaware Trustee becomes incompetent or incapacitated, and shall be deemed
removed if such Delaware Trustee dies. If a Relevant Trustee shall be so
removed, the Litigation Trustees shall promptly appoint a successor Relevant
Trustee or Trustees, and such successor Trustee or Trustees shall comply with
the applicable requirements of Section 3.3 or Section 3.4, as the case may be.
If no successor Relevant Trustee shall have been so appointed by the Litigation
Trustees and accepted appointment in the manner required by this Section 3.5,
within 30 days after delivery of notification of removal or after the Trust
receives notice of the Delaware Trustee's death, incompetence or incapacity, any
Holder who has been a Holder of CPR Certificates for at least six months may, on
behalf of himself and all others similarly situated, or the Relevant Trustee
being removed may, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a successor
Relevant Trustee or Trustees.
The Institutional Trustee shall give notice of each appointment of a
successor Relevant Trustee to all Holders. Each notice shall include the name of
the successor Relevant Trustee and the address of its Corporate Trust Office if
it is the Institutional Trustee.
(b) In the case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee (except in the case of the death,
incompetence or incapacity of a Delaware Trustee who is a natural person) and
each successor Relevant Trustee shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
CPR Certificates and the Trust; it being understood that nothing herein or in
such amendment shall designate such Relevant Trustees as co-trustees and upon
the execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; but, on request of the Trust or any successor
Relevant Trustee, such retiring Relevant Trustee shall duly assign, transfer and
deliver to such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with respect
to the CPR Certificates and the Trust.
(c) No Institutional Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
(d) Any Person into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any Person succeeding to all or substantially
all the corporate trust business of the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Institutional Trustee
or the Delaware Trustee, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto;
provided such Person shall be otherwise qualified and eligible under this
Article.
SECTION 3.6 Vacancies Among Relevant Trustees; Effect of Vacancies. (a) If
the Institutional Trustee or the Delaware Trustee ceases to hold office for any
reason, a vacancy shall occur. A resolution by the remaining Relevant Trustee
certifying the existence of such vacancy by the Institutional Trustee and the
Delaware Trustee shall be conclusive evidence of the existence of such vacancy.
The vacancy shall be filled with a Trustee appointed in accordance with Section
3.5.
(b) The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to dissolve, terminate or annul the Trust. Whenever a vacancy in the
Institutional Trustee or the Delaware Trustee shall occur, until such vacancy is
filled by the appointment of a Trustee in accordance with Section 3.5, the
Institutional Trustee or the
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Delaware Trustee (as the case may be) remaining in office shall have all the
powers granted to both the Institutional Trustee and the Delaware Trustee and
shall discharge all the duties imposed upon both the Institutional Trustee and
the Delaware Trustee by this Declaration.
SECTION 3.7 The Litigation Trustees. (a) There shall be at all times
certain trustees (the "Litigation Trustees") who shall be natural persons over
the age of 21 years and who shall have the powers, duties and responsibilities
of the Litigation Trustees hereunder. The initial Litigation Trustees will be
Ray Martin, Robert L. Hunt II, Norman H. Raiden and James F. Barritt.
(b) Each of the initial Litigation Trustees shall, as a condition of his
continuation and qualification as a Litigation Trustee, be obligated to retain
at least 50% of the CPR Certificates received by such Litigation Trustee in (i)
the distribution of the CPR Certificates by Coast immediately prior to the
Merger, (ii) the Merger and (iii) upon exercise of Replacement Options, until
the Litigation Proceeds are received by the Ahmanson Group. Transfers of CPR
Certificates by a Litigation Trustee to his family members or to any trust
created for the benefit of his family shall be deemed to be retained for
purposes of such 50% calculation for so long as such transferees (and subsequent
transferees to other family members or other such trusts) retain such CPR
Certificates.
(c) Each of the initial Litigation Trustees shall, as a condition of his
continuation and qualification as such, hold no other full-time employment
during the term of his tenure as a Litigation Trustee prior to the receipt of
the Litigation Proceeds by the Ahmanson Group.
SECTION 3.8 Compensation of the Litigation Trustees. (a) In compensation
for his services as Litigation Trustee, the Trust shall pay to each initial
Litigation Trustee, during the term of his service as a Litigation Trustee,
$400,000 per twelve-month period (or portion thereof) for five years commencing
on the Effective Date (the twelve-month period commencing on the Effective Date
and each twelve-month period commencing on the anniversary of the Effective
Date, a "Contract Year"). Such compensation shall be paid by the Trust to the
Litigation Trustees in arrears on a monthly basis or on the basis of such other
longer period as the Litigation Trustees may determine. In the event the final
resolution of the Litigation and receipt by the Ahmanson Group of the Litigation
Proceeds occurs prior to the expiration of such five-year period, the remainder
of such fees, but in no event with respect to a period longer than two years
after the end of the Contract Year in which the later of such final resolution
or receipt of the Litigation Proceeds occurs, shall be automatically accelerated
and shall be immediately owing and payable to each Litigation Trustee then
serving. If the Litigation Trustees are required to provide service after the
initial five-year period or such final resolution and receipt of Litigation
Proceeds, the Trust shall compensate the Litigation Trustees for such service at
the rate of $200 per hour until termination of the Trust. Upon appointment of a
successor Litigation Trustee by the remaining Litigation Trustees pursuant to
Section 3.11, such successor Litigation Trustee shall receive fees as determined
by the other Litigation Trustees (but in no event more than the fees payable to
an initial Litigation Trustee). In addition to any other compensation specified
in this Section 3.8, the Trust shall reimburse all reasonable out-of-pocket
expenses of the Litigation Trustees.
(b) With respect to each Contract Year, each Litigation Trustee may elect
to defer the receipt of all or a portion of his compensation (not including any
reimbursement of out-of-pocket expenses) payable pursuant to Section 3.8(a)
hereof by filing with each of the other Litigation Trustees and the
Institutional Trustee a written election form. Such written election form shall
specify the percentage of such Litigation Trustee's compensation to be deferred,
the date on which such Litigation Trustee wishes to receive his Deferral Amount
(as defined below) and the name of a beneficiary to receive such Deferral Amount
upon the death of such Litigation Trustee. Such form must be filed at least 30
days prior to the beginning of the Contract Year to which the election relates
(except, with respect to the first Contract Year, such form must be filed within
30 days after the beginning of the Contract Year) and shall apply to such
Contract Year and all subsequent Contract Years unless and until a subsequent
election form is filed with respect to a subsequent Contract Year, which
subsequent election form must be filed with each of the other Litigation
Trustees and the Institutional Trustee at least 30 days prior to the beginning
of such subsequent Contract Year; provided, that a successor Litigation Trustee
appointed pursuant to Section 3.11 hereof shall be permitted to file an election
with respect to his first Contract Year within 30 days after the date of his
appointment as Litigation Trustee is
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effective. Any such subsequent election form may state that such Litigation
Trustee's deferral election is terminated with respect to future Contract Years
or specify a new percentage of such Litigation Trustee's compensation to be
deferred with respect to future Contract Years. A beneficiary designated in a
written election form may subsequently be changed by written instrument
delivered to each of the other Litigation Trustees and the Institutional Trustee
or by will.
On the last day of each month, an amount equal to the compensation that
would have been paid to a Litigation Trustee with respect to such month but for
such Litigation Trustee's properly filed written election form shall be credited
to a bookkeeping account in his name established and maintained by the Trust. As
of the last day of each month, each Litigation Trustee's bookkeeping account
shall be credited with an amount in addition to the balance credited to such
bookkeeping account on the first day of such month, which additional amount
shall be the product of such balance and an annual rate equal to [the Reference
Rate plus 250 basis points]. The aggregate amount credited to the bookkeeping
account of a Litigation Trustee at any time shall constitute the "Deferral
Amount" of such Litigation Trustee at such time.
A Litigation Trustee (or, if applicable, his beneficiary) shall receive his
Deferral Amount from the Trust within 30 days after the earliest to occur of (i)
the date on which he elected to receive his Deferral Amount, (ii) the date he
ceases to be a Litigation Trustee for any reason whatsoever, and (iii) the date
of the receipt of the Commitment Amount in full by the Trust. Any payment of a
Deferral Amount to a Litigation Trustee or his beneficiary pursuant to this
Section 3.8(b) shall be made in the form of a lump sum.
Each Litigation Trustee has the status of a general unsecured creditor of
the Trust with respect to any deferred compensation or deemed interest thereon.
The arrangements set forth in this Section 3.8(b) constitute an unfunded,
unsecured promise by the Trust to pay Deferral Amounts in the future. The rights
of a Litigation Trustee to his Deferral Amount are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors of the Litigation Trustee or any
beneficiary thereof.
SECTION 3.9 Limitation on Liability of Litigation Trustees. As set forth
in Section 11.2(a), the Litigation Trustees will have no liability to any
Indemnified Person unless it shall be established in a final judicial
determination by clear and convincing evidence that any decision or action of
the Litigation Trustees was undertaken with deliberate intent to injure the
Holders or with reckless disregard for the best interests of such Holders, and,
in any event, any liability will be limited to actual, proximate, quantifiable
damages.
SECTION 3.10 Resignation of a Litigation Trustee. Any Litigation Trustee
may resign as such by executing an instrument in writing and delivering that
instrument to the remaining Litigation Trustee or Trustees, if any, and to the
Institutional Trustee. In the event of the disqualification under Section 3.7(b)
or (c) or the resignation of a Litigation Trustee, such Litigation Trustee shall
promptly: (a) execute and deliver such documents, instruments and other writings
as may be reasonably requested by the remaining Litigation Trustees or
Litigation Trustee, or if there is no Litigation Trustee, the Institutional
Trustee, to effect the termination of such Litigation Trustee's capacity under
this Declaration; (b) deliver to the remaining Litigation Trustees or Litigation
Trustee all assets, documents, instruments, records and other writings related
to the Trust as may be in the possession of such Trustee; and (c) otherwise
assist and cooperate in effecting the assumption of such Litigation Trustee's
obligations and functions by his successor Litigation Trustee.
SECTION 3.11 Appointment of Successor Litigation Trustees. (a) Subject to
Section 3.12(b), there shall be no fewer than three Litigation Trustees. Upon
the death, resignation, incompetency (as determined by the unanimous vote of the
other Litigation Trustees or by a court of competent jurisdiction) or
disqualification under Section 3.7(b) or (c) of a Litigation Trustee, the
remaining Litigation Trustee or Litigation Trustees, and no other Person, shall
have the power to appoint a successor Litigation Trustee or Trustees, as
applicable. In the event of the death, resignation or incompetency (as
determined by a court of competent jurisdiction) of all of the Litigation
Trustees so that there are no remaining Litigation Trustees, three Litigation
Trustees shall be appointed by the written decision of a majority of the persons
who constituted the Board of Directors of Coast immediately prior to the
Effective Time.
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Such appointment shall specify the date on which such appointment shall be
effective. Every successor Litigation Trustee appointed hereunder shall execute,
acknowledge and deliver to the remaining Litigation Trustees (or, in the event
there are no remaining Litigation Trustees, the persons who were members of the
Coast Board of Directors immediately prior to the Effective Time) and to the
Institutional Trustee an instrument accepting such appointment, and thereupon
such successor Litigation Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of a
Litigation Trustee. No successor Litigation Trustee shall have any duty to
investigate the administration of the Trust or the management of the Litigation
for any period prior to the effective date of such successor Litigation
Trustee's appointment, and no resigning Litigation Trustee shall be required or
permitted, prior to final termination of the Litigation (including any
proceedings to collect any recovery due the Litigation Trustees), to file any
accounting proceeding.
(b) The Holders will have no right to vote to appoint, remove or replace
the Litigation Trustees, which rights are vested exclusively in the Litigation
Trustees.
SECTION 3.12 Meetings of the Trustees. (a) Meetings of the Delaware
Trustee, the Institutional Trustee and the Litigation Trustees together may be
held from time to time upon the call of the Delaware Trustee, Institutional
Trustee or any Litigation Trustee. Notice of any in-person meetings of the
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight mail) not less than five Business Days
before such meeting. Notice of any telephonic meetings of such Trustees shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight mail) not less than two Business Days before a meeting.
Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone) of a
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where such Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully
called or convened. Any Trustee may also waive such notice of in-person or
telephonic meetings in writing by hand delivering or otherwise delivering
(including by facsimile, with a hard copy by overnight mail) such written waiver
to all other Trustees. Unless provided otherwise in this Declaration, any action
to be taken by the Institutional Trustee together with the Litigation Trustees
shall be taken with the approval of the Institutional Trustee and a majority of
the Litigation Trustees.
(b) The Litigation Trustees may adopt their own rules and procedures but,
unless otherwise provided by this Declaration, may act only with the agreement
of a majority of the Litigation Trustees then in office; provided, however, that
if there are fewer than three Litigation Trustees, any action taken by the
unanimous consent of the two remaining Litigation Trustees or by the sole
remaining Litigation Trustee prior to the appointment of a successor Litigation
Trustee pursuant to Section 3.11, shall be valid. The Litigation Trustees may,
in their discretion, delegate to one or more of the Litigation Trustees the
authority to act on behalf of the Litigation Trustees as the Litigation Trustees
may determine appropriate (other than with respect to the retention or dismissal
of counsel for Coast Federal (or any successor thereto) or the Litigation
Trustees, or the approval of a settlement or dismissal of the Litigation).
SECTION 3.13 Powers and Duties of the Sponsor, the Litigation Trustees and
the Institutional Trustee. (a) The Sponsor prior to the Effective Time, and the
Institutional Trustee and the Litigation Trustees, shall have the authority,
subject to any limitations set forth in Section 2.3, to conduct the affairs of
the Trust in accordance with the terms of this Declaration. In addition, prior
to the Effective Time, the Sponsor shall have the authority to take the actions
enumerated in (i) below on behalf of the Trust and, in connection therewith, to
enter into all transactions and agreements determined by the Sponsor to be
appropriate in exercising such authority and to perform all acts in furtherance
thereof:
(i) The Sponsor shall have the power and authority prior to the
Effective Time and is hereby authorized to act on behalf of the Trust prior
to the Effective Time with respect to the following matters:
(A) the issuance of the CPR Certificates issued immediately prior
to the Effective Time;
(B) the execution of the CPR Certificates issued immediately prior
to the Effective Time in accordance with this Declaration;
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(C) compliance with (or obtaining or qualifying for exceptions
from) the Securities Act, the Exchange Act or applicable state
securities or blue sky laws;
(D) the execution and filing of the registration statement under
the Securities Act to register the CPR Certificates to be issued to the
Sponsor immediately prior to the Effective Time and prospectuses
(including any amendments or supplements thereto) and the preparation
and filing of all documents filed therewith;
(E) the use of its best efforts to permit trading of the CPR
Certificates pursuant to the NASDAQ National Market System (or if,
despite such best efforts, trading on the NASDAQ National Market System
is not possible, on such other NASDAQ market or other market as shall,
in the good faith judgment of the Sponsor, provide maximum available
liquidity), commencing on the Effective Date and continuing until such
time as there are fewer than 400 Holders;
(F) the notification of the Institutional Trustee and the
Litigation Trustees in writing when the CPR Certificates are listed on
any stock exchange or quoted on any automated quotation system, if prior
to the Effective Time; and
(G) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(ii) The Trustees on behalf of the Trust hereby (A) ratify and approve
all actions taken by the Sponsor on behalf of the Trust or for its benefit
prior to the Effective Time and all transactions and agreements entered
into in connection therewith; and (B) agree and acknowledge that the
Sponsor shall have no liability to the Trust, the Trustees or the Holders
for any such actions, transactions or agreements and that the Trust, the
Trustees and the Holders shall no right to enforce, institute or maintain a
suit, action or proceeding against the Sponsor, its successors or their
respective affiliates, officers, directors, employees or agents relating to
such actions, transactions or agreements; it being understood that this
Section 3.13(a)(ii) does not constitute a waiver by the Litigation Trustees
of their rights under Section 6.12(a) of the Merger Agreement or a waiver
by the Trustees or the Trust of their rights under the Commitment.
(b) in accordance with subparagraphs (i) and (ii) of this Section 3.13(b),
the Institutional Trustee and the Litigation Trustees shall have the authority
to enter into all transactions and agreements determined by such Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted
to such Trustees under this Declaration, and to perform all acts in furtherance
thereof (and all such transactions or agreements entered into or acts performed
prior to the date hereof are hereby ratified and approved), including, without
limitation, the following:
(i) The Litigation Trustees shall have the power and authority and are
hereby authorized to act on behalf of the Trust with respect to the
following matters:
(A) the issuance and determination of the terms (including the
quantity and price) of any CPR Certificates issued after the Effective
Time in accordance with this Declaration;
(B) the execution of any CPR Certificates issued after the
Effective Time in accordance with this Declaration;
(C) after the Effective Time, the execution and delivery on behalf
of the Trust, subject to Section 2.3(b), of any agreement with Ahmanson,
and such other agreements as may, in the opinion of a majority of the
Litigation Trustees, be necessary or desirable in connection with the
Trust Purposes, including agreements with the Depositary and the Paying
Agent;
(D) after the Effective Time, compliance with (or obtaining or
qualifying for exceptions from) the Securities Act, the Exchange Act or
applicable state securities or blue sky laws or other applicable laws;
(E) after the Effective Time, the execution and filing of one or
more registration statements and prospectuses (including any amendments
or supplements thereto) relating to the CPR
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Certificates and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(F) after the Effective Time, the continuation of the designation
of the CPR Certificates for trading on any national stock exchange or
quotation on the NASDAQ Stock Market's National Market System or other
automated quotation system until such time as there are fewer than 400
Holders or such time as the CPR Certificates are no longer eligible for
such designation on any such exchange or quotation system;
(G) the carrying out of any of the powers or obligations of the
Trust or of the Litigation Trustees under the Commitment;
(H) upon the effectiveness of the Commitment and as necessary
thereafter, the instruction of Coast Federal and its successors as to
the prosecution, appeal, resolution, settlement, compromise or other
means of pursuing the Litigation and the taking of any action in
connection with the prosecution of the Litigation by Coast Federal (or
any successor thereto) or as permitted by Article VI hereof;
(I) the payment of all expenses of the Trust (including, without
limitation, expenses of the Litigation, compensation and expenses of the
Trustees, liability insurance and indemnification obligations) out of
the Expense Fund, the Retained Amount and any other sources of the Trust
(including, without limitation, funds raised pursuant to Section
2.3(c));
(J) the sending of notices (other than notice of default), and
other information regarding the CPR Certificates to the Holders in
accordance with this Declaration;
(K) the taking of any action to cause the Trust not to be deemed to
be an Investment Company under the Investment Company Act;
(L) the amendment of the Commitment subject to Section 2.3(b);
(M) the bringing, defense, payment, collection, compromise, taking
of legal action, or other adjustment of claims or demands of or against
Ahmanson or its successors which arise out of or in connection with a
breach by Ahmanson (or any successor thereto) of any of its obligations
under the Commitment or, subject to the limitations set forth in Section
3.13(a)(ii), the Sponsor of any of its obligations hereunder;
(N) the approval of all applicable tax returns and tax information
to be filed by the Institutional Trustee with respect to the Trust on
behalf of the Trust;
(O) the compliance by the Trust with the indemnification
obligations of the Trust; and
(P) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(ii) The Institutional Trustee shall have the power, duty and
authority and is hereby authorized to act on behalf of the Trust with
respect to the following matters:
(A) the authentication of the CPR Certificates in accordance with
this Declaration;
(B) the application for a taxpayer identification number;
(C) the maintenance of the Expense Fund in a non-interest bearing
demand deposit account at Home Savings;
(D) upon receipt of a Commitment Amount from Ahmanson, and at the
written direction of the Litigation Trustees, the investment of the
Commitment Amount, until disbursed pursuant to the terms of this
Declaration, in a Permitted Investment which is not sold prior to the
date the Payment Amount is to be disbursed to the Holders;
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(E) the distribution through the Paying Agent of the Payment Amount
and other amounts owed to the Holders in respect of the CPR Certificates
in accordance with the terms of this Declaration;
(F) the sending of notices of a breach by Ahmanson of its
obligations under the Commitment or a breach by the Sponsor of its
obligations under this Declaration or default by the Trust of its
payment obligations pursuant to Article IV hereof;
(G) the execution and delivery of letters or documents to, or
instruments with, the Depositary relating to the CPR Certificates;
(H) to the extent provided in this Declaration, the winding up of
the affairs of and liquidation of the Trust and the execution and filing
of the certificate of cancellation provided to it with the Secretary of
State of the State of Delaware;
(I) the due preparation and filing, with the approval of the
Litigation Trustees, of all applicable tax returns and tax information
reports that are required to be filed with respect to the Trust on
behalf of the Trust, with the approval of the Litigation Trustees;
(J) the taking of all actions that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory business
trust under the laws of the State of Delaware and of each other
jurisdiction in which such existence is necessary to protect the limited
liability of the Holders or to enable the Trust to effect the Trust
Purposes;
(K) the bringing, defense, payment, collection, compromise,
arbitration, taking of legal action, or other adjustment of claims or
demands of or against Ahmanson or its successors or the Trust which
arise out of or in connection with a breach by Ahmanson (or any
successor thereto) of any of its obligations under the Commitment or,
subject to the limitations set forth in Section 3.13(a)(ii), by the
Sponsor of any of its obligations hereunder;
(L) the taking of all actions and performance of such duties as may
be specifically required of the Institutional Trustee pursuant to the
terms of the CPR Certificates; and
(M) the taking of any action incidental to the foregoing as the
Institutional Trustee may from time to time determine to be necessary or
advisable to give effect to the terms of this Declaration for the
benefit of the Holders (without consideration of the effect of any such
action on any particular Holder).
(iii) The Institutional Trustee shall have the power and authority to
act on behalf of the Trust with respect to any of the duties, liabilities,
powers or the authority of the Litigation Trustees set forth in Section
3.13(b)(i)(J) herein but shall not have a duty to do any such act unless
specifically requested to do so in writing by the Litigation Trustees, and
shall then be fully protected in acting pursuant to such written request;
and in the event of a conflict between the action of the Litigation
Trustees and the action of the Institutional Trustee, the action of the
Institutional Trustee shall prevail.
(c) The Trustees are authorized and directed to conduct the affairs of the
Trust and to operate the Trust so that the Trust will not fail to be classified
as a grantor trust for United States federal income tax purposes. In this
connection, the Trustees are authorized to take any action, not inconsistent
with applicable laws, the Certificate of Trust or this Declaration, as amended
from time to time, that the Institutional Trustee or the Litigation Trustees, as
the case may be, determines in their discretion to be necessary or desirable for
such purpose, even if such action adversely affects the interests of the
Holders.
(d) The Litigation Trustees may consult with counsel (which counsel may be
counsel to the Trust or counsel to any member of the Ahmanson Group) and the
advice of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by them hereunder in good
faith and in reliance thereon and in accordance with such advice. All oral or
written communications between any such counsel on the one hand, and the
Sponsor, Coast Federal, the Trust, any Trustee, any of their
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affiliates, or any successor entity or any affiliate of any successor entity, on
the other hand, will be protected by the attorney-client privilege and/or the
attorney work product doctrine, and no such communication will result in the
waiver of any applicable claim of confidentiality or privilege.
(e) Any Trustee may also be a Holder or an officer, director, employee or
Affiliate of a Holder, and will have all the rights of such a Holder to the same
extent as if such Trustee were not a trustee.
SECTION 3.14 Certain Duties and Responsibilities of the Trustees.
(a) The Institutional Trustee, before the occurrence of any breach by
Ahmanson of any of its obligations under the Commitment or a breach by the
Sponsor after the Effective Time of any of its obligations under this
Declaration, and after the curing of any such breach by Ahmanson or the Sponsor,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Institutional Trustee. In case of a breach by Ahmanson of any of its
obligations under the Commitment or a breach by the Sponsor of its obligations
hereunder after the Effective Time, the Institutional Trustee shall exercise
such of the rights and powers vested in it by this Declaration and use the same
degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.
(b) The duties and responsibilities of the Trustees shall be as provided by
this Declaration and the Business Trust Act. Notwithstanding the foregoing, no
provision of this Declaration shall require any Trustee to expend or risk such
Trustee's own funds or otherwise incur any financial liability in the
performance of any of such Trustee's duties hereunder, or in the exercise of any
of such Trustee's rights or powers. Whether or not therein expressly so
provided, every provision of this Declaration relating to the conduct or
affecting the liability of or affording protection to the Trustees shall be
subject to the provisions of this Article. To the extent that, at law or in
equity, a Trustee has duties and liabilities relating to the Trust or to the
Holders, such Trustee shall not be liable to the Trust or to any Holder for such
Trustee's good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of the Trustees otherwise existing at law or in equity, are agreed
by the Trust and the Holders to replace such other duties and liabilities of the
Trustees.
(c) All payments made by the Institutional Trustee or a Paying Agent in
respect of the CPR Certificates shall be made only from (i) payments received by
the Trust pursuant to the Commitment and only to the extent that the Payment
Amount is greater than zero or upon the expiration of the Retained Amount
Period, any remaining portion of the Retained Amount is greater than zero, in
each case so as to enable the Institutional Trustee or a Paying Agent to make
payments in accordance with the terms hereof and (ii) proceeds from the
liquidation of other assets of the Trust upon the winding up of the Trust. Each
Holder, by its acceptance of a CPR Certificate, agrees that it will look solely
to the Payment Amount and, upon the expiration of the Retained Amount Period, to
any remaining portion of the Retained Amount, to the extent legally available
for distribution to it as herein provided and that the Trustees are not
personally liable to such Holder for any amount distributable in respect of any
CPR Certificate or for any other liability in respect of any CPR Certificate.
(d) No provision of this Declaration shall be construed to relieve the
Institutional Trustee from liability with respect to matters that are within the
authority of the Institutional Trustee under this Declaration for its own bad
faith, its own grossly negligent action, its own grossly negligent failure to
act, or its own willful misconduct, except that:
(i) the Institutional Trustee shall not be liable for any error or
judgment made in good faith by an authorized officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Institutional Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority of the CPR
Certificates then outstanding, relating to the time, method and place of
conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under this Declaration;
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(iii) the Institutional Trustee's sole duty with respect to the
custody, safe-keeping and physical preservation of the Expense Fund and the
Payment Amount shall be to deal with such property in a similar manner as
the Institutional Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Institutional Trustee under this Declaration;
(iv) the Institutional Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree in writing with
the Litigation Trustees; and money held by the Institutional Trustee need
not be segregated from other funds held by it except in relation to the
Expense Fund and the Commitment Amount maintained by the Institutional
Trustee pursuant to Section 3.13(b)(ii)(D) and except to the extent
otherwise required by law.
SECTION 3.15 Certain Rights of the Institutional Trustee. Subject to the
provisions of Section 3.14:
(a) the Institutional Trustee may conclusively rely and shall fully be
protected in acting or refraining from acting in good faith upon any
resolution, opinion of counsel, certificate, written representation of a
Holder, transferee or Litigation Trustee, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, CPR Certificate, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the proper
party or parties;
(b) if (i) in performing its duties under this Declaration, the
Institutional Trustee is required to decide between alternative courses of
action, or (ii) in construing any of the provisions of this Declaration,
the Institutional Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein, or (iii) the Institutional Trustee is
unsure of the application of any provision of this Declaration, then,
except as to any matter as to which the Holders are entitled to vote under
the terms of this Declaration, the Institutional Trustee shall take such
action, or refrain from taking such action, as the Institutional Trustee in
its sole discretion shall deem advisable and in the best interests of the
Holders, in which event the Institutional Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Litigation Trustees contemplated by
this Declaration shall be sufficiently evidenced by an Officers'
Certificate;
(d) the Institutional Trustee may consult with counsel (which counsel
may be counsel to the Litigation Trustees or appointed by Coast Federal (or
any successor thereto) at the direction of the Litigation Trustees to
prosecute the Litigation) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon
and in accordance with such advice; the Institutional Trustee shall have
the right at any time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction. All oral or
written communications between any such counsel on the one hand, and the
Sponsor, Coast Federal, the Trust, any Trustee, any of their affiliates, or
any successor entity or any affiliate of any successor entity, on the other
hand, will be protected by the attorney-client privilege and/or the
attorney work product doctrine, and no such communication will result in
the waiver of any applicable claim of confidentiality or privilege.
(e) the Institutional Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration at the request
or direction of any of the Holders pursuant to this Declaration, unless
such Holders shall have offered to the Institutional Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction, provided that nothing contained in this Section 3.15(e) shall
be taken to relieve the Institutional Trustee, upon breach by Ahmanson of
any of its obligations under the Commitment, or by the Sponsor or its
successors after the Effective Time of any of the obligations of the
Sponsor hereunder, of its obligation to exercise, upon the instructions of
the Litigation Trustees, the rights and powers vested in it by this
Declaration;
(f) the Institutional Trustee shall not be required to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order,
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approval, CPR Certificate, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by a majority of the Holders of CPR Certificates then outstanding, but
the Institutional Trustee may make such further inquiry or investigation
into such facts or matters as it may see fit;
(g) except as otherwise expressly provided in this Declaration, the
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration;
(h) any action taken by the Institutional Trustee or its agents
authorized by this Declaration to be taken by the Institutional Trustee
shall bind the Trust and the Holders, and the signature of the
Institutional Trustee or its agents alone shall be sufficient and effective
to perform any such action and no third party shall be required to inquire
as to the authority of the Institutional Trustee to so act or as to its
compliance with any of the terms and provisions of this Declaration, both
of which shall be conclusively evidenced by the Institutional Trustee's or
its agent's taking such action;
(i) no provision of this Declaration shall be deemed to impose any
duty or obligation on the Institutional Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the
Institutional Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts, or to exercise any
such right, power, duty or obligation. No permissive power or authority
available to the Institutional Trustee shall be construed to be a duty;
(j) whenever in the administration of the provisions of this
Declaration the Institutional Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering any
action to be taken hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of gross
negligence or bad faith on the part of the Institutional Trustee, be deemed
to be conclusively proved and established by an Officer's Certificate
delivered to the Institutional Trustee and such certificate, in the absence
of gross negligence or bad faith on the part of the Institutional Trustee,
shall be full warrant to the Institutional Trustee for any action taken,
suffered or omitted by it under the provisions of this Declaration upon the
faith thereof;
(k) in no event shall the Institutional Trustee be liable for the
selection of investments for funds permitted to be invested hereunder or
for investment losses thereon, and the Institutional Trustee shall have no
liability in respect of losses incurred as a result of the liquidation of
any investment prior to its stated maturity or the failure of the
Litigation Trustees to provide timely written investment direction with
respect to funds permitted to be invested hereunder;
(l) the Institutional Trustee may execute any of the trusts of powers
hereunder or perform any duties hereunder either directly or by or through
agents, attorneys, custodians or nominees appointed with due care, and
shall not be responsible for any willful misconduct or gross negligence on
the part of, or for the supervision of, any agent, attorney, custodian or
nominee so appointed; and
(m) the Institutional Trustee shall not be deemed to have notice of
the occurrence of the events described in Section 3.20 unless the
Institutional Trustee shall have received written notice of such event or a
Responsible Officer of the Institutional Trustee shall have obtained actual
knowledge thereof.
SECTION 3.16 Lists of Holders of CPR Certificates. (a) At the Effective
Time, the Sponsor shall provide to the Institutional Trustee a list (the "List
of Holders"), in such form as the Institutional Trustee may reasonably require,
of the names and addresses of the Holders as of immediately prior to the
Effective Time;
(b) The Paying Agent, if other than the Institutional Trustee, shall
provide to the Institutional Trustee a List of Holders upon the request of
the Institutional Trustee; and
(c) The Institutional Trustee shall preserve, in as current a form as
is reasonably practicable, all information contained in any List of Holders
given to it or which it receives in its capacity as Paying Agent (if acting
in such capacity), provided that the Institutional Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders;
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SECTION 3.17 Execution of Documents. (a) Unless otherwise determined in
writing by the Institutional Trustee, and except as otherwise required by the
Business Trust Act, the Institutional Trustee, or any one or more of the
Litigation Trustees, as the case may be, is authorized to execute on behalf of
the Trust any documents that the Institutional Trustee or the Litigation
Trustees, as the case may be, have the power and authority to execute pursuant
to Section 3.13.
(b) Any Institutional or Delaware Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over
the age of 21 his or her or its power for the purpose of executing any
documents contemplated in Section 3.13.
SECTION 3.18 Not Responsible for Recitals or Issuance of CPR
Certificates. The recitals contained in this Declaration and the CPR
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Sponsor and the
Trustees make no representations as to the value or condition of the Trust
Property or any part thereof. Except as otherwise specifically provided in
Article XIV, the Sponsor and the Trustees make no representations as to the
validity or sufficiency of this Declaration or the CPR Certificates.
SECTION 3.19 Filings with the Commission. So long as the Trust is subject
to the reporting obligations of the Exchange Act, the Litigation Trustees shall,
on behalf of the Trust, cause to be prepared and filed with the Commission
quarterly reports on Form 10-Q and an annual report on Form 10-K. Unless
otherwise required by the Commission, such reports will contain only an overview
of the status of the Litigation and disclosure of the amounts of the Expense
Fund that have been disbursed for the relevant period and any contingent or
incurred but unpaid expenses (including compensation deferred by the Litigation
Trustees) that the Trust will be obligated to pay from the Expense Fund or the
Commitment Amount in the future. The Litigation Trustees shall also, on behalf
of the Trust, cause to be prepared and filed with the Commission, reports on
Form 8-K upon the occurrence of a material judicial decision in the Litigation
or in the event of any agreement to settle the Litigation. It is hereby agreed
and understood that such reports on Form 10-Q, 10-K or 8-K will not include
financial statements or any valuation of the Litigation.
SECTION 3.20 Default; Notice. The Institutional Trustee shall, within 90
days after the occurrence of (i) a breach by Ahmanson of any of its payment
obligations under the Commitment, (ii) a breach by the Sponsor after the
Effective Time of its obligations hereunder, (iii) a default by the Trust in
payment of the Payment Amount to the Holders pursuant to Article IV hereof, or
(iv) a default by the Trust upon the expiration of the Retained Amount Period in
payment of any remaining portion of the Retained Amount pursuant to Article IV
hereof, transmit by mail, first class postage prepaid, to the Holders, notice of
such default actually known to a Responsible Officer of the Institutional
Trustee, unless such default has been cured before the giving of such notice;
provided, however, the Institutional Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Institutional Trustee
in good faith determines that the withholding of such notice is in the best
interests of the Holders.
ARTICLE IV
PAYMENTS TO HOLDERS
SECTION 4.1 Payment to Holders. (a) The Trust will make payments from time
to time to the Holders of the Payment Amounts upon the receipt of the applicable
payments of the Commitment Amount from Ahmanson. Each CPR Certificate will
entitle the Holder thereof to receive a fraction (equal to 1 divided by the
total number of CPR Certificates then outstanding) of any Payment Amount within
60 days after the Trust receives a Commitment Amount.
(b) Within 90 days of the expiration of the Retained Amount Period, the
Trust will pay to the Holders any remaining portion of the Retained Amount. Each
CPR Certificate will entitle the Holder thereof to receive a fraction (equal to
1 divided by the total number of CPR Certificates then outstanding) of the
remaining portion of the Retained Amount.
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SECTION 4.2 Timing of Payments. The Trust will make payments of amounts as
contemplated by Section 4.1 to the Holders as of record dates determined by the
Litigation Trustees. Payment will be made on payment dates, which will also be
set by the Litigation Trustees. The Litigation Trustees shall promptly notify
the Institutional Trustee in writing of any such dates.
SECTION 4.3 Default; Waiver. The Holders of a majority of the CPR
Certificates then outstanding may, by vote or consent, on behalf of the Holders
of all of the CPR Certificates, waive any breach by Ahmanson of any of its
obligations under the Commitment or any default by the Trust in payment of the
Payment Amount or the funds remaining in the Retained Amount to the Holders
pursuant to this Article IV.
ARTICLE V
EXPENSES: THE EXPENSE FUND AND THE RETAINED AMOUNT
SECTION 5.1 Expense Fund. (a) The Litigation Trustees on behalf of the
Trust shall have the right to draw on the Expense Fund for the purpose of
funding any expenses of the Trust, including administration expenses, expenses
of the Litigation, compensation, fees and expenses of the Trustees, amounts paid
as indemnity to any Indemnified Person, premiums for insurance for the
Litigation Trustees, and fees and expenses of attorneys, consultants and other
experts retained by, or at the direction of, the Litigation Trustees, pursuant
to Section 6.2.
(b) It is hereby agreed and acknowledged that the Expense Fund will not be
invested in any interest-bearing or income-producing instrument.
(c) Subsequent to the receipt of a payment of the Commitment Amount by the
Trust, the Institutional Trustee will apply any amounts remaining in the Expense
Fund to the Retained Amount.
SECTION 5.2 Return of Expense Fund. Pursuant to Section 2.08 of the
Commitment, if the amount of the Litigation Proceeds is such that there would be
no Commitment Amount payable under the Commitment to the Trust and if at the
time of receipt of the Litigation Proceeds by the Ahmanson Group (or at the time
of a final judicial determination that there will be no Litigation Proceeds)
there are amounts remaining in the Expense Fund, the Trust shall, as promptly as
practicable, return to Ahmanson such amounts less expenses (including
obligations to compensate the Trustees) incurred by the Trust through the time
of receipt of the Litigation Proceeds by the Ahmanson Group (or the time of such
final judicial determination) and expenses necessary, in the reasonable judgment
of the Litigation Trustees, to terminate the Trust pursuant to the terms of this
Declaration, provided, however, that the Trust will have no such obligation to
return funds remaining in the Expense Fund less such expenses to Ahmanson if
Ahmanson causes Home Savings to pay such amounts remaining in the Expense Fund
less such expenses directly to Ahmanson.
SECTION 5.3 Retained Amount. (a) The Litigation Trustees' obligation to
make payments to the Holders shall be subject to the requirement that the Trust
retain, from amounts remaining in the Expense Fund and from payments of the
Commitment Amount, the Retained Amount for a period (the "Retained Amount
Period") of two years (or such longer period as the Litigation Trustees shall
reasonably determine (initially or at any time prior to the then scheduled
termination of the Retained Amount Period) may be reasonably likely to be
required) to satisfy all expenses, costs and claims and indemnification
obligations of the Trust which may be incurred or which may arise after the
Commitment Amount is paid in full. The "Retained Amount" shall mean $10 million
(or such greater amount as the Litigation Trustees shall reasonably determine
may be reasonably likely to be required to pay additional expenses or to satisfy
the Trust's indemnification obligations). Any portion of the Retained Amount in
excess of $10 million or retained longer than two years shall promptly be
distributed to the Holders after the Litigation Trustees reasonably determine
that such funds are no longer needed for such purposes.
(b) The Trust shall invest the Retained Amount in a Permitted Investment,
to the extent that portions of the Retained Amount are not required to be
disbursed for expenses of the Trust, until the expiration of the Retained Amount
Period.
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ARTICLE VI
MANAGEMENT OF THE LITIGATION
SECTION 6.1 Authority of the Litigation Trustees. (a) The Sponsor hereby
agrees to cause Coast Federal and its successors, upon the effectiveness of the
Commitment and as requested by the Litigation Trustees thereafter, to follow and
comply with all instructions of the Litigation Trustees, other than instructions
that are not reasonable, in connection with all aspects of the prosecution of
the Litigation, including, at the expense of the Trust, the retention of
attorneys, experts, consultants and others and the making of all decisions and
the taking of all actions necessary or appropriate to prosecute or otherwise
pursue the Litigation by litigation in trial or appellate courts, arbitration,
alternative dispute resolution, negotiation, settlement or compromise, or the
dismissal, settlement or cessation of prosecution of the Litigation, withdrawal
or abandonment of the Litigation; provided, that no settlement agreement or
other ruling or agreement entered into at the direction of the Litigation
Trustees as part of the resolution of the Litigation or a related Internal
Revenue Service ruling to such effect issued to a member of the Ahmanson Group
in connection with such agreement may impose any liability or obligation
whatsoever (other than a standard settlement release relating only to the
Litigation or other related claims that Coast, Coast Federal or Coast's
stockholders may have been able to bring as of immediately prior to the Merger)
on any member or members of the Ahmanson Group or adversely affect or restrict
the conduct of its business or adversely affect its tax posture with respect to
other matters. The Sponsor hereby agrees that it shall cause Coast Federal (or
any successor thereto) not to take any action with respect to the Litigation
except in accordance with the instructions of the Litigation Trustees.
(b) Prior to the Effective Time, the Sponsor shall certify by an Officers'
Certificate that it has taken the necessary corporate action evidenced by
resolutions substantially in the form set forth in Exhibit C hereto, to cause
Coast Federal to follow and comply with all instructions of the Litigation
Trustees as required by Section 6.1(a). Prior to the Effective Time, Coast
Federal shall certify by an Officer's Certificate that it has taken the
necessary action evidenced by resolutions to follow and comply with instructions
of the Litigation Trustees.
(c) Nothing in this Declaration shall constitute a grant by Coast Federal
or its successors of a power of attorney to the Litigation Trustees to appear on
behalf of Coast Federal and its successors in connection with the Litigation.
(d) Nothing in this Declaration shall be deemed to require Ahmanson to
advance or risk any funds or otherwise incur any financial liability in
connection with the Litigation or the Trust other than transfer of the Expense
Fund.
SECTION 6.2 Retention of Attorneys, Accountants and Other
Professionals. (a) The Litigation Trustees shall retain, at the expense of the
Trust, such attorneys as counsel to the Trust (including, without limitation,
counsel to Coast Federal or any successor thereto in connection with the
Litigation) as the Litigation Trustees in their sole discretion may select, and
the Litigation Trustees may dismiss such attorneys in their sole discretion. The
Litigation Trustees shall instruct Coast Federal (or any successor thereto), at
the expense of the Trust, to retain such attorneys as the Litigation Trustees
may select to aid in the prosecution of the Litigation and to perform such other
functions as may be appropriate in the Litigation Trustees' sole and absolute
discretion, and the Sponsor shall cause Coast Federal (or any successor
thereto), at the expense of the Trust, to follow and comply with such
instructions in the manner set forth in Section 6.1(a). The Litigation Trustees
may commit the Trust to and shall pay such attorneys compensation from the
Expense Fund or other funds of the Trust for services rendered and expenses
incurred and may enter into arrangements on such terms as may be approved by the
Litigation Trustees with such counsel, including terms providing that all or a
portion of such counsel's compensation may be contingent and may be based on a
percentage of any recovery, subject to Section 2.3(c)(ii), provided, however,
that no such arrangement shall provide for recourse against Coast Federal or its
successors. The Litigation Trustees shall have full authority to instruct Coast
Federal (or any successor thereto) to dismiss any such attorneys retained by
Coast Federal (or any successor thereto) and the Sponsor shall cause Coast
Federal (or any successor thereto) to comply with such instructions.
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Unless and until instructed to the contrary by the Litigation Trustees, the
attorneys currently retained to aid in the prosecution of the Litigation shall
continue in such role for Coast Federal (or any successor thereto), and all
parties hereto, having been fully advised, waive any conflict of interest, if
any, which the attorneys currently retained may have with respect to any party
to this Declaration. In addition, any attorneys, experts, advisors, consultants
and investigators retained by or at the direction of the Litigation Trustees and
any experts, advisors, consultants and investigators retained by attorneys to
aid in the prosecution of the Litigation shall be authorized by this Declaration
to accept directions from the Litigation Trustees with respect to the
Litigation, notwithstanding any conflict of interest that may arise by reason of
such directions with the interests of any party to this Declaration. The
Litigation Trustees shall have no duty to the Sponsor or Coast Federal (or any
affiliate, successor entity, or affiliate of any successor entity) to consider
any interest the Sponsor, Coast Federal or any such entity may have with respect
to the Litigation. All oral and written communications between any attorneys
retained by or at the direction of the Litigation Trustees on one hand, and the
Sponsor, Coast Federal, the Trust, any Trustee, their affiliates, or any
successor entity or any affiliate of any successor entity, on the other hand,
relating to the Litigation and/or to the actions of the Litigation Trustees,
will be protected by the attorney-client privilege and/or the attorney work
product doctrine, and no such communication will result in the waiver of any
applicable claim of confidentiality or privilege.
(b) The Litigation Trustees may retain an independent public accounting
firm to audit the financial books and records of the Trust and to perform such
other reviews and/or audits as may be appropriate in the Litigation Trustees'
sole and absolute discretion. The Litigation Trustees may commit the Trust, and
shall cause the Trust, to pay such accounting firm compensation from the Expense
Fund or other funds of the Trust for services rendered and expenses incurred.
The Litigation Trustees shall have full authority to dismiss such accounting
firm.
(c) The Litigation Trustees may retain on behalf of the Trust or instruct
Coast Federal (or any successor thereto) to retain such other experts, advisors,
consultants, investigators or other support staff, assistants or employees as
the Litigation Trustees, in their sole and absolute discretion, may deem
necessary or appropriate to assist the Litigation Trustees to carry out their
powers and duties under this Declaration. The Litigation Trustees may commit the
Trust to and shall cause the Trust to pay all such persons or entities
compensation from the Expense Fund or other funds of the Trust for services
rendered and expenses incurred. The Litigation Trustees shall have full
authority to dismiss such persons retained by the Trust or to instruct Coast
Federal (or any successor thereto) to dismiss such persons retained by Coast
Federal (or any successor thereto).
SECTION 6.3 Cooperation by the Sponsor. (a) The Sponsor shall provide, and
shall cause Coast Federal (or any successor thereto) to provide the Litigation
Trustees with such access to the books, records, offices, other facilities,
employees, agents, representatives and independent accountants of Coast Savings
Financial, Inc. and Coast Federal (or any successor to Coast Federal) as the
Litigation Trustees shall reasonably require for the purpose of performing their
duties and exercising their powers under this Declaration. The Litigation
Trustees shall have full authority on behalf of Coast Federal and its successors
to consult with and instruct the attorneys for Coast Federal and its successors
in connection with the Litigation.
(b) The Sponsor shall use its reasonable best efforts to cause the relevant
officers of Coast Federal and its successors and the agents and representatives
of Coast Federal and its successors to be available to provide testimony and to
execute documents, in each case as required, in the reasonable judgment of the
Litigation Trustees, for the purpose of prosecuting the Litigation, including
execution of any complaints, motions, answers and other pleadings, affidavits,
requests and notices, other than pursuant to instructions that are not
reasonable.
ARTICLE VII
ISSUANCE AND DISTRIBUTION OF CPR CERTIFICATES
SECTION 7.1 General Provisions Regarding CPR Certificates. (a) The Trust
shall issue CPR Certificates substantially in the form of Exhibit B representing
undivided beneficial interests in the assets of the Trust.
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(b) The CPR Certificates issued immediately prior to the Effective Time
shall be signed on behalf of the Trust by an Authorized Officer of the Sponsor.
Any CPR Certificates issued by the Trust following the Merger shall be signed on
behalf of the Trust by a majority of the Litigation Trustees. Such signature
shall be the facsimile or manual signature of such Authorized Officer or
Litigation Trustees, as applicable. In case any Authorized Officer or Litigation
Trustee, as applicable, who shall have signed any of the CPR Certificates shall
cease to be an Authorized Officer or Litigation Trustee, as applicable, before
the CPR Certificates so signed shall be delivered by the Trust, such CPR
Certificates nevertheless may be delivered as though the person who signed such
CPR Certificates had not ceased to be an Authorized Officer or Litigation
Trustee, as applicable; and any CPR Certificate may be signed on behalf of the
Trust by such persons who, at the actual date of execution of such CPR
Certificate, shall be an Authorized Officer or Litigation Trustee, as
applicable, of the Trust, although at the date of the execution and delivery of
the Declaration any such person was not an Authorized Officer or Litigation
Trustee, as applicable. A CPR Certificate shall not be valid until authenticated
by the manual signature of a Responsible Officer of the Institutional Trustee.
Such signature shall be conclusive evidence that the CPR Certificate has been
authenticated under this Declaration. Upon written order of the Trust signed by
one Litigation Trustee, the Institutional Trustee shall authenticate the CPR
Certificates for original issue. The Institutional Trustee may appoint an
authenticating agent acceptable to the Litigation Trustees to authenticate the
CPR Certificates.
(c) Upon issuance of the CPR Certificates as provided in this Declaration,
the CPR Certificates so issued shall be deemed to be validly issued, fully paid
and non-assessable.
(d) Every Person, by virtue of having become a Holder in accordance with
the terms of this Declaration, shall be deemed to have expressly assented and
agreed to the terms of, and shall be bound by, this Declaration.
SECTION 7.2 Paying Agent, Transfer Agent and Registrar. The Trust shall
maintain in the Borough of Manhattan, City of New York, State of New York, an
office or agency where the CPR Certificates may be presented for payment (the
"Paying Agent"), and an office or agency where CPR Certificates may be presented
for registration of transfer (the "Transfer Agent"). The Trust shall keep or
cause to be kept at such office or agency a register for the purpose of
registering CPR Certificates and transfers and exchanges of CPR Certificates,
such register to be held by a registrar (the "Registrar"). The Litigation
Trustees may appoint the Paying Agent, the Registrar, and the Transfer Agent and
may appoint one or more additional Paying Agents or one or more co-Registrars,
or one or more co-Transfer Agents in such other locations as they shall
determine. The term "Paying Agent" includes any additional paying agent, the
term "Registrar" includes any additional registrar or co-Registrar and the term
"Transfer Agent" includes any additional or co-Transfer Agent. The Litigation
Trustees may change any Paying Agent without prior notice to any Holder. The
Litigation Trustees shall notify the Institutional Trustee of the name and
address of any Paying Agent, Transfer Agent and Registrar not a party to this
Declaration. The Litigation Trustees hereby appoint the Institutional Trustee to
act as Paying Agent, Transfer Agent and Registrar for the CPR Certificates. The
Institutional Trustee or any of its Affiliates may act as Paying Agent, Transfer
Agent or Registrar.
SECTION 7.3 Form and Dating. The CPR Certificates and the Institutional
Trustee's certificate of authentication thereon shall be substantially in the
form of Exhibit B, which is hereby incorporated in and expressly made a part of
this Declaration. CPR Certificates may be typed, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Sponsor prior to the Effective Time, and the Litigation Trustees after the
Effective Time, as conclusively evidenced by the execution thereof. The CPR
Certificates may have letters, numbers, notations or other marks of
identification or designation and such legends or endorsements required by law,
stock exchange rule, agreements to which the Trust is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Sponsor prior to the Effective Time, and the Litigation Trustees after
the Effective Time). The Litigation Trustees shall furnish any such legend not
contained in Exhibit B to the Institutional Trustee in writing. Each CPR
Certificate shall be dated the date of its authentication. The form of CPR
Certificate set forth in Exhibit B is part of the terms of this Declaration and
to the extent applicable, the Institutional Trustee, the Delaware Trustee, the
Litigation Trustees and the Sponsor, by their execution and delivery of this
Declaration, expressly agree to such terms and provisions and to be bound
thereby. The Trust, in issuing the CPR Certificates may use "CUSIP" numbers (if
then generally in use), and, if so, the Institutional Trustee shall indicate the
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"CUSIP" numbers of the CPR Certificates in notices of redemption and related
materials as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the CPR Certificates or as contained in any notice of redemption and
related materials.
(a) Definitive and Global CPR Certificates. CPR Certificates shall be
issued, at the option of the Holder, in the form of individual certificates in
definitive, fully registered form without distribution coupons (each, a
"Definitive CPR Certificate"), or in the form of one or more permanent global
CPR Certificates in definitive, fully registered form without distribution
coupons with the appropriate global legends (each, a "Global CPR Certificate").
The number of CPR Certificates represented by the Global CPR Certificate may
from time to time be increased or decreased by adjustments made on the records
of the Institutional Trustee and the Depositary or its nominee as hereinafter
provided.
(b) Book-Entry Provisions. This Section 7.3(b) shall apply only to the
Global CPR Certificates. The Trust shall execute and the Institutional Trustee
shall, in accordance with this Section 7.3, authenticate and deliver initially
one or more Global CPR Certificates that (a) shall be registered in the name of
Cede & Co. or other nominee of such Depositary and (b) shall be delivered by the
Institutional Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Institutional Trustee as custodian for the
Depositary. Clearing Agency Participants shall have no rights under this
Declaration with respect to any Global CPR Certificates held on their behalf by
the Depositary or by the Institutional Trustee as the custodian of the
Depositary or under such Global CPR Certificates, and the Depositary may be
treated by the Trust, the Institutional Trustee and any officer, director,
employee, or agent of the Trust or the Institutional Trustee as the absolute
owner of such Global CPR Certificates for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trust, the
Institutional Trustee or any agent of the Trust or the Institutional Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and the
Clearing Agency Participants, the operation of customary practices of such
Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global CPR Certificates.
(c) Definitive CPR Certificates. Any Person with a beneficial interest in a
Global CPR Certificate may exchange such interest for Definitive CPR
Certificates.
SECTION 7.4 Mutilated, Destroyed, Lost or Stolen Certificates. If: (a) any
mutilated CPR Certificates should be surrendered to the Registrar, or if the
Registrar shall receive evidence to its satisfaction of the destruction, loss or
theft of any CPR Certificate; and
(b) there shall be delivered to the Institutional Trustee, the Registrar
and the Litigation Trustees such security or indemnity as may be required by
them to keep each of them harmless; then, in the absence of notice that such CPR
Certificate shall have been acquired by a protected purchaser, a majority of the
Litigation Trustee on behalf of the Trust shall execute and the Institutional
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen CPR Certificate, a new CPR Certificate of
like denomination. In connection with the issuance of any new CPR Certificate
under this Section 7.4, the Registrar or the Institutional Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate CPR Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
ownership interest in the relevant CPR Certificates, as if originally issued,
whether or not the lost, stolen or destroyed CPR Certificate shall be found at
any time.
SECTION 7.5 Temporary CPR Certificates. Until definitive CPR Certificates
are ready for delivery, the Litigation Trustees may prepare and the
Institutional Trustee shall authenticate temporary CPR Certificates. Temporary
CPR Certificates shall be substantially in the form of definitive CPR
Certificates but may have variations that the Litigation Trustees consider
appropriate for temporary CPR Certificates. Without unreasonable delay, the
Litigation Trustee shall prepare and the Institutional Trustee shall
authenticate definitive CPR Certificates in exchange for temporary CPR
Certificates.
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SECTION 7.6 Issuance of CPR Certificates on the Effective
Date. Immediately prior to the Effective Time, the Trust shall issue to the
Sponsor (i) one CPR Certificate for each share of the Sponsor's common stock
outstanding as of immediately prior to the Effective Time of the Merger, (ii)
1,440,883 CPR Certificates required to satisfy the Sponsor's obligations under
Section 3.06 of the Merger Agreement and (iii) one CPR Certificate for each
share of the Sponsor's common stock with respect to which Coast stockholders
have provided a notice of intent to exercise appraisal rights in the Merger.
SECTION 7.7 Redemption and Cancellation. (a) The Sponsor and the
Litigation Trustees at any time may deliver CPR Certificates to the
Institutional Trustee for cancellation. The Registrar shall forward to the
Institutional Trustee any CPR Certificates surrendered to it for registration of
transfer, redemption or payment. The Institutional Trustee shall promptly cancel
all CPR Certificates surrendered for registration of transfer, payment,
replacement or cancellation and shall destroy such canceled CPR Certificates in
accordance with its customary practices and procedures. The Institutional
Trustee may not issue new CPR Certificates to replace CPR Certificates that have
been paid in full or that have been delivered to the Institutional Trustee for
cancellation.
(b) The Trust shall mandatorily redeem for $0.01 in cash each CPR
Certificate issued to a Coast stockholder who provides a notice of intent to
exercise appraisal rights in the Merger with respect to shares of Coast common
stock. If any such Coast stockholder subsequently withdraws, or fails to
perfect, such appraisal demand, Ahmanson, in its capacity as successor to the
Sponsor, shall deliver to such stockholder one CPR Certificate for each share of
Coast common stock as to which such appraisal demand was withdrawn and not
perfected.
(c) Ahmanson, in its capacity as successor to the Sponsor, shall only
retain CPR Certificates in an amount equal to, and shall return to the Trust for
cancellation any CPR Certificates held by it in excess of, (i) the number of
Coast shares as to which former stockholders of Coast exercised and perfected
and did not withdraw their appraisal rights plus (ii) the number of Coast shares
underlying Coast stock appreciation rights ("Coast SARs") and Coast performance
share awards ("Coast Performance Share Awards") that are exercised for cash
prior to the Merger or which are surrendered solely for cash in the Merger plus
(iii) that number of CPR Certificates as is equal to the number of Coast shares
underlying Coast stock options outstanding immediately prior to the Merger, for
delivery by the Sponsor to the holders of Replacement Options upon exercise of
Replacement Options following the Merger. If any Replacement Options are
canceled or expire unexercised, Ahmanson, in its capacity of successor to the
Sponsor, shall return the related number of CPR Certificates to the Trust and
the Institutional Trustee shall cancel such CPR Certificates.
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust. (a) The Trust shall
dissolve:
(i) 30 days after the date on which the Institutional Trustee has
distributed any portion of the Retained Amount remaining upon the
expiration of the Retained Amount Period;
(ii) if the Litigation Trustees determine in writing that the final
Payment Amount is less than zero (whether because the Commitment Amount is
less than or equal to zero or because the expenses of the Trust exceed the
Commitment Amount) and there is no Retained Amount, thirty days after such
determination by the Litigation Trustees;
(iii) 30 days after the date of a final dismissal of the Litigation or
a determination by Coast Federal (or any successor thereto) not to continue
to prosecute the Litigation, in either case upon the instruction of the
Litigation Trustees; or
(iv) by the Sponsor before the issuance of any CPR Certificates.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a), and after completion of winding up of the Trust and
satisfaction of liabilities of the Trust in accordance with the
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Business Trust Act, the Trustees shall terminate the Trust by filing a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 3.14 and Article XI shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 General. (a) Where CPR Certificates are presented to the
Registrar or a co-registrar with a request to register a transfer or to exchange
them for an equal number of CPR Certificates represented by different
certificates, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registrations of
transfer and exchanges, a majority of the Litigation Trustees shall execute and
the Institutional Trustee shall authenticate CPR Certificates at the Registrar's
request.
(b) CPR Certificates may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the CPR Certificates. Any transfer or purported transfer of any CPR
Certificate not made in accordance with this Declaration shall be null and void
and will be deemed to be of no legal effect whatsoever and any such transferee
shall be deemed not to be the holder of such CPR Certificates for any purpose,
including but not limited to the receipt of the Payment Amount, and such
transferee shall be deemed to have no interest whatsoever in such CPR
Certificates.
(c) The Registrar shall provide for the registration of CPR Certificates
and of transfers of CPR Certificates, which will be effected without charge but
only upon payment (with such indemnity as the Registrar may require) in respect
of any tax or other governmental charges that may be imposed in relation to it.
Upon surrender for registration of transfer of any CPR Certificates, the
Registrar shall cause one or more new CPR Certificates to be issued in the name
of the designated transferee or transferees. Every CPR Certificate surrendered
for registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each CPR Certificate
surrendered for registration of transfer shall be canceled by the Institutional
Trustee pursuant to Section 7.7. A transferee of a CPR Certificate shall be
entitled to the rights and subject to the obligations of a Holder hereunder upon
the receipt by such transferee of a CPR Certificate. By acceptance of a CPR
Certificate, each transferee shall be deemed to have agreed to be bound by this
Declaration.
SECTION 9.2 Transfer Procedures.
(a) Transfer and Exchange of Definitive CPR Certificates. When Definitive
CPR Certificates are presented to the Registrar (x) to register the transfer of
such Definitive CPR Certificates, or (y) to exchange such Definitive CPR
Certificates for an equal number of Definitive CPR Certificates of another
number, the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met; provided,
however, that the Definitive CPR Certificates surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Trust and the
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
(b) Restrictions on Transfer of a Definitive CPR Certificate for a
Beneficial Interest in a Global CPR Certificate. A Definitive CPR Certificate
may not be exchanged for a beneficial interest in a Global CPR Certificate
except upon satisfaction of the requirements set forth below. Upon receipt by
the Institutional Trustee of a Definitive CPR Certificate, duly endorsed or
accompanied by appropriate instruments of transfer, together with written
instructions directing the Institutional Trustee to make, or to direct the
Depositary to make, an adjustment on its books and records with respect to a
Global CPR Certificate to reflect an increase in the number of the CPR
Certificates represented by the Global CPR Certificate, then the Institutional
Trustee shall cancel such Definitive CPR Certificate and cause, or direct the
Depositary to cause, the aggregate number of CPR Certificates represented by the
Global CPR Certificate to be increased accordingly.
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If no Global CPR Certificates are then outstanding, a majority of Litigation
Trustees shall execute and the Institutional Trustee shall authenticate, an
appropriate number of CPR Certificates in global form.
(c) Transfer and Exchange of Global CPR Certificates. The transfer and
exchange of Global CPR Certificates or beneficial interests therein shall be
effected through the Depositary, in accordance with this Declaration and the
procedures of the Depositary therefor. Notwithstanding any other provisions of
this Declaration, a Global CPR Certificate may not be transferred as a whole
except by the Depositary to a nominee of the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
(d) Transfer of a Beneficial Interest in a Global CPR Certificate for a
Definitive CPR Certificate.
(i) Any Person having a beneficial interest in a Global CPR
Certificate may upon request, and if accompanied by the information
specified below, exchange such beneficial interest for a Definitive CPR
Certificate, representing the same number of CPR Certificates. Upon receipt
by the Institutional Trustee from the Depositary or its nominee on behalf
of any Person having a beneficial interest in a Global CPR Certificate of
written instructions or such other form of instructions as is customary for
the Depositary or the Person designated by the Depositary as having such a
beneficial interest in such Global CPR Certificate, then the Institutional
Trustee shall cause, in accordance with the standing instructions and
procedures of the Depositary, the aggregate liquidation amount of the
Global CPR Certificate to be reduced on its books and records and,
following such reduction, a majority of the Litigation Trustees shall
execute and the Institutional Trustee shall authenticate, an appropriate
number of Definitive CPR Certificates.
(ii) Definitive CPR Certificate issued in exchange for a beneficial
interest in a Global CPR Certificate pursuant to this Section 9.2(d) shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from Clearing Agency Participants or
indirect participants or otherwise, shall instruct the Institutional
Trustee. The Institutional Trustee shall deliver such CPR Certificates to
the Persons in whose names such CPR Certificates are so registered in
accordance with the instructions of the Depositary.
(e) Definitive CPR Certificates If No Depositary.
If at any time:
(i) the Depositary notifies the Institutional Trustee and the
Litigation Trustees that the Depositary is unwilling or unable to continue
as Depositary for the Global CPR Certificates and a successor Depositary
for the Global CPR Certificates is not appointed by the Trust at the
direction of the Litigation Trustees within 90 days after delivery of such
notice; or
(ii) the Litigation Trustees notify the Institutional Trustee in
writing to issue Definitive CPR Certificates under this Declaration,
then a majority of the Litigation Trustee shall execute, and the
Institutional Trustee, upon receipt of a written order of the Trust signed by a
Litigation Trustee requesting the authentication and delivery of Definitive CPR
Certificates to the Persons designated by the Litigation Trustees, shall
authenticate and deliver Definitive CPR Certificates, in an aggregate amount
equal to the amount of Global CPR Certificates, in exchange for such Global CPR
Certificates.
(f) Cancellation or Adjustment of a Global CPR Certificate. At such time as
all beneficial interests in a Global CPR Certificate have either been exchanged
for Definitive CPR Certificates to the extent permitted by this Declaration or
redeemed, repurchased or canceled in accordance with the terms of this
Declaration, such Global CPR Certificate shall be returned to the Depositary for
cancellation or retained and canceled by the Institutional Trustee. At any time
prior to such cancellation, if any beneficial interest in a Global CPR
Certificate is exchanged for Definitive CPR Certificates, CPR Certificates
represented by such Global CPR Certificate shall be reduced and an adjustment
shall be made on the books and records of the Institutional Trustee (if it is
then the custodian for such Global CPR Certificate) with respect to such Global
CPR Certificate, by the Institutional Trustee to reflect such reduction.
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(g) Obligations with Respect to Transfers and Exchanges of CPR
Certificates.
(i) To permit registrations of transfers and exchanges, a majority of
the Litigation Trustees shall execute and the Institutional Trustee shall
authenticate Definitive CPR Certificates and Global CPR Certificates at the
Registrar's request.
(ii) Registrations of transfers or exchanges will be effected without
charge, but only upon payment (with such indemnity as the Institutional
Trustee or the Registrar may require) in respect of any tax or other
governmental charge that may be imposed in relation to it.
(iii) All CPR Certificates issued upon any registration of transfer or
exchange pursuant to the terms of this Declaration shall evidence the same
security and shall be entitled to the same benefits under this Declaration
as the CPR Certificates surrendered upon such registration of transfer or
exchange.
SECTION 9.3 Deemed CPR Certificate Holders. The Trust, the Litigation
Trustees, the Trustees, the Paying Agent, the Transfer Agent or the Registrar
may treat the Person in whose name any CPR Certificate shall be registered on
the books and records of the Trust as the sole holder of such CPR Certificate
(and of the undivided beneficial interest in the assets of the Trust represented
by such CPR Certificate) for purposes of receiving payment of the Payment Amount
and for all other purposes whatsoever and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such CPR Certificate or
in the rights represented by such Certificate on the part of any other Person,
whether or not the Trust, the Litigation Trustees, the Trustees, the Paying
Agent, the Transfer Agent or the Registrar shall have actual or other notice
thereof.
With respect to Global CPR Certificates issued by the Trust: (i) the
Trustees may deal with the Depositary as the authorized representative of the
Holders; (ii) the rights of the holders of beneficial interests in the Trust
shall be exercised only through the Depositary and shall be limited to those
established by law and agreement between such holders of beneficial interests
and the Depositary and/or direct participants of the Depositary; (iii) the
Depositary will make book-entry transfers among the direct participants of the
Depositary and will receive and transmit distributions on the CPR Certificates
to such direct participants; and (iv) the direct participants of the Depositary
shall have no rights under this Declaration under or with respect to any of the
CPR Certificates held on their behalf by the Depositary, and the Depositary may
be treated by the Trustees and their respective agents, employees, officers and
directors as the absolute owner of the CPR Certificates for all purposes
whatsoever.
SECTION 9.4 Notices to Clearing Agency. Whenever a notice or other
communication to the Holders is required under this Declaration, unless and
until Definitive CPR Certificates shall have been issued to the beneficial
owners of CPR Certificates pursuant to Section 9.2(d) or Section 9.2(e), the
Trustees shall give all such notices and communications specified herein to be
given to the Holders to the Clearing Agency, and shall have no notice
obligations to the beneficial owners of CPR Certificates.
SECTION 9.5 Appointment of Successor Clearing Agency. If any Clearing
Agency elects to discontinue its services as securities depositary with respect
to the CPR Certificates, the Litigation Trustees, in their sole discretion,
shall appoint a successor Clearing Agency with respect to such CPR Certificates.
ARTICLE X
HOLDERS OF CPR CERTIFICATES
SECTION 10.1 Limitations on Rights of Holders. The Holders of the CPR
Certificates acknowledge that:
(a) the Holders, in their capacities as Holders, are not stockholders of
the Sponsor, Coast Federal or Ahmanson (or any successor of any of them) and
will have no rights to dividends, liquidation preferences or other distributions
other than the payments described in Article IV, and will have no voting rights
except as expressly described herein. The Commitment is solely a contractual
obligation between Ahmanson and the Trust, and the Holders have no rights under
the Commitment with respect to Ahmanson by reason of their ownership of CPR
Certificates and Ahmanson has no liability under the Commitment to the Holders;
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(b) the CPR Certificates are not savings accounts or deposits and are not
insured by the Federal Deposit Insurance Corporation;
(c) the Holders have no rights with respect to, or interest in, (i) the
Litigation, (ii) Coast Federal (or any successor thereto), or (iii) any amount
received by Coast Federal (or any successor thereto) or any other member of the
Ahmanson Group with respect to the Litigation, including any judgment or
settlement proceeds;
(d) nothing in this Declaration shall be construed to create any
partnership or joint venture between the Sponsor, Coast Federal (or any
successor thereto), Ahmanson or any member of the Ahmanson Group, and the
Holders;
(e) (i) the Litigation is solely an asset of Coast Federal and its
successors, (ii) the Litigation shall be conducted by and on behalf of Coast
Federal and its successors solely in accordance with the instructions of the
Litigation Trustees pursuant to this Declaration, (iii) the Litigation Trustees
shall have the sole and exclusive right to direct Coast Federal and its
successors to take (or not take) actions relating to the Litigation as
contemplated by this Declaration and may, among other things, instruct Coast
Federal and its successors to dismiss, settle or cease prosecuting the
Litigation at any time without obtaining any cash or other recovery, or upon
obtaining any such cash or other recovery as the Litigation Trustees may
determine, (iv) the Litigation Trustees have the sole and exclusive right to
take or not take other actions contemplated by this Declaration relating to the
Litigation (including, without limitation, any decision with respect to the
incurrence of expenses);
(f) the liability of the Trustees and members of the Ahmanson Group is
limited to the extent set forth in Article XI.
SECTION 10.2 Limitations on Suits by Holders. (a) To the fullest extent
permitted by law, no Holder of CPR Certificates shall have any right by virtue
or by availing itself of any provision of this Declaration to institute any
action or proceeding other than a suit by such Holder for nonpayment of amounts
due and owing with respect to such Holder's CPR Certificates following a payment
of the Commitment Amount to the Trust and payment of the Payment Amount by the
Trust to other Holders, at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Declaration, or for the appointment of a
trustee, receiver, liquidator, custodian or other similar official or for any
other remedy hereunder, unless such Holder previously shall have given to the
Institutional Trustee written notice of default and of the continuance thereof
as herein before provided, and unless also the Holders of not less than 50% of
the CPR Certificates outstanding shall have made written request upon the
Institutional Trustee to institute such action or proceeding in its own name as
trustee hereunder and shall have offered to the Institutional Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Institutional Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceeding; it being understood and
intended, and being expressly covenanted by the Holder of every CPR Certificate
with every other Holder of CPR Certificates and the Institutional Trustee, that
no one or more Holders shall have any right in any manner whatever by virtue or
by availing itself or themselves of any provision of this Declaration to effect,
disturb or prejudice the rights of any other such Holder, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Declaration, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders. For the protection and
enforcement of the provisions of this Section, each and every Holder and the
Institutional Trustee shall be entitled to such relief as can be given either at
law or in equity.
(b) Any proceeding by Holders shall be instituted only in accordance with
the following procedures:
(i) The prospective plaintiff(s) shall deliver to the Institutional
Trustee (which shall promptly deliver a copy thereof to the Litigation
Trustees) a printed or typewritten statement not more than 10 pages in
length containing (i) the name(s) and address(es) of the prospective
plaintiff(s), (ii) a statement of the nature and amount of each plaintiff's
interest in the CPR Certificates, and (iii) a description of the nature and
grounds of the claims to be asserted and the relief or remedy sought.
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(ii) The Institutional Trustee shall promptly notify the prospective
plaintiff(s) of the number of copies needed for distribution to Holders and
the postage, printing and administrative costs for preparing and mailing
the statement of the prospective plaintiff(s), a response by the
Institutional Trustee or the Litigation Trustees, as applicable, which
shall not exceed 10 pages in length, a consent form described below and a
return envelope. Upon receipt of a certified check for such postage,
printing and administrative costs, the Institutional Trustee shall promptly
mail these materials to the Holders. Sixty days after mailing, the
responses received shall be open to inspection by the prospective
plaintiff(s) or any Holder at reasonable times during business hours at the
office of the Trust designated for such purposes.
(iii) The mailing to Holders shall include a consent form reading
substantially as follows:
"In response to the Coast Federal Litigation Contingent Payment
Rights Trust mailing dated ,
________ I HEREBY CONSENT TO SUCH SUIT.
________ I DO NOT CONSENT TO SUCH SUIT.
--------------------------------------
Signature
--------------------------------------
Printed or Typed Name of Holder
Date:
--------------------------------------
"If this response is not returned by , you will
be considered as not consenting to such suit."
ARTICLE XI
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 11.1 Liability. (a) Except as expressly set forth in this
Declaration, the Trustees shall not be:
(i) personally liable for the payment of any amounts, including,
without limitation, the Payment Amount or any portion of the Retained
Amount remaining upon the expiration of the Retained Amount Period, to the
Holders, which payment shall be made solely from the Commitment Amount, if
any, and the Retained Amount, if any, respectively, and other assets of the
Trust, if any; or
(ii) required to pay to the Trust or to any Holder any deficit upon
dissolution of the Trust or otherwise.
(b) Pursuant to sec. 3803(a) of the Business Trust Act, the Holders of the
CPR Certificates shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
SECTION 11.2 Exculpation. (a) To the fullest extent permitted by law, no
Trust Indemnified Person shall be liable, responsible or accountable in damages
or otherwise to the Trust or any Indemnified Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person, except that (i) the Litigation Trustees shall be liable for
any such loss, damage or claim incurred by reason of any act or omission
performed or omitted by them if it shall be established in a final judicial
determination by clear and convincing evidence that any such act or omission of
the Litigation Trustees was undertaken with deliberate intent to injure the
Holders or with reckless disregard for the best interests of such Holders and,
in any event, any liability will be limited to actual, proximate, quantifiable
damages, and (ii) the
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Institutional Trustee or the Delaware Trustee shall be liable for any such loss,
damage or claim incurred by reason of the Institutional Trustee's or Delaware
Trustee's (as the case may be) gross negligence or willful misconduct with
respect to such acts or omissions, provided, that nothing in this Section
11.2(a) is intended to limit the Litigation Trustees' right to insurance
obtained by the Trust and the proceeds of such insurance.
(b) To the fullest extent permitted by law, no Ahmanson Indemnified Person
shall have any liability to the Trust, the Trustees or the Holders. Without
limiting the generality of the foregoing, to the fullest extent permitted by
law, none of the Holders (in their capacity as Holders), the Trustees or the
Trust shall have the right to enforce, institute or maintain a suit, action or
proceeding against an Ahmanson Indemnified Person relating to the formation of
the Trust, the entering into of the Commitment, the distribution of the CPR
Certificates, the Litigation or actions of the Litigation Trustees in their
capacity (or purportedly in their capacity) as Litigation Trustees.
Notwithstanding the preceding two sentences of this Section 11.2(b), the Trust
(or the Litigation Trustees on behalf of the Trust) may enforce, institute or
maintain a suit, action or proceeding against (i), except as set forth in
Section 3.13(a)(ii), Ahmanson or its successors as successor to the Sponsor for
breach of its obligations hereunder, (ii) Ahmanson or its successors for its
breach of any of its obligations under the Commitment or its failure to deliver
any CPR Certificate when due or to return to the Trust for cancellation any CPR
Certificate required to be returned pursuant to the Merger Agreement when so
required, (iii) Ahmanson or its successors for failure to deposit the Expense
Fund at the Effective Time in a non-interest bearing demand deposit account in
the name of the CPR Trust at Home Savings or (iv) Home Savings or its successors
for breach of any depository relationship obligations it may have with respect
to the Expense Fund, and in each case, Ahmanson or Home Savings or their
successors, as the case may be, may be liable to the Trust in connection with
such suit, action or proceeding; provided, that fees and expenses incurred by
the Ahmanson Group in such a suit, action or proceeding shall not be set off
against the Litigation Proceeds (in order to calculate the Commitment Amount) if
the Trust or the Litigation Trustees prevail in such a suit, and, if in
connection with suits brought pursuant to clauses (i) through (iv) inclusive,
shall be deemed expenses of the Trust payable by the Trust out of the Commitment
Amount, including any Retained Amount, if the Litigation Trustees do not
prevail.
(c) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and, if selected by such Indemnified Person, has been selected by
such Indemnified Person with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other facts pertinent
to the existence and amount of assets from which payment to Holders might
properly be paid.
SECTION 11.3 Fiduciary Duty. (a) To the extent that, at law or in equity,
an Indemnified Person has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to any other Indemnified Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust or to any
other Indemnified Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise existing
at law or in equity, are agreed by the parties hereto to replace such other
duties and liabilities of the Indemnified Person.
(b) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 11.4 Indemnification. (a) The Trust shall indemnify, to the
fullest extent permitted by law, any Trust Indemnified Person in connection with
any threatened, pending or completed action, suit or
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proceeding, whether civil, criminal, administrative or investigative, arising
out of or relating to the Trust, the CPR Certificates, the distribution of the
CPR Certificates, the Litigation or any acts or omissions of the Trustees in
their capacity or purportedly in their capacity as Trustees, or actions taken by
the Litigation Trustees (including actions taken by the Litigation Trustees in
their capacity as officers or directors of Coast or Ahmanson so long as such
actions relate to the Trust including, without limitation, the negotiation of
the terms of the Trust and the CPR Certificates and the approval of the
establishment of the Trust and the distribution of the CPR Certificates and
related transactions, but otherwise excluding actions taken by the Litigation
Trustees in such capacities), against any and all losses, liabilities, damages,
judgments, demands, suits, claims, assessments, charges, fines, penalties and
other costs and expenses, including attorneys' fees and expenses and other fees
and expenses associated with the defense of a claim or incurred by such
Indemnified Person in obtaining indemnification under this Declaration, whether
or not in a formal proceeding (collectively, "Damages").
(b) The Trust shall indemnify, to the fullest extent permitted by law, the
Ahmanson Indemnified Persons against any and all Damages (other than in
connection with claims by stockholders of Ahmanson against Ahmanson's directors
with respect to actions taken at or prior to the Merger) arising out of or
relating to, (i) with respect to claims brought by Holders in their capacity as
Holders, any matter whatsoever and (ii) with respect to claims brought by any
other party, any matter relating to the Trust, the CPR Certificates, the
distribution of the CPR Certificates, the Litigation, and actions taken by the
Litigation Trustees (including actions taken by the Litigation Trustees in their
capacity as officers or directors of Coast or Ahmanson so long as such actions
relate to the Trust including, without limitation, the negotiation of the terms
of the Trust and the CPR Certificates and the approval of the establishment of
the Trust and the distribution of the CPR Certificates and related transactions,
but otherwise excluding actions taken by the Litigation Trustees in such
capacities).
(c) Notwithstanding the preceding paragraphs (a) and (b), no
indemnification shall apply (i) in the case of the indemnification of the
Litigation Trustees, if Holders establish in a final judicial determination by
clear and convincing evidence that such Damages arose as the result of acts or
omissions of the Litigation Trustees with deliberate intent to injure the CPR
Certificate Holders or with reckless disregard for the best interests of such
Holders, (ii) in the case of the indemnification of the Delaware Trustee or the
Institutional Trustee, if Holders establish in a final judicial determination by
clear and convincing evidence that such damages arose because such Trustee was
grossly negligent or engaged in willful misconduct, and (iii) in the case of the
indemnification of the Ahmanson Indemnified Persons under paragraph (b)(ii)
above, with respect to Damages arising from claims against (A) Ahmanson or its
successors as successor to the Sponsor for breach of its obligations hereunder
after the Effective Time, (B) Ahmanson or its successors for its breach of any
of its obligations under the Commitment, (C) Ahmanson or its successors for
failure to deliver any CPR Certificate when due or to return to the Trust for
cancellation any CPR Certificate required to be returned when so required, (D)
Ahmanson or its successors for failure to deposit the Expense Fund at the
Effective Time in a non-interest bearing demand deposit account in the name of
the CPR Trust at Home Savings, or (E) Home Savings or its successors for breach
of any depository relationship obligations it may have with respect to the
Expense Fund. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that (i) the Litigation
Trustees acted or decided with deliberate intent to injure the Holders or with
reckless disregard for the best interests of such Holders or (ii) the Delaware
Trustee or Institutional Trustee was grossly negligent or engaged in willful
misconduct.
(d) To the fullest extent permitted by law, expenses (including attorneys'
fees and expenses) incurred by an Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding referred to
in Sections 11.4(a) and 11.4(b) shall be paid by the Trust in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking (without bond or security) by or on behalf of such Indemnified
Person to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Trust as authorized in this Section 11.4.
(e) All rights to indemnification under this Section 11.4 shall be deemed
to be provided by a contract between the Trust and each Indemnified Person who
serves in such capacity at any time while this
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Section 11.4 is in effect. Any repeal or modification of this Section 11.4 shall
not affect any rights or obligations then existing.
(f) The Trust shall purchase and maintain insurance to cover its
indemnification obligations and any other liabilities of the Litigation
Trustees. The Trust will use amounts from the Expense Fund (or amounts from
other sources of the Trust) to pay for such insurance.
(g) For purposes of this Section 11.4, references to "the Trust" shall
include, in addition to the resulting or surviving entity, any constituent
entity (including any constituent of a constituent) absorbed in a consolidation
or merger involving the Trust, so that any Person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was serving at
the request of such constituent entity as a director, trustee, officer, employee
or agent of another entity, shall stand in the same position under the
provisions of this Section 11.4 with respect to the resulting or surviving
entity as he would have with respect to such constituent entity if its separate
existence had continued.
(h) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section 11.4 shall continue as to a Person who has ceased to
be an Indemnified Person and shall inure to the benefit of the heirs, executors
and administrators of such a Person.
SECTION 11.5 Outside Businesses. Any Indemnified Person may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. No Indemnified
Person shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Indemnified Person
shall have the right to take for its own account (individually or as a partner
or fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Indemnified Person may engage or be interested in any financial
or other transaction with Ahmanson or any Affiliate of Ahmanson, or may act as
depositary for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of Ahmanson or its Affiliates.
SECTION 11.6 Compensation; Fee. The Trust agrees:
(a) to pay to the Institutional Trustee and the Delaware Trustee from
time to time, upon the approval of the Litigation Trustees, reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to pay to the Litigation Trustees the compensation set forth in
Section 3.8 (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee or an express trust); and
(c) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all expenses, disbursements and advances incurred
or made by the Trustees in accordance with any provision of this
Declaration (including the compensation and the expenses and disbursements
of their respective agents and counsel).
The provisions of Section 11.4 and this Section 11.6 shall survive the
dissolution of the Trust and the termination of this Declaration and the removal
or resignation of any Trustee.
ARTICLE XII
ACCOUNTING
SECTION 12.1 Fiscal Year. The fiscal year ("Fiscal Year") of the Trust
shall be the calendar year, or such other year as is required by the Code.
B-34
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SECTION 12.2 Certain Accounting Matters. (a) At all times during the
existence of the Trust, the Litigation Trustees shall keep, or cause to be kept,
full books of account, records and supporting documents, which shall reflect in
reasonable detail each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied. The books of account and
the records of the Trust shall be examined by and reported upon as of the end of
each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Litigation Trustees.
(b) The Litigation Trustees shall cause to be duly prepared and delivered
to each of the Holders any annual United States federal income tax information
statement required by the Code, containing such information with regard to the
CPR Certificates held by each Holder as is required by the Code and the
regulations promulgated thereunder. Notwithstanding any right under the Code to
deliver any such statement at a later date, the Litigation Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(c) The Litigation Trustees shall cause to be duly prepared and filed an
annual United States federal income tax return on a Form 1041 or such other form
required by United States federal income tax law, and any other annual income
tax returns required to be filed by the Litigation Trustees on behalf of the
Trust with any state or local taxing authority.
SECTION 12.3 Banking. The Trust may maintain one or more bank accounts in
the name and for the sole benefit of the Trust; provided, however, that all
payments received by the Trust pursuant to the Commitment shall be maintained
separately from other funds as provided by Section 3.13(b)(ii)(D).
SECTION 12.4 Withholding. The Institutional Trustee or any Paying Agent
shall comply with all withholding requirements under United States federal,
state and local law. The Institutional Trustee or any Paying Agent shall
request, and the Holders shall provide to the Institutional Trustee or any
Paying Agent, such forms or certificates as are necessary to establish an
exemption from withholding with respect to each Holder, and any representations
and forms as shall reasonably be requested by the Institutional Trustee or any
Paying Agent to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Litigation Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Institutional Trustee or any
Paying Agent is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the amount withheld
shall be deemed to be a Distribution in the amount of the withholding to the
Holder. In the event of any claimed overwithholding, Holders shall be limited to
an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Institutional
Trustee or any Paying Agent may reduce subsequent Distributions by the amount of
such withholding.
ARTICLE XIII
AMENDMENTS AND MEETINGS
SECTION 13.1 Amendments. (a) Except as otherwise provided in this
Declaration, this Declaration may only be amended by a written instrument
approved and executed by
(i) the Institutional Trustee;
(ii) the Litigation Trustees, acting by majority vote; and
(iii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Delaware Trustee, the Delaware Trustee.
(b) Notwithstanding any other provision of this Article XIII, no
amendment shall be made, and any such purported amendment shall be void and
ineffective unless the Institutional Trustee shall have first received:
B-35
<PAGE> 188
(A) an Officers' Certificate from the Trust that such amendment is
permitted by, and conforms to, the terms of this Declaration (including
the terms of the CPR Certificates); and
(B) an opinion of counsel (who may be counsel to the Trust, the
Litigation Trustees or to a member of the Ahmanson Group) that such
amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the CPR Certificates).
(c) Except as provided in Section 13.1(d), (e), (f) or (g), no amendment
shall be made, and any such purported amendment shall be void and ineffective
unless the Holders of a majority of the CPR Certificates then outstanding shall
have consented to such amendment.
(d) In addition to and notwithstanding any other provision in this
Declaration, without the consent of each affected Holder, this Declaration may
not, except as permitted by Section 13.1(g)(i) or (ii), be amended to (i)
discriminate among Holders, (ii) restrict the right of a Holder to institute
suit for the enforcement of any such payment on or after such occurrence, or
(iii) modify the definition of Payment Amount or Retained Amount.
(e) Section 2.3(a) and this Section 13.1 shall not be amended without the
consent of all of the Holders of the CPR Certificates then outstanding.
(f) Sections 11.2(b) and 11.4(b), (c)(iii), (d), (e), (f), (g) and (h)
shall not be amended without the consent of Ahmanson as successor to the
Sponsor.
(g) Subject to Section 13.1(b), this Declaration may be amended by the
Institutional Trustee and the Litigation Trustees without the consent of the
Holders of the CPR Certificates:
(i) to cure any ambiguity;
(ii) to correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of this
Declaration;
(iii) to add to the covenants, restrictions or obligations of the
Litigation Trustees or to alter the allocation of duties between the
Litigation Trustees and the Institutional Trustee;
(iv) to modify, eliminate or add to any provision of this Declaration
to such extent as may be necessary to ensure that the Trust (A) will be
classified for United States federal income tax purposes at all times as a
grantor trust, (B) will not be required to register as an Investment
Company under the Investment Company Act (including without limitation to
conform to any change in any applicable rule under the Investment Company
Act or written change in interpretation or application thereof by any
legislative body, court, government agency or regulatory authority) or (C)
is able to issue additional CPR Certificates;
provided, however, that no such modification, elimination or addition
referred to in clauses (i), (ii), (iii) or (iv) shall adversely affect the
powers, preferences or special rights of Holders or cause the Trust to fail
to continue to be classified as a grantor trust for purposes of United
States federal income taxation.
(h) The Institutional Trustee may, but shall have no obligation to, execute
any amendment which materially adversely affects its rights, powers, immunities
or indemnities.
SECTION 13.2 Meetings of Holders of CPR Certificates; Action by Written
Consent. (a) Meetings of the Holders may be called at any time by the Litigation
Trustees to consider and act on any matter on which Holders are entitled to act
under the terms of this Declaration, the terms of the CPR Certificates or the
rules of any stock exchange or automated quotation system on which the CPR
Certificates are listed or admitted for trading, if any. The Litigation Trustees
shall call a meeting of the Holders if directed to do so by the Holders of at
least 25% of CPR Certificates. Such direction shall be given by delivering to
the Litigation Trustees one or more calls in a writing stating that the signing
Holders wish to call a meeting and indicating the general or specific purpose
for which the meeting is to be called.
(b) Except to the extent otherwise provided in the terms of the CPR
Certificates, the following provisions shall apply to meetings of Holders:
B-36
<PAGE> 189
(i) notice of any such meeting (with a copy to the Institutional
Trustee) shall be given to all the Holders having a right to vote thereat
at least 20 days and not more than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the Holders is permitted or
required under this Declaration or the rules of any stock exchange or
automated quotation system on which the CPR Certificates are listed or
admitted for trading, if any, such vote, consent or approval may be given
at a meeting of the Holders. Any action that may be taken at a meeting of
the Holders may be taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders owning not less than the
minimum amount of CPR Certificates that would be necessary to authorize or
take such action at a meeting at which all Holders having a right to vote
thereon were present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders entitled to vote who have
not consented in writing. The Litigation Trustees may specify that any
written ballot submitted to the Holders for the purpose of taking any
action without a meeting shall be returned to the Trust within the time
specified by the Litigation Trustees;
(ii) each Holder may authorize any Person to act for it by proxy on
all matters in which a Holder is entitled to participate, including waiving
notice of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date thereof
unless otherwise provided in the proxy. Every proxy shall be revocable at
the pleasure of the Holder executing it. Except as otherwise provided
herein, all matters relating to the giving, voting or validity of proxies
shall be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders were stockholders of a
Delaware corporation; each meeting of the Holders shall be conducted by the
Litigation Trustees or by such other Person that the Litigation Trustees
may designate; and
(iii) unless the Business Trust Act, this Declaration or the terms of
the CPR Certificates or the listing rules of any stock exchange on which
the CPR Certificates are then listed for trading, if any, otherwise
provides, the Litigation Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders, including
notice of the time, place or purpose of any meeting at which any matter is
to be voted on by any Holders, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with respect to the
exercise of any such right to vote.
ARTICLE XIV
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 14.1 Representations and Warranties of the Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Institutional Trustee represents and warrants to the Trust at the time
of the Successor Institutional Trustee's acceptance of its appointment as
Institutional Trustee, that:
(a) the Institutional Trustee is a corporation or banking association
with trust powers, duly organized, validly existing and in good standing
under the laws of the United States or a State thereof with power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the Institutional
Trustee of this Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. This Declaration
has been duly executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general
principles of equity (regardless of whether considered in a proceeding in
equity or at law); and
B-37
<PAGE> 190
(c) the execution, delivery and performance of this Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Institutional Trustee.
SECTION 14.2 Representations and Warranties of the Delaware Trustee. The
Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust at the time of the
Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee,
that:
(a) the Delaware Trustee, if other than an individual, is duly
organized, validly existing and in good standing under the laws of the
State of Delaware, with power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity (regardless of whether
considered in a proceeding in equity or at law); and
(c) the Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware and, in either case, a
Person that satisfies for the Trust the requirements of Section 3807 of the
Business Trust Act.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices. All notices provided for in this Declaration shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Institutional Trustee at the
Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the CPR Certificates):
Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
Montgomery Building
1011 Centre Road
Wilmington, Delaware 19805-1266
Attention: Lisa Wilkins
Facsimile: (302) 636-3222
with a copy to:
Bankers Trust Company
Four Albany Street
New York, New York 10006
Attention: Kevin Weeks
Facsimile: (212) 250-6961
B-38
<PAGE> 191
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to
the Holders of the CPR Certificates):
Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
Montgomery Building
1011 Centre Road
Wilmington, Delaware 19805-1266
Attention: Lisa Wilkins
Facsimile: (302) 636-3222
(c) if given to the Institutional Trustee, at the Institutional
Trustee's Corporate Trust Office (or such other address as the
Institutional Trustee may give notice of to the Holders of the CPR
Certificates).
(d) if given to the Litigation Trustees, at the mailing address set
forth below (or such other address as the Trust may give notice of to the
Holders of the CPR Certificates):
c/o Bankers Trust Company
Four Albany Street
New York, New York 10006
Attention: Kevin Weeks
Facsimile: (212) 250-6961
(e) if given to any Holder, at the address set forth on the books and
records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver the same.
SECTION 15.2 Governing Law. This Declaration and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to the principles of conflict of laws of the State of Delaware or
any other jurisdiction that would call for the application of the law of any
jurisdiction other than the State of Delaware; provided, however, that, to the
fullest extent permitted by law, there shall not be applicable to the Trust, the
Trustees or this Declaration any provision of the laws (statutory or common) of
the State of Delaware pertaining to trusts that relate to or regulate, in a
manner inconsistent with the terms hereof (a) the filing with any court or
governmental body or agency of trustee accounts or schedules of trustee fees and
charges, (b) affirmative requirements to post bonds for trustees, officers,
agents or employees of a trust, (c) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition of real
or personal property, (d) fees or other sums payable to trustees, officers,
agents or employees of a trust, (e) the allocation of receipts and expenditures
to income or principal, (f) restrictions or limitations on the permissible
nature, amount or concentration of trust investments or requirements relating to
the titling, storage or other manner of holding or investing trust assets or (g)
the establishment of fiduciary or other standards of responsibility or
limitations on the acts or powers of trustees that are inconsistent with the
limitations or liabilities or authorities and powers of the Trustees as set
forth or referenced in this Declaration. Section 3540 and Section 3561 of Title
12 of the Delaware Code shall not apply to the Trust.
SECTION 15.3 Intention of Parties. It is the intention of the parties
hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust that is formed to hold the Commitment and liquidate
the Commitment, as provided for herein. The provisions of this Declaration shall
be interpreted to further this intention of the parties.
SECTION 15.4 Headings. Headings contained in this Declaration are inserted
for convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
B-39
<PAGE> 192
SECTION 15.5 Successors and Assigns. Whenever in this Declaration any of
the parties hereto is named or referred to, the successors and assigns of such
party shall be deemed to be included, and all covenants and agreements in this
Declaration by the Sponsor and the Trustees shall bind and inure to the benefit
of their respective successors and assigns, whether or not so expressed.
SECTION 15.6 Partial Enforceability. If any provision of this Declaration,
or the application of such provision to any Person or circumstance, shall be
held invalid, the remainder of this Declaration, or the application of such
provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 15.7 Specific Performance. The Litigation Trustees and the Sponsor
hereby agree that the obligations imposed on them in this Declaration are
special, unique and of an extraordinary character, and that, in the event of
breach by the Litigation Trustees or the Sponsor, as the case may be, damages
would not be an adequate remedy and the Litigation Trustees or the Sponsor, as
the case may be, shall be entitled to specific performance and injunctive and
other equitable relief, including declaratory relief, in addition to any other
remedy to which it may be entitled, at law or in equity; and the Litigation
Trustees and the Sponsor hereby further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief.
SECTION 15.8 Counterparts. This Declaration may contain more than one
counterpart of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees and the Sponsor to any of such
counterpart signature pages. All of such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
BANKERS TRUST (DELAWARE)
as Delaware Trustee
By:
--------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
as Institutional Trustee
By:
--------------------------------------
Name:
Title:
COAST SAVINGS FINANCIAL, INC.,
as Sponsor
By:
--------------------------------------
Name:
Title:
COAST FEDERAL LITIGATION
CONTINGENT PAYMENT RIGHTS TRUST
By:
--------------------------------------
Ray Martin, as Litigation Trustee
B-40
<PAGE> 193
By:
--------------------------------------
Robert L. Hunt II, as Litigation
Trustee
By:
--------------------------------------
James F. Barritt, as Litigation
Trustee
By:
--------------------------------------
Norman H. Raiden, as Litigation
Trustee
B-41
<PAGE> 194
EXHIBIT B TO AMENDED AND RESTATED DECLARATION OF TRUST
FORM OF CONTINGENT PAYMENT RIGHT CERTIFICATE
[FORM OF FACE OF CERTIFICATE]
[The following two paragraphs apply only to Certificates in global form.]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
DECLARATION REFERRED TO BELOW.]
<TABLE>
<S> <C>
- ------------------------------ --------------------------------------------------------------------------------
CERTIFICATE NUMBER NUMBER OF CONTINGENT PAYMENT RIGHT CERTIFICATES
</TABLE>
CUSIP NO
CERTIFICATE EVIDENCING UNDIVIDED BENEFICIAL INTERESTS IN THE ASSETS
OF
COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
CONTINGENT PAYMENT RIGHT CERTIFICATES
COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST, a statutory
business trust created under the laws of the State of Delaware (the "Trust"),
hereby certifies that (the "Holder") is the registered owner of
certificates of the Trust representing undivided beneficial interests in the
assets of the Trust, designated the Contingent Payment Right Certificates (the
"CPR Certificates"). Subject to the Declaration (as defined below), the CPR
Certificates are transferable on the books and records of the Trust, in person
or by a duly authorized attorney, upon surrender of this Certificate duly
endorsed and in proper form for transfer. The CPR Certificates represented
hereby are issued pursuant to the designation, rights, privileges, restrictions,
preferences and other terms and provisions of, and shall in all respects be
subject to, the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of , 1998, among Ray Martin, Robert L. Hunt II,
Norman H. Raiden and James F. Barritt as Litigation Trustees (the "Litigation
Trustees"), Bankers Trust (Delaware), as Delaware Trustee, Bankers Trust
Company, as Institutional Trustee, Coast Savings Financial, Inc., as Sponsor,
and the holders from time to time of undivided beneficial interests in the
assets of the Trust, including the designation of the terms of the CPR
Certificates, as the same may be amended from time to time (the "Declaration").
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The [Institutional Trustee] will provide a copy of the
Declaration to the Holder without charge upon written request to the Trust at
its principal place of business.
B-42
<PAGE> 195
Upon receipt of this CPR Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
This CPR Certificate is governed by, and construed in accordance with, the
laws of the State of Delaware, without regard to principles of conflict of laws.
IN WITNESS WHEREOF, the Trust has duly executed this CPR Certificate.
COAST FEDERAL LITIGATION
CONTINGENT PAYMENT RIGHTS TRUST
[By: COAST SAVINGS FINANCIAL, INC. as
Sponsor
By:
------------------------------------
Name:
Title: [Authorized Officer]]
[By:
------------------------------------
Name:
Title: Litigation Trustee
By:
------------------------------------
Name:
Title: Litigation Trustee
By:
------------------------------------
Name:
Title: Litigation Trustee
By:
------------------------------------
Name:
Title: Litigation Trustee]
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the CPR Certificates referred to in the within-mentioned
Declaration.
BANKERS TRUST COMPANY, as the
Institutional Trustee
By:
--------------------------------------
[Authorized Officer]
[FORM OF REVERSE OF CERTIFICATE]
Distributions payable on each CPR Certificate will be payable from time to
time upon the receipt by the Trust of payments of the Commitment Amount (as
defined herein) from H. F. Ahmanson & Company, a Delaware corporation
("Ahmanson") pursuant to the Commitment Agreement (the "Commitment") dated
B-43
<PAGE> 196
as of , 1998, between Ahmanson and the Trust, entered into by
Ahmanson as part of the consideration for the merger (the "Merger") of Coast
Savings Financial, Inc. ("Coast") with and into Ahmanson. The Commitment Amount
means the Litigation Proceeds (as defined herein) minus the Reimbursements (as
defined herein) plus the Assumed Tax Benefit (as defined herein). Litigation
Proceeds means any and all cash payments (the "Cash Proceeds") and non-cash
payments (the "Non-Cash Proceeds") actually received by Coast Federal or Home
Savings or any of their affiliates (the "Ahmanson Group") pursuant to a final,
non-appealable judgment or a final settlement of the litigation claims of Coast
Federal Bank, Federal Savings Bank, a wholly-owned subsidiary of Coast, ("Coast
Federal") and any of its successors, in Coast Federal Bank, Federal Savings Bank
v. United States, Civil Action Number 92-466C (Cl. Ct. filing July 9, 1992) (the
"Litigation"). Reimbursements means an amount equal to (a) the Expense Fund (as
defined herein), plus (b) interest on the portion of the Expense Fund withdrawn
by the Trust calculated from the time of any such withdrawal at an annual
interest rate equal to the reference rate of Bank of America (the "Reference
Rate") plus 250 basis points, compounded quarterly, plus (c) the Assumed Tax
Liability (as defined herein), plus (d) in the event the Litigation Proceeds are
required to be included in income for federal income tax purposes in a taxable
year prior to the year such proceeds are received in cash (because of either the
accrual of Cash Proceeds before the payment thereof or the time required to
liquidate Non-Cash Proceeds), interest at the Reference Rate plus 250 basis
points from the date of such payment of taxes to the date of receipt of cash.
Assumed Tax Benefit means an amount equal to the tax benefit that would be
allowed to the Ahmanson Group under Section 483(a) of the Internal Revenue Code,
computed based on certain assumptions, from payments on the Commitment. The
Expense Fund means an amount equal to $20 million, less the expenses relating to
the Litigation incurred and paid by Coast Federal between August 31, 1997 and
the effective date of the Merger, which amount Ahmanson will deposit at the
effective time of the Merger in a non-interest bearing demand-deposit account in
the name of the Trust at Home Savings. The Assumed Tax Liability means an amount
equal to the income (including franchise) tax liability of the Ahmanson Group
(not giving effect to any deductions attributable to payments of the Commitment
Amount) attributable to the receipt of the Litigation Proceeds computed on
certain assumptions. The Payment Amount means, with respect to each payment of
the Commitment Amount received by the Trust pursuant to the Commitment, such
payment of the Commitment Amount received by the Trust (including the amount of
cash resulting from the monetization by Ahmanson of any Non-Cash Proceeds) less
the amount of any accrued but unpaid expenses payable by the Trust and, for any
reason, not covered by the Expense Fund (including, without limitation,
contingent amounts payable to attorneys, experts or others retained by the Trust
or Coast Federal (or any successor thereto) in connection with the prosecution
of the Litigation by Coast Federal (or any successor thereto)), plus interest or
income, if any, received by the Trust on such payment of the Commitment Amount,
less amounts retained by the Trust as the Retained Amount (as defined herein).
The Retained Amount means $10 million (or such greater amount as the Litigation
Trustees shall reasonably determine may be reasonably likely to be required to
pay additional expenses or to satisfy the Trust's indemnification obligations).
The Litigation Trustees' obligation to make payments to the Holders shall be
subject to the requirement that the Trust retain, from amounts remaining in the
Expense Fund and from payments of the Commitment Amount, the Retained Amount for
a period (the "Retained Amount Period") of two years (or such longer period as
the Litigation Trustees shall reasonably determine (initially or at any time
prior to the then scheduled termination of the Retained Amount Period) may be
reasonably likely to be required) to satisfy all expenses, costs and claims and
indemnification obligations of the Trust which may be incurred or which may
arise after the Commitment Amount is paid in full.
The Trust will make payments from time to time to the Holders of the
Payment Amounts upon the receipt of the applicable payments of the Commitment
Amount from Ahmanson. Each CPR Certificate will entitle the Holder thereof to
receive a fraction (equal to 1 divided by the total number of CPR Certificates
outstanding) of any Payment Amount within 60 days after the Trust receives a
Commitment Amount.
Within 90 days of the expiration of the Retained Amount Period, the Trust
will pay to the Holders any remaining portion of the Retained Amount. Each CPR
Certificate will entitle the Holder thereof to receive a fraction (equal to 1
divided by the total number of CPR Certificates then outstanding) of the
remaining portion of the Retained Amount.
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The Trust shall mandatorily redeem for $0.01 in cash each CPR Certificate
issued to a Coast stockholder who provides a notice of intent to exercise
appraisal rights in the Merger with respect to shares of Coast common stock. If
any such Coast stockholder subsequently withdraws, or fails to perfect, such
appraisal demand, Ahmanson in its capacity as successor to the Sponsor, shall
deliver to such stockholder one CPR Certificate for each share of Coast common
stock as to which such appraisal demand was withdrawn and not perfected.
To the fullest extent permitted by law, no Trust Indemnified Person (as
defined in the Declaration) shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Indemnified Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Trust Indemnified Person, except that (i) the Litigation Trustees shall be
liable for any such loss, damage or claim incurred by reason of any act or
omission performed or omitted by them if it shall be established in a final
judicial determination by clear and convincing evidence that any such act or
omission of the Litigation Trustees was undertaken with deliberate intent to
injure the Holders or with reckless disregard for the best interests of such
Holders and, in any event, any liability will be limited to actual, proximate,
quantifiable damages, and (ii) the Institutional Trustee or the Delaware Trustee
shall be liable for any such loss, damage or claim incurred by reason of the
Institutional Trustee's or Delaware Trustee's (as the case may be) gross
negligence or willful misconduct with respect to such acts or omissions.
To the fullest extent permitted by law, no Ahmanson Indemnified Person (as
defined in the Declaration), shall have any liability to the Trust, the Trustees
or the Holders. Without limiting the generality of the foregoing, to the fullest
extent permitted by law, none of the Holders (in their capacity as Holders), the
Trustees or the Trust shall have the right to enforce, institute or maintain a
suit, action or proceeding against an Ahmanson Indemnified Person relating to
the formation of the Trust, the entering into of the Commitment, the
distribution of the CPR Certificates, the Litigation or actions of the
Litigation Trustees in their capacity (or purportedly in their capacity) as
Litigation Trustees. The Trust (or the Litigation Trustees on behalf of the
Trust) may enforce, institute or maintain a suit, action or proceeding against
(i) Ahmanson or its successors as successor to the Sponsor for breach of its
obligations under the Declaration, (ii) Ahmanson or its successors for its
breach of any of its obligations under the Commitment or its failure to deliver
any CPR Certificate when due or to return to the Trust for cancellation any CPR
Certificate required to be returned pursuant to the Merger Agreement when so
required, (iii) Ahmanson or its successors for failure to deposit the Expense
Fund at the Effective Time in a non-interest bearing demand deposit account in
the name of the Trust at Home Savings, or (iv) Home Savings or its successors
for breach of any depository relationship obligations it may have with respect
to the Expense Fund, and in each case, Ahmanson or Home Savings or their
successors, as the case may be, may be liable to the Trust in connection with
such suit, action or proceeding; provided, that fees and expenses incurred by
the Ahmanson Group in such a suit, action or proceeding shall not be set off
against the Litigation Proceeds (in order to calculate the Commitment Amount) if
the Trust or the Litigation Trustees prevail in such a suit, and, if in
connection with suits brought pursuant to clauses (i) through (iv) inclusive,
shall be deemed expenses of the Trust payable by the Trust out of the Commitment
Amount, including any Retained Amount, if the Litigation Trustees do not
prevail.
The Holders will have no voting rights (except in connection with certain
amendments to the Declaration described in Article XIII of the Declaration and
except in connection with the removal of the Institutional Trustee and the
Delaware Trustee for cause, or, if a default by the Trust with respect to its
payment obligations under Article IV of the Declaration shall have occurred and
be continuing, with or without cause), no liquidation preference and no rights
to dividends or distributions other than their pro rata share of the Payment
Amount and any portion of the Retained Amount remaining at the expiration of the
Retained Amount Period, plus any other Trust assets.
THE CPR CERTIFICATES ARE NOT SAVINGS ACCOUNTS OR DEPOSITS AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION.
The Holders have no rights with respect to, or interest in, (i) the
Litigation, (ii) Coast Federal, or (iii) any amount received by Coast Federal or
any other member of the Ahmanson Group with respect to the Litigation, including
any judgment or settlement proceeds.
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Each Holder acknowledges that: (i) the Litigation is solely an asset of
Coast Federal and its successors, (ii) the Litigation shall be conducted by and
on behalf of Coast Federal and its successors solely in accordance with the
instructions of the Litigation Trustees pursuant to the Declaration, (iii) the
Litigation Trustees shall have the sole and exclusive right to direct Coast
Federal and its successors to take (or not take) actions relating to the
Litigation as contemplated by the Declaration and may, among other things,
instruct Coast Federal and its successors to dismiss, settle or cease
prosecuting the Litigation at any time without obtaining any cash or other
recovery, or upon obtaining any such cash or other recovery as the Litigation
Trustees may determine, and (iv) the Litigation Trustees have the sole and
exclusive right to take or not take other actions contemplated by the
Declaration relating to the Litigation (including, without limitation, any
decision with respect to the incurrence of expenses).
Nothing in the Declaration or this CPR Certificate shall be construed to
create any partnership or joint venture between the Sponsor, Coast Federal,
Ahmanson or any member of the Ahmanson Group, and the Holders.
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APPENDIX C
COMMITMENT AGREEMENT, dated as of , 1998 (this "Agreement"), by
and between H. F. Ahmanson & Company, a Delaware corporation ("Ahmanson"), and
the Coast Federal Litigation Contingent Payment Right Trust (the "CPR Trust"), a
Delaware business trust (the "CPR Trust").
RECITALS
WHEREAS, Ahmanson has entered into an Amended and Restated Agreement and
Plan of Merger, dated as of October 5, 1997 (the "Merger Agreement"), by and
between Ahmanson and Coast Savings Financial, Inc. ("Coast");
WHEREAS, prior to or simultaneously with the execution of this Agreement,
Ahmanson will have deposited or will deposit the Expense Fund in a non-interest
bearing demand-deposit account in the name of the CPR Trust at Home Savings; and
WHEREAS, pursuant to the Merger Agreement, Ahmanson has agreed to enter
into this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 Certain Definitions. (a) The following terms are used in this
Agreement with the meanings set forth below:
"Accountant" has the meaning set forth in Section 2.02 hereof.
"Ahmanson" has the meaning set forth in the preamble to this
Agreement.
"Ahmanson Certificate" has the meaning set forth in Section 2.02
hereof.
"Ahmanson Group" means Ahmanson, Coast Federal or Home Savings or any
of their affiliates.
"Ahmanson Indemnified Parties" has the meaning set forth in Section
2.07 hereof.
"Assumed Tax Benefit" means an amount equal to the tax benefit that
would be allowed to the Ahmanson Group under Section 483(a) computed as set
forth in Section 2.03 hereof.
"Assumed Tax Liability" means an amount equal to the income (including
franchise) tax liability of the Ahmanson Group (not giving effect to any
deductions attributable to payments of the Commitment Amount) attributable
to the receipt of the Litigation Proceeds computed as set forth in Section
2.03 hereof.
"Cash Proceeds" means any cash payment actually received by the
Ahmanson Group pursuant to a final, nonappealable judgment or a final
settlement of the Litigation.
"Coast" has the meaning set forth in the recitals to this Agreement.
"Coast Federal" means Coast Federal Bank, Federal Savings Bank.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment Amount" means the Litigation Proceeds minus the
Reimbursements plus the Assumed Tax Benefit.
"Controlled Subsidiary" means any person at least 80% of the
outstanding shares of Voting Stock (except for directors' qualifying
shares) of which is at the time owned directly or indirectly by Ahmanson.
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"CPR Calculation Certificate" has the meaning set forth in Section
2.02 hereof.
"CPR Trust" has the meaning set forth in the preamble to this
Agreement.
"CPR Trust Agreement" means the Amended and Restated Declaration of
Trust, dated as of , 1998, among Coast, the Litigation Trustees
and the other trustees named therein.
"Damages" has the meaning set forth in Section 2.07 hereof.
"Determination" means (a) a determination that Litigation Proceeds are
not includible in gross income in whole or in part or (b) a determination
that no deduction is allowed (or that any allowed deduction is limited) in
respect of payments of the Commitment Amount under Section 483(a) in whole
or in part. With respect to clause (a), no such Determination shall be
deemed to be made unless it is made prior to the earlier of (x) thirty days
before the date of filing by the Ahmanson Group of the federal tax return
for the taxable year in which the Litigation Proceeds are assumed to be
includible in gross income or (y) the receipt by the Ahmanson Group of the
Litigation Proceeds. With respect to clause (b), no such Determination
shall be deemed to be made with respect to any payment of the Commitment
Amount unless such Determination is made prior to (A) the end of the 30th
day following the delivery to the CPR Trust of the Ahmanson Certificate
with respect to such payment of the Commitment Amount, if the CPR Trust
does not deliver a Notice of Objection within such 30-day period with
respect to such Ahmanson Certificate, or (B) the Resolution with respect to
such payment of the Commitment Amount, if the CPR Trust delivers a Notice
of Objection within the 30-day period referred to in clause (A) above with
respect to such Ahmanson Certificate.
"Due Date" has the meaning set forth in Section 2.02 hereof.
"Expense Fund" means the $ million that Ahmanson is depositing
simultaneously with the effectiveness of this Agreement in a non-interest
bearing demand-deposit account in the name of the CPR Trust at Home
Savings.
"FHLBSF" means the Federal Home Loan Bank of San Francisco.
"FIRREA" means the Financial Institutions Reform, Recovery and
Enforcement Act of 1989.
"Home Savings" means Home Savings of America, FSB.
"IRS" means the Internal Revenue Service.
"Litigation" means Coast Federal Bank, FSB v. United States, No.
92-466C (United States Court of Claims, filed July 9, 1992).
"Litigation Proceeds" means any and all Cash Proceeds and Non-Cash
Proceeds.
"Non-Cash Proceeds" means the non-cash payments, if any, actually
received by the Ahmanson Group pursuant to a final, non-appealable judgment
or a final settlement of the Litigation.
"Notice of Agreement" has the meaning set forth in Section 2.02
hereof.
"Notice of Objection" has the meaning set forth in Section 2.02
hereof.
"Officer's Certificate" means a certificate from the chief financial
officer of Home Savings specifying that portion of the Litigation Proceeds
that cannot be paid due to regulatory restrictions and the applicable law,
regulation or other action of a regulatory authority that is the source of
the regulatory restrictions described in Section 2.03 hereof.
"Opinion of Counsel" means an opinion of outside counsel substantially
to the effect that the distribution by Home Savings of the Litigation
Proceeds or the applicable portion thereof, as the case may be, would
result in the violation of the applicable law, regulation or other action
of a regulatory authority that is the source of the regulatory restrictions
described in Section 2.03 hereof.
"Proceeds Notice" has the meaning set forth in Section 2.02 hereof.
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"Reference Rate" means the reference rate or an equivalent rate
announced from time to time of the Bank of America or any successor (or, if
no successor remains in existence or publicly announces a rate, the
commercial bank with the largest amount of deposits in the State of
California as of the most recent year end prior to the applicable date for
which information is publicly available and which publicly announces such a
rate, as determined in good faith by Ahmanson's Board of Directors), as in
effect from time to time.
"Regulatory Document" means either (i) a copy of written documentation
from the applicable regulatory authority to the effect that Home Savings
may not distribute the Litigation Proceeds, or any portion thereof, to
Ahmanson, or (ii), prior to the expiration of any applicable prior notice
or application period following Home Savings' submission to the applicable
regulatory authority of a notice or application for approval of a
distribution of the Litigation Proceeds to Ahmanson, an officer's
certificate from the chief financial officer of Home Savings certifying
that Home Savings has submitted such a notice or application and that Home
Savings has not received any written documentation from such regulatory
authority to the effect that Home Savings may make such distribution.
"Reimbursements" means an amount equal to (i) the Expense Fund plus
(ii) interest on the portions of the Expense Fund withdrawn by the CPR
Trust calculated from the time of any such withdrawal at an annual interest
rate equal to the Reference Rate plus 250 basis points, compounded
quarterly plus (iii) the Assumed Tax Liability plus (iv) in the event
Litigation Proceeds are required to be included in income for federal
income tax purposes in a taxable year prior to the year such proceeds are
received in cash (because of either the accrual of Cash Proceeds before the
payment thereof or the time required to liquidate Non-Cash Proceeds),
interest at an annual interest rate equal to the Reference Rate plus 250
basis points from the date of payment of taxes on such income to the date
of receipt of cash.
"Resolution" has the meaning set forth in Section 2.02 hereof.
"Section 483(a)" means Section 483(a) of the Code.
"Tax Assumptions" means (i), if there is no Determination, the
following assumptions or (ii), if there is a Determination, the following
assumptions as modified by such Determination:
(a) The Litigation Proceeds will be includible in gross income as
ordinary income in full.
(b) Payments of the Commitment Amount will not be deductible except
that Section 483(a) will apply to payments of the Commitment Amount,
other than those allocable to CPR Certificates issued on exercise of
employee options or otherwise in a transaction that is not a sale or
exchange, and payments of the Commitment Amount will be deductible to
the extent treated by Section 483(a) as interest expense; it being
understood that it is not intended that the distribution of the CPR
Certificates immediately prior to the Effective Time of the Merger will
result in the characterization of such distribution as not constituting
"a sale or exchange."
(c) The income tax liability attributable to the assumed inclusion
of all or a portion of the Litigation Proceeds in gross income as
ordinary income and the benefit of any deduction assumed to be allowed
under Section 483(a) shall be (i) the product of the amount of such
income or deduction and the highest statutory rate of federal income tax
applicable to corporations for the year in which the income is assumed
to be included or the deduction is assumed to be realized plus (ii) the
product of such income or deduction and the net combined marginal rate
of state and local income (or franchise) tax of the relevant member or
members of the Ahmanson Group for the year in which the income is
assumed to be included and the deduction is assumed to be realized, net
of the federal income tax benefit (calculated based on the rate in
clause (i)) of such state or local income (or franchise) tax. The
relevant member or members of the Ahmanson Group shall be the member or
members that is or are assumed to include the Litigation Proceeds in
income or is or are assumed to be allowed a deduction under Section
483(a).
(d) Any benefit from any deduction allowable to the Ahmanson Group
under paragraph (c) of these assumptions for payments of the Commitment
Amount shall be assumed to be realized (i) when those payments are made
to the extent those payments do not exceed the Litigation
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Proceeds included in income for the same taxable year, or (ii) otherwise
when, taking into account other deductions or losses or credits of the
Ahmanson Group, the deduction would reduce the tax otherwise payable or
result in a refund of tax already paid.
(e) Ahmanson will be entitled to rely on a written opinion of
either Sullivan & Cromwell or another nationally recognized law firm
with expertise on the matter on which the opinion is sought (with a copy
of such opinion to the Litigation Trustees) that is selected by Ahmanson
and (unless such law firm is principal outside tax counsel to Ahmanson)
reasonably acceptable to the Litigation Trustees in determining whether
there has been a Determination and in otherwise applying the Tax
Assumptions to determine the income (including franchise) tax liability
of the Ahmanson Group attributable to the receipt of the Litigation
Proceeds and payments of the Commitment Amount and any tax benefit
attributable to payments of the Commitment Amount.
(f) If the Assumed Tax Liability or the Assumed Tax Benefit cannot
be computed at the time of the receipt of the Cash Proceeds or a payment
of the Commitment Amount because of the absence of information as to tax
rates and other factors described in the definition of Assumed Tax
Liability or the definition of Assumed Tax Benefit, as the case may be,
the Ahmanson Group shall compute a tentative Assumed Tax Liability or a
tentative Assumed Tax Benefit, as the case may be, based on such
assumptions, which are consistent with respect to the Assumed Tax
Liability and the Assumed Tax Benefit, that in the reasonable opinion of
the Ahmanson Group would protect the Ahmanson Group against any risk of
loss. The payment of the Commitment Amount shall be based on such
tentative Assumed Tax Liability or such tentative Assumed Tax Benefit
computation, as the case may be. As soon as feasible, but in no event
later than 12 months after the end of the taxable year in which the
Commitment Amount is paid based on the tentative Assumed Tax Liability
and Assumed Tax Benefit, the Ahmanson Group shall recompute the Assumed
Tax Liability or the Assumed Tax Benefit, as the case may be, and pay to
the CPR Trust any excess of the re-computed Commitment Amount over the
Commitment Amount that was initially calculated plus interest for the
period over which the payment was deferred at a rate equal to Home
Savings' cost of funds as submitted monthly to the FHLBSF.
"Trustees" means the Delaware trustee, the institutional trustee and
the Litigation Trustees to the CPR Trust.
"Voting Stock" means, with respect to any person, stock of any class
or classes, however designated, having ordinary voting power for the
election of a majority of the board of such person, other than stock having
such power only by reason of the happening of a contingency.
(a) Any capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Merger Agreement.
ARTICLE II
THE COMMITMENT
2.01 The Commitment. (a) Ahmanson shall pay to the CPR Trust the Commitment
Amount within the time specified under Section 2.02 hereof. In the event that
the Ahmanson Group receives the Litigation Proceeds in staggered payments, the
procedures described in this Article II with respect to the calculation and
payment of the Commitment Amount will apply in full force to each such staggered
payment of the Commitment Amount.
2.02 Payment Procedures. (a) Proceeds Notice; Ahmanson Certificate. Within
10 days of the receipt by the Ahmanson Group of any Litigation Proceeds,
Ahmanson will deliver to the Litigation Trustees a written notice (the "Proceeds
Notice") specifying that such Litigation Proceeds have been received and
describing the type and amount of any Non-Cash Proceeds received. Within 10 days
of the delivery of the Proceeds Notice, the Litigation Trustees shall deliver to
Ahmanson written instructions to liquidate the Non-Cash Proceeds
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received. If so instructed, Ahmanson will then liquidate or cause to be
liquidated the Non-Cash Proceeds in accordance with the instructions.
As promptly as practicable but in no event later than 30 days after the
later of the receipt by Ahmanson of such Litigation Proceeds and of the
liquidation by Ahmanson of Non-Cash Proceeds, Ahmanson will deliver to the
Litigation Trustees a certificate (the "Ahmanson Certificate") setting forth the
calculation of the portion of the Commitment Amount with respect to such
Litigation Proceeds, which Ahmanson Certificate shall be valid and binding
absent manifest error. The Ahmanson Certificate shall set forth each of the
items required under this Agreement to calculate the Commitment Amount,
including the amount of Litigation Proceeds and the amount of (and calculation
of) each component of the Reimbursements and the assumptions underlying the
determination of each item and shall be substantially in the form of Exhibit A
hereto, and Ahmanson shall attach to the Ahmanson Certificate financial and
other documentation reasonably sufficient to support each item and assumption
used to calculate the Commitment Amount. Within 30 days of delivery of the
Ahmanson Certificate, the CPR Trust will give written notice specifying whether
it agrees or objects (a "Notice of Agreement" and a "Notice of Objection",
respectively) to the calculation in the Ahmanson Certificate of the portion of
the Commitment Amount with respect to such Litigation Proceeds. If the CPR Trust
delivers a Notice of Agreement, Ahmanson will then deliver the portion of the
Commitment Amount with respect to such Litigation Proceeds to the institutional
trustee for the CPR Trust within 5 business days of such Notice of Agreement. If
the CPR Trust delivers a Notice of Objection within such 30-day period, Ahmanson
will deliver such portion of the Commitment Amount only upon a Resolution.
(b) Dispute Resolution. If the CPR Trust delivers a Notice of
Objection within such 30-day period, the CPR Trust shall as promptly as
practicable following delivery of the Notice of Objection deliver to
Ahmanson a certificate (the "CPR Calculation Certificate") setting forth
its calculation of such portion of the Commitment Amount. The CPR
Calculation Certificate shall set forth each of the items required under
this Agreement to calculate such portion of the Commitment Amount,
including the amount of Litigation Proceeds and the amount of (and
calculation of) each component of the Reimbursements and the assumptions
underlying the determination of each item and shall be substantially in the
form of Exhibit A hereto, and the CPR Trust shall attach to the CPR
Calculation Certificate financial and other documentation reasonably
sufficient to support each item and assumption used to calculate such
portion of the Commitment Amount. If Ahmanson does not agree with the CPR
Trust's calculation of such portion of the Commitment Amount, then within
10 business days of the delivery by the CPR Trust of the CPR Calculation
Certificate, Ahmanson and the CPR Trust shall submit the calculation of
such portion of the Commitment Amount to a mutually agreed upon independent
certified public accountant (the "Accountant"). If Ahmanson and the CPR
Trust cannot agree upon such independent certified public accountant, then
Ahmanson and the CPR Trust agree that the Accountant shall be Price
Waterhouse. The Accountant shall be instructed to determine whether the
calculation set forth in the Ahmanson Certificate contained manifest error
and the Accountant shall be instructed to conclude (i) that the calculation
set forth in the Ahmanson Certificate does not contain manifest error so
long as the calculation is a reasonable calculation of such portion of the
Commitment Amount based upon a reasonable interpretation of the provisions
of this Agreement and (ii) that the calculation set forth in the Ahmanson
Certificate contains manifest error if the calculation is not a "reasonable
calculation of such portion of the Commitment Amount based upon a
reasonable interpretation of the provisions of this Agreement." If the
Accountant determines (a) that the calculation set forth in the Ahmanson
Certificate did not contain manifest error, such portion of the Commitment
Amount shall be as calculated in the Ahmanson Certificate or (b) that the
calculation set forth in the Ahmanson Certificate did contain manifest
error, the Accountant shall recompute such portion of the Commitment Amount
based upon the formulae and definitions set forth in this Agreement and the
Accountant's calculation shall be binding on both parties hereto (in either
of case (i) or (ii), a "Resolution"). In the event it is determined that
Ahmanson's calculation contained manifest error, in addition to such
portion of the Commitment Amount, Ahmanson shall pay to the CPR Trust
interest on such portion of the Commitment Amount calculated from the date
that the CPR Trust delivered its Notice of Objection at an annual interest
rate equal to the Reference Rate plus 250 basis points. Ahmanson and the
CPR Trust shall share equally the expenses of the Accountant in connection
with the performance of its duties described herein. If the CPR
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Trust delivers a Notice of Objection with respect the payment of any
portion of the Commitment Amount within the applicable 30-day period and
prior to the Resolution there is a Determination to the effect that no
deduction is allowed (or that any allowed deduction is limited) in respect
of payments of the Commitment Amount under Section 483(a) in whole or in
part, then Ahmanson shall have the right to deliver a new Ahmanson
Certificate with a new calculation of that portion of the Commitment
Amount, and the previously delivered Ahmanson Certificate with respect to
that portion of the Commitment Amount shall be considered null and void;
provided, however, that if Ahmanson delivers such a new Ahmanson
Certificate, Ahmanson shall be required to pay interest on that portion of
the Commitment Amount from the date of delivery of the first Ahmanson
Certificate relating to such portion of the Commitment Amount to the date
of delivery of the new Ahmanson Certificate relating to such portion of the
Commitment Amount at a rate equal to Home Savings' cost of funds as
submitted monthly to the FHLBSF. The same procedures described in this
Section 2.02(b) for the resolution of any disputes with respect to the
calculation contained in an Ahmanson Certificate will apply equally to the
calculation in the new Ahmanson Certificate with respect to such portion of
the Commitment Amount.
(c) Timing of Payments. Ahmanson shall pay to the CPR Trust the
portion of the Commitment Amount with respect to the relevant Litigation
Proceeds (i) if the CPR Trust does not deliver a Notice of Objection to the
Ahmanson Certificate with respect to such portion of the Commitment Amount
within the 30-day period described above, within 5 business days of the
earlier of the delivery of the Notice of Agreement with respect to such
Ahmanson Certificate or the 30th day following the delivery by Ahmanson of
such Ahmanson Certificate or (ii) if the CPR Trust does deliver a Notice of
Objection with respect to such Ahmanson Certificate within the 30-day
period described above, within 5 business days of the Resolution with
respect to such portion of the Commitment Amount (each, a "Due Date"). If
Ahmanson does not pay such portion of the Commitment Amount by the
appropriate Due Date, Ahmanson shall be obligated to pay to the CPR Trust
such portion of the Commitment Amount plus interest on such portion of the
Commitment Amount from the Due Date until the date such portion of the
Commitment Amount is paid, calculated at an annual interest rate equal to
the Reference Rate plus 250 basis points.
(d) Regulatory Restrictions. (i) Notwithstanding the foregoing,
Ahmanson shall not be obligated to pay the Commitment Amount or any portion
thereof at the Due Date and shall be deemed not to be in default of this
Agreement and not to have violated its obligations hereunder by virtue of
not having paid the Commitment Amount or such portion thereof (A) to the
extent that Home Savings is not permitted due to regulatory restrictions to
distribute to Ahmanson the Litigation Proceeds or such portion thereof and
(B) if prior to the Due Date, Ahmanson shall have delivered to the CPR
Trust an Officer's Certificate and either (y) an Opinion of Counsel or (z)
a Regulatory Document. Ahmanson shall be entitled not to pay the Commitment
Amount or any portion thereof as specified in the immediately preceding
sentence with the consequences specified in the immediately preceding
sentence for a period of 2 years from the Due Date on which the Commitment
Amount or such portion thereof would otherwise have been payable so long as
(I) Home Savings continues not to be permitted to distribute such portion
of the Litigation Proceeds to Ahmanson due to regulatory restrictions and
(II) Ahmanson delivers on a quarterly basis beginning with the first full
fiscal quarter following the Due Date an Officer's Certificate and either
(y) an Opinion of Counsel or (z) a Regulatory Document.
(ii) Notwithstanding the foregoing, Ahmanson shall be deemed to be
in default of this Agreement at any time specified under Section
2.02(d)(i) hereof when payment of the Commitment Amount or such portion
thereof would otherwise be due but when Ahmanson would be entitled not
to make such payment and would be deemed not to be in default due to the
regulatory restrictions described therein if, at such time, there shall
exist a default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by Ahmanson (but not including any such
mortgage, indenture or instrument pursuant to which the creditor's
remedy is limited to foreclosure of collateral), whether such
indebtedness now exists or shall hereafter be created, which default
shall constitute a failure to pay principal of such indebtedness in an
amount exceeding $50 million when
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due and payable after the expiration of any applicable grace period with
respect thereto or shall have resulted in such indebtedness in an
aggregate principal amount exceeding $50 million becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness being discharged,
or such acceleration having been rescinded or annulled, within a period
of 35 days after the occurrence of the event that gave rise to such
default provided that any such event of default shall not be deemed to
have occurred so long as Ahmanson is contesting the validity thereof in
good faith by appropriate proceedings.
(iii) Ahmanson shall be obligated to pay the Commitment Amount or
such portion thereof at such time as such regulatory restrictions no
longer exist, and interest on the Commitment Amount or such portion
thereof, as the case may be, from the Due Date until the date the
Commitment Amount or such portion thereof is paid, calculated at an
annual interest rate equal to the Reference Rate plus 250 basis points.
(iv) In the event that Home Savings is not permitted due to
regulatory restrictions to distribute to Ahmanson the Litigation
Proceeds as described in Section 2.02(d)(i) hereof, Ahmanson agrees to
use its reasonable best efforts, or to cause Home Savings to use its
reasonable best efforts, to obtain regulatory approval for the
distribution to Ahmanson of such Litigation Proceeds.
(e) Payment of Reconciliation Amount. As promptly as practicable but
in no event later than 30 days after the recomputation of the Assumed Tax
Liability and the Assumed Tax Benefit pursuant to paragraph (f) of the
definition of "Tax Assumptions" herein, Ahmanson shall pay to the CPR Trust
any excess of the re-computed Commitment Amount or portion thereof over the
Commitment Amount or portion thereof that was initially calculated plus
interest for the period over which the payment was deferred at a rate of
Home Savings' cost of funds as submitted monthly to the FHLBSF. Along with
such payment, Ahmanson shall provide to the CPR Trust an Ahmanson
Certificate setting forth the re-calculation of the Commitment Amount or
portion thereof, which Ahmanson Certificate shall be valid and binding
absent manifest error. The standards and procedures applicable to Ahmanson
Certificates and the calculation of the Commitment Amount and portions
thereof set forth in this Section 2.02 shall apply in full force to any
Ahmanson Certificate delivered pursuant to this paragraph (e); provided,
however, that the CPR Trust shall have no right to object to any item set
forth in an Ahmanson Certificate delivered pursuant to this paragraph (e)
if such item has not changed from the prior Ahmanson Certificate delivered
with respect to the same portion of the Commitment Amount.
2.03 Agreements With Respect to Federal Income Tax. (a) Regardless of any
position taken by the Ahmanson Group on any tax return or in any claim for
refund with respect to the receipt of the Litigation Proceeds or payments of the
Commitment Amount (or of the actual payment or actual receipt of any taxes with
respect thereto), the Assumed Tax Liability shall, (i) if there is no
Determination, be computed based on the Tax Assumptions and (ii) if there is a
Determination to the effect that Litigation Proceeds are not includable in gross
income in whole or in part, be computed on the basis of the Tax Assumptions as
such Tax Assumptions are modified by such Determination.
(b) Regardless of any position taken by the Ahmanson Group on any tax
return or in any claim for refund with respect to the receipt of the
Litigation Proceeds or payments of the Commitment Amount (or of the actual
payment or actual receipt of any taxes with respect thereto), the Assumed
Tax Benefit shall, (i) if there is no Determination, be computed based on
the Tax Assumptions and (ii) if there is a Determination that no deduction
is allowed (or that any allowed deduction is limited) with respect to the
application of Section 483(a) to payments of the Commitment Amount, be
computed on the basis of the Tax Assumptions as such Tax Assumptions are
modified by such Determination.
(c) A Determination that Litigation Proceeds are not includable in
gross income in whole or in part will be deemed to be made on the earlier
of (i) the date of a final judicial determination to such effect, binding
upon Coast Federal (or its successor), is made in the Litigation, (ii) the
date a final agreement to which Ahmanson is a party with the federal
government to such effect is entered into at the direction of the
Litigation Trustees as part of the resolution of the Litigation or a
related IRS ruling to such effect issued to a member of the Ahmanson Group
in connection with such agreement (it being understood that
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the Ahmanson Group shall be under no obligation to seek such a ruling or
refund or enter into such an
agreement; provided that if requested the Ahmanson Group will enter into
such an agreement if such agreement does not impose any liability or
obligation whatsoever (other than a standard settlement release relating
only to the Litigation or other related claims that Coast or Coast Federal
or Coast's stockholders might have been able to bring as of immediately
prior to the Merger) on the Ahmanson Group or adversely affect or restrict
the conduct of its business or adversely affect its tax posture with
respect to other matters) and (iii) the effective date of a law, regulation
or IRS ruling to such effect that applies to Ahmanson or taxpayers
generally, and would be applicable to claims against the federal government
arising out of capital credits affected by FIRREA. Notwithstanding the
foregoing, no such Determination shall be deemed to be made unless it is
made prior to the earlier of (x) thirty days before the date of filing by
the Ahmanson Group of the federal tax return for the taxable year in which
the Litigation Proceeds are assumed to be includible in gross income or (y)
the receipt by the Ahmanson Group of the Litigation Proceeds.
(d) A Determination with respect to the application of Section 483(a)
to payments of the Commitment Amount will be deemed to be made on the
earlier of (i) the date a final judicial determination to such effect
binding upon Ahmanson is made in the Litigation, (ii) the date a final
agreement to which Ahmanson is a party with the federal government to such
effect is entered into at the direction of the Litigation Trustees as part
of the resolution of the Litigation or a related IRS ruling to such effect
issued to a member of the Ahmanson Group in connection with such agreement
(it being understood that the Ahmanson Group shall be under no obligation
to seek such a ruling or refund or enter into such an agreement; provided
that if requested the Ahmanson Group will enter into such an agreement if
such agreement does not impose any liability or obligation whatsoever
(other than a standard settlement release relating only to the Litigation
or other related claims that Coast or Coast Federal or Coast's stockholders
might have been able to bring as of immediately prior to the Merger) on the
Ahmanson Group or adversely affect or restrict the conduct of its business
or adversely affect its tax posture with respect to other matters) and
(iii) the effective date of a law, regulation or IRS ruling or a judicial
decision to such effect that applies to Ahmanson or taxpayers generally. A
deduction shall be considered allowed under Section 483(a) to the extent
that a deduction is allowed, in an amount up to the deduction calculated
under Section 483(a), under another substantially equivalent provision.
Notwithstanding the foregoing, no such Determination shall be deemed to be
made with respect to any payment of the Commitment Amount unless such
Determination is made prior to (A) the end of the 30th day following the
delivery to the CPR Trust of the Ahmanson Certificate with respect to such
payment of the Commitment Amount, if the CPR Trust does not deliver a
Notice of Objection within such 30-day period with respect to such Ahmanson
Certificate, or (B) the Resolution with respect to such payment of the
Commitment Amount, if the CPR Trust delivers a Notice of Objection within
such 30-day period with respect to such Ahmanson Certificate. Subject to a
Determination, the parties intend to treat a portion of each payment of the
Commitment Amount as interest to the extent such payment is treated as
interest under Section 483(a).
2.04 Ranking. This Agreement shall rank pari passu with other senior
indebtedness of Ahmanson.
2.05 Restrictions on Sale or Pledge of Stock of Home Savings. (a) Ahmanson
(i) shall not (A) sell, transfer or otherwise dispose of any shares of any
series of Voting Stock of Home Savings or (B) permit Home Savings to issue, sell
or otherwise dispose of shares of its Voting Stock unless in either case Home
Savings remains a Controlled Subsidiary, and (ii) shall not permit Home Savings
to (A) merge or consolidate unless the surviving entity is Ahmanson or a
Controlled Subsidiary or (B) convey or transfer its properties and assets
substantially as an entirety to any person, except to Ahmanson or a Controlled
Subsidiary.
(b) Ahmanson shall not create, assume, incur or suffer to exist, as
security for indebtedness for borrowed money, any mortgage, pledge,
encumbrance, lien or charge of any kind upon the Voting Stock of Home
Savings (other than directors' qualifying shares) without effectively
providing that the CPR Certificates shall be secured equally and ratably
with (or prior to) such indebtedness; provided, however, that Ahmanson may
create, assume, incur or suffer to exist any such mortgage, pledge,
encumbrance, lien or charge without regard to the foregoing provisions so
long as after giving effect thereto Ahmanson will
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own directly or indirectly at least 80% of the Voting Stock of Home Savings
then issued and outstanding, free and clear of any such mortgage, pledge,
encumbrance, lien or charge.
(c) Notwithstanding the foregoing, Ahmanson may avoid the restrictions
described in the previous two paragraphs if prior to any such transaction
Home Savings shall have unconditionally guaranteed payment when due of the
Commitment Amount, if any, Home Savings shall have obtained all regulatory
approvals, if any, required to permit the guarantee of the payment of the
Commitment Amount, and Ahmanson shall have delivered to the institutional
trustee for the CPR Trust an opinion of counsel stating that the guarantee
of the payment of the Commitment Amount by Home Savings has been duly
authorized, executed and delivered and constitutes a valid, legally binding
and enforceable obligation of Home Savings.
2.06 No Assignment of Claim. Ahmanson will not, and will not permit Coast
Federal or Home Savings to, "assign" (within the meaning of 31 U.S.C. sec.3727)
any interest in the Litigation. The parties acknowledge that any merger of
Ahmanson or Home Savings with any other party shall not be deemed to be or to
effect an assignment (within the meaning of 31 U.S.C. sec.3727) of the
Litigation.
2.07 Indemnification. (a) The CPR Trust agrees to indemnify and advance
expenses, without requirement of bond or other security, to Ahmanson, Home
Savings, and their respective affiliates, officers, directors, employees and
agents (such persons and entities, the "Ahmanson Indemnified Parties" and,
individually, an "Ahmanson Indemnified Party"), against any and all losses,
liabilities, damages, judgments, demands, suits, claims, assessments, charges,
fines, penalties, costs and expenses, including reasonable attorney's fees and
expenses and other costs and expenses associated with defense of a claim or
incurred in obtaining indemnification hereunder, whether or not in a formal
proceeding ("Damages") (other than in connection with claims by stockholders of
Ahmanson against Ahmanson's directors with respect to actions taken at or prior
to the Merger), arising out of or relating to (i) any matter whatsoever and (ii)
with respect to claims brought by any other party, any matter relating to the
CPR Trust, the CPR Certificates, the CPR Certificate Distribution, the
Litigation and any actions taken by the Litigation Trustees (including actions
taken by the Litigation Trustees in their capacity as officers or directors of
Coast or Ahmanson so long as such actions relate to the CPR Trust including,
without limitation, the negotiation of the terms of the CPR Trust and the CPR
Certificates and the approval of the establishment of the CPR Trust and the CPR
Certificate Distribution and related transactions, but otherwise excluding
actions taken by the Litigation Trustees in such capacities), other than with
respect to Damages arising from claims against (i) Ahmanson for breach of this
Agreement, (ii) Ahmanson for breach after the Effective Time of its obligations
as successor to Coast under the CPR Trust Agreement, (iii) Ahmanson for failure
to deliver any CPR Certificate when due or to return to the CPR Trust for
cancellation of any CPR Certificate required to be returned when so required,
(iv) Ahmanson for failure to deposit the Expense Fund in a non-interest bearing
demand-deposit account in the name of the CPR Trust at Home Savings at the
Effective Time or (iv) Home Savings for breach of any depositary relationship
obligations it may have with respect to the Expense Fund. Promptly after receipt
by an Ahmanson Indemnified Party of notice of the commencement of any action,
such Ahmanson Indemnified Party shall, if a claim in respect thereof is to be
made against the CPR Trust, notify the CPR Trust of the commencement thereof;
but the omission so to notify the CPR Trust shall not relieve the CPR Trust from
any liability which it may have to any Ahmanson Indemnified Party otherwise than
under the immediately preceding sentence.
If the indemnification provided for in this Section 2.07 is unavailable to
or insufficient to hold harmless an Ahmanson Indemnified Party under the first
sentence of this Section 2.07 in respect of any Damages referred to therein,
then the CPR Trust shall contribute to the amount paid or payable by such
Ahmanson Indemnified Party as a result of such Damages .
2.08 Return of Excess Expense Fund. If the amount of the Litigation
Proceeds is such that there would be no Commitment Amount payable hereunder to
the CPR Trust and if at the time of receipt of the Litigation Proceeds by the
Ahmanson Group (or at the time of a final judicial determination that there will
be no Litigation Proceeds) there are amounts remaining in the Expense Fund, the
CPR Trust shall promptly return to Ahmanson such amounts less expenses
(including obligations to compensate the Trustees) incurred
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by the CPR Trust through the time of receipt of the Litigation Proceeds by the
Ahmanson Group (or the time of such final judicial determination) and expenses
necessary, in the reasonable judgment of the Litigation Trustees, to terminate
the CPR Trust pursuant to the terms of the CPR Trust Agreement. Alternatively,
Ahmanson shall have the right to cause Home Savings to off-set such amounts
remaining in the Expense Fund deposited with Home Savings against the amounts
due to Ahmanson under this Section 2.08.
ARTICLE III
MISCELLANEOUS
3.01 Waiver; Amendment. Any provision of this Agreement may be (i) waived
by the party benefitted by the provision, or (ii) amended or modified at any
time, by an agreement in writing between the parties hereto executed in the same
manner as this Agreement.
3.02 Counterparts. This Commitment may be executed in one or more
counterparts, each of which shall be deemed to constitute an original.
3.03 Governing Law. This Commitment shall be governed by, and interpreted
in accordance with, the laws of the State of California applicable to contracts
made and to be performed entirely within such State.
3.04 Notices. All notices, requests and other communications hereunder to
a party shall be in writing and shall be deemed given if personally delivered,
telecopied (with confirmation) or mailed by registered or certified mail (return
receipt requested) to Ahmanson at its address set forth in the Merger Agreement
or to the CPR Trust to its address set forth below or such other address as such
party may specify by notice to the parties hereto.
If to the CPR Trust to:
E.A. Delle Donne Corporate Center
Montgomery Building
1011 Centre Road, Suite 200
Wilmington, Delaware 19805-1266
Attention: Lisa Wilkins
Facsimile: (302) 636-3300
With copies to:
Bankers Trust Company
Four Albany Street
New York, New York 10006
Attention: Kevin Weeks
Facsimile: (212) 250-6961
and
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Victor Lewkow
Facsimile: (212) 225-3999
and
Mayer, Brown & Platt
350 South Grand Avenue
Los Angeles, California 90017-1503
Attention: James R. Walther
Facsimile: (213) 625-0248
3.05 Entire Understanding. This Agreement and the Merger Agreement
represent the entire understanding of the parties hereto with reference to the
transactions contemplated hereby and thereby and this
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<PAGE> 209
Agreement supersedes any and all other oral or written agreements heretofore
made except for the Merger Agreement.
3.06 No Third-Party Beneficiaries; Limitation on Liability. Except as
provided below, nothing in this Agreement expressed or implied is intended to
confer upon any person, other than the parties hereto or their respective
successors, any rights, remedies, obligations or liabilities under or by reason
of this Agreement. None of Ahmanson, Home Savings, their respective affiliates,
officers, directors, employees or agents shall have any liability to the CPR
Trust, the Litigation Trustees, any other trustee under the CPR Trust Agreement
or the holders of CPR Certificates. Without limiting the generality of the
foregoing, the holders of the CPR Certificates, the Trust and the trustees of
the Trust shall have no rights to enforce, institute or maintain any suit,
action or proceeding against Ahmanson, Home Savings, its affiliates, officers,
directors, employees or agents relating to the entering into of this Agreement,
the distribution of the CPR Certificates, the Litigation or the performance by
the Litigation Trustees of their duties as Litigation Trustees. Notwithstanding
the foregoing, the CPR Trust (or the Litigation Trustees on behalf of the CPR
Trust) may enforce, institute or maintain a suit, action or proceeding against
(i) Ahmanson for breach of this Agreement, (ii) Ahmanson for breach after the
Effective Time of its obligations as successor to Coast under the CPR Agreement,
(iii) Ahmanson for failure to deliver any CPR Certificate when due or to return
to the CPR Trust for cancellation of any CPR Certificate required to be returned
pursuant to the Merger Agreement when so required, (iv) Ahmanson for failure to
deposit the Expense Fund at the Effective Time in a non-interest bearing demand
deposit account in the name of the CPR Trust at Home Savings or (v) Home Savings
for breach of any depository relationship obligations it may have with respect
to the Expense Fund.
3.07 No Other Obligations. Except as expressly set forth herein (or in any
other documents to which Ahmanson has succeeded as a matter of law), Ahmanson
shall have no other obligations to the CPR Trust, the Litigation Trustees or the
holders of CPR Certificates. Without limiting the generality of the foregoing
and except as provided in the Merger Agreement, Ahmanson shall have no
obligation to advance funds to the CPR Trust, the Litigation Trustees or the
holders of CPR Certificates. The CPR Trust hereby acknowledges that it has no
interest in any Litigation Proceeds received by the Ahmanson Group except to the
extent of the obligation of Ahmanson hereunder to pay to the CPR Trust the
Commitment Amount.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in counterparts by their duly authorized officers, all as of the day
and year first above written.
CPR TRUST
By:
------------------------------------
Name:
Title:
H. F. AHMANSON & COMPANY
By:
------------------------------------
Name:
Title:
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<PAGE> 211
EXHIBIT A TO THE COMMITMENT AGREEMENT
FORM OF AHMANSON CERTIFICATE PURSUANT TO
SECTION 2.02 OF THE COMMITMENT AGREEMENT
The undersigned, , Chief Financial Officer, and ,
, of H.F. Ahmanson & Co. ("Ahmanson"), a
Delaware Corporation, DO HEREBY CERTIFY that this Certificate is signed by them
pursuant to Section 2.02 of the Commitment Agreement (the "Commitment
Agreement"), dated as of , 1998, between Ahmanson and the Coast
Federal Litigation Contingent Payment Rights Trust, and further CERTIFY that
capitalized terms used but not defined herein have the meanings assigned to them
in the Commitment Agreement, and further CERTIFY that the Commitment Amount is
$ on [the date of this Certificate] based on the following:
<TABLE>
<C> <S> <C> <C> <C>
(1) Litigation Proceeds [received to date] (amount in line A plus amount in line $
B).
--------
A. Amount of Cash Proceeds.(1) $
--------
B. Amount of liquidated Non-Cash Proceeds.(2) $
--------
(2) Amount of Litigation Proceeds includible in gross income
(amount in line C minus amount in line D). $
--------
C. Litigation Proceeds (amount in line 1). $
--------
D. Amount of Litigation Proceeds not includible in gross income
pursuant to a Determination to that effect(3)
(if there has been no Determination, enter 0). $
--------
(3) Reimbursements (sum of the amounts in lines E, F, M and N). $
--------
E. Expense Fund. $
--------
F. Interest expense on withdrawals from Expense Fund(4)
(sum of the interest expenses for each withdrawal). $
--------
G. Relevant member of Ahmanson Group including Litigation Proceeds
in gross income.
--------
H. Taxable year in which Litigation Proceeds are included in gross
income.
--------
I. Highest federal corporate taxable rate for tax year in which
Litigation Proceeds are included in gross income. %
--------
</TABLE>
- ---------------
(1) Attach supporting documentation.
(2) Attach supporting documentation.
(3) Attach supporting documentation.
(4) Attach a separate Expense Fund Interest Schedule for each withdrawal,
detailing the following information:
a. Amount of withdrawal.
b. Date of withdrawal.
c. Reference Rate in effect from time to time since the date of
withdrawal, plus 250 basis points.
d. Interest expense incurred with respect to the withdrawal, between
the date of withdrawal and the later of the date of receipt by
Ahmanson of the Cash Proceeds and the date of liquidation by
Ahmanson of the Non-Cash Proceeds at the rate defined above in
line c., compounded quarterly.
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<PAGE> 212
<TABLE>
<C> <S> <C> <C> <C>
J. Marginal state tax rate of relevant member (line G) for relevant
taxable year (line H). %
--------
K. Marginal local tax rate of relevant member (line G) for relevant
taxable year (line H). %
--------
L. Net combined marginal rate of state and local income (or
franchise) tax of relevant member (line G) for relevant taxable
year (line H) net of the federal income tax benefit of such
taxes (calculated based on the rate in line I). %
--------
M. Assumed Tax Liability (amount of Litigation Proceeds includible
in gross income (line 2) multiplied by the sum of the tax rates
in lines I and L). $
--------
N. Interest expense on taxes from inclusion of Litigation Proceeds
in income for federal income tax purposes that are paid by
Ahmanson in a taxable year prior to the year such Litigation
Proceeds are received in cash by Ahmanson(5) (sum of interest
expenses for each payment). $
--------
(4) Current payment amount before adjustment for interest and tax benefit
("Pre-Adjustment Payment Amount") (Line O minus Line P). $
--------
O. Commitment Amount before adjustments for interest and tax
benefit
(Line 2 minus Line 3) $
--------
P. Previously paid Commitment Amount before adjustments for
interest and tax benefit $
--------
(5) Interest on Pre-Adjustment Payment Amount $
--------
(Apply an interest rate equal to the Reference Rate in effect from
time to time since the Due Date, plus 250 basis points for the period
from the Due Date until the date of payment, to the amount on Line
Q).(6)
Q. Amount of Pre-Adjustment Payment Amount paid after the Due Date,
as defined in Section 2.02(c) of the Commitment Agreement. $
--------
(6) Assumed Tax Benefit (amount in line aa minus amount in line bb) $
--------
R. Relevant member of Ahmanson Group benefiting from a Section 483
deduction with respect to payment of the Commitment Amount.
--------
S. Taxable year in which deduction is taken.
--------
T. Highest federal corporate tax rate for taxable year in which
deduction is taken. %
--------
</TABLE>
- ---------------
(5) Attach a separate Tax Interest Schedule for each separate tax payment
made by Ahmanson in a taxable year prior to the year Litigation Proceeds
are received in cash by Ahmanson, detailing the following information:
a. Amount of taxes paid.
b. Date of payment.
c. Reference Rate in effect from time to time since the date of tax
payment, plus 250 basis points.
d. Interest expense incurred with respect to the payment, between
the date of payment and the later of the date of receipt by
Ahmanson of the Cash Proceeds and the date of liquidation by
Ahmanson of the Non-Cash Proceeds at the rate defined above in
line c., compounded quarterly.
(6) Attach a separate schedule showing the periods of each deferral and the
Reference Rates for those periods.
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<PAGE> 213
<TABLE>
<C> <S> <C> <C> <C>
U. Marginal state tax rate of relevant member (line R) for relevant
taxable year (line S). %
--------
V. Marginal local tax rate of relevant member (line R) for relevant
taxable year (line S). %
--------
W. Net combined marginal rate of state and local income (or
franchise) tax of relevant member (line R) for relevant taxable
year (line S) net of federal income tax benefit of such taxes
(calculated based on rate on Line T). %
--------
X. Relevant AFR.(7) %
--------
Y. Present value factor(8) equal to the present value, calculated
using the rate in line X for purposes of applying Section 483,
on the Effective Date of a payment in the amount of 1 (one)
dollar in cash on the Payment Date, calculated to 12 decimal
places.(9)
--------
Z. Section 483 tax benefit factor ((one minus the amount on line Y)
times the sum of the tax rates in lines T and W (expressed as
decimals)).
--------
aa. Assumed Tax Benefit (The product of the amount in line 4, the
percentage of outstanding CPR Certificates issued pursuant to a
sale or exchange,(10) and a fraction, the numerator of which is
the amount in line Z and the denominator of which is (one minus
the amount in line Z). $
--------
bb. Adjustment if Section 483 deduction is disallowed pursuant to a
Determination to that effect(11) (amount disallowed times the
sum of the tax rates in lines T and W). $
--------
</TABLE>
- ---------------
(7) Applicable Federal Rate within the meaning of Section 1274(d). The
relevant AFR will be the lower of (i) the lowest AFR in effect during the
3-month period ending with the month which includes the date on which the
Merger Agreement was signed or (ii) the lowest AFR in effect during the
3-month period ending with the month which includes the Effective Date.
The relevant term (short-term, mid-term or long-term) will be the period
from the Effective Date until the date of payment on the Commitment (the
"Payment Date"), except to the extent the Commitment Date is more than 6
months after the date on which the amount of the payment on the
Commitment was fixed, in which case the AFRs for two different terms will
be used in accordance with Treas. Reg. sec. 1.1275-4(c)(4)(iii), one for
the period from the Effective Date until the date when the payment is
fixed (the "Fixing Date") and one for the period from the Effective Date
until the Payment Date. The first rate is used in calculating the present
value factor in (Y) for the period from the Effective Date until the
Fixing Date. The second is used in calculating the present value factor
for the period from the Fixing Date to the Payment Date.
(8) If the Payment Date is more than 6 months after the Fixing Date, see
supra note 7 for the applicable rates.
(9) [For purposes of calculations pursuant to this Ahmanson Certificate only,
payment on the Commitment will be assumed to be made 20 days after the
date of the Ahmanson Certificate. This assumption shall not determine the
date of payment pursuant to a Resolution.]
(10) Attach supporting documentation.
(11) Attach supporting documentation.
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<PAGE> 214
<TABLE>
<C> <S> <C> <C> <C>
(7) Assumed Tax Benefit Currently Payable (sum of amounts in line cc and
line dd). $
--------
cc. Assumed Tax Benefit (line 6) to the extent the payment does not
exceed the Litigation Proceeds included in income for the same
taxable year. $
--------
dd. Past Assumed Tax Benefit (from line 6 of previous Ahmanson
Certificates) not previously included as Assumed Tax Benefit
Currently Payable to the extent realized under paragraph (d)(ii)
of the definition of Tax Assumptions in the Commitment
Agreement. $
--------
(8) Commitment Amount (the sum of amounts in line 1, line 5, and line 7,
minus amount in line 3). $
--------
(9) Current Payment on Commitment Amount (Commitment Amount from line 8,
minus all previous payments on Commitment Amount from line 9 of
previous Ahmanson Certificates).
--------
(10) Has any tax rate or other factor been adjusted under paragraph (f) of
the definition of Tax Assumptions in the Commitment Agreement? If so,
attach an explanation.
(11) If as a result of a recomputation of the Assumed Tax Liability and
the Assumed Tax Benefit pursuant to paragraph (f) of the definition
of "Tax Assumptions" in the Commitment Agreement, the recomputed
Commitment Amount or portion thereof is in excess of the Commitment
Amount or portion thereof initially calculated under this Ahmanson
Certificate, provide a separate Ahmanson Certificate setting forth
the recalculation of the Commitment Amount of portion thereof.
</TABLE>
IN WITNESS THEREOF, the undersigned have hereunto signed their names this
day of , 19 .
--------------------------------------
[name]
Chief Financial Officer
--------------------------------------
[name]
[title]
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<PAGE> 215
APPENDIX D
Goldman, Sachs & Co. - 85 Broad Street - New York, New York 10004
Tel: 212-902-1000
January 14, 1998
PERSONAL AND CONFIDENTIAL
Board of Directors
Coast Savings Financial, Inc.
1000 Wilshire Boulevard
Los Angeles, California 90017-2457
Ladies and Gentlemen:
You have requested our opinion as to the fairness from a financial point of
view to the holders of the outstanding shares of Common Stock, par value $.01
per share (the "Shares"), of Coast Savings Financial, Inc. (the "Company") of
the Consideration (as defined below) to be received for Shares pursuant to the
merger (the "Merger") contemplated by the Amended and Restated Agreement and
Plan of Merger, dated as of October 5, 1997, by and between H. F. Ahmanson &
Company ("Ahmanson") and the Company (the "Agreement"). Pursuant to the
Agreement, the Company will merge with and into Ahmanson and (i) each
outstanding Share will be converted into 0.8082 shares of Common Stock, par
value $.01 per share (the "Ahmanson Shares"), of Ahmanson (the "Stock
Consideration"), and (ii) each holder of Contingent Payment Right Certificates
(the "CPR Certificates"), issued to holders of Shares immediately prior to the
Merger, will receive a proportionate interest in the net payments received by
the Coast Federal Litigation Contingent Payment Rights Trust (the "CPR Trust")
from Ahmanson, pursuant to a contractual commitment by Ahmanson and the CPR
Trust executed upon consummation of the Merger, of the proceeds (net of taxes,
calculated according to certain assumptions, and expenses) of any recovery on
certain pending litigation (the "Lawsuit") by the Company against the U.S.
Government (such proportionate interest together with the Stock Consideration,
the "Consideration").
Goldman, Sachs & Co., as part of its investment banking business, is
continually engaged in the valuation of businesses and their securities in
connection with mergers and acquisitions, negotiated underwritings, competitive
biddings, secondary distributions of listed and unlisted securities, private
placements and valuations for estate, corporate and other purposes. We are
familiar with the Company having acted as its financial advisor in connection
with, and having participated in certain of the negotiations leading to, the
Agreement. We also have provided certain investment banking services to Ahmanson
from time to time, including having acted as lead underwriter in its offering of
$150,000,000 in 8.36% Capital Securities in November 1996, and may provide
investment banking services to Ahmanson in the future.
In connection with this opinion, we have reviewed, among other things, the
Agreement; the Registration Statement of Ahmanson on Form S-4 and the Proxy
Statement/Prospectus relating to the Merger; the CPR Trust Registration
Statement on Form S-4 relating to the issuance of the CPR Certificates; Annual
Reports to Stockholders and Annual Reports on Form 10-K of the Company and
Ahmanson for the five years ended December 31, 1996; certain interim reports to
stockholders and Quarterly Reports on Form 10-Q of the Company and Ahmanson;
certain other communications from the Company and Ahmanson to their respective
stockholders; and certain internal financial analyses and forecasts for the
Company and Ahmanson prepared by their respective managements including
forecasts of certain cost savings (the "Synergies") expected by Ahmanson to be
achieved as a result of the Merger and including share repurchase and capital
management policies expected to be fulfilled by Ahmanson following the Merger.
We also have held discussions with members of the senior managements of the
Company and Ahmanson regarding the past and current business operations,
regulatory relationships, financial condition and future prospects of their
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respective companies and each senior management's assessment of the Synergies.
In addition, we have reviewed the reported price and trading activity for the
Shares and the Ahmanson Shares, compared certain financial and stock market
information for the Company and Ahmanson with similar information for certain
other companies the securities of which are publicly traded, reviewed the
financial terms of certain recent business combinations in the thrift industry
specifically and in other industries generally and performed such other studies
and analyses as we considered appropriate.
We have relied upon the accuracy and completeness of all of the financial
and other information reviewed by us and have assumed such accuracy and
completeness for purposes of rendering this opinion. In that regard, we have
assumed, with your consent, that the financial forecasts of the Company and
Ahmanson, including, without limitation, the Synergies, the financial impact of
the anticipated share repurchase and capital management policies, and the
projections regarding under-performing and non-performing assets and net
charge-offs, have been reasonably prepared on a basis reflecting the best
currently available judgments and estimates of the Company and Ahmanson and that
such forecasts will be realized in the amounts and at the times contemplated
thereby. We are not experts in the evaluation of loan and lease portfolios for
purposes of assessing the adequacy of allowances for losses with respect thereto
and have assumed, with your consent, that such allowances for each of the
Company and Ahmanson are in the aggregate adequate to cover such losses. In
addition, we have not reviewed individual credit files nor have we made an
independent evaluation or appraisal of the assets and liabilities of the Company
or Ahmanson or any of their respective subsidiaries and we have not been
furnished with any such evaluation or appraisal. We also have assumed, with your
consent, that obtaining any necessary regulatory approvals and third party
consents for the Merger will not have an adverse affect on the Company, Ahmanson
or the combined company pursuant to the Merger. Our advisory services and the
opinion expressed herein are provided for the information and assistance of the
Board of Directors of the Company in connection with its consideration of the
Merger and such opinion does not constitute a recommendation as to how any
holder of Shares should vote with respect to the Merger.
We are not legal experts and are not expressing any opinion herein as to
the potential outcome of the Lawsuit nor are we expressing any opinion herein as
to the prices at which the CPR Certificates may trade if and when they are
issued.
Based upon and subject to the foregoing and based upon such other matters
as we consider relevant, it is our opinion that as of the date hereof the
Consideration to be received by the holders of Shares pursuant to the Agreement
is fair from a financial point of view to the holders of Shares receiving such
consideration.
Very truly yours,
/s/ GOLDMAN, SACHS & CO.
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Goldman, Sachs & Co.
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APPENDIX E
SECTION 262 OF THE DELAWARE GENERAL CORPORATION LAW
APPRAISAL RIGHTS.
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to sec.228 of
this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the stockholder's shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a stock corporation
and also a member of record of a nonstock corporation; the words "stock" and
"share" mean and include what is ordinarily meant by those words and also
membership or membership interest of a member of a nonstock corporation; and the
words "depository receipt" mean a receipt or other instrument issued by a
depository representing an interest in one or more shares, or fractions thereof,
solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to sec.251 (other than a merger effected pursuant to
sec.251(g) of this title), sec.252, sec.254, sec.257, sec.258, sec.263 or
sec.264 of this title:
(1) Provided, however, that no appraisal rights under this section
shall be available for the shares of any class or series of stock, which
stock, or depository receipts in respect thereof, at the record date fixed
to determine the stockholders entitled to receive notice of and to vote at
the meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no
appraisal rights shall be available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require
for its approval the vote of the stockholders of the surviving corporation
as provided in subsection (f) of sec.251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required
by the terms of an agreement of merger or consolidation pursuant to
sec.sec.251, 252, 254, 257, 258, 263 and 264 of this title to accept for
such stock anything except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts
in respect thereof, which shares of stock (or depository receipts in
respect thereof) or depositary receipts at the effective date of the
merger or consolidation will be either listed on a national securities
exchange or designated as a national market system security on an
interdealer quotation system by the National Association of Securities
Dealers, Inc. or held of record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this
paragraph; or
d. Any combination of the shares of stock, depository receipts and
cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this
paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under sec.253 of this title is not owned by the
parent corporation immediately prior to the merger, appraisal rights shall
be available for the shares of the subsidiary Delaware corporation.
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(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights
are provided under this section is to be submitted for approval at a
meeting of stockholders, the corporation, not less than 20 days prior to
the meeting, shall notify each of its stockholders who was such on the
record date for such meeting with respect to shares for which appraisal
rights are available pursuant to subsections (b) or (c) hereof that
appraisal rights are available for any or all of the shares of the
constituent corporations, and shall include in such notice a copy of this
section. Each stockholder electing to demand the appraisal of his shares
shall deliver to the corporation, before the taking of the vote on the
merger or consolidation, a written demand for appraisal of his shares. Such
demand will be sufficient if it reasonably informs the corporation of the
identity of the stockholder and that the stockholder intends thereby to
demand the appraisal of his shares. A proxy or vote against the merger or
consolidation shall not constitute such a demand. A stockholder electing to
take such action must do so by a separate written demand as herein
provided. Within 10 days after the effective date of such merger or
consolidation, the surviving or resulting corporation shall notify each
stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become
effective; or
(2) If the merger or consolidation was approved pursuant to sec.228 or
253 of this title, each constituent corporation, either before the
effective date of the merger or consolidation or within ten days
thereafter, shall notify each of the holders of any class or series of
stock of such constituent corporation who are entitled to appraisal rights
of the approval of the merger or consolidation and that appraisal rights
are available for any or all shares of such class or series of stock of
such constituent corporation, and shall include in such notice a copy of
this section; provided that, if the notice is given on or after the
effective date of the merger or consolidation, such notice shall be given
by the surviving or resulting corporation to all such holders of any class
or series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the effective
date of the merger or consolidation, shall, also notify such stockholders
of the effective date of the merger or consolidation. Any stockholder
entitled to appraisal rights may, within 20 days after the date of mailing
of such notice, demand in writing from the surviving or resulting
corporation the appraisal of such holder's shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of such holder's shares. If such notice did not notify
stockholders of the effective date of the merger or consolidation, either
(i) each such constituent corporation shall send a second notice before the
effective date of the merger or consolidation notifying each of the holders
of any class or series of stock of such constituent corporation that are
entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send
such a second notice to all such holders on or within 10 days after such
effective date; provided, however, that if such second notice is sent more
than 20 days following the sending of the first notice, such second notice
need only be sent to each stockholder who is entitled to appraisal rights
and who has demanded appraisal of such holder's shares in accordance with
this subsection. An affidavit of the secretary or assistant secretary or of
the transfer agent of the corporation that is required to give either
notice that such notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein. For purposes of
determining the stockholders entitled to receive either notice, each
constituent corporation may fix, in advance, a record date that shall be
not more than 10 days prior to the date the notice is given, provided, that
if the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no record
date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the
day on which the notice is given.
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(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with subsections (a) and (d) hereof and who is otherwise entitled to
appraisal rights, may file a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw his demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the merger
or consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting from the
consolidation a statement setting forth the aggregate number of shares not voted
in favor of the merger or consolidation and with respect to which demands for
appraisal have been received and the aggregate number of holders of such shares.
Such written statement shall be mailed to the stockholder within 10 days after
his written request for such a statement is received by the surviving or
resulting corporation or within 10 days after expiration of the period for
delivery of demands for appraisal under subsection (d) hereof, whichever is
later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by 1 or more publications at
least 1 week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the appraisal prior
to the final determination of the stockholder entitled to an appraisal. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted his
certificates of stock to the Register in Chancery, if such is required, may
participate fully in all proceedings until it is finally determined that he is
not entitled to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
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other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded his appraisal rights as provided in subsection (d)
of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the effective date of the merger or consolidation); provided,
however, that if no petition for an appraisal shall be filed within the time
provided in subsection (e) of this section, or if such stockholder shall deliver
to the surviving or resulting corporation a written withdrawal of his demand for
an appraisal and an acceptance of the merger or consolidation, either within 60
days after the effective date of the merger or consolidation as provided in
subsection (e) of this section or thereafter with the written approval of the
corporation, then the right of such stockholder to an appraisal shall cease.
Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery
shall be dismissed as to any stockholder without the approval of the Court, and
such approval may be conditioned upon such terms as the Court deems just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
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PROXY
COAST SAVINGS FINANCIAL, INC.
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
FOR SPECIAL MEETING OF STOCKHOLDERS
The undersigned stockholder of Coast Savings Financial, Inc., a Delaware
corporation (the "Company"), acknowledges receipt of the Notice of Special
Meeting of Stockholders and Proxy Statement/Prospectus relating to the Company's
merger with H.F. Ahmanson & Company pursuant to an Amended and Restated
Agreement and Plan of Merger, dated as of October 5, 1997, and the transactions
contemplated thereby, and the undersigned revokes all other proxies and appoints
Ray Martin, Robert L. Hunt, II and Leon Argvire, and each of them, the attorneys
and proxies for the undersigned, each with full power of substitution, to attend
and act for the undersigned at the Company's Special Meeting of Stockholders and
at any adjournments or postponements thereof in connection therewith to vote and
represent all of the shares of the Company's Common Stock which the undersigned
would be entitled to vote.
(CONTINUED AND TO BE SIGNED ON REVERSE SIDE.)
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Please mark [X]
your vote
as this
FOR AGAINST ABSTAIN
1. To approve the Merger Agreement and the
transactions contemplated thereby, including the [ ] [ ] [ ]
approval of the merger of the Company with and
into H.F. Ahmanson & Company ("Ahmanson"), the establishment of and the
terms of the Coast Federal Litigation Contingent Payment Rights Trust (the
"CPR Trust"), the distribution of the Contingent Payment Right Certificates
(the "CPR Certificates"), the engagement of the Litigation Trustees of the
CPR Trust (including the terms of their engagement), the terms of the
Commitment to be entered into by and between Ahmanson and the CPR Trust
and the rights of the holders of the CPR Certificates.
2. In their discretion, the proxies are authorized to vote upon such other
business as may properly come before the meeting. Each of the above-named
proxies present at said meeting, either in person or by substitute, shall
have and exercise all the powers of said proxies hereunder.
THIS PROXY WILL BE VOTED IN ACCORDANCE WITH THE CHOICES SPECIFIED BY THE
UNDERSIGNED. IF NO SPECIFICATIONS TO THE CONTRARY ARE INDICATED HEREON,
THIS PROXY WILL BE TREATED AS A GRANT OF AUTHORITY TO VOTE FOR PROPOSAL 1.
PLEASE SIGN, DATE AND RETURN YOUR PROXY PROMPTLY IN THE POSTAGE PREPAID
ENVELOPE PROVIDED.
Signature(s) ______________________________________________ Dated: _____________
NOTE: Please sign exactly as your name appears hereon. When signing as attorney,
executor, administrator, trustee or guardian, please give full title as such.
If shares are held jointly, each holder should sign.
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