SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.1)*
Guaranty Financial Group Inc.
(Name of Issuer)
Common Stock, Par Value $1.00
(Title of Class of Securities)
40108N106
(CUSIP Number)
Marc Weitzen, Esq.
Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, New York 10153
(212) 702-4388
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 7, 2008
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
High River Limited Partnership
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
802,481
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
802,481
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
802,481
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.80%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Hopper Investments LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
802,481
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
802,481
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
802,481
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.80%
14 TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Barberry Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
802,481
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
802,481
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
802,481
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.80%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Icahn Partners Master Fund LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
1,095,118
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
1,095,118
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,095,118
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.45%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Icahn Partners Master Fund II LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
296,097
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
296,097
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
296,097
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.66%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Icahn Partners Master Fund III LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
112,302
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
112,302
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
112,302
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.25%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Icahn Offshore LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
1,503,517
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
1,503,517
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,503,517
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.37%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Icahn Partners LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
1,149,495
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
1,149,495
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,149,495
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.58%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Icahn Onshore LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
1,149,495
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
1,149,495
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,149,495
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.58%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Icahn Capital LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,653,012
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,653,012
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,653,012
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.94%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
IPH GP LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,653,012
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,653,012
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,653,012
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.94%
14 TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Icahn Enterprises Holdings L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,653,012
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,653,012
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,653,012
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.94%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Icahn Enterprises G.P. Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,653,012
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,653,012
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,653,012
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.94%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Beckton Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,653,012
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,653,012
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,653,012
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.94%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 40108N106
1 NAME OF REPORTING PERSON
Carl C. Icahn
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
3,455,493
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
3,455,493
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,455,493
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.74%
14 TYPE OF REPORTING PERSON
IN
SCHEDULE 13D
Item 1. Security and Issuer
The Schedule 13D filed with the Securities and Exchange Commission on
January 24, 2008 (the "Initial 13D"), by the Reporting Persons with respect to
the shares of Common Stock, par value $1.00 (the "Shares"), issued by Guaranty
Financial Group Inc. (the "Issuer"), is hereby amended to furnish the additional
information set forth herein. All capitalized terms contained herein but not
otherwise defined shall have the meanings ascribed to such terms in the Initial
13D.
Item 4. Purpose of Transaction
Item 4 of the Initial 13D is hereby amended by adding the following:
The Reporting Persons entered into an Investment Agreement with the Issuer,
dated as of June 7, 2008 (the "Investment Agreement"), under which the Issuer
has agreed to sell to the Reporting Persons 1,063,830 million shares of its
Series B Mandatory Convertible Perpetual Cumulative Preferred Stock (the "Series
B Preferred Stock") for aggregate consideration of approximately $55 million.
Additionally, the Reporting Persons entered into a Purchase Agreement with the
Issuer and its subsidiary, Guaranty Bank ("Guaranty Bank"), dated June 7, 2008
(the "Purchase Agreement"), under which the Issuer and Guaranty Bank agreed to
sell to the Reporting Persons, for an aggregate consideration of $175 million,
units (the "Units") consisting of subordinated notes of Guaranty Bank (the
"Subordinated Notes") with an aggregate original principal amount of $175
million and 406,000 shares of Series B Preferred Stock.
Each share of the Series B Preferred Stock will initially be convertible
into ten Shares. The conversion price per Share will be subject to a scheduled
price reduction of $.50 per Share every six months until stockholder approval of
the conversion feature of the Series B Preferred Stock is obtained, subject to a
minimum conversion price per share of $3.00. Dividends on the Series B Preferred
Stock are cumulative and initially accrue at the rate of 14% per year. The
dividend rate will increase 2% every six months following the initial
stockholder meeting held to consider approval of the conversion feature of the
Series B Preferred Stock (subject to a maximum rate of 18% per year) unless and
until stockholder approval is obtained. The Series B Preferred Stock is
mandatorily convertible if and when stockholder and regulatory approvals for
conversion of the Series B Preferred Stock are received. The Issuer is obligated
to call a stockholder meeting to approve the conversion feature of the Series B
Preferred Stock as promptly as practicable following closing and the issuance of
the Series B Preferred Stock pursuant to the terms of the Investment Agreement.
The Reporting Persons are required to vote all of their Shares in favor of the
conversion of the Series B Preferred Stock. The Issuer is obligated to register
certain securities with the SEC upon a request by the Reporting Persons or
certain other holders, and under certain other circumstances.
The Subordinated Notes will bear interest at an annual rate of 12% and
mature on the tenth anniversary of the date of issuance and are callable after
the fifth anniversary of the date of issuance. Interest payments on the
Subordinated Notes will be due semiannually in arrears on the last business day
of each June and December commencing on December 31, 2008.
The Reporting Persons' and the Issuer's respective obligations to close
under the Investment Agreement and the Purchase Agreement are subject to
conditions, including obtaining approvals of the United States Department of
Treasury Office of Thrift Supervision (the "OTS") for the issuance of the Series
B Preferred Stock, and the treatment of the Subordinated Notes as Tier 2
Capital. In connection with the Series B Preferred Stock issuance, the Reporting
Persons, as shareholders of the Issuer, intend to conform to the terms of a
rebuttal of control agreement that it is anticipated the Reporting Persons and
certain affiliated entities thereof will enter into with the OTS prior to the
issuance of the Series B Preferred Stock. Under this rebuttal of control
agreement, the Reporting Persons will affirmatively disclaim any intention to
control the Issuer, and will also commit that they and certain of their
affiliates will not, except as allowed by the OTS' rebuttal of control agreement
in the form set forth in OTS regulations at 12 CFR ss. 574.100, exercise or
attempt to exercise, directly or indirectly, a controlling influence over the
management, policies or business operations of the Issuer and will refrain from
taking certain specific actions with respect to the business and corporate
affairs of the Issuer. The proposed rebuttal agreement would also preclude the
Reporting Persons and certain of their affiliates from, among other things,
seeking or accepting representation of more than one member of the Issuer's
Board of Directors. It is expected that the rebuttal of control agreement with
the OTS will be substantially in the form required by OTS regulations at 12 CFR
ss. 574.100. If accepted by the OTS, the rebuttal of control agreement will be
effective from the date of issuance of the Series B Preferred Stock and is
expected to remain in effect so long as the Reporting Persons and any affiliated
entities thereof collectively own 10% or more of the Issuer's voting securities.
In connection with the sale of the Series B Preferred Stock and the Units
as described above, the Reporting Persons and the Issuer entered into a letter
agreement (the "Letter Agreement"), pursuant to which: (i) the Reporting Persons
and the Issuer's Nominating and Governance Committee (the "Committee") are to
cooperate and work jointly to identify a qualified candidate that is acceptable
to both the Reporting Persons and the Committee to serve as a director of the
Issuer; and (ii) the Reporting Persons will have certain pre-emptive rights with
regard to the issuance of specified securities by the Issuer for one year
following the issuance of the Series B Preferred Stock.
The above description of the Investment Agreement, the Purchase Agreement,
the Subordinated Notes and the Letter Agreement is a summary and does not
purport to be a complete description of all of the terms of such agreements, and
is qualified in its entirety by reference to the following documents, each of
which is filed herewith as an exhibit and incorporated herein in its entirety:
(i) the form of the Certificate of Designations, Preferences and Rights of the
Series B Preferred Stock, which is filed herewith as Exhibit 1; (ii) the form of
Subordinated Note, which is filed herewith as Exhibit 2; (iii) the Investment
Agreement, which is filed herewith as Exhibit 3; (iv) the Purchase Agreement,
which is filed herewith as Exhibit 4; and (v) the Letter Agreement, which is
filed herewith as Exhibit 5.
Item 5. Interest in Securities of the Issuer
Item 5(a) of the Initial 13D is hereby amended and restated as follows:
(a) The Reporting Persons may be deemed to beneficially own, in the
aggregate, 3,455,493 Shares, representing approximately 7.74% of the
Issuer's outstanding Shares (based upon the 44,630,665 Shares stated to be
outstanding by the Issuer as of May 31, 2008 in the Investment Agreement).
Item 5(c) of the Initial 13D is hereby amended and restated as follows:
(c) Except as described in Item 4, no transactions with respect to
Shares were effected during the past sixty (60) days by any of the
Reporting Persons.
Item 6. Contracts, Arrangements, Understandings or Relationship with Respect to
Securities of the Issuer
Item 6 of the Initial 13D is hereby amended by adding the following:
The description of the transactions set forth in Item 4 is hereby
incorporated by reference into this Item 6.
On June 11 and 12, 2008, the Reporting Persons terminated certain
cash-settled Total Return Swap agreements and entered into new cash-settled
Total Return Swap agreements. The new agreements have different reference prices
and expiration dates and are otherwise on substantially the same terms as the
prior agreements. In addition to the Shares which they beneficially own as shown
in Item 5 of the Initial 13D, the Reporting Persons currently have long economic
exposure to an aggregate of 1,955,593 Shares through Total Return Swap
agreements. These agreements do not give the Reporting Persons direct or
indirect voting, investment or dispositive control over the Shares referenced by
these agreements and, accordingly, the Reporting Persons disclaim any beneficial
ownership in the Shares referenced by these agreements.
Item 7. Material to be Filed as Exhibits
1 Form of Certificate of Designations, Preferences and Rights of the
Series B Preferred Stock (incorporated by reference to Exhibit 3.1 to
the Form 8-K filed with the SEC by the Issuer on June 9, 2008)
2 Form of Subordinated Note (incorporated by reference to Exhibit 4.1 to
the Form 8-K filed with the SEC by the Issuer on June 9, 2008)
3 Investment Agreement (incorporated by reference to Exhibit 10.2 to the
Form 8-K filed with the SEC by the Issuer on June 9, 2008)
4 Purchase Agreement (incorporated by reference to Exhibit 10.4 to the
Form 8-K filed with the SEC by the Issuer on June 9, 2008)
5 Letter Agreement (incorporated by reference to Exhibit 10.5 to the
Form 8-K filed with the SEC by the Issuer on June 9, 2008)
SIGNATURE
After reasonable inquiry and to the best of each of the undersigned
knowledge and belief, each of the undersigned certifies that the information set
forth in this statement is true, complete and correct.
Dated: June 12, 2008
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, general partner
By: Barberry Corp., sole member
By: /s/ Edward E. Mattner
---------------------
Name: Edward Mattner
Title: Authorized Signatory
HOPPER INVESTMENTS LLC
By: Barberry Corp., sole member
By: /s/ Edward E. Mattner
---------------------
Name: Edward Mattner
Title: Authorized Signatory
BARBERRY CORP.
By: /s/ Edward E. Mattner
----------------------
Name: Edward Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND II LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND III LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN OFFSHORE LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN ONSHORE LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN CAPITAL LP
By: IPH GP LLC, its general partner
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
By: /s/ Andrew Skobe
----------------
Name: Andrew Skobe
Title: Chief Financial Officer
IPH GP LLC
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
By: /s/ Andrew Skobe
----------------
Name: Andrew Skobe
Title: Chief Financial Officer
ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises G.P. Inc., its general partner
By: /s/ Andrew Skobe
----------------
Name: Andrew Skobe
Title: Chief Financial Officer
ICAHN ENTERPRISES G.P. INC.
By: /s/ Andrew Skobe
----------------
Name: Andrew Skobe
Title: Chief Financial Officer
BECKTON CORP.
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
/s/ Carl C. Icahn
-----------------
CARL C. ICAHN
[Signature Page of Amendment No. 1 to Schedule 13D -
Guaranty Financial Group Inc.]