SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM 8-A AMENDMENT
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
_________________________
Citicorp
(Exact name of registrant as specified in its charter)
Delaware 13-2614988
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
399 Park Avenue
New York, New York 10043
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(Address of principal Zip Code
executive offices)
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12 (b) OF THE ACT:
Name of each exchange
Title of each class on which each
class is
to be so registered to be registered
Depositary Shares each
representing a one-tenth
interest in a Share of 8.30% Noncumulative
Preferred Stock, Series 20
(Without Par Value)
(the "Depositary Shares") New York
Stock Exchange
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12 (g) OF THE ACT:
8.30% Noncumulative Preferred Stock, Series 20 (Without Par Value)
(the "Preferred Stock")
Item 1. Description of Registrant's Securities.
1.1 For a description of the Preferred Stock, reference is
hereby made to the description of the Preferred Stock contained in
the Prospectus dated September 26, 1994 as supplemented by the
Prospectus Supplement dated September 26, 1994 relating to the
Preferred Stock filed with the Securities and Exchange Commission
pursuant to Rule 424 (b) under the Securities Act of 1933 (File No.
33-64574) and incorporated herein by reference (see in particular
"Description of Series 20 Preferred Stock" in the Prospectus
Supplement and "Description of Preferred Stock" in the Prospectus).
1.2 For a description of the Depositary Shares, reference is
hereby made to the description of the Depositary Shares contained
in the Prospectus dated September 26, 1994 as supplemented by the
Prospectus Supplement dated September 26, 1994 referred to above
and incorporated herein by reference (see in particular
"Description of Depositary Shares" in the Prospectus Supplement and
the Prospectus).
Item 2. Exhibits.
2.1 Deposit Agreement.
2.2 Certificate of Designations, authorizing the issuance and
establishing the designation, preferences and rights of the
Preferred Stock.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this amended Registration Statement on
Form 8-A to be signed on its behalf by the undersigned, thereunto
duly authorized.
CITICORP
Registrant
By: /s/ Michael T. Nugent
Vice President
Date: October 6, 1994
CITICORP,
CITIBANK, N.A., As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
______________
DEPOSIT AGREEMENT
______________
Dated as of September 29, 1994
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of September 29, 1994, among
CITICORP, a Delaware corporation, Citibank, N.A., a national
banking association, and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set
forth in this Deposit Agreement, for the deposit of shares of 8.30%
Noncumulative Preferred Stock, Series 20, without par value, of
Citicorp with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts
evidencing Depositary Shares in respect of the Stock so deposited;
and
WHEREAS, the Receipts are to be substantially in the form
of Exhibit A annexed hereto, with appropriate insertions,
modifications and omissions, as hereinafter provided in this
Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the
parties hereto agree as follows:
ARTICLE I
Definitions
The following definitions, in addition to the definitions
included elsewhere in this Deposit Agreement, shall for all
purposes, unless otherwise indicated, apply to the respective terms
used in this Deposit Agreement:
"Certificate" shall mean the certificate of designations
filed with the Secretary of State of the State of Delaware
establishing the Stock as a series of preferred stock of the
Company.
"Company" shall mean Citicorp, a Delaware corporation,
and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean Citibank, N.A., and any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing a one-tenth interest in a share of Stock and evidenced
by a Receipt.
"Depositary's Agent" shall mean any agent appointed by
the Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of
the Depositary in New York City, at which at any particular time
its depositary receipt business shall be administered.
"Receipt" shall mean one of the Depositary Receipts
issued hereunder by the Depositary, whether in definitive or
temporary form, evidencing interests held in Depositary Shares in
substantially the form set forth in Exhibit A hereto. If the
context so requires, the term "Receipt" shall be deemed to include
the DTC Receipt (as defined in Section 2.01 hereof).
"record holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the
Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which
shall be appointed to register ownership and transfers of Receipts
as herein provided.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Stock" shall mean shares of the Company's 8.30%
Noncumulative Preferred Stock, Series 20, without par value.
ARTICLE II
Book-Entry Form, Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Book-Entry Form; Form and Transfer of
Receipts. The Company and the Depositary shall make application to
The Depository Trust Company ("DTC") for acceptance of all or a
portion of the Receipts for its book-entry settlement system. The
Company hereby appoints the Depositary acting through any
authorized officer thereof as its attorney-in-fact, with full power
to delegate, for purposes of executing any agreements,
certifications or other instruments or documents necessary or
desirable in order to effect the acceptance of such Receipts for
DTC eligibility, including but not limited to the FAST Balance
Certificate Agreement between the Depositary and DTC (the "FAST
Agreement"), a copy of which is attached as Exhibit B. So long as
the Receipts are eligible for book-entry settlement with DTC except
as provided for in Section 2.09 of this Deposit Agreement, or
unless otherwise required by law, all Depositary Shares to be
traded on the New York Stock Exchange with book-entry settlement
through DTC shall be represented by a single receipt (the "DTC
Receipt") which shall be deposited with DTC (or its designee)
evidencing all such Depositary Shares and registered in the name of
the nominee of DTC (initially expected to be Cede & Co.).
Citibank, N.A. or such other entity as is agreed to by DTC may hold
the DTC Receipt as custodian for DTC. During any period in which
any Depositary Shares are evidenced by the DTC Receipt except as
expressly provided for in Section 2.09 of this Deposit Agreement,
no person acquiring Depositary Shares traded on the New York Stock
Exchange with book-entry settlement through DTC shall receive or be
entitled to receive physical delivery of the Receipts evidencing
such Depositary Shares. Ownership of beneficial interests in the
DTC Receipt shall be shown on, and the transfer of such ownership
shall be effected through, records maintained by (i) DTC or its
nominee for such DTC Receipt, or (ii) institutions that have
accounts with DTC.
If DTC subsequently ceases to make its book-entry settlement
system available for the Receipts, the Company may instruct the
Depositary regarding making other arrangements for book-entry
settlement. In the event that the Receipts are not eligible for,
or it is no longer necessary to have the Receipts available in
book-entry form, the Depositary shall provide written instructions
to DTC to deliver to the Depositary for cancellation the DTC
Receipt, and the Company shall instruct the Depositary to deliver
to the beneficial owners of the Depositary Shares previously
evidenced by the DTC Receipt definitive Receipts in physical form
evidencing such Depositary Shares. Such definitive Receipts shall
be in the form annexed hereto as Exhibit A with appropriate
insertions, modifications and omissions, as hereafter provided.
The beneficial owners of Depositary Shares shall, except as
stated above with respect to Depositary Shares in book-entry form
represented by the DTC Receipt, be entitled to receive Receipts in
physical, certificated form as herein provided.
The Receipts may be typewritten, in the case of the DTC
Receipt, and otherwise shall, upon notice by the Company to the
Depositary, be definitive Receipts which shall be engraved or
printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. The DTC Receipt shall bear
such legend or legends as may be required by DTC in order for it to
accept the Depositary Shares for its book-entry settlement system.
Until such time as the Receipts are so engraved or printed or
lithographed in accordance with the preceding sentence, the
Depositary, upon the written order of the Company or any holder of
Stock, as the case may be, delivered in compliance with Section
2.02, shall execute and deliver temporary Receipts which are
printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their
execution of such Receipts. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at the
Depositary's Office, without charge to the holder. Upon surrender
for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor
definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or
Receipts. Such exchange shall be made at the Company's expense and
without any charge therefor to the holder of the Receipts. Until
so exchanged, the temporary Receipts shall in all respects be
entitled to the same benefits under this Deposit Agreement, and
with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the
manual signature of a duly authorized officer of the Depositary,
provided that such signature may be a facsimile if a Registrar for
the Receipts (other than the Depositary) shall have been appointed
and such Receipts are countersigned by manual signature of a duly
authorized officer of the Registrar. No Receipt shall be entitled
to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed
manually by a duly authorized officer of the Depositary or, if a
Registrar for the Receipts (other than the Depositary) shall have
been appointed, by manual or facsimile signature of a duly
authorized officer of the Depositary and countersigned manually by
a duly authorized officer of such Registrar. The Depositary shall
record on its books each Receipt so signed and delivered as
hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent
with the provisions of this Deposit Agreement as may be required by
the Depositary or required to comply with any applicable law or any
regulation or with the rules and regulations of any securities
exchange upon which the Stock, the Depositary Shares or the
Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Subject to any limitations set forth in a Receipt or in
this Deposit Agreement, title to Depositary Shares evidenced by a
Receipt which is properly endorsed or accompanied by a properly
executed instrument of transfer, shall be transferable by delivery
with the same effect as in the case of a negotiable instrument;
provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section
2.04, the Depositary may, notwithstanding any notice to the
contrary, treat the record holder thereof at such time as the
absolute owner thereof for the purpose of determining the person
entitled to distributions of dividends or other distributions, the
exchange of Depositary Shares for Stock, the right to exchange
Receipts pursuant to Section 2.09 or to any notice provided for in
this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof. Subject to the terms and
conditions of this Deposit Agreement, the Company or any holder of
Stock may from time to time deposit shares of the Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or
accompanied, if required by law or the Depositary, by a duly
executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement, and together with a
written order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a
Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the
Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions
of this Section, together with the other documents required as
above specified, and upon recordation of the Stock on the books of
the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the
Company or a holder of Stock depositing shares of Stock in
accordance with the first paragraph of this Section, a Receipt or
Receipts for the number of Depositary Shares representing the Stock
so deposited and registered in such name or names as may be
requested by the Company or such holder. The Depositary shall
execute and deliver such Receipt or Receipts at the Depositary's
Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and
expense of the person requesting such delivery. The DTC Receipt
shall provide that it shall evidence the aggregate amount of
Depositary Shares from time to time indicated in the records of the
Depositary and that the aggregate amount of Depositary Shares
evidenced thereby may from time to time be increased or decreased
by making adjustments on such records of the Depositary.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends
or other distributions of Stock, if any, there shall be deposited
hereunder not more than 500,000 shares of Stock.
SECTION 2.03. Redemption of Stock. Whenever the Company
shall elect to redeem shares of Stock in accordance with the
provisions of the Certificate, it shall (unless otherwise agreed to
in writing with the Depositary) give the Depositary not less than
40 nor more than 70 days' notice of the date of such proposed
redemption of Stock and of the number of such shares held by the
Depositary to be so redeemed and the applicable redemption price,
as set forth in the Certificate, which notice shall be accompanied
by a certificate from the Company stating that such redemption of
Stock is in accordance with the provisions of the Certificate.
Such notice, if given more than 60 days prior to the redemption
date, shall be in addition to the notice required to be given for
redemption pursuant to the Certificate. On the date of such
redemption, provided that the Company shall then have paid in full
to the Depositary the redemption price of the Stock to be redeemed,
plus any accrued and unpaid dividends thereon from the immediately
preceding dividend payment date to the date of redemption, the
Depositary shall redeem the number of Depositary Shares
representing such Stock. The Depositary shall mail notice of such
redemption and the proposed simultaneous redemption of the number
of Depositary Shares representing the Stock to be redeemed by
first-class mail, postage prepaid, not less than 30 and not more
than 60 days prior to the date fixed for redemption of such Stock
and Depositary Shares (the "Redemption Date"), to the record
holders of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as they appear on the
records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to
one or more such holders shall affect the sufficiency of the
proceedings for redemption as to other holders. Each such notice
shall state: (i) the Redemption Date; (ii) the number of Depositary
Shares to be redeemed and, if less than all the Depositary Shares
held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the
redemption price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of
the redemption price; and (v) that dividends in respect of the
Stock represented by the Depositary Shares to be redeemed will
cease to accumulate on such Redemption Date. In case less than all
the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be so redeemed shall be selected by lot or pro
rata as may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid,
from and after the Redemption Date (unless the Company shall have
failed to redeem the shares of Stock to be redeemed by it as set
forth in the Company's notice provided for in the preceding
paragraph) all dividends in respect of the shares of Stock so
called for redemption shall cease to accrue, the Depositary Shares
being redeemed from such proceeds shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price
therefor) shall, to the extent of such Depositary Shares, cease and
terminate and, upon surrender in accordance with such notice of the
Receipts evidencing any such Depositary Shares called for
redemption (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary
Share equal to one-tenth of the redemption price per share paid in
respect of the shares of Stock so redeemed plus all money and other
property, if any, represented by such Depositary Shares, including
all amounts paid by the Company in respect of accrued and unpaid
dividends (whether or not declared) to the date of redemption.
If less than all the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary,
together with the redemption payment, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called
for redemption.
SECTION 2.04. Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time transfers
of Receipts upon any surrender thereof by the holder in person or
by duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer. Thereupon the Depositary
shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the
Receipt or Receipts surrendered and deliver such new Receipt or
Receipts to or upon the order of the person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of
a Receipt or Receipts at the Depositary's Office or at such other
offices as it may designate for the purpose of effecting a split-up
or combination of such Receipt or Receipts, and subject to the
terms and conditions of this Deposit Agreement, the Depositary
shall execute and deliver a new Receipt or Receipts in the
authorized denomination or denominations requested, evidencing the
aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
Any holder of a Receipt or Receipts representing any
number of whole shares of Stock (or such holder's duly authorized
attorney) may withdraw the Stock and all money and other property,
if any, represented thereby by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. If such holder's
Depositary Shares are being held by DTC or its nominee pursuant to
Section 2.01, such holder shall request, in accordance with Section
2.09, withdrawal from the book-entry system of the number of
Depositary Shares specified in the preceding sentence. Thereafter,
without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all
money and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal, but holders of such whole
shares of Stock will not thereafter be entitled to deposit such
Stock hereunder or to receive Depositary Shares in exchange
therefor. If a Receipt delivered by the holder to the Depositary
in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Stock to be so
withdrawn, the Depositary shall at the same time, in addition to
such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or to
the person or persons designated by such holder as hereinafter
provided, a new Receipt evidencing such excess number of Depositary
Shares. Delivery of the Stock and money and other property being
withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem
appropriate.
Stock delivered pursuant to the preceding paragraph may
be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any securities
exchange upon which the Stock may be listed or to conform with any
usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular shares of Stock are
subject.
If the Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the
record holder of the Receipt or Receipts being surrendered for
withdrawal of Stock, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the
Depositary may require that the Receipt or Receipts surrendered by
such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Stock and the money and other property,
if any, represented by Receipts surrendered for withdrawal shall be
made by the Depositary at the Depositary's Office, except that, at
the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof, such
delivery may be made at such other place as may be designated by
such holder.
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts. As a condition
precedent to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of any Receipt, the
Depositary, any of the Depositary's Agents or the Company may
require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such
payment, the reimbursement to it) of any charges or expenses
payable by the holder of a Receipt pursuant to Section 5.07 (or
evidence reasonably satisfactory to the Company that such charges
and expenses have been paid), may require the production of
evidence satisfactory to it as to the identity and genuineness of
any signature and may also require compliance with such
regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of
Receipts against Stock may be suspended, the registration of
transfer of Receipts may be refused and the registration of
transfer, surrender or exchange of outstanding Receipts may be
suspended (i) during any period when the register of stockholders
of the Company is closed or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or
commission or under any provision of this Deposit Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt
shall be mutilated, destroyed, lost or stolen, the Depositary in
its discretion may execute and deliver a Receipt of like form and
tenor in exchange and substitution for such mutilated Receipt, or
in lieu of and in substitution for such destroyed, lost or stolen
Receipt, upon (i) the filing by the holder thereof with the
Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity
thereof and of his or her ownership thereof and (ii) the furnishing
of the Depositary with reasonable indemnification satisfactory to
it.
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts. All Receipts surrendered to the Depositary
or any Depositary's Agent shall be cancelled by the Depositary.
Except as prohibited by applicable law or regulation, the
Depositary is authorized to destroy all Receipts so cancelled. Any
Receipt evidenced in book-entry form shall be deemed cancelled when
the Depositary has caused the amount of Depositary Shares evidenced
by the DTC Receipt to be reduced in proportion to the number of
Depositary Shares evidenced by the surrendered Receipt.
SECTION 2.09. Interchangeability of Book-Entry Receipts
and Receipts in Physical, Certificated Form. Subject to the terms
and conditions of this Deposit Agreement, upon receipt by the
Depositary of written instructions from a DTC participant on behalf
of any person having a beneficial interest in Depositary Shares
evidenced by the DTC Receipt for the purpose of directing the
Depositary to execute and deliver a Receipt in physical,
certificated form evidencing such Depositary Shares, the Depositary
shall follow the procedures set forth in the FAST Agreement for the
purpose of reducing the number of Depositary Shares evidenced by
the DTC Receipt and, following such reduction, shall execute and
deliver to or upon the order of the person or persons named in such
order a Receipt or Receipts registered in the name or names
requested by such person and evidencing in the aggregate the number
of Depositary Shares equal to the reduction in the number evidenced
by the DTC Receipt. The Depositary may require in such written
instructions any certification or representation as it shall deem
necessary to comply with applicable law.
Subject to the terms and conditions of this Deposit
Agreement, upon receipt by the Depositary of a Receipt or Receipts
in physical, certificated form, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the
Depositary, including any required certifications, and together
with written instructions directing the Depositary to adjust its
records to reflect an increase in the aggregate amount of
Depositary Shares evidenced by the DTC Receipt (including, without
limitation, information regarding the DTC participant account to be
credited with such increase), and upon payment of the fees and
expenses of the Depositary, the Depositary shall cancel such
Receipt or Receipts in physical, certificated form and shall follow
the procedures set forth in the FAST Agreement for the purpose of
reflecting such increase in the number of Depositary Shares
evidenced by the DTC Receipt.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to
time to file such proof of residence, or other matters or other
information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company
may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Receipt or the withdrawal of the
Stock represented by the Depositary Shares evidenced by any Receipt
or the distribution of any dividend or other distribution or the
sale of any rights or of the proceeds thereof until such proof or
other information is filed or such certificates are executed or
such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental
Charges. Holders of Receipts shall be obligated to make payments
to the Depositary of certain charges and expenses as provided in
Section 5.07, or provide reasonably satisfactory evidence to the
Depositary that such charges and expenses have been paid.
Registration of transfer of any Receipt or any withdrawal of Stock
and all money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused until
any such payment due is made, and any dividends, interest payments
or other distributions may be withheld or any part of or all the
Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for
the account of the holder thereof (after attempting by reasonable
means to notify such holder prior to such sale), and such
dividends, interest payments or other distributions or the proceeds
of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be
validly issued, fully paid and nonassessable. Such representation
and warranty shall survive the deposit of the Stock and the
issuance of the Receipts.
SECTION 3.04. Warranty as to Receipts. The Depositary
hereby represents and warrants that the Receipts, when issued, will
be legal, valid and binding obligations of the Depositary,
enforceable against the Depositary in accordance with their terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting
creditors' rights generally and by general equitable principles.
Such representation and warranty shall survive the deposit of the
Stock and the issuance of the Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on Stock, the Depositary shall, subject to Sections
3.01 and 3.02, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.04 such amounts of such
dividend or distribution as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced
by the Receipts held by such holders; provided, however, that in
case the Company or the Depositary shall be required to withhold
and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes,
the amount made available for distribution or distributed in
respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as
the case may be, only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributable shall be held by
the Depositary (without liability for interest thereon) and shall
be added to and be treated as part of the next sum received by the
Depositary for distribution to record holders of Receipts then
outstanding.
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges. Whenever the Depositary shall receive
any distribution other than cash, rights, preferences or privileges
upon Stock, the Depositary shall, subject to Sections 3.01 and
3.02, distribute to record holders of Receipts on the record date
fixed pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced
by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing
such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that
the Company or the Depositary withhold an amount on account of
taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the
approval of the Company, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or
property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds
of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may be,
by the Depositary to record holders of Receipts as provided by
Section 4.01 in the case of a distribution received in cash. The
Company shall not make any distribution of such securities unless
the Company shall have provided an opinion of counsel stating that
such securities have been registered under the Securities Act or do
not need to be so registered.
SECTION 4.03. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to be
offered to the persons in whose names Stock is recorded on the
books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in
such manner as the Depositary may determine, either by the issue to
such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of
the Company; provided, however, that (i) if at the time of issue or
offer of any such rights, preferences or privileges the Depositary
determines that it is not lawful or (after consultation with the
Company) not feasible to make such rights, preferences or
privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed
by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, then the Depositary, in its discretion
(with approval of the Company, in any case where the Depositary has
determined that it is not feasible to make such rights, preferences
or privileges available), may, if applicable laws or the terms of
such rights, preferences or privileges permit such transfer, sell
such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Sections 3.01
and 3.02, be distributed by the Depositary to the record holders of
Receipts entitled thereto as provided by Section 4.01 in the case
of a distribution received in cash. The Company shall not make any
distribution of any such rights, preferences or privileges unless
the Company shall have provided an opinion of counsel stating that
such rights, preferences or privileges have been registered under
the Securities Act or do not need to be so registered.
If registration under the Securities Act of the
securities to which any rights, preferences or privileges relate is
required in order for holders of Receipts to be offered or sold the
securities to which such rights, preferences or privileges relate,
the Company agrees with the Depositary that it will file promptly
a registration statement pursuant to such Act with respect to such
rights, preferences or privileges and securities and use its best
efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance
of the expiration of such rights, preferences or privileges to
enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the
holders of Receipts any right, preference or privilege to subscribe
for or to purchase any securities unless and until such
registration statement shall have become effective, or unless the
offering and sale of such securities to such holders are exempt
from registration under the provisions of the Securities Act.
If any other action under the laws of any jurisdiction or
any governmental or administrative authorization, consent or permit
is required in order for such rights, preferences or privileges to
be made available to holders of Receipts, the Company agrees with
the Depositary that the Company will use its best efforts to take
such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Fixing of Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be
offered, with respect to Stock, or whenever the Depositary shall
receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to
notice, or whenever the Depositary and the Company shall decide it
is appropriate, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed
by the Company with respect to the Stock) for the determination of
the holders of Receipts who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the
exercise of voting rights at any such meeting, or who shall be
entitled to notice of such meeting or for any other appropriate
reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice which shall contain (i) such
information as is contained in such notice of meeting and (ii) a
statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Stock represented by
their respective Depositary Shares (including an express indication
that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a
brief statement as to the manner in which such instructions may be
given. Upon the written request of the holders of Receipts on the
relevant record date, the Depositary shall vote or cause to be
voted, in accordance with the instructions set forth in such
requests, the maximum number of shares of Stock represented by the
Depositary Shares evidenced by all Receipts as to which any
particular voting instructions are received. The Company hereby
agrees to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Stock or
cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will
abstain from voting (but, at its discretion, not from appearing at
any meeting with respect to such Stock unless directed to the
contrary by the holders of all the Receipts) to the extent of the
Stock represented by the Depositary Shares evidenced by such
Receipt.
Holders of Receipts shall also be entitled to vote on
certain amendments to the Deposit Agreement pursuant to Section
6.01 hereof.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par
or stated value, split-up, combination or any other
reclassification of the Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the
Company or to which it is a party or sale of all or substantially
all of the Company's assets, the Depositary may in its discretion
with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may
deem equitable, (i) make such adjustments as are certified by the
Company in (x) the fraction of an interest represented by one
Depositary Share in one share of Stock and (y) the ratio of the
redemption price per Depositary Share to the redemption price of a
share of Stock, in each case as may be necessary fully to reflect
the effects of such change in par or stated value, split-up,
combination or other reclassification of Stock, or of such
recapitalization, reorganization, merger, amalgamation or
consolidation and (ii) treat any securities which shall be received
by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in
exchange for or upon conversion or in respect of such Stock. In
any such case the Depositary may in its discretion, with the
approval of the Company, execute and deliver additional Receipts,
or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new
deposited securities. Anything to the contrary herein
notwithstanding, holders of Receipts shall have the right from and
after the effective date of any such change in par or stated value,
split-up, combination or other reclassification of the Stock or any
such recapitalization, reorganization, merger, amalgamation or
consolidation to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the kind
and amount of shares of stock and other securities and property and
cash into which the Stock represented by such Receipts might have
been converted or for which such Stock might have been exchanged or
surrendered immediately prior to the effective date of such
transaction.
SECTION 4.07. Inspection of Reports. The Depositary
shall make available for inspection by holders of Receipts at the
Depositary's Office, and at such other places as it may from time
to time deem advisable, any reports and communications received
from the Company which are received by the Depositary as the holder
of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon
request from time to time by the Company, the Depositary shall
furnish to it a list, as of a recent date, of the names, addresses
and holdings of Depositary Shares of all persons in whose names
Receipts are registered on the books of the Depositary.
<PAGE>
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary; Registrar. Upon execution of
this Deposit Agreement, the Depositary shall maintain at the
Depositary's Office, facilities for the execution and delivery,
registration and registration of transfer, surrender and exchange
of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender
and exchange of Receipts, all in accordance with the provisions of
this Deposit Agreement.
The Depositary shall keep books at the Depositary's
Office for the registration and registration of transfer of
Receipts, and to reflect split-ups and combinations of Depositary
Shares, which books at all reasonable times shall be open for
inspection by the record holders of Receipts; provided, that any
such holder requesting to exercise such right shall certify to the
Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books only when the
register of stockholders of the Company is closed.
The Depositary may, with the approval of the Company,
appoint a Registrar for registration of the Receipts or the
Depositary Shares evidenced thereby. If the Receipts or the
Depositary Shares evidenced thereby or the Stock represented by
such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary will appoint a Registrar (acceptable to
the Company) for registration of such Receipts or Depositary Shares
in accordance with any requirements of such Exchange. The
Depositary shall initially act as Registrar. Such Registrar may be
removed and a substitute registrar appointed by the Depositary upon
the request or with the approval of the Company. If the Receipts,
such Depositary Shares or such Stock are listed on one or more
other stock exchanges, the Depositary will, at the request of the
Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by
the Depositary, the Depositary's Agents, the Registrar or the
Company. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall incur any liability to any holder
of any Receipt if by reason of any provision of any present or
future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of
the Depositary, the Depositary's Agent or the Registrar, by reason
of any provision, present or future, of the Company's Restated
Certificate of Incorporation, as amended (including the
Certificate) or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the
Depositary, the Depositary's Agent, the Registrar or the Company
shall be prevented or forbidden from, or subjected to any penalty
on account of, doing or performing any act or thing which the terms
of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Depositary's Agent, any Registrar or the
Company incur any liability to any holder of a Receipt (i) by
reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit
Agreement provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in the case of any
such exercise or failure to exercise discretion not caused as
aforesaid, if caused by the negligence or willful misconduct of the
party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the
Company assumes any obligation or shall be subject to any liability
under this Deposit Agreement to holders of Receipts other than for
its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding in
respect of the Stock, the Depositary Shares or the Receipts which
in its opinion may involve it in expense or liability unless
indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable for any action or any
failure to act by it in reliance upon the written advice of legal
counsel or accountants, or information from any person presenting
Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar
and the Company may each rely and shall each be protected in acting
upon any written notice, request, direction or other document
believed by it to be genuine and to have been signed or presented
by the proper party or parties.
The Depositary shall not be responsible for any failure
to carry out any instruction to vote any of the shares of Stock or
for the manner or effect of any such vote made, as long as any such
action or non-action is in good faith and does not result from the
gross negligence or willful misconduct of the Depositary. The
Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are
specifically set forth in this Deposit Agreement, and no implied
covenants or obligations shall be read into this Deposit Agreement
against the Depositary or any Registrar. The Depositary will
indemnify the Company against any liability which may arise out of
acts performed or omitted by the Depositary or the Depositary's
Agents due to its or their negligence or bad faith. The
Depositary, the Depositary's Agents, and any Registrar may own and
deal in any class of securities of the Company and its affiliates
and in Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its
affiliates.
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any
time resign as Depositary hereunder by notice of its election so to
do delivered to the Company, such resignation to take effect upon
the appointment of a successor Depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company
by notice of such removal delivered to the Depositary, such removal
to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the
delivery of the notice of resignation or removal, as the case may
be, appoint a successor Depositary, which shall be a bank or trust
company having its principal office in the United States of America
and having a combined capital and surplus of at least $50,000,000.
If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice,
the resigning or removed Depositary may petition any court of
competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor
Depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this
Deposit Agreement, and such predecessor, upon payment of all sums
due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer
and deliver all right, title and interest in the Stock and any
moneys or property held hereunder to such successor, and shall
deliver to such successor a list of the record holders of all
outstanding Receipts. Any successor Depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any
further act, and notice thereof shall not be required hereunder.
Such successor Depositary may authenticate the Receipts in the name
of the predecessor Depositary or in the name of the successor
Depositary.
SECTION 5.05. Corporate Notices and Reports. The
Company agrees that it will transmit, or will cause the Depositary
to transmit, to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08, all notices and
reports (including without limitation financial statements)
required by law, by the rules of any national securities exchange
upon which the Stock, the Depositary Shares or the Receipts are
listed or by the Company's Restated Certificate of Incorporation,
as amended (including the Certificate), to be furnished by the
Company to holders of Stock. Such transmission will be at the
Company's expense.
SECTION 5.06. Indemnification by the Company. The
Company shall indemnify the Depositary, any Depositary's Agent and
any Registrar against, and hold each of them harmless from, any
loss, liability or expense (including the costs and expenses of
defending itself) which may arise out of (a) acts performed or
omitted in connection with this Deposit Agreement and the Receipts
(i) by the Depositary, any Registrar or any of their respective
agents (including any Depositary's Agent), except for any liability
arising out of negligence or bad faith on the respective parts of
any such person or persons, or (ii) by the Company or any of its
agents, or (b) the offer, sale or registration of the Receipts or
the Stock pursuant to the provisions hereof. The obligations of
the Company set forth in this Section 5.06 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall
pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. The
Company shall pay all charges of the Depositary in connection with
the initial deposit of the Stock, the initial issuance of the
Depositary Shares and any redemption of the Stock at the option of
the Company and all withdrawals of shares of the Stock by owners of
Depositary Shares. All other transfer and other taxes and
governmental charges shall be at the expense of holders of
Depositary Shares. The Depositary may refuse to effect any
transfer of a Receipt or any withdrawal of Stock evidenced thereby
until all such taxes and charges with respect to such Receipt or
Stock are paid by the holder thereof. If a holder of Receipts
requests the Depositary to perform duties not required under this
Deposit Agreement, the Depositary shall notify the holder of the
approximate cost of the performance of such duties. If such duties
are subsequently performed at the request of such holder, such
holder will be liable for such charges and expenses.
All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in
each case, fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid
upon consultation and agreement between the Depositary and the
Company as to the amount and nature of such charges and expenses.
The Depositary shall present its statement for charges and expenses
to the Company once every three months or at such other intervals
as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and
any provisions of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or
desirable; provided, however, that no such amendment (other than
any change in the fees of any Depositary, Registrar or Transfer
Agent, which shall go into effect not sooner than three months
after notice thereof to the holders of the Receipts) which shall
materially and adversely alter the rights of the holders of
Receipts shall be effective unless such amendment shall have been
approved by the holders of at least a majority (or, in the case of
amendments relating to or affecting rights of the holders of
Receipts to receive dividends or distributions, or voting or
redemption rights, two-thirds) of the Depositary Shares then
outstanding. Every holder of an outstanding Receipt at the time
any such amendment becomes effective shall be deemed, by continuing
to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may
be terminated by the Company or the Depositary only (i) after all
outstanding Depositary Shares shall have been redeemed pursuant to
Section 2.03, (ii) after there shall have been made a final
distribution in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the holders of
Depositary Shares pursuant to Section 4.01 or 4.02, as applicable,
or (iii) upon the consent of holders of Receipts representing not
less than two- thirds of the Depositary Shares then outstanding.
Whenever the Deposit Agreement has been terminated pursuant to
(iii) above, the Depositary will mail notice of such termination to
the record holders of all Depositary Shares then outstanding at
least 30 days prior to the date fixed in that notice for
termination of the Deposit Agreement. If any Depositary Shares
remain outstanding after the date of termination, the Depositary
thereafter will discontinue the transfer of Depositary Shares, will
suspend the distribution of dividends to the owners thereof, and
will not give any further notices (other than notice of such
termination) or perform any further acts under this Deposit
Agreement, except that the Depositary will continue (i) to collect
dividends on the Stock and any other distributions with respect
thereto, (ii) to deliver or cause to be delivered shares of Stock,
together with such dividends and distributions, or principal and
interest, and the net proceeds of any sales of rights, preferences,
privileges or other property (other than real property) in exchange
for Depositary Shares surrendered. At any time after the
expiration of three years from the date of termination, the
Depositary may sell the Stock then held by it at public or private
sale, at such place or places and upon such terms as it deems
proper and may thereafter hold the net proceeds of any such sale,
without liability for interest, for the pro rata benefit of the
owners of the Depositary Shares which have not theretofore been
surrendered. Subject to applicable escheat laws, any monies set
aside by the Company in respect of any payment with respect to the
Stock represented by the Depositary Shares, or dividends thereon,
and unclaimed at the end of three years from the date upon which
such payment is due and payable shall revert to the general funds
of the Company, after which reversion the holders of such
Depositary Shares shall look only to the general funds of the
Company for the payment thereof.
Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit
Agreement except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.06 and 5.07.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may
be executed in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This
Deposit Agreement is for the exclusive benefit of the parties
hereto, including the holders of the Receipts, and their respective
successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one
or more of the provisions contained in this Deposit Agreement or in
the Receipts should be or become invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be
affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given
to the Company hereunder or under the Receipts shall be in writing
and shall be deemed to have been duly given if personally delivered
or sent by mail or by telecopy, addressed to the Company at 153
East 53rd Street, Sixth Floor, New York, New York 10043, telecopy
number (212) 527-2765, to the attention of the Office of Corporate
Finance, or at any other address of which the Company shall have
notified the Depositary in writing.
Any and all notices to be given to the Depositary
hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by
mail or by telecopy, addressed to the Depositary at the
Depositary's Office at 111 Wall Street, 5th Floor, New York, New
York 10043, telecopy number (212) 825-3483, or at any other address
of which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of
a Receipt hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or
sent by mail or by telegram or telex confirmed by letter, addressed
to such record holder at the address of such record holder as it
appears on the books of the Depositary, or if such holder shall
have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail shall be deemed to be
effected at the time when a duly addressed letter containing the
same is deposited, postage prepaid, in a post office letter box.
Delivery of a notice sent by telecopy shall be effected at the time
receipt of such communication is confirmed.
SECTION 7.05. Depositary's Agents. The Depositary may
from time to time appoint Depositary's Agents to act in any respect
for the Depositary for the purposes of this Deposit Agreement and
may at any time appoint additional Depositary's Agents and vary or
terminate the appointment of such Depositary's Agents. The
Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The
holders of Receipts from time to time shall be parties to this
Deposit Agreement and shall be bound by and entitled to the
benefits of all of the terms and conditions hereof and of the
Receipts by acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and
the Receipts and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by, and construed in
accordance with, the laws of the State of New York.
SECTION 7.08. Inspection of Deposit Agreement. Copies
of this Deposit Agreement shall be filed with the Depositary and
the Depositary's Agents and shall be open to inspection during
business hours at the Depositary's Office and the respective
offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.09. Headings. The headings of articles and
sections in this Deposit Agreement and in the form of Receipt set
forth in Exhibit A hereto have been inserted for convenience only
and are not to be regarded as a part of this Deposit Agreement or
the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the
Receipts.
<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary have
duly executed this Deposit Agreement as of the day and year first
above set forth, and all holders of Receipts shall become parties
hereto by and upon acceptance by them of delivery of Receipts
issued in accordance with the terms hereof.
CITICORP
by
Michael T. Nugent
Vice President
CITIBANK, N.A. as Depositary
by
John Reasor
Assistant Vice President
<PAGE>
TABLE OF CONTENTS
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions
Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . 1
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Deposit Agreement. . . . . . . . . . . . . . . . . . . . . . . 1
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary Shares. . . . . . . . . . . . . . . . . . . . . . . 1
Depositary's Agent . . . . . . . . . . . . . . . . . . . . . . 1
Depositary's Office. . . . . . . . . . . . . . . . . . . . . . 1
Receipt. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
record holder. . . . . . . . . . . . . . . . . . . . . . . . . 2
Registrar. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
Book-Entry Form, Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Book-Entry Form; Form and
Transfer of Receipts . . . . . . . . . . . . 2
SECTION 2.02. Deposit of Stock; Execution
and Delivery of Receipts in
Respect Thereof. . . . . . . . . . . . . . . 4
SECTION 2.03. Redemption of Stock. . . . . . . . . . . . . 4
SECTION 2.04. Registration of Transfer of
Receipts . . . . . . . . . . . . . . . . . . 5
SECTION 2.05. Split-ups and Combinations of
Receipts; Surrender of
Receipts and Withdrawal of
Stock. . . . . . . . . . . . . . . . . . . . 5
SECTION 2.06. Limitations on Execution and
Delivery, Transfer, Surrender
and Exchange of Receipts . . . . . . . . . . 6
SECTION 2.07. Lost Receipts, etc.. . . . . . . . . . . . . 7
SECTION 2.08. Cancellation and Destruction
of Surrendered Receipts. . . . . . . . . . . 7
SECTION 2.09. Interchangeability of Book-
Entry Receipts and Receipts
in Physical, Certificated
Form.. . . . . . . . . . . . . . . . . . . . 7
<PAGE>
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates
and Other Information. . . . . . . . . . . . 8
SECTION 3.02. Payment of Taxes or Other
Governmental Charges . . . . . . . . . . . . 8
SECTION 3.03. Warranty as to Stock . . . . . . . . . . . . 8
SECTION 3.04. Warranty as to Receipts. . . . . . . . . . . 8
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions . . . . . . . . . . . . . 9
SECTION 4.02. Distributions Other than
Cash, Rights, Preferences or
Privileges . . . . . . . . . . . . . . . . . 9
SECTION 4.03. Subscription Rights,
Preferences or Privileges. . . . . . . . . . 9
SECTION 4.04. Fixing of Record Date for
Holders of Receipts. . . . . . . . . . . . . 10
SECTION 4.05. Voting Rights. . . . . . . . . . . . . . . . 10
SECTION 4.06. Changes Affecting Deposited
Securities and
Reclassifications,
Recapitalizations, etc . . . . . . . . . . . 11
SECTION 4.07. Inspection of Reports. . . . . . . . . . . . 11
SECTION 4.08. Lists of Receipt Holders . . . . . . . . . . 11
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices,
Agencies and Transfer Books
by the Depositary; Registrar . . . . . . . . 12
SECTION 5.02. Prevention of or Delay in
Performance by the
Depositary, the Depositary's
Agents, the Registrar or the
Company. . . . . . . . . . . . . . . . . . . 12
SECTION 5.03. Obligations of the
Depositary, the Depositary's
Agents, the Registrar and the
Company. . . . . . . . . . . . . . . . . . . 13
SECTION 5.04. Resignation and Removal of
the Depositary; Appointment
of Successor Depositary. . . . . . . . . . . 13
SECTION 5.05. Corporate Notices and
Reports. . . . . . . . . . . . . . . . . . . 14
SECTION 5.06. Indemnification by the
Company. . . . . . . . . . . . . . . . . . . 14
SECTION 5.07. Charges and Expenses . . . . . . . . . . . . 14
<PAGE>
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. . . . . . . . . . . . . . . . . . 15
SECTION 6.02. Termination. . . . . . . . . . . . . . . . . 15
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . . 16
SECTION 7.02. Exclusive Benefit of Parties . . . . . . . . 16
SECTION 7.03. Invalidity of Provisions . . . . . . . . . . 16
SECTION 7.04. Notices. . . . . . . . . . . . . . . . . . . 16
SECTION 7.05. Depositary's Agents. . . . . . . . . . . . . 17
SECTION 7.06. Holders of Receipts Are
Parties. . . . . . . . . . . . . . . . . . . 17
SECTION 7.07. Governing Law. . . . . . . . . . . . . . . . 17
SECTION 7.08. Inspection of Deposit
Agreement. . . . . . . . . . . . . . . . . . 17
SECTION 7.09. Headings . . . . . . . . . . . . . . . . . . 17
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . 18
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . 18
EXHIBIT A: Form of Depositary Receipt
EXHIBIT B: FAST Balance Certificate Agreement between the
Depositary and The Depository Trust Company, dated as at February
19, 1976
<PAGE>
CITICORP
___________
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
_____________
8.30% NONCUMULATIVE PREFERRED STOCK, SERIES 20
(Without Par Value)
______________
CITICORP, a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), HEREBY
CERTIFIES that the following resolution was duly adopted by the
Board of Directors of the Corporation pursuant to authority
conferred upon the Board of Directors by the provisions of the
Restated Certificate of Incorporation of the Corporation, which
authorize the issuance of up to 50,000,000 shares of preferred
stock without par value, and by the Stock Committee of the Board
of Directors, pursuant to authority conferred upon the Stock
Committee of the Board of Directors in accordance with Section
141(c) of the General Corporation Law of the State of Delaware,
by Article 5, Section 1 of the By-Laws of the Corporation and by
resolutions of the Board of Directors at meetings of the Board of
Directors duly held on March 21, 1989, October 16, 1990,
September 17, 1991, January 19, 1993 and April 19, 1994, at a
meeting of the Stock Committee of the Board of Directors duly
held on September 26, 1994:
RESOLVED, that the issue of a series of preferred stock
without par value of this Corporation is hereby authorized
and the designation, powers, preferences and privileges,
relative, participating, optional and other special rights,
and qualifications, limitations and restrictions thereof, in
addition to those set forth in the Restated Certificate of
Incorporation, as amended, of the Corporation, are hereby
fixed as follows:
8.30% NONCUMULATIVE PREFERRED STOCK, SERIES 20
(1) . . . . . . . . . . . .Number of Shares and Designation.
500,000 shares of the preferred stock without par value
of the Corporation are hereby constituted as a series of
preferred stock without par value designated as "8.30%
Noncumulative Preferred Stock, Series 20" (hereinafter called the
"Preferred Stock, Series 20").
(2) . . . . . . . . . . . . . . . . . . . . . . . Dividends.
(a) The holders of shares of the Preferred Stock, Series 20,
shall be entitled to receive cash dividends, as, if and when
declared by the Board of Directors of the Corporation (the "Board
of Directors") or by the Stock Committee of said Board of
Directors (the "Stock Committee"), out of funds legally available
for that purpose, at the rate set forth below in this Section (2)
applied to the amount of $250 per share. Such dividends shall be
payable quarterly, as, if and when declared by the Board of
Directors or by the Stock Committee on February 15, May 15,
August 15 and November 15 of each year, commencing on November
15, 1994. Each such dividend shall be payable in arrears to the
holders of record of shares of the Preferred Stock, Series 20, as
they appear on the stock register of the Corporation on such
record dates, not more than 30 nor less than 15 days preceding
the payment dates thereof, as shall be fixed by the Board of
Directors or the Stock Committee. Dividends on Preferred Stock,
Series 20 shall not be cumulative and no rights shall accrue to
the holders of Preferred Stock, Series 20 by reason of the fact
that the Corporation may fail to declare or pay dividends on the
Preferred Stock, Series 20 in any amount in any year, whether or
not the earnings of the Corporation in any year were sufficient
to pay such dividends in whole or in part.
(b)Dividend periods ("Dividend Periods") shall commence on February 15, May
15, August 15 and November 15 of each year (other than the
initial Dividend Period which shall commence on the date of
original issue of the Preferred Stock, Series 20) and shall end
on and include the calendar day next preceding the first day of
the next Dividend Period. The dividend rate on the shares of
Preferred Stock, Series 20, for the period from the date of
original issue thereof to but not including November 15, 1994
will be $2.65 per share of Preferred Stock, Series 20 and such
dividends shall be payable on November 15, 1994. For each
Dividend Period thereafter the dividend rate on the shares of
Preferred Stock, Series 20 shall be 8.30% per annum. The amount
of dividends payable for each full Dividend Period for the
Preferred Stock, Series 20, shall be computed by dividing the
dividend rate of 8.30% per annum by four and applying the
resulting rate of 2.075% to the amount of $250 per share. The
amount of dividends payable for any period shorter or longer than
a full Dividend Period on the Preferred Stock, Series 20, shall
be computed on the basis of twelve 30-day months and a 360-day
year. Unless otherwise required by law, dividends payable with
respect to each share of Preferred Stock, Series 20, shall be
rounded to the nearest one cent, with $.005 being rounded upward.
Holders of shares called for redemption on a redemption date
between a dividend payment record date and the dividend payment
date shall not be entitled to receive the dividend payable on
such dividend payment date.
(c)So long as any shares of the Preferred Stock, Series 20, are
outstanding, no full dividends shall be declared or paid or set
apart for payment on the preferred stock of the Corporation of
any series ranking, as to dividends, on a parity with or junior
to the Preferred Stock, Series 20, for any period unless full
dividends for the Dividend Period immediately preceding the date
of payment of such full dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Preferred
Stock, Series 20. When dividends are not paid in full, as
aforesaid, upon the shares of the Preferred Stock, Series 20, and
any other preferred stock of the Corporation ranking on a parity
as to dividends with the Preferred Stock, Series 20, all
dividends declared upon shares of the Preferred Stock, Series 20,
and any other preferred stock of the Corporation ranking on a
parity as to dividends (whether dividends on such other preferred
stock are cumulative or noncumulative) with the Preferred Stock,
Series 20, shall be declared pro rata so that the amount of
dividends declared per share on the Preferred Stock, Series 20,
and such other preferred stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the
shares of the Preferred Stock, Series 20 (but without any
cumulation in respect of unpaid dividends for prior Dividend
Periods on the Preferred Stock, Series 20 and any other
noncumulative preferred stock) and such other preferred stock
bear to each other. Holders of shares of the Preferred Stock,
Series 20, shall not be entitled to any dividends, whether
payable in cash, property or stock, in excess of full dividends,
as herein provided, on the Preferred Stock, Series 20. No
interest, or sum of money in lieu of interest, shall be payable
in respect of any dividend payment on the Preferred Stock, Series
20, which may be in arrears.
(d)So long as any shares of the Preferred Stock, Series 20, are
outstanding, no dividend (other than dividends or distributions
paid in shares of, or options, warrants or rights to subscribe
for or purchase shares of stock ranking junior to the Preferred
Stock, Series 20, as to dividends and upon liquidation and other
than as provided in subsection (c) of this Section (2)) shall be
declared or paid or set aside for payment or other distribution
declared or made upon any stock of the Corporation ranking junior
to or on a parity with the Preferred Stock, Series 20, as to
dividends or upon liquidation, nor shall any stock of the
Corporation ranking junior to or on a parity with the Preferred
Stock, Series 20, as to dividends or upon liquidation be
redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the
Corporation (except by conversion into or exchange for stock of
the Corporation ranking junior to the Preferred Stock, Series 20,
as to dividends and upon liquidation) unless, in each case, the
full dividends for the immediately preceding Dividend Period on
all outstanding shares of the Preferred Stock, Series 20, shall
have been paid or set apart for payment and the Corporation is
not in default with respect to any redemption of shares of
Preferred Stock, Series 20, announced by the Corporation pursuant
to Section (4) below.
(3) . . . . . . . . . . . . . . . . .Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, before
any payment or distribution of the assets of the Corporation
(whether capital or surplus) shall be made to or set apart for
the holders of any series or class or classes of stock of the
Corporation ranking junior to the Preferred Stock, Series 20,
upon liquidation, dissolution or winding up, the holders of the
shares of the Preferred Stock, Series 20, shall be entitled to
receive $250 per share plus an amount equal to all dividends
(whether or not earned or declared) accrued and unpaid thereon
from the immediately preceding dividend payment date (but without
any cumulation for unpaid dividends for prior Dividend Periods on
the Preferred Stock, Series 20) to the date of final distribution
to such holders; but such holders shall not be entitled to any
further payment. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of the shares
of the Preferred Stock, Series 20, shall be insufficient to pay
in full the preferential amount aforesaid and liquidating
payments on any other preferred stock ranking, as to liquidation,
dissolution or winding up, on a parity with the Preferred Stock,
Series 20, then such assets, or the proceeds thereof, shall be
distributed among the holders of shares of Preferred Stock,
Series 20, and any such other preferred stock ratably in
accordance with the respective amounts which would be payable on
such shares of Preferred Stock, Series 20, and any such other
preferred stock if all amounts payable thereon were paid in full.
For the purposes of this Section (3), a consolidation or merger
of the Corporation with one or more corporations shall not be
deemed to be a liquidation, dissolution or winding up, voluntary
or involuntary.
(b)Subject to the rights of holders of shares of any series or class or
classes of stock ranking on a parity with or prior to the
Preferred Stock, Series 20, upon liquidation, dissolution or
winding up, upon any liquidation, dissolution or winding up of
the Corporation, after payment shall have been made in full to
the holders of Preferred Stock, Series 20, as provided in this
Section (3), but not prior thereto, any other series or class or
classes of stock ranking junior to the Preferred Stock, Series
20, upon liquidation shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any
and all assets remaining to be paid or distributed, and the
holders of the Preferred Stock, Series 20, shall not be entitled
to share therein.
(4) . . . . . . . . . . . . . . . . . . . . . . .Redemption.
(a) Except as provided in subsection (b) of this Section
(4), the Preferred Stock, Series 20, may not be redeemed prior to
November 15, 1999. At any time or from time to time on and after
November 15, 1999, the Corporation, at its option, may, with
prior Federal Reserve Board approval to the extent then required
by applicable law, redeem shares of the Preferred Stock, Series
20, in whole or in part, out of funds legally available therefor,
at a redemption price of $250 per share, together in each case
with accrued and unpaid dividends (whether or not declared) from
the immediately preceding dividend payment date (but without any
cumulation for unpaid dividends for prior Dividend Periods on the
Preferred Stock, Series 20) to the date fixed for redemption.
(b)Prior to November 15, 1999, the Corporation, at its option, may, with
prior Federal Reserve Board approval to the extent then required
by applicable law, redeem all, but not less than all, of the
outstanding shares of the Series 20, Preferred Stock, out of
funds legally available therefor if the holders of the shares of
the Preferred Stock, Series 20, shall be entitled to vote upon or
consent to a merger or consolidation of the Corporation as
provided in Section 11 below and all of the following conditions
have been satisfied: (i) the Corporation shall have requested the
vote or consent of the holders of the Preferred Stock, Series 20,
to the consummation of such merger or consolidation, stating in
such request that failing the requisite favorable vote or consent
the Corporation will have the option to redeem the Preferred
Stock, Series 20, (ii) the Corporation shall not have received
the favorable vote or consent requisite to the consummation of
the transaction within 60 days after making such written request
(which shall be deemed to have been made upon the mailing of the
notice of any meeting of holders of the Preferred Stock, Series
20, to vote upon such merger or consolidation or the mailing of
the form of written consent to be signed by such holders), and
(iii) such transaction shall be consummated on the date fixed for
such redemption, which date shall be no more than one year after
such request is made. Any such redemption shall be on notice as
set forth in subsection (c) of this Section 4 at a redemption
price of $250 per share of the Preferred Stock, Series 20,
together with accrued and unpaid dividends, if any, from the
immediately preceding dividend payment date (but without any
cumulation for unpaid dividends for prior Dividend Periods on the
Preferred Stock, Series 20) to the date fixed for redemption.
(c)In the event the Corporation shall redeem shares of Preferred Stock,
Series 20, notice of such redemption shall be given by first
class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the redemption date, to each holder of
record of the shares to be redeemed, at such holder's address as
the same appears on the stock register of the Corporation. Each
such notice shall state: (1) the redemption date; (2) the number
of shares of Preferred Stock, Series 20, to be redeemed and, if
less than all the shares held by such holder are to be redeemed,
the number of such shares to be redeemed from such holder; (3)
the redemption price; (4) the place or places where certificates
for such shares are to be surrendered for payment of the
redemption price; and (5) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. Notice
having been mailed as aforesaid, from and after the redemption
date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price, together
with accrued and unpaid dividends from the immediately preceding
dividend payment date to the date of redemption) dividends on the
shares of the Preferred Stock, Series 20, so called for
redemption shall cease to accrue, and said shares shall no longer
be deemed to be outstanding, and all rights of the holders
thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price) shall cease.
The Corporation's obligation to provide moneys in accordance with
the preceding sentence shall be deemed fulfilled if, on or before
the redemption date, the Corporation shall deposit with a bank or
trust company (which may be an affiliate of the Corporation)
having an office in the Borough of Manhattan, City of New York,
having a capital and surplus of at least $50,000,000, funds
necessary for such redemption, in trust, with irrevocable
instructions that such funds be applied to the redemption of the
shares of Preferred Stock, Series 20, so called for redemption.
Any interest accrued on such funds shall be paid to the
Corporation from time to time. Any funds so deposited and
unclaimed at the end of two years from such redemption date shall
be released or repaid to the Corporation, after which the holder
or holders of such shares of Preferred Stock, Series 20, so
called for redemption shall look only to the Corporation for
payment of the funds necessary for such redemption.
Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors shall so require
and the notice shall so state), such shares shall be redeemed by
the Corporation at the applicable redemption price aforesaid,
together with accrued and unpaid dividends from the immediately
preceding dividend payment date to the date of redemption. If
less than all the outstanding shares of Preferred Stock, Series
20, are to be redeemed, shares to be redeemed shall be selected
by the Corporation from outstanding shares of Preferred Stock,
Series 20, not previously called for redemption by lot or pro
rata (as nearly as may be) or by any other method determined by
the Corporation in its sole discretion to be equitable. If fewer
than all the shares represented by any certificate are redeemed a
new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
(d)In no event shall the Corporation redeem less than all the outstanding
shares of Preferred Stock, Series 20, pursuant to subsection (a)
of this Section (4) unless full dividends shall have been paid or
declared and set apart for payment upon all outstanding shares of
Preferred Stock, Series 20, for the Dividend Period immediately
preceding the date of redemption.
(5)Shares to be Retired. All shares of Preferred Stock, Series 20,
purchased or redeemed by the Corporation shall be retired and
cancelled and the Board of Directors shall cause to be taken all
action necessary to restore such shares to the status of
authorized but unissued shares of preferred stock, without
designation as to series, and such shares may thereafter be
issued, but not as shares of Preferred Stock, Series 20.
(6)Conversion or Exchange. The holders of shares of Preferred Stock,
Series 20, shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other class
or classes or of any other series of any class or classes of
capital stock (or any other security) of the Corporation.
(7)Ranking. Any class or series of stock of the Corporation shall be
deemed to rank:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .(i)
prior to the Preferred Stock, Series 20, as to dividends or as to
distribution of assets upon liquidation, dissolution or
winding up, if holders of such class shall be entitled to
the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be,
in preference or priority to the holders of Preferred Stock,
Series 20;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii)
on a parity with the Preferred Stock, Series 20, as to dividends or as
to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share
thereof be different from those of the Preferred Stock,
Series 20, if the holders of such class of stock and the
Preferred Stock, Series 20 (whether or not such class of
stock is cumulative or noncumulative as to payment of
dividends) shall be entitled to the receipt of dividends or
of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in proportion to their
respective amounts of accrued and unpaid dividends per share
or liquidation prices, without preference or priority one
over the other (except with respect to the cumulation of
dividends on such class of stock); and
. . . . . . . . . . . . . . . . . . . . . . . . . . . .(iii)
junior to the Preferred Stock, Series 20, as to dividends or as to the
distribution of assets upon liquidation, dissolution or
winding up, if such stock shall be common stock or if the
holders of Preferred Stock, Series 20, shall be entitled to
receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up, as the case may be,
in preference or priority to the holders of shares of such
stock.
Accordingly, the Preferred Stock, Series 20, shall be deemed
to rank on a parity with all other series of preferred stock of
the Corporation (whether or not such other series of preferred
stock is cumulative or noncumulative as to payment of dividends)
outstanding on the date on which this Certificate of Designations
is first filed with the Secretary of State of the State of
Delaware.
(8)Exclusion of Other Rights. Unless otherwise required by law, shares of
Preferred Stock, Series 20, shall not have any rights, including
preemptive rights, or preferences other than those specifically
set forth herein or as provided by applicable law.
(9)Notices. All notices or communications unless otherwise specified in
the By-Laws of the Corporation or the Restated Certificate of
Incorporation, as amended, shall be sufficiently given if in
writing and delivered in person or mailed by first-class mail,
postage prepaid to the holders of record of the Preferred Stock,
Series 20. Notice shall be deemed given on the earlier of the
date received or the date such notice is mailed.
(10)Record Holders. The Corporation and the transfer agent for the
Preferred Stock, Series 20, may deem and treat the record holder
of any share of such Preferred Stock as the true and lawful owner
thereof for all purposes, and neither the Corporation nor such
transfer agent shall be affected by any notice to the contrary.
(11)Voting Rights. Except as hereinafter set forth in this Section (11) or
as otherwise from time to time required by law, the Preferred
Stock, Series 20, shall have no voting rights. Whenever, at any
time or times, dividends payable on the Preferred Stock, Series
20, shall be in arrears for such number of consecutive dividend
periods, which shall in the aggregate contain not less than 540
days, the holders of the outstanding Preferred Stock, Series 20,
shall have the exclusive right, voting separately as a class with
holders of shares of any one or more other series of preferred
stock ranking on a parity with the Preferred Stock, Series 20,
either as to dividends (whether or not such other series of
preferred stock is cumulative or noncumulative as to payment of
dividends) or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have
been conferred and are exercisable, to elect two directors of the
Corporation at the Corporation's next annual meeting of
stockholders and at each subsequent annual meeting of
stockholders. At elections for such directors, each holder of
the Preferred Stock, Series 20, shall be entitled to one vote for
each share held (the holders of shares of any other series of
preferred stock ranking on such a parity being entitled to such
number of votes, if any, for each share of preferred stock held
as may be granted to them). Upon the vesting of such right of
such holders, the maximum authorized number of members of the
Board of Directors shall automatically be increased by two and
the two vacancies so created shall be filled by vote of the
holders of such outstanding shares of the Preferred Stock, Series
20 (either alone or together with the holders of shares of any
one or more series of preferred stock ranking on such a parity)
as hereinafter set forth. The right of such holders of such
shares of the Preferred Stock, Series 20, voting separately as a
class, to elect (together with the holders of shares of any one
or more series of preferred stock ranking on such a parity)
members of the Board of Directors as aforesaid shall continue
until such time as all dividends on the Preferred Stock, Series
20, shall have been paid in full for at least one year, at which
time such right shall terminate, except as herein or by law
expressly provided, subject to revesting in the event of each and
every subsequent default of the character above mentioned.
Upon any termination of the right of the holders of the
Preferred Stock, Series 20, as a class to vote for directors as
herein provided, the term of office of all directors then in
office elected by such holders voting as a class shall terminate
immediately. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, retirement, disqualification, removal from office or
otherwise, the remaining director elected by such holders voting
as a class may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
Whenever the term of office of the directors elected by such
holders voting as a class shall end and the special voting powers
vested in such holders as provided in this Section (11) shall
have expired, the number of directors shall automatically be
decreased to such number as may be provided for in the By-Laws
irrespective of any increase made pursuant to the provisions of
this Section (11).
So long as any shares of the Preferred Stock, Series 20,
remain outstanding, the consent of the holders of at least two-
thirds of the shares of the Preferred Stock, Series 20,
outstanding at the time (voting separately as a class together
with all other series of preferred stock ranking on a parity with
such series either as to dividends (whether or not such other
series of preferred stock is cumulative or noncumulative as to
payment of dividends) or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting
rights have been conferred and are exercisable) given in person
or by proxy, either in writing or at any special or annual
meeting called for the purpose, shall be necessary to permit,
effect or validate any one or more of the following:
(a) The authorization, creation or issuance, or any increase in the
authorized or issued amount, of any class or series of stock
ranking prior to the Preferred Stock, Series 20, or
(b) The amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the
Restated Certificate of Incorporation, as amended, or of the
resolution contained in this Certificate of Designations for
the Preferred Stock, Series 20, and the powers, preferences
and privileges, relative, participating, optional and other
special rights and qualifications, limitations and
restrictions thereof which would materially and adversely
affect any right, preference, privilege or voting power of
the Preferred Stock, Series 20, or of the holders thereof;
provided, however, that any increase in the amount of
authorized preferred stock or the creation and issuance of
other series of preferred stock, or any increase in the
amount of authorized shares of the Preferred Stock, Series
20, or of any other series of preferred stock, in each case
ranking on a parity with or junior to the Preferred Stock,
Series 20, with respect to the payment of dividends (whether
or not such other series of preferred stock is cumulative or
noncumulative as to payment of dividends) and the
distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting
powers.
The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to such vote would
otherwise be required shall be effected, all outstanding shares
of the Preferred Stock, Series 20, shall have been redeemed or
sufficient funds shall have been deposited in trust to effect
such redemption, scheduled to be consummated within three months
after such time.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Designations to be signed by Michael T. Nugent, a
Vice President, and attested by Gregory J. Koczanski, an
Assistant Secretary, this 27th day of September, 1994.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . CITICORP
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .By:__________________________
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . Michael T. Nugent
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . Vice President
Attest:
___________________________
Gregory J. Koczanski
Assistant Secretary
