SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM 8-A
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
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Depositary Shares each
representing a one-tenth
interest in a Share of
Adjustable Rate Cumulative
Preferred Stock, Series 19
(Without Par Value)
(the "Depositary Shares") New York Stock Exchange
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12 (g) OF THE ACT:
Adjustable Rate Cumulative Preferred Stock, Series 19
(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 July 22, 1994 as
supplemented by the Prospectus Supplement dated July 22,
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 19 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 July 22,
1994 as supplemented by the Prospectus Supplement dated July
22, 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.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this
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
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Michael T. Nugent
Vice President
Date: August 1, 1994
DEPOSIT AGREEMENT
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DEPOSIT AGREEMENT dated as of August 1, 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 Adjustable Rate Cumulative Preferred Stock, Series
19, 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
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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
Adjustable Rate Cumulative Preferred Stock, Series 19,
without par value.
ARTICLE II
Book-Entry Form, Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer, Surrender and
Redemption of Receipts
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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 400,000
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 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
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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.
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.
The Company will advise the Depositary promptly
after each determination of the applicable dividend rate for
each dividend period with respect to the Stock. The
Depositary shall make such rates available by telephone to
the beneficial owners of Receipts during reasonable hours.
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 (or a confirmation thereof in the case
of a telegram or telex message) 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.
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
CITICORP
___________
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
_____________
ADJUSTABLE RATE CUMULATIVE PREFERRED STOCK, SERIES 19
(Without Par Value)
______________
ADJUSTABLE RATE CUMULATIVE PREFERRED STOCK, SERIES 19
(1) Number of Shares and Designation. 400,000 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 "Adjustable Rate Cumulative
Preferred Stock, Series 19" (hereinafter called the
"Preferred Stock, Series 19").
(2) Dividends. (a) The holders of shares of the
Preferred Stock, Series 19, 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 cumulative from the date of original issue of such
shares and shall be payable quarterly, as, if and when
declared by the Board of Directors or by the Stock
Committee, on February 28, May 31, August 31 and November
30 of each year, commencing on August 31, 1994. Each such
dividend shall be payable in arrears to the holders of
record of shares of the Preferred Stock, Series 19, 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 account of arrears for any past Dividend Periods (as
defined in subsection (b) of this Section (2)) may be
declared and paid at any time, without reference to any
regular dividend payment date, to holders of record on such
date, not exceeding 45 days preceding the payment date
thereof, as may be fixed by the Board of Directors or the
Stock Committee.
(b)(i) Dividend periods ("Dividend Periods")
shall commence on February 28, May 31, August 31 and
November 30 of each year (other than the initial
Dividend Period, which shall commence on the date of
original issue of the Preferred Stock, Series 19) 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 19, for the period from the date of original
issue thereof to but not including August 31, 1994
will be $1.33 per share of Preferred Stock, Series 19,
payable on August 31, 1994. For each Dividend Period
thereafter the dividend rate on the shares of
Preferred Stock, Series 19 shall be the Applicable
Rate (as defined below) per annum. The amount of
dividends payable for each full Dividend Period for
the Preferred Stock, Series 19, shall be computed by
dividing the Applicable Rate per annum by four and
applying the resulting rate 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 19, other than the initial
Dividend Period, 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 19,
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.
(ii) Except as provided below in this
paragraph (ii), the "Applicable Rate" for any Dividend
Period (other than the initial Dividend Period) will
be equal to 84% of the Effective Rate (as defined
below), but not less than 4.50% per annum, or more
than 10.50% per annum. The "Effective Rate" for any
Dividend Period will be equal to the highest of the
Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Thirty Year Constant Maturity Rate (each
as defined below) for such Dividend Period. The
Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Thirty Year Constant Maturity Rate will
each be rounded to the nearest five hundredths of a
percent, with .025% being rounded upward. In the
event that the Corporation determines in good faith
that for any reason:
(A) any one of the Treasury Bill Rate, the
Ten Year Constant Maturity Rate or the Thirty
Year Constant Maturity Rate cannot be determined
for any Dividend Period, then the Effective Rate
for such Dividend Period will be equal to the
higher of whichever two of such rates can be so
determined;
(B) only one of the Treasury Bill Rate, the
Ten Year Constant Maturity Rate or the Thirty
Year Constant Maturity Rate can be determined for
any Dividend Period, then the Effective Rate for
such Dividend Period will be equal to whichever
such rate can be so determined; or
(C) none of the Treasury Bill Rate, the Ten
Year Constant Maturity Rate or the Thirty Year
Constant Maturity Rate can be determined for any
Dividend Period, then the Effective Rate for the
preceding Dividend Period will be continued for
such Dividend Period.
(iii) Except as described below in this
paragraph (iii), the "Treasury Bill Rate" for each
Dividend Period will be the arithmetic average of the
two most recent weekly per annum market discount rates
(or the one weekly per annum market discount rate, if
only one such rate is published during the relevant
Calendar Period (as defined below)) for three-month
U.S. Treasury bills, as published weekly by the
Federal Reserve Board (as defined below) during the
Calendar Period immediately preceding the last ten
calendar days preceding the Dividend Period for which
the dividend rate on the Preferred Stock, Series 19 is
being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum
market discount rate during any such Calendar Period,
then the Treasury Bill Rate for such Dividend Period
will be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one
weekly per annum market discount rate, if only one
such rate is published during the relevant Calendar
Period) for three-month U.S. Treasury bills, as
published weekly during such Calendar Period by any
Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In
the event that a per annum market discount rate for
three-month U.S. Treasury bills is not published by
the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency
during such Calendar Period, then the Treasury Bill
Rate for such Dividend Period will be the arithmetic
average of the two most recent weekly per annum market
discount rates (or the one weekly per annum market
discount rate, if only one such rate is published
during the relevant Calendar Period) for all of the
U.S. Treasury bills then having remaining maturities
of not less than 80 nor more than 100 days, as
published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board does
not publish such rates, by any Federal Reserve Bank or
by any U.S. Government department or agency selected
by the Corporation. In the event that the Corporation
determines in good faith that for any reason no such
U.S. Treasury bill rates are published as provided
above during such Calendar Period, then the Treasury
Bill Rate for such Dividend Period will be the
arithmetic average of the per annum market discount
rates based upon the closing bids during such Calendar
Period for each of the issues of marketable non-
interest-bearing U.S. Treasury securities with a
remaining maturity of not less than 80 nor more than
100 days from the date of each such quotation, as
chosen and quoted daily for each business day in New
York City (or less frequently if daily quotations are
not generally available) to the Corporation by at
least three recognized dealers in U.S. Government
securities selected by the Corporation. In the event
that the Corporation determines in good faith that for
any reason the Corporation cannot determine the
Treasury Bill Rate for any Dividend Period as provided
above in this paragraph, the Treasury Bill Rate for
such Dividend Period will be the arithmetic average of
the per annum market discount rates based upon the
closing bids during such Calendar Period for each of
the issues of marketable interest-bearing U.S.
Treasury securities with a remaining maturity of not
less than 80 nor more than 100 days, as chosen and
quoted daily for each business day in New York City
(or less frequently if daily quotations are not
generally available) to the Corporation by at least
three recognized dealers in U.S. Government securities
selected by the Corporation.
(iv) Except as described below in this
paragraph (iv), the "Ten Year Constant Maturity Rate"
for each Dividend Period will be the arithmetic
average of the two most recent weekly per annum Ten
Year Average Yields (as defined below) (or the one
weekly per annum Ten Year Average Yield, if only one
such yield is published during the relevant Calendar
Period), as published weekly by the Federal Reserve
Board during the Calendar Period immediately preceding
the last ten calendar days preceding the Dividend
Period for which the dividend rate on the Preferred
Stock, Series 19 is being determined. In the event
that the Federal Reserve Board does not publish such
a weekly per annum Ten Year Average Yield during such
Calendar Period, then the Ten Year Constant Maturity
Rate for such Dividend Period will be the arithmetic
average of the two most recent weekly per annum Ten
Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such yield is
published during the relevant Calendar Period), as
published weekly during such Calendar Period by any
Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In
the event that a per annum Ten Year Average Yield is
not published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then
the Ten Year Constant Maturity Rate for such Dividend
Period will be the arithmetic average of the two most
recent weekly per annum average yields to maturity (or
the one weekly per annum average yield to maturity, if
only one such yield is published during the relevant
Calendar Period) for all of the actively traded
marketable U.S. Treasury fixed interest rate
securities (other than Special Securities (as defined
below)) then having remaining maturities of not less
than eight nor more than twelve years, as published
during such Calendar Period by the Federal Reserve
Board or, if the Federal Reserve Board does not
publish such yields, by any Federal Reserve Bank or by
any U.S. Government department or agency selected by
the Corporation. In the event that the Corporation
determines in good faith that for any reason the
Corporation cannot determine the Ten Year Constant
Maturity Rate for any Dividend Period as provided
above in this paragraph, then the Ten Year Constant
Maturity Rate for such Dividend Period will be the
arithmetic average of the per annum average yields to
maturity based upon the closing bids during such
Calendar Period for each of the issues of actively
traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a
final maturity date not less than eight nor more than
twelve years from the date of each such quotation, as
chosen and quoted daily for each business day in New
York City (or less frequently if daily quotations are
not generally available) to the Corporation by at
least three recognized dealers in U.S. Government
securities selected by the Corporation.
(v) Except as described below in this
paragraph (v), the "Thirty Year Constant Maturity
Rate" for each Dividend Period will be the arithmetic
average of the two most recent weekly per annum Thirty
Year Average Yields (as defined below) (or the one
weekly per annum Thirty Year Average Yield, if only
one such yield is published during the relevant
Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately
preceding the last ten calendar days preceding the
Dividend Period for which the dividend rate on the
Preferred Stock, Series 19 is being determined. In
the event that the Federal Reserve Board does not
publish such a weekly per annum Thirty Year Average
Yield during such Calendar Period, then the Thirty
Year Constant Maturity Rate for such Dividend Period
will be the arithmetic average of the two most recent
weekly per annum Thirty Year Average Yields (or the
one weekly per annum Thirty Year Average Yield, if
only one such yield is published during the relevant
Calendar Period), as published weekly during such
Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the
Corporation. In the event that a per annum Thirty
Year Average Yield is not published by the Federal
Reserve Board or by any Federal Reserve Bank or by any
U.S. Government department or agency during such
Calendar Period, then the Thirty Year Constant
Maturity Rate for such Dividend Period will be the
arithmetic average of the two most recent weekly per
annum average yields to maturity (or the one weekly
per annum average yield to maturity, if only one such
yield is published during the relevant Calendar
Period) for all of the actively traded marketable U.S.
Treasury fixed interest rate securities (other than
Special Securities) then having remaining maturities
of not less than twenty-eight nor more than thirty
years, as published during such Calendar Period by the
Federal Reserve Board or, if the Federal Reserve Board
does not publish such yields, by any Federal Reserve
Bank or by any U.S. Government department or agency
selected by the Corporation. In the event that the
Corporation determines in good faith that for any
reason the Corporation cannot determine the Thirty
Year Constant Maturity Rate for any Dividend Period as
provided above in this paragraph, then the Thirty Year
Constant Maturity Rate for such Dividend Period will
be the arithmetic average of the per annum average
yields to maturity based upon the closing bids during
such Calendar Period for each of the issues of
actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special
Securities) with a final maturity date not less than
twenty-eight nor more than thirty years from the date
of each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently
if daily quotations are not generally available) to
the Corporation by at least three recognized dealers
in U.S. Government securities selected by the
Corporation.
(vi) The Applicable Rate with respect to
each Dividend Period (other than the initial Dividend
Period) will be calculated as promptly as practicable
by the Corporation according to the appropriate method
described above. The Corporation will cause notice of
each Applicable Rate to be enclosed with the dividend
payment checks next mailed to the holders of Preferred
Stock, Series 19.
(vii) As used above, the term "Calendar
Period" means a period of fourteen calendar days; the
term "Federal Reserve Board" means the Board of
Governors of the Federal Reserve System; the term
"Special Securities" means securities which can, at
the option of the holder, be surrendered at face value
in payment of any Federal estate tax or which provide
tax benefits to the holder and are priced to reflect
such tax benefits or which were originally issued at
a deep or substantial discount; the term "Ten Year
Average Yield" means the average yield to maturity for
actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant
maturities of ten years); and the term "Thirty Year
Average Yield" means the average yield to maturity for
actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant
maturities of thirty years).
(c) So long as any shares of the Preferred Stock,
Series 19, 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 19, for any period unless full cumulative
dividends for all Dividend Periods terminating on or prior
to 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 19. When dividends
are not paid in full, as aforesaid, upon the shares of the
Preferred Stock, Series 19, and any other preferred stock
of the Corporation ranking on a parity as to dividends with
the Preferred Stock, Series 19, all dividends declared upon
shares of the Preferred Stock, Series 19, 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 19, shall be declared pro rata so that the
amount of dividends declared per share on the Preferred
Stock, Series 19, 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 19 and such other preferred stock bear to each other
(but without any cumulation in respect of unpaid dividends
on any noncumulative preferred stock). Holders of shares
of the Preferred Stock, Series 19, shall not be entitled to
any dividends, whether payable in cash, property or stock,
in excess of full cumulative dividends, as herein provided,
on the Preferred Stock, Series 19. No interest, or sum of
money in lieu of interest, shall be payable in respect of
any dividend payment on the Preferred Stock, Series 19,
which may be in arrears.
(d) So long as any shares of the Preferred Stock,
Series 19, 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 19, 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 19, 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 19, 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 19, as to
dividends and upon liquidation) unless, in each case, full
cumulative dividends for all Dividend Periods terminating
on or prior to the date of payment of such full dividend on
all outstanding shares of the Preferred Stock, Series 19,
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 19, 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
19, upon liquidation, dissolution or winding up, the holders
of the shares of the Preferred Stock, Series 19, 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 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 19,
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 19, then such
assets, or the proceeds thereof, shall be distributed among
the holders of shares of Preferred Stock, Series 19, and any
such other preferred stock ratably in accordance with the
respective amounts which would be payable on such shares of
Preferred Stock, Series 19, 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 of stock ranking on a parity with or prior
to the Preferred Stock, Series 19, 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
19, 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 19, 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 19, shall not be entitled to share
therein.
(4) Redemption. (a) Except as provided in
subsection (b) of this Section (4), the Preferred Stock,
Series 19, may not be redeemed prior to August 31, 1999.
At any time or from time to time on and after August 31,
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 19, 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) to the date fixed for redemption.
(b) Prior to August 31, 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
Preferred Stock, Series 19 out of funds legally available
therefor if the holders of the shares of the Preferred
Stock, Series 19, 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 19, 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 19,
(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 19, 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 19,
together with accrued and unpaid dividends (whether or not
declared) to the date fixed for redemption.
(c) In the event the Corporation shall redeem shares
of Preferred Stock, Series 19, 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 19, 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 to the date of redemption) dividends on the shares
of the Preferred Stock, Series 19, 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,
together with accrued and unpaid dividends (whether or not
declared) to the date fixed for redemption) 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 19, 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 19, 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
to the date of redemption. If less than all the outstanding
shares of Preferred Stock, Series 19, are to be redeemed,
shares to be redeemed shall be selected by the Corporation
from outstanding shares of Preferred Stock, Series 19, 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 19,
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 19, for all Dividend Periods ending on or prior to
the date of redemption.
(5) Shares to be Retired. All shares of Preferred
Stock, Series 19, 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 19.
(6) Conversion or Exchange. The holders of shares of
Preferred Stock, Series 19, 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 19, 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 19;
(ii) on a parity with the Preferred Stock, Series
19, 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
19, if the holders of such class of stock and the
Preferred Stock, Series 19 (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
19, 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 19, 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 19, 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 19, 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 19. 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 19, 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 19, shall have
no voting rights. Whenever, at any time or times, dividends
payable on the Preferred Stock, Series 19, 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 19,
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 19, 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 19, 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 19 (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 19, 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 accumulated
on such shares of Preferred Stock, Series 19, shall have
been paid in full, 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 19, 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
19, remain outstanding, the consent of the holders of at
least two-thirds of the shares of the Preferred Stock,
Series 19, 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 19, 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 19, 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 19, 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 19, or of any other series of preferred stock, in
each case ranking on a parity with or junior to the
Preferred Stock, Series 19, 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 19, 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.
