<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 1, 1999
REGISTRATION NO. 333-02897
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C> <C>
SALOMON SMITH BARNEY HOLDINGS INC. NEW YORK 11-2418067
SI FINANCING TRUST I DELAWARE 13-7093413
(EXACT NAME OF REGISTRANT AS (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
SPECIFIED IN ITS CHARTER) INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBERS)
</TABLE>
388 GREENWICH STREET
NEW YORK, NEW YORK 10013
(212) 816-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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JOAN GUGGENHEIMER, ESQ., GENERAL COUNSEL
SALOMON SMITH BARNEY HOLDINGS INC.
388 GREENWICH STREET
NEW YORK, NEW YORK 10013
(212) 816-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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Copies to:
<TABLE>
<S> <C> <C>
STEPHANIE B. MUDICK, ESQ. ALAN L. BELLER, ESQ. GREGORY M. SHAW, ESQ.
CITIGROUP INC. CLEARY, GOTTLIEB, STEEN & CRAVATH, SWAINE & MOORE
153 EAST 53RD STREET HAMILTON 825 EIGHTH AVENUE
NEW YORK, NEW YORK 10043 ONE LIBERTY PLAZA NEW YORK, NEW YORK 10019
NEW YORK, NEW YORK 10006
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: At such time (from time to time) after the effective date of this
Registration Statement as agreed upon by Salomon Smith Barney Holdings Inc. and
the Underwriters in light of market conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ] ----------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ----------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(c) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(c), MAY DETERMINE.
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<PAGE> 2
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to Registration Statement on Form S-3
(No. 333-02897) (the "Registration Statement") is being filed pursuant to Rule
414 under the Securities Act of 1933, as amended (the "Securities Act"), by
Salomon Smith Barney Holdings Inc., a New York corporation (the "Company"),
which is the successor to Salomon Smith Barney Holdings Inc., a Delaware
corporation ("SSBH"), following a statutory merger (the "Merger") effective on
July 1, 1999 for the purpose of changing SSBH's state of incorporation. Prior to
the Merger, the Company had no assets or liabilities other than nominal assets
or liabilities. In connection with the Merger, the Company succeeded by
operation of law to all of the assets and liabilities of SSBH. Also, on July 1,
1999, in connection with the Merger, the Company changed its name to Salomon
Smith Barney Holdings Inc.
As a result of the Merger, the Company succeeded to SSBH's obligations
under the Subordinated Debt Indenture (the "Bankers Trust Indenture"), dated as
of December 1, 1988, between SSBH and Bankers Trust Company, as Trustee
("Bankers Trust"), as supplemented, relating to the subordinated debt securities
issued thereunder by SSBH. As required by the Bankers Trust Indenture, on July
1, 1999, the Company entered into a Fifth Supplemental Indenture dated July 1,
1999 with Bankers Trust, with respect to the Bankers Trust Indenture, pursuant
to which the Company assumed SSBH's obligations under the Bankers Trust
Indenture.
The Merger was approved on June 30, 1999 by Citigroup Inc., the sole
stockholder of SSBH.
In accordance with paragraph (d) of Rule 414 of the Securities Act, except
as modified by this Post-Effective Amendment No. 1, the Company expressly adopts
the Registration Statement as its own registration statement for all purposes of
the Securities Act and the Securities Exchange Act of 1934, as amended.
1
<PAGE> 3
PART II
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
THE COMPANY
Section 721 of the New York Business Corporation Law ("B.C.L.") provides
that, in addition to the indemnification provided in Article 7 of the B.C.L., a
corporation may indemnify a director or officer by a provision contained in its
certificate of incorporation or by-laws or by a duly authorized resolution of
its shareholders or directors or by agreement provided that no indemnification
may be made to or on behalf of any director or officer if a judgment or other
final adjudication adverse to the director or officer establishes that his acts
were committed in bad faith or were the result of active and deliberate
dishonesty and material to the cause of action, or that such director or officer
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
Section 722(a) of the B.C.L. provides that a corporation may indemnify a
director or officer made, or threatened to be made, a party to any action other
than a derivative action, whether civil or criminal, against judgments, fines,
amounts paid in settlement and reasonable expenses actually and necessarily
incurred as a result of such action, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or not opposed to,
the best interests of the corporation and, in criminal actions or proceedings,
in addition, has no reasonable cause to believe that his conduct was unlawful.
Section 722(c) of the B.C.L. provides that a corporation may indemnify a
director or officer, made or threatened to be made a party in a derivative
action, against amounts paid in settlement and reasonable expenses actually and
necessarily incurred by him in connection with the defense or settlement of such
action or in connection with an appeal therein if such director or officer
acted, in good faith, for a purpose which he reasonably believed to be in, or
not opposed to, the best interests of the corporation, except that no
indemnification will be available under Section 722(c) of the B.C.L. in respect
of a threatened or pending action which is settled or otherwise disposed of or
any claims as to which such director or officer shall have been adjudged liable
to the corporation, unless and only to the extent that the court in which the
action was brought, or, if no action was brought, any court of competent
jurisdiction, determines, upon application, that, in view of all the
circumstances of the case, the director or officer is fairly and reasonably
entitled to indemnity for such portion of the settlement amount and expenses as
the court deems proper.
Section 723 of the B.C.L. specifies the manner in which payment of
indemnification under Section 722 of the B.C.L. or indemnification permitted
under Section 721 of the B.C.L. may be authorized by the corporation. It
provides that indemnification may be authorized by the corporation. It provides
that indemnification by a corporation is mandatory in any case in which the
director or officer has been successful, whether on the merits or otherwise, in
defending an action. In the event that the director or officer has not been
successful or the action is settled, indemnification must be authorized by the
appropriate corporate action as set forth in Section 723. Section 724 of the
B.C.L. provides that, upon application by a director or officer, indemnification
may be awarded by a court to the extent authorized under Sections 722 and 723.
Section 725 of the B.C.L. contains certain other miscellaneous provisions
affecting the indemnification of directors and officers.
Section 726 of the B.C.L. authorizes the purchase and maintenance of
insurance to indemnify (1) a corporation for any obligation which it incurs as a
result of the indemnification of directors and officers under the above
sections, (2) directors and officers in instances in which they may be
indemnified by a corporation under such sections, and (3) directors and officers
in instances in which they may not otherwise be indemnified by a corporation
under such sections, provided the contract of insurance covering such directors
and officers provides, in a manner acceptable to the New York State
Superintendent of Insurance, for a retention amount and for co-insurance.
II-1
<PAGE> 4
Article Seventh(e) of the Restated Certificate of Incorporation of the
Company provides in part as follows:
The Corporation shall indemnify to the full extent authorized by law any
person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of
the fact that he, his testator or intestate is or was a director, officer
or employee of the Corporation or any predecessor of the Corporation or
serves or served any other enterprise as a director, officer or employee
at the request of the Corporation or any predecessor of the Corporation,
provided that this provision shall not provide for indemnification to be
made to or on behalf of any director or officer if a judgment or other
final adjudication adverse to the director or officer establishes that
his acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so
adjudicated, or that he personally gained in fact a financial profit or
other advantage to which he was not legally entitled.
Article Ninth of the Restated Certificate of Incorporation of the Company
provides as follows:
To the fullest extent permitted under section 402 of the B.C.L., no
director of the corporation shall be personally liable to the corporation
or its shareholders for damages for any breach of duty in such capacity,
provided that this provision shall not limit
(a) the liability of any director if a judgment or other final
adjudication adverse to him or her establishes that his or her acts
or omissions were in bad faith or involved intentional misconduct or
a knowing violation of law or that he or she personally gained in
fact a financial profit or other advantage to which he or she was
not legally entitled or that his or her acts violated section 719 of
the B.C.L. or
(b) the liability of any director for any act or omission prior to
adoption of a provision authorized by this paragraph.
Article Twelve of the By-laws of the Company provides as follows:
The Corporation shall indemnify to the full extent authorized by law any
person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of
the fact that he, his testator or intestate is or was a director,
officer or employee of the Corporation or any predecessor of the
Corporation or serves or served any other enterprise as a director,
officer or employee at the request of the Corporation or any predecessor
of the Corporation, provided that this provision shall not provide for
indemnification to be made to or on behalf of any director or officer if
a judgment or other final adjudication adverse to the director or
officer establishes that his acts were committed in bad faith or were
the result of active and deliberate dishonesty and were material to the
cause of action so adjudicated, or that he personally gained in fact a
financial profit or other advantage to which he was not legally
entitled.
The Company has purchased certain liability insurance for its officers and
directors as permitted by Section 726 of the B.C.L. and has entered into
indemnity agreements with its directors and certain officers providing
indemnification in addition to that provided under the B.C.L., as permitted by
Section 721 of the B.C.L.
SI FINANCING TRUST I
The Amended and Restated Declaration of Trust (the "Declaration") of SI
Financing Trust I (the "Trust") provides that no Institutional Trustee (as
defined in the Declaration) or any of its affiliates, Delaware Trustee (as
defined in the Declaration) or any of its affiliates, or officer, director,
shareholder, member, partner, employee, representative, custodian, nominee or
agent of the Institutional Trustee or the Delaware Trustee (each a "Fiduciary
Indemnified Person"), and no Regular Trustee (as defined in the Declaration),
affiliate of any Regular Trustee, or any officer, director, shareholder, member,
partner, employee, representative or agent of any Regular Trustee, or any
employee or agent of the Trust or its affiliates
II-2
<PAGE> 5
(each a "Company Indemnified Person") shall be liable, responsible or
accountable in damages or otherwise to the Trust, any Affiliate (as defined in
the Declaration) of the Trust or any holder of securities issued by the Trust,
or to any officer, director, shareholder, partner, member, representative,
employee or agent of the Trust or its Affiliates for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such Fiduciary
Indemnified Person or Company Indemnified Person in good faith on behalf of the
Trust and in a manner such Fiduciary Indemnified Person or Company Indemnified
Person reasonably believed to be within the scope of the authority conferred on
such Fiduciary Indemnified Person or Company Indemnified Person by such
Declaration or by law, except that a Fiduciary Indemnified Person or Company
Indemnified Person shall be liable for any loss, damage, or claim incurred by
reason of such Fiduciary Indemnified Person's or Company Indemnified Person's
gross negligence (or in the case of a Fiduciary Indemnified Person, negligence)
or willful misconduct with respect to such acts or omissions. The Declaration
also provides that, to the full extent permitted by law, the Company shall
indemnify any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in right of the Trust) by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The Declaration of
the Trust also provides that to the full extent permitted by law, the Company
shall indemnify any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in right of the Trust to procure a judgment in its favor by reason of
the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such Company Indemnified
Person shall have been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem proper. The Declaration of
the Trust further provides that expenses (including attorneys' fees) incurred by
a Company Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in the immediately
preceding two sentences shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Company as authorized in the Declaration. The directors and officers of the
Company and the Regular Trustee are covered by insurance policies indemnifying
them against certain liabilities, including certain liabilities arising under
the Securities Act, which might be incurred by them in such capacities and
against which they cannot be indemnified by the Company or the Trust. Any
agents, dealers or underwriters who execute the agreement filed as Exhibit 1 to
the Registration Statement to which this Post-Effective Amendment relates will
agree to indemnify the Company's directors and their officers and the Trustees
who signed that Registration Statement and this Post-Effective Amendment against
certain liabilities that may arise under the Securities Act with respect to
information furnished to the Company or the Trust by or on behalf of such
indemnifying party.
For the undertaking with respect to indemnification, see Item 17 herein.
See the Form of Underwriting Agreement filed as Exhibit 1 to Registration
Statement No. 333-02897 for certain indemnification provisions.
ITEM 16 EXHIBITS.
The following exhibits are filed as part of the Registration Statement
hereby amended*:
II-3
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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<S> <C>
2 Agreement and Plan of Merger, dated as of June 30, 1999
between Salomon Smith Barney Holdings Inc., a Delaware
corporation ("SSBH"), and SSBHI Merger Company Inc., a New
York corporation (the "Company").
3(a) Certificate of Merger of the Company and SSBH, effective as
of July 1, 1999.
3(b) Restated Certificate of Incorporation of the Company
effective as of July 1, 1999.
3(c) By-Laws of the Company.
4(q) Fifth Supplemental Indenture dated July 1, 1999 to
Subordinated Debt Indenture dated December 1, 1988 between
the Company and Bankers Trust Company, as Trustee,
incorporated by reference to Exhibit 4(uu) to the Company's
Post-Effective Amendment No. 1 to Registration Statement on
Form S-3 (No. 333-38931).
4(r) Second Supplemental Agreement to the Unit Agreement dated
July 1, 1999 among the Company, SSBH and The Chase Manhattan
Bank.
5(a) Opinion of Cravath, Swaine & Moore.
5(b) Opinion of Morris, Nichols, Arsht & Tunnell.
23(a) Consent of PricewaterhouseCoopers LLP, independent certified
public accountants.
23(b) Consent of Arthur Andersen LLP, independent certified public
accountants.
23(c) Consent of Cravath, Swaine & Moore (included in Exhibit
5(a)).
23(d) Consent of Morris, Nichols, Arsht & Tunnell (included in
Exhibit 5(b)).
</TABLE>
* All other exhibits were previously filed as exhibits to, and are listed in,
the Registration Statement on Form S-3 to which this is Post-Effective
Amendment No. 1.
ITEM 17 UNDERTAKINGS.
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of Salomon Smith
Barney Holdings Inc.'s annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Registrants pursuant to the provisions described in Item 15 or otherwise, the
Registrants have been advised that in the opinion of the SEC, such
Indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrants of expenses
incurred or paid by a director, officer, or controlling person of the
Registrants in the successful defense of any action, suit, or proceeding) is
asserted by such director, officer, or controlling person in connection with the
securities being registered, the Registrants will, unless in the opinion of
their counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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(d) The undersigned Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
(2) For purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Salomon Smith
Barney Holdings Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on form S-3 and has duly caused this
Post-Effective Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, on the 1st day of July,
1999.
SALOMON SMITH BARNEY HOLDINGS INC.
By: /s/ CHARLES W. SCHARF
------------------------------------
Name: Charles W. Scharf
Title: Senior Executive Vice
President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the Registration Statement has been signed below by
the following persons in the capacities with Salomon Smith Barney Holdings Inc.
on the 1st day of July, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ MICHAEL A. CARPENTER Chairman of the Board, Chief Executive Officer
- --------------------------------------------------- (Principal Executive Officer) and Director
(Michael A. Carpenter)
/s/ DERYCK C. MAUGHAN Director
- ---------------------------------------------------
(Deryck C. Maughan)
/s/ CHARLES W. SCHARF Senior Executive Vice President and Chief
- --------------------------------------------------- Financial Officer (Principal Financial Officer)
(Charles W. Scharf)
/s/ MICHAEL J. DAY Executive Vice President and Controller
- --------------------------------------------------- (Principal Accounting Officer)
(Michael J. Day)
</TABLE>
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<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, SI Financing
Trust I certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, on the 1st day of July, 1999.
SI FINANCING TRUST I
By: /s/ NAZARETH J. FESTEKJIAN
------------------------------------
Name: Nazareth J. Festekjian
Title: Regular Trustee
By: /s/ PHILIP U. TREMMEL
------------------------------------
Name: Philip U. Tremmel
Title: Regular Trustee
By: /s/ MERWAN A. MARSHI
------------------------------------
Name: Merwan A. Marshi
Title: Regular Trustee
II-7
<PAGE> 1
Exhibit 2
AGREEMENT AND PLAN OF MERGER
June 30, 1999
PARTIES
- - Salomon Smith Barney Holdings Inc., ("Mergeco"), a Delaware corporation
- - SSBHI Merger Company Inc. ("Surviveco"), a New York corporation
BACKGROUND
Mergeco and Surviveco desire to merge Mergeco into Surviveco with the results
that
(i) Surviveco be the surviving corporation;
(ii) each holder of capital stock of Mergeco will receive in exchange for
each share of its capital stock an equivalent share of capital stock of
Surviveco;
(iii) the sole shareholder of all the capital stock of Surviveco will have
its shares (with the exception of any shares received pursuant to (ii)
above) cancelled;
(iv) the certificate of incorporation of the surviving corporation will be
amended as provided in this plan of merger, including changing the name
of the surviving corporation to "Salomon Smith Barney Holdings Inc."
AGREEMENT AND PLAN OF MERGER
Section 1. Constituent corporations
The constituent corporations are Salomon Smith Barney Holdings Inc., a Delaware
corporation ("Mergeco") and SSBHI Merger Company Inc., a New York corporation
("Surviveco").
<PAGE> 2
Surviveco is the surviving corporation.
Mergeco was incorporated March 14, 1960 in Delaware.
Surviveco was incorporated February 23, 1977 in New York.
Section 2. Capital Stock
The outstanding shares of capital stock of Mergeco consist of 1,000 shares of
common stock having a par value of one cent ($.01) per share, all of which are
entitled to vote.
The outstanding shares of capital stock of Surviveco consist of 10 shares of
common stock having no par value, all of which are entitled to vote.
Section 3. Terms and conditions of Merger
(a) On July 1, 1999 (the "Effective Date"), the separate existence of Mergeco
shall cease and it shall be merged into Surviveco (the "Merger"). Surviveco
shall (i) be the surviving corporation, (ii) continue to be governed by the
laws of the State of New York and (iii) continue under the name "Salomon
Smith Barney Holdings Inc."
(b) The by-laws of Mergeco as restated on the date hereof shall be the by-laws
of the surviving corporation.
(c) The directors of Mergeco immediately prior to the Merger shall continue in
office as directors of the surviving corporation after the Merger until
their successors are elected and qualified. On the Effective Date, the
directors and officers of Surviveco immediately prior to the merger shall
cease to be directors and officers of the surviving corporation.
(d) The resolutions of the board of directors of Mergeco in existence prior to
the Merger shall survive the Merger, and all the resolutions of Surviveco
(except for those relating to the Merger) shall be revoked as of the
Effective Date.
Section 4. Manner of converting shares.
(a) Each share of common stock of Mergeco issued and outstanding on the
Effective Date shall on the Effective Date, without any action on the part
of the holder of such share, become a fully paid and non-assessable share
of common stock of the surviving corporation.
(b) Each share of capital stock of Surviveco issued and outstanding on the
Effective Date
<PAGE> 3
shall on and after the Effective Date, without any action on the part of
the holder of such share, be cancelled and retired.
Section 5. Termination; amendments.
At any time prior to the filing of a certificate of merger for the Merger
with the Secretary of State of the State of New York, this agreement may be
terminated by the board of directors of either constituent corporation
notwithstanding approval of this Agreement by the stockholders of either or
both of the constituent corporations.
Section 6. Certificate of incorporation
The certificate of incorporation of the surviving corporation shall be amended
and restated to read in its entirety as follows:
FIRST: NAME
The name of the corporation is Salomon Smith Barney Holdings Inc.
SECOND: PURPOSE
The corporation is formed for the purpose of engaging in any lawful
act or activity for which corporations may be organized under the
Business Corporation Law (the BCL). The corporation is not formed to
engage in any act or activity requiring the consent or approval of
any state official, department, board, agency or other body without
such consent or approval first being obtained.
THIRD: OFFICE
The office of the corporation is located in the City of New York,
County of New York.
FOURTH: CAPITAL SHARES
<PAGE> 4
(a) The corporation shall have the authority to issue 1,000 common
shares, with a par value of one cent ($.01) per share and
10,000,000 preferred shares, with a par value of one dollar ($1.00)
per share.
(b) The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article FOURTH to
provide for the issuance of the shares of Preferred Stock in
series, and by filing a certificate pursuant to the applicable law
of the State of New York, to establish from time to time the number
of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each
such series and the qualifications, limitations or restrictions
thereof. The authority of the Board of Directors with respect to
each series shall include, but not be limited to, determination of
the following:
(i) the number of shares constituting that series and the
distinctive designation of that series.
(ii) the dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or
dates, and the relative rights of priority, if any, of payments of
dividends on shares of that series;
(iii) whether that series shall have voting rights, in addition to
the voting rights provided by law, and, if so, the terms of such
voting rights;
(iv) whether that series shall have conversion or exchange
privileges, and, if so, the terms and conditions of such conversion
or exchange, including provision for adjustment of the conversion
or exchange rate in such events as the board of directors shall
determine;
(v) whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including
the manner of selecting shares for redemption if less than all
shares are to be redeemed, the date or dates upon or after which
they shall be redeemable, and the amount per share payable in case
of redemption, which amount may vary under different conditions and
at different redemption dates;
(vi) whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the
terms and amount of such sinking fund;
(vii) the right of the shares of that series to the benefit of
conditions and restrictions upon the creation of indebtedness of
the corporation or any subsidiary, upon the issue of any additional
shares (including additional shares of such series or any other
series) and upon the payment of dividends or the making of other
distributions on, and the purchase, redemption or other acquisition
by the corporation or any subsidiary of any outstanding shares of
the corporation;
(viii) the rights of the shares of that series in the event of
voluntary or
<PAGE> 5
involuntary liquidation, dissolution or winding up of the
corporation, and the relative rights of priority, if any, of
payment of shares of that series;
(ix) any restrictions on transfers of shares of that series; and
(x) any other relative, participating, optional or other special
rights, qualifications, limitations or restrictions of that
series.
(c) Shares of any series of preferred shares that have been redeemed
(whether through the operation of a sinking fund or otherwise) or
which, if convertible or exchangeable, have been converted into or
exchanged for shares of stock of any other class or classes, shall
have the status of authorized and unissued shares of preferred
shares of the same series and may be reissued as a part of the
series of which they were originally a part or may be reclassified
and reissued as part of a new series of preferred shares to be
created by resolution or resolutions of the board of directors or
as part of any other series of preferred shares, all subject to
the conditions and the restrictions on issuance set forth in the
resolution or resolutions adopted by the board of directors
providing for the issue of any series of preferred shares.
(d) Dividends on outstanding shares of Preferred Stock shall be paid,
or declared and set apart for payment, before any dividends shall
be paid or declared and set apart for payment on outstanding
shares of Common Stock. If upon any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the
assets available for distribution to holders of shares of
Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled,
then such assets shall be distributed ratably among the shares of
all series of Preferred Stock in accordance with the respective
preferential amounts (including unpaid cumulative dividends, if
any) payable with respect thereto.
(e) Subject to the provisions of any applicable law or except as
otherwise provided by the resolution or resolutions providing for
the issue of any series of Preferred Stock, the holders of
outstanding shares of Common Stock shall exclusively possess
voting power for the election of directors and for all other
purposes, each holder of record of shares of Common Stock being
entitled to one vote for each share of Common Stock standing in
his name on the books of the Corporation.
(f) Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, after
payment shall have been made to the holders of Preferred Stock of
the full amount of dividends to which they shall be entitled
pursuant to the resolution or resolutions providing for
<PAGE> 6
the issue of any series of Preferred Stock, the holders of Common
Stock shall be entitled, to the exclusion of the holders of
Preferred Stock of any and all series, to receive such dividends
as from time to time may be declared by the Board of Directors.
(g) Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, in the
event of any liquidation, dissolution or winding up of the
Corporation whether voluntary or involuntary, after payment shall
have been made to the holders of Preferred Stock of the full
amount to which they shall be entitled pursuant to the resolution
or resolutions providing for the issue of any series of Preferred
Stock, the holders of Common Stock shall be entitled, to the
exclusion of the holders of Preferred Stock of any and all series,
to share ratably according to the number of shares of Common Stock
held by them in all remaining assets of the Corporation available
for distribution.
FIFTH: AGENT FOR SERVICE OF PROCESS
The Secretary of State is designated as agent of the corporation upon
whom process against the corporation may be served. The post office
address of the corporation to which the Secretary of State shall mail
process against the corporation served upon the Secretary of State is
Salomon Smith Barney Inc., 388 Greenwich Street, New York, NY 10013,
attention: General Counsel.
SIXTH: NO PREEMPTIVE RIGHTS
Shareholders shall not be entitled to preemptive rights, directly or
indirectly, in respect of any equity, voting, or other shares of the
corporation.
SEVENTH: MANAGEMENT OF THE BUSINESS
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and shareholders:
(a) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of
Directors.
(b) The directors shall have concurrent power with the
shareholders
<PAGE> 7
to make, alter, amend, change, add to or repeat the
By-Laws of the Corporation.
(c) The number of directors of the Corporation shall be
as from time to time fixed by, or in the manner
provided in, the By-Laws of the Corporation. Election
of directors need not be by written ballot unless the
By-Laws so provide.
(d) A director may be removed, with or without cause, by
a majority vote of the outstanding common shares.
(e) The Corporation shall indemnify to the full extent
authorized by law any person made or threatened to be
made a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate
is or was a director, officer or employee of the
Corporation or any predecessor of the Corporation or
serves or served any other enterprise as a director,
officer or employee at the request of the Corporation
or any predecessor of the Corporation, provided that
this provision shall not provide for indemnification
to be made to or on behalf of any director or officer
if a judgment or other final adjudication adverse to
the director or officer establishes that his acts
were committed in bad faith or were the result of
active and deliberate dishonesty and were material to
the cause of action so adjudicated, or that he
personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
(f) In addition to the powers and authority herein or by
statute expressly conferred upon them, the directors
are hereby empowered to exercise all such powers and
do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to
the provisions of the BCL, this Amended and Restated
Certificate of Incorporation, and any By-Laws adopted
by the shareholders; provided, however, that no
By-Laws hereafter adopted by the shareholders shall
invalidate any prior act of the directors which would
have been valid if such By-Laws had not been adopted.
EIGHTH: AMENDMENTS
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute,
and al rights conferred upon shareholders herein are granted subject
to this reservation.
NINTH: LIMITATION OF LIABILITY OF DIRECTORS
To the fullest extent permitted under section 402 of the BCL, no
director of the corporation shall be personally liable to the
corporation or its shareholders for damages for any breach of duty in
such capacity, provided that this provision
<PAGE> 8
shall not limit
(a) the liability of any director if a judgment or other
final adjudication adverse to him or her establishes
that his or her acts or omissions were in bad faith
or involved intentional misconduct or a knowing
violation of law or that he or she personally gained
in fact a financial profit or other advantage to
which he or she was not legally entitled or that his
or her acts violated section 719 of the BCL, or
(b) the liability of any director for any act or omission
prior to adoption of a provision authorized by this
paragraph.
IN WITNESS WHEREOF, the undersigned have duly executed this Merger Agreement as
of the 30th day of June, 1999.
SALOMON SMITH BARNEY HOLDINGS INC.
By: /s/ MICHAEL A. CARPENTER
---------------------------
Name: Michael A. Carpenter
Title Chairman and Chief Executive Officer
SSBHI MERGER COMPANY INC.
By: /s/ MICHAEL A. CARPENTER
---------------------------
Name: Michael A. Carpenter
Title Chairman and Chief Executive Officer
<PAGE> 1
Exhibit 3(a)
CERTIFICATE OF MERGER
OF
SALOMON SMITH BARNEY HOLDINGS INC.
INTO
SSBI MERGER COMPANY INC.
UNDER SECTION 904 OF THE BUSINESS CORPORATION LAW
The undersigned corporations, as the constituent corporations in a
merger (the "Merger") pursuant to section 904 of the Business
Corporation Law (the "BLC"), certify that:
1. The constituent corporations are Salomon Smith Barney Holdings
Inc., a Delaware corporation ("Mergeco"), and SSBHI Merger Company
Inc., a New York corporation ("Surviveco")
Surviveco is the surviving corporation.
Mergeco was incorporated on March 14, 1960 in Delaware under the
name Engelhard Industries, Inc. Its application for authority to
do business in New York was filed by the Department of State on
September 22, 1967.
Surviveco was incorporated on February 23, 1977 in New York under
the name Sutdex Real Estate, Inc.
2. The outstanding shares of capital stock of Mergeco consist of (i)
1,000 shares of common stock, one cent ($.01) par value, all of
which are entitled to vote.
The outstanding shares of capital stock of Surviveco consist of 10
shares of common stock, without par value, all of which are
entitled to vote.
3. Article First of the Amended and Restated Certificate of
Incorporation of the surviving corporation shall be amended to
read in its entirety as follows:
FIRST: Name
The name of the corporation is Salomon Smith Barney Holdings Inc.
4. The effective date of the Merger shall be July 1, 1999.
5. The merger was authorized with respect to the domestic constituent
<PAGE> 2
corporation, Surviveco, by the adoption of a plan of merger
meeting the requirements of section 902 of the BCL by
(i) the board of directors of Surviveco pursuant to
section 902 of the BCL and, after having been first
duly executed on behalf of Surviveco and Mergeco; and
(ii) the written consent of the holders of all shares of
Surviveco entitled to vote thereon pursuant to
section 903 and 615 of the BCL.
The Merger is permitted by the laws of Delaware, the jurisdiction of Mergeco,
the constituent foreign corporation, and is in compliance therewith.
This certificate is dated July 1, 1999 and is affirmed by each of the
undersigned constituent corporations as true under the penalties of perjury.
SALOMON SMITH BARNEY HOLDINGS INC.
By /s/ Charles W. Scharf
------------------------------------------
Charles W. Scharf
Chief Financial Officer
By /s/ Andrew W. Alter
-------------------------------------------
Andrew W. Alter
Assistant Secretary
SSBHI MERGER COMPANY INC.
By /s/ Charles W. Scharf
-----------------------------------------
Charles W. Scharf
Chief Financial Officer
By /s/ Andrew W. Alter
------------------------------------------
Andrew W. Alter
Assistant Secretary
<PAGE> 1
Exhibit 3(b)
Restated Certificate of Incorporation
of
SSBHI Merger Company Inc.
- --------------------------------------------------------------------------------
under section 807 of the Business Corporation Law
- --------------------------------------------------------------------------------
The undersigned corporation certifies that:
1 The name of the corporations is SSBHI Merger Company Inc. The corporation
was originally formed under the name "Sutdex Real Estate, Inc."
2 The certificate of incorporation of the corporation was filed with the
department of state on February 23, 1977.
3 The text of the certificate of incorporation is amended as follows:
-------------------------------------------------------
Article FIRST of the certificate of incorporation is amended to restate
the name of the corporation.
Article SECOND of the certificate of incorporation is amended to restate
the purposes of the corporation, as permitted by section 402(a)(2) of the
Business Corporation Law (the BCL).
Article THIRD of the certificate of incorporation is amended to change the
address of the corporation's office to New York City, New York County.
Article FOURTH of the certificate of incorporation is amended to change
the authorized number of shares from 200 shares without par value to 1,000
shares of common stock with a par value of one cent ($.01) per share, and
to add 10,000,000 shares of preferred stock, with a par value of one
dollar ($1.00) per share. The issued share capital stock of the
corporation will change from 10 shares of common stock to 1,000 shares
of common stock at a rate of 100 to one. The remaining 190 unissued
shares, without par value will be canceled.
Article FIFTH of the certificate of incorporation is amended to change the
corporation's agent for service of process.
Article SIXTH of the certificate of incorporation, setting the
corporation's accounting year, is deleted.
<PAGE> 2
Article SEVENTH of the certificate of incorporation is changed to Article
SIXTH.
A new Article SEVENTH is added to the certificate of incorporation,
dealing with the management of the corporation.
Article EIGHTH of the certificate of incorporation, dealing with the
relationship of the certificate of incorporation to the BCL, is deleted.
A new article EIGHTH is added to the certificate of incorporation, stating
the rights of the corporation to amend the Restated Certificate of
Incorporation.
A new article NINTH is added to the certificate of incorporation limiting
the liability of directors of the corporation.
4 The text of the certificate of incorporation, as amended as described in
section 3, is restated to read in its entirety as follows:
- -------------------------------------------------------------------------------
FIRST: NAME
The name of the corporation is Salomon Smith Barney Holdings Inc.
SECOND: PURPOSE
The corporation is formed for the purpose of engaging in any lawful
act or activity for which corporations may be organized under the
Business Corporation Law (the BCL). The corporation is not formed to
engage in any act or activity requiring the consent or approval of
any state official, department, board, agency or other body without
such consent or approval first being obtained.
2
<PAGE> 3
THIRD: OFFICE
The office of the corporation is located in the City of New York,
County of New York.
FOURTH: CAPITAL SHARES
(a) The corporation shall have the authority to issue 1,000 common
shares, with a par value of one cent ($.01) per share and
10,000,000 preferred shares, with a par value of one dollar
($1.00) per share.
(b) The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article FOURTH to
provide for the issuance of the shares of Preferred Stock in
series, and by filing a certificate pursuant to the applicable
law of the State of New York, to establish from time to time the
number of shares to be included in each such series, and to fix
the designation, powers, preferences and rights of the shares of
each such series and the qualifications, limitations or
restrictions thereof. The authority of the Board of Directors
with respect to each series shall include, but not be limited to,
determination of the following:
(i) the number of shares constituting that series and the
distinctive designation of that series.
(ii) the dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or
dates, and the relative rights of priority, if any, of payments
of dividends on shares of that series;
(iii) whether that series shall have voting rights, in
3
<PAGE> 4
addition to the voting rights provided by law, and, if so, the
terms of such voting rights;
(iv) whether that series shall have conversion or exchange
privileges, and, if so, the terms and conditions of such
conversion or exchange, including provision for adjustment of the
conversion or exchange rate in such events as the board of
directors shall determine;
(v) whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption,
including the manner of selecting shares for redemption if less
than all shares are to be redeemed, the date or dates upon or
after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(vi) whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the
terms and amount of such sinking fund;
(vii) the right of the shares of that series to the benefit of
conditions and restrictions upon the creation of indebtedness of
the corporation or any subsidiary, upon the issue of any
additional shares (including additional shares of such series or
any other series) and upon the payment of dividends or the making
of other distributions on, and the purchase, redemption or other
acquisition by the corporation or any subsidiary of any
outstanding shares of the corporation;
(viii) the rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up
of the corporation, and the relative rights of priority, if any,
of payment of shares of that series;
(ix) any restrictions on transfers of shares of that series; and
4
<PAGE> 5
(x) any other relative, participating, optional or other special
rights, qualifications, limitations or restrictions of that
series.
(b) Shares of any series of preferred shares that have been redeemed
(whether through the operation of a sinking fund or otherwise) or
which, if convertible or exchangeable, have been converted into
or exchanged for shares of stock of any other class or classes,
shall have the status of authorized and unissued shares of
preferred shares of the same series and may be reissued as a part
of the series of which they were originally a part or may be
reclassified and reissued as part of a new series of preferred
shares to be created by resolution or resolutions of the board of
directors or as part of any other series of preferred shares, all
subject to the conditions and the restrictions on issuance set
forth in the resolution or resolutions adopted by the board of
directors providing for the issue of any series of preferred
shares.
(c) Dividends on outstanding shares of Preferred Stock shall be paid,
or declared and set apart for payment, before any dividends shall
be paid or declared and set apart for payment on outstanding
shares of Common Stock. If upon any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the
assets available for distribution to holders of shares of
Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled,
then such assets shall be distributed ratably among the shares of
all series of Preferred Stock in accordance with the respective
preferential amounts (including unpaid cumulative dividends, if
any) payable with respect thereto.
5
<PAGE> 6
(d) Subject to the provisions of any applicable law or except as
otherwise provided by the resolution or resolutions providing for
the issue of any series of Preferred Stock, the holders of
outstanding shares of Common Stock shall exclusively possess
voting power for the election of directors and for all other
purposes, each holder of record of shares of Common Stock being
entitled to one vote for each share of Common Stock standing in
his name on the books of the Corporation.
(e) Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, after
payment shall have been made to the holders of Preferred Stock of
the full amount of dividends to which they shall be entitled
pursuant to the resolution or resolutions providing for the issue
of any series of Preferred Stock, the holders of Common Stock
shall be entitled, to the exclusion of the holders of Preferred
Stock of any and all series, to receive such dividends as from
time to time may be declared by the Board of Directors.
(f) Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, in the
event of any liquidation, dissolution or winding up of the
Corporation whether voluntary or involuntary, after payment shall
have been made to the holders of Preferred Stock of the full
amount to which they shall be entitled pursuant to the resolution
or resolutions providing for the issue of any series of Preferred
Stock, the holders of Common Stock shall be entitled, to the
exclusion of the holders of Preferred Stock of any and all
series, to share ratably according to the number of shares of
6
<PAGE> 7
Common Stock held by them in all remaining assets of the
Corporation available for distribution.
FIFTH: AGENT FOR SERVICE OF PROCESS
The Secretary of State is designated as agent of the corporation upon
whom process against the corporation may be served. The post office
address of the corporation to which the Secretary of State shall mail
process against the corporation served upon the Secretary of State is
Salomon Smith Barney Inc., 388 Greenwich Street, New York, NY 10013,
attention: General Counsel.
SIXTH: NO PREEMPTIVE RIGHTS
Shareholders shall not be entitled to preemptive rights, directly or
indirectly, in respect of any equity, voting, or other shares of the
corporation.
SEVENTH: MANAGEMENT OF THE BUSINESS
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and shareholders:
(a) The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors.
(b) The directors shall have concurrent power with the
shareholders to make, alter, amend, change,
7
<PAGE> 8
add to or repeat the By-Laws of the Corporation.
(c) The number of directors of the Corporation shall be as from
time to time fixed by, or in the manner provided in, the
By-Laws of the Corporation. Election of directors need not
be by written ballot unless the By-Laws so provide.
(d) A director may be removed, with or without cause, by a
majority vote of the outstanding common shares.
(e) The Corporation shall indemnify to the full extent
authorized by law any person made or threatened to be made a
party to an action or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that
he, his testator or intestate is or was a director, officer
or employee of the Corporation or any predecessor of the
Corporation or serves or served any other enterprise as a
director, officer or employee at the request of the
Corporation or any predecessor of the Corporation, provided
that this provision shall not provide for indemnification to
be made to or on behalf of any director or officer if a
judgment or other final adjudication adverse to the director
or officer establishes that his acts were committed in bad
faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or
that he personally gained in fact a financial profit or
other advantage to which he was not legally entitled.
(f) In addition to the powers and authority herein or by statute
expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts
and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the BCL, this
Amended and Restated Certificate of Incorporation, and any
By-Laws adopted by the shareholders;
8
<PAGE> 9
provided, however, that no By-Laws hereafter adopted by the
shareholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been
adopted.
EIGHTH: AMENDMENTS
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute,
and al rights conferred upon shareholders herein are granted subject
to this reservation.
NINTH: LIMITATION OF LIABILITY OF DIRECTORS
To the fullest extent permitted under section 402 of the BCL, no
director of the corporation shall be personally liable to the
corporation or its shareholders for damages for any breach of duty in
such capacity, provided that this provision shall not limit
(a) the liability of any director if a judgment or other final
adjudication adverse to him or her establishes that his or
her acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or that
he or she personally gained in fact a financial profit or
other advantage to which he or she was not legally entitled
or that his or her acts violated section 719 of the BCL, or
(b) the liability of any director for any act or omission prior
to adoption of a provision authorized by this paragraph.
9
<PAGE> 10
5 This amendment and restatement of the certificate of incorporation was
authorized by
(i) the board of directors of the corporation pursuant to section 803 of
the BCL and,
(ii) the written consent of the holders of all shares of the corporation
entitled to vote thereon pursuant to section 803 of the BCL.
This certificate is dated July 1, 1999 and is affirmed by the undersigned
corporation as true under the penalties of perjury.
SSBHI Merger Company Inc.
By: /s/ Michael A. Carpenter
-----------------------------------------
Michael A. Carpenter
Chairman and Chief Executive Officer
By: /s/ Andrew W. Alter
------------------------------------------
Andrew W. Alter
Assistant Secretary
10
<PAGE> 1
Exhibit 3(c)
B Y - L A W S
OF
SALOMON SMITH BARNEY HOLDINGS INC.
(hereinafter called the "corporation")
ARTICLE I
OFFICES
Section 1. The office of the corporation shall be located in
the County of New York, in the State of New York.
Section 2. The corporation may also have offices at such other
places both within and without the State of New York as the board of directors
may from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of
1
<PAGE> 2
directors shall be held in the City of New York, State of New York at such place
as may be fixed from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with
the year 2000 shall be held on the 15th day of April if not a legal holiday, and
if a legal holiday, then on the next secular day following, at 2:00 PM, at which
they shall elect by a plurality vote, a board of directors, and transact such
other business as may properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting
stating the place, date and hour of the meeting shall be delivered not less than
ten nor more than fifty days before the date of the meeting, either personally
or by mail, by or at the direction of the president, the secretary, or the
officer or persons calling the meeting, to each shareholder of record entitled
to vote at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders may be held at
such time and place within or without the State of New York as shall be stated
in the
2
<PAGE> 3
notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the president, the board of
directors, or the holders of not less than 50% of all the shares entitled to
vote at the meeting.
Section 3. Written or printed notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be delivered not less than ten nor more than
fifty days before the date of the meeting, either personally or by mail, by, or
at the direction of, the president, the secretary, or the officer or persons
calling the meeting, to each shareholder of record entitled to vote at such
meeting. The notice should also indicate that it is being issued by, or at the
direction of, the person calling the meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
3
<PAGE> 4
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock
issued and outstanding and entitled to vote, represented in person or by proxy,
shall constitute a quorum at all meetings of the shareholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the shareholders, the shareholders present in
person or represented by proxy shall have power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted that might have
been transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a
majority of the shares of stock represented at the meeting shall be the act of
the shareholders, unless the vote of a greater or lesser number of shares of
stock is required by law or the certificate of incorporation.
Section 3. Each outstanding share of stock having voting power
shall
4
<PAGE> 5
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. The board of directors in advance of any
shareholders' meeting may appoint one or more inspectors to act at the meeting
or any adjournment thereof. If inspectors are not so appointed, the person
presiding at a shareholders' meeting may, and, on the request of any shareholder
entitled to vote thereat, shall appoint one or more inspectors. In case any
person appointed as inspector fails to appear or act, the vacancy may be filled
by the board in advance of the meeting or at the meeting by the person presiding
thereat. Each inspector, before entering upon the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of his ability.
Section 5. Whenever shareholders are required or permitted to
take any action by vote, such action may be taken without a meeting on written
consent, setting forth the action so taken, signed by the holders of all
outstanding shares entitled to vote thereon.
5
<PAGE> 6
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be not less than two
and nor more than twenty. Directors shall be at least eighteen years of age and
need not be residents of the State of New York nor shareholders of the
corporation. The directors, other than the first board of directors, shall be
elected at the annual meeting of the shareholders, except as hereinafter
provided, and each director elected shall serve until the next succeeding annual
meeting and until his successor shall have been elected and qualified. The first
board of directors shall hold office until the first annual meeting of
shareholders.
Section 2. Any or all of the directors may be removed, with or
without cause, at any time by the vote of the shareholders at a special meeting
called for that purpose.
Any director may be removed for cause by the action of the
directors at a special meeting called for that purpose.
Section 3. Unless otherwise provided in the certificate of
incorporation, newly created directorships resulting from an increase in the
board of
6
<PAGE> 7
directors and all vacancies occurring in the board of directors, including
vacancies caused by removal without cause, may be filled by the affirmative vote
of a majority of the board of directors; however, if the number of directors
then in office is less than a quorum, then such newly created directorships and
vacancies may be filled by a vote of a majority of the directors then in office.
A director elected to fill a vacancy shall hold office until the next meeting of
shareholders at which election of directors is the regular order of business,
and until his successor shall have been elected and qualified. A director
elected to fill a newly created directorship shall serve until the next
succeeding annual meeting of shareholders and until his successor shall have
been elected and qualified.
Section 4. The business affairs of the corporation shall be
managed by its board of directors, which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the certificate of incorporation or by these by-laws directed or required to be
exercised or done by the shareholders.
Section 5. The directors may keep the books of the
corporation, except such as are required by law to be kept within the state,
outside of the State of New York, at such place or places as they may from time
to time determine.
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Section 6. The board of directors, by the affirmative vote of
a majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
ARTICLE VI
MEETING OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or
special, may be held either within or without the State of New York.
Section 2. The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by the vote of
the shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
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Section 3. Regular meetings of the board of directors may be
held upon such notice, or without notice, and at such time and at such place as
shall from time to time be determined by the board.
Section 4. Special meetings of the board of directors may be
called by the president on 25 hours' notice to each director, either personally
or by mail or by telegram; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors.
Section 5. Notice of a meeting need not be given to any
director who submits a signed waiver of notice whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
Section 6. One third of the directors shall constitute a
quorum for the transaction of business unless a greater or lesser number is
required by law or by the certificate of incorporation. The vote of a majority
of the directors present at any meeting at which a quorum is present shall be
the act of the board of directors, unless
9
<PAGE> 10
the vote of a greater number is required by law or by the certificate of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
Section 7. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 8. Unless the certificate of incorporation provides
otherwise, any action required or permitted to be taken at a meeting of the
directors or a committee thereof may be taken without a meeting if a consent in
writing to the adoption of a resolution authorizing the action so taken, shall
be signed by all of the directors entitled to vote with respect to the subject
matter thereof.
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ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board or directors, by resolution adopted by a
majority of the entire board, may designate, from among its members, an
executive committee consisting of not more than ten nor fewer than two
directors, and other committees each consisting of at least one director, and
each of which, to the extent provided in the resolution, shall have all the
authority of the board, except as otherwise required by law. Vacancies in the
membership of the committee shall be filled by the board of directors at a
regular or special meeting of the board of directors. The executive committee
shall keep regular minutes of its proceedings and report the same to the board
when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or
of the certificate of incorporation or of these by-laws, notice is required to
be given to any director or shareholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or shareholder, at his address as it appears on the records of the
corporation, with postage thereon
11
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prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Notice to directors may also be
given by telegram.
Section 2. Whenever any notice of a meeting is required to be
given under the provisions of the statutes or under the provisions of the
certificate of incorporation or these by-laws, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board
of Directors and shall include a Secretary and a Treasurer. The Board of
Directors, in its discretion, also may choose a Chairman of the Board of
Directors, or Co-Chairmen of the Board of Directors, each of whom must be a
director, a President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by
the same
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person, unless otherwise prohibited by law or the Certificate of Incorporation.
The officers of the Corporation need not be stockholders of the Corporation nor,
except in the case of the Chairman or Co-Chairmen of the Board of Directors,
need such officers be directors of the Corporation.
Any two or more offices may be held by the same person. When
all the issued and outstanding stock of the corporation is owned by one person,
such person may hold all or any combination of offices.
Section 3. The board of directors may appoint such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office
until their successors are chosen and qualify. Any officer elected or appointed
by the board of directors may be removed at any time by the affirmative vote of
a majority of the board of directors. Any vacancy occurring in any office of the
corporation
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shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer
of the corporation, shall preside at all meetings of the shareholders and the
board of directors, shall have general and active management of the business of
the corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other
contracts requiring a seal under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than
one, the vice-presidents in the order determined by the board of directors,
shall, in the
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absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the
board of directors and all meetings of the shareholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the shareholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and, when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 10. The assistant secretary, or if there be more than
one,
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<PAGE> 16
the assistant secretaries in the order determined by the board of directors,
shall, in the absence or disability of the secretary, perform the duties and
exercise the powers of the secretary and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors.
Section 12. He shall disburse the funds of the corporation as
may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall
give the
16
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corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more
than one, the assistant treasurers in the order determined by the board of
directors, shall, in the absence or disability of the treasurer, perform the
duties and exercise the powers of the treasurer and shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
Section 15. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors. Any Vice Chairman, the Chief
Administrative Officer, the General Counsel or the Chief Financial Officer shall
have the same authority to bind the Corporation as the President, unless
otherwise specified by the Board of Directors. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and
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<PAGE> 18
to prescribe their respective duties and powers.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented
by certificates or shall be uncertificated. Certificates shall be signed by the
chairman or vice-chairman of the board or the president or a vice-president and
the secretary or an assistant secretary or the treasurer or an assistant
treasurer of the corporation and may be sealed with the seal of the corporation
of a facsimile thereof.
When the corporation is authorized to issue shares of more
than one class, there shall be set forth upon the face or back of the
certificate, or the certificate shall have a statement that the corporation will
furnish to any shareholder upon request and without charge, a full statement of
the designation, relative rights, preferences, and limitations of the shares of
each class authorized to be issued and, if the corporation is authorized to
issue any class of preferred shares in series, the designation, relative rights,
preferences and limitations of each such series so far as the same have been
fixed and the authority of the board of directors to designate and fix the
relative rights, preferences and limitations of other series.
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Within a reasonable time after the issuance or transfer of any
uncertificated shares there shall be sent to the registered owner thereof a
written notice containing the information required to be set forth or stated on
certificates pursuant to paragraphs (b) and (c) of Section 508 of the New York
Business Corporation Law.
Section 2. The signatures of the officers of the corporation
upon a certificate may be facsimiles if the certificate is countersigned by a
transfer agent or registered by a registrar other than the corporation itself or
an employee of the corporation. In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of
issue.
Section 3. The board of directors may direct a new certificate
to be issued in place of any certificate theretofore issued by the corporation
alleged to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any
19
<PAGE> 20
claim that may be made against it with respect to any such certificate alleged
to have been lost or destroyed.
Section 4. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate shall be cancelled and the transaction shall be recorded
upon the books of the corporation.
Section 5. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the board of directors may fix, in advance, a date
as the record date for any such determination of shareholders. Such date shall
not be more than fifty nor less than ten days before the date of any meeting nor
more than fifty days prior to any other action. When a determination of
shareholders of record entitled to notice of or to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, unless the board fixes a new record date for
the
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adjourned meeting.
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of New
York.
Section 7. A list of shareholders as of the record date,
certified by the corporate officer responsible for its preparation or by a
transfer agent, shall be produced at any meeting upon the request thereat or
prior thereto of any shareholder. If the right to vote at any meeting is
challenged, the inspectors of election, or person presiding thereat, shall
require such list of shareholders to be produced as evidence of the right of the
persons challenged to vote at such meeting and all persons who appear from such
list to be shareholders entitled to vote thereat may vote at such meeting.
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ARTICLE XI
GENERAL PROVISIONS
Section 1. Subject to the provisions of the certificate of
incorporation relating thereto, if any, dividends may be declared by the board
of directors at any regular or special meeting, pursuant to law. Dividends may
be paid in cash, in shares of the capital stock or in the corporation's bonds or
its property, including the shares or bonds of other corporations subject to any
provisions of law and of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve fund to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 3. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons
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as the board of directors may from time to time designate.
Section 4. The fiscal year of the corporation shall be fixed
by resolution of the board of directors.
Section 5. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, New York". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
Section 1. The Corporation shall indemnify to the full extent
authorized by law any person made or threatened to be made a party to an action
or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate is or was a director,
officer or employee of the Corporation or any predecessor of the Corporation or
serves or served any other enterprise as a director, officer or employee at the
request of the Corporation or any predecessor of the Corporation, provided that
this provision shall not provide for
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indemnification to be made to or on behalf of any director or officer if a
judgment or other final adjudication adverse to the director or officer
establishes that his acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
ARTICLE XIII
AMENDMENTS
Section 1. These by-laws may be amended or repealed or new
by-laws may be adopted at any regular or special meeting of shareholders at
which a quorum is present or represented, by the vote of the holders of shares
entitled to vote in the election of any directors, provided notice of the
proposed alteration, amendment or repeal be contained in the notice of such
meeting. These by-laws may also be amended or repealed or new by-laws may be
adopted by the affirmative vote of a majority of the board of directors at any
regular or special meeting of the board. If any by-law regulating an impending
election of directors is adopted, amended or repealed by the board, there shall
be set forth in the notice of the next meeting of
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shareholders for the election of directors the by-law so adopted, amended or
repealed, together with precise statement of the changes made. By-laws adopted
by the board of directors may be amended or repealed by the shareholders.
25
<PAGE> 1
EXHIBIT 4(r)
SECOND SUPPLEMENTAL AGREEMENT TO THE UNIT AGREEMENT
SECOND SUPPLEMENTAL AGREEMENT TO THE UNIT AGREEMENT, dated as of July
1, 1999 (the "Supplemental Agreement"), among SALOMON SMITH BARNEY HOLDINGS
INC., a corporation duly organized and existing under the laws of the State of
Delaware ("SSBH"), SSBHI MERGER COMPANY INC., a corporation duly organized and
existing under the laws of the State of New York ("Merger Company"), and THE
CHASE MANHATTAN BANK, a New York banking corporation, as Agent (the "Agent"),
under the Unit Agreement, dated as of July 3, 1996, between SSBH and the Agent,
as supplemented .by a supplemental agreement dated as of November 28, 1997
among Travelers Group Inc., SSBH and the Agent (the "Unit Agreement").
WITNESSETH:
WHEREAS, SSBH and the Agent entered into the Unit Agreement;
WHEREAS, pursuant to the Unit Agreement, certain Purchase Contracts
(the "Purchase Contracts") were executed in connection with the sale of the
Units pursuant to the Unit Agreement;
WHEREAS, SSBH, The Bank of New York, a corporation duly organized and
existing under the laws of the State of New York, as Collateral Agent (the
"Collateral Agent"), and The Chase Manhattan Bank, as Unit Agent, entered into
the Pledge Agreement (the "Pledge Agreement") dated as of July 3, 1996 providing
for, among other things, the pledge of the Preferred Securities (as defined in
the Unit Agreement) to the Collateral Agent;
WHEREAS, SSBH will merge into Merger Company (the "Merger"), effective
as of the effective time of the Merger (the "Effective Time"), pursuant to an
Agreement and Plan of
<PAGE> 2
Merger dated as of June 30, 1999 between Merger Company and SSBH (the "Merger
Agreement");
WHEREAS, pursuant to the Agreement and Plan of Merger, as of the
Effective Time, Merger Company will change its name to Salomon Smith Barney
Holdings Inc.;
WHEREAS, as of the Effective Time of the Merger, Merger Company, as
successor by merger to SSBH, will succeed, insofar as permitted by law, to all
rights, liabilities and obligations of SSBH;
WHEREAS, SSBH and Merger Company desire to enter into this Supplemental
Agreement;
NOW, THEREFORE, Merger Company covenants and agrees with the Agent as
follows:
ARTICLE I
ASSUMPTION AND SUBSTITUTION
Section 1.01. As of the Effective Time, Merger Company hereby assumes
the obligations of the Company (as defined in the Unit Agreement) under the
Purchase Contracts, the Unit Agreement and the Pledge Agreement.
Section 1.02 The validity, interpretation, construction and performance
of this Supplemental Agreement shall be governed by, and be construed in
accordance with, the laws of the State of New York, without regard to its
conflicts of laws principles.
Section 1.03 This Supplemental Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
<PAGE> 3
Each of SALOMON SMITH BARNEY HOLDINGS INC., SSBHI MERGER COMPANY INC., and THE
CHASE MANHATTAN BANK, as Agent, has caused this Supplemental Agreement to be
signed by one of its officers thereunto, all as of July 1, 1999.
SALOMON SMITH BARNEY HOLDINGS INC.
By: /s/ Mark Kleinman
---------------------------------------------
Name: Mark Kleinman
Title: Executive Vice President and Treasurer
SSBHI MERGER COMPANY INC.
By: /s/ Mark Kleinman
---------------------------------------------
Name: Mark Kleinman
Title: Executive Vice President and Treasurer
THE CHASE MANHATTAN BANK,
as Agent
By: /s/ Robert S. Peschler
---------------------------------------------
Name: Robert S. Peschler
Title: Assistant Vice President
<PAGE> 1
Exhibit 5(a)
July 1, 1999
Registration Statement on Form S-3
Registration No. 333-02897
Ladies and Gentleman:
We have acted as special counsel for Salomon Smith Barney
Holdings Inc., a New York corporation (the "Company"), and SI Financing Trust I,
a statutory business trust created under the Business Trust Act of the State of
Delaware (the "Trust"), in connection with the preparation and filing with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), of a Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 (Registration No. 333- 02897), as amended
(the "Registration Statement") for the registration under the Act of: (a) Trust
Preferred Stock(SM) (TRUPS(SM)) Units (the "Units") consisting of (i) Trust
Preferred Securities (the "Preferred Securities") issued by the Trust and (ii)
Purchase Contracts of the Company (as successor by merger to Salomon Smith
Barney Holdings Inc., a Delaware corporation ("SSBH")), requiring the purchase
of depositary shares (the "Depositary Shares") evidenced by depositary receipts
(the "Depositary Receipts"), each representing a one-twentieth interest in a
share of Cumulative Preferred Stock, Series L (the "Series L Preferred Stock"),
of Citigroup Inc., a Delaware corporation ("Citigroup"); (b) a guarantee by the
Company (as successor by merger to SSBH) on a subordinated basis of the payment
of distributions on the Preferred Securities out of money held by the Trust and
payments upon redemption of the Preferred Securities or liquidation of the
Trust, to the extent set forth in the Registration Statement, pursuant to the
Preferred Securities Guarantee Agreement (the "Guarantee") between the Company
(as successor by merger to SSBH) and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Guarantee Trustee; and (c) Subordinated Debt Securities of
<PAGE> 2
2
the Company (the "Subordinated Debt Securities") issued under an Indenture, as
supplemented from time to time, including the Third Supplemental Indenture in
respect of the Subordinated Debt Securities and the Fifth Supplemental Indenture
in respect of the Merger referred to in the next paragraph (the "Indenture")
between the Company (as successor by merger to SSBH) and Bankers Trust Company,
as Trustee. The Units were issued pursuant to a Unit Agreement (the "Unit
Agreement") between the Company (as successor by merger to SSBH) and The Chase
Manhattan Bank (formerly known as Chemical Bank), as Unit Agent. The Depositary
Receipts evidencing the Depositary Shares will be issued pursuant to a Deposit
Agreement (the "Deposit Agreement") between Citigroup (as successor to the
Company by virtue of the Assignment and Assumption Agreement referred to in the
next paragraph) and First Chicago Trust Company of New York, as Depositary. The
Series L Preferred Stock will be issued pursuant to the Restated Certificate of
Incorporation of Citigroup. Capitalized terms not otherwise defined herein have
the meanings assigned to them in the Registration Statement.
In connection with this opinion, we have examined originals,
or copies certified or otherwise identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed necessary
or appropriate for the purposes of this opinion, including (a) the documents
identified in the immediately preceding paragraph, (b) the Agreement and Plan of
Merger dated as of June 30, 1999 (the "Merger Agreement"), between SSBH and
SSBHI Merger Company Inc., a New York corporation ("Surviveco"), providing for,
among other things, the merger (the "Merger") of SSBH into Surviveco with the
results that Surviveco will be the surviving corporation and will change its
name to "Salomon Smith Barney Holdings Inc.", (c) the Supplemental Agreement to
Unit Agreement dated as of November 28, 1997 (the "First Supplemental
Agreement"), between Citigroup (formerly known as Travelers Group Inc.), SSBH
and the Unit Agent, (d) the Supplemental Agreement to Unit Agreement (the
"Second Supplemental Agreement") dated as of July 1, 1999, between SSBH, the
Company and the Unit Agent, (e) the Fifth Supplemental Indenture (the "Fifth
Supplemental Indenture") dated as of July 1, 1999, among SSBH, the Company and
the Trustee, and (f) the Assignment and Assumption Agreement dated as of
November 26, 1997 (the "Assignment Agreement"),
<PAGE> 3
3
by and among SSBH (formerly known as Salomon Inc), Citigroup (formerly known as
Travelers Group Inc.) and the Depositary. For all purposes of this opinion we
have assumed that the Merger and all other transactions contemplated by the
Merger Agreement have been consummated in accordance with the terms of the
Merger Agreement.
Based on the foregoing, we are of opinion as follows:
1. Assuming the Unit Agreement has been duly authorized,
executed and delivered by SSBH and the Unit Agent and the First Supplemental
Agreement has been duly authorized, executed and delivered by Citigroup, SSBH
and the Unit Agent, when the Second Supplemental Agreement has been duly
authorized, executed and delivered by SSBH, the Company and the Unit Agent, the
Unit Agreement will constitute a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms (subject
to applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws affecting creditors' rights generally and subject as to
enforceability to general principles of equity, regardless of whether such
enforceability is sought in a proceeding in equity or at law); and assuming the
Units have been issued in accordance with the terms of the Unit Agreement and
delivered against payment therefor, the Units entitle the holders thereof to the
rights specified in the Unit Agreement, as amended or supplemented by the First
Supplemental Agreement and the Second Supplemental Agreement (subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws affecting creditors' rights generally and subject as to
enforceability to general principles of equity, regardless of whether such
enforceability is sought in a proceeding in equity or at law).
2. Assuming the Purchase Contracts have been duly authorized,
executed and delivered by SSBH, when the Second Supplemental Agreement has been
duly authorized, executed and delivered by SSBH, the Company and the Unit Agent,
the
<PAGE> 4
4
Purchase Contracts will constitute legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms
(subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject as to enforceability to general principles of equity, regardless of
whether such enforceability is sought in a proceeding in equity or at law).
3. Assuming the Deposit Agreement has been duly authorized,
executed and delivered by SSBH and the Depositary and the Assignment Agreement
has been duly authorized, executed and delivered by SSBH, Citigroup and the
Depositary, the Deposit Agreement constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject as to enforceability to general principles of equity, regardless of
whether such enforceability is sought in a proceeding in equity or at law); and
when the Depositary Receipts are issued in accordance with the provisions of the
Deposit Agreement against the deposit of validly issued, fully paid and
nonassessable shares of Series L Preferred Stock, such Depositary Receipts will
entitle the holders thereof to the rights specified in such Depositary Receipts
and in the Deposit Agreement (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally and subject as to enforceability to general
principles of equity, regardless of whether such enforceability is sought in a
proceeding in equity or at law).
4. When the shares of the Series L Preferred Stock have been
duly issued and delivered against payment therefor, such shares will be validly
issued, fully paid and nonassessable.
5. Assuming the Guarantee has been duly authorized, executed
and delivered by SSBH, the Guarantee constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms (subject to applicable bankruptcy, insolvency,
<PAGE> 5
5
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally and subject as to enforceability to general
principles of equity, regardless of whether such enforceability is sought in a
proceeding in equity or at law).
6. Assuming (a) the Subordinated Debt Securities have been
duly authorized by SSBH, (b) the Third Supplemental Indenture in respect of the
Subordinated Debt Securities has been duly executed and delivered by SSBH and
the Indenture Trustee and (c) the Subordinated Debt Securities have been duly
executed by SSBH and authenticated by the Indenture Trustee in accordance with
the terms of the Indenture and delivered against payment therefor, when the
Fifth Supplemental Indenture has been duly authorized, executed and delivered by
SSBH, the Company and the Indenture Trustee, the Subordinated Debt Securities
will constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
laws affecting creditors' rights generally and subject as to enforceability to
general principles of equity, regardless of whether such enforceability is
sought in a proceeding in equity or at law).
We are members of the bar of the State of New York and express
no opinion as to any matters governed by any laws other than the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
Federal laws of the United States of America.
We know that we are referred to under the heading "LEGAL
OPINIONS" in the form of Prospectus included in the Registration Statement, and
we hereby consent to the use of our name therein and to the filing of this
opinion with the Commission as Exhibit 5(a) to the Registration Statement.
Very truly yours,
/s/ Cravath, Swaine & Moore
Salomon Smith Barney Holdings Inc.
SI Financing Trust I
Seven World Trade Center
New York, NY 10048
<PAGE> 1
EXHIBIT 5(b)
[Letterhead of Morris, Nichols, Arsht & Tunnell]
July 1, 1999
SI Financing Trust I
Salomon Smith Barney Holdings Inc.
388 Greenwich Street
New York, New York 10048
Re: SI Financing Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel to SI Financing
Trust I, a Delaware statutory business trust (the "Trust"), in connection with
certain matters relating to the formation of the Trust and the issuance of
Preferred Securities to beneficial owners pursuant to and as described in
Registration Statement No. 333-2897 (and the Prospectus forming a part thereof)
on Form S-3 filed with the Securities and Exchange Commission on April 26, 1996,
as amended by Pre-Effective Amendment Nos. 1, 2, 3, 4, and 5 and Post-Effective
Amendment No. 1 thereto (as so amended, the "Registration Statement").
Capitalized terms used herein and not otherwise herein defined are used as
defined in the Amended and Restated Declaration of Trust of the Trust in the
form attached as an exhibit to the Registration Statement (the "Governing
Instrument").
In rendering this opinion, we have examined copies of the
following documents in the forms provided to us: the Certificate of Trust of the
Trust as filed in the Office of the Secretary of State of the State of Delaware
(the "State Office") on April 25, 1996 (the "Certificate"), as amended by a
certificate of amendment thereto filed with the State Office on September 16,
1996; a Declaration of Trust of the Trust dated as of April 25, 1996 (the
"Original Governing Instrument"); the Governing Instrument; the Indenture dated
as of December 1, 1988 between Salomon Smith Barney Holdings Inc. (formerly
"Salomon Inc") ("SSBH") and Bankers Trust Company, as Trustee (the "Indenture");
the Preferred Securities Guarantee by SSBH; the Common Securities Guarantee
by SSBH; the Third Supplemental Indenture under the Indenture between
SSBH and Bankers Trust
<PAGE> 2
SI Financing Trust I
c/o Salomon Smith Barney Holdings Inc.
July 1, 1999
Page 2
Company, as Trustee; the Fourth Supplemental Indenture under the Indenture; the
Fifth Supplemental Indenture under the Indenture; the Underwriting Agreement
relating to the Preferred Securities between Salomon Inc and the Trust as
confirmed and accepted by Salomon Smith Barney Inc. (formerly "Salomon Brothers
Inc") for itself and the other several Underwriters named on Schedule I thereto
(the "Underwriting Agreement"); the Registration Statement; and a certification
of good standing of the Trust obtained as of a recent date from the State
Office. In such examinations, we have assumed the genuineness of all signatures,
the conformity to original documents of all documents submitted to us as drafts
or copies or forms of documents to be executed and the legal capacity of natural
persons to complete the execution of documents. We have further assumed for
purposes of this opinion: (i) the due formation or organization, valid existence
and good standing of each entity (other than the Trust) that is a party to any
of the documents reviewed by us under the laws of the jurisdiction of its
respective formation or organization; (ii) the due authorization, execution and
delivery by, or on behalf of, each of the parties thereto of the
above-referenced documents (including, without limitation, the due
authorization, execution and delivery of the Governing Instrument and the
Underwriting Agreement prior to the first issuance of Preferred Securities);
(iii) that no event has occurred subsequent to the filing of the Certificate
that would cause a dissolution or liquidation of the Trust under the Original
Governing Instrument or the Governing Instrument, as applicable; (iv) that the
activities of the Trust have been and will be conducted in accordance with the
Original Governing Instrument or the Governing Instrument, as applicable, and
the Delaware Business Trust Act, 12 Del. C. Section 3801 et seq. (the "Delaware
Act"); (v) that each Holder of Preferred Securities has made payment of the
required consideration therefor and received a Preferred Securities Certificate
in consideration thereof in accordance with the terms and conditions of the
Governing Instrument, Registration Statement and Underwriting Agreement; (vi)
that the Preferred Securities have otherwise been issued and sold to, and held
or transferred by, the Preferred Securities Holders (and any subsequent
transferee), and all transfers have been made, in accordance with the terms,
conditions, requirements and procedures set forth in the Governing Instrument,
Registration Statement and Underwriting Agreement; (vii) that none of the
Preferred Securities have been called for redemption, redeemed, converted,
exchanged or canceled (except in connection with a permitted transfer) and all
of the Preferred Securities remain outstanding; and (vii) that the documents
examined by us are in full force and effect, express the entire understanding of
the parties thereto with respect to the subject matter thereof and have not been
amended, supplemented or otherwise modified, except as herein referenced. No
opinion is expressed with respect to the requirements of, or compliance with,
federal or state securities or blue sky laws. We have not participated in the
preparation of the Registration Statement or any other offering materials
relating to the Preferred Securities and we assume no responsibility for their
contents. As to any fact material to our opinion, other than those assumed, we
have relied without independent investigation on the above-referenced documents
and on the accuracy, as of the date hereof, of the matters therein contained.
<PAGE> 3
SI Financing Trust I
c/o Salomon Smith Barney Holdings Inc.
July 1, 1999
Page 3
Based on and subject to the foregoing, and limited in all
respects to matters of Delaware law, it is our opinion that:
1. The Trust is a duly formed and validly existing business
trust in good standing under the laws of the State of Delaware.
2. The Preferred Securities constitute validly issued and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable beneficial interests in the Trust.
3. Under the Delaware Act and the terms of the Governing
Instrument, each Preferred Security Holder of the Trust, in such capacity, will
be entitled to the same limitation of personal liability as that extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided, however, we express no
opinion with respect to the liability of any Preferred Security Holder who is,
was or may become a named Trustee of the Trust. Notwithstanding the foregoing,
we note that pursuant to Section 11.4 of the Governing Instrument, the Trust may
withhold amounts otherwise distributable to a Holder and pay over such amounts
to the applicable jurisdictions in accordance with federal, state and local law
and any amount withheld will be deemed to have been distributed to such Holder
and that, pursuant to the Governing Instrument, Preferred Security Holders may
be obligated to make payments or provide indemnity or security under the
circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name under the heading
"Legal Opinions" in the Prospectus forming a part thereof. In giving this
consent, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder. This opinion speaks only as of the date hereof and is based on our
understandings and assumptions as to present facts, and on our review of the
above referenced documents and the application of Delaware law as the same exist
as of the date hereof, and we undertake no obligation to update or supplement
this opinion after the date hereof for the benefit of any person or entity with
respect to any facts or circumstances that may hereafter come to our attention
or any changes in facts or law that may hereafter occur or take effect. This
opinion is intended solely for the benefit of the addressee hereof in connection
with the matters contemplated hereby and may not be relied on by any other
person or entity or for any other purpose without our prior written consent.
Very truly yours,
/s/ MORRIS, NICHOLS, ARSHT & TUNNELL
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Post-effective
Amendment No. 1 to the Registration Statement of Salomon Smith Barney Holdings
Inc. and SI Financing Trust on Form S-3 (No. 333-2897) of our report dated
January 25, 1999, relating to the consolidated statements of financial condition
of Salomon Smith Barney Holdings Inc. and Subsidiaries as of December 31, 1998
and 1997, and the related consolidated statements of income, cash flows, and
changes in stockholder's equity for each of the three years in the period ended
December 31, 1998, which is included in the Form 10-K of Salomon Smith Barney
Holdings Inc. for the year ended December 31, 1998. We also consent to the
reference of our firm under the caption "Experts" in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
New York, New York
June 30, 1999
<PAGE> 1
Exhibit 23(b)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Salomon Smith Barney Holdings Inc.:
As independent public accountants, we hereby consent to the incorporation by
reference in the Post-Effective Amendment No. 1 to Form S-3 Registration
Statement of Salomon Smith Barney Holdings Inc. and SI Financing Trust I (the
"Registration Statement"), of our report dated March 13, 1997, relating to the
consolidated statements of financial condition of Salomon Inc and subsidiaries
as of December 31, 1996 and 1995, and the related consolidated statements of
income, changes in stockholders' equity and cash flows for each of the three
years in the period ended December 31, 1996, which report is incorporated by
reference or included in the annual report on Form 10-K of Salomon Smith Barney
Holdings Inc. for the year ended December 31, 1998 and to the reference to our
firm under the heading "Experts" in the Registration Statement.
/s/ Arthur Andersen LLP
New York, New York
June 30, 1999
