AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 13, 1997
REGISTRATION NO. 333-21143
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CITICORP DELAWARE 6711 13-2614988
CITICORP CAPITAL X DELAWARE 6749 52-6839459
CITICORP CAPITAL XI DELAWARE 6749 52-6839460
CITICORP CAPITAL XII DELAWARE 6749 52-6839461
CITICORP CAPITAL XIII DELAWARE 6749 52-6839462
CITICORP CAPITAL XIV DELAWARE 6769 52-6839463
(Exact name of registrant (State or other (Primary (I.R.S. Employer
registrant as jurisdiction of Standard Identification
specified in incorporation or Industrial Number.)
its charter) organization) Classification Number)
399 Park Avenue
New York, New York 10043
(212) 559-1000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Stephen E. Dietz
Associate General Counsel
Citibank, N.A.
425 Park Avenue
New York, New York 10043
(212) 559-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
John T. Bostelman
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of this Registration Statement and upon
the satisfaction or waiver of all other conditions to the exchange offers
described in the enclosed prospectus.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: |_|
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PROSPECTUS
CITICORP
CITICORP CAPITAL X
CITICORP CAPITAL XI
CITICORP CAPITAL XII
CITICORP CAPITAL XIII
CITICORP CAPITAL XIV
OFFERS TO EXCHANGE
Citicorp Capital X Up to 12,900,000 Depositary Shares
___% Trust Originated Preferred each representing a 1/10 interest
Securities ("TOPrS") in a share of 8.00% Noncumulative
(Liquidation Amount $25 for Preferred Stock, Series 16, of Citicorp
per Security, fully CUSIP 173034 41 4
and unconditionally guaranteed
by Citicorp to the extent
set forth herein)
Citicorp Capital XI Up to 13,900,000 Depositary Shares
___% TOPrS each representing a 1/10 interest
(Liquidation Amount $25 in a share of 7.50% Noncumulative
per Security, fully for Preferred Stock, Series 17, of Citicorp
and unconditionally guaranteed CUSIP 173034 38 0
by Citicorp to the extent
set forth herein)
Citicorp Capital XII Up to 4,900,000 Depositary Shares
___% TOPrS each representing a 1/10 interest
(Liquidation Amount $25 in a share of 8.30% Noncumulative
per Security, fully for Preferred Stock, Series 20, of Citicorp
and unconditionally guaranteed CUSIP 173034 33 1
by Citicorp to the extent
set forth herein)
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Citicorp Capital XIII Up to 5,900,000 Depositary Shares
___% TOPrS each representing a 1/10th interest
(Liquidation Amount $25 in a share of 8.50% Noncumulative
per Security, fully for Preferred Stock, Series 21, of Citicorp
and unconditionally guaranteed CUSIP 173034 31 5
by Citicorp to the extent
set forth herein)
Citicorp Capital XIV Up to 4,900,000 Depositary Shares
___% TOPrS each representing a 1/10 interest
(Liquidation Amount $25 in a share of 7.75% Cumulative
per Security, fully for Preferred Stock, Series 22, of Citicorp
and unconditionally guaranteed CUSIP 173034 28 1
by Citicorp to the extent
set forth herein)
EACH OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW
YORK CITY TIME, ON APRIL ,1997, UNLESS SUCH OFFER IS EXTENDED.
Citicorp, a Delaware corporation, and Citicorp Capital X, Citicorp Capital
XI, Citicorp Capital XII, Citicorp Capital XIII and Citicorp Capital XIV, each a
Delaware statutory business trust (each a "Trust"), hereby respectively offer,
upon the terms and subject to the conditions set forth in this Prospectus and
the accompanying Letters of Transmittal, to exchange the Trust Originated
Preferred Securities of such Trust, representing preferred undivided beneficial
interests in the assets of the Trust (the "TOPrS" or the "Capital Securities" of
such Trust), for up to the Maximum Number (as defined below) of the depositary
shares ("Depositary Shares"), each representing a 1/10 interest in a share of
the series (a "Series") of Preferred Stock, $250 liquidation preference per
share, of Citicorp (the "Preferred Stock"), specified opposite the name of such
Trust above (the "Related Depositary Shares") not owned by Citicorp. This
Prospectus and the Letters of Transmittal for the Depositary Shares together
constitute the "Offers" and, with respect to each Trust's exchange of its
Capital Securities for the Related Depositary Shares, an "Offer". Exchanges will
be made on the basis of one Capital Security of a particular Trust for each
Related Depositary Share, up to the maximum aggregate number of such Related
Depositary Shares set forth above (with respect to any series of Related
Depositary Shares, the "Maximum Number"), in each case validly tendered and
accepted for exchange in the applicable Offer. If more than the Maximum Number
of Related Depositary Shares for any Series of Preferred Stock is validly
tendered and not withdrawn on or prior to the Expiration Date (as defined
herein) for the applicable Offer, the applicable Trust will accept such Related
Depositary Shares for exchange on a pro rata basis as described herein. As of
the date of this Prospectus, there are outstanding and not owned by Citicorp:
13,000,000 Depositary Shares for 8.00% Noncumulative Preferred
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Stock, Series 16 ("Series 16 Preferred Stock"), 14,000,000 Depositary Shares for
7.50% Noncumulative Preferred Stock, Series 17 ("Series 17 Preferred Stock"),
5,000,000 Depositary Shares for 8.30% Noncumulative Preferred Stock, Series 20
("Series 20 Preferred Stock"), 6,000,000 Depositary Shares for 8.50%
Noncumulative Preferred Stock, Series 21 ("Series 21 Preferred Stock") and
5,000,000 Depositary Shares for 7.75% Cumulative Preferred Stock, Series 22
("Series 22 Preferred Stock").
Citicorp will own all of the common securities (the "Common Securities"
and, together with the Capital Securities, the "Trust Securities") representing
the common undivided beneficial interests in the assets of each Trust.
Concurrently with the issuance of Capital Securities in exchange for Depositary
Shares validly tendered and accepted in each Offer, each Trust will deliver to
Citicorp the Depositary Shares validly tendered and accepted in its Offer and
the proceeds of the Common Securities issued to Citicorp in consideration for
the deposit by Citicorp in the Trust, as trust assets, of the series of Citicorp
Junior Subordinated Deferrable Interest Debentures due 2027 specified herein
(the "Subordinated Debt Securities"), having (for each Trust) an aggregate
principal amount equal to the aggregate stated liquidation amount of the Trust
Securities to be issued by such Trust. The Subordinated Debt Securities of each
series will mature on May 15, 2027, unless such maturity is shortened or
extended as described herein. The Subordinated Debt Securities will be unsecured
obligations of Citicorp and will be subordinate and junior in right of payment
to all Senior Indebtedness of Citicorp, as described herein.
The Subordinated Debt Securities of each series held by a Trust are
redeemable by Citicorp, in whole or in part, from time to time, on and after May
15, 2002, and earlier in certain circumstances upon the occurrence of a Tax
Event or a Regulatory Capital Event (each as defined herein), at the Redemption
Price set forth herein. Any such redemption by Citicorp will result in the
redemption by such Trust of its Trust Securities, as described herein. The
Preferred Stock of each Series, and thus the related Depositary Shares, are
redeemable by Citicorp, in whole or in part, from time to time, at a redemption
price of $250 per share of Preferred Stock, on and after (i) June 1, 1998 (in
the case of Series 16 Preferred Stock), (ii) September 1, 1998 (in the case of
Series 17 Preferred Stock), (iii) November 15, 1999 (in the case of Series 20
Preferred Stock), (iv) February 15, 2000 (in the case of Series 21 Preferred
Stock) and (v) May 15, 2000 (in the case of Series 22 Preferred Stock).
(Continued on next page)
-----------------------
SEE "RISK FACTORS AND SPECIAL CONSIDERATIONS RELATING TO THE OFFERS"
STARTING ON PAGE 29 FOR A DISCUSSION OF CERTAIN FACTORS RELATING TO THE CAPITAL
SECURITIES THAT SHOULD BE CONSIDERED BY INVESTORS, INCLUDING THE PERIOD AND
CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS OF DISTRIBUTIONS ON THE CAPITAL
SECURITIES MAY BE DEFERRED AND THE RELATED FEDERAL INCOME TAX CONSEQUENCES.
NEITHER THIS TRANSACTION NOR THESE SECURITIES HAVE BEEN
APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR BY ANY STATE SECURITIES COMMISSIONS NOR HAS THE
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SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THE SECURITIES OFFERED HEREBY ARE NOT DEPOSITS OR SAVINGS ACCOUNTS AND ARE
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
-------------------
Merrill Lynch & Co., Smith Barney Inc. and Prudential Securities Incorporated
have been retained as Dealer Managers to solicit exchanges of Depositary Shares
for Capital Securities. See "The Offers -- Dealer Managers; Soliciting Dealers."
Citibank, N.A. has been retained as Exchange Agent in connection with the
Offers. Georgeson & Company Inc. has been retained to act as Information Agent
to assist in connection with the Offers.
-----------------------
The Dealer Managers for the Offers are:
MERRILL LYNCH & CO. SMITH BARNEY INC. PRUDENTIAL SECURITIES
INCORPORATED
The date of this Prospectus is March __, 1997.
SM, "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
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(Continued from previous page)
NONE OF CITICORP, THE BOARD OF DIRECTORS OF CITICORP, THE TRUSTEES OF ANY
TRUST OR ANY TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF DEPOSITARY SHARES AS
TO WHETHER TO EXCHANGE OR REFRAIN FROM EXCHANGING THEIR DEPOSITARY SHARES IN ANY
OFFER. HOLDERS OF DEPOSITARY SHARES ARE URGED TO CONSULT THEIR FINANCIAL AND TAX
ADVISORS IN MAKING THEIR DECISIONS ON WHAT ACTION TO TAKE IN LIGHT OF THEIR OWN
PARTICULAR CIRCUMSTANCES.
IN ORDER TO PARTICIPATE IN AN OFFER, HOLDERS OF DEPOSITARY SHARES MUST
SUBMIT A LETTER OF TRANSMITTAL AND COMPLY WITH THE OTHER PROCEDURES FOR
TENDERING IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN AND IN THE LETTER
OF TRANSMITTAL PRIOR TO THE APPLICABLE EXPIRATION DATE (AS DEFINED HEREIN). SEE
"THE OFFERS -- PROCEDURES FOR TENDERING."
Each Trust will issue one (and only one) class of Capital Securities in
exchange for up to the Maximum Number of the Related Depositary Shares. The name
of each Trust, its Capital Securities, the particular Depositary Shares that are
the subject of the Offer by Citicorp and such Trust and the Maximum Number of
Related Depositary Shares that may be accepted in such Offer are set forth on
the cover page of this Prospectus.
For a description of the other terms of each Offer, see "The Offers --
Terms of the Offers," "-- Expiration Date; Extensions; Amendments; Termination,"
and "--Withdrawal of Tenders." Application will be made to list the Capital
Securities of each Trust on the New York Stock Exchange (the "NYSE"). In order
to satisfy NYSE listing requirements, acceptance of Related Depositary Shares
validly tendered in each Offer is subject to the condition that as of the
applicable Expiration Date there will be at least 400 record or beneficial
holders of at least 1,000,000 Capital Securities to be issued by the related
Trust in exchange for such Related Depositary Shares (the "Minimum Distribution
Condition"), which condition may not be waived and which condition applies to
each Trust, its Offer and its issue of Capital Securities. See "The Offers --
Expiration Date; Extensions; Amendments; Termination" and "--Conditions to the
Offers."
Each Trust expressly reserves the right, in its sole discretion, subject
to applicable law, to (i) terminate its Offer, not accept for exchange the
Related Depositary Shares and promptly return the tendered Depositary Shares
upon the failure of any condition specified above or under "The Offers --
Conditions to the Offers," (ii) waive any condition to its Offer (other than the
Minimum Distribution Condition) and accept up to the Maximum Number of Related
Depositary Shares previously tendered pursuant to such Offer, (iii) extend the
Expiration Date (as defined herein) of its Offer and retain all Related
Depositary Shares tendered pursuant to its Offer until the Expiration Date,
subject, however, to all withdrawal rights of holders (see "The Offers --
Withdrawal of Tenders"), (iv) amend the terms of its Offer, (v) modify the form
of the consideration to be paid pursuant to its Offer or (vi) terminate its
Offer, not accept for exchange the Related Depositary Shares at any time on or
prior to the Expiration Date and promptly return the tendered Depository Shares
for any reason. Any amendment applicable to the Offer of a particular Trust will
apply to all Related Depositary Shares tendered pursuant to such Offer. The
minimum period during which such Offer must remain open following material
changes in the terms of such Offer or the information concerning such Offer
depends upon
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the facts and circumstances, including the materiality of such terms or
information. See "The Offers-- Expiration Date; Extensions; Amendments;
Termination."
Citicorp will own all of the Common Securities of each Trust. Each Trust
exists for the exclusive purposes of (i) issuing (a) its Capital Securities in
exchange for the Related Depositary Shares validly tendered and accepted in its
Offer and delivering such Depositary Shares to Citicorp in consideration for the
deposit by Citicorp in the Trust, as trust assets, Subordinated Debt Securities
having an aggregate stated principal amount equal to the aggregate stated
liquidation amount of such Capital Securities and (b) its Common Securities to
Citicorp in exchange for cash and investing the proceeds thereof in an
equivalent amount of such Subordinated Debt Securities and (ii) engaging in only
those activities as are necessary or incidental thereto. The Common Securities
rank pari passu, and payments will be made thereon on a pro rata basis, with the
Capital Securities, except that upon the occurrence and during the continuance
of a Declaration Event of Default (as defined herein), the rights of the holders
of the Common Securities to receive payment of periodic distributions and
payments upon liquidation, redemption and otherwise will be subordinated to the
rights of the holders of the Capital Securities. See "Description of Capital
Securities and "Description of the Subordinated Debt Securities."
Holders of the Capital Securities of each Trust are entitled to receive
cumulative cash distributions, at the respective annual rate set forth on the
cover page hereof, on the liquidation amount of $25 per Capital Security,
accruing from the date of original issuance and payable quarterly in arrears on
February 15, May 15, August 15 and November 15 of each year, commencing May 15,
1997 ("distributions"). In addition, holders of Capital Securities of a Trust
will be entitled to an additional cash distribution on May 15, 1997 (the
"Additional Distribution"), in an amount equal to, and in lieu of, accrued and
unpaid dividends on the Related Depositary Shares exchanged by them for the
period from and including February 15, 1997 to but excluding the applicable
Expiration Date. The payment of distributions out of moneys held by each Trust
and payments on liquidation of each Trust or the redemption of its Capital
Securities, as set forth below, are guaranteed by Citicorp (each, a "Guarantee")
to the extent described under "Description of the Guarantees." Each Guarantee
covers payments of distributions and other payments on the Capital Securities of
a Trust only if and to the extent that such Trust has funds available therefor,
which will not be the case unless Citicorp has made a payment of interest or
principal or other payments on the Subordinated Debt Securities held by the
Trust as its sole asset. As to each Trust, the Guarantee, when taken together
with Citicorp's obligations under the Subordinated Debt Securities, the
Indenture (as defined herein) and the Declaration (as defined herein), including
Citicorp's undertaking to pay all costs, expenses, debts and other obligations
of the Trust (other than with respect to the Trust Securities), provides a full
and unconditional guarantee on a subordinated basis of amounts due on the
Capital Securities. The obligations of Citicorp under the Guarantees are
subordinate and junior in right of payment to all other liabilities of Citicorp
and rank pari passu with the most senior preferred stock issued from time to
time, if any, by Citicorp.
The distribution rate and the distribution payment date and other payment
dates for the Capital Securities of each Trust will correspond to the interest
rate and interest payment date and other payment dates on the Subordinated Debt
Securities held by such Trust, which will be the sole assets of such Trust. As a
result, if principal or interest is not paid on the series of Subordinated Debt
Securities held by a Trust, no amounts will be paid on the Capital Securities of
such Trust. If Citicorp does not make principal or interest payments on the
series of Subordinated Debt Securities held by a Trust, the Trust will not have
sufficient funds to make distributions on its Capital Securities, in
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which event the Guarantee will not apply to such distributions until the Trust
has sufficient funds available therefor.
So long as no Indenture Event of Default (as defined herein) has occurred
and is continuing under the applicable Indenture, Citicorp has the right to
defer payments of interest on any series of Subordinated Debt Securities by
extending the interest payment period on such Subordinated Debt Securities at
any time and from time to time for up to 20 consecutive quarterly interest
periods (each, an "Extension Period"), provided that no Extension Period may
extend beyond the Maturity Date (as defined below). If interest payments are so
deferred, distributions on the related Capital Securities will also be deferred.
During such Extension Period, distributions will continue to accrue, with
interest thereon (to the extent permitted by applicable law) compounded
quarterly, and holders of the related Capital Securities will be required to
include deferred interest income in their gross income for United States federal
income tax purposes in advance of receipt of the cash distributions with respect
to such deferred interest payments. There could be multiple Extension Periods of
varying lengths of up to 20 consecutive quarterly interest periods each
throughout the term of any series of Subordinated Debt Securities. See
"Description of the Subordinated Debt Securities--Option to Extend Interest
Payment Period" and "United States Federal Income Taxation--Interest and
Original Issue Discount."
The Subordinated Debt Securities held by each Trust will mature on May 15,
2027, unless such maturity is shortened to a date not prior to May 15, 2002 or
extended to a date not later than February 15, 2046 (such date, as it may be
shortened or extended as described herein, the "Maturity Date"). The
Subordinated Debt Securities held by each Trust are redeemable by Citicorp, in
whole or in part, from time to time, on or after May 15, 2002, and earlier in
certain circumstances upon the occurrence of a Tax Event or a Regulatory Capital
Event. Prior to any such redemption, Citicorp will obtain any required
regulatory approvals. If Citicorp redeems any Subordinated Debt Securities of
any series, the Trust which holds such Subordinated Debt Securities must redeem
Trust Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Subordinated Debt Securities so redeemed at the
Redemption Price (as defined herein). See "Description of the Capital
Securities--Redemption." The Capital Securities of each Trust will also be
redeemed upon maturity of the related Subordinated Debt Securities. In addition,
upon the occurrence of a Tax Event or a Regulatory Capital Event, unless the
Subordinated Debt Securities held by a Trust are redeemed in the circumstances
described herein, such Trust may be dissolved, with the result that the
Subordinated Debt Securities held by such Trust will be distributed to the
holders of the Capital Securities of such Trust in lieu of any cash
distribution. See "Description of the Capital Securities--Tax Event Redemption
or Distribution" and "--Regulatory Capital Event Redemption or Distribution."
In the event of the involuntary or voluntary dissolution, winding-up or
termination of a Trust, the holders of the Capital Securities of such Trust will
be entitled to receive for each Capital Security, out of assets of the Trust
available therefor, a liquidation amount of $25 plus accrued and unpaid
distributions thereon (including interest thereon) to the date of payment,
unless, in connection with such dissolution, the Subordinated Debt Securities
held by such Trust are distributed to the holders of the Capital Securities. See
"Description of the Capital Securities-- Liquidation Distribution Upon
Dissolution."
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The Depositary Shares for each Series of Preferred Stock are listed and
principally traded on the NYSE. On March , 1997, the last full day of trading
prior to the first public announcement of the Offers, the closing sales price
per share of the Depositary Shares on the NYSE was as follows:
Series 16: $________________
Series 17: $________________
Series 20: $________________
Series 21: $________________
Series 22: $________________
HOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THEIR DEPOSITARY
SHARES. To the extent that Depositary Shares for a Series of Preferred Stock are
tendered and accepted in an Offer, the terms on which the Depositary Shares for
such Series remaining outstanding may subsequently be sold could be adversely
affected. In addition, following the Expiration Date, and in accordance with and
subject to applicable law, Citicorp may from time to time acquire Depositary
Shares for any or all Series of Preferred Stock in the open market, by tender
offer, subsequent exchange offer, redemption of the underlying Preferred Stock
or otherwise. To the extent that any such acquisition of Depositary Shares
causes the number of outstanding Depositary Shares for any Series of Preferred
Stock to be less than 100,000, the NYSE may delist such Depositary Shares from
the NYSE and the trading market for such outstanding Depositary Shares for such
Series of Preferred Stock could be adversely affected. Citicorp's decision to
make such acquisitions is dependent on many factors, including market conditions
in effect at the time of any contemplated acquisition. Accordingly, Citicorp
cannot predict whether and to what extent it will acquire any additional
Depositary Shares and the consideration to be paid therefor. See "Listing and
Trading of Capital Securities and Depositary Shares." Citicorp also has the
right to redeem the Preferred Stock at specified times, in whole or in part, as
described under "Description of the Preferred Stock and Depository Shares."
Citicorp will pay to Soliciting Dealers (as defined herein) designated by
the record or beneficial owner, as appropriate, of Depositary Shares a
solicitation fee of $0.50 per Depositary Share ($0.125 per Depositary Share with
respect to the solicitation of beneficial holders of 10,000 or more Depositary
Shares of one Series of Preferred Stock) validly tendered and accepted for
exchange pursuant to an Offer, subject to certain conditions. A Soliciting
Dealer is not entitled to a solicitation fee for Depositary Shares beneficially
owned by such Soliciting Dealer. See "The Offers -- Dealer Managers; Soliciting
Dealers."
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THE OFFERS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS SHOULD NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY CITICORP, THE TRUSTS, THE TRUSTEES OF
ANY TRUST OR THE DEALER MANAGER. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
EXCHANGE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF CITICORP OR ANY TRUST SINCE THE
RESPECTIVE DATES AS OF WHICH INFORMATION IS GIVEN HEREIN. NO OFFER IS BEING MADE
TO (NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF) HOLDERS OF DEPOSITARY
SHARES IN ANY JURISDICTION IN WHICH
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THE MAKING OF SUCH OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE
WITH THE LAWS OF SUCH JURISDICTION. HOWEVER, CITICORP AND THE TRUSTS MAY, AT
THEIR DISCRETION, TAKE SUCH ACTION AS THEY MAY DEEM NECESSARY TO MAKE THE OFFERS
IN ANY SUCH JURISDICTION. IN ANY JURISDICTION THE SECURITIES LAWS OR BLUE SKY
LAWS OF WHICH REQUIRE ANY OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE
OFFER IS BEING MADE ON BEHALF OF EACH TRUST BY THE DEALER MANAGERS OR ONE OR
MORE REGISTERED BROKERS OR DEALERS WHICH ARE LICENSED UNDER THE LAWS OF SUCH
JURISDICTION.
-----------------------------------------------
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
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TABLE OF CONTENTS
Page
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Available Information..................................................... 12
Incorporation of Certain Documents by Reference........................... 13
Prospectus Summary........................................................ 14
Risk Factors and Special Considerations Relating to the Offers............ 29
Comparison of Capital Securities and Depositary Shares.................... 34
Citicorp.................................................................. 41
Citicorp Selected Financial Data ......................................... 42
Capitalization of Citicorp................................................ 43
Citicorp Ratios of Income to Fixed Charges................................ 43
Accounting Treatment ..................................................... 44
The Trusts................................................................ 44
The Offers................................................................ 46
Listing and Trading of Capital Securities and Depositary Shares........... 56
Transactions and Arrangements Concerning the Offers....................... 57
Fees and Expenses; Transfer Taxes......................................... 57
Price Range of Depositary Shares.......................................... 57
Description of the Subordinated Debt Securities........................... 58
Description of the Capital Securities..................................... 68
Description of the Guarantees............................................. 81
Effect of Obligations under the Subordinated Debt Securities
and the Guarantees. .................................................... 84
Description of the Preferred Stock and Depositary Shares.................. 85
United States Federal Income Taxation..................................... 96
Validity of Securities.................................................... 101
Experts................................................................... 101
ERISA Considerations...................................................... 101
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AVAILABLE INFORMATION
This Prospectus constitutes a part of a combined Registration Statement on
Form S-4 (together with all amendments and exhibits thereto, the "Registration
Statement") filed by Citicorp and the Trusts with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Capital Securities, the Guarantees and
the Subordinated Debt Securities. This Prospectus does not con tain all of the
information set forth in such Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission, although
it does include a summary of the material terms of the Indentures and the
Declarations. Reference is made to such Registration Statement and to the
exhibits relating thereto for further information with respect to the Company,
the Trusts, the Capital Securities, the Guarantees and the Subordinated Debt
Securities. Any statements contained herein concerning the provisions of any
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission or incor porated by reference herein are not necessarily
complete, and, in each instance, reference is made to the copy of such document
so filed for a more complete description of the matter involved. Each such
statement is qualified in its entirety by such reference.
Citicorp is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Reports, proxy statements and other information concerning Citicorp
can be inspected and copied at prescribed rates at the Commission's Public
Reference Room, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
as well as the following Regional Offices of the Commission: 7 World Trade
Center, New York, New York 10048; and Citicorp Center, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material may be obtained by mail from
the Commission's Public Reference Section at prescribed rates. If available,
such reports and other information may also be accessed through the Commission's
electronic data gathering, analysis and retrieval system ("EDGAR") via
electronic means, including the Commission's web site on the Internet
(http://www.sec.gov). Such reports, proxy statements and other information may
also be inspected at the offices of the New York Stock Exchange, the American
Stock Exchange, the Chicago Stock Exchange and the Pacific Stock Exchange.
No separate financial statements of any of the Trusts have been included
herein. Citicorp does not consider that such financial statements would be
material to holders of the Capital Securities because (i) all of the voting
securities of each of the Trusts will be owned, directly or indirectly, by
Citicorp, a reporting company under the Exchange Act, (ii) each of the Trusts
has no independent operations but exists for the exclusive purposes of issuing
its Capital Securities in exchange for Depositary Shares, issuing its Common
Securities, paying distributions on such Capital Securities and Common
Securities and holding Subordinated Debt Securities issued by Citicorp and (iii)
Citicorp's obligations described herein to provide certain indemnities in
respect of and be responsible for certain costs, expenses, debts and liabilities
of each Trust under the applicable Indenture and pursuant to the Declaration of
each Trust, the Guarantee issued with respect to the Capital Securities issued
by that Trust, the Subordinated Debt Securities held by that Trust and the
related Indenture, taken together, constitute a full and unconditional guarantee
on a subordinated basis of amounts due on the Capital Securities. See
"Description of the Subor dinated Debt Securities" and "Description of the
Guarantees."
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The Trusts are not currently subject to the information reporting
requirements of the Exchange Act. The Trusts will become subject to such
requirements upon the effectiveness of the Registration Statement, although they
intend to seek and expect to receive exemptions therefrom.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Citicorp pursuant to
Section 13 of the Exchange Act are incorporated by reference in this Prospectus:
(a) Annual Report and Form 10-K for the fiscal year ended December 31,
1996; and
(b) Current Report on Form 8-K dated January 21, 1997.
All documents filed by Citicorp pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the latest Expiration Date for any Offer shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in this Prospectus or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or therein (or in any subsequently filed document
that also is or is deemed to be incorporated by reference herein or therein)
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
Citicorp will provide without charge to each person to whom a copy of this
Prospectus has been delivered, upon the written or oral request of such person,
a copy of any or all of the documents referred to above which have been or may
be incorporated by reference herein (other than exhibits to such documents
unless such exhibits are specifically incorporated by reference in such
documents).
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON
REQUEST FROM THE INVESTOR RELATIONS DEPARTMENT, CITICORP, 399 PARK AVENUE, NEW
YORK, NEW YORK 10043, (212) 559-2718. IN ORDER TO ENSURE TIMELY DELIVERY OF THE
DOCUMENTS, ANY REQUESTS SHOULD BE MADE BY APRIL , 1997.
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PROSPECTUS SUMMARY
The following summary does not purport to be complete and is qualified in
its entirety by the detailed information contained elsewhere in, or incorporated
by reference in, this Prospectus. Capitalized terms used in this Prospectus
Summary and not defined herein shall have the respective meanings ascribed to
them elsewhere in this Prospectus.
CITICORP
Citicorp, whose principal subsidiary is Citibank, N.A. ("Citibank"), is a
holding company incorporated under the laws of the State of Delaware on December
4, 1967. Through its subsidiaries and affiliates, including Citibank, Citicorp
is a global financial services organization serving the financial needs of
individuals, businesses, governments and financial institutions in the United
States and throughout the world.
The principal office of Citicorp is located at 399 Park Avenue, New York,
New York 10043, telephone number (212) 559-1000.
THE TRUSTS
Each Trust is a statutory business trust formed under Delaware law
pursuant to (i) a declaration of trust, dated as of January 27, 1997, executed
by Citicorp, as sponsor (the "Sponsor"), and the trustees of such Trust
(respectively, the "Trustees") and (ii) the filing of a certificate of trust
with the Secretary of State of the State of Delaware on January 30, 1997. Each
declaration will be amended and restated in its entirety (for each Trust, as so
amended and restated, the "Declaration") substantially in the form filed as an
exhibit to the Registration Statement of which this Prospectus forms a part.
Each Declaration will be qualified as an indenture under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). Upon issuance of a Trust's
Capital Securities, the purchasers thereof will own all of the issued and
outstanding Capital Securities of such Trust. Citicorp will directly or
indirectly acquire all of the Common Securities of each Trust in an aggregate
liquidation amount equal to approximately 3 percent of the total capital of the
Trust. Each Trust exists for the exclusive purposes of (i) issuing (a) its
Capital Securities in exchange for Depositary Shares validly tendered and
accepted in its Offer and delivering such Depositary Shares to Citicorp in
consideration of the deposit by Citicorp in the Trust, as trust assets, of
Subordinated Debt Securities having an aggregate stated principal amount equal
to the aggregate stated liquidation amount of such Capital Securities and an
interest rate equal to the distribution rate of such Capital Securities, and (b)
its Common Securities to Citicorp in exchange for cash and investing the
proceeds thereof in an equivalent amount of such Subordinated Debt Securities
and (ii) engaging in only those other activities necessary or incidental
thereto.
Pursuant to the Declaration of each Trust, the number of Trustees of each
Trust will initially be three. Two of the Trustees (the "Regular Trustees") of
each Trust will be persons who are employees or officers of, or who are
affiliated with, Citicorp. The third Trustee will be a financial institution
that is unaffiliated with Citicorp, which Trustee will serve as institutional
trustee under the Declaration and as indenture trustee for the purposes of
compliance with the provisions of the Trust Indenture Act (the "Institutional
Trustee"). Initially, Wilmington Trust Company will be the Institutional Trustee
for each Trust until removed or replaced by the holder
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of the Common Securities. For purposes of compliance with the provisions of the
Trust Indenture Act, Wilmington Trust Company will also act as trustee (the
"Guarantee Trustee") under the Guarantee for each Trust and as Debt Trustee (as
defined herein) under each Indenture (as defined herein). Wilmington Trust
Company will also act as Delaware Trustee under each Declaration for purposes of
compliance with the Delaware Business Trust Act (the "Trust Act"). See
"Description of the Guarantees" and "Description of the Capital Securities --
Voting Rights."
The Institutional Trustee will hold title to the Subordinated Debt
Securities held by each Trust for the benefit of the holders of the Trust
Securities of such Trust and will have the power to exercise all rights, powers
and privileges under the Indenture as the holder of the Subordinated Debt
Securities. In addition, for each Trust the Institutional Trustee will maintain
exclusive control of a segregated non-interest bearing bank account (each a
"Property Account") to hold all payments made in respect of such Subordinated
Debt Securities for the benefit of the holders of the Trust Securities of such
Trust. The Institutional Trustee will make payments of distributions and
payments on liquidation, redemption and otherwise to the holders of the Trust
Securities of such Trust out of funds from the Trust's Property Account. The
Guarantee Trustee will hold the Guarantee relating to the Trust's Capital
Securities for the benefit of the holders of the Capital Securities of such
Trust. Citicorp, as the direct or indirect holder of all Common Securities of
each Trust, will have the right to appoint, remove or replace any Trustee and to
increase or decrease the number of Trustees of each Trust, subject to certain
restrictions. Citicorp will pay all fees and expenses related to the Trusts and
the issuance of the Trust Securities.
CERTAIN POTENTIAL BENEFITS AND RISKS TO INVESTORS
Prospective investors should carefully review the information contained
elsewhere in this Prospectus prior to making a decision regarding an Offer and
should particularly consider the following matters:
POTENTIAL BENEFITS TO EXCHANGING HOLDERS
o The cash distributions rate on the Capital Securities will be higher
than the dividend rate on the Series of Preferred Stock underlying the
Related Depositary Shares. See "Comparison of Capital Securities and
Depositary Shares" and the cover page hereof.
o Dividends on the Series of Preferred Stock are noncumulative, except
in the case of the Series 22 Preferred Stock. Interest will accrue on
the Subordinated Debt Securities so long as they are outstanding,
including during the continuance of an Extension Period. See
"Description of the Subordinated Debt Securities."
o The respective Series of Preferred Stock may be redeemed by Citicorp,
at its option, in whole or in part, at specified times prior to 2002,
whereas the Capital Securities may not be redeemed by Citicorp prior
to May 15, 2002, unless a Tax Event or a Regulatory Capital Event
shall have occurred. See "Comparison of Capital Securities and
Depositary Shares," "Description of the Preferred Stock and Depositary
Shares" and "Description of the Capital Securities."
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o Although the obligations of Citicorp under the Subordinated Debt
Securities are unsecured and will be subordinated and junior in right
of payment to all Senior Indebtedness of Citicorp, they will rank pari
passu with Citicorp's other general unsecured creditors and will be
senior to all capital stock of Citicorp now or hereafter issued by
Citicorp (including each Series of Preferred Stock underlying the
Depositary Shares). See "Description of the Subordinated Debt
Securities."
o While no dividends are required to be paid with respect to the
Depositary Shares, interest payments on each series of Subordinated
Debt Securities, and therefore distributions on the related Capital
Securities, may not be deferred for more than 20 consecutive quarterly
interest periods. Moreover, during any such Extension Period, (i)
subject to certain permitted exceptions, Citicorp shall not declare or
pay any dividend on, make a distribution with respect to, or redeem,
purchase or acquire, or make a liquidation payment with respect to,
any of its capital stock and (ii) Citicorp shall not make any payment
of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by Citicorp that rank pari passu
with or junior in right or payment to the Subordinated Debt
Securities. See "Description of the Subordinated Debt
Securities--Option to Extend Interest Payment Period." Citicorp has no
present intention of exercising its right to defer payments of
interest on any of the Subordinated Debt Securities. However, should
Citicorp determine to exercise such right in the future with respect
to any series of Subordinated Debt Securities, the market price of the
related Capital Securities is likely to be adversely affected. To date
Citicorp has made each quarterly dividend payment with respect to the
Depositary Shares on the scheduled dividend payment date.
o To the extent Depositary Shares are validly tendered and accepted, the
Offers will allow Citicorp to achieve certain tax efficiencies
because, in contrast to dividend payments with respect to the
Preferred Stock underlying the Depositary Shares which are not
deductible by Citicorp, under current law Citicorp will be able to
deduct interest payments on the Subordinated Debt Securities for
United States federal income tax purposes. Such tax efficiencies may
give rise to an incremental increase in cash flow to Citicorp. See
"The Offers -- Purpose of the Offers."
o So long as payments of interest and other payments are made when due
on the Subordinated Debt Securities held by each Trust, such payments
will be sufficient to cover cash distributions and other payments made
on the related Trust Securities because (i) the aggregate principal
amount of Subordinated Debt Securities deposited as trust assets in
each Trust will be equal to the sum of (a) the aggregate stated
liquidation amount of the Capital Securities issued by such Trust in
exchange for the Related Depositary Shares accepted in its Offer and
(b) the amount of proceeds received by such Trust from the issuance of
its Common Securities to Citicorp, which proceeds will be used by the
Trust to purchase an equal principal amount of such Subordinated Debt
Securities, (ii) the interest rate and interest and other payment
dates on such Subordinated Debt Securities will match the distribution
rate and distribution and other payment dates for the related Trust
Securities, (iii) each Declaration provides that Citicorp shall pay
all debts and obligations (other than with respect to the Trust
Securities) and all costs and
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expenses of the Trust, and (iv) each Declaration further provides that
the Trustees shall not permit the Trust to, among other things, engage
in any activity that is not consistent with the purpose of the Trust.
See "The Trusts," "Description of the Capital Securities,"
"Description of the Subordinated Debt Securities" and "Effect of
Obligations Under the Subordinated Debt Securities and the
Guarantees."
o If a Declaration Event of Default (as defined herein) occurs and is
continuing under a Declaration, then the holders of the affected
Capital Securities would be able to rely on the enforcement by the
Institutional Trustee of its rights as a holder of the Subordinated
Debt Securities held by the Trust against Citicorp. In addition, the
holders of a majority in liquidation amount of the Capital Securities
of a Trust will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Institutional Trustee or to direct the exercise of any trust or power
conferred upon the Institutional Trustee under the Declaration,
including the right to direct the Institutional Trustee to exercise
the remedies available to it as a holder of the Subordinated Debt
Securities held by the Trust. If the Institutional Trustee fails to
enforce its rights under the relevant Subordinated Debt Securities, a
holder of the affected Capital Securities may institute a legal
proceeding directly against Citicorp to enforce the Institutional
Trustee's rights under such Subordinated Debt Securities without first
instituting any legal proceeding against the Institutional Trustee or
any other person or entity. Notwithstanding the foregoing, if a
Declaration Event of Default has occurred with respect to a Trust and
is continuing, and such event is attributable to the failure of
Citicorp to pay interest or principal on the related Subordinated Debt
Securities on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), then a holder
of the Capital Securities of such Trust may directly institute a
proceeding for enforcement of payment to such holder of the principal
of or interest on the related Subordinated Debt Securities having a
principal amount equal to the aggregate liquidation amount of the
Capital Securities of such holder (a "Direct Action") on or after the
respective due date specified in such Subordinated Debt Securities. In
connection with such Direct Action, Citicorp will be subrogated to the
rights of such holder of Capital Securities under the relevant
Declaration to the extent of any payment made by Citicorp to such
holder of Capital Securities in such Direct Action. The holders of
Capital Securities will not be able to exercise directly or indirectly
any other remedy available to the holder of the Subordinated Debt
Securities. See "Description of the Capital Securities -- Declaration
Events of Default."
POTENTIAL RISKS TO EXCHANGING HOLDERS
o Participation in an Offer will be a taxable event for holders of
Related Depositary Shares. See "Risk Factors and Special
Considerations Relating to the Offers-- Exchange of Depositary Shares
for Capital Securities is a Taxable Event."
o The obligations of Citicorp under each series of Subordinated Debt
Securities are (i) subordinate and junior in right of payment to all
present and future Senior Indebtedness of Citicorp (including all
subordinated debt securities issued by
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Citicorp (other than securities designated as its Junior Subordinated
Deferrable Interest Debentures)), (ii) pari passu with all Trade
Credit (as defined herein) of Citicorp and (iii) senior to all capital
stock now or hereafter issued by Citicorp. The obligations of Citicorp
under the Guarantees are subordinate and junior in right of payment to
all other liabilities of Citicorp and rank pari passu with the most
senior preferred stock issued, from time to time, if any, by Citicorp
and with any other guarantee by Citicorp in respect of any preferred
stock or equity interest of any affiliate. See "Risk Factors and
Special Considerations Relating to the Offers -- Ranking of
Subordinated Obligations Under the Guarantees and Subordinated Debt
Securities."
o Should Citicorp not make interest or other payments on any
Subordinated Debt Securities held by a Trust for any reason, the
affected Trust will not make distributions or other payments on the
Trust Securities and will not have funds available therefor. In such
event, holders of the Capital Securities of such Trust would not be
able to rely on the related Guarantee since the Guarantee covers
distributions and other payments on the Capital Securities only if and
to the extent that Citicorp has made a payment to the Trust of
interest or principal on the Subordinated Debt Securities deposited in
such Trust as trust assets. In addition, the interest payment period
on any series of Subordinated Debt Securities may be extended from
time to time under certain circumstances by Citicorp in its sole
discretion, for up to 20 consecutive quarterly periods, such extension
period not to extend beyond the Maturity Date of the Subordinated Debt
Securities. See "Risk Factors and Special Considerations Relating to
the Offers -- Rights Under the Guarantees" and "--Option to Extend
Interest Payment Period."
o If Citicorp elects to defer payments of interest on the Subordinated
Debt Securities held by a Trust by extending the interest period
thereon, distributions on such Trust's Capital Securities would also
be deferred but the affected Trust would continue to accrue income (as
original issue discount ("OID")) in respect of such Subordinated Debt
Securities which would be taxable to beneficial owners of such Capital
Securities. As a result, beneficial owners of such Capital Securities
during an Extension Period would include their pro rata share of the
interest in gross income in advance of the receipt of cash. See "Risk
Factors and Special Considerations Relating to the Offers -- Option to
Extend Interest Payment Period."
o Holders of Capital Securities will have limited voting rights and will
not be able to appoint, remove or replace, or to increase or decrease
the number of, Trustees of the related Trust, which rights are vested
exclusively in the holder of the Common Securities. See "Risk Factors
and Special Considerations Relating to the Offers -- Limited Voting
Rights" and "Description of the Capital Securities -- Voting Rights."
Holders of Depositary Shares also have limited voting rights. However,
with certain exceptions, in the event that dividends on one or more
Series of the Preferred Stock are in arrears and unpaid for such
number of dividend periods, whether or not consecutive, which shall in
the aggregate contain not less than 540 days, the Board of Directors
of Citicorp (the "Citicorp Board") will be increased by two directors
and the holders of such Preferred Stock, together with the holders
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of all other series of preferred stock then entitled to vote thereon,
would be entitled to elect two directors of the expanded Citicorp
Board at the next annual meeting of shareholders. See "Description of
the Preferred Stock and Depositary Shares -- Preferred Stock -- Voting
Rights."
o The Subordinated Debt Securities, and as a result, the Capital
Securities, are redeemable by Citicorp, in whole or in part, from time
to time, on or after May 15, 2002, or prior to May 15, 2002, in
certain circumstances, upon the occurrence of a Tax Event or a
Regulatory Capital Event. See "Risk Factors and Special Considerations
Relating to the Offers -- Tax Event or Regulatory Capital Event
Redemption or Distribution". Prior to any such redemption, Citicorp
will obtain any required regulatory approvals. The Depositary Shares
and the underlying Preferred Stock are redeemable at the option of
Citicorp, in whole or in part, on or after specified dates prior to
2002. See "Comparison of Capital Securities and Depositary Shares" and
"Description of Preferred Stock and Depositary Shares."
o Unlike dividends paid on Depositary Shares, distributions made on the
Capital Securities are not eligible for the dividends received
deduction for corporate holders.
o Citicorp will have the right at any time to shorten the maturity of
any series of Subordinated Debt Securities to a date not earlier than
May 15, 2002. The exercise of such right is subject to the obtaining
of any required regulatory approvals. Citicorp also will have the
right to extend the maturity of any series of Subordinated Debt
Securities to a date no later than February 15, 2046, so long as at
the time such election is made and at the time such extension
commences (i) Citicorp is not in bankruptcy, otherwise insolvent or in
liquidation, (ii) Citicorp is not in default in the payment of any
interest or principal on such series of Subordinated Debt Securities,
(iii) the related Trust is not in arrears on payments of distributions
on its Capital Securities and no deferred distributions on such
Capital Securities are accrued and unpaid and (iv) such series of
Subordinated Debt Securities, or, if such Capital Securities are
rated, the Capital Securities, are rated at least BBB- by Standard &
Poor's Rating Services, at least Baa3 by Moody's Investors Service,
Inc. or at least the equivalent by any other nationally recognized
statistical rating organization. In the event that Citicorp elects to
shorten or extend the maturity date of any series of Subordinated Debt
Securities, it shall give notice to the Debt Trustee, and the Debt
Trustee shall give notice of such shortening or extension to the
holders of such Subordinated Debt Securities no more than 60 and no
less than 30 days prior to the effectiveness thereof.
o While application will be made to list the Capital Securities of each
Trust on the NYSE, the Capital Securities of each Trust are a new
issue of securities with no established trading market. In addition,
the liquidity of the Capital Securities of each Trust will be affected
by the number of Related Depositary Shares exchanged in the Offer. See
"Risk Factors and Special Considerations Relating to the Offers - -
Lack of Established Trading Market for Capital Securities."
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o Upon the occurrence of a Tax Event or a Regulatory Capital Event,
Citicorp will have the right to liquidate any Trust and cause the
Subordinated Debt Securities held by such Trust to be distributed to
the holders of its Trust Securities. While Citicorp will use its best
efforts in such a situation to have the Subordinated Debt Securities
listed on the NYSE, there is no guarantee that such listing will take
place or that a market will exist for the Subordinated Debt
Securities. See "Risk Factors and Special Considerations Relating to
the Offers -- Tax Event or Regulatory Capital Event Redemption or
Distribution."
POTENTIAL RISKS TO HOLDERS OF DEPOSITARY SHARES REMAINING OUTSTANDING
o The liquidity and trading market for Depositary Shares for a Series of
Preferred Stock remaining outstanding, and the terms upon which
untendered Depositary Shares may be sold, could be adversely affected
to the extent Depositary Shares for such Series are tendered and
accepted in the relevant Offer. In addition, following the Expiration
Date, and in accordance with and subject to applicable law, Citicorp
may from time to time acquire Depositary Shares in the open market, by
tender offer, subsequent exchange offer, redemption of the underlying
Preferred Stock or otherwise. To the extent that any such acquisition
of Depositary Shares causes the number of outstanding Depositary
Shares for any Series of Preferred Stock to be less than 100,000, the
NYSE may delist such Depositary Shares from the NYSE and the trading
market for such outstanding Depositary Shares for such Series of
Preferred Stock could be adversely affected. Citicorp's decision to
make such acquisition is dependent on many factors, including market
conditions in effect at the time of any contemplated acquisition.
Accordingly, Citicorp cannot predict whether and to what extent it
will acquire any additional Depositary Shares and the consideration to
be paid therefor. See "Risk Factors and Special Considerations
Relating to the Offers-- Reduced Trading Market for Depositary
Shares."
o The Subordinated Debt Securities will rank senior in right of payment
to each Series of Preferred Stock underlying untendered Depositary
Shares. See "Risk Factors and Special Considerations Relating to the
Offers -- Ranking of Subordinated Obligations Under Subordinated Debt
Securities and the Guarantees."
THE OFFERS
The following description is equally applicable to each Offer by each
Trust to exchange its Capital Securities for the Related Depositary Shares.
PURPOSE OF THE OFFERS
The purpose of the Offers is to refinance the Preferred Stock underlying
the Depositary Shares with the relevant Capital Securities offered in exchange
therefor to achieve certain tax efficiencies while preserving Citicorp's
flexibility with respect to future financings. Under the current capital
adequacy guidelines of the Board of Governors of the Federal Reserve System (the
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"FRB"), the exchange of Capital Securities for Preferred Stock will also
preserve unaffected Citicorp's Tier 1 capital level. See "The Offers--Purpose of
the Offers."
TERMS OF THE OFFERS
Upon the terms and subject to the conditions set forth herein and in the
related Letter of Transmittal, each Trust hereby offers to exchange its Capital
Securities for up to the Maximum Number of Related Depositary Shares not owned
by Citicorp. Exchanges will be made on the basis of one Capital Security for
each Related Depositary Share validly tendered and accepted for exchange in an
Offer. See "The Offers--Terms of the Offers."
EXPIRATION DATE; WITHDRAWALS
Upon the terms and conditions of its Offer, each Trust will accept for
exchange up to the Maximum Number of Related Depositary Shares validly tendered
and not withdrawn prior to 5:00 p.m., New York City time, on April __, 1997, or
if such Offer is extended by the Trust, in its sole discretion, the latest date
and time to which such Offer has been extended (with respect to a particular
Offer, its "Expiration Date"). Tenders of Related Depositary Shares pursuant to
an Offer may be withdrawn at any time prior to the Offer's Expiration Date and,
unless accepted for exchange by the Trust, may be withdrawn after the expiration
of 40 Business Days from the date of this Prospectus. A "Business Day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions are authorized or obligated by law or executive order
to close in New York City. See "The Offers -- Expiration Date; Extensions;
Amendments; Termination" and "-- Withdrawal of Tenders." Tenders must be made to
the Exchange Agent in order to be valid.
CONDITIONS TO THE OFFERS; EXTENSIONS; AMENDMENTS; TERMINATION
Consummation of each Offer is conditioned on, among other things, tenders
by a sufficient number of holders of Depositary Shares to meet the Minimum
Distribution Condition, which condition may not be waived. See "The Offers --
Conditions to the Offers" and "-- Expiration Date; Extensions; Amendments;
Termination."
Each Trust expressly reserves the right, in its sole discretion, subject to
applicable law, to (i) terminate its Offer, not accept for exchange any Related
Depositary Shares and promptly return the tendered Depositary Shares, upon the
failure of any condition specified above or under "The Offers -- Conditions to
the Offers, " (ii) waive any condition to its Offer (other than the Minimum
Distribution Condition) and accept up to the Maximum Number of Related
Depositary Shares previously tendered pursuant to its Offer, (iii) extend the
Expiration Date of its Offer and retain all Related Depositary Shares tendered
pursuant to its Offer until the Expiration Date, subject, however, to all
withdrawal rights of holders (see "The Offers -- Withdrawal of Tenders"), (iv)
amend the terms of its Offer, (v) modify the amount or form of the consideration
to be paid pursuant to its Offer, or (vi) terminate its offer, not accept for
exchange the Related Depositary Shares and promptly return such Depositary
Shares at any time on or prior to the Expiration Date, for any reason. Any
amendment applicable to an Offer will apply to all Depositary Shares tendered
pursuant to the Offer. The minimum period during which an Offer must remain open
following material changes in the terms of the Offer or the information
concerning the Offer depends upon the facts and circumstances, including the
materiality of such terms or information.
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See "The Offers -- Conditions to the Offers" and "-- Expiration Date;
Extensions; Amendments; Termination."
PROCEDURES FOR TENDERING
Each Holder of Depositary Shares wishing to participate in an Offer must
(i) properly complete and sign the related Letter of Transmittal (or where
appropriate, an Agent's Message (as defined herein)) or a facsimile thereof (all
references in this Prospectus to the Letter of Transmittal shall deemed to
include a facsimile thereof) in accordance with the instructions contained
herein and in the Letter of Transmittal, together with any required signature
guarantees, and deliver the same to Citibank, as Exchange Agent, at one of its
addresses forth on the back cover page thereof, prior to the related Expiration
Date and either (a) Depositary Receipts (as defined herein) evidencing the
Depositary Shares to be tendered must be received by the Exchange Agent at such
address or (b) such Depositary Shares must be transferred pursuant to the
procedures for book-entry transfer described herein and a confirmation of such
book-entry transfer must be received by the Exchange Agent, in each case prior
to the Expiration Date, or (ii) comply with the guaranteed delivery procedures
described herein. See "The Offers -- Procedures for Tendering."
IN ORDER TO PARTICIPATE IN AN OFFER, HOLDERS OF RELATED DEPOSITARY SHARES
MUST SUBMIT THE LETTER OF TRANSMITTAL AND COMPLY WITH THE OTHER PROCEDURES FOR
TENDERING IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN AND IN THE LETTER
OF TRANSMITTAL PRIOR TO THE EXPIRATION DATE FOR SUCH OFFER.
LETTERS OF TRANSMITTAL, DEPOSITARY RECEIPTS AND ANY OTHER REQUIRED
DOCUMENTS SHOULD BE SENT ONLY TO THE EXCHANGE AGENT, AND NOT TO CITICORP, THE
TRUSTS, THE DEALER MANAGERS OR THE INFORMATION AGENT.
SPECIAL PROCEDURE FOR BENEFICIAL OWNERS
Any beneficial owner whose Depositary Receipts are registered in the name
of a broker, dealer, commercial bank, trust company or other nominee and who
wishes to tender its Depositary Shares should contact such registered Holder
promptly and instruct such registered Holder to tender on such beneficial
owner's behalf. If such beneficial owner wishes to tender on its behalf, such
owner must, prior to completing and executing the Letter of Transmittal and
delivering the Depositary Receipts for its Depositary Shares, either make
appropriate arrangements to register ownership of such Depositary Receipts in
such owner's name or obtain a properly completed stock power from the registered
Holder. The transfer of registered ownership may take considerable time and may
not be able to be completed prior to the Expiration Date. See "The Offers --
Procedures for Tendering -- Special Procedures for Beneficial Owners."
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GUARANTEED DELIVERY PROCEDURES
If a Holder desires to accept an Offer and time will not permit the Letter
of Transmittal or the Depositary Receipts to reach the Exchange Agent before the
Offer's Expiration Date or the procedures for book-entry transfer cannot be
completed on a timely basis, a tender may be effected in accordance with the
guaranteed delivery procedures set forth in "The Offers -- Procedures for
Tendering -- Guaranteed Delivery."
ACCEPTANCE OF SHARES
Upon the terms and subject to the conditions of relevant Offer, including
the Minimum Distribution Condition, each Trust will accept for exchange up to
the Maximum Number of Related Depositary Shares validly tendered and not
withdrawn prior to the Expiration Date. If more than the Maximum Number of
Related Depositary Shares are validly tendered for exchange pursuant to an Offer
and not withdrawn on or prior to the Expiration Date for such Offer, the
applicable Trust will accept such shares on a pro rata basis, as described below
under "The Offers -- Terms of the Offers". Each Trust expressly reserves the
right, in its sole discretion, to delay acceptance for exchange of Related
Depositary Shares tendered under its Offer and the delivery of the Capital
Securities with respect to the Depositary Shares accepted for exchange (subject
to Rules 13e-4 and 14e-1 under the Exchange Act, which requires that Citicorp
and each Trust consummate the Offers or return the Depositary Shares deposited
by or on behalf of the Holders thereof promptly after the termination or
withdrawal of the Offer), or to amend, withdraw or terminate its Offer, at any
time prior to the Expiration Date for any of the reasons set forth in "The
Offers -- Conditions to the Offers" and "-- Expiration Date; Extensions;
Amendments; Termination."
If a Trust decides, in its sole discretion, to decrease the number of
Related Depositary Shares sought in its Offer or to increase or decrease the
consideration offered to holders of Related Depositary Shares, and if such Offer
is scheduled to expire less than ten Business Days from and including the date
that notice of such increase or decrease is first published, sent or given in
the manner specified in "The Offers -- Terms of the Offers" and "-- Expiration
Date; Extensions; Amendments; Termination," then such Offer will remain open for
a minimum of ten Business Days from and including the date of such notice.
Delivery of Capital Securities to tendering Holders (as defined herein)
will be made as promptly as practicable following the Expiration Date. All
Depositary Receipts for Depositary Shares not accepted pursuant to an Offer will
be returned to the tendering Holders at Citicorp's expense as promptly as
practicable following the Expiration Date for such Offer. See "The Offers --
Terms of the Offers."
DELIVERY OF CAPITAL SECURITIES
Subject to the terms and conditions of the Offer, the delivery of the
Capital Securities to be issued pursuant to an Offer will occur as promptly as
practicable following the related Expiration Date. See "The Offers -- Terms of
the Offers" and "--Expiration Date; Extensions; Amendments; Terminations."
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DESCRIPTION OF CAPITAL SECURITIES AND SUBORDINATED DEBT SECURITIES
The Capital Securities of each Trust evidence preferred undivided
beneficial interests in the assets of the Trust. The Common Securities of each
Trust rank pari passu, and payments will be made thereon on a pro rata basis,
with the Capital Securities, except that upon the occurrence and during the
continuance of a Declaration Event of Default, the rights of the holders of the
Common Securities to receive payment of periodic distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the rights of the
holders of the Capital Securities. Each Declaration does not permit the issuance
by the Trust of any securities other than its Trust Securities or the incurrence
of any indebtedness by the Trust. Pursuant to each Declaration, the
Institutional Trustee will own the Subordinated Debt Securities deposited in the
Trust for the benefit of the holders of the Trust Securities. The payment of
distributions out of money held by each Trust and payments upon redemption of
its Capital Securities or liquidation of each Trust, are guaranteed by Citicorp
to the extent described under "Description of the Guarantees." Each Declaration
defines an event of default with respect to the Trust Securities of the Trust (a
"Declaration Event of Default") as the occurrence and continuance of an "Event
of Default" under the related Indenture (an "Indenture Event of Default").
Distributions on the Capital Securities of the respective Trusts will be at
a fixed rate per annum, as set forth on the cover page hereof, of the stated
liquidation amount of $25 per Capital Security. Distributions in arrears will
bear interest thereon at such rate, compounded quarterly to the extent permitted
by law. The term "distribution" as used herein includes any such compounded
interest payable unless otherwise stated. The amount of distributions payable
for any period shorter than a full quarterly period will be computed on the
basis of a 360-day year of twelve 30-day months. Distributions on the Capital
Securities will be cumulative, will accrue from the related Expiration Date and,
except as otherwise described below, will be payable quarterly in arrears on
February 15, May 15, August 15 and November 15 of each year, commencing May 15,
1997. In addition, holders of Capital Securities will be entitled to the
Additional Distribution in an amount equal to, and in lieu of, dividends
accruing and unpaid from and including February 15, 1997 to but excluding the
applicable Expiration Date on the Series of Preferred Stock underlying their
Related Depositary Shares accepted for exchange, such Additional Distribution to
be made on May 15, 1997 to holders of such Capital Securities on the record date
for such distribution.
The distribution rate and the distribution and other payment dates for the
Capital Securities of a Trust will correspond to the interest rate and the
interest and other payment dates on the Subordinated Debt Securities deposited
in such Trust as trust assets. As a result, if principal or interest is not paid
on such Subordinated Debt Securities, including as a result of Citicorp's
election to extend the interest payment period on such Subordinated Debt
Securities as described below, the Trust holding such Subordinated Debt
Securities will not make payments on its Trust Securities. Citicorp has the
right under the Indentures, so long as no Indenture Event of Default shall have
occurred and be continuing, to defer payment of interest on any series of
Subordinated Debt Securities by extending the interest payment period from time
to time on such Subordinated Debt Securities, which, if exercised, would defer
quarterly distributions on the related Capital Securities (though such
distributions would continue to accrue with interest since interest would
continue to accrue on the Subordinated Debt Securities) during any such
Extension Period. Such right to extend the interest payment period is limited to
a period not exceeding 20 consecutive quarterly periods and such period may not
extend beyond the Maturity Date of the
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Subordinated Debt Securities. In the event that Citicorp exercises this right,
then (i) Citicorp shall not declare or pay any dividend on, make a distribution
with respect to, or redeem, purchase or acquire, or make a liquidation payment
with respect to, any of its capital stock (other than (a) purchases or
acquisitions of shares of Citicorp common stock in connection with the
satisfaction by Citicorp of its obligations under any employee benefit plans or
any other contractual obligations of Citicorp (other than a contractual
obligation ranking pari passu with or junior to the Subordinated Debt
Securities) entered into prior to the date of issuance of the Subordinated Debt
Securities, (b) as a result of a reclassification of Citicorp capital stock or
the exchange or conversion of one class or series of Citicorp capital stock for
another class or series of Citicorp capital stock or (c) the purchase of
fractional interests in shares of Citicorp's capital stock pursuant to the
conversion or exchange provisions of such Citicorp capital stock or the security
being converted or exchanged) and (ii) Citicorp shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by Citicorp that rank pari passu with or junior in right
of payment to the Subordinated Debt Securities. Prior to the termination of any
such Extension Period, Citicorp may further extend the interest payment period;
provided, that such Extension Period, together with all such previous and
further extensions thereof, may not exceed 20 consecutive quarters or extend
beyond the Maturity Date of the Subordinated Debt Securities. Upon the
termination of any Extension Period and the payment of all amounts then due,
Citicorp may select a new Extension Period, subject to the above requirements.
If distributions are deferred on Capital Securities of a Trust, the deferred
distributions and accrued interest thereon shall be paid to holders of record of
such Capital Securities as they appear on the books and records of the Trust on
the record date next following the termination of such Extension Period. See
"Risk Factors and Special Considerations Relating to the Offers--Rights Under
the Guarantees" and "--Option to Extend Interest Payment Period." If Citicorp
elects to defer payment of interest on any series of Subordinated Debt
Securities by extending the interest period thereon, distributions on the
Capital Securities of the related Trust would also be deferred but the Trust
would continue to accrue income (as OID) in respect of such Subordinated Debt
Securities which would be taxable to beneficial owners of such Capital
Securities. As a result, beneficial owners of such Capital Securities during an
Extension Period would include their pro rata share of the interest in gross
income in advance of the receipt of cash. See "Risk Factors and Special
Considerations Relating to the Offers -- Option to Extend Interest Payment
Period."
If the Institutional Trustee shall be the sole holder of a particular
series of Subordinated Debt Securities, Citicorp shall give the Regular Trustees
and the Institutional Trustee of the Trust notice of its selection of such
Extension Period one Business Day prior to the earlier of (i) the date
distributions on the related Capital Securities are payable or (ii) the date the
Regular Trustees are required to give notice to the NYSE or any other applicable
self-regulatory organization, or to the Holders of the Capital Securities, of
the record date or the date such distribution is payable. The Regular Trustees
shall give notice of Citicorp's selection of such Extension Period to the
holders of such Capital Securities. If the Institutional Trustee shall not be
the sole holder of a particular series of Subordinated Debt Securities, Citicorp
shall give the holders of such Subordinated Debt Securities notice of its
selection of such Extension Period ten Business Days prior to the earlier of (i)
the Interest Payment Date (as defined herein) or (ii) the date upon which
Citicorp is required to give notice to the NYSE (or other applicable
self-regulatory organization) or to holders of such Subordinated Debt Securities
of the record or payment date of such related interest payment. See "Description
of the Subordinated Debt Securities -- Option to Extend Interest Payment
Period."
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There will be deposited in each Trust as trust assets (i) one series of
Subordinated Debt Securities having an aggregate principal amount equal to the
aggregate stated liquidation amount of the Capital Securities issued by such
Trust in exchange for the Related Depositary Shares accepted in the Offer by
such Trust and (ii) Subordinated Debt Securities of the same series, having an
aggregate principal amount equal to the amount of proceeds received by such
Trust from the sale of its Common Securities to Citicorp. Such Subordinated Debt
Securities will bear interest at a rate equal to the rate of distributions on
the Capital Securities of the Trust to which such Subordinated Debt Securities
are issued. Distributions on the Capital Securities must be paid on the dates
payable to the extent that the Trust has funds available for the payment of such
distributions in its Property Account. Each Trust's funds available for
distribution to the holders of the Capital Securities will be limited to
payments received from Citicorp on the related Subordinated Debt Securities. See
"Description of the Subordinated Debt Securities." The payment of distributions
out of moneys held by each Trust is guaranteed by Citicorp on a subordinated
basis as and to the extent set forth under "Description of the Guarantees." The
Guarantees cover distributions and other payments on the Capital Securities only
if and to the extent Citicorp has made a payment to the applicable Trust of
interest or principal on the Subordinated Debt Securities deposited in such
Trust as trust assets. The Guarantees, when taken together with Citicorp's
obligations under the Subordinated Debt Securities, the Indenture and the
Declarations, including its obligation to pay costs, expenses and certain
liabilities of the Trusts, constitutes a full and unconditional guarantee on a
subordinated basis of amounts due on the Capital Securities.
The Subordinated Debt Securities of all series will mature on May 15, 2027,
which maturity may be shortened to a date not earlier than May 15, 2002 or
extended to a date not later than February 15, 2046, as described herein.
Moreover, the Subordinated Debt Securities of each series are redeemable, in
whole or in part, at the option of Citicorp, at any time on or after May 15,
2002 or prior to May 15, 2002, in certain circumstances upon the occurrence of a
Tax Event or a Regulatory Capital Event. See "Description of the Subordinated
Debt Securities." Upon the repayment of the Subordinated Debt Securities held by
such Trust, whether at maturity or upon redemption, the proceeds from such
repayment or payment shall simultaneously be applied to redeem Trust Securities
of such Trust having an aggregate liquidation amount equal to the aggregate
principal amount of the Subordinated Debt Securities so repaid or redeemed at
the Redemption Price; provided, that the holders of Trust Securities shall be
given not less than 30 nor more than 60 days' notice of such redemption. See
"Description of the Subordinated Debt Securities -- Optional Redemption." In the
event that fewer than all of the outstanding Capital Securities of a Trust are
to be redeemed, the Capital Securities will be redeemed by such Trust as
described under "Description of Capital Securities -- Book-Entry; Only Issuance
- -- The Depository Trust Company." Prior to any such redemption, all required
regulatory approvals will be obtained.
Citicorp will have the right upon the occurrence of a Tax Event or a
Regulatory Capital Event to liquidate any Trust and cause the Subordinated Debt
Securities held by such Trust to be distributed to the holders of the Trust
Securities. If the Subordinated Debt Securities held by a Trust are distributed
to the holders of the Capital Securities of such Trust, Citicorp will use its
best efforts to have the Subordinated Debt Securities listed on the NYSE or on
such other exchange as the Capital Securities of such Trust are then listed. See
"Description of the Capital Securities -- Tax Event Redemption or Distribution",
"--Regulatory Capital Event Redemption or Distribution" and "Description of the
Subordinated Debt Securities."
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Each series of Subordinated Debt Securities will be issued pursuant to an
Indenture, dated as of December 17, 1996 (the "Base Indenture"), between
Citicorp and Wilmington Trust Company as Trustee (the "Debt Trustee"), as
supplemented by a Supplemental Indenture (the Base Indenture, as so supplemented
for such series, is herein referred to as the "Indenture"). See "Description of
the Subordinated Debt Securities." The Subordinated Debt Securities will be
issued in multiple series. Citicorp will issue a different series of
Subordinated Debt Securities to each Trust. Each series of Subordinated Debt
Securities will bear interest from the date of issuance at a fixed rate per
annum equal to the distribution rate on the Trust Securities issued by the Trust
to which such series is issued. Interest will be payable quarterly in arrears on
February 15, May 15, August 15 and November 15 of each year, commencing on May
15, 1997; provided that, as described above, so long as Citicorp shall not be in
default in the payment of interest on a series of Subordinated Debt Securities,
Citicorp shall have the right to extend the interest payment period of such
series from time to time for a period not exceeding 20 consecutive quarterly
periods, provided that an Extension Period may not extend beyond the Maturity
Date of the Subordinated Debt Securities. Citicorp has no current intention of
exercising its right to extend an interest payment period. However, should
Citicorp determine to exercise such right in the future, the market price of the
Capital Securities of the Trust holding such series of Subordinated Debt
Securities is likely to be affected. See "Risk Factors and Special
Considerations Relating to the Offers" and "Description of the Subordinated Debt
Securities -- Option to Extend Interest Payment Period."
The obligations of Citicorp under the Subordinated Debt Securities are
subordinate and junior in right of payment to all present and future Senior
Indebtedness of Citicorp. No payment may be made of the principal of (including
redemption payments) or, premium, if any, or interest on the Subordinated Debt
Securities at any time when (i) there is a default on any payment in respect of
any Senior Indebtedness, or (ii) any event of default with respect to any Senior
Indebtedness has occurred and is continuing, permitting the holders of such
Senior Indebtedness (or a trustee on behalf of the holders thereof) to
accelerate the maturity thereof or if any judicial proceeding shall be pending
with respect to any such default. In addition, because Citicorp is a holding
company, its rights and the rights of its creditors, including holders of the
Subordinated Debt Securities, to participate in the assets of any subsidiary
upon the latter's liquidation or recapitalization will be subject to the prior
claims of the subsidiary's creditors, except to the extent that Citicorp may
itself be a creditor with recognized claims against the subsidiary. There are no
terms in the Capital Securities, the Subordinated Debt Securities or the
Guarantees that limit Citicorp's ability to incur additional indebtedness,
including indebtedness which ranks senior to the Subordinated Debt Securities
and the Guarantee. See "Description of the Guarantees -- Status of the
Guarantees" and "Description of the Subordinated Debt Securities --
Subordination."
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The exchange of Depositary Shares for Capital Securities pursuant to each
Offer will be a taxable event. Gain or loss generally will be recognized in an
amount equal to the difference between the fair market value on the applicable
Expiration Date of the Capital Securities received in the exchange and the
exchanging holder's tax basis in the Related Depositary Shares surrendered. It
is possible that, in certain circumstances, the issue price of the Capital
Securities (their fair market value on the Expiration Date) may exceed their
principal amount, in which case a United States holder generally may elect to
amortize such premium over the term of the Capital Securities. Because the fair
market value of the Capital Securities will not be known until the
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Expiration Date, it is not possible, as of the date of this Prospectus, to
determine whether any such premium will exist as of the Expiration Date.
Furthermore, it is possible that the stated redemption price at maturity of the
Capital Securities (which for this purpose includes the Additional Distribution)
may exceed their issue price by more than a specified de minimus amount, in
which case the Capital Securities would be considered issued with OID. While
Citicorp believes it is unlikely that the stated redemption price at maturity of
the Capital Securities will exceed their issue price by more than a de minimus
amount, because the fair market value of the Capital Securities will not be
known until the Expiration Date, it is not possible, as of the date of this
Prospectus, to determine whether the Capital Securities will be issued with more
than a de minimus amount of OID. Holders of Depositary Shares who will actually
or constructively own shares of any class of Citicorp stock following the
exchange are advised to consult their tax advisors concerning the possibility
that receipt of the Capital Securities will be treated as a dividend, which will
be taxable as ordinary income to the Holder in an amount equal to the value of
the Capital Securities received (rather than capital gain or loss in an amount
equal to the difference between the issue price of the Capital Securities and
the Holder's basis in his or her Depositary Shares). See "United States Federal
Income Taxation -- Exchange of Depositary Shares for Capital Securities."
Assuming full compliance with the terms of the applicable Indenture and the
applicable Declaration, each Trust will be classified for United States federal
income tax purposes as a grantor trust and not as an association taxable as a
corporation. Accordingly, for United States federal income tax purposes, each
Holder of Capital Securities generally will be considered the owner of an
undivided interest in the Subordinated Debt Securities held by such Trust, and
each Holder will be required to include in its gross income interest and
original issue discount, if any, accrued with respect to its allocable share of
such Subordinated Debt Securities.
Unlike dividends paid on Depositary Shares, distributions made on the
Capital Securities are not eligible for the dividends received deduction for
corporate holders.
ACCOUNTING FOR EXCHANGE
The refinancing of the Preferred Stock underlying the Depositary Shares
with the respective Capital Securities will decrease Citicorp's stockholders'
equity in the amount of the fair market value of the Capital Securities that are
exchanged. Additionally, earnings applicable to common stockholders used in the
calculation of earnings per share will decrease by the excess of the fair market
value of the applicable Capital Securities over the carrying value of the
related Preferred Stock at the applicable Expiration Date. The financial
statements of the Trusts will be consolidated into Citicorp's consolidated
financial statements, with the Capital Securities included in Citicorp's balance
sheet as a component of Long-Term Debt. The financial statement footnotes of
Citicorp will reflect that the sole assets of the Trusts will be the
Subordinated Debt Securities. See "Capitalization of Citicorp" and "Accounting
Treatment."
EXCHANGE AGENT AND INFORMATION AGENT
Citibank has been appointed as Exchange Agent in connection with the
Offers. Questions and requests for assistance, requests for additional copies of
this Prospectus or a Letter of Transmittal and requests for Notices of
Guaranteed Delivery should be directed to Georgeson &
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Company Inc., which has been retained by Citicorp and the Trusts to act as
Information Agent for the Offers. The addresses and telephone numbers of the
Exchange Agent and the Information Agent are set forth in "The Offers-- Exchange
Agent and Information Agent" and on the outside back cover of this Prospectus.
DEALER MANAGERS
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Smith Barney Inc. and
Prudential Securities Incorporated have been retained as Dealer Managers in
connection with the Offer. For information regarding fees payable to the Dealer
Managers and Soliciting Dealers (as defined herein), see "The Offers -- Dealer
Managers; Soliciting Dealers."
RISK FACTORS AND SPECIAL CONSIDERATIONS RELATING TO THE OFFERS
Prospective exchanging holders of Depositary Shares who plan to participate
in an Offer should carefully consider, in addition to other information set
forth elsewhere in this Prospectus, the following:
EXCHANGE OF DEPOSITARY SHARES FOR CAPITAL SECURITIES IS A TAXABLE EVENT
The exchange of Depositary Shares for Capital Securities pursuant to an
Offer will be a taxable event. Generally, gain or loss will be recognized in an
amount equal to the difference between the fair market value on the applicable
Expiration Date of the holder's pro rata share of the related Subordinated Debt
Securities represented by the Capital Securities received in the exchange and
the exchanging holder's tax basis in the Related Depositary Shares exchanged
therefor. The receipt of Capital Securities by holders who will actually or
constructively own shares of any class of Citicorp stock following the exchange
may, in certain circumstances, be treated as a dividend for tax purposes, which
will be taxable as ordinary income to the holder in an amount equal to the value
of the Capital Securities received in the exchange. See "United States Federal
Income Taxation--Exchange of Depositary Shares for Capital Securities." ALL
HOLDERS OF DEPOSITARY SHARES ARE ADVISED TO CONSULT THEIR TAX ADVISORS REGARDING
THE UNITED STATES FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE
EXCHANGE OF DEPOSITARY SHARES AND THE ISSUANCE OF CAPITAL SECURITIES.
See "Price Range of Depositary Shares."
CORPORATE HOLDERS OF CAPITAL SECURITIES NOT ENTITLED TO DIVIDENDS RECEIVED
DEDUCTION
Unlike dividends paid on Depositary Shares, distributions on the Capital
Securities are not eligible for the dividends received deduction for corporate
holders.
RANKING OF SUBORDINATE OBLIGATIONS UNDER THE SUBORDINATED DEBT SECURITIES AND
GUARANTEES
The obligations of Citicorp under the Subordinated Debt Securities are
subordinate and junior in right of payment to all present and future Senior
Indebtedness of Citicorp, including all outstanding subordinated debt securities
(other than those denominated as its Junior Subordinated Deferrable Interest
Debentures) issued by Citicorp. Citicorp's obligations under the Guarantees are
subordinate and junior in right of payment to all liabilities of Citicorp and
rank pari passu with
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the most senior preferred stock issued from time to time, if any, by Citicorp
and with any other guarantee by Citicorp in respect of any preferred stock or
equity interest of any affiliate. There are no terms in the Capital Securities,
the Subordinated Debt Securities or the Guarantees that limit Citicorp's ability
to incur additional indebtedness, including indebtedness that ranks senior to
the Subordinated Debt Securities and the Guarantees. See "Description of the
Guarantees -- Status of the Guarantees" and "Description of the Subordinated
Debt Securities -- Subordination."
RIGHTS UNDER THE GUARANTEES
If Citicorp were to default on its obligation to pay amounts payable on the
Subordinated Debt Securities or its other payment obligations to a Trust, such
Trust would lack available funds for the payment of distributions or amounts
payable on redemption of its Capital Securities or otherwise, and, in such
event, holders of the affected Capital Securities would not be able to rely upon
the related Guarantee for payment of such amounts. Instead, holders of the
affected Capital Securities would rely on the enforcement (i) by the
Institutional Trustee (as defined herein) of its rights as registered holder of
Subordinated Debt Securities against Citicorp pursuant to the terms of such
Subordinated Debt Securities or (ii) by such holder of its right against
Citicorp to enforce payments on the Subordinated Debt Securities. See
"Description of the Guarantees" and "Description of the Subordinated Debt
Securities."
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Declaration Event of Default occurs and is continuing, the holders of
affected Capital Securities would rely on the enforcement by the Institutional
Trustee of its rights as a holder of the Subordinated Debt Securities against
Citicorp. In addition, the holders of a majority in liquidation amount of the
affected Capital Securities will have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Institutional
Trustee or to direct the exercise of any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee to exercise the remedies available to it as a holder of
the Subordinated Debt Securities. If the Institutional Trustee fails to enforce
its rights under the Subordinated Debt Securities, a holder of affected Capital
Securities may institute a legal proceeding directly against Citicorp to enforce
the Institutional Trustee's rights under the Subordinated Debt Securities
without first instituting any legal proceeding against the Institutional Trustee
or any other person or entity. Notwithstanding the foregoing, if a Declaration
Event of Default has occurred and is continuing and such event is attributable
to the failure of Citicorp to pay interest or principal on the Subordinated Debt
Securities on the date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), then a holder of affected
Capital Securities may directly institute a Direct Action for enforcement of
payment to such holder of the principal of or interest on the Subordinated Debt
Securities having a principal amount equal to the aggregate liquidation amount
of the Capital Securities of such holder on or after the respective due date
specified in the Subordinated Debt Securities. In connection with such Direct
Action, Citicorp will be subrogated to the rights of such holder of Capital
Securities under the Declaration to the extent of any payment made by Citicorp
to such holder of Capital Securities in such Direct Action. The holders of
Capital Securities will not be able to exercise directly any other remedy
available to the holders of the Subordinated Debt Securities. See "Description
of the Capital Securities -- Declaration Events of Default."
OPTION TO EXTEND INTEREST PAYMENT PERIOD
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Citicorp has the right under the Indentures, so long as no Indenture Event
of Default shall have occurred and be continuing, to defer payments of interest
on any series of Subordinated Debt Securities by extending the interest payment
period at any time, and from time to time, on such Subordinated Debt Securities.
As a consequence of such an extension, distributions on the Capital Securities
of the Trust holding such Subordinated Debt Securities would be deferred (but
would continue to accrue, despite such deferral, with interest thereon
compounded quarterly) by the Trust during any such Extension Period. Such right
to extend the interest payment period for the Subordinated Debt Securities is
limited to a period not exceeding 20 consecutive quarterly interest periods.
Prior to the termination of any such Extension Period, Citicorp may further
extend the interest payment period; provided that such Extension Period,
together with all such previous and further extensions thereof, may not exceed
20 consecutive quarterly interest periods or extend beyond the maturity of the
Subordinated Debt Securities. Upon the termination of any Extension Period and
the payment of all amounts then due, Citicorp may commence a new Extension
Period, subject to the above requirements. See "Description of the Capital
Securities -- Distributions" and "Description of the Subordinated Debt
Securities -- Option to Extend Interest Payment Period."
Should Citicorp exercise its right to defer payments of interest by
extending the interest payment period, each Holder of affected Capital
Securities will be required to accrue income (as original issue discount) in
respect of the deferred interest allocable to its Capital Securities for United
States federal income tax purposes, even though such deferred interest is not
distributed to holders of Capital Securities. As a result, each such Holder of
Capital Securities will recognize income for United States federal income tax
purposes in advance of the receipt of cash and will not receive the cash from
the Trust related to such income if such Holder disposes of the Capital
Securities prior to the record date for the date on which distributions of such
amounts are made. Citicorp has no current intention of exercising its right to
defer payments of interest by extending the interest payment period on the
Subordinated Debt Securities. However, should Citicorp determine to exercise
such right in the future, the market price of the affected Capital Securities is
likely to be affected. A holder that disposes of its Capital Securities during
an Extension Period, therefore, might not receive the same return on its
investment as a holder that continues to hold its Capital Securities. In
addition, as a result of the existence of Citicorp's right to defer interest
payments, the market price of the affected Capital Securities (which represent
undivided beneficial interests in the Subordinated Debt Securities) may be more
volatile than other securities that do not grant such rights to the issuer. See
"United States Federal Income Taxation -- Interest and Original Issue Discount."
TAX EVENT OR REGULATORY CAPITAL EVENT REDEMPTION OR DISTRIBUTION
Upon the occurrence of a Tax Event or a Regulatory Capital Event, a Trust
may be dissolved, with the result that the Subordinated Debt Securities held by
such Trust would be distributed to the Holders of its Trust Securities in
connection with the liquidation of the Trust. In certain circumstances, Citicorp
will have the right to redeem the Subordinated Debt Securities in lieu of a
distribution of the Subordinated Debt Securities by the Trust. If Subordinated
Debt Securities are redeemed, the Trust holding such Subordinated Debt
Securities will redeem an equivalent amount of Trust Securities. See
"Description of the Capital Securities -- Tax Event Redemption or Distribution"
and "--Regulatory Capital Event Redemption or Distribution."
Under current United States federal income tax law, a distribution of
Subordinated Debt Securities upon the dissolution of the Trust would not be a
taxable event to Holders of the Capital Securities, but a dissolution of the
Trust in which Holders of the Capital Securities receive cash would be a taxable
event to such Holders. See "United States Federal Income Taxation -- Receipt of
Subordinated Debt Securities or Cash Upon Liquidation of the Trust."
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Because holders of Capital Securities may receive Subordinated Debt
Securities upon the occurrence of a Tax Event or a Regulatory Capital Event,
prospective purchasers of Capital Securities are also making an investment
decision with regard to the Subordinated Debt Securities and should carefully
review all the information regarding the Subordinated Debt Securities contained
herein and in the accompanying Prospectus. See "Description of the Capital
Securities -- Tax Event Redemption or Distribution" and "--Regulatory Capital
Event Redemption or Distribution" and "Description of the Subordinated Debt
Securities."
POSSIBLE TAX CONSEQUENCES OF SALES OF CAPITAL SECURITIES BETWEEN RECORD DATES
The Capital Securities may trade at a price that does not fully reflect the
value of any accrued but unpaid interest with respect to the underlying
Subordinated Debt Securities. If Citicorp exercises its right to defer payments
of interest, a Holder that disposes of Capital Securities between record dates
for payments of distributions thereon will be required to include any accrued
but unpaid interest on the related Subordinated Debt Securities through the date
of disposition in income as ordinary income and add such amount to the Holder's
adjusted tax basis in the pro rata share of the underlying Subordinated Debt
Securities deemed disposed of. To the extent the selling price is less than the
holder's adjusted tax basis (which will include all accrued but unpaid
interest), a holder will recognize a capital loss. Subject to certain limited
exceptions, capital losses cannot be applied to offset ordinary income for
United States federal income tax purposes. See "United States Federal Income
Taxation -- Interest and Original Issue Discount" and "-- Sales of Capital
Securities."
OPTIONAL REDEMPTION OF THE SUBORDINATED DEBT SECURITIES
Citicorp will have the right to redeem the Subordinated Debt Securities, in
whole or in part, from time to time, on or after May 15, 2002 and earlier in
certain circumstances upon the occurrence of a Tax Event or a Regulatory Capital
Event. Prior to any such optional redemption, Citicorp will obtain all required
regulatory approvals. Upon any such redemption, each Trust holding the
Subordinated Debt Securities so redeemed will redeem an equivalent amount of its
Trust Securities.
OPTION TO SHORTEN OR EXTEND MATURITY DATE
Citicorp will have the right at any time to shorten the maturity of any
series of Subordinated Debt Securities to a date not earlier than May 15, 2002.
The exercise of such right is subject to obtaining of any required regulatory
approvals.
Citicorp will also have the right to extend the maturity of any series of
Subordinated Debt Securities to a date no later than February 15, 2046, so long
as at the time such election is made and at the time such extension commences
(i) Citicorp is not in bankruptcy, otherwise insolvent or in liquidation, (ii)
Citicorp is not in default in the payment of any interest or principal on such
series of Subordinated Debt Securities, (iii) the related Trust is not in
arrears on payments of distributions on its Capital Securities and no deferred
distributions on the Capital Securities are accrued and unpaid and (iv) such
series of Subordinated Debt Securities, or, if such Capital Securities are
rated, the Capital Securities, are rated at least BBB- by Standard & Poor's
Ratings Services, at least Baa3 by Moody's Investors Service, Inc. or at least
the equivalent by any other nationally recognized statistical rating
organization. In the event that Citicorp elects to shorten or extend the
maturity date of any series of Subordinated Debt Securities, it shall give
notice to the Debt Trustee, and the Debt Trustee
31
<PAGE>
shall give notice of such shortening or extension to the holders of such
Subordinated Debt Securities no more than 60 and no less than 30 days prior to
the effectiveness thereof.
LIMITED VOTING RIGHTS
Holders of Capital Securities will have limited voting rights and generally
will not be entitled to vote to appoint, remove or replace, or to increase or
decrease the number of, the Trustees of the related Trust. See "Description of
the Capital Securities-Voting Rights." In addition, holders of Capital
Securities will not have the voting rights possessed by holders of Preferred
Stock. See "Comparison of Capital Securities and Depositary Shares - Voting
Rights/Enforcement" and "Description of the Preferred Stock and Depositary
Shares."
CONSEQUENCES OF HIGHLY LEVERAGED TRANSACTION
The Indentures do not contain provisions that afford holders of the
Subordinated Debt Securities protection in the event of a highly leveraged
transaction, including a change of control, or other similar transactions
involving Citicorp that may adversely affect such holders. See "Description of
the Subordinated Debt Securities-General."
LACK OF ESTABLISHED TRADING MARKET FOR CAPITAL SECURITIES
The Capital Securities constitute a new issue of securities of each Trust
with no established trading market. While application will be made to list the
Capital Securities of each Trust on the NYSE, there can be no assurance that an
active market for the Capital Securities will develop or be sustained in the
future on such exchange. Although the Dealer Managers have indicated to Citicorp
and the Trusts that they intend to make a market in the Capital Securities of
each Trust following the applicable Expiration Date, as permitted by applicable
laws and regulations prior to the commencement of trading on the NYSE, they are
not obligated to do so and may discontinue any such market-making at any time
without notice. In addition, the liquidity of the Capital Securities of each
Trust will be affected by the number of Related Depositary Shares exchanged in
the related Offer. Accordingly, no assurance can be given as to the liquidity
of, or trading markets for, the Capital Securities. In order to satisfy the NYSE
listing requirements, acceptance of Depositary Shares validly tendered in each
Offer is subject to the Minimum Distribution Condition which condition may not
be waived by Citicorp or any Trust. See "Listing and Trading of Capital
Securities and Depositary Shares."
REDUCED TRADING MARKET FOR DEPOSITARY SHARES
To the extent Depositary Shares for a Series of Preferred Stock are
tendered and accepted in an Offer, the liquidity and trading market for the
Depositary Shares of such Series remaining outstanding following such Offer, and
the terms upon which such Depositary Shares could be sold, could be adversely
affected. In addition, if an Offer is substantially subscribed, there would be a
significant risk that round lot holdings of the Related Depositary Shares
outstanding following the Offer would be limited. Further, following the
applicable Expiration Dates, and in accordance with and subject to applicable
law, Citicorp may from time to time acquire Depositary Shares in the open
market, by tender offer, subsequent exchange offer, redemption of the underlying
Preferred Stock or otherwise. To the extent that any such acquisition of
Depositary Shares causes the number of outstanding Depositary Shares for any
Series of Preferred Stock to be less than 100,000, the NYSE
32
<PAGE>
may delist such Depositary Shares from the NYSE and the trading market for such
outstanding Depositary Shares for such Series of Preferred Stock could be
adversely affected. Citicorp's decision to make such acquisitions is dependent
on many factors, including market conditions in effect at the time of any
contemplated acquisition. Accordingly, Citicorp cannot predict whether and to
what extent it will acquire any additional Depositary Shares and the
consideration to be paid therefor. See "Listing and Trading of Capital
Securities and Depositary Shares." Citicorp also has the right to redeem the
Series of Preferred Stock, in whole or in part, on or after specific dates. See
"Description of the Preferred Stock and Depositary Shares."
COMPARISON OF CAPITAL SECURITIES AND DEPOSITARY SHARES
The following is a brief summary of certain terms of the Capital Securities
and the Depositary Shares. For a more complete description of the Capital
Securities, see "Description of the Capital Securities." For a description of
the Subordinated Debt Securities which will be deposited in each Trust as trust
assets and will represent the sole source for the payment of distributions and
other payments on the Capital Securities, see "Description of the Subordinated
Debt Securities." For a description of the Depositary Shares, see "Description
of the Preferred Stock and Depositary Shares."
<TABLE>
<CAPTION>
Depositary Shares/Preferred
Capital Securities Stock
------------------ ---------------------------
<S> <C> <C>
Issuer: A Trust. Payment of distributions Citicorp.
and on liquidation or redemption is
guaranteed on a subordinated
basis, as and to the extent
described herein, by Citicorp.
</TABLE>
33
<PAGE>
<TABLE>
<CAPTION>
Depositary Shares/Preferred
Capital Securities Stock
------------------ ---------------------------
<S> <C> <C>
Distribution/Dividend Rate Distributions, at the per annum Dividends payable, at the per
rate specified below, payable in annum rate specified below, on
arrears on February 15, May 15, each Series of Preferred Stock on
August 15 and November 15 of February 15, May 15, August 15
each year, commencing May 15, and November 15 of each year, in
1997, from and including the each case out of funds legally
applicable Expiration Date, but available therefor, when, as and if
only if and to the extent that declared by the Citicorp Board.
interest payments are made in Except in the case of the Series 22
respect of the Subordinated Debt Preferred Stock, dividends are
Securities held by the Trust. non-cumulative. In the case of the
Series 22 Preferred Stock only,
Citicorp Capital X:___% dividends accrue whether or not
Citicorp has earnings, whether or
Citicorp Capital XI:___% not there are funds legally
available for the payment of such
Citicorp Capital XII:___% dividends and whether or not such
dividends are declared. Citicorp
Citicorp Capital XIII:___% has made each quarterly dividend
payment with respect to the
Citicorp Capital XIV:___% Depositary Shares on the
scheduled dividend payment date.
In addition, holders of the Capital
Securities will be entitled to an Dividend Rate
additional cash distribution at the -------------
rates specified below from
February 15, 1997 through the Series 16: 8.00%
applicable Expiration Date in lieu Series 17: 7.50%
of dividends accumulating from Series 20: 8.30%
February 15, 1997 on their Series 21: 8.50%
Depositary Shares accepted for Series 22: 7.75%
exchange, but only if and to the
extent that corresponding interest
payments are made on the
Subordinated Debt Securities held
by the Trusts. Such additional
distribution will be made on May
15, 1997 to the holders of Capital
Securities on the record date for
such distribution.
Citicorp Capital X: 8.00%
Citicorp Capital XI: 7.50%
Citicorp Capital XII: 8.30%
Citicorp Capital XIII: 8.50%
Citicorp Capital XIV: 7.75%
Interest Accrual During any Extension Period on Accrued but unpaid dividends do
the Subordinated Debt Securities, not bear interest.
distribution payments on the
Capital Securities will not be made
but would continue to accrue, and,
in the case of distributions in
arrears, would continue to bear
interest, compounded quarterly to
the extent permitted by applicable
law.
</TABLE>
34
<PAGE>
<TABLE>
<CAPTION>
Depositary Shares/Preferred
Capital Securities Stock
------------------ ---------------------------
<S> <C> <C>
Maturity/Mandatory and The Capital Securities will be No maturity or mandatory
Optional Redemption redeemed upon the maturity or redemption. The Depositary
earlier redemption of the related Shares representing each Series of
Subordinated Debt Securities, at Preferred Stock are redeemable at
the applicable Redemption Price, the option of Citicorp (a) on and
including any distributions after the optional redemption date
accrued as a result of Citicorp's specified below, in whole or in
election to defer payments of part, at a redemption price
interest on the Subordinated Debt equivalent to $25 per Depositary
Securities. The Subordinated Debt Share to be redeemed, plus
Securities are redeemable by accrued and unpaid dividends
Citicorp, in whole or in part, from thereon (whether or not declared)
time to time on or after May 15, (i) in the case of the Series 16, 17,
2002, or, prior to May 15, 2002, in 20 and 21 Preferred Stock, from
certain circumstances upon the the immediately preceding
occurrence of a Tax Event or dividend payment date to the date
Regulatory Capital Event, in each fixed for redemption and (ii) in the
case at the applicable Redemption case of the Series 22 Preferred
Price. In the event that Stock, to the date fixed for
Subordinated Debt Securities are redemption and (b) prior to such
redeemed or upon the repayment date, in whole but not in part, if the
of the Subordinated Debt holders of the applicable Series of
Securities upon maturity or Preferred Stock would be entitled
otherwise, the proceeds thereof to vote upon, or consent to, a
will be promptly applied to redeem merger or consolidation of
the Capital Securities and the Citicorp. Holders of Depositary
Common Securities. The Shares have no right to require
Subordinated Debt Securities Citicorp to redeem the Depositary
mature on May 15, 2027. See Shares.
"Description of the Capital
Securities--Mandatory Optional Redemption Date
Redemption" and "--Tax Event ------------------------
Redemption." Holders of Capital Series 16: June 1, 1998
Securities have no right to require Series 17: September 1, 1998
Citicorp to redeem the Capital Series 20: November 15, 1999
Securities at the option of the Series 21: February 15, 2000
holders. Series 22: May 15, 2000
</TABLE>
35
<PAGE>
<TABLE>
<CAPTION>
Depositary Shares/Preferred
Capital Securities Stock
------------------ ---------------------------
<S> <C> <C>
Subordination Subordinated to claims of creditors Subordinated to claims of creditors
of the Trust, if any. The Capital of Citicorp including the
Securities and the Common Subordinated Debt Securities, pari
Securities will have equivalent passu with Citicorp's other series
terms; provided that if a of preferred stock and senior to
Declaration Event of Default shares of Common Stock of
occurs and is continuing, the Citicorp.
holders of the Capital Securities
will have a priority over holders of
the Common Securities with
respect to payments in respect of
distributions and payments upon
liquidation, redemption or
otherwise.
Each Trust is not permitted to issue
any securities other than its Trust
Securities or to incur any
indebtedness.
The Subordinated Debt Securities will
rank subordinate and junior in right
of payment to all present and future
Senior Indebtedness of Citicorp, pari
passu with all Trade Credit of
Citicorp and senior to all capital
stock now or hereafter issued by
Citicorp and to any guarantee now or
hereafter entered into by Citicorp in
respect of any of its capital stock.
The Guarantees will rank subordinate
and junior in right of payment to all
other liabilities of Citicorp, pari
passu with the most senior Citicorp
preferred stock now or hereafter
issued, and senior to Citicorp Common
Stock.
</TABLE>
36
<PAGE>
<TABLE>
<CAPTION>
Depositary Shares/Preferred
Capital Securities Stock
------------------ ---------------------------
<S> <C> <C>
Listing Application will be made to list the The Depositary Shares for each
Capital Securities of each Trust on Series of Preferred Stock are listed
the NYSE under the following on the NYSE under the following
symbol: symbol:
Citicorp Capital X: CCI.L Series 16: CCI.E
Citicorp Capital XI: CCI.M Series 17: CCI.F
Citicorp Capital XII: CCI.N Series 20: CCI.I
Citicorp Capital XIII: CCI.O Series 21: CCI.J
Citicorp Capital XIV: CCI.P Series 22: CCI.K
In order to satisfy the NYSE listing
requirements, acceptance of
Depositary Shares for each Series of
Preferred Stock validly tendered in
the Offers is subject to the Minimum
Distribution Condition, which
condition may not be waived.
Dividends Received
Deduction Distributions on the Capital Dividends are eligible for the
Securities are not eligible for the dividends received deduction for
dividends received deduction for corporate holders.
corporate holders.
</TABLE>
37
<PAGE>
<TABLE>
<CAPTION>
Depositary Shares/Preferred
Capital Securities Stock
------------------ ---------------------------
<S> <C> <C>
Voting Rights/Enforcement Holders of Capital Securities have If dividends shall be in arrears for
no voting rights other than as such number of dividend periods,
provided under the Trust Act or whether or not consecutive, which
the Trust Indenture Act, except in shall in the aggregate contain not
the limited circumstances less than 540 days, the Citicorp
discussed below. The Institutional Board will be increased by two
Trustee has the power to exercise directors and holders of Preferred
all rights of each Trust under the Stock will have the right (together
Indenture with respect to the with holders of all other series or
related Subordinated Debt class of preferred stock entitled to
Securities and is also authorized to vote thereon) to elect two directors
enforce the related Guarantee on at the next annual meeting of the
behalf of holders of the Capital shareholders.
Securities. The Institutional
Trustee will request the direction
of the Holders of Trust Securities
with respect to any amendment,
modification or termination of the
Indenture requiring the consent of
the Institutional Trustee. If a
Trust's failure to make
distributions is a consequence of
Citicorp's exercise of its right to
extend the interest payment period
for its Subordinated Debt
Securities as described under
"Description of the Capital
Securities--Distributions," the
Institutional Trustee will have no
right to enforce the payment of
distributions until a Declaration
Event of Default shall have
occurred. Until such Declaration
Event of Default with respect to
the affected Capital Securities has
been cured, waived or otherwise
eliminated, the Institutional
Trustee will be deemed to be
acting solely on behalf of the
holders of such Capital Securities
and only the holders of such
Capital Securities will have the
right to direct the Institutional
Trustee with respect to certain
matters under the Declaration, and
therefore the Indenture.
</TABLE>
38
<PAGE>
If the Institutional Trustee fails to
enforce its rights under the related
Subordinated Debt Securities after a
holder of Capital Securities has made
a written request, such holder of
record of Capital Securities may
institute a legal proceeding against
Citicorp to enforce the Institutional
Trustee's rights under such
subordinated Debt Securities without
first instituting any legal
proceeding against the Institutional
Trustee or any other person or
entity. Notwithstanding the
foregoing, if a Declaration Event of
Default has occurred and is
continuing and such event is
attributable to the failure of
Citicorp to pay interest or principal
on the Subordinated Debt Securities
on the date such interest or
principal is otherwise payable (or in
the case of a redemption, the
redemption date), then a holder of
Capital Securities may institute a
Direct Action for enforcement of
payment to such holder directly of
the principal amount equal to the
aggregate liquidation amount of the
Capital Securities of such holder on
or after the respective due date
specified in the Subordinated Debt
Securities. See "Description of the
Capital Securities," "Description of
the Guarantees" and "Description of
the Subordinated Debt Securities."
39
<PAGE>
CITICORP
Citicorp, whose principal subsidiary is Citibank, is a holding company
incorporated under the laws of the State of Delaware on December 4, 1967. The
principal office of Citicorp is located at 399 Park Avenue, New York, New York
10043; its telephone number is (212) 559-1000. Through its subsidiaries and
affiliates, including Citibank, Citicorp is a global financial services
organization serving the financial needs of individuals, businesses, governments
and financial institutions in the United States and throughout the world.
HOLDING COMPANY
Citicorp is a legal entity separate and distinct from Citibank and its
other subsidiaries and affiliates. There are various legal limitations on the
extent to which Citicorp's bank subsidiaries may extend credit, pay dividends or
otherwise supply funds to Citicorp. The approval of the Office of the
Comptroller of the Currency is required if total dividends declared by a
national bank in any calendar year exceed net profits (as defined) for that year
combined with its retained net profits for the preceding two years. In addition,
dividends for such a bank may not be paid in excess of the bank's undivided
profits. State-chartered bank subsidiaries are subject to dividend limitations
imposed by applicable state law. In determining whether and to what extent to
pay dividends, each bank subsidiary must also consider the effect of dividend
payments on applicable risk-based capital and leverage ratio requirements as
well as policy statements of the federal regulatory agencies that indicate that
banking organizations should generally pay dividends out of current operating
earnings.
Citicorp also derives dividends from its non-bank subsidiaries. These
subsidiaries are not subject to regulatory restrictions on their payment of
dividends to Citicorp, except that the approval of the Office of Thrift
Supervision may be required if total dividends declared by a savings association
in any calendar year exceed amounts specified in that agency's regulations. In
addition, there are numerous governmental requirements and regulations that
affect the activities of Citicorp and its bank and non-bank subsidiaries.
Under longstanding policy of the FRB, a bank holding company is expected to
act as a source of financial strength for its subsidiary banks and to commit
resources to support such banks. As a result of that policy, Citicorp may be
required to commit resources to its subsidiary banks in circumstances where it
might not otherwise do so.
Because Citicorp is a holding company, its rights and the rights of its
creditors and stockholders, including the holders of the Subordinated Debt
Securities and the Guarantees, to participate in the assets of any subsidiary
upon the latter's liquidation or recapitalization will be subject to the prior
claims of the subsidiary's creditors, except to the extent that Citicorp may
itself be a creditor with recognized claims against the subsidiary.
40
<PAGE>
CITICORP SELECTED FINANCIAL DATA
The following table sets forth selected financial data for each of the
years in the five-year period ended December 31, 1996. These financial data are
qualified in their entirety by the detailed information and financial statements
included in the documents incorporated herein by reference; these selected
financial data are not covered by the Report of Independent Auditors
incorporated herein by reference. See "Incorporation of Certain Documents by
Reference".
<TABLE>
<CAPTION>
Years Ended December 31,
1996 1995 1994 1993 1992
------- ------- ------- ------- -------
(In millions, except per share amounts)
<S> <C> <C> <C> <C> <C>
Net Interest Revenue $10,940 $ 9,951 $ 8,911 $ 7,690 $ 7,456
Fees, Commissions and Other Revenue 9,256 8,727 7,837 8,385 8,165
------- ------- ------- ------- -------
Total Revenue 20,196 18,678 16,748 16,075 15,621
Provision for Credit Losses 1,926 1,991 1,881 2,600 4,146
Operating Expense 12,197 11,102 10,256 10,615 10,057
------- ------- ------- ------- -------
Income Before Taxes and Cumulative Effects of
Accounting Changes 6,073 5,585 4,611 2,860 1,418
Income Taxes 2,285 2,121 1,189 941 696
------- ------- ------- ------- -------
Income Before Cumulative Effects of Accounting Changes $ 3,788 $ 3,464 $ 3,422 $ 1,919 $ 722
Cumulative Effects of Accounting Changes(A) -- -- (56) 300 --
------- ------- ------- ------- -------
Net Income $ 3,788 $ 3,464 $ 3,366 $ 2,219 $ 722
======= ======= ======= ======= =======
Income Applicable to Common Stock $ 3,631 $ 3,126 $ 3,010 $ 1,900 $ 497
======= ======= ======= ======= =======
Earnings Per Share(B):
On Common and Common Equivalent Shares:
Income Before Cumulative Effects of Accounting Change $ 7.50 $ 7.21 $ 7.15 $ 3.82 $ 1.35
Cumulative Effects of Accounting Changes(A) -- -- (0.12) 0.68 $---
------- ------- ------- ------- -------
Net Income $ 7.50 $ 7.21 $ 7.03 $ 4.50 $ 1.35
Assuming Full Dilution:
Income Before Cumulative Effects of Accounting Change $ 7.42 $ 6.48 $ 6.40 $ 3.53 $ 1.35
Cumulative Effects of Accounting Changes(A) -- -- (0.11) 0.58 --
------- ------- ------- ------- -------
Net Income $ 7.42 $ 6.48 $ 6.29 $ 4.11 $ 1.35
======= ======= ======= ======= =======
Cash Dividends Declared per Common Share (C) $ 1.80 $ 1.20 $ .45 $--- $---
======= ======= ======= ======= =======
(IN BILLIONS)
Period-End Balances:
Total Loans, Net(D) $ 169.1 $ 160.3 $ 147.3 $ 134.6 $ 135.9
Total Assets(E) 281.0 256.9 250.5 216.6 213.7
Total Deposits 185.0 167.1 155.7 145.1 144.2
Long-Term Debt 18.9 18.5 17.9 18.2 20.2
Total Stockholders' Equity(F) 20.7 19.6 17.8 14.0 11.2
</TABLE>
(A) Refers to the adoption of SFAS No. 112, "Employers' Accounting for
Postemployment Benefits", effective January 1, 1994 and SFAS No. 109,
"Accounting for Income Taxes", effective January 1, 1993.
(B) Based on net income after deducting preferred stock dividends, except where
conversion is assumed, and, unless anti-dilutive, the after-tax dividend
equivalents on shares issuable under Citicorp's Executive Incentive
Compensation Plan.
(C) On October 15, 1991, Citicorp suspended the dividend on its common stock
and resumed paying dividends on April 18, 1994.
(D) Net of unearned income and allowance for credit losses.
(E) Reflects the adoption of FASB Interpretation No. 39, "Offsetting of Amounts
Related to Certain Contracts", effective January 1, 1994.
(F) Reflects the adoption of SFAS No. 115, "Accounting for Certain Investments
in Debt and Equity Securities", effective January 1, 1994.
41
<PAGE>
CAPITALIZATION OF CITICORP
The following table sets forth the consolidated capitalization of Citicorp
as of December 31, 1996 (and as adjusted to give effect to the issuance of the
maximum amounts of Subordinated Debt Securities and Capital Securities that may
be issued in the Offers and the retirement of the Preferred Stock underlying the
Maximum Number of Depositary Shares that may be accepted in the Offers).
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1996 1996
OUTSTANDING AS ADJUSTED
(IN MILLIONS)
<S> <C> <C>
Long-Term Debt:
Various Obligations with Original Maturities of One Year or More $18,550 $18,550
Guaranteed Preferred Beneficial Interests in Citicorp
Subordinated Debt (a) 300 $______
------- -------
Total Long-Term Debt $18,850 $______
Stockholders' Equity:
Preferred Stock $ 2,078 $______
Authorized Shares: 50,000,000
Issued Shares:
4,280,503 of $100 per share, 6,100,000 of $250 per share
(1,850,000 as adjusted) and 250,000 of $500 per share
Common Stock ($1.00 par value) 506 506
Authorized Shares: 800,000,000
Issued Shares: 506,298,235
Surplus 6,595 6,595
Retained Earnings 14,303
Net Unrealized Gains-Securities Available for Sale 676 676
Foreign Currency Translation (486) (486)
Common Stock in Treasury, at cost (2,950) (2,950)
Shares: 43,081,217
Total Stockholders' Equity $20,722 $______
------- -------
Total Capitalization $39,572 $______
======= =======
</TABLE>
- ----------
(a) The Guaranteed Preferred Beneficial Interests represent interests in
Citicorp Capital I, a trust whose sole asset is $309 million aggregate
principal amount of Citicorp's 7.933% Junior Subordinated Deferrable
Interest Debentures due 2027, and, with respect to the "As Adjusted"
column, interests in Citicorp Capital II, a trust whose sole asset is
$463.5 million aggregate principal amount of Citicorp's 8.015% Junior
Subordinated Deferrable Interest Debentures due 2027, and interests in the
Trusts, whose sole assets will be approximately $__million aggregate
principal amount of Citicorp's Junior Subordinated Deferrable Interest
Debentures due 2027 (assuming the Maximum Number of Related Depositary
Shares are tendered and accepted in each Offer).
CITICORP RATIOS OF INCOME TO FIXED CHARGES
For the fiscal years ended December 31, 1996, 1995, 1994, 1993 and 1992,
Citicorp's consolidated ratios of income to fixed charges, computed as set forth
below, were as follows:
42
<PAGE>
YEAR ENDED
DECEMBER 31,
1996 1995 1994 1993 1992
------------ ---- ---- ---- ----
Income to Fixed Charges:
Excluding Interest on Deposits.... 2.69 2.31 1.76 1.44 1.24
Including Interest on Deposits.... 1.48 1.42 1.31 1.18 1.09
For purposes of computing the consolidated ratio of income to fixed
charges, income represents net income, before extraordinary items and cumulative
effects of accounting changes, plus income taxes and fixed charges. Fixed
charges, excluding interest on deposits, represent interest expense (except
interest paid on deposits) and the interest factor included in rents. Fixed
charges, including interest on deposits, represent all interest expense and the
interest factor included in rents.
ACCOUNTING TREATMENT
The refinancing of the Preferred Stock underlying the Depositary Shares
with the respective Capital Securities will decrease Citicorp's stockholders'
equity in the amount of the fair market value of the Capital Securities
exchanged. Additionally, earnings applicable to common stockholders used in the
calculation of earnings per share will decrease by the excess of the fair market
value of the Capital Securities over the carrying value of the Preferred Stock
at the applicable Expiration Date.
The financial statements of the Trusts will be consolidated into
Citicorp's financial statements, with the Capital Securities issued by the
Trusts included in Citicorp's balance sheet as a component of Long-Term Debt.
The sole assets of the Trusts will be approximately $__million aggregate
principal amount of Junior Subordinated Deferrable Interest Debentures of
Citicorp due 2027 (assuming the Maximum Number of Related Depositary Shares are
tendered and accepted in each Offer).
All future reports of Citicorp filed under the Exchange Act will (i)
reflect the consolidation of the Trusts into Citicorp's consolidated financial
statements, with the $__million aggregate amount of Capital Securities included
in Citicorp's balance sheet as a component of Long-Term Debt, (ii) include in
the financial statement footnotes of Citicorp disclosure that the sole assets of
the wholly owned Trusts will be the aggregate principal amount of Junior
Subordinated Deferrable Interest Debentures of Citicorp due 2027 issued to such
Trusts and (iii) include in a footnote to the audited financial statements
disclosure that each Trust is wholly owned, that the sole assets of the Trusts
are the Subordinated Debt Securities (specifying as to each Trust the principal
amount, interest rate and maturity date of the Subordinated Debt Securities
held), and that the Guarantee, taken together with Citicorp's obligations under
the Subordinated Debt Securities, the Indenture and the Declaration provides a
full and unconditional guarantee on a subordinated basis by Citicorp of payments
due on the Capital Securities issued by each Trust.
THE TRUSTS
Each of the Trusts is a statutory business trust formed under Delaware law
pursuant to (i) a separate declaration of trust executed by Citicorp, as Sponsor
for such Trust and the Trustees of
43
<PAGE>
such Trust and (ii) the filing of a certificate of trust with the Secretary of
State of the State of Delaware. Each declaration will be amended and restated in
its entirety (each, as so amended and restated, a "Declaration") before the
issuance of the Capital Securities. Each Declaration will be qualified as an
indenture under the Trust Indenture Act. Upon issuance of a Trust's Capital
Securities, the holders thereof will own all of the Trust's Capital Securities.
See "Description of the Capital Securities -- Book-Entry Only Issuance -- The
Depository Trust Company." Citicorp will directly or indirectly acquire all of
the Common Securities of each Trust, which will have an aggregate liquidation
amount equal to approximately 3 percent of the total capital of the Trust. Each
Trust exists for the exclusive purposes of (i) issuing its Capital Securities
and Common Securities representing undivided beneficial interests in the assets
of such Trust, (ii) investing the gross proceeds of the Common Securities in
Subordinated Debt Securities and exchanging the Depositary Shares accepted in
its Offer for Subordinated Debt Securities and (iii) engaging in only those
other activities necessary or incidental thereto. The Common Securities will
rank pari passu, and payments will be made thereon pro rata, with the Capital
Securities, except that upon an event of default under the Declaration, the
rights of the holders of the Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the Capital Securities. Each Trust
has a term of approximately 55 years, but may earlier terminate as provided in
the Declaration.
Each Trust's business and affairs will be conducted by the Trustees
appointed by Citicorp, as the direct or indirect holder of all the Common
Securities. The holder of the Common Securities will be entitled to appoint,
remove or replace any of, or increase or reduce the number of, the Trustees of a
Trust. The duties and obligations of the Trustees shall be governed by the
Declaration of such Trust. Pursuant to the Declaration, the number of Trustees
of each Trust will initially be three. Two of the Trustees (the Regular
Trustees) will be persons who are employees or officers of, or who are
affiliated with, Citicorp. The third Trustee (the Institutional Trustee), which
will be a financial institution that is unaffiliated with Citicorp, will serve
as institutional trustee under each Declaration and as indenture trustee for the
purposes of compliance with the provisions of the Trust Indenture Act.
Initially, Wilmington Trust Company will be the Institutional Trustee for each
Trust, until removed or replaced by the holder of the Common Securities. For
purposes of compliance with the provisions of the Trust Indenture Act,
Wilmington Trust Company will also act as Guarantee Trustee under the Guarantee
and as Debt Trustee under the Indenture for each Trust. Wilmington Trust Company
will also act as Delaware Trustee for each Trust under the Declarations for
purposes of compliance with the Trust Act.
The office of the Delaware Trustee for each Trust in the State of
Delaware, and its principal place of business, is Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890.
The Institutional Trustee will hold title to each Trust's Subordinated
Debt Securities for the benefit of the holders of the related Trust Securities
and will have the power to exercise all rights, powers and privileges under the
applicable Indenture as the holder of the Subordinated Debt Securities. In
addition, the Institutional Trustee will maintain exclusive control of the
Property Account for each Trust to hold all payments made in respect of the
applicable Subordinated Debt Securities for the benefit of the holders of the
related Trust Securities. The Institutional Trustee will make payments of
distributions and payments on liquidation, redemption and otherwise to the
holders of the Trust Securities out of funds from the applicable Property
Account. The Guarantee Trustee will hold the Guarantees for the benefit of the
holders of the Capital Securities of the respective Trusts. Citicorp, as the
direct or indirect holder of all the Common Securities, will have the right to
appoint, remove or replace any Trustee and to increase or decrease the number of
Trustees, subject
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to certain restrictions. Citicorp will pay all fees and expenses related to the
Trusts and the issuance of the Trust Securities. See "Description of the
Subordinated Debt Securities -- Miscellaneous."
The rights of the holders of the Capital Securities of each Trust,
including economic rights, rights to information and voting rights, are set
forth in the related Declaration, the Trust Act and the Trust Indenture Act. See
"Description of the Capital Securities."
THE OFFERS
PURPOSE OF THE OFFERS
The purpose of each Offer is to refinance Citicorp's obligations under
each Series of Preferred Stock underlying the Depositary Shares with the
Subordinated Debt Securities relating to the Capital Securities issued in
exchange for such Depositary Shares, and to achieve certain tax efficiencies,
while preserving Citicorp's flexibility with respect to future financings. This
refinancing will permit Citicorp to deduct interest payable on the Subordinated
Debt Securities for United States federal income tax purposes; dividends payable
with regard to the Preferred Stock are not deductible. Under current capital
adequacy guidelines of the FRB, this refinancing will also preserve unaffected
Citicorp's Tier 1 capital level.
All shares of Preferred Stock underlying Depositary Shares tendered and
accepted in the Offers will be retired and resume the status of authorized and
unissued shares of preferred stock.
GENERAL
PARTICIPATION IN EACH OFFER IS VOLUNTARY AND HOLDERS OF DEPOSITARY SHARES
SHOULD CAREFULLY CONSIDER WHETHER TO TENDER THEIR DEPOSITARY SHARES. NONE OF
CITICORP, THE BOARD OF DIRECTORS OF CITICORP, THE TRUSTEES NOR THE TRUSTS MAKES
ANY RECOMMENDATION TO HOLDERS AS TO WHETHER TO EXCHANGE OR REFRAIN FROM
EXCHANGING THEIR DEPOSITARY SHARES. HOLDERS OF DEPOSITARY SHARES ARE URGED TO
CONSULT THEIR FINANCIAL AND TAX ADVISORS IN MAKING THEIR DECISIONS ON WHAT
ACTION TO TAKE IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES. SEE "PRICE RANGE
OF DEPOSITARY SHARES."
The Depositary Shares are evidenced by depositary receipts (the
"Depositary Receipts"). See "Description of the Preferred Stock and Depositary
Shares." Unless the context requires otherwise, the term "Holder" with respect
to any Offer means (i) any person in whose name any Depositary Receipts are
registered on the books of Citicorp or (ii) any other person who has obtained a
properly completed stock power from the Holder or (iii) any person whose
Depositary Receipts are held of record by The Depository Trust Company or the
Philadelphia Depository Trust Company (each a "Depository Institution").
No tender of Depositary Shares held by any officer or director of Citicorp
or by any affiliate of Citicorp will be accepted except in accordance with the
terms of the related Offer, as set forth herein.
TERMS OF THE OFFERS
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Upon the terms and subject to the conditions set forth herein and in the
related Letter of Transmittal, each Trust will exchange its Capital Securities
for up to the Maximum Number of Related Depositary Shares not owned by Citicorp.
Each Offer will be effected on a basis of one Capital Security for each Related
Depositary Share validly tendered and accepted for exchange, as applicable. See
"---Procedures for Tendering". Upon the terms and subject to the conditions set
forth herein and in the related Letter of Transmittal, each Trust will accept up
to the Maximum Number of Related Depositary Shares validly tendered and not
withdrawn prior to the Expiration Date and, unless the Offer has been withdrawn
or terminated, will deliver its Capital Securities in exchange therefor to
tendering Holders of such Related Depositary Shares as promptly as practicable
following the applicable Expiration Date. If more than the Maximum Number of
Related Depositary Shares are validly tendered and not withdrawn on or prior to
the applicable Expiration Date, the applicable Trust will accept such Depositary
Shares for exchange on a pro rata basis as described below. Each Trust expressly
reserves the right, in its sole discretion, to delay acceptance for exchange of
Depositary Shares tendered under its Offer and the delivery of the Capital
Securities with respect to the Depositary Shares accepted for exchange (subject
to Rule 13e-4 and 14e-1 under the Exchange Act, which require that Citicorp and
the Trust consummate the Offer or return the Depositary Shares deposited by or
on behalf of the Holders thereof promptly after the termination or withdrawal of
the Offer ), or amend, withdraw or terminate the offer, at any time prior to the
Expiration Date for any of the reasons set forth under "-- Conditions to the
Offer" and "--Expiration Date; Extension; Amendments; Termination."
If more than the Maximum Number of Related Depositary Shares are validly
tendered to a Trust pursuant to an Offer prior to the applicable Expiration Date
and are not withdrawn, the applicable Trust will, upon the terms and subject to
the conditions of its Offer, accept such Depositary Shares for payment on a pro
rata basis, with adjustments to avoid purchases of fractional shares. Such
proration shall be based on the quotient of (i) the Maximum Number of Related
Depositary Shares for the Offer divided by (ii) the total number of such Related
Depositary Shares validly tendered pursuant to the Offer and not withdrawn. All
questions as to such proration will be determined by the applicable Trust, whose
determination will be final and binding. Delivery of Capital Securities in
exchange for Depositary Shares validly tendered and accepted in an Offer will be
made on a date determined by Citicorp after the results of the final proration
in respect of the Offer have been announced, in each case as promptly as
practicable after the expiration of such Offer.
Because of the difficulty of determining the number of Related Depositary
Shares validly tendered and not withdrawn, if proration is required, the Trust
would not expect to announce the final results of proration in respect of its
Offer until approximately seven NYSE trading days after the applicable
Expiration Date. Preliminary results of proration will be announced by press
release as promptly as practicable after the applicable Expiration Date. Holders
of Depositary Shares may obtain such preliminary information from the
Information Agent and may also be able to obtain such preliminary information
from their brokers.
In all cases, except to the extent waived by the relevant Trust, delivery
of Capital Securities issued with respect to the Depositary Shares accepted for
exchange pursuant to an Offer will be made only after timely receipt by the
Exchange Agent of Depositary Receipts for such Depositary Shares (or
confirmation of book-entry transfer thereof), a properly completed and duly
executed Letter of Transmittal and any other documents required thereby.
As of the date of this Prospectus, the number of outstanding Depositary
Shares for each Series of Preferred Stock not owned by Citicorp are as follows:
(i) Series 16 Preferred Stock,
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13,000,000 Depositary Shares, (ii) Series 17 Preferred Stock, 14,000,000
Depositary Shares, (iii) Series 20 Preferred Stock, 5,000,000 Depositary Shares,
(iv) Series 21 Preferred Stock, 6,000,000 Depositary Shares, and (v) Series 22
Preferred Stock, 5,000,000 Depositary Shares. This Prospectus, together with the
applicable Letter of Transmittal, is being sent to all registered Holders on or
about the date of this Prospectus. Each Trust shall be deemed to have accepted
validly tendered Depositary Shares (or defectively tendered Depositary Shares
with respect to which such Trust has waived such defect) when, as and if the
Trust has given oral or written notice thereof to the Exchange Agent. The
Exchange Agent will act as agent for the tendering Holders for the purpose of
receiving Depositary Shares from, and remitting the Capital Securities of the
applicable Trust to, tendering Holders who are participating in an Offer. Upon
the terms and subject to the conditions of each Offer, delivery of Capital
Securities to tendering Holders will be made as promptly as practicable
following the applicable Expiration Date.
If any tendered Depositary Receipts for Depositary Shares are not accepted
for exchange because of an invalid tender, the tender of Depositary Shares in
excess of the applicable Maximum Number and the pro rata acceptance thereof, the
occurrence of certain other events set forth herein or otherwise, unless
otherwise requested by the Holder under "Special Delivery Instructions" in the
Letter of Transmittal, such Depositary Shares will be returned, without expense,
to the tendering Holder thereof (or in the case of Depositary Shares tendered by
book-entry transfer into the Exchange Agent's account at a Depositary
Institution, such Depositary Shares will be credited to an account maintained at
the Depositary Institution designated by the participant therein who so
delivered such Depositary Shares), as promptly as practicable after the
Expiration Date or the withdrawal or termination of the Offer.
Holders of Depositary Shares will not have any appraisal or dissenters'
rights under the Delaware General Corporation Law in connection with any Offer.
Citicorp and the Trusts intend to conduct the Offers in accordance with the
applicable requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
Holders who tender Depositary Shares in an Offer will not be required to
pay brokerage commissions or fees or, subject to the instruction in the Letter
of Transmittal, transfer taxes with respect to the exchange of Depositary Shares
pursuant to the Offer. See "Fees and Expenses; Transfer Taxes."
CONDITIONS TO THE OFFERS
Notwithstanding any other provisions of an Offer, or any extension of an
Offer, a Trust will not be required to deliver its Capital Securities in respect
of any properly tendered Related Depositary Shares and may terminate its Offer
by oral or written notice to the Exchange Agent and the holders of the Related
Depositary Shares, or, at its option, may modify or otherwise amend the Offer
(other than with respect to the Minimum Distribution Condition) with respect to
the Depositary Shares if the condition in clause (a) below is not satisfied at
the Expiration Date or if any of the events specified in clauses (b) through (d)
occurs at or prior to the exchange date for the Depositary Shares:
(a) tenders by a sufficient number of holders of Depositary Shares
to satisfy the Minimum Distribution Condition for the Offer;
(b) any action has been taken or threatened, or any statute, rule
regulation, judgement, order, stay, decree or injunction has been
promulgated, enacted, entered ,
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enforced or deemed applicable to the Offer, by or before any court or
governmental regulatory or administrative agency or authority or tribunal,
domestic or foreign, which (i) challenges the making of the offer, or
might directly or indirectly prohibit, prevent, restrict or delay
consummation of the Offer, otherwise and adversely affects in any material
manner the Offer or (ii) could materially adversely affect the business
condition (financial or otherwise), income, operations, properties,
assets, liabilities, or prospects of Citicorp and its subsidiaries, taken
as a whole, or materially impair the contemplated benefits of the Offer to
Citicorp, including any such action, statute, rule, regulation, judgement,
order, stay, decree, or injunction which would constitute a Tax Event if
it occurred after the issuance of the Trust's Capital Securities;
(c) any event has occurred or is likely to occur affecting the
business or financial affairs of Citicorp that would or might prohibit,
prevent, restrict or delay consummation of the Offer or that will, or is
reasonably likely to, materially impair the contemplated benefits of the
Offer or might be material to Holders of Depositary Shares in deciding
whether to accept the Offer and
(d) Any of the following events shall have occurred (i) any general
suspension of or limitation on trading in securities on the NYSE or in the
over-the-counter market (whether or not mandatory), (ii) any significant
adverse change in the price of the Related Depositary Shares, (iii) a
material impairment in the trading market for debt or equity securities on
the NYSE or in the over-the counter market (whether or not mandatory ),
(iv) a declaration of a banking moratorium or any suspension of payments
in respect of banks by federal or state authorities in the United States
(whether or not mandatory), (v) a commencement of a war, armed hostilities
or other national or international crisis directly or indirectly relating
to the United States , (vi) any limitation (whether or not mandatory) by
any governmental authority on, or other event having a reasonable
likelihood of affecting, the extension of credit by banks or other lending
institutions in the United States or (vii) any significant adverse change
in United States securities or financial markets generally or in the case
of any of the foregoing existing at the time of the commencement of the
Offer, a material acceleration or worsening thereof.
The foregoing conditions are for the sole benefit of the Trusts and
Citicorp and, except for the Minimum Distribution Condition, may be waived by
the Trusts and Citicorp, in whole or in part, in their sole discretion. Any
determination made by Citicorp or the Trusts concerning an event, development or
circumstance described or referred to above will be final and binding on all
parties.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS; TERMINATION
Each Offer will expire on the applicable Expiration Date. Each Trust
expressly reserves the right, as to its Offer, in its sole discretion, subject
to applicable law, to (i) terminate the Offer, and not accept for exchange any
Related Depositary Shares and promptly return tendered Depository Shares upon
the failure of any of the conditions specified above in " ---Conditions to the
Offer," (ii) waive any conditions to the Offer (other than the Minimum
Distribution Condition) and accept up to the Maximum Number of Related
Depositary Shares previously tendered pursuant to the Offer, (iii) extend the
Expiration Date of the Offer and retain all Related Depositary Shares tendered
pursuant to the Offer until the Expiration Date, subject, however, to all
withdrawal rights of holders, see " -- Withdrawal of Tenders," (iv) amend the
terms of the Offer, (v) modify the amount or form of the consideration to be
paid pursuant to the Offer or (vi) terminate the Offer and not accept for
exchange
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the Related Depositary Shares at any time on or prior to the Expiration Date,
for any reason. Any amendment applicable to the Offer will apply to all
Depositary Shares tendered pursuant to the Offer. During any extension of the
Offer, all Depositary Shares previously tendered pursuant to the Offer and not
withdrawn will remain subject to the Offer.
If a Trust makes a material change in the terms of its Offer, the Trust
will extend the Offer. The minimum period for which the Offer must remain open
following material changes in the terms of the Offer or the information
concerning the Offer, other than a decrease in the number of Related Depositary
Shares sought for exchange or a change in the amount or form of consideration
offered to Holders of the Related Depositary Shares, will depend upon the facts
and circumstances, including the materiality of the change or information. With
respect to a decrease in the number of Related Depositary Shares sought in the
Offer or a change in the amount or form of consideration offered to Holders of
the Depositary Shares, if required, the Offer will remain open for a minimum of
ten (10) Business Days following public announcement of such change. In the case
of any amendment, withdrawal or termination of the Offer, a public announcement
will be issued no later than 9:00 a.m., New York City time, on the next business
day after the previously scheduled Expiration Date for the Offer. If a Trust
withdraws or terminates its Offer, it will give immediate notice to the Exchange
Agent, and all Depositary Shares theretofore tendered pursuant to its Offer will
be returned promptly to the tendering Holders thereof. See "--Withdrawal of
Tenders." In order to satisfy the NYSE listing requirements, acceptance of
Depositary Shares validly tendered in each Offer is subject to the Minimum
Distribution Condition, which condition may not be waived.
PROCEDURES FOR TENDERING
The tender of Depositary Shares by a Holder thereof pursuant to one of the
procedures set forth below will constitute an agreement between such Holder and
the related Trust in accordance with the terms and subject to the conditions set
forth herein and in the related Letter of Transmittal and each Trust's right to
terminate or withdraw its Offer at any time for any reason.
EACH HOLDER OF DEPOSITARY SHARES WISHING TO PARTICIPATE IN THE RELATED
OFFER MUST (1) PROPERLY COMPLETE AND SIGN THE LETTER OF TRANSMITTAL IN
ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN AND IN THE LETTER OF
TRANSMITTAL (EXCEPT WHEN AN AGENT'S MESSAGE IS APPROPRIATE AND UTILIZED),
TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES, AND DELIVER THE SAME TO THE
EXCHANGE AGENT AT ONE OF ITS ADDRESSES SET FORTH ON THE BACK COVER PAGE HEREOF
PRIOR TO THE EXPIRATION DATE AND EITHER (A) DEPOSITARY RECEIPTS FOR THE
DEPOSITARY SHARES TO BE TENDERED MUST BE RECEIVED BY THE EXCHANGE AGENT AT SUCH
ADDRESS OR (B) SUCH DEPOSITARY SHARES MUST BE TRANSFERRED PURSUANT TO THE
PROCEDURES FOR BOOK-ENTRY TRANSFER DESCRIBED BELOW AND A CONFIRMATION OF SUCH
BOOK-ENTRY TRANSFER MUST BE RECEIVED BY THE EXCHANGE AGENT, IN EACH CASE PRIOR
TO THE EXPIRATION DATE FOR THE OFFER, OR (2) COMPLY WITH THE GUARANTEED DELIVERY
PROCEDURE DESCRIBED BELOW. LETTERS OF TRANSMITTAL, DEPOSITARY RECEIPTS AND ANY
OTHER REQUIRED DOCUMENTS SHOULD BE SENT ONLY TO THE EXCHANGE AGENT, NOT TO ANY
TRUST, CITICORP, THE DEALER MANAGERS OR THE INFORMATION AGENT.
Special Procedures for Beneficial Owners. Any beneficial owner whose
Depositary Receipts for Depositary Shares are held by or registered in the name
of a broker, dealer, commercial bank,
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trust company or other nominee and who wishes to tender such Depositary Shares
should contact such entity promptly and instruct such entity to tender on such
beneficial owner's behalf. If such beneficial owner wishes to tender on its own
behalf, such owner must, prior to completing and executing the Letter of
Transmittal and delivering its Depositary Receipts, either make appropriate
arrangements to register ownership of the Depositary Receipts in such owner's
name or obtain a properly completed stock power from the nominee. The transfer
of registered ownership may take considerable time and may not be able to be
completed prior to the Expiration Date.
THE METHOD OF DELIVERY OF DEPOSITARY RECEIPTS AND ALL OTHER DOCUMENTS IS
AT THE ELECTION AND RISK OF THE HOLDER. IF SENT BY MAIL, IT IS RECOMMENDED THAT
(1) REGISTERED MAIL, RETURN RECEIPT REQUESTED, BE USED, (2) INSURANCE BE
OBTAINED AND (3) THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE APPLICABLE
EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE THE
EXPIRATION DATE.
Signature Guarantees. If tendered Depositary Receipts are registered in
the name of the signer of the Letter of Transmittal and the Capital Securities
to be issued in exchange therefor are to be issued (and any untendered
Depositary Receipts are to be reissued) in the name of the registered Holder,
the signature of such signer need not be guaranteed. If the tendered Depositary
Receipts are registered in the name of someone other than the signer of the
Letter Of Transmittal, or if Capital Securities issued in exchange therefor are
to be issued in the name of any person other than the signer of the Letter of
Transmittal, such tendered Depositary Receipts must be endorsed or accompanied
by written instruments of transfer in form satisfactory to the Trust and duly
executed by the registered Holder, and the signature on the endorsement or
instrument of transfer must be guaranteed by a financial institution (including
most banks, savings and loans associations and brokerage houses) that is a
participant in the Security Transfer Agents Medallion Program or the Stock
Exchange Medallion Program (any of the foregoing hereinafter referred to as an
"Eligible Institution"). If the Capital Securities and/or the Depositary
Receipts are not exchanged or are to be delivered to an address other than that
of the registered Holder appearing on the register for the Depositary Receipts,
the signature in the Letter of Transmittal must be guaranteed by an Eligible
Institution .
Book-Entry Transfer. The Trusts understand that the Exchange Agent has
established accounts with respect to the Depositary Shares at a Depository
Institution for the purpose of facilitating the Offers, and any financial
institution that is a participant in a Depository Institution's system may make
book-entry delivery of such Depositary Shares by causing the Depository
Institution to transfer such Depositary Shares into the Exchange Agent's account
with respect to the Depositary Shares in accordance with such Depository
Institution's Automated Tender Offer Program ("ATOP") procedures for such
book-entry transfers. However, the exchange for the Depositary Shares so
tendered will only be made after a timely confirmation (a "Book-Entry
Confirmation") of such book-entry transfer of Depositary Shares into the
Exchange Agent's account, timely receipt by the Exchange Agent of the related
Letter of Transmittal, or an Agent's Message (as such term is defined in the
next paragraph), and any other documents required by the Letter of Transmittal.
The term "Agent's Message" means a message, transmitted by a Depository
Institution and received by the Exchange Agent and forming a part of a
Book-Entry Confirmation, which states that such Depository Institution has
received an express acknowledgment from a participant tendering Depositary
Shares that is the subject of such Book-Entry Confirmation, that such
participant has received and agrees to be bound by the terms of the Letter of
Transmittal, and that the Trust may enforce such agreement against such
participant.
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Guaranteed Delivery. If Holder desires to participate in the Offer and
time will not permit a Letter of Transmittal or Depositary Shares for the
Related Depositary Shares being tendered to reach the Exchange Agent before the
Expiration Date for the relevant Offer or the procedure for book-entry transfer
cannot be completed on a timely basis, a tender may be effected if the Exchange
Agent has received at one of its addresses on the back cover page hereof prior
to the Expiration Date, a letter, telegram or facsimile transmission from an
Eligible Institution setting forth the name and address of the tendering Holder,
the name(s) in which the Depositary Receipts are registered and, if the
Depositary Shares are held in certificated form, the certificate number of the
Depositary Receipts to be tendered, and stating that the tender is being made
thereby and guaranteeing that within three NYSE trading days after the date of
execution of such letter, telegram or facsimile transmission by the Eligible
Institution, the Depositary Receipts in proper form for transfer, together with
a properly completed and duly executed Letter of Transmittal (and any other
required documents), or, in the case of a Depository Institution, an Agent's
Message, will be delivered by such Eligible Institution. Unless the Depositary
Receipts being tendered by the above-described method are deposited with the
Exchange Agent within the time period set forth above (accompanied or preceded
by a properly completed Letter of Transmittal or an Agent's Message) or, in the
case of a Depository Institution, in accordance with such Depositary
Institution's ATOP procedures (along with a Letter of Transmittal or Agent's
Message) is received, the Trust may, at its option, reject the tender. In
addition to the copy being transmitted herewith, copies of a Notice of
Guaranteed Delivery which may be used by Eligible Institutions for the purposes
described in this paragraph are available from the Exchange Agent and the
Information Agent.
Miscellaneous. All questions as to the validity, form, eligibility
(including time of receipt) and acceptance for exchange of any tender of
Depositary Shares will be determined by the applicable Trust, whose
determination will be final and binding. Each Trust reserves the absolute right
to reject any or all tenders not in proper form or the acceptance for exchange
of which may, in the opinion of the Trust's counsel, be unlawful. Each Trust
also reserves the absolute right to waive any defect or irregularity in the
tender of any Depositary Shares, and the Trust's interpretation of the terms and
conditions of such Offer (including the instructions in the applicable Letter of
Transmittal) will be final and binding. None of the Trusts, the Exchange Agent,
the Dealer Managers, the Information Agent or any other person will be under any
duty to give notification of any defects or irregularities in tenders or incur
any liability for failure to give any such notification.
Tenders of Depositary Shares involving any irregularities will not be
deemed to have been made until such irregularities have been cured or waived.
Depositary Receipts received by the Exchange Agent that are not validly tendered
and as to which the irregularities have not been cured or waived will be
returned by the Exchange Agent to the tendering Holder (or in the case of
Depositary Shares entered by book-entry transfer into the Exchange Agent's
account at a Depository Institution, such Depositary Shares will be credited to
an account maintained at the Depository Institution designated by the
participant therein who so delivered such Depositary Shares), unless otherwise
requested by the Holder in the Letter of Transmittal, as promptly as practicable
after the applicable Expiration Date or the withdrawal or termination of the
applicable Offer.
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LETTER OF TRANSMITTAL
Each Letter of Transmittal contains, among other things, the following
terms and conditions, which are part of the related Offer. The party tendering
the Depositary Receipts for exchange (the "Transferor") exchanges, assigns and
transfers the Depositary Receipts (and the underlying Depositary Shares) to the
applicable Trust, and irrevocably constitutes and appoints the Exchange Agent as
the Transferor's agent and attorney-in-fact to cause such Depositary Receipts
(and underlying Depositary Shares) to be assigned, transferred and exchanged.
The Transferor represents and warrants that it has full power and authority to
tender, exchange, assign and transfer such Depositary Receipts and the
underlying Preferred Stock and to acquire Capital Securities issuable upon the
exchange of such tendered Depositary Receipts and that, when such Transferor's
Depositary Receipts are accepted for exchange, the Trust accepting such
Depositary Receipts will acquire good and unencumbered title to the Depositary
Shares evidenced by such Depositary Receipts and the underlying Preferred Stock,
free and clear of all liens, restrictions, charges and encumbrances and not
subject to any adverse claim. The Transferor also warrants that it will, upon
request, execute and deliver any additional documents deemed by such Trust to be
necessary or desirable to complete the exchange, assignment and transfer of
tendered Depositary Receipts and the underlying Depositary Shares or transfer
ownership of such Depositary Receipts on the account books maintained by the
Depository Institution. All authority conferred by the Transferor will survive
the death, bankruptcy or incapacity of the Transferor and every obligation of
the Transferor shall be binding upon the heirs, legal representatives,
successors, assigns, executes and administrators of such Transferor.
WITHDRAWAL OF TENDERS
Tenders of Depositary Shares pursuant to an Offer may be withdrawn at any
time prior to the applicable Expiration Date and, unless accepted for exchange
by the applicable Trust, may be withdrawn at any time after the expiration of 40
Business Days from the date of this Prospectus.
To be effective, a written notice of withdrawal delivered by mail, hand
delivery or facsimile transmission must be timely received by the Exchange Agent
at one of its addresses set forth on the back cover page hereof. The method of
notification is at the risk and election of the Holder. Any such notice of
withdrawal must specify (i) the Holder named in the Letter of Transmittal as
having tendered Depositary Receipts to be withdrawn, (ii) if the Depositary
Shares are held in certificated form, the certificate numbers of the Depositary
Receipts in respect of such Depositary Shares to be withdrawn, (iii) that such
Holder is withdrawing his election to have such Depositary Shares exchanged and
(iv) the name of the registered Holder of the Depositary Receipts to be
withdrawn. In addition, the notice of withdrawal must be signed by the Holder in
the same manner as the original signature on the Letter of Transmittal
(including any required signature guarantees) or be accompanied by evidence
satisfactory to the Trust that the person withdrawing the tender has succeeded
to the beneficial ownership of the Depositary Shares being withdrawn. The
Exchange Agent will return the properly withdrawn Depositary Shares promptly
following receipt of notice of withdrawal. If Depositary Shares have been
tendered pursuant to the procedure for book-entry transfer, any notice of
withdrawal must specify the name and number of the account at the Depository
Institution to be credited with the withdrawn Depositary Shares and otherwise
comply with such Depository Institution procedures. All questions as to the
validity of notice of withdrawal, including time of receipt, will be determined
by the Trust, and such determination will be final and binding on all parties.
Withdrawals of tenders of Depositary Receipts may not be rescinded and any
Depositary Receipts withdrawn will thereafter be deemed not validly tendered for
purposes of the relevant Offer. Properly withdrawn Depositary Receipts, however,
may be retendered by following the procedures
52
<PAGE>
therefore described elsewhere herein at any time prior to the Expiration Date.
See "--Procedures for Tendering."
Upon the terms and subject to the conditions of the Offer, including the
Minimum Distribution Condition, each Trust will accept for exchange up to the
Maximum Amount of Related Depositary Shares that have been validly tendered and
not withdrawn prior to the Expiration Date.
Each Trust expressly reserves the right, in its sole discretion, to delay
acceptance for exchange of Related Depositary Shares tendered under its Offer
and the delivery of the Capital Securities with respect to the Depositary Shares
accepted for exchange (subject to Rules 13e-4 and 14e-1 under the Exchange Act,
which require that Citicorp and the Trust consummate the Offer or return the
Depositary Receipts deposited by or on behalf of the Holders thereof promptly
after the termination or withdrawal of the Offer), or to amend, withdraw or
terminate the Offer, at any time prior to the applicable Expiration Date for any
of the reasons set forth in "---Conditions to the Offers" and "--- Expiration
Date; Extensions; Amendments; Termination."
If a Trust decides, in its sole discretion, to decrease the number of
Depositary Shares sought in its Offer or to change the amount or form of the
consideration offered to Holders of Depositary Shares, and if the Offer is
scheduled to expire less than ten (10) Business Days from and including the date
that notice of such increase or decrease is first published, sent or given in
the manner specified in "---Expiration Date; Extension; Amendments;
Termination," then such Offer will be extended for a minimum of ten (10)
Business Days from and including the date of such notice.
Unless otherwise specified by the Holder under "Special Delivery
Instructions" in the Letter of Transmittal, all Depositary Receipts not accepted
pursuant to the Offer will be returned to the tendering Holders at Citicorp's
expense as promptly as practicable following the Expiration Date.
EXCHANGE AGENT AND INFORMATION AGENT
Citibank has been appointed as Exchange Agent for the Offers.
THE EXCHANGE AGENT IS:
CITIBANK, N.A.
By Hand: By Mail (registered or certified
mail recommended):
Citibank, N.A. Citibank, N.A.
Corporate Agency & Trust Services c/o Citicorp Data Distribution, Inc.
111 Wall Street, 5th Floor P.O. Box 7069
New York, New York Paramus, New Jersey 07653
By Overnight Courier:
Citibank, N.A.
c/o Citicorp Data Distribution, Inc.
404 Sette Drive
Paramus, New Jersey 07652
By Facsimile:
(For Eligible Institutions Only)
(201) 262-3240
Confirm Receipt of Notice of Guaranteed Delivery by Telephone:
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<PAGE>
(800) 422-2066
Georgeson & Company Inc. has been retained as the Information Agent to
assist in connection with the Offers. Questions and requests for assistance
regarding the Offers, requests for additional copies of this Prospectus, the
Letter of Transmittal and requests for Notice of Guaranteed Delivery may be
directed to the Information Agent.
THE INFORMATION AGENT IS:
GEORGESON
& COMPANY INC.
Wall Street Plaza
New York, New York 10005
(800) 223-2064 (Toll Free)
Banks and Brokers Call Collect:
(212) 440-9800
Citicorp will pay the Exchange Agent and the Information Agent reasonable
and customary fees for their services and will reimburse them for all their
reasonable out-of-pocket expenses in connection therewith.
DEALER MANAGERS; SOLICITING DEALERS
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Smith Barney Inc. and
Prudential Securities Incorporated, as Dealer Managers, have agreed to solicit
exchanges of Depositary Shares for Capital Securities. The maximum aggregate
management fee payable to the Dealer Managers is approximately $0.125 per
Depositary Share validly tendered and accepted for exchange, plus any amount
that the Dealer Managers may be entitled to pursuant to the next paragraph.
Citicorp will also reimburse the Dealer Managers for certain reasonable
out-of-pocket expenses in connection with the Offers and will indemnify the
Dealer Managers against certain liabilities, including liabilities under the
Securities Act. The Dealer Managers engage in transactions with, and from time
to time have performed services for, Citicorp, including acting as underwriter
for the issuance of the Depositary Shares.
Citicorp will pay to a Soliciting Dealer a solicitation fee of $0.50 per
Depositary Share ($0.125 per Depositary Share with respect to the solicitation
of beneficial holders of 10,000 or more Depositary Shares for a Series of
Preferred Stock) validly tendered and accepted for exchange pursuant to an
Offer. As used in this Prospectus, "Soliciting Dealer" includes (i) any broker
or dealer in securities, including a Dealer Manager in its capacity as a broker
or dealer, who is a member of any national securities exchange or of the
National Association of Securities Dealers, Inc. (the "NASD"), (ii) any foreign
broker or dealer not eligible for membership in the NASD who agrees to conform
to the NASD's Rules of Fair Practice in soliciting tenders outside the United
States to the same extent as though it were an NASD member, or (iii) any bank or
trust company, any one of whom has solicited and obtained a tender pursuant to
the Offer. No solicitation fee shall be payable to a Soliciting Dealer with
respect to the tender of Depositary Shares by a Holder unless the Letter of
Transmittal accompanying such tender designates such Soliciting Dealer as such
in the box captioned "Solicited Tenders."
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<PAGE>
Soliciting Dealers will include any of the organizations described in
clauses (i), (ii) and (iii) above event when the activities of such
organizations in connection with an Offer consist solely of forwarding to
clients materials relating to the Offer, including this Prospectus and the
Letter of Transmittal, and tendering Depositary Shares as directed by beneficial
owners thereof. No Soliciting Dealer is required to make any recommendation to
holders of Depositary Shares as to whether to tender or refrain from tendering
in an Offer. No assumption is made, in making payment to any Soliciting Dealer,
that its activities in connection with any Offer included any activities other
than those described above, and for all purposes noted in all materials relating
to the Offers, the term "solicit" shall be deemed to mean no more than
"processing shares tendered" or "forwarding to customers materials regarding the
Offer."
If tendered Depositary Shares are being delivered by book-entry transfer
made to an account maintained by the Exchange Agent with the Depository
Institution, the Soliciting Dealer must return a Notice of Solicited Tenders
(included in the materials provided to brokers and dealers) to the Exchange
Agent within three trading days after the relevant Expiration Date in order to
receive a solicitation fee. No solicitation fee shall be payable to a Soliciting
Dealer in respect of Depositary Shares (i) beneficially owned by such Soliciting
Dealer or (ii) the Depositary Receipts for which are registered in the name of
such Soliciting Dealer unless such Depositary Receipts are held by such
Soliciting Dealer as nominee and the underlying Depositary Shares are being
tendered for the benefit of one or more beneficial owners identified on the
Letter of Transmittal or the Notice of Solicited Tenders. No solicitation fee
shall be payable to a Soliciting Dealer with respect to the tender of Depositary
Shares by the Holder of record of the related Depositary Receipts, for the
benefit of the beneficial owner, unless the beneficial owner has designated such
Soliciting Dealer.
No solicitation fee shall be payable to a Soliciting Dealer if such
Soliciting Dealer is required for any reason to transfer any portion of such fee
to a tendering Holder (other than itself). No broker, dealer, bank, trust
company or fiduciary shall be deemed to be the agent of Citicorp, the Trusts,
the Trustees, the Exchange Agent, the Information Agent or the Dealer Managers
for purposes of the Offers.
Other than as described above, Citicorp will not pay any solicitation fees
to any broker, dealer, bank, trust company or other person for any Depositary
Shares exchanged in connection with the Offers. Citicorp will reimburse such
persons for customary handling and mailing expenses incurred in connection with
the Offers.
Additional solicitations may be made by telephone, in person, or otherwise
by officers and regular employees of Citicorp and its affiliates. No additional
compensation will be paid to any such officers and employees who engage in
soliciting tenders.
LISTING AND TRADING OF CAPITAL SECURITIES AND DEPOSITARY SHARES
The Capital Securities of each Trust constitute a new issue of securities
of such Trust with no established trading market. While application has been
made to list the Capital Securities on the NYSE, there can be no assurance that
an active market for the Capital Securities will develop or be sustained in the
future on such exchange. Although the Dealer Managers have indicated to the
Trusts that they intend to make a market in the Capital Securities following the
respective Expiration Dates, as permitted by applicable laws and regulations,
prior to the commencement of trading on the NYSE, they are not obligated to do
so and may discontinue any such market-making at any time without notice.
Accordingly, no assurance can be given as to the liquidity of, or trading
markets for,
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<PAGE>
the Capital Securities. In order to satisfy the NYSE listing requirements,
acceptance of Depositary Shares validly tendered in each Offer is subject to the
Minimum Distribution Condition, which condition may not be waived.
Following the respective Expiration Dates, and in accordance with and
subject to applicable law, Citicorp may from time to time acquire Related
Depositary Shares in the open market, by tender offer, subsequent exchange
offer, redemption of the underlying Preferred Stock or otherwise. To the extent
that any such acquisition of Depositary Shares causes the number of outstanding
Depositary Shares for any Series of Preferred Stock to be less than 100,000, the
NYSE may delist such Depositary Shares from the NYSE and the trading market for
such outstanding Depositary Shares for such Series of Preferred Stock could be
adversely affected. Citicorp's decision to make such acquisitions is dependent
on many factors, including market conditions in effect at the time of any
contemplated acquisition. Accordingly, Citicorp cannot predict whether and to
what extent it will acquire any additional Depositary Shares and the
consideration to be paid therefor. In addition, if an Offer is substantially
subscribed, there would be a significant risk that round lot holdings of the
Related Depositary Shares outstanding following the Offer would be limited. See
"Risk Factors and Special Considerations Relating to the Offers -- Lack of
Established Trading Market for Capital Securities" and "-- Reduced Trading
Market for Depositary Shares."
TRANSACTIONS AND ARRANGEMENTS CONCERNING THE OFFERS
Except as described herein, there are no contracts, arrangements,
understandings or relationships in connection with the Offers between Citicorp
or any of its directors or executive officers, the Trusts or the Trustees and
any person with respect to any securities of Citicorp or the Trusts, including
the Subordinated Debt Securities, the Preferred Stock, the Depositary Shares and
the Capital Securities.
FEES AND EXPENSES; TRANSFER TAXES
The expenses of soliciting tenders of the Depositary Shares will be borne
by Citicorp. For compensation to be paid to the Dealer Managers and Soliciting
Dealers, see "The Offers -- Dealer Managers; Soliciting Dealers." The total cash
expenditures to be incurred in connection with the Offers, other than fees
payable to the Dealer Managers and Soliciting Dealers, but including the
expenses of the Dealer Managers, printing, accounting and legal fees, and the
fees and expenses of the Exchange Agent, the Information Agent, the
Institutional Trustee and the Delaware Trustee, are estimated to be
approximately $ . Citicorp will pay all transfer taxes, if any, applicable to
the exchange of Depositary Shares pursuant to the Offers. If, however,
certificates representing Capital Securities or Depositary Receipts not tendered
or accepted for exchange are to be delivered to, or are to be issued in the name
of, any person other than the registered Holder of the Depositary Receipts
pursuant to an Offer, then the amount of any such transfer taxes (whether
imposed on the registered Holder or any other persons) will be payable by the
tendering Holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering Holder.
PRICE RANGE OF DEPOSITARY SHARES
Depositary Shares for each Series of Preferred Stock are listed and
principally traded on the NYSE. The following table sets forth, for each period
shown, the high and low sales prices of the
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<PAGE>
Depositary Shares as reported on the NYSE Composite Tape. For recent closing
prices of the Depositary Shares, see the cover page of this Prospectus.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
SERIES 16 SERIES 17 SERIES 20 SERIES 21 SERIES 22
- -------------------------------------------------------------------------------------------------------------------------------
High Low High Low High Low High Low High Low
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1995
- -------------------------------------------------------------------------------------------------------------------------------
First Quarter $24.75 $22.50 $23.13 $21.25 $25.25 $23.13 $25.75 $24.50
- -------------------------------------------------------------------------------------------------------------------------------
Second Quarter 26.00 23.63 25.00 22.75 26.25 24.50 26.50 25.13 $25.80 $25.00
- -------------------------------------------------------------------------------------------------------------------------------
Third Quarter 26.00 25.00 25.25 23.50 27.00 25.25 26.75 25.63 26.13 25.00
- -------------------------------------------------------------------------------------------------------------------------------
Fourth Quarter 26.13 25.13 25.63 24.25 26.63 25.50 27.13 26.13 26.50 25.63
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
1996
- -------------------------------------------------------------------------------------------------------------------------------
First Quarter 26.50 25.13 26.13 24.50 27.25 25.00 27.50 25.84 27.00 25.13
- -------------------------------------------------------------------------------------------------------------------------------
Second Quarter 26.00 24.88 25.63 24.13 26.50 24.75 26.88 26.00 26.06 24.75
- -------------------------------------------------------------------------------------------------------------------------------
Third Quarter 25.88 25.00 25.13 24.25 26.50 25.00 26.88 26.13 26.13 24.88
- -------------------------------------------------------------------------------------------------------------------------------
Fourth Quarter 26.13 25.50 26.00 24.63 27.00 25.88 27.38 26.38 27.00 25.50
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
1997
- -------------------------------------------------------------------------------------------------------------------------------
First Quarter 26.25 25.63 26.13 25.50 27.25 26.38 27.75 26.75 27.25 26.38
- -------------------------------------------------------------------------------------------------------------------------------
(through
March 11, 1997)
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The issuance dates for the Series of Preferred Stock are as follows: (i)
Series 16 Preferred Stock on June 1, 1993, (ii) Series 17 Preferred Stock on
September 7, 1993, (iii) Series 20 Preferred Stock on September 29, 1994, (iv)
Series 21 Preferred Stock on February 15, 1995 and (v) Series 22 Preferred Stock
on May 19, 1995.
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities to be held as assets of the respective
Trusts will be issued under the Base Indenture, as supplemented by a separate
Supplemental Indenture for the series of Subordinated Debt Securities issued to
each Trust (as so supplemented, each an "Indenture"), between Citicorp and
Wilmington Trust Company, as Debt Trustee. The terms of the Subordinated Debt
Securities will include those stated in the applicable Indenture and those made
part of the Indenture by reference to the Trust Indenture Act. The following
summary of the material terms applies equally to the Subordinated Debt
Securities issued to each Trust, does not purport to be com plete and is subject
in all respects to the provisions of, and is qualified in its entirety by
reference to, the Base Indenture and the form of Supplemental Indenture, each of
which is filed as an exhibit to the Registration Statement of which this
Prospectus forms a part, and the Trust Indenture Act. Whenever particular
provisions or defined terms in the Indentures are referred to herein, such
provisions or defined terms are incorporated by reference herein.
GENERAL
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<PAGE>
The Subordinated Debt Securities will be unsecured, subordinated
obligations of Citicorp under the Indenture. The Subordinated Debt Securities
will be issued in multiple series. Citicorp will issue a different series of
Subordinated Debt Securities to each Trust. Each series of Subordinated Debt
Securities will bear interest at a fixed rate per annum equal to the
distribution rate on the Trust Securities issued by the Trust to which such
series is issued. The Subordinated Debt Securities held by each Trust will be
limited in aggregate principal amount to an amount equal to the sum of the
aggregate stated liquidation amounts of the Capital Securities and the Common
Securities issued by such Trust. Only one series of Subordinated Debt Securities
will be issued to a Trust or a trustee of such Trust in connection with the
issuance of Trust Securities by such Trust.
The Subordinated Debt Securities are not subject to a sinking fund
provision. The entire principal amount of the Subordinated Debt Securities will
mature and become due and payable, together with any accrued and unpaid interest
thereon including Compound Interest (as defined herein) and Additional Interest
(as defined herein), if any, on May 15, 2027, unless such maturity is shortened
or extended, as described under "-- Option to Shorten or Extend Maturity Date"
below.
Under certain circumstances involving the dissolution of a Trust following
the occurrence of a Tax Event or a Regulatory Capital Event, Subordinated Debt
Securities held by such Trust may be distributed to the holders of the Trust
Securities of such Trust in liquidation thereof. See "Description of the Capital
Securities--Tax Event Redemption or Distribution" and --"Regulatory Capital
Event Redemption or Distribution".
The Subordinated Debt Securities will be issued in fully registered form
without coupons and in denominations of $25 and multiples thereof. No service
charge will be made for any transfer or exchange of Subordinated Debt
Securities, but Citicorp and the Debt Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
If Subordinated Debt Securities are distributed to holders of the related
Capital Securities in liquidation of such holders' interests in a Trust, such
Subordinated Debt Securities will initially be issued as a Global Security (as
defined herein). As described herein, under certain limited circumstances,
Subordinated Debt Securities may be issued in certificated form in exchange for
a Global Security. See "-- Book-Entry and Settlement" below. In the event that
Subordinated Debt Securities are issued in certificated form, such Subordinated
Debt Securities will be in denominations of $25 and integral multiples thereof
and may be transferred or exchanged at the offices described below. Payments on
Subordinated Debt Securities issued as a Global Security will be made to the
Depositary (as defined herein) or, in the event that no depositary is used, to a
Paying Agent for the Subordinated Debt Securities. In the event Subordinated
Debt Securities are issued in certificated form, principal and interest will be
payable, the transfer of the Subordinated Debt Securities will be registrable
and Subordinated Debt Securities will be exchangeable for Subordinated Debt
Securities of other denominations of a like aggregate principal amount at the
corporate trust office of the Debt Trustee in New York, New York; provided, that
payment of interest may be made at the option of Citicorp by check mailed to the
address of the holder entitled thereto or by wire transfer to an account
appropriately designated by the holder entitled thereto. Notwithstanding the
foregoing, so long as the holder of any Subordinated Debt Securities is the
Institutional Trustee, the payment of principal and interest on the Subordinated
Debt Securities held by the Institutional Trustee will be made at such place and
to such account as may be designated by the Institutional Trustee.
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<PAGE>
The covenants contained in the Indenture would not necessarily afford
protection to holders of the Subordinated Debt Securities in the event of a
decline in credit quality resulting from takeovers, recapitalization or similar
restructurings.
SUBORDINATION
The Indenture provides that the Subordinated Debt Securities are
subordinated and junior in right of payment to all Senior Indebtedness of
Citicorp, including all outstanding subordinated debt securities (other than
those denominated as its Junior Subordinated Deferrable Interest Debentures)
issued by Citicorp. No payment of principal of (including redemption payments),
premium, if any, or interest on the Subordinated Debt Securities may be made if
there shall have occurred and be continuing a default in any payment with
respect to Senior Indebtedness or an event of default with respect to any Senior
Indebtedness resulting in the acceleration of the maturity thereof, or if any
judicial proceeding shall be pending with respect to any such default, unless
and until such default shall have been cured or waived or such proceeding shall
be terminated. Upon any distribution of assets of Citicorp to creditors upon any
dissolution, winding-up, liquidation or reorganization, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings,
all principal, premium, if any, and interest due or to become due on all Senior
Indebtedness of Citicorp must be paid in full before the holders of Subordinated
Debt Securities are entitled to receive or retain any payment. Notwithstanding
the foregoing, the holders of Senior Indebtedness shall not be entitled to
receive payment of any amounts which would otherwise (but for the subordination
provisions of the Indenture) be payable in respect of the Subordinated Debt
Securities but for the fact that any such Senior Indebtedness is by its terms
subordinated in right of payment to Trade Credit (as defined herein) and, as a
result of which subordination, amounts otherwise payable in respect of such
Senior Indebtedness are to be paid to holders of Trade Credit.
The term "Senior Indebtedness" means any obligation of Citicorp to its
creditors, whether outstanding or subsequently incurred, except for (w) any
other subordinated debt securities issued under the Base Indenture, (x) all
other debt securities, and guarantees in respect of those debt securities,
issued to any other trust, or a trustee of such trust, partnership or other
entity affiliated with Citicorp that is a financing vehicle of Citicorp (a
"financing entity") in connection with the issuance by such financing entity of
equity securities or other securities guaranteed by Citicorp pursuant to an
instrument that ranks pari passu with, or junior to, the Guarantee, (y)
obligations incurred or assumed by Citicorp in the ordinary course of business
in connection with the obtaining of materials or services, and all obligations
of Citicorp in respect of any guarantees of such obligations of subsidiaries of
Citicorp (provided that obligations described in this clause (y) ("Trade
Credit") shall not include traveler's checks or other unsubordinated financial
instruments) and (z) any other obligations as to which, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is provided that such obligation is not Senior Indebtedness. Such Senior
Indebtedness shall continue to be Senior Indebtedness and be entitled to the
benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness. The Indenture
does not limit the aggregate amount of Senior Indebtedness that may be issued by
Citicorp.
INTEREST
Each series of Subordinated Debt Securities will bear interest from the
original date of issuance at a rate equal to the distribution rate on the Trust
Securities issued by the Trust to which such series of Subordinated Debt
Securities is issued, which rate is set forth for each Trust on the cover page
hereof. Such interest will be payable quarterly in arrears on February 15, May
15, August 15 and November 15 of each year (each an "Interest Payment Date"),
commencing May 15, 1997, to the persons in whose name such Subordinated Debt
Securities are registered, subject to certain
59
<PAGE>
exceptions, at the close of business on the Business Day next preceding such
Interest Payment Date. In the event any Subordinated Debt Securities distributed
to holders of Capital Securities shall not continue to remain in book-entry only
form, Citicorp shall have the right to select different record dates, which
shall be not less than one nor more than 15 Business Days prior to the Interest
Payment Date.
The series of Subordinated Debt Securities held by a Trust will also
accrue additional interest for the period from and including the related
Expiration Date of the Trust's Offer to but excluding May 15, 1997 in an amount
equal to interest at the respective per annum rates set forth below for each
Trust on the principal amount thereof for a period equal to the actual number of
days from and including February 15, 1997 to but excluding such Expiration Date,
payable on May 15, 1997 to the holders thereof.
Citicorp Capital X: 8.00%
Citicorp Capital XI: 7.50%
Citicorp Capital XII: 8.30%
Citicorp Capital XIII: 8.50%
Citicorp Capital XIV: 7.75%
No deferral of interest will be permitted with respect to such additional
interest. The aggregate amount of such additional interest that is distributable
to holders of the Trust's Capital Securities is referred to herein as the
"Additional Distribution".
The amount of interest payable for any period shorter than a full
quarterly period will be computed on the basis of a 360-day year of twelve
30-day months. The amount of interest payable for any period of less than one
month will be computed on the basis of the actual number of days elapsed in such
period. In the event that any date on which interest is payable on the
Subordinated Debt Securities is not a Business Day, then payment of the interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, then
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as no Event of Default shall have occurred and be continuing under
the applicable Indenture, Citicorp shall have the right at any time, and from
time to time, during the term of the Subordinated Debt Securities to defer
payments of interest on any series of Subordinated Debt Securities by extending
the interest payment period for a period not exceeding 20 consecutive quarterly
interest periods from the last interest payment date to which interest on such
series was paid in full, at the end of which Extension Period, Citicorp shall
pay all interest then accrued and unpaid (including any Additional Interest, as
herein defined) together with interest thereon compounded quarterly at the rate
specified for such series of Subordinated Debt Securities to the extent
permitted by applicable law ("Compound Interest"); provided that during any such
Extension Period, (a) Citicorp shall not declare or pay dividends on, make any
distribution with respect to, or redeem, purchase, acquire for value or make a
liquidation payment with respect to any of its capital stock (other than (i)
purchases or acquisitions of shares of Citicorp common stock in connection with
the satisfaction by Citicorp of its obligations under any employee benefit plans
or any other contractual obligations of Citicorp (other than a contractual
obligation ranking pari passu with or junior in right of payment to the
Subordinated Debt Securities) entered into prior to the date of
60
<PAGE>
issuance of the Subordinated Debt Securities, (ii) as a result of a
reclassification of Citicorp capital stock or the exchange or conversion of one
class or series of Citicorp's capital stock for another class or series of
Citicorp capital stock or (iii) the purchase of fractional interests in shares
of Citicorp's capital stock pursuant to the conversion or exchange provisions of
such Citicorp capital stock or the security being converted or exchanged) and
(b) Citicorp shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities issued by Citicorp
that rank pari passu with or junior in right of payment to the Subordinated Debt
Securities. Prior to the termination of any such Extension Period, Citicorp may
further defer payments of interest by extending the interest payment period;
provided, however, that, such Extension Period, including all such previous and
further extensions, may not exceed 20 consecutive quarterly interest periods or
extend beyond the Maturity Date of the Subordinated Debt Securities. Upon the
termination of any Extension Period and the payment of all amounts then due,
Citicorp may commence a new Extension Period, subject to the terms set forth in
this section. No interest shall be due and payable during an Extension Period,
except at the end thereof. Citicorp has no present intention of exercising its
right to defer payments of interest by extending the interest payment period on
any of the Subordinated Debt Securities. If the Institutional Trustee of a Trust
is the sole holder of a series of Subordinated Debt Securities, Citicorp shall
give the Regular Trustees and the Institutional Trustee of such Trust notice of
its selection of such Extension Period one Business Day prior to the earlier of
(i) the date distributions on the Capital Securities of such Trust are payable
or (ii) the date the Regular Trustees are required to give notice to the NYSE or
any other applicable self-regulatory organization or to holders of the Capital
Securities of the record date or the date such distribution is payable. The
Regular Trustees of such Trust shall give notice of Citicorp's selection of such
Extension Period to the holders of its Capital Securities. If the Institutional
Trustee is not the sole holder of a series of Subordinated Debt Securities,
Citicorp shall give the holders of the applicable series of Subordinated Debt
Securities notice of its selection of such Extension Period 10 Business Days
prior to the earlier of (i) the Interest Payment Date or (ii) the date upon
which Citicorp is required to give notice to any applicable self-regulatory
organization or to holders of such Subordinated Debt Securities of the record or
payment date of such related interest payment.
ADDITIONAL INTEREST
If at any time a Trust or its Institutional Trustee shall be required to
pay any taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States or any other taxing
authority, then, in any such case, Citicorp will pay as additional interest
("Additional Interest") on the series of Subordinated Debt Securities held by
such Trust such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
any such taxes, duties, assessments or other governmental charges will be not
less than the amounts the Trust or the Institutional Trustee would have received
had no such taxes, duties, assessments or other governmental charges been
imposed.
OPTIONAL REDEMPTION
Citicorp will have the right to redeem any series of Subordinated Debt
Securities, in whole or in part, from time to time, on or after May 15, 2002,
and earlier in certain circumstances upon the occurrence of a Tax Event or a
Regulatory Capital Event as described under "Description of the Capital
Securities -- Tax Event Redemption or Distribution" and "--Regulatory Capital
Event Redemption or Distribution," upon not less than 30 nor more than 60 days'
notice, at a redemption price equal to the applicable Redemption Percentage (as
defined under "Description of the Capital Securities -- Redemption") of the
principal amount to be redeemed plus accrued and unpaid interest, including
Additional Interest, if any, to the redemption date; provided, however, that a
series of Subordinated Debt Securities may not be redeemed in part unless all
unpaid interest thereon,
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including Additional Interest, accrued through the most recent quarterly
interest period ending on or prior to the date fixed for redemption shall have
been paid. Before effecting any optional redemption, Citicorp will obtain any
approvals of regulatory authorities then required by applicable law.
OPTION TO SHORTEN OR EXTEND MATURITY DATE
Citicorp will have the right at any time to shorten the maturity of any
series of Subordinated Debt Securities to a date not earlier than May 15, 2002.
The exercise of such right is subject to the obtaining of any required
regulatory approvals.
Citicorp will also have the right to extend the maturity of any series of
Subordinated Debt Securities to a date no later than February 15, 2046, so long
as at the time such election is made and at the time such extension commences
(i) Citicorp is not in bankruptcy, otherwise insolvent or in liquidation, (ii)
Citicorp is not in default in the payment of any interest or principal on such
series of Subordinated Debt Securities, (iii) the related Trust is not in
arrears on payments of distributions on its Capital Securities and no deferred
distributions on the Capital Securities are accumulated and (iv) such series of
Subordinated Debt Securities, or, if such Capital Securities are rated, the
Capital Securities, are rated at least BBB- by Standard & Poor's Ratings
Services, at least Baa3 by Moody's Investors Service, Inc. or at least the
equivalent by any other nationally recognized statistical rating organization.
In the event that Citicorp elects to shorten or extend the maturity date of any
series of Subordinated Debt Securities, it shall give notice to the Debt
Trustee, and the Debt Trustee shall give notice of such shortening or extension
to the holders of such Subordinated Debt Securities no more than 60 and no less
than 30 days prior to the effectiveness thereof. If the Institutional Trustee of
a Trust is the sole holder of a series of Subordinated Debt Securities, the
Regular Trustees of such Trust shall give notice of such shortening or extension
to the holders of its Capital Securities.
EVENTS OF DEFAULT, WAIVER AND NOTICE
The Indenture provides than any one or more of the following described
events which has occurred and is continuing constitutes an "Event of Default"
with respect to a series of Subordinated Debt Securities (an "Indenture Event of
Default"):
(a) default for 30 days in payment of any interest on the Subordinated
Debt Securities of that series, including any Additional Interest in respect
thereof, when due; provided, however, that a valid extension of the interest
payment period by Citicorp shall not constitute a default in the payment of
interest for this purpose; or
(b) default in payment of principal and premium, if any, on the
Subordinated Debt Securities of that series when due either at maturity, upon
redemption, by declaration or otherwise; provided, however, that a valid
extension of the maturity of such Subordinated Debt Securities shall not
constitute a default for this purpose; or
(c) default by Citicorp in the performance of any other of the covenants
or agreements in the Indenture which shall not have been remedied for a period
of 90 days after notice; or
(d) certain events of bankruptcy, insolvency or reorganization of
Citicorp; or
(e) in the event Subordinated Debt Securities of such series are held by a
Trust or a Trustee of such Trust, the voluntary or involuntary dissolution,
winding-up or termination of such Trust, except in connection with the
distribution of Subordinated Debt Securities to the holders of
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Trust Securities in liquidation of such Trust, the redemption of all of the
Trust Securities of such Trust, certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Trust.
The Indenture provides that the Debt Trustee may withhold notice of an
Indenture Event of Default to the holders of a series of Subordinated Debt
Securities (except a default in payment of principal, interest or premium on the
Subordinated Debt Securities) if the Trustee considers it in the interest of
such holders to do so.
The Indenture provides that, (a) if an Indenture Event of Default due to
the default in the payment of principal, interest or premium, if any, on any
series of Subordinated Debt Securities shall have occurred and be continuing,
either the Debt Trustee or the holders of 25 percent in principal amount of the
Subordinated Debt Securities of all series affected thereby then outstanding may
declare the principal of all such Subordinated Debt Securities to be due and
payable immediately, and (b) if an Indenture Event of Default resulting from
default in the performance of any other of the covenants or agreements in the
Indenture or certain events of bankruptcy, insolvency and reorganization of
Citicorp shall have occurred and be continuing, either the Debt Trustee or the
holders of 25 percent in principal amount of all Subordinated Debt Securities
and other Junior Subordinated Deferrable Interest Debentures of Citicorp then
outstanding (treated as one class) may declare the principal of all Subordinated
Debt Securities and such Junior Subordinated Deferrable Interest Debentures to
be due and payable immediately, but upon certain conditions such declarations
may be annulled and past defaults may be waived (except defaults in payment of
principal of or interest or premium on the Subordinated Debt Securities) by the
holders of a majority in principal amount of the Subordinated Debt Securities of
such series (or of all series, as the case may be) then outstanding.
The holders of a majority in principal amount of the Subordinated Debt
Securities of any series affected shall have the right, subject to certain
restrictions, to direct the time, method and place of conducting any proceeding
for any remedy available to the Debt Trustee under the Indenture, provided that
the holders of such Subordinated Debt Securities shall have offered to the Debt
Trustee reasonable indemnity against expenses and liabilities. The Indenture
requires the annual filing by Citicorp with the Debt Trustee of a certificate as
to the absence of certain defaults under the Indenture.
An Indenture Event of Default also constitutes a Declaration Event of
Default with respect to a Trust holding the Subordinated Debt Securities to
which the Indenture Event of Default relates. The holders of Capital Securities
of such Trust in certain circumstances have the right to direct the
Institutional Trustee to exercise its rights as the holder of the Subordinated
Debt Securities. See "Description of the Capital Securities -- Declaration
Events of Default" and "-- Voting Rights." Notwithstanding the foregoing, if an
Indenture Event of Default has occurred and is continuing and such event is
attributable to the failure of Citicorp to pay interest or principal on a series
of Subordinated Debt Securities on the date such interest or principal is
otherwise payable, Citicorp acknowledges that a holder of Capital Securities of
the Trust holding such series of Subordinated Debt Securities may then institute
a Direct Action for payment on or after the respective due date specified in the
Subordinated Debt Securities. Notwithstanding any payments made to such holder
of Capital Securities by Citicorp in connection with a Direct Action, Citicorp
shall remain obligated to pay the principal of or interest on the Subordinated
Debt Securities held by such Trust or the Institutional Trustee of such Trust,
and Citicorp shall be subrogated to the rights of the holder of such Capital
Securities with respect to payments on such Capital Securities to the extent of
any payments
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made by Citicorp to such holder in any Direct Action. The holders of Capital
Securities will not be able to exercise directly any other remedy available to
the holders of the Subordinated Debt Securities.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Capital Securities in connection with the
involuntary or voluntary dissolution, winding-up or liquidation of a Trust as a
result of the occurrence of a Tax Event or a Regulatory Capital Event,
Subordinated Debt Securities will be issued in the form of one or more global
certificates (each a "Global Security") registered in the name of the Depositary
(as hereinafter defined) or its nominee. Except under the limited circumstances
described below, Subordinated Debt Securities represented by a Global Security
will not be exchangeable for, and will not otherwise be issuable as,
Subordinated Debt Securities in definitive form. The Global Securities described
above may not be transferred except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or to a successor depositary or its nominee.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Subordinated Debt
Securities in definitive form and will not be considered the holders (as defined
in the Indenture) thereof for any purpose under the applicable Indenture, and no
Global Security representing Subordinated Debt Securities shall be exchangeable,
except for another Global Security of like denomination and tenor to be
registered in the name of the Depositary or its nominee or to a successor
depositary or its nominee. Accordingly, each Beneficial Owner must rely on the
procedures of the Depositary or if such person is not a Participant, on the
procedures of the Participant through which such person owns its interest to
exercise any rights of a holder under the Indenture.
THE DEPOSITARY
If Subordinated Debt Securities are distributed to holders of Capital
Securities in liquidation of such holders' interests in a Trust, The Depository
Trust Company ("DTC") will act as securities depositary (the "Depositary") for
the Subordinated Debt Securities. For a description of DTC and the specific
terms of the depositary arrangements, see "Description of the Capital Securities
- -- Book- Entry Only Issuance -- The Depository Trust Company." As of the date of
this Prospectus, the description herein of DTC's book-entry system and DTC's
practices as they relate to purchases, transfers, notices and payments with
respect to the Capital Securities apply in all material respects to any debt
obligations of Citicorp represented by one or more Global Securities. Citicorp
may appoint a successor to DTC or any successor depositary in the event DTC or
such successor depositary is unable or unwilling to continue as a depositary for
the Global Securities.
None of Citicorp, the Trusts, the Institutional Trustee, any paying agent
and any other agent of Citicorp, or the Debt Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
for such Subordinated Debt Securities or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
DISCONTINUANCE OF THE DEPOSITARY'S SERVICES
A Global Security shall be exchangeable for Subordinated Debt Securities
registered in the names of persons other than the Depositary or its nominee only
if (i) the Depositary notifies Citicorp that it is unwilling or unable to
continue as a depositary for such Global Security and no successor depositary
shall have been appointed, (ii) the Depositary, at any time, ceases to be a
clearing agency registered under the Exchange Act at which time the Depositary
is required to be so registered to act
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as such depositary and no successor depositary shall have been appointed, (iii)
Citicorp, in its sole discretion, determines that such Global Security shall be
so exchangeable or (iv) there shall have occurred an Indenture Event of Default
with respect to such Subordinated Debt Securities. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Subordinated Debt Securities registered in such names as the Depositary shall
direct. It is expected that such instructions will be based upon directions
received by the Depositary from its Participants with respect to ownership of
beneficial interests in such Global Security.
CERTAIN COVENANTS OF CITICORP
If (i) there shall have occurred any event that would constitute an
Indenture Event of Default or (ii) Citicorp shall be in default with respect to
its payment of any obligations under a Guarantee, then (a) Citicorp shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (x) purchases or acquisitions of shares of
Citicorp common stock in connection with the satisfaction by Citicorp of its
obligations under any employee benefit plans or any other contractual
obligations of Citicorp (other than a contractual obligation ranking pari passu
with or junior in right of payment to the Subordinated Debt Securities) entered
into prior to the date of issuance of the Subordinated Debt Securities, (y) as a
result of a reclassification of Citicorp capital stock or the exchange or
conversion of one class or series of Citicorp capital stock for another class or
series of Citicorp capital stock or (z) the purchase of fractional interests in
shares of Citicorp capital stock pursuant to the conversion or exchange
provisions of such Citicorp capital stock or the security being converted or
exchanged), and (b) Citicorp shall not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any debt securities issued
by the Company that rank pari passu with or junior in right of payment to such
Subordinated Debt Securities.
If Citicorp shall have given notice of its election to defer payments of
interest on a series of Subordinated Debt Securities by extending the interest
payment period as provided in the Indenture and such period, or any extension
thereof, shall be continuing, then (a) subject to certain limited exceptions,
Citicorp shall not declare or pay any dividend on, make any distribu tions with
respect to, or redeem, purchase, acquire for value or make a liquidation payment
with respect to, any of its capital stock and (b) Citicorp shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by Citicorp which rank
pari passu with or junior in right of payment to such Subordinated Debt
Securities.
In the event Subordinated Debt Securities are held by a Trust or a Trustee
of such Trust, for so long as Trust Securities of such Trust remain outstanding,
Citicorp will covenant (i) to directly or indirectly maintain 100 percent
ownership of the Common Securities of such Trust; provided, however, that any
permitted successor of Citicorp under the Indenture may succeed to Citicorp's
ownership of such Common Securities, (ii) to use its reasonable efforts to cause
such Trust (a) to remain a statutory business trust, except in connection with
the distribution of Subordinated Debt Securities to the holders of Trust
Securities in liquidation of such Trust, the redemption of all of the Trust
Securities of such Trust, or certain mergers, consolidations or amalgamations,
each as permitted by the Declaration of such Trust, and (b) to continue not to
be classified as an association taxable as a corporation or a partnership for
United States federal income tax purposes and (iii) to use its reasonable
efforts to cause each holder of Trust Securities to be treated as owning an
undivided beneficial interest in the Subordinated Debt Securities.
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LIMITATION ON MERGERS AND SALES OF ASSETS
Citicorp shall not consolidate with, or merge into, any corporation or
convey or transfer its properties and assets substantially as an entirety to any
Person unless (a) the successor entity shall be a corporation organized under
the laws of any domestic or foreign jurisdiction and shall expressly assume the
obligations of Citicorp under the Indenture and (b) after giving effect thereto,
no Indenture Event of Default shall have occurred and be continuing.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting Citicorp and the Debt
Trustee, with the consent of the holders of not less than a majority in
principal amount of all series of Subordinated Debt Securities and other
securities issued under the Indenture affected by such modification at the time
outstanding, to modify the Indenture or the rights of the holders of
Subordinated Debt Securities; provided that no such modification shall (i)
extend the fixed maturity of any security, or reduce the principal amount
thereof (including in the case of a discounted security the amount payable
thereon in the event of acceleration or the amount provable in bankruptcy) or
any redemption premium thereon, or reduce the rate or extend the time of payment
of interest thereon, or make the principal of, or interest or premium on, any
series of Subordinated Debt Securities payable in any coin or currency other
than that provided in such Subordinated Debt Securities, or impair or affect the
right of any holder of Subordinated Debt Securities to institute suit for the
payment thereof or the right of prepayment, if any, at the option of the holder,
without the consent of the holder of each Security so affected, or (ii) reduce
the aforesaid percentage of Subordinated Debt Securities the consent of the
holders of which is required for any such modifi cation without the consent of
the holders of each security affected.
DEFEASANCE AND DISCHARGE
The Indenture provides that Citicorp, at Citicorp's option: (a) will be
discharged from any and all obligations in respect of the Subordinated Debt
Securities of a series (except for certain obligations to register the transfer
or exchange of Subordinated Debt Securities, replace stolen, lost or mutilated
Subordinated Debt Securities, maintain paying agencies and hold moneys for
payment in trust) or (b) need not comply with certain restrictive covenants of
the Indenture (including those described above under "--Certain Covenants of
Citicorp"), in each case if Citicorp deposits, in trust with the Debt Trustee or
the Defeasance Agent (as defined in the Indenture), money or U.S. Government
Obligations (as defined in the Indenture) which through the payment of interest
thereon and principal thereof in accordance with their terms will provide money,
in an amount sufficient to pay all the principal of, and interest and premium,
if any, on, the Subordinated Debt Securities of such series on the dates such
payments are due in accordance with the terms of such Subordinated Debt
Securities and if certain other conditions are met. To exercise any such option,
Citicorp is required to deliver to the Debt Trustee and the Defeasance Agent, if
any, an opinion of counsel to the effect that (i) the deposit and related
defeasance would not cause the holders of the Subordinated Debt Securities of
such series to recognize income, gain or loss for U.S. federal income tax
purposes and such holders will be subject to United States federal income tax on
the same amount and in the same manner and at the same time as would have been
the case if such option had not been exercised and, in the case of a discharge
pursuant to clause (a), such opinion shall be accompanied by a private letter
ruling to that effect received by Citicorp from the United States Internal
Revenue Service or a revenue ruling pertaining to a
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comparable form of transaction to the effect published by the United States
Internal Revenue Service, and (ii) if listed on any national securities
exchange, such Subordinated Debt Securities would not be delisted from such
exchange as a result of the exercise of such option.
GOVERNING LAW
The Indenture and the related Subordinated Debt Securities will be
governed by, and construed in accordance with, the laws of the State of New
York.
THE DEBT TRUSTEE
Citicorp or its affiliates maintain certain accounts and other banking
relationships with the Debt Trustee and its affiliates.
MISCELLANEOUS
The Indenture will provide that Citicorp will pay all fees and expenses
related to (i) the offering of the Subordinated Debt Securities, (ii) the
organization, maintenance and dissolution of the Trusts, (iii) the retention of
the Trustees and (iv) the enforcement by the Institutional Trustee of the rights
of the holders of the Capital Securities.
Citicorp will have the right at all times to assign any of its respective
rights or obligations under the Indenture to a direct or indirect wholly owned
subsidiary of Citicorp; provided that, in the event of any such assignment,
Citicorp will remain liable for all of their respective obligations. Subject to
the foregoing, the Indenture will be binding upon and inure to the benefit of
the parties thereto and their respective successors and assigns. The Indenture
provides that it may not otherwise be assigned by the parties thereto.
DESCRIPTION OF THE CAPITAL SECURITIES
The Capital Securities will be issued pursuant to the terms of the
Declaration of the issuing Trust, each of which has been qualified as an
indenture under the Trust Indenture Act. The Institutional Trustee will act as
indenture trustee for the Capital Securities under the Declarations for purposes
of compliance with the provisions of the Trust Indenture Act. The terms of the
Capital Securities will include those stated in the Declarations and those made
part of the Declarations by the Trust Indenture Act. The following summary of
the material terms and provisions of the Capital Securities applies equally to
the Capital Securities issued by each Trust and does not purport to be complete
and is subject to, and qualified in its entirety by reference to, the
Declarations, the Trust Act and the Trust Indenture Act.
GENERAL
The Declaration of each Trust authorizes the Regular Trustees of each
Trust to issue on behalf of such Trust one, and only one, series of Capital
Securities. The Declaration will be qualified as an indenture under the Trust
Indenture Act. The Capital Securities will have such terms, including
distributions, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as shall be set forth in
the Declaration of the Trust issuing such Capital Securities or made part of
such Declaration by the Trust Indenture Act and which will substantially mirror
the terms of the Subordinated Debt Securities held by such Trust .
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In connection with its issuance of Capital Securities, each Trust will
issue one series of Common Securities. The Declaration of each Trust authorizes
the Regular Trustees of such trust to issue on behalf of such Trust one series
of Common Securities having such terms including distribu tions, redemption,
voting, liquidation rights or such restrictions as shall be set forth therein.
Except for voting rights, the terms of the Common Securities issued by a Trust
will be substantially identical to the terms of the Capital Securities issued by
such trust and the Common Securities will rank pari passu, and payments will be
made thereon pro rata, with the Capital Securities except that upon an event of
default under the Declaration, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Capital Securities. Except in certain limited cir cumstances, the Common
Securities will also carry the right to vote to appoint, remove or replace any
of the Trustees of a Trust. All of the Common Securities of each Trust will be
directly or indirectly owned by Citicorp.
The Declarations do not permit the issuance by the Trusts of any
securities other than their respective Trust Securities or the incurrence of any
indebtedness by a Trust. Pursuant to the Declarations, the Institutional
Trustees will own the Subordinated Debt Securities purchased by each Trust for
the benefit of the holders of the Trust Securities. The payment of distributions
out of money held by a Trust, and payments upon redemption of the Capital
Securities or liquidation of a Trust, are guaranteed by Citicorp to the extent
described under "Description of the Guarantees." Each Guarantee will be held by
the Guarantee Trustee for the benefit of the holders of the related Capital
Securities. The Guarantees do not cover payment of distributions when a Trust
does not have sufficient available funds to pay such distributions. In such
event, the remedy of a holder of Capital Securities is to vote to direct the
Institutional Trustee of such Trust to enforce the Institutional Trustee's
rights under the Subordinated Debt Securities, except in the limited
circumstances in which the holder may take Direct Action. See "-- Voting Rights"
and "-- Declaration Events of Default." Citicorp's obligations under the
Guarantees, taken together with its obligations under the Subordinated Debt
Securities, the Indentures and the Declarations, will provide a full and
unconditional guarantee on a subordinated basis by Citicorp of payments due on
the Capital Securities.
DISTRIBUTIONS
Distributions on the Capital Securities of a Trust will be fixed at the
respective rate per annum set forth on the cover page hereof of the stated
liquidation amount of $25 per Capital Security. Distributions in arrears for
more than one quarterly period will bear interest thereon at such rate per
annum, compounded quarterly. The term "distribution" as used herein includes any
such interest payable unless otherwise stated. The amount of distributions
payable for any period shorter than a full quarterly period will be computed on
the basis of a 360-day year of twelve 30-day months.
Distributions on the Capital Securities will be cumulative, will accrue
from the applicable Expiration Date and will be payable quarterly in arrears on
February 15, May 15, August 15 and November 15 of each year, commencing May 15,
1997, when, as and if available for payment. Distributions will be made by the
Institutional Trustee or its paying agent, except as otherwise described below.
In addition, holders of the Capital Securities will be entitled to an
Additional Distribution at the per annum rates specified below for each Trust
for the period from and including February 15, 1997 to but excluding the
applicable Expiration Date, in lieu of dividends accumulating from February 15,
1997 on the Series of Preferred Stock underlying their Related Depositary Shares
accepted for
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exchange. Such Additional Distribution will be made on May 15, 1997 to the
holders of Capital Securities on the record date for such distribution.
Citicorp Capital X: 8.00%
Citicorp Capital XI: 7.50%
Citicorp Capital XII: 8.30%
Citicorp Capital XIII: 8.50%
Citicorp Capital XIV: 7.75%
Citicorp has the right under each Indenture to defer payments of interest
on any series of Subordinated Debt Securities by extending the interest payment
period from time to time on such Subordinated Debt Securities. If Citicorp were
to exercise such right, quarterly distributions on the Capital Securities of the
Trust holding such series of Subordinated Debt Securities during any such
extended interest payment period would be deferred (though such distributions
would continue to accrue with interest, compounded quarterly, because compound
interest would continue to accrue on their Subordinated Debt Securities). See
"Description of the Subordinated Debt Securities -- Interest" and "-- Option to
Extend Interest Payment Period." If distributions are deferred, the deferred
distributions and accrued interest thereon shall be paid to holders of record of
the Capital Securities as they appear on the books and records of the Trust on
the record date next following the termination of such deferral period.
Distributions on the Capital Securities of a Trust must be paid on the
dates payable to the extent that the Trust has funds available for the payment
of such distributions in its Property Account. The Trusts' funds available for
distribution to the holders of their Capital Securities will be limited to
payments received from Citicorp on their Subordinated Debt Securities. See
"Description of the Subordinated Debt Securities." The payment of distributions
out of moneys held by the Trust is guaranteed by Citicorp to the extent set
forth under "Description of the Guarantees."
Distributions on the Capital Securities of a Trust will be payable to the
holders thereof as they appear on the books and records of the Trust on the
relevant record dates, which, as long as the Capital Securities remain in
book-entry only form, will be one Business Day (as defined herein) prior to the
relevant payment dates. Such distributions will be paid by or on behalf of the
Institutional Trustee, which will hold amounts received in respect of the
Subordinated Debt Securities in the Trust's Property Account for the benefit of
the holders of the Trust Securities. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such payment will be
made as described under "-- Book-Entry Only Issuance -- The Depository Trust
Company" below. In the event that the Capital Securities do not continue to
remain in book-entry only form, the Regular Trustees will have the right to
select relevant record dates, which may be more than one Business Day but not
more than ten Business Days prior to the relevant payment dates. In the event
that any date on which distributions are to be made on the Capital Securities is
not a Business Day, then payment of the distributions payable on such date will
be made on the next succeeding day which is a Business Day (but without any
interest or other payment in respect of any such delay).
REDEMPTION
Upon the repayment of the Subordinated Debt Securities, whether at
maturity or upon redemption, the proceeds from such repayment or redemption will
simultaneously be applied to redeem, at the Redemption Price, Trust Securities
having an aggregate liquidation amount equal to the aggregate principal amount
of the Subordinated Debt Securities so repaid or redeemed; provided that holders
of Trust Securities shall be given not less than 30 nor more than 60 days'
notice of any redemption.
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The Company has the right to redeem the Subordinated Debt Securities, in
whole or in part, at any time on or after May 15, 2002, and earlier, in certain
circumstances, if a Tax Event or a Regulatory Capital Event shall have occurred
and be continuing. The "Redemption Price" for the Capital Securities, in the
case of any such redemption, will equal the applicable Redemption Percentage (as
described below) of the stated liquidation amount of $25 per Capital Security,
plus accrued distributions to but excluding the date fixed for redemption.
The Redemption Percentage will be 100% for any redemption on or after May
15, 2002.
In the case of a redemption following a Tax Event or Regulatory Capital
Event prior to May 15, 2002, the respective Redemption Percentages for the
Capital Securities of the Trusts will equal the applicable percentage set out in
the following table if the redemption date occurs in the three-month period
beginning on and including a particular Interest Payment Date and ending on and
including the day preceding the immediately following Interest Payment Date
indicated below.
REDEMPTION PERCENTAGES
<TABLE>
<CAPTION>
CITICORP CITICORP CITICORP CITICORP CITICORP
PERIOD CAPITAL X CAPITAL XI CAPITAL XII CAPITAL XIII CAPITAL XIV
- ------------------- --------- ---------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C>
February 15, 1997 % % % % %
May 15, 1997
August 15, 1997
November 15, 1997
February 15, 1998
May 15, 1998
August 15, 1998
November 15, 1998
February 15, 1999
May 15, 1999
August 15, 1999
November 15, 1999
February 15, 2000
May 15, 2000
August 15, 2000
November 15, 2000
February 15, 2001
May 15, 2001
August 15, 2001
November 15, 2001
February 15, 2002
May 15, 2002
</TABLE>
TAX EVENT REDEMPTION OR DISTRIBUTION
"Tax Event" means that the Regular Trustees shall have received an opinion
(a "Dissolution Tax Opinion") of a nationally recognized independent tax counsel
experienced in such matters ("Tax Counsel") to the effect that, as a result of
(a) any amendment to, clarification of or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein or
(b) any amendment to, clarification of or change in an interpretation or
application of such laws or regulations by any legislative body, court,
governmental agency or regulatory authority (including the enactment of any
legislation and the publication of any judicial decision or regulatory
determination on or after such date), there is more than an insubstantial risk
that (i) a Trust would be subject to United States federal
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income tax with respect to income accrued or received on the Subordinated Debt
Securities, (ii) interest payable to a Trust on any Subordinated Debt Securities
would not be deductible by Citicorp for United States federal income tax
purposes or (iii) a Trust would be subject to more than a de minimis amount of
other taxes, duties or other governmental charges, provided that any such
change, clarification or amendment becomes effective on or after the date of
this Prospectus.
If, at any time prior to May 15, 2002, a Tax Event shall occur and be
continuing, Citicorp may cause any Trust to be dissolved, with the result that
after satisfaction of liabilities to creditors, if any, Subordinated Debt
Securities held by such Trust with an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accrued and
unpaid distributions on, the Trust Securities of such Trust, would be
distributed to the holders of such Trust Securities in liquidation of such
holders' interests in the Trust on a pro rata basis within 90 days following the
occurrence of such Tax Event; provided that such dissolution and distribution
shall be conditioned on (i) the Regular Trustees' receipt of an opinion of Tax
Counsel (a "No Recognition Opinion"), which opinion may rely on published
revenue rulings of the Internal Revenue Service, to the effect that the holders
of the Trust Securities will not recognize any gain or loss for United States
federal income tax purposes as a result of such dissolution and distribution of
Subordinated Debt Securities and (ii) Citicorp being unable to avoid such Tax
Event within such 90-day period by taking some ministerial action or pursuing
some other reasonable measure that will have no adverse effect on the Trust,
Citicorp or the holders of the Trust Securities. Furthermore, if after receipt
of a Dissolution Tax Opinion by the Regular Trustees, (i) Citicorp has received
an opinion (a "Redemption Tax Opinion") of Tax Counsel that, as a result of a
Tax Event, there is more than an insubstantial risk that Citicorp would be
precluded from deducting the interest on any series of Subordinated Debt
Securities for United States federal income tax purposes, even after the
Subordinated Debt Securities were distributed to the holders of the related
Trust Securities in liquidation of such holders' interests in the Trust as
described above, or (ii) the Regular Trustees shall have been informed by such
Tax Counsel that it cannot deliver a No Recognition Opinion to the Trust,
Citicorp shall have the right, within 90 days following the occurrence of such
Tax Event, to redeem any series of Subordinated Debt Securities, in whole or in
part, upon not less than 30 nor more than 60 days' notice, for cash, with the
result that, following such redemption, the Trust Securities of the affected
Trust having an aggregate liquidation amount equal to the principal amount of
the Subordinated Debt Securities so redeemed will be redeemed by such Trust at
the Redemption Price; provided, however, that if at the time there is available
to Citicorp or such Trust the opportunity to eliminate, within such 90-day
period, the Tax Event by taking some ministerial action, such as filing a form
or making an election or pursuing some other similar reasonable measure that has
no adverse effect on such Trust, Citicorp or the holders of the related Trust
Securities, then Citicorp or such Trust will pursue such measure in lieu of
redemption of the Subordinated Debt Securities.
In the event a Tax Event in respect of the Capital Securities has occurred
and is continuing and Citicorp does not (i) redeem all of the related
Subordinated Debt Securities and thereby cause a mandatory redemption of such
Capital Securities as described above or (ii) cause the Trust to be dissolved
and cause such Subordinated Debt Securities to be distributed in liquidation
thereof as described above, some or all of the Capital Securities of such Trust
will remain outstanding and Additional Interest (as defined herein) may be
payable on the related Subordinated Debt Securities.
REGULATORY CAPITAL EVENT REDEMPTION OR DISTRIBUTION
"Regulatory Capital Event" means a determination by Citicorp, based on an
opinion of counsel experienced in such matters (who may be an employee of
Citicorp or any of its affiliates), that, as a result of (a) any amendment to,
clarification of or change (including any announced prospective change) in
applicable laws or regulations or official interpretations thereof or policies
with respect
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thereto or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment,
clarification, change, pronouncement or decision is announced or is effective
after the date of this Prospectus, there is more than an insubstantial risk that
any of the Capital Securities will no longer constitute Tier 1 capital of
Citicorp (or its equivalent) for purposes of the capital adequacy guidelines or
policies of the Board of Governors of the Federal Reserve System or its
successor as Citicorp's primary federal banking regulator.
If, at any time prior to May 15, 2002, a Regulatory Capital Event shall
occur and be continuing, Citicorp may (i) cause any Trust to be dissolved, with
the result that after satisfaction of liabilities to creditors, if any,
Subordinated Debt Securities held by such Trust with an aggregate principal
amount equal to the aggregate stated liquidation amount of, with an interest
rate identical to the distribution rate of, and accrued and unpaid interest
equal to accrued and unpaid distributions on, the Trust Securities of such
Trust, would be distributed to the holders of such Trust Securities in
liquidation of such holders' interests in the Trust on a pro rata basis within
90 days following the occurrence of such Regulatory Capital Event or (ii) within
90 days following the occurrence of such Regulatory Capital Event, redeem the
Subordinated Debt Securities, in whole or in part, upon not less than 30 nor
more than 60 days' notice, for cash, with the result that, following such
redemption, the Capital Securities of the Trust holding the redeemed
Subordinated Debt Securities will be redeemed by such Trust at the applicable
Redemption Price; provided, however, that if at the time there is available to
Citicorp or the Trust the opportunity to eliminate, within such 90-day period,
the Regulatory Capital Event by taking some ministerial action, such as filing a
form or making an election or pursuing some other similar reasonable measure
that has no adverse effect on the Trust, Citicorp or the holders of the Trust
Securities of such Trust, then Citicorp or the Trust will pursue such measure in
lieu of distribution or redemption of the related Subordinated Debt Securities.
DISTRIBUTION OF SUBORDINATED DEBT SECURITIES
After the date for any distribution of Subordinated Debt Securities upon
dissolution of a Trust, (i) the Capital Securities of such Trust will no longer
be deemed to be outstanding, (ii) the Depositary or its nominee, as the record
holder of such Capital Securities, will receive a registered global certificate
or certificates representing the Subordinated Debt Securities to be delivered
upon such distribution and (iii) any certificates representing Capital
Securities of such Trust not held by the Depositary or its nominee will be
deemed to represent Subordinated Debt Securities having an aggregate principal
amount equal to the aggregate stated liquidation amount of, with an interest
rate identical to the distribution rate of, and accrued and unpaid interest
equal to accrued and unpaid distributions on such Capital Securities until such
certificates are presented to Citicorp or its agent for transfer or reissuance.
REDEMPTION PROCEDURES
A Trust may not redeem fewer than all of its outstanding Capital
Securities unless all accrued and unpaid distributions have been paid on all
such Capital Securities for all quarterly distribution periods terminating on or
prior to the date of redemption.
If a Trust gives a notice of redemption in respect of its Capital
Securities (which notice will be irrevocable), then, by noon, New York City
time, on the redemption date, provided that Citicorp has paid to the
Institutional Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Subordinated Debt Securities held by such Trust,
the Trust will irrevocably deposit with the Depositary funds sufficient to pay
the applicable Redemption Price and will give the Depositary irrevocable
instructions and authority to pay the Redemption Price to the holders of the
Capital Securities to be redeemed. See "-- Book-Entry Only Issuance -- The
Depository Trust Company." If notice of redemption shall have been given and
funds deposited as required, then, immediately prior to the close of business on
the date of such deposit, distributions
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will cease to accrue and all rights of holders of such Capital Securities so
called for redemption will cease, except the right of the holders of such
Capital Securities to receive the Redemption Price (but without interest) on or
after such redemption date, except as described below. In the event that any
date fixed for redemption of Capital Securities is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (without any interest or other payment in
respect of any such delay), except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding Business
Day. In the event that payment of the Redemption Price in respect of Capital
Securities is improperly withheld or refused and not paid, either by the Trust
or by Citicorp pursuant to the Guarantee, distributions on such Capital
Securities will continue to accrue at the then applicable rate from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
Redemption Price.
In the event that fewer than all of the outstanding Capital Securities of
a Trust are to be redeemed, the Capital Securities will be redeemed as described
below under "-- Book-Entry Only Issuance -- The Depository Trust Company."
Subject to the foregoing, applicable law (including, without limitation,
United States federal securities laws), and any other applicable restrictions,
Citicorp or its subsidiaries may at any time, and from time to time, purchase
outstanding Capital Securities by tender, in the open market or by private
agreement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up of such Trust or termination of a Trust (each a "Liquidation"), the
then holders of the Trust Securities of such Trust will be entitled to receive
out of the assets of the Trust, after satisfaction of liabilities to creditors,
distributions in an amount equal to the aggregate of the stated liquidation
amount of $25 per Trust Security plus accrued and unpaid distributions thereon
to the date of payment (the "Liquidation Distribution"), unless, in connection
with such Liquidation, Subordinated Debt Securities in an aggregate stated
principal amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the distribution rate of, and accrued and unpaid
interest equal to accrued and unpaid distributions on, such Trust Securities
have been distributed on a pro rata basis to the holders of such Trust
Securities.
If, upon any such Liquidation, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Trust Securities shall be paid on a pro rata basis. The holders of
the Common Securities of the Trust will be entitled to receive distributions
upon any such dissolution pro rata with the holders of the Capital Securities,
except that if a Declaration Event of Default has occurred and is continuing
under the Declaration for such Trust, the Capital Securities shall have a
preference over the Common Securities with regard to such distributions.
Pursuant to the Declarations, each Trust shall dissolve (i) on May 15,
2052, the expiration of the term of the Trust, (ii) upon the bankruptcy of
Citicorp, (iii) upon the filing of a certificate of dissolution or its
equivalent with respect to Citicorp, the consent of the holders of at least a
majority in liquidation amount of the Trust Securities affected thereby voting
together as a single class to file a certificate of cancellation with respect to
the Trust or the revocation of the charter of Citicorp and the expiration of 90
days after the date of revocation without a reinstatement thereof, (iv) upon the
occurrence of a Tax Event or a Regulatory Capital Event and the distribution of
the Subordinated Debt Securities to the holders of Trust Securities in exchange
for all Trust Securities of the Trust, (v) upon the entry of a decree of a
judicial dissolution of Citicorp (or an affiliate that is a subsequent
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holder of the Common Securities) or the Trust or (vi) upon the redemption of all
the Trust Securities of such Trust. Pursuant to the Declarations, as soon as
practicable after the dissolution of a Trust and upon completion of the winding
up of such Trust, the Trust shall terminate upon the filing of a certificate of
cancellation.
DECLARATION EVENTS OF DEFAULT
An Indenture Event of Default constitutes an event of default under the
Declaration of the Trust holding Subordinated Debt Securities of the series to
which the Indenture Event of Default relates (a "Declaration Event of Default");
provided that pursuant to each Declaration, the holder of the Common Securities
will be deemed to have waived any Declaration Event of Default with respect to
the Common Securities until all Declaration Events of Default with respect to
the Capital Securities of the Trust have been cured, waived or otherwise
eliminated. Until such Declaration Events of Default with respect to the Capital
Securities of a Trust have been so cured, waived, or otherwise eliminated, the
Institutional Trustee of the Trust will be deemed to be acting solely on behalf
of the holders of the Capital Securities and only the holders of the Capital
Securities will have the right to direct the Institutional Trustee with respect
to certain matters under the Declaration, and therefore the Indenture. If the
Institutional Trustee fails to enforce its rights under the Subordinated Debt
Securities after a holder of Capital Securities of the Trust has made a written
request, such holder of record of Capital Securities may institute a legal
proceeding against Citicorp to enforce the Institutional Trustee's rights under
the Subordinated Debt Securities held by such Trust without first instituting
any legal proceeding against the Institutional Trustee or any other person or
entity. Notwithstanding the foregoing, if a Declaration Event of Default has
occurred and is continuing with respect to a Trust and such event is
attributable to the failure of Citicorp to pay interest or principal on the
Subordinated Debt Securities held by the Trust on the date such interest or
principal is otherwise payable (or in the case of redemption, the redemption
date), then a holder of Capital Securities of such Trust may directly institute
a proceeding for enforcement of payment to such holder directly of the principal
of or interest on the related Subordinated Debt Securities having a principal
amount equal to the aggregate liquidation amount of the Capital Securities of
such holder on or after the respective due date specified in the Subordinated
Debt Securities. In connection with such Direct Action, Citicorp will be
subrogated to the rights of such holder of Capital Securities under the
Declaration to the extent of any payment made by Citicorp to such holder of
Capital Securities in such Direct Action. The holders of Capital Securities will
not be able to exercise directly any other remedy available to the holders of
the Subordinated Debt Securities. Citicorp and the Trusts are each required to
file annually with the Institutional Trustee an officer's certificate as to its
compliance with all conditions and covenants under the Declarations.
VOTING RIGHTS
Except as described herein, under the Trust Act, the Trust Indenture Act
and under "Description of the Guarantees -- Modification of the Guarantees;
Assignment", and as otherwise required by law and the Declarations, the holders
of the Capital Securities will have no voting rights.
Subject to the requirement of the Institutional Trustee obtaining a tax
opinion in certain circumstances set forth in the last sentence of this
paragraph, the holders of a majority in aggregate liquidation amount of the
Capital Securities of a Trust have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Institutional
Trustee of such Trust, or direct the exercise of any trust or power conferred
upon the Institutional Trustee under the Declaration of such Trust including the
right to direct the Institutional Trustee, as holder of the Subordinated Debt
Securities issued to the Trust, to (i) exercise the remedies available to it
under the applicable Indenture as a holder of the Subordinated Debt Securities,
(ii) waive any past default that is waivable under the Indenture, (iii) exercise
any right to rescind or annul a declaration that the
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principal of all the Subordinated Debt Securities shall be due and payable or
(iv) consent to any amendment, modification or termination of the Indenture or
the Subordinated Debt Securities where such consent shall be required; provided,
however, that, where a consent or action under the Indenture would require the
consent or act of holders of more than a majority in principal amount of the
Subordinated Debt Securities (a "Super-Majority") affected thereby, only the
holders of at least a percentage equivalent to such Super-Majority in aggregate
liquidation amount of the Capital Securities of such Trust may direct the
Institutional Trustee to give such consent or take such action. The
Institutional Trustee shall notify all holders of the Trust's Capital Securities
of any notice of default received from the Debt Trustee with respect to the
Subordinated Debt Securities held by the Trust. Such notice shall state that
such Indenture Event of Default also constitutes a Declaration Event of Default.
Except with respect to directing the time, method and place of conducting a
proceeding for a remedy, the Institutional Trustee shall not take any of the
actions described in clauses (i), (ii), (iii) or (iv) above unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect that,
as a result of such action, the Trust will not fail to be classified as a
grantor trust for United States federal income tax purposes.
In the event the consent of the Institutional Trustee of a Trust, as
the holder of Subordinated Debt Securities, is required under the Indenture with
respect to any amendment, modification or termination of the Indenture, the
Institutional Trustee shall request the direction of the holders of the Trust
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a majority in liquidation amount of the Trust Securities of such Trust voting
together as a single class; provided, however, that (i) where the taking of any
such action under the Indenture would require the consent of a Super- Majority,
the Institutional Trustee may only give such consent at the direction of the
holders of at least the proportion in liquidation amount of the Trust Securities
of such Trust which the relevant Super-Majority represents of the aggregate
principal amount of the Subordinated Debt Securities outstanding and (ii) where
the taking of such action would require the consent of every holder of
Subordinated Debt Securities, the consent of all holders of Trust Securities of
such Trust shall be required. The Institutional Trustee shall not take any such
action in accordance with the directions of the holders of the Trust Securities
unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that the Trust will not be classified as other than a grantor trust for
United States federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a waiver of
the corresponding Declaration Event of Default.
Any required approval or direction of holders of Capital Securities of
a Trust may be given at a separate meeting of holders of such Capital Securities
convened for such purpose, at a meeting of all of the holders of Trust
Securities of the Trust or pursuant to written consent. The Regular Trustees of
a Trust will cause a notice of any meeting at which holders of Capital
Securities are entitled to vote, or of any matter upon which action by written
consent of such holders is to be taken, to be mailed to each holder of record of
Capital Securities. Each such notice will include a statement setting forth the
following information: (i) the date of such meeting or the date by which such
action is to be taken; (ii) a description of any resolution proposed for
adoption at such meeting on which such holders are entitled to vote or of such
matter upon which written consent is sought; and (iii) instructions for the
delivery of proxies or consents. No vote or consent of the holders of Capital
Securities will be required for a Trust to redeem and cancel Capital Securities
or distribute Subordinated Debt Securities in accordance with its Declaration.
Notwithstanding that holders of Capital Securities are entitled to vote
or consent under any of the circumstances described above, any of the Capital
Securities that are owned at such time by Citicorp or any entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, Citicorp, shall not be entitled to vote or consent and shall, for
purposes of such
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vote or consent, be treated as if such Capital Securities were not outstanding,
unless all of the Capital Securities of the Trust are owned by Citicorp or any
such entity.
The procedures by which holders of Capital Securities may exercise
their voting rights are described below. See "-- Book-Entry Only Issuance -- The
Depository Trust Company" below.
Holders of the Capital Securities will have no rights to appoint or
remove the Trustees, who may be appointed, removed or replaced solely by
Citicorp as the indirect or direct holder of all of the Common Securities.
MODIFICATION OF THE DECLARATIONS
Each Declaration may be modified and amended if approved by the
Regular Trustees (and in certain circumstances the Institutional Trustee) of the
applicable Trust, subject to certain conditions, provided that, if any proposed
amendment provides for, or the Regular Trustees otherwise propose to effect, (i)
any action that would adversely affect the powers, preferences or special rights
of the Trust Securities of the Trust, whether by way of amendment to the
Declaration or otherwise or (ii) the dissolution, winding-up or termination of
the Trust other than pursuant to the terms of the Declaration, then the holders
of the outstanding Trust Securities of the Trust voting together as a single
class will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of at least a
majority in liquidation amount of the Trust Securities of the Trust affected
thereby; provided that, if any amendment or proposal referred to in clause (i)
above would adversely affect only the Capital Securities or the Common
Securities of the Trust, then only the affected class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of a majority in liquidation amount of such
class.
Notwithstanding the foregoing, no amendment or modification may be made
to a Declaration of a Trust if such amendment or modification would (i) cause
the Trust to be classified for purposes of United States federal income taxation
as other than a grantor trust, (ii) reduce or otherwise adversely affect the
powers of the Institutional Trustee in contravention of the Trust Indenture Act
or (iii) cause the Trust to be deemed an "investment company" which is required
to be registered under the Investment Company Act of 1940, as amended (the "1940
Act").
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
A Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety, to any corporation or other body, except as
described below. A Trust may, with the consent of its Regular Trustees and
without the consent of the holders of its Trust Securities or its Institutional
Trustee, consolidate, amalgamate, merge with or into, or be replaced by a trust
organized as such under the laws of any State of the United States; provided,
that (i) if the Trust is not the survivor such successor entity either (x)
expressly assumes all of the obligations of the Trust under the Trust Securities
or (y) substitutes for the Trust Securities other securities having
substantially the same terms as the Trust Securities (the "Successor
Securities"), so long as the Successor Securities rank the same as the Common
Securities and Capital Securities, respectively, rank with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii)
Citicorp expressly acknowledges a trustee of such successor entity possessing
the same powers and duties as the Institutional Trustee as the holder of the
Subordinated Debt Securities, (iii) the Capital Securities or any Successor
Securities are listed quoted, or any Successor Securities will be so upon
notification of issuance, on any national securities exchange or other
organization on which the Capital Securities are then listed or quoted, (iv)
such merger, consolidation, amalgamation or replacement does not cause the
Capital Securities of the Trust (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
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organization, (v) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the holders of
the Trust Securities of the Trust (including any Successor Securities) in any
material respect (other than with respect to any dilution of the holders'
interest in the new entity), (vi) such successor entity has a purpose identical
to that of the Trust, (vii) prior to such merger, consolidation, amalgamation or
replacement, Citicorp has received an opinion of counsel to the Trust to the
effect that (A) such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the holders of the
Trust Securities of the Trust (including any Successor Securities) in any
material respect (other than with respect to any dilution of the holders'
interest in the new entity), and (B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor such successor entity will be
required to register as an investment company under the 1940 Act and (C) the
Trust or successor entity will continue to be classified as a grantor trust for
United States federal income tax purposes and (viii) Citicorp guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantees and the Common Securities Guarantees (as
defined herein). Notwithstanding the foregoing, a Trust shall not, except with
the consent of holders of 100 percent in liquidation amount of its Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it, if such consolidation, amalgamation, merger or
replacement would cause the Trust or the successor entity to be classified as
other than a grantor trust for United States federal income tax purposes.
BOOK-ENTRY ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
DTC will act as Depositary for the Capital Securities. The Capital
Securities will be issued only as fully-registered securities registered in the
name of Cede & Co. (DTC's nominee). One or more fully-registered global Capital
Securities certificates ("Global Certificates"), representing the total
aggregate number of Capital Securities of each Trust, will be issued and will be
deposited with DTC.
The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in securities
represented by a global certificate deposited with DTC.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Participants in DTC
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is owned by a number of its
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others, such as securities brokers and
dealers, banks and trust companies that clear transactions through or maintain a
custodial relationship with a Participant either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its Participants are
on file with the Securities and Exchange Commission.
Purchases of Capital Securities within the DTC system must be made by or
through Participants, which will receive a credit for the Capital Securities on
DTC's records. The ownership interest of each actual beneficial owner of each
Capital Security ("Beneficial Owner") is in turn to be recorded on the
Participants' and Indirect Participants' records. Beneficial Owners will not
receive
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written confirmation from DTC of their acquisition of Capital Securities, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Participants or Indirect Participants through which the Beneficial
Owners acquired Capital Securities. Transfers of ownership interests in the
Capital Securities are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not
receive certificates representing their ownership interests in the Capital
Securities, except in the event that use of the book-entry system for the
Capital Securities is discontinued.
To facilitate subsequent transfers, all Capital Securites deposited by
Participants with DTC are registered in the name of DTC's nominee, Cede & Co.
The deposit of Capital Securities with DTC and their registration in the name of
Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Capital Securities. DTC's records reflect only
the identity of the Direct Participants to whose accounts such Capital
Securities are credited, which may or may not be the Beneficial Owners. The
Participants and Indirect Participants will remain responsible for keeping
account of their holdings on behalf of their customers.
So long as DTC, or its nominee, is the registered owner or holder of a
Global Certificate, DTC or such nominee, as the case may be, will be considered
the sole owner or holder of the Capital Securities represented thereby for all
purposes under the Declarations and the Capital Securities. No beneficial owner
of an interest in a Global Certificate will be able to transfer that interest
except in accordance with DTC's applicable procedures, in addition to those
provided for under the Declarations.
DTC has advised Citicorp that it will take any action permitted to be
taken by a holder of Capital Securities (including the presentation of Capital
Securities for exchange as described below) only at the direction of one or more
Participants to whose account the DTC interests in the Global Certificates are
credited and only in respect of such portion of the aggregate liquidation amount
of Capital Securities as to which such Participant or Participants has or have
given such direction.
Conveyance of notices and other communications by DTC to Participants,
by Participants to Indirect Participants, and by Participants and Indirect
Participants to Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in effect from
time to time.
Redemption notices in respect of the Capital Securities held in
book-entry form will be sent to Cede & Co. If less than all of the Capital
Securities of a Trust are being redeemed, DTC will determine the amount of the
interest of each Participant to be redeemed in accordance with its procedures.
Although voting with respect to the Capital Securities is limited, in
those cases where a vote is required, neither DTC nor Cede & Co. will itself
consent or vote with respect to Capital Securities. Under its usual procedures,
DTC would mail an Omnibus Proxy to the relevant Trust as soon as possible after
the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting
rights to those Participants to whose accounts the Capital Securities of such
Trust are credited on the record date (identified in a listing attached to the
Omnibus Proxy).
Distributions on the Capital Securities held in book-entry form will be
made to DTC in immediately available funds. DTC's practice is to credit
Participants' accounts on the relevant payment date in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe that
it will not receive payments on such payment date. Payments by Participants and
Indirect Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participants and Indirect Participants and not of DTC, the Trusts or Citicorp,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of distributions to DTC is the responsibility of the
Trust, disbursement of such
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payments to Participants is the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners is the responsibility of Participants and
Indirect Participants.
Except as provided herein, a Beneficial Owner of an interest in a Global
Certificate will not be entitled to receive physical delivery of Capital
Securities. Accordingly, each Beneficial Owner must rely on the procedures of
DTC to exercise any rights under the Capital Securities.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Certificates among Participants of DTC, DTC
is under no obligation to perform or continue to perform such procedures, and
such procedures may be discontinued at any time. Neither Citicorp, the Trusts
nor the Trustees will have any responsibility for the performance by DTC or its
Participants or Indirect Participants under the rules and procedures governing
DTC. DTC may discontinue providing its services as securities depositary with
respect to the Capital Securities of any Trust at any time by giving notice to
such Trust. Under such circumstances, in the event that a successor securities
depositary is not obtained, Capital Security certificates are required to be
printed and delivered. Additionally, any Trust (with the consent of Citicorp)
may decide to discontinue use of the system of book-entry transfers through DTC
(or a successor depositary). In that event, certificates for the Capital
Securities of such Trust will be printed and delivered.
PAYMENTS AND PAYING AGENCY
Payments in respect of the Capital Securities represented by the Global
Certificates will be made to DTC, which will credit the relevant accounts at DTC
on the applicable distribution dates, provided that, in the case of certificated
Capital Securities, such payments will be made by check mailed to the address of
the holder entitled thereto at its registered address. The paying agent will
initially be Citibank, N.A. The paying agent will be permitted to resign upon 30
days' written notice to the Institutional Trustee. In the event that Citibank,
N.A. shall no longer be the paying agent, the Institutional Trustee will appoint
a successor to act as paying agent (which shall be a bank or trust company).
REGISTRAR AND TRANSFER AGENT
Citibank, N.A. will act as registrar and transfer agent for the Capital
Securities. Registration of transfers of Capital Securities will be effected
without charge by or on behalf of the Trust issuing such Capital Securities, but
upon payment (with the giving of such indemnity as the Trust or the Company may
reasonably require) in respect of any tax or other government charges which may
be imposed in relation to it. A Trust will not be required to register or cause
to be registered the transfer of Capital Securities after such Capital
Securities have been called for redemption.
INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE
The Institutional Trustee of each Trust, prior to the occurrence of a
default with respect to such Trust and after the curing of any defaults that may
have occurred, undertakes to perform only such duties as are specifically set
forth in the applicable Declaration and, after a default of which it has
knowledge, shall exercise the same degree of care as a prudent individual would
exercise in the conduct of his or her own affairs. Subject to such provisions,
the Institutional Trustee is under no obligation to exercise any of the powers
vested in it by the applicable Declaration at the request of any holder of
Capital Securities, unless offered reasonable indemnity by such holder against
the costs, expenses and liabilities which might be incurred thereby. The holders
of Capital Securities will not be required to offer such indemnity in the event
such holders, by exercising their voting rights, direct the Institutional
Trustee to take any action it is empowered to take under the applicable
Declaration following a Declaration Event of Default. The Institutional Trustee
also serves as trustee under the Guarantees and the Indentures.
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GOVERNING LAW
The Declarations and the Capital Securities will be governed by, and
construed in accordance with, the laws of the State of Delaware.
MISCELLANEOUS
The Regular Trustees are authorized and directed to operate each Trust in
such a way so that the Trust will not be required to register as an "investment
company" under the 1940 Act or characterized as other than a grantor trust for
United States federal income tax purposes. Citicorp intends to conduct its
affairs so that the Subordinated Debt Securities will be treated as indebtedness
of Citicorp for United States federal income tax purposes. In this connection,
Citicorp and the Regular Trustees may take any action, not inconsistent with
applicable law, the certificate of trust of each Trust, the Declarations or the
certificate of incorporation of Citicorp, that each of Citicorp and the Regular
Trustees determine in their discretion to be necessary or desirable to achieve
such end, as long as such action does not adversely affect the interests of the
holders of the Capital Securities or vary the terms thereof.
Holders of the Capital Securities have no preemptive rights.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST CAPITAL SECURITIES
If a Declaration Event of Default under the Declaration of a Trust occurs
and is continuing, then the holders of Capital Securities of such Trust would
rely on the enforcement by the Institutional Trustee of its rights as a holder
of the applicable series of Subordinated Debt Securities against Citicorp. In
addition, the holders of a majority in liquidation amount of the Capital
Securities of such Trust will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Institutional
Trustee or to direct the exercise of any trust or power conferred upon the
Institutional Trustee under the applicable Declaration, including the right to
direct the Institutional Trustee to exercise the remedies available to it as a
holder of the Subordinated Debt Securities. If the Institutional Trustee fails
to enforce its rights under the applicable series of Sub ordinated Debt
Securities, a holder of Capital Securities of such Trust may institute a legal
proceeding directly against Citicorp to enforce the Institutional Trustee's
rights under the applicable series of Subordinated Debt Securities without first
instituting any legal proceeding against the Institutional Trustee or any other
person or entity. Notwithstanding the foregoing, if a Declaration Event of
Default has occurred and is continuing and such event is attributable to the
failure of Citicorp to pay interest or principal on the series of Subordinated
Debt Securities held by the relevant Trust on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date), then a holder of Capital Securities of such Trust may institute a Direct
Action for enforcement of payment to such holder of the principal of or interest
on the applicable series of Subordinated Debt Securities having a principal
amount equal to the aggregate liquidation amount of the Capital Securities of
such holder on or after the respective due date specified in the applicable
series of Subordinated Debt Securities. In connection with such Direct Action,
Citicorp will be subrogated to the rights of such holder of Capital Securities
under the applicable Declaration to the extent of any payment made by Citicorp
to such holder of Capital Securities in such Direct Action.
DESCRIPTION OF THE GUARANTEES
Set forth below is a summary of information concerning the Guarantees
which will be executed and delivered by Citicorp for the benefit of the holders
from time to time of Capital Securities. One Guarantee will be executed for the
benefit of the holders of Capital Securities of each Trust. Each Guarantee will
be qualified as an indenture under the Trust Indenture Act. Wilmington
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Trust Company will act as indenture trustee under each Guarantee for purposes of
the Trust Indenture Act (the "Guarantee Trustee"). The terms of each Guarantee
will be those set forth in such Guarantee and those made part of such Guarantee
by the Trust Indenture Act. The summary of the material terms of the Guarantees
applies equally to the Guarantee for each Trust, does not purport to be complete
and is subject in all respects to the provisions of, and is qualified in its
entirety by reference to, the form of Guarantee, which is filed as an exhibit to
the Registration Statement of which this Prospectus forms a part, and the Trust
Indenture Act. Each Guarantee will be held by the Guarantee Trustee for the
benefit of the holders of the Capital Securities of the applicable Trust.
GENERAL
Pursuant to each Guarantee, Citicorp will irrevocably and unconditionally
agree, to the extent set forth therein, to pay in full, to the holders of the
Capital Securities issued by a Trust, the Guarantee Payments (as defined below)
(except to the extent paid by such Trust), as and when due, regardless of any
defense, right of set-off or counterclaim which such Trust may have or assert.
The following payments with respect to Capital Securities issued by a Trust to
the extent not paid by such Trust (the "Guarantee Payments"), will be subject to
the Guarantee thereon (without duplication): (i) any accrued and unpaid
distributions which are required to be paid on such Capital Securities, to the
extent such Trust shall have funds available therefor; (ii) the Redemption
Price, including all accrued and unpaid distributions to the date of payment, to
the extent such Trust has funds available therefor with respect to any Capital
Securities called for redemption by such Trust and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of such Trust (other than in
con nection with the distribution of Subordinated Debt Securities to the holders
of Capital Securities or the redemption of all of the Capital Securities), the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on such Capital Securities to the date of payment, to the extent
such Trust has funds available therefor and (b) the amount of assets of such
Trust remaining available for distribution to holders of such Capital Securities
in liquidation of such Trust. The redemption price and liquidation amount will
be fixed at the time the Capital Securities are issued. Citicorp's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by Citicorp to the holders of Capital Securities or by causing the
applicable Trust to pay such amounts to such holders.
Each Guarantee will not apply to any payment of distributions except to
the extent the applicable Trust shall have funds available therefor. If Citicorp
does not make interest payments on the Subordinated Debt Securities purchased by
a Trust, such Trust will not pay distributions on the Capital Securities issued
by such Trust and will not have funds available therefor. See "Description of
the Subordinated Debt Securities -- Certain Covenants of Citicorp." The
Guarantees, when taken together with Citicorp's obligations under the
Subordinated Debt Securities, the Indentures and the Declarations, including its
obligations to pay costs, expenses, debts and liabilities of such Trust (other
than with respect to the Trust Securities), will provide a full and
unconditional guarantee on a subordinated basis by Citicorp of payments due on
the Capital Securities.
Citicorp has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the Trusts with respect to the Common Securities
(the "Common Securities Guaran tees") to the same extent as the Guarantees,
except that upon an Event of Default under the Indenture, holders of Capital
Securities shall have priority over holders of Common Securities with respect to
distributions and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF CITICORP
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In each Guarantee, Citicorp will covenant that, so long as any Capital
Securities issued by the applicable Trust remain outstanding, if there shall
have occurred any event that would constitute an event of default under such
Guarantee or the Declaration of such Trust, then (a) Citicorp shall not declare
or pay any dividend on, make any distributions with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock (other than (i) purchases or acquisitions of shares of Citicorp
Common Stock in connection with the satisfaction by Citicorp of its obligations
under any employee benefit plans or any other contractual obligations of
Citicorp (other than a contractual obligation ranking pari passu with or junior
in right of payment to the Subordinated Debt Securities issued to the related
Trust) entered into prior to the date of issuance of the Subordinated Debt
Securities, (ii) as a result of a reclassification of Citicorp capital stock or
the exchange or conversion of one class or series of Citicorp capital stock for
another class or series of Citicorp capital stock or (iii) the purchase of
fractional interests in shares of Citicorp capital stock pursuant to the
conversion or exchange provisions of such Citicorp capital stock or the security
being converted or exchanged) and (b) Citicorp shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by Citicorp which rank pari passu with or junior in right
of payment to such Subordinated Debt Securities.
MODIFICATION OF THE GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not adversely affect the
rights of holders of Capital Securities (in which case no vote will be
required), each Guarantee may be amended only with the prior approval of the
holders of not less than a majority in liquidation amount of the outstanding
Capital Securities issued by the applicable Trust. All guarantees and agreements
contained in a Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Company and shall inure to the benefit of the holders
of the Capital Securities of the applicable Trust then outstanding.
TERMINATION
Each Guarantee will terminate as to the Capital Securities issued by the
applicable Trust (a) upon full payment of the Redemption Price of all Capital
Securities of such Trust, (b) upon distribu tion of the Subordinated Debt
Securities held by such Trust to the holders of the Capital Securities of such
Trust or (c) upon full payment of the amounts payable in accordance with the
Declaration of such Trust upon liquidation of such Trust. Each Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any holder of Capital Securities issued by the applicable Trust must
restore payment of any sums paid under such Capital Securities or such
Guarantee.
EVENTS OF DEFAULT
An event of default under a Guarantee will occur upon the failure of
Citicorp to perform any of its payment or other obligations thereunder.
The holders of a majority in liquidation amount of the Capital Securities
relating to such Guarantee have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under such Guarantee. If the Guarantee
Trustee fails to enforce such Guarantee, any holder of Capital Securities
relating to such Guarantee may insti tute a legal proceeding directly against
Citicorp to enforce the Guarantee Trustee's rights under such Guarantee, without
first instituting a legal proceeding against the relevant Trust, the Guarantee
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Trustee or any other person or entity. Notwithstanding the foregoing, if
Citicorp has failed to make a guarantee payment, a holder of Capital Securities
may directly institute a proceeding against Citicorp for enforcement of the
Guarantee for such payment. Citicorp waives any right or remedy to require that
any action be brought first against a Trust or any other person or entity before
proceeding directly against Citicorp.
STATUS OF THE GUARANTEES
The Guarantees will constitute unsecured obligations of Citicorp and will
rank (i) subordinate and junior in right of payment to all other liabilities of
Citicorp, (ii) pari passu with the most senior preferred or preference stock now
or hereafter issued by Citicorp and with any guarantee now or hereafter entered
into by Citicorp in respect of any preferred or preference stock of any
affiliate of Citicorp, and (iii) senior to Citicorp's common stock. The terms of
the Capital Securities provide that each holder of Capital Securities issued by
the applicable Trust by acceptance thereof agrees to the subordination
provisions and other terms of the Guarantee relating thereto.
The Guarantees will constitute a guarantee of payment and not of
collection (that is, the guaranteed party may institute a legal proceeding
directly against the guarantor to enforce its rights under the Guarantee without
instituting a legal proceeding against any other person or entity).
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default with respect
to a Guarantee, un dertakes to perform only such duties as are specifically set
forth in such Guarantee and, after default, shall exercise the same degree of
care as a prudent individual would exercise in the conduct of his or her own
affairs. Subject to such provisions, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by a Guarantee at the
request of any holder of Capital Securities, unless offered reasonable indemnity
against the costs, expenses and liabilities which might be incurred there by.
Citicorp or its affiliates maintain certain accounts and other banking
relationships with the Guarantee Trustee and its affiliates.
GOVERNING LAW
The Guarantees will be governed by, and construed in accordance with, the
laws of the State of New York.
EFFECT OF OBLIGATIONS UNDER THE
SUBORDINATED DEBT SECURITIES AND THE GUARANTEES
As set forth in the Declaration, the sole purpose of each of the Trusts is
to issue the Trust Securities evidencing undivided beneficial interests in the
assets of each of the Trusts, and to hold one series of the Subordinated Debt
Securities.
As long as payments of interest and other payments are made when due on
the Subordinated Debt Securities issued to a Trust, such payments will be
sufficient to cover all other distributions and payments due on the Trust
Securities of such Trust because of the following factors: (i) the aggregate
principal amount of such Subordinated Debt Securities will be equal to the sum
of the
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aggregate stated liquidation amount of such Trust Securities; (ii) the interest
rate and the interest and other payment dates on such Subordinated Debt
Securities will match the distribution rate and distribution and other payment
dates for the Trust Securities; (iii) Citicorp shall pay all, and the applicable
Trust shall not be obligated to pay, directly or indirectly, all costs,
expenses, debt, and obligations of the applicable Trust (other than with respect
to the Trust Securities); and (iv) each Declaration further provides that the
Regular Trustees shall, and shall not cause or permit the applicable Trust to,
among other things, engage in any activity that is not consistent with the
purposes of the applicable Trust.
Payments of distributions (to the extent funds therefor are available) and
other payments due on the Capital Securities (to the extent funds therefor are
available) are guaranteed by Citicorp as and to the extent set forth under
"Description of the Guarantees." If Citicorp does not make interest pay ments on
the Subordinated Debt Securities held by the applicable Trust, it is expected
that the applicable Trust will not have sufficient funds to pay distributions on
its Capital Securities. The Guarantees do not apply to any payment of
distributions unless and until the applicable Trust has sufficient funds for the
payment of such distributions. The Guarantees cover the payment of distributions
and other payments on the Capital Securities only if and to the extent that
Citicorp has made a payment of interest or principal on the Subordinated Debt
Securities held by the applicable Trust as its sole asset. The Guarantees, when
taken together with Citicorp's obligations under the Subordinated Debt
Securities and the Indentures and its obligations under the Declarations,
including its obligations to pay costs, expenses, debts and liabilities of the
Trusts (other than with respect to the Trust Securities), provide a full and
unconditional guarantee on a subordinated basis by Citicorp of amounts payable
on the Capital Securities.
If Citicorp fails to make interest or other payments on any series of
Subordinated Debt Secu rities when due (taking account of any Extension Period),
or if any other Indenture Event of Default occurs, the Declarations provide a
mechanism whereby the holders of the Capital Securities of a Trust, using the
procedures described in "Description of the Capital Securities -- Book-Entry
Only Issuance -- The Depository Trust Company" and "-- Voting Rights", may
direct the Institutional Trustee to enforce its rights under the Subordinated
Debt Securities held by such Trust. If the Institutional Trustee fails to
enforce its rights under the Subordinated Debt Securities, a holder of Capital
Securities of such Trust may institute a legal proceeding against Citicorp to
enforce the Institutional Trustee's rights under the Subordinated Debt
Securities without first instituting any legal proceeding against the
Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if a Declaration Event of Default has occurred and is continuing and
such event is attrib utable to the failure of Citicorp to pay interest or
principal on Subordinated Debt Securities on the date such interest or principal
is otherwise payable (or in the case of redemption on the redemption date), then
a holder of Capital Securities of a Trust holding such Subordinated Debt
Securities may institute a Direct Action for payment on or after the respective
due date specified in such Subordinat ed Debt Securities. In connection with
such Direct Action, Citicorp will be subrogated to the rights of such holder of
Capital Securities under the Declaration to the extent of any payment made by
Citicorp to such holder of Capital Securities in such Direct Action. Citicorp,
under each Guarantee, acknowledges that the Guarantee Trustee shall enforce each
Guarantee on behalf of the holders of the Capital Securities. If Citicorp fails
to make payments under a Guarantee, the Guarantee provides a mechanism whereby
the holders of the related Capital Securities may direct the Guarantee Trustee
to enforce its rights thereunder. Any holder of Capital Securities may institute
a legal proceeding directly against Citicorp to enforce the Guarantee Trustee's
rights under the applicable Guarantee without first instituting a legal
proceeding against the applicable Trust, the Guarantee Trustee, or any other
person or entity.
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DESCRIPTION OF THE PREFERRED STOCK AND DEPOSITARY SHARES
PREFERRED STOCK
The following description of the particular terms of the shares of each
Series of Preferred Stock subject to the Offers supplements the description of
the general terms and provisions of such Preferred Stock set forth below under
"--General Terms and Provisions," to which description reference is hereby made.
SERIES 16 PREFERRED STOCK
The Series 16 Preferred Stock is a single series consisting of 1,300,000
shares. The holders of Series 16 Preferred Stock have no preemptive rights.
The Series 16 Preferred Stock ranks on a parity as to payment of dividends
(except with respect to the cumulation thereof) and distribution of assets upon
dissolution, liquidation or winding up of Citicorp with each other outstanding
series of preferred stock issued by Citicorp. The Series 16 Preferred Stock,
together with each other series of preferred stock, ranks prior to the Common
Stock of Citicorp as to the payment of dividends and distribution of assets upon
dissolution, liquidation or winding up of Citicorp.
The Series 16 Preferred Stock is not convertible into shares of Common
Stock of Citicorp and is not subject to any sinking fund or other obligation of
Citicorp to repurchase the Series 16 Preferred Stock.
DIVIDENDS
Holders of shares of Series 16 Preferred Stock are entitled to receive,
as, if and when declared by the Board of Directors of Citicorp out of assets of
Citicorp legally available for payment, noncumulative cash dividends at the
annual rate of $20.00 per share (equivalent to $2.00 per Depositary Share).
Dividends on the Series 16 Preferred Stock are payable quarterly, as, if and
when declared by the Board of Directors of Citicorp, on February 15, May 15,
August 15, and November 15 of each year at such annual rate.
The right of the holders of the Series 16 Preferred Stock to receive
dividends is noncumulative. Accordingly, if the Board of Directors of Citicorp
fails to declare a dividend on the Series 16 Preferred Stock for any dividend
period, Citicorp will have no obligation to pay a dividend for such period,
whether or not dividends on the Series 16 Preferred Stock are declared for any
future dividend period.
REDEMPTION
The Series 16 Preferred Stock is not subject to any mandatory redemption,
sinking fund or other similar provisions. Prior to June 1, 1998, the Series 16
Preferred Stock is not redeemable, except under certain limited circumstances as
described below under "--- General Terms and Provisions -- Redemption." On or
after such date, shares of Series 16 Preferred Stock will be redeemable, in
whole or in part, at the option of Citicorp, at any time and from time to time,
upon not less than thirty nor more than sixty days' notice, at $250 per share of
Series 16 Preferred Stock (equivalent to $25 per Depositary Share), plus accrued
and unpaid dividends (whether or not declared) from the immediately preceding
dividend payment date to the date fixed for redemption.
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Holders of Series 16 Preferred Stock will have no right to require
redemption of the Series 16 Preferred Stock.
SERIES 17 PREFERRED STOCK
The Series 17 Preferred Stock is a single series consisting of 1,400,000
shares. The holders of Series 17 Preferred Stock have no preemptive rights.
The Series 17 Preferred Stock ranks on a parity as to payment of dividends
(except with respect to the cumulation thereof) and distribution of assets upon
dissolution, liquidation or winding up of Citicorp with each other outstanding
series of preferred stock issued by Citicorp. The Series 17 Preferred Stock,
together with each other series of preferred stock, ranks prior to the Common
Stock of Citicorp as to the payment of dividends and distribution of assets upon
dissolution, liquidation or winding up of Citicorp.
The Series 17 Preferred Stock is not convertible into shares of Common
Stock of Citicorp and is not subject to any sinking fund or other obligation of
Citicorp to repurchase the Series 17 Preferred Stock.
DIVIDENDS
Holders of shares of Series 17 Preferred Stock are entitled to receive,
as, if and when declared by the Board of Directors of Citicorp or the Stock
Committee thereof out of assets of Citicorp legally available for payment,
noncumulative cash dividends at the annual rate of $18.75 per share (equivalent
to $1.875 per Depositary Share). Dividends on the Series 17 Preferred Stock are
payable quarterly, as, if and when declared by the Board of Directors of
Citicorp, on February 15, May 15, August 15, and November 15 of each year at
such annual rate.
The right of the holders of the Series 17 Preferred Stock to receive
dividends is noncumulative. Accordingly, if the Board of Directors of Citicorp
fails to declare a dividend on the Series 17 Preferred Stock for any dividend
period, Citicorp will have no obligation to pay a dividend for such period,
whether or not dividends on the Series 17 Preferred Stock are declared for any
future dividend period.
REDEMPTION
The Series 17 Preferred Stock is not subject to any mandatory redemption,
sinking fund or other similar provisions. Prior to September 1, 1998, the Series
17 Preferred Stock is not redeemable, except under certain limited circumstances
as described below under "--- General Terms and Provisions ---Redemption". On or
after such date, shares of Series 17 Preferred Stock will be redeemable, in
whole or in part, at the option of Citicorp, at any time and from time to time,
upon not less than thirty nor more than sixty days' notice, at $250 per share of
Series 17 Preferred Stock (equivalent to $25 per Depositary Share), plus accrued
and unpaid dividends (whether or not declared) from the immediately preceding
dividend payment date to the date fixed for redemption.
Holders of Series 17 Preferred Stock will have no right to require
redemption of the Series 17 Preferred Stock.
SERIES 20 PREFERRED STOCK
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The Series 20 Preferred Stock is a single series consisting of 500,000
shares. The holders of Series 20 Preferred Stock have no preemptive rights.
The Series 20 Preferred Stock ranks on a parity as to payment of dividends
(except with respect to the cumulation thereof) and distribution of assets upon
dissolution, liquidation or winding up of Citicorp with each other outstanding
series of preferred stock issued by Citicorp. The Series 20 Preferred Stock,
together with each other series of preferred stock, ranks prior to the Common
Stock of Citicorp as to the payment of dividends and distribution of assets upon
dissolution, liquidation or winding up of Citicorp.
The Series 20 Preferred Stock is not convertible into shares of Common
Stock of Citicorp and is not subject to any sinking fund or other obligation of
Citicorp to repurchase the Series 20 Preferred Stock.
DIVIDENDS
Holders of shares of Series 20 Preferred Stock are entitled to receive as,
if and when declared by the Board of Directors of Citicorp or the Stock
Committee thereof out of assets of Citicorp legally available for payment,
noncumulative cash dividends at the annual rate of $20.75 per share (equivalent
to $2.075 per Depositary Share). Dividends on the Series 20 Preferred Stock are
payable quarterly, as, if and when declared by the Board of Directors of
Citicorp or the Stock Committee thereof on February 15, May 15, August 15 and
November 15 of each year at such annual rate.
The right of the holders of the Series 20 Preferred Stock to receive
dividends is noncumulative. Accordingly, if the Board of Directors or Stock
Committee of Citicorp fails to declare a dividend on the Series 20 Preferred
Stock for any dividend period, Citicorp will have no obligation to pay a
dividend for such period, whether or not dividends on the Series 20 Preferred
Stock are declared for any future dividend period.
REDEMPTION
The Series 20 Preferred Stock is not subject to any mandatory redemption,
sinking fund or other similar provisions. Prior to November 15, 1999, the Series
20 Preferred Stock is not redeemable, except under certain limited circumstances
as described below under "-- General Terms and Provisions -- Redemption". On or
after such date, shares of Series 20 Preferred Stock will be redeemable, in
whole or in part, at the option of Citicorp, at any time and from time to time,
upon not less than thirty nor more than sixty days' notice, at $250 per share of
Series 20 Preferred Stock (equivalent to $25 per Depositary Share), plus accrued
and unpaid dividends (whether or not declared) from the immediately preceding
dividend payment date to the date fixed for redemption.
Holders of Series 20 Preferred Stock will have no right to require
redemption of the Series 20 Preferred Stock.
SERIES 21 PREFERRED STOCK
The Series 21 Preferred Stock is a single series consisting of 600,000
shares. The holders of Series 21 Preferred Stock have no preemptive rights.
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The Series 21 Preferred Stock ranks on a parity as to payment of dividends
(except with respect to the cumulation thereof) and distribution of assets upon
dissolution, liquidation or winding up of Citicorp with each other outstanding
series of preferred stock issued by Citicorp. The Series 21 Preferred Stock,
together with each other series of preferred stock, ranks prior to the Common
Stock of Citicorp as the payment of dividends and distribution of assets upon
dissolution, liquidation or winding up of Citicorp.
The Series 21 Preferred Stock is not convertible into shares of Common
Stock of Citicorp and is not subject to any sinking fund or other obligation of
Citicorp to repurchase the Series 21 Preferred Stock.
DIVIDENDS
Holders of shares of Series 21 Preferred Stock are entitled to receive,
as, if and when declared by the Board of Directors of Citicorp or the Stock
Committee thereof out of assets of Citicorp legally available for payment,
noncumulative cash dividends at the annual rate of $21.25 per share (equivalent
to $2.125 per Depositary Share). Dividends on the Series 21 Preferred Stock are
payable quarterly, as, if and when declared by the Board of Directors of
Citicorp, on February 15, May 15, August 15, and November 15 of each year at
such annual rate.
The right of the holders of the Series 21 Preferred Stock to receive
dividends is noncumulative. Accordingly, if the Board of Directors or the Stock
Committee of Citicorp fails to declare a dividend on the Series 21 Preferred
Stock for any dividend period, Citicorp will have no obligation to pay a
dividend for such period, whether or not dividends on the Series 21 Preferred
Stock are declared for any future dividend period.
REDEMPTION
The Series 21 Preferred Stock is not subject to any mandatory redemption,
sinking fund or other similar provisions. Prior to February 15, 2000, the Series
21 Preferred Stock is not redeemable, except under certain limited circumstances
as described below under "--- General Terms and Provisions -- Redemption." On or
after such date, shares of Series 21 Preferred Stock will be redeemable, in
whole or in part, at the option of Citicorp, at any time and from time to time,
upon not less than thirty nor more than sixty days' notice, at $250 per share of
Series 21 Preferred Stock (equivalent to $25 per Depositary Share), plus accrued
and unpaid dividends (whether or not declared) from the immediately preceding
dividend payment date to the date fixed for redemption.
Holders of Series 21 Preferred Stock will have no right to require
redemption of the Series 21 Preferred Stock.
SERIES 22 PREFERRED STOCK
The Series 22 Preferred Stock is a single series consisting of 500,000
shares. The holders of Series 22 Preferred Stock have no preemptive rights.
The Series 22 Preferred Stock ranks on a parity as to payment of dividends
and distribution of assets upon dissolution, liquidation or winding up of
Citicorp with each other outstanding series of preferred stock issued by
Citicorp. The Series 22 Preferred Stock, together with each other series
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of preferred stock, ranks prior to the Common Stock of Citicorp as the payment
of dividends and distribution of assets upon dissolution, liquidation or winding
up of Citicorp.
The Series 22 Preferred Stock is not convertible into shares of Common
Stock of Citicorp and is not subject to any sinking fund or other obligation of
Citicorp to repurchase the Series 22 Preferred Stock.
DIVIDENDS
Holders of shares of Series 22 Preferred Stock are entitled to receive,
as, if and when declared by the Board of Directors of Citicorp or the Stock
Committee out of assets of Citicorp legally available for payment, cumulative
cash dividends at the annual rate of $19.375 per share (equivalent to $1.9375
per Depositary Share). Dividends on the Series 22 Preferred Stock are payable
quarterly, as, if and when declared by the Board of Directors of Citicorp or the
Stock Committee thereof on February 15, May 15, August 15, and November 15 of
each year at such annual rate. The right of the holders of the Series 22
Preferred Stock to receive dividends is cumulative.
REDEMPTION
The Series 22 Preferred Stock is not subject to any mandatory redemption,
sinking fund or other similar provisions. Prior to May 15, 2000 the Series 22
Preferred Stock is not redeemable, except under certain limited circumstances as
described below under "--- General Terms and Provisions -- Redemption". On or
after such date, shares of Series 22 Preferred Stock will be redeemable, in
whole or in part, at the option of Citicorp, at any time and from time to time,
upon not less than thirty nor more than sixty days' notice, at $250 per share of
Series 22 Preferred Stock (equivalent to $25 per Depositary Share), plus accrued
and unpaid dividends (whether or not declared) to the date fixed for redemption.
Holders of Series 22 Preferred Stock will have no right to require
redemption of the Series 22 Preferred Stock.
GENERAL TERMS AND PROVISIONS
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock of the Series
described above.
Under existing interpretations of the Federal Reserve Board and the Office
of Thrift Supervision, if the holders of the Preferred Stock become entitled to
vote for the election of directors because dividends on the Preferred Stock are
in arrears as described under "Voting Rights" below, the preferred stock of
Citicorp entitled to vote as a class for the election of directors (the "Voting
Preferred Stock") may then be deemed a "class of voting securities" and a holder
of 25% or more of the Voting Preferred Stock (or a holder of 5% or more of the
Voting Preferred Stock that otherwise exercises a "controlling influence" over
Citicorp) may then be subject to regulation as a "bank holding company" in
accordance with the Bank Holding Company Act of 1956, as amended, and a holder
of 25% or more of the Voting Preferred Stock (or a holder of 10% or more of the
Voting Preferred Stock that otherwise possesses certain "control factors" with
respect to Citicorp) may then be subject to regulation as a "savings and loan
holding company" in accordance with the Home Owners' Loan Act of 1933, as
amended. In addition, at such time, (i) any bank holding company or foreign bank
which is treated as a bank holding company would be required to obtain the
approval of the Federal
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Reserve Board under the Bank Holding Company Act of 1956, as amended, to acquire
or retain 5% or more of the Voting Preferred Stock; (ii) any person other than a
bank holding company may be required to obtain the approval of the FRB and the
Office of Thrift Supervision under the Change in Bank Control Act to acquire or
retain 10% or more of the Voting Preferred Stock; and (iii) any savings and loan
holding company generally could not retain in excess of 5% of the Voting
Preferred Stock.
DIVIDENDS
Holders of a Series of shares of the Preferred Stock are entitled to
receive, as, if and when declared by the Board of Directors or the Stock
Committee out of assets of Citicorp legally available for payment, cash
dividends at the applicable rate for such Series. Dividends on the Preferred
Stock may be cumulative ("Cumulative Preferred Stock") or noncumulative
("Noncumulative Preferred Stock"). Dividends on the Cumulative Preferred Stock
will be cumulative from the date of original issue of such series and will be
payable quarterly in arrears on the dates specified for such Series. If any date
so specified as a dividend payment date is not a business day, dividends (if
declared) on the Preferred Stock (unless otherwise provided in the Prospectus
Supplement) will be paid on the immediately succeeding business day, without
interest. A dividend period with respect to a dividend payment date is the
period commencing on the immediately preceding dividend payment date and ending
on the day immediately prior to the next succeeding dividend payment date. If
the Board of Directors or the Stock Committee fails to declare or pay a dividend
on any series of Noncumulative Preferred Stock for any dividend period, Citicorp
shall have no obligation to pay a dividend for such period, whether or not
dividends on such series of Noncumulative Preferred Stock are declared for any
future dividend period. Dividends on the Preferred Stock will be payable in
arrears to holders of record as they appear on the stock register of Citicorp on
such record dates, not more than thirty nor less than fifteen days preceding the
payment dates thereof, as shall be fixed by the Board of Directors or the Stock
Committee. No full dividends will be declared or paid or set apart for payment
on the preferred stock of any series ranking, as to dividends, on a parity with
or junior to any other series of Preferred Stock for any period unless full
dividends have been or are contemporaneously declared and paid or declared and a
sum sufficient for the payment thereof set apart for such payment on such series
of Preferred Stock for (i) all dividend periods terminating on or prior to the
date of payment of such full cumulative dividends (in the case of a series of
Cumulative Preferred Stock) or (ii) the immediately preceding dividend period
(in the case of a series of Noncumulative Preferred Stock). When dividends are
not paid in full upon such series of Preferred Stock (whether Cumulative
Preferred Stock or Noncumulative Preferred Stock), and any other preferred stock
ranking on a parity as to dividends with such series of Preferred Stock, all
dividends declared upon shares of such series of Preferred Stock and any other
preferred stock ranking on a parity as to dividends will be declared pro rata so
that the amount of dividends declared per share on such series of Preferred
Stock and such other preferred stock will in all cases bear to each other the
same ratio that accrued dividends per share (which, in the case of Noncumulative
Preferred Stock, shall not include any cumulation in respect of unpaid dividends
for prior dividend periods) on the shares of such series of Preferred Stock and
such other preferred stock bear to each other. Except as provided in the
preceding sentence, unless full dividends on all outstanding shares of any such
series of Preferred Stock have been declared and paid or set apart for payment
for all past dividend periods, in the case of a series of Cumulative Preferred
Stock, or for the immediately preceding dividend period, in the case of a series
of Noncumulative Preferred Stock, and Citicorp is not in default with respect to
any redemption of shares of Preferred Stock announced by Citicorp as described
under "--Redemption" below, no dividends (other than dividends or distributions
paid in shares of, or options, warrants or rights to subscribe for or purchase
shares of, the Common Stock of Citicorp or another stock of
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Citicorp ranking junior to the Preferred Stock as to dividends and upon
liquidation) will be declared or paid or set aside for payment or other
distribution declared or made upon the Common Stock of Citicorp or upon any
other stock of Citicorp ranking junior to or on parity with the Preferred Stock
as to dividends or upon liquidation, nor will any Common Stock of Citicorp nor
any other stock of Citicorp ranking junior to or on parity with such Preferred
Stock 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 Citicorp
(except by conversion into or exchange for stock of Citicorp ranking junior to
the Preferred Stock as to dividends and upon liquidation). The amount of
dividends payable for any period shorter than a full dividend period shall be
computed on the basis of twelve 30-day months, a 360-day year and, for any
period of less than one month (other than the initial period), the actual number
of days elapsed in such period.
LIQUIDATION PREFERENCE
Upon any liquidation, dissolution or winding up of Citicorp, whether
voluntary or involuntary, the holders of the Preferred Stock will have
preference and priority over the Common Stock of Citicorp, or any other class of
stock of Citicorp ranking on liquidation, dissolution or winding up junior to
the Preferred Stock, for payments out of or distribution of the assets of
Citicorp or proceeds thereof, whether from capital or surplus, of the amount per
share equal to $250 plus all dividends (whether or not earned or declared),
accrued and unpaid thereon to the date of final distribution to such holders
(but in the case of Noncumulative Preferred Stock, without cumulation of unpaid
dividends for prior dividend periods), and after such payment the holders of
Preferred Stock will be entitled to no other payments. If, in the case of any
such liquidation, dissolution or winding up of Citicorp, the assets of Citicorp
or proceeds thereof should be insufficient to make the full liquidation payment
in the amount per share set forth above, plus all accrued and unpaid dividends
on the Preferred Stock (but in the case of Noncumulative Preferred Stock without
cumulation of unpaid dividends for prior dividend periods) and liquidating
payments on any other preferred stock ranking as to liquidation, dissolution or
winding up on a parity with the Preferred Stock, then such assets or proceeds
thereof will be distributed among the holders of the Preferred Stock and any
such other preferred stock ratably in accordance with the respective amounts
which would be payable on such shares of Preferred Stock and any such other
preferred stock if all amounts thereon were paid in full. A consolidation or
merger of Citicorp with one or more corporations will not be deemed to be a
liquidation, dissolution or winding up, voluntary or involuntary, of Citicorp.
REDEMPTION
Citicorp may, at its option, at any time or from time to time on not less
than 30 and not more than 60 days' notice, redeem one or more Series of
Preferred Stock in whole or part at the redemption prices and on the dates set
forth above for the related Series of Preferred Stock.
If less than all outstanding shares of a Series of Preferred Stock are to
be redeemed, the selection of the shares to be redeemed shall be determined by
lot or pro rata as may be determined by the Board of Directors or the Stock
Committee or by any other method which may be determined by the Board of
Directors or the Stock Committee to be equitable. From and after the redemption
date (unless default shall be made by Citicorp in providing money for the
payment of the redemption price, together with accrued and unpaid dividends
thereon (but in the case of Noncumulative Preferred Stock without cumulation of
unpaid dividends for prior dividend periods) to the date fixed for redemption),
dividends shall cease to accrue on the shares of such series of Preferred Stock
called
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for redemption, such shares shall no longer be deemed to be outstanding and all
rights of the holders thereof (except the right to receive the redemption price)
shall cease.
In addition, Citicorp, 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, out of
funds legally available therefor, if the holders of such shares would be
entitled to vote upon or consent to a merger or consolidation of Citicorp under
the circumstances described under "--Voting Rights" below and all of the
following conditions have been satisfied: (i) Citicorp shall have requested the
vote or consent of the holders of such shares to the consummation of such merger
or consolidation, stating in such request that failing the requisite favorable
vote or consent Citicorp will have the option to redeem such shares, (ii)
Citicorp shall have not received the favorable vote or consent requisite to the
consummation of the transaction within 60 days after making such request 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 aforesaid at a redemption price
per share of the Preferred Stock set forth above, plus accrued and unpaid
dividends thereon (but in the case of Noncumulative Preferred Stock without
cumulation of unpaid dividends for prior dividend periods) to the date fixed for
redemption.
VOTING RIGHTS
Holders of the Preferred Stock will have no voting rights except as set
forth below or as otherwise from time to time required by law.
Whenever dividends on the Preferred Stock shall be in arrears for such
number of dividend periods, whether or not consecutive, which shall in the
aggregate contain not less than 540 days, the holders of outstanding shares of
the Preferred Stock (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 either as to dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting rights have
been conferred and are exercisable) will be entitled to vote for the election of
two additional directors on the terms set forth below. Such voting rights will
continue, in the case of any series of Cumulative Preferred Stock, until all
past dividends accumulated on shares of Cumulative Preferred Stock shall have
been paid in full and, in the case of any series of Noncumulative Preferred
Stock, until all dividends on shares of Noncumulative Preferred Stock shall have
been paid in full for at least one year. Upon payment in full of such dividends
such voting rights shall terminate except as expressly provided by law, subject
to re-vesting in the event of each and every subsequent default in the payment
of dividends as aforesaid. Holders of all series of preferred stock which are
granted such voting rights (which rank on a parity with the Preferred Stock)
will vote as a class, and each holder of shares of the Preferred Stock will have
one vote for each share of stock held and each other series will have such
number of votes, if any, for each share of stock held as may be granted to them.
In the event the holders of shares of the Preferred Stock are entitled to vote
as described in this paragraph, the Board of Directors will automatically be
increased by two directors, and the holders of such preferred stock will have
the exclusive right as members of such class, as outlined above, to elect two
directors at the next annual meeting of stockholders.
Upon termination of the right of the holders of the Preferred Stock to
vote for directors as discussed in the prior paragraph, the term of office of
all directors then in office elected by such holders will terminate immediately.
Whenever the term of office of the directors elected by such
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holders ends and the related special voting rights expire, the number of
directors will automatically be decreased to such number as would otherwise
prevail.
So long as any shares of Preferred Stock remain outstanding, Citicorp will
not, without the affirmative vote or consent of the holders of at least
two-thirds of the shares of the Preferred Stock outstanding at the time (voting
as a class with all other series of preferred stock ranking on a parity with the
Preferred Stock either as to dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting rights have
been conferred and are then exercisable), given in person or by proxy, either in
writing or at a meeting, (i) authorize, create or issue, or increase the
authorized or issued amount, of any class or series of stock ranking prior to
the Preferred Stock with respect to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up; or (ii) amend, alter or
repeal, whether by merger, consolidation or otherwise, the provisions of
Citicorp's Restated Certificate of Incorporation, as amended, or of the
resolutions contained in the Certificates of Designations of the Preferred Stock
designating such Preferred Stock and the powers, preferences and privileges,
relative, participating, optional or other special rights and qualifications,
limitations and restrictions thereof, so as to materially and adversely affect
any right, preference, privilege or voting power of the Preferred Stock or the
holders thereof; provided, however, that any increase in the amount of the
authorized preferred stock or the creation and issuance of other series of
preferred stock, or any increase in the amount of authorized shares of preferred
stock, in each case ranking on a parity with or junior to the Preferred Stock
with respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up will not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if all outstanding shares
of Preferred Stock have been redeemed or sufficient funds have been deposited in
trust to effect such a redemption which is scheduled to be consummated within
three months after the time that such rights would otherwise be exercisable.
DEPOSITARY SHARES
GENERAL
Depositary Shares represent fractional shares of Preferred Stock, rather
than full shares of Preferred Stock. Citicorp has issued receipts ("Depositary
Receipts") for Depositary Shares, each of which represent a fraction (i.e.,
one-tenth) of a share of a particular series of Preferred Stock as described
below.
The shares of each Series of Preferred Stock represented by Depositary
Shares were deposited under a Deposit Agreement (the "Deposit Agreement") among
Citicorp, Citibank, as depositary (the "Preferred Depositary") and the holders
from time to time of the Depositary Receipts. Subject to the terms of the
Deposit Agreement, each owner of a Depositary Share is entitled, in proportion
to the applicable fraction of a share of Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Preferred Stock
represented thereby (including dividend, voting, redemption and liquidation
rights).
The Depositary Shares are listed on the NYSE.
DIVIDENDS AND OTHER DISTRIBUTIONS
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The Preferred Depositary distributes all cash dividends or other cash
distributions received in respect of the related Series of Preferred Stock to
the record holders of Depositary Shares relating to such Series of Preferred
Stock in proportion to the number of such Depositary Shares owned by such
holders.
In the event of a distribution other than in cash, the Preferred
Depositary will distribute property received by it to the record holders of
Depositary Shares entitled thereto, unless the Preferred Depositary determines
that it is not feasible to make such distribution, in which case the Preferred
Depositary may, with the approval of Citicorp, sell such property and distribute
the net proceeds from such sale to such holders.
REDEMPTION OF DEPOSITARY SHARES
If Citicorp redeems a Series of Preferred Stock represented by Depositary
Shares, the Depositary Shares will be redeemed from the proceeds received by the
Preferred Depositary resulting from the redemption, in whole or in part, of such
Series of Preferred Stock held by the Preferred Depositary. The redemption price
per Depositary Share will be equal to one-tenth of the redemption price per
share payable with respect to such Series of the Preferred Stock. Whenever
Citicorp redeems shares of Preferred Stock held by the Preferred Depositary, the
Preferred Depositary will redeem as of the same redemption date the number of
Depositary Shares representing shares of the related Series of Preferred Stock
so redeemed. If less than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or pro rata as may be
determined by the Preferred Depositary.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Preferred Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such Preferred Stock. Each record holder of such
Depositary Shares on the record date (which will be the same date as the record
date for the Preferred Stock) will be entitled to instruct the Preferred
Depositary as to the exercise of the voting rights pertaining to the amount of
the series of Preferred Stock represented by such holder's Depositary Shares.
The Preferred Depositary will endeavor, insofar as practicable, to vote the
amount of the Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and Citicorp will agree to take all action
which may be deemed necessary by the Preferred Depositary in order to enable the
Preferred Depositary to do so. The Preferred Depositary will abstain from voting
shares of the Preferred Stock to the extent it does not receive specific
instructions from the holders of Depositary Shares representing such Preferred
Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the related Deposit Agreement may at any time be amended by
agreement between Citicorp and the Preferred Depositary. However, any amendment
which materially and adversely alters the rights of the holders of Depositary
Receipts for a related Series of Preferred Stock will not be effective unless
such amendment has been approved by the holders of Depositary Receipts
representing at least a majority (or, in the case of amendments relating to or
affecting rights to receive dividends or distributions or voting or redemption
rights, two-thirds) of such Depositary Shares then outstanding. Each Deposit
Agreement may be terminated by Citicorp or the Preferred Depositary only if (i)
all
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Depositary Shares outstanding thereunder have been redeemed, (ii) there has been
a final distribution in respect of the related Series of Preferred Stock in
connection with any liquidation, dissolution or winding up of Citicorp and such
distribution has been distributed to the holders of the related Depositary
Receipts or (iii) upon the consent of holders of Depositary Receipts
representing not less than two-thirds of the related Depositary Shares
outstanding.
CHARGES OF DEPOSITARY
Citicorp is required to pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements.
Citicorp has paid the charges of the Preferred Depositary in connection with the
initial deposit of each related Series of Preferred Stock and will pay such
charges in the event of any redemption of such Preferred Stock. Holders of
Depositary Receipts will pay transfer and other taxes and governmental charges
and such other charges as are expressly provided in the applicable Deposit
Agreement to be for their accounts.
The Preferred Depositary may refuse to effect any transfer of a Depositary
Receipt or any withdrawal of shares of a Series of Preferred Stock evidenced
thereby until all such taxes and charges with respect to such Depositary Receipt
or such Shares of Preferred Stock are paid by the holder thereof.
COMMUNICATIONS
The Preferred Depositary will forward all reports and communications from
Citicorp which are delivered to the Preferred Depositary and which Citicorp is
required to furnish to the holders of the Preferred Stock.
UNITED STATES FEDERAL INCOME TAXATION
GENERAL
In the opinion of E. Noel Harwerth, Esq., Chief Tax Officer of Citibank,
N.A., the following discussion describes the material United States federal
income tax consequences applicable to holders of the Capital Securities. This
discussion deals only with Capital Securities held as capital assets by initial
holders and does not deal with special classes of holders, such as dealers in
securities or currencies, life insurance companies, tax-exempt organizations,
persons holding the Capital Securities as a hedge or hedged against currency
risks or as part of a straddle or conversion transaction or persons whose
functional currency is not the U.S. dollar. This discussion is based on the
Internal Revenue Code of 1986, as amended (the "Code"), Treasury regulations
thereunder, published rulings and court decisions, as currently in effect, all
of which are subject to change, possibly with retroactive effect.
Persons considering the purchase of Capital Securities should consult
their own tax advisors concerning the application of the United States federal
income tax laws to their particular situations, as well as the application of
state or local laws or the laws of any other taxing jurisdiction.
UNITED STATES HOLDERS
As used herein, "United States Holder" means a beneficial holder of
Capital Securities who or which is (i) a citizen or resident of the United
States, (ii) a corporation created or organized under
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the laws of the United States or any political subdivision thereof (including
the District of Columbia), or (iii) a person otherwise subject to United States
federal income taxation on a net income basis in respect of Capital Securities.
Exchange of Depositary Shares for Capital Securities
The exchange of Depositary Shares for Capital Securities pursuant to an
Offer (the "Exchange") will be a taxable transaction. In the case of a United
States Holder who does not own shares of any class of Citicorp stock following
the Exchange, either directly or by attribution, gain or loss will be recognized
in an amount equal to the difference between the fair market value of the
Capital Securities (representing an undivided interest in the Subordinated Debt
Securities) received in the Exchange and the exchanging holder's tax basis in
the Depositary Shares exchanged therefor. Generally, such gain or loss will be
long-term capital gain or loss if the United States Holder's holding period for
the Depositary Shares is more than one year as of the date of the Exchange. A
United States Holder's aggregate tax basis in his or her pro rata share of the
underlying Subordinated Debt Securities will be equal to the issue price of the
Capital Securities received on the Expiration Date.
The issue price of the Capital Securities will be equal to their fair
market value, determined as of the Expiration Date. It is possible that, in
certain circumstances, the issue price of the Capital Securities may exceed
their principal amount, in which case a United States Holder generally may elect
to amortize such premium over the term of the Capital Securities. Because the
fair market value of the Capital Securities will not be known until the
Expiration Date, it is not possible, as of the date of this Prospectus, to
determine whether any such premium will exist as of the Expiration Date.
United States Holders of Depositary Shares who will actually or
constructively own shares of any class of Citicorp stock following the exchange
are advised to consult their tax advisors concerning the possibility that
receipt of the Capital Securities will be treated as a dividend, which will be
taxable as ordinary income to the United States Holder in an amount equal to the
value of the Capital Securities received (rather than capital gain or loss in an
amount equal to the difference between the issue price of the Capital Securities
and the United States Holder's basis in his or her Depositary Shares). In
addition, United States Holders of Depositary Shares who are not initial Holders
are urged to consult their tax advisors as to the income tax consequences, in
their particular situation, of exchanging Depositary Shares.
Classification of the Subordinated Debt Securities
Assuming full compliance with the terms of the Indenture and the
Declaration, the Subordinated Debt Securities will be classified for United
States federal income tax purposes as indebtedness of Citicorp.
Classification of the Trusts
Assuming full compliance with the terms of the Indenture and the
Declaration, each Trust will be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a corporation.
Accordingly, for United States federal income tax purposes, each holder of
Capital Securities generally will be considered the owner of an undivided
interest in the Subordinated Debt Securities held by the related Trust, and each
holder will be required to include in its gross income interest and original
issue discount ("OID"), if any, accrued with respect to its allocable share of
the Subordinated Debt Securities.
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Interest and Original Issue Discount
United States Holders (including cash basis United States Holders) of debt
instruments issued with OID must generally include such OID in income as it
accrues on a constant yield basis, generally before the receipt of cash
attributable to such income. A debt instrument will generally be treated as
issued with OID if the excess of the instrument's "stated redemption price at
maturity" over its issue price is more than a specified de minimis amount. The
stated redemption price at maturity of an instrument is the total of all
payments provided by the instrument that are not payments of "qualified stated
interest." A qualified stated interest payment is generally any one of a series
of stated interest payments on an instrument that are unconditionally payable at
least annually at a single fixed rate. In determining whether a debt instrument
has been issued with OID, remote contingencies as to the timely payment of
stated interest are ignored. In the case of the Subordinated Debt Securities,
Citicorp has concluded that the likelihood of its exercising its option to defer
payment of interest is remote because the exercise of such option would prevent
Citicorp from declaring dividends on any class of its stock. Accordingly,
subject to the discussion under this heading, Citicorp intends to treat the
Subordinated Debt Securities as having been issued without OID and, therefore,
United States Holders of the Capital Securities will accrue interest income
under their particular methods of accounting (e.g., cash or accrual) rather than
accruing OID on a constant yield basis.
If, however, Citicorp were to exercise its right to defer payments of
interest, under existing Treasury regulations, the Subordinated Debt Securities
will become OID instruments, and all United States Holders of the Capital
Securities will thereafter be required to accrue interest on a constant yield
basis during any Extension Period even though Citicorp will not pay the interest
in cash until the end of the Extension Period, and even though a United States
Holder may be on the cash method of accounting. Furthermore, if the Subordinated
Debt Securities become OID instruments because Citicorp has exercised its right
to defer payment of interest, they will be taxed as OID instruments for as long
as they remain outstanding, even after the expiration of the Extension Period
and the payment of all accrued and compounded interest.
The above conclusions are based on recently-promulgated Treasury
regulations, which have not been interpreted by any court decisions or addressed
in any rulings or other pronouncements of the Internal Revenue Service ("IRS"),
and its is possible that the IRS could take a position contrary to the
conclusions herein.
In addition, it is possible that, in certain circumstances, the stated
redemption price at maturity of the Capital Securities may exceed their issue
price (their fair market value on the Expiration Date). For purposes of this
determination, the stated redemption price at maturity of the Capital Securities
will include the Additional Distribution. If the stated redemption price at
maturity of the Capital Securities exceeds their issue price by more than a
specified de minimus amount, the Capital Securities would be considered to be
issued with OID.
As of the date of this Prospectus, Citicorp believes it is unlikely that
the stated redemption price at maturity of the Capital Securities will exceed
their issue price by more than such de minimus amount and, as a result, Citicorp
believes its is unlikely that the Capital Securities will be considered to be
issued with OID. If the Capital Securities are considered issued without OID,
the Additional Distribution will be reported to a Holder as interest. However,
because the fair market value of the Capital Securities will not be known until
the Expiration Date, it is not possible, as of the date of this Prospectus, to
determine the issue price of the Capital Securities with certainty. Holders are
urged to confirm with their own tax advisors, following the Expiration Date,
that the Capital Securities will not be considered to be issued with OID.
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Corporate holders of the Capital Securities will not be entitled to a
dividends-received deduction with respect to any income recognized with respect
to the Capital Securities.
Market Discount and Bond Premium
Under certain circumstances, United States Holders of Capital Securities
other than initial holders may be considered to have acquired their undivided
interests in the Subordinated Debt Securities with market discount or
acquisition premium as such phrases are defined for United States federal income
tax purposes. Such holders are advised to consult their tax advisors as to the
income tax consequences of the acquisition, ownership and disposition of the
Capital Securities.
Receipt of Subordinated Debt Securities or Cash Upon Liquidation of the
Trust
As described under "Description of the Capital Securities --Tax Event
Redemption or Distribution" and "--Regulatory Capital Event Redemption or
Distribution," Citicorp has the right to distribute Subordinated Debt Securities
to holders in exchange for the Capital Securities and in liquidation of the
Trust. Under current law, such a distribution, for United States federal income
tax purposes, would be treated as a non-taxable event to each holder, and each
holder would receive an aggregate tax basis in the Subordinated Debt Securities
equal to such holder's aggregate tax basis in its Capital Securities. A holder's
holding period in the Subordinated Debt Securities so received in liquidation of
the Trust would include the period during which the Capital Securities were held
by such holder. If, however, the Trust is treated as an association taxable as a
corporation at the time of its liquidation, the distribution of Subordinated
Debt Securities in liquidation of the Trust would likely constitute a taxable
event to the holders of the Capital Securities.
Upon the occurrence of a Tax Event or a Regulatory Capital Event, the
Subordinated Debt Securities may in certain circumstances be redeemed for cash
and the proceeds of such redemption distributed to holders in redemption of
their Capital Securities. Under current law, such a redemption would, for United
States federal income tax purposes, constitute a taxable disposition of the
redeemed Capital Securities, and a United States Holder would recognize gain or
loss as if it sold such redeemed Capital Securities for cash. See "-- Sales of
Capital Securities" below.
Sales of Capital Securities
A United States Holder that sells Capital Securities will recognize gain
or loss equal to the difference between its adjusted tax basis in the Capital
Securities and the amount realized on the sale of such Capital Securities.
Assuming Citicorp does not defer interest on the Subordinated Debt Securities by
extending the interest payment period, a holder's adjusted tax basis in the
Capital Securities generally will be its initial purchase price. Except to the
extent attributable to accrued but unpaid interest (which is taxable as ordinary
income ) and subject to the market discount rules described above, such gain or
loss generally will be capital gain or loss and generally will be long-term
capital gain or loss if the Capital Securities have been held for more than one
year.
The Capital Securities may trade at a price that does not accurately
reflect the value of accrued but unpaid interest with respect to the underlying
Subordinated Debt Securities. If Citicorp exercises its right to defer payments
of interest, a United States Holder who disposes of his Capital Securities
between record dates for payments of distributions thereon will be required to
include accrued but unpaid interest on the Subordinated Debt Securities through
the date of disposition in income as ordinary income, and to add such amount to
his adjusted tax basis in his pro rata share of the underlying Subordinated Debt
Securities deemed disposed of. To the extent the selling price is less than the
United States Holder's adjusted tax basis (which will include, in the form of
OID, all accrued but unpaid interest) such holder will recognize a capital loss.
Subject to certain limited
98
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exceptions, capital losses cannot be applied to offset ordinary income for
United States federal income tax purposes. Accrual basis United States Holders
will be subject to similar treatment without regard to Citicorp's election to
defer.
UNITED STATES ALIEN HOLDERS
Under present United States federal income tax law and subject to the
discussion of backup withholding below:
(a) a United States Alien Holder who does not actually or constructively
own shares of any class of Citicorp stock following the Exchange will not
be subject to United States federal withholding tax on gain realized as a
result of the exchange of Depositary Shares for Capital Securities;
(b) payment of principal and interest (including any OID) by the Trust or
any of its paying agents to any United States Alien Holder (as defined
below) will not be subject to United States federal withholding tax,
provided that in the case of interest or OID, (1) the beneficial owner of
the Capital Securities does not actually or constructively own 10% or more
of the total combined voting power of all classes of stock of Citicorp
entitled to vote, (2) the beneficial owner of the Capital Securities is
not a controlled foreign corporation that is related to Citicorp through
stock ownership, and (3) either (i) the beneficial owner of the Capital
Securities certifies to Citicorp or its agent, under penalties of perjury,
that he is not a United States person (as defined below) and provides his
name and address, or (ii) a securities clearing organization, bank or
other financial institution that holds customers' securities in the
ordinary course of its trade or business (a "financial institution") and
holds the Capital Securities on behalf of the beneficial owner certifies
to Citicorp or its paying agent under penalties of perjury that such
statement has been received from the beneficial owner by it or by a
financial institution between it and the beneficial owner and furnishes
the payor a copy thereof and
(c) a United States Alien Holder will not be subject to United States
federal withholding tax on gain realized on the sale or other disposition
of Capital Securities.
United States Alien Holders who will actually or constructively own shares
of any class of Citicorp stock following the Exchange should consult their tax
advisors concerning the possibility that receipt of the Capital Securities in
exchange for Depositary Shares may be treated as a dividend, which would
generally be subject to U.S. withholding tax at a 30% rate or such lower rate as
may be specified in an applicable income tax treaty.
As used herein, a "United States Alien Holder" is any holder of Capital
Securities who is a United States Alien (as defined below). As used herein, a
"United States Alien" means any person who, for United States federal income tax
purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership to the extent that one or more of the members is, for United States
federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust, in
each case not subject to United States federal income tax on a net income basis
in respect of Capital Securities. "United States person" means a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
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BACKUP WITHHOLDING AND INFORMATION REPORTING
Payments of principal (including OID, if any) and any premium and interest
made within the United States by the Trust or any of its paying agents are
generally subject to information reporting and possibly to "backup withholding"
at a rate of 31%. Information reporting and backup withholding do not apply to
payments made on Capital Securities if the certification described in clause
(a)(3) under "United States Alien Holders" is received, provided, in each case,
that the payor does not have actual knowledge that the holder is a United States
person.
Payment of the proceeds from the sale of Capital Securities to or through
a foreign office of a broker will not be subject to information reporting or
backup withholding, except that if the broker is a United States person, a
controlled foreign corporation for United States tax purposes or a foreign
person 50% or more of whose gross income is effectively connected with the
conduct of a trade or business within the United States for a specified
three-year period, information reporting will apply to such payments unless such
broker has documentary evidence in its files of the owner's foreign status and
has no actual knowledge to the contrary, or the owner otherwise establishes an
exemption. Payment of the proceeds from a sale of Capital Securities to or
through the United States office of a broker is subject to information reporting
and backup withholding unless the holder or beneficial owner certifies as to its
non-United States status or otherwise establishes an exemption from information
reporting and backup withholding.
Backup withholding will generally not apply to United States Holders other
than certain noncorporate Holders who fail to supply an accurate taxpayer
identification number or who fail to report all interest and dividend income
required to be shown on their federal income tax returns.
PROPOSED TAX LEGISLATION
On February 6, 1997, President Clinton proposed legislation (the "Proposed
Legislation") which, among other things, would generally deny corporate issuers
a deduction for interest in respect of certain debt obligations issued on or
after the date of "first committee action" with respect to the Proposed
Legislation, if such debt obligations have a maximum term in excess of 15 years
and are not shown as indebtedness on the issuer's applicable consolidated
balance sheet. In addition, the Proposed Legislation would deny issuers an
interest deduction on any debt instruments with a weighted average life of
greater than 40 years. Based upon the effective date guidance in the Proposed
Legislation, it is expected that if the Proposed Legislation were to be enacted,
such legislation would not apply to the Subordinated Debt Securities. There can
be no assurances, however, that the effective date guidance contained in the
Proposed Legislation will be incorporated into the Proposed Legislation, if
enacted, or that other legislation enacted after the date hereof will not
otherwise adversely affect the ability of the Company to deduct the interest
payable on the Subordinated Debt Securities. Accordingly, there can be no
assurance that a Tax Event will not occur. See "Description of the Capital
Securities -- Tax Event Redemption or Distribution."
VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon on behalf of the Trusts by Morris, Nichols, Arsht
& Tunnell, Wilmington, Delaware, special Delaware counsel to the Trusts. The
validity of the Subordinated Debt Securities and the Guarantees and certain
matters relating thereto will be passed upon for Citicorp by Stephen E. Dietz,
an Associate General Counsel of Citibank, N.A. Mr. Dietz owns or has the right
to acquire a number of shares of Common Stock of Citicorp equal to less than
0.01% of the outstanding Common Stock of Citicorp. The validity of the Capital
Securities, the Guarantees and the Subordinated Debt
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<PAGE>
Securities will be passed upon for the Dealer Managers by Sullivan & Cromwell,
New York, New York. In rendering their opinion, Sullivan & Cromwell will rely
upon the opinion of Morris, Nichols, Arsht & Tunnell as to certain matters of
Delaware law.
EXPERTS
The consolidated financial statements of Citicorp and subsidiaries
included in Citicorp's Annual Report and Form 10-K for 1996 have been
incorporated herein by reference in reliance upon the report set forth therein
of KPMG Peat Marwick LLP, independent certified public accountants, and upon the
authority of said firm as experts in accounting and auditing. The report of KPMG
Peat Marwick LLP, covering the December 31, 1996 financial statements refers to
the fact that in 1994 Citicorp adopted Statement of Financial Accounting
Standards ("SFAS") No. 112, "Employers' Accounting for Postemployment Benefits"
and SFAS No. 115, "Accounting for Certain Investments in Debt and Equity
Securities."
ERISA CONSIDERATIONS
Generally, employee benefit plans that are subject to the Employee
Retirement Income Security Act of 1974 ("ERISA"), or Section 4975 of the Code
("Plans"), may acquire Capital Securities, subject to the investing fiduciary's
determination that the investment in Capital Securities satisfies ERISA's
fiduciary standards and other requirements applicable to investments by the
Plan.
In any case, Citicorp (the obligor on the Subordinated Debt Securities)
and its affiliates may be considered a "party in interest" (within the meaning
of ERISA) or a "disqualified person" (within the meaning of Section 4975 of the
Code) with respect to certain plans. The acquisition and ownership of Capital
Securities by a Plan (or by an individual retirement arrangement or other Plans
described in Section 4975(e)(1) of the Code) with respect to which Citicorp or
any of its affiliates is considered a party in interest or a disqualified
person, may constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code, unless such Capital Securities are acquired pursuant
to and in accordance with an applicable exemption.
As a result, Plans with respect to which Citicorp or any of its affiliates
is a party in interest or a disqualified person should not acquire Capital
Securities. Any other Plans or other entities the assets of which include Plan
assets subject to ERISA proposing to acquire Capital Securities should consult
with their own ERISA counsel.
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Facsimile copies of Letters of Transmittal will be accepted. Letters of
Transmittal, certificates representing Depositary Receipts and any other
required documents should be sent by each Holder of Depositary Receipts or his
broker, dealer, commercial bank, trust company or other nominee to the Exchange
Agent at one of the addresses as set forth below:
THE EXCHANGE AGENT IS:
CITIBANK, N.A.
By Hand: By Mail
(registered or certified
mail recommended):
Citibank, N.A. Citibank, N.A.
Corporate Agency & Trust Services c/o Citicorp Data Distribution, Inc.
111 Wall Street, 5th Floor P.O. Box 7069
New York, New York Paramus, New Jersey 07653
By Overnight Courier:
Citibank, N.A.
c/o Citicorp Data Distribution, Inc.
404 Sette Drive
Paramus, New Jersey 07652
By Facsimile:
(For Eligible Institutions Only)
(201) 262-3240
Confirm Receipt of Notice of Guaranteed Delivery by Telephone:
(800) 422-2066
THE INFORMATION AGENT IS:
GEORGESON
& COMPANY INC.
Wall Street Plaza
New York, New York 10005
(800) 223-2064 (Toll Free)
Banks and Brokers Call Collect:
(212) 440-9800
Any questions or requests for assistance or additional copies of this
Prospectus, the Letter of Transmittal or the Notice of Guaranteed Delivery may
be directed to the Information Agent at its telephone number and location set
forth above. You may also contact your broker, dealer, commercial bank or trust
company or other nominee for assistance concerning the Offers.
THE DEALER MANAGERS FOR THE OFFERS ARE:
<TABLE>
<CAPTION>
<S> <C> <C>
MERRILL LYNCH & CO. SMITH BARNEY INC. PRUDENTIAL SECURITIES INCORPORATED
World Financial Center 390 Greenwich Street One New York Plaza
North Tower - Seventh Floor New York, New York 10013 New York, New York 10292
New York, New York 10281 (800) 655-4811 (Toll Free) (888) 778-2241 (Toll Free)
(888) ML4-TNDR (Toll Free) Attn: Paul S. Galant Attn: Martin Oring
(888) 654-8637 (Toll-Free)
Attn: Susan L. Weinberg
</TABLE>
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the General Corporation Law of the State
of Delaware empowers a corporation to indemnify any person who was or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the corporation
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
under similar standards, except that no indemnification may be made in respect
of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation, among others, has been successful on the merits or otherwise in the
defense of any action, suit or proceeding referred to in subsections (a) and (b)
or in the defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith; that expenses incurred by a director or officer in
defending any action, suit or proceeding may be paid by the corporation in
advance of the final disposition thereof upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it is ultimately
determined that such director or officer is not entitled to indemnification
under Section 145; and that indemnification and advancement of expenses provided
for by Section 145 shall not be deemed exclusive of any other rights to which
the person seeking indemnification or advancement of expenses may be entitled;
and empowers the corporation to purchase and maintain insurance on behalf of a
director or officer of the corporation, among others, against any liability
asserted against him or incurred by him in any such capacity or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liabilities under Section 145.
The Restated Certificate of Incorporation, as amended, of Citicorp
provides, in effect, that, to the extent and under the circumstances permitted
by subsections (a) and (b) of Section
II-1
<PAGE>
145, Citicorp (i) shall indemnify any person who was or is a party or is
threatened to be made a party to any action, suit or proceeding described in
subsections (a) and (b) by reason of the fact that he is or was a director or
officer of Citicorp against expenses, judgments, fines and amounts paid in
settlement, and (ii) may indemnify any person who was or is a party or is
threatened to be made a party to any such action, suit or proceeding if such
person was an employee or agent of Citicorp and is or was serving at the request
of Citicorp as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. Such Restated Certificate
of Incorporation also provides, in effect, that expenses incurred by a director
or officer in defending a civil or criminal action, suit or proceeding shall be
paid by Citicorp in advance of the final disposition thereof upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount if
it shall ultimately be determined that such director or officer is not entitled
to be indemnified by Citicorp. In addition, as permitted by Section 145 of the
General Corporation Law of the State of Delaware, Citicorp maintains liability
insurance covering directors and principal officers, including the Regular
Trustees of the Trusts.
Article IV of the Declaration of Trust of each Trust limits the liability
to the Trust and certain other persons, and provides for the indemnification by
the Trust or Citicorp, of Trustees, their officers, directors and employees and
certain other persons.
Item 21. Exhibits and Financial Statement Schedules.
1(a) -- Form of Dealer Manager Agreement (1)
3(i) -- Restated Certificate of Incorporation, as amended through June
16, 1993, of Citicorp. (2)
(a) Certificate of Designations, Series 18 Preferred Stock. (3)
(b) Certificate of Designations, Series 19 Preferred Stock. (3)
(c) Certificate of Designations, Series 20 Preferred Stock. (3)
(d) Certificate of Designations, Series 21 Preferred Stock. (3)
(e) Certificate of Designations, Series 22 Preferred Stock. (3)
(f) Certificate of Designations, Series 23 Preferred Stock. (3)
3(ii) -- Bylaws of Citicorp. (4)
4(a) -- Certificate of Trust of Citicorp Capital X. (Certificates of
Trust for each other Trust, identical except for the name, will
be filed upon request.) (8)
4(b) -- Declaration of Trust of Citicorp Capital X. (Declarations of
Trust for each other Trust, identical except for the name and the
particular Series of Citicorp Preferred Stock that is the subject
of the related Offer, will be filed upon request.) (8)
4(c) -- Form of Amended and Restated Declaration of Trust to be used in
connection with the issuance of Capital Securities. (8)
4(d) -- Indenture, dated as of December 17, 1996, between Citicorp and
Wilmington Trust Company, as Trustee. (5)
4(e) -- Form of Supplemental Indenture to be used in connection with the
issuance of the Subordinated Debt Securities. (8)
4(f) -- Form of Capital Security (included in 4(c) above).
4(g) -- Form of Subordinated Debt Security (included in 4(e) above).
4(h) -- Form of Guarantee Agreement with respect to Capital Securities.
(7)
5(a) -- Opinion and consent of Stephen E. Dietz, Associate General
Counsel of Citibank, N.A. (1)
5(b) -- Opinion and consent of Morris, Nichols, Arsht & Tunnell.(8)
II-2
<PAGE>
8(a) -- Opinion and consent of E. Noel Harwerth, Esq., Chief Tax Officer
of Citibank, N.A. (1)
12(a) -- Citicorp and Subsidiaries--Calculation of Ratio of Income to
Fixed Charges. (6)
23(a) -- Consent of KPMG Peat Marwick LLP. (8)
23(b) -- Consent of Stephen E. Dietz, Associate General Counsel of
Citibank, N.A. (included as part of Exhibit 5(a)).
23(c) -- Consent of Morris, Nichols, Arsht & Tunnell (included as part of
Exhibit 5(b)).
23(d) -- Consent of E. Noel Harwerth, Esq. (included as part of Exhibit
8). (1)
24 -- Powers of Attorney. (7)
24(a) -- Power of Attorney for Thomas E. Jones (8)
25(a) -- Statement of Eligibility of Wilmington Trust Company, as Debt
Trustee under the Indenture. (8)
25(b) -- Statement of Eligibility of Wilmington Trust Company, as
Institutional Trustee under the Amended and Restated Declaration
of Trust of Citicorp Capital X. (8)
25(c) -- Statement of Eligibility of Wilmington Trust Company, as
Institutional Trustee under the Amended and Restated Declaration
of Trust of Citicorp Capital XI. (8)
25(d) -- Statement of Eligibility of Wilmington Trust Company, as
Institutional Trustee under the Amended and Restated Declaration
of Trust of Citicorp Capital XII. (8)
25(e) -- Statement of Eligibility of Wilmington Trust Company, as
Institutional Trustee under the Amended and Restated Declaration
of Trust of Citicorp Capital XIII. (8)
25(f) -- Statement of Eligibility of Wilmington Trust Company, as
Institutional Trustee under the Amended and Restated Declaration
of Trust of Citicorp Capital XIV. (8)
25(g) -- Statement of Eligibility of Wilmington Trust Company, as
Guarantee Trustee under the Guarantee of Citicorp for the benefit
of the holders of Capital Securities of Citicorp Capital X. (8)
25(h) -- Statement of Eligibility of Wilmington Trust Company, as
Guarantee Trustee under the Guarantee of Citicorp for the benefit
of the holders of Capital Securities of Citicorp Capital XI. (8)
25(i) -- Statement of Eligibility of Wilmington Trust Company, as
Guarantee Trustee under the Guarantee of Citicorp for the benefit
of the holders of Capital Securities of Citicorp Capital XII. (8)
25(j) -- Statement of Eligibility of Wilmington Trust Company, as
Guarantee Trustee under the Guarantee of Citicorp for the benefit
of the holders of Capital Securities of Citicorp Capital XIII.
(8)
25(k) -- Statement of Eligibility of Wilmington Trust Company, as
Guarantee Trustee under the Guarantee of Citicorp for the benefit
of the holders of Capital Securities of Citicorp Capital XIV. (8)
99(a) -- Form of Letter of Transmittal. (8)
99(b) -- Form of Notice of Guaranteed Delivery. (8)
99(c) -- Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees. (8)
99(d) -- Form of Letter to Clients. (8)
99(e) -- Form of Exchange Agent Agreement. (8)
99(f) -- Form of Information Agent Agreement. (1)
99(g) -- Form of Notice of Offer to Exchange. (8)
99(h) -- Form of Citicorp Letter to Holders of Depositary Shares. (1)
- --------
(1) To be filed by amendment.
II-3
<PAGE>
(2) Incorporated herein by reference to Citicorp's Registration
Statement on Form S-3, File No. 33-64574.
(3) Incorporated herein by reference to Citicorp's Registration
Statement on Form 8-A, filed with respect to the corresponding
series of preferred stock.
(4) Incorporated herein by reference to Citicorp's Registration
Statement on Form S-8, File No. 33-53261.
(5) Incorporated herein by reference to Citicorp's Registration
Statement on Form S-3, File No. 333-14917
(6) Incorporated herein by reference to Citicorp's Current Report on
Form 8-K, dated January 21, 1997.
(7) Previously filed.
(8) Filed herewith.
Item 22. Undertakings.
The undersigned registrants hereby undertake:
(1) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(2) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this form,
within one business day of receipt of such request, and to send the incorporated
documents, by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
(3) To supply by means of post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the registration statement when it became
effective.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the foregoing provisions, or otherwise,
the registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrants in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrants will, unless in the opinion of
their counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing Form S-4 and has duly caused this amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in The City of New York, State of New York, on March 13, 1997.
CITICORP
By /s/ Peter Gallant
--------------------
Peter Gallant
Vice President
CITICORP CAPITAL X
CITICORP CAPITAL XI
CITICORP CAPITAL XII
CITICORP CAPITAL XIII
CITICORP CAPITAL XIV
By /s/ Peter Gallant
--------------------
Peter Gallant
Trustee
By /s/ Ann Goodbody
--------------------
Ann Goodbody
Trustee
Pursuant to the requirements of the Securities Act of 1933, this amendment
to Registration Statement has been signed below on March 13, 1997 by the
following persons in the capacities with Citicorp indicated below.
Signature Capacity
--------- --------
*
--------------------- Chairman and Director
John S. Reed (Principal Executive Officer)
/s/ Victor J. Menezes Executive Vice President
--------------------- Chief Financial Officer
Victor J. Menezes
**
--------------------- Executive Vice President
Thomas E. Jones (Principal Financial Officer)(a)
- ----------
(a) Responsible for financial control, tax, accounting and reporting.
II-5
<PAGE>
Signature Capacity
--------- --------
*
--------------------- Director
D. Wayne Calloway
--------------------- Director
Paul J. Collins
*
--------------------- Director
Kenneth T. Derr
*
--------------------- Director
John M. Deutsch
--------------------- Director
Reuben Mark
--------------------- Director
Richard D. Parsons
--------------------- Director
William R. Rhodes
*
--------------------- Director
Rozanne L. Ridgway
*
--------------------- Director
H. Onno Ruding
*
--------------------- Director
Robert B. Shapiro
*
--------------------- Director
Frank A. Shrontz
II-6
<PAGE>
Signature Capacity
--------- --------
*
--------------------- Director
Franklin A. Thomas
*
--------------------- Director
Edgar S. Woolard, Jr.
*By /s/ Peter Gallant
--------------------
Peter Gallant
Attorney-in-Fact
** By: /s/ Roger W. Trupin
---------------------
Roger W. Trupin
Attorney-in-fact
II-7
CERTIFICATE OF TRUST
OF
CITICORP CAPITAL X
This Certificate of Trust is being executed as of January 28, 1997 for the
purpose of organizing a business trust pursuant to the Delaware Business Trust
Act, 12 Del. C. ss. ss. 3801 et. seq. (the "Act").
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "Citicorp Capital X" (the
"Trust").
2. Delaware Trustee. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
3. Effective. This Certificate of Trust shall be effective immediately
upon filing in the Office of the Secretary of State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the day and year first
above written.
WILMINGTON TRUST COMPANY
as Delaware Trustee
/s/ Norma P. Closs
------------------------
Name: Norma P. Closs
Title: Vice President
/s/ Peter Gallant
------------------------
Name: Peter Gallant
Trustee
/s/ Ann Goodbody
------------------------
Name: Ann Goodbody
Trustee
DECLARATION OF TRUST
OF
CITICORP CAPITAL X
January 27, 1997
DECLARATION OF TRUST ("Declaration") dated and effective as of January 27,
1997 by the Trustees (as defined herein), the Sponsor (as defined herein), and
by the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Business Trust Act (as defined herein) for the sole
purpose of issuing certain securities representing undivided beneficial
interests in the assets of the Trust and investing in certain Debentures of the
Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration of Trust as modified, supplemented or amended from
time to time;
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise
specified;
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(e) a reference to the singular includes the plural and vice versa;
(f) a reference to any Person shall include its successors and assigns;
(g) a reference to any agreement or instrument shall mean such agreement
or instrument as supplemented, modified, amended and restated and in
effect from time to time; and
(h) a reference to any statute, law, rule or regulation, shall include
any amendments thereto and any successor, statute, law, rule or
regulation.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York or in Wilmington, Delaware are authorized or
required by any applicable law or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. C. ss.ss. 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means any officer, director, shareholder, partner,
member, representative, employee or agent of the Trust or the Trust's
Affiliates.
"Debenture Issuer" means the Parent in its capacity as the issuer of the
Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the Debenture
Issuer and acquired by the Trust.
"Delaware Trustee" has the meaning set forth in Section 3.1.
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"Depositary Shares" means those certain depositary shares, each
representing a one-tenth interest in a share of 8.00% Noncumulative Preferred
Stock, Series 16, of Citicorp.
"Exchange" means the exchange of one Preferred Security for one Depositary
Share, upon the terms and conditions, and in the manner, set forth in the
registration statement referred to in Section 2.6(b).
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
4.3(b).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent and
the Debenture Trustee and any indenture supplemental thereto pursuant to which
the Debentures are to be issued.
"Indenture Trustee" means the original trustee under the Indenture until a
successor is appointed thereunder, and thereafter means such successor trustee.
"Parent" means Citicorp, a Delaware corporation or any successor entity in
a merger.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Security" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"Property Trustee" has the meaning set forth in Section 3.1.
"Regular Trustee" means any Trustee other than the Delaware Trustee and
Property Trustee.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
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"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "Citicorp Capital X". The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o Wilmington Trust
Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890, Attention: Trust Department. On ten Business Days written notice to the
holders of Securities, the Regular Trustees may designate another principal
office.
SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Common Securities and use the proceeds from such sale to acquire
Debentures, (b) to issue Preferred Securities in exchange for Depositary Shares
pursuant to the Exchange, and to exchange Depositary Shares so received for
Debentures, and (c) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets, or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States federal income
tax purposes as a grantor trust.
SECTION 2.4 Authority.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust. Persons
dealing with the Trust are entitled to
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rely conclusively on the power and authority of the Regular Trustees as set
forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue and exchange the Preferred Securities and to issue and
sell the Common Securities in accordance with this Declaration; provided,
however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, and, provided
further, that there shall be no interests in the Trust other than the
Securities;
(b) in connection with the issue and exchange of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement relating to the
Exchange filed on Form S-4 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in
order to qualify or register all or part of the Preferred Securities
in any State or foreign jurisdiction in which the Sponsor has
determined to qualify or register such Preferred Securities for
sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing or quotation of
the Preferred Securities;
(iv) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on Form 8-A,
including any amendments thereto, prepared by the Sponsor relating
to the registration of the Preferred Securities under Section 12(b)
of the Exchange Act; and
(v) execute and enter into a dealer manager agreement,pricing
agreements and other related agreements providing for the Exchange
and the terms of the Preferred Securities.
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(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
(d) to incur expenses that are necessary or incidental to carry out
any of the purposes of this Declaration, which expenses shall be paid for
by the Sponsor in all respects; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the Trustees shall
cause the filing of the Certificate of Trust for the Trust in the form attached
hereto as Exhibit A with the Secretary of State of the State of Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Section 5.2,
shall have existence for fifty-five (55) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and exchange of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-4 in relation to the Exchange and the
Preferred Securities, including any amendments thereto;
(b) to determine the States and foreign jurisdictions in which to
take appropriate action to qualify or register all or part of the
Preferred Securities and to do any and all such acts, other than actions
which must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any documents to be executed
and filed by the Trust, as the Sponsor deems necessary or advisable in
order to comply with the applicable laws of any such States and foreign
jurisdictions;
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
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(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including
any amendments thereto; and
(e) to negotiate the terms of a dealer manager agreement, pricing
agreements and other related agreements providing for the Exchange and the
terms of the Preferred Securities.
SECTION 2.10 Declaration Binding on Holders of Securities.
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The number of Trustees initially shall be three (3), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; provided, however, that the number
of Trustees shall in no event be less than two (2); provided further that (1)
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or which, if not a natural person, is an
entity which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); and (2) there shall be at least one Regular Trustee who is
an employee or officer of, or is affiliated with, the Sponsor.
Except as expressly set forth in this Declaration, if there are more than
two Regular Trustees, any power of such Regular Trustees may be exercised by, or
with the consent of, a majority of such Regular Trustees; provided that if there
are two Regular Trustees, any power of such Regular Trustees shall be exercised
by both Regular Trustees; provided further that if there is only one Regular
Trustee, all powers of the Regular Trustees shall be exercised by such one
Regular Trustee.
The initial Regular Trustee(s) shall be:
Peter Gallant
Ann Goodbody
The initial Delaware Trustee shall be:
Wilmington Trust Company
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Prior to the issuance of the Preferred Securities and Common Securities,
the Sponsor shall appoint another trustee (the "Property Trustee") meeting the
requirements of the Trust Indenture Act of 1939, as amended, by the execution of
an amendment to this Declaration executed by the Regular Trustees, the Sponsor,
the Property Trustee and the Delaware Trustee.
SECTION 3.2 Delaware Trustee.
Notwithstanding any other provision of this Declaration, the Delaware
Trustee shall not be entitled to exercise any of the powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of ss. 3807 of
the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.3 Execution of Documents.
(a) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, any Regular Trustee is, or if
there are more than two Regular Trustees, any two Regular Trustees are,
authorized to execute on behalf of the Trust any documents which the Regular
Trustees have the power and authority to cause the Trust to execute pursuant to
Section 2.6, provided, that the registration statement referred to in Section
2.6(b)(i), including any amendment thereto, shall be signed by all of the
Regular Trustees; and
(b) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing any documents which the Regular Trustees have power
and authority to cause the Trust to execute pursuant to Section 2.6. SECTION 3.4
Not Responsible for Recitals or Sufficiency of Declaration.
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration.
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ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Indemnified
Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between Covered
Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a
manner that is, or provides terms that are, fair and reasonable to the
Trust or any holder of Securities,
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the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 4.3 Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the Company Indemnified Person did not act in
good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect
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to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment in
its favor by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Trust, except that no such indemnification shall be made in respect of any
claim, issue or matter as to which such Company Indemnified Person shall
have been adjudged to be liable to the Trust unless and only to the extent
that the Court of Chancery of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 4.3(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full
extent permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (l) by
the Regular Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Regular Trustees so directs, by independent legal
counsel in a written opinion, or (3) by the Common Security Holder of the
Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or
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proceeding referred to in paragraphs (i) and (ii) of this Section 4.3(a)
shall be paid by the Debenture Issuer in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Debenture Issuer as authorized in this Section 4.3(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made (i) by the Regular Trustees
by a majority vote of a quorum of disinterested Regular Trustees, (ii) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in
a written opinion or (iii) the Common Security Holder of the Trust, that,
based upon the facts known to the Regular Trustees, counsel or the Common
Security Holder at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such person did
not believe to be in or not opposed to the best interests of the Trust,
or, with respect to any criminal proceeding, that such Company Indemnified
Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to
the Trust or its Common or Preferred Security Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 4.3(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the
Debenture Issuer or Preferred Security Holders of the Trust or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office. All rights to indemnification under
this Section 4.3(a) shall be deemed to be provided by a contract between
the Debenture Issuer and each Company Indemnified Person who serves in
such capacity at any time while this Section 4.3(a) is in effect. Any
repeal or modification of this Section 4.3(a) shall not affect any rights
or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not
the Debenture Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(viii) For purposes of this Section 4.3(a), references to "the
Trust" shall include, in addition to the resulting or
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surviving entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person who
is or was a director, trustee, officer or employee of such constituent
entity, or is or was serving at the request of such constituent entity as
a director, trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section 4.3(a)
with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 4.3(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be
a Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify the (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Delaware Trustee
(each of the Persons in (i) through (iii) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal
fees and expenses) of defending itself against, or investigating, any
claim or liability in connection with the exercise or performance of any
of its powers or duties hereunder. The obligation to indemnify as set
forth in this Section 4.3(b) shall survive the termination of this
Declaration.
SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any
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Covered Person and the Delaware Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for or may act on any committee
or body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the Sponsor's
charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust; and
(iv) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 5.2(a), the Trustees shall file a certificate of cancellation with
the Secretary of State of the State of Delaware.
SECTION 5.3 Governing Law.
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED
BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICT OF LAWS.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
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SECTION 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
[Remainder of this page intentionally left blank.]
- 15 -
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Declaration to be
executed as of the day and year first above written.
/s/ Peter Gallant
------------------------
Name: Peter Gallant
Title: Regular Trustee
/s/ Ann Goodbody
------------------------
Name: Ann Goodbody
Title: Regular Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Norma Closs
------------------------
Name: Norma Closs
Title: Vice President
CITICORP, as Sponsor
By: /s/ Peter Gallant
------------------------
Name: Peter Gallant
Title: Vice President
- 16 -
<PAGE>
CERTIFICATE OF TRUST
OF
CITICORP CAPITAL X
This Certificate of Trust is being executed as of ____________, 1997 for
the purpose of organizing a business trust pursuant to the Delaware Business
Trust Act, 12 Del. C. ss.ss. 3801 et seq. (the "Act").
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "Citicorp Capital X" (the
"Trust").
2. Delaware Trustee. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
3. Effective. This Certificate of Trust shall be effective immediately
upon filing in the Office of the Secretary of State of the State of Delaware.
- 1 -
<PAGE>
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the day and year first
above written.
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Norma P. Closs
------------------------
Norma P. Closs
Vice President
/s/ P. M. Gallant
------------------------
Peter Gallant
Trustee
/s/ Ann M. Goodbody
------------------------
Ann Goodbody
Trustee
- 2 -
================================================================================
AMENDED AND RESTATED DECLARATION
OF TRUST
CITICORP CAPITAL [X][XI][XII][XIII][XIV]
Dated as of ______________, 1997
================================================================================
1
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions ........................................ 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application ................... 9
SECTION 2.2 Lists of Holders of Securities ..................... 9
SECTION 2.3 Reports by the Institutional Trustee ............... 10
SECTION 2.4 Periodic Reports to Institutional Trustee .......... 10
SECTION 2.5 Evidence of Compliance with Conditions Precedent ... 10
SECTION 2.6 Events of Default; Waiver .......................... 10
SECTION 2.7 Event of Default; Notice ........................... 12
ARTICLE III
ORGANIZATION
SECTION 3.1 Name ............................................... 13
SECTION 3.2 Office ............................................. 13
SECTION 3.3 Purpose ............................................ 13
SECTION 3.4 Authority .......................................... 13
SECTION 3.5 Title to Property of the Trust ..................... 14
SECTION 3.6 Powers and Duties of the Regular Trustees .......... 14
SECTION 3.7 Prohibition of Actions by the Trust and
the Trustees ....................................... 17
SECTION 3.8 Powers and Duties of the Institutional
Trustee ............................................ 18
SECTION 3.9 Certain Duties and Responsibilities of the
Institutional Trustee .............................. 20
SECTION 3.10 Certain Rights of Institutional Trustee ............ 22
SECTION 3.11 Delaware Trustee ................................... 26
SECTION 3.12 Execution of Documents ............................. 26
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities ......................................... 26
SECTION 3.14 Duration of Trust .................................. 26
SECTION 3.15 Mergers ............................................ 26
SECTION 3.16 Limitation to Trust Property ....................... 28
SECTION 3.17 Compensation and Fees .............................. 28
i
<PAGE>
Page
----
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities ............ 29
SECTION 4.2 Responsibilities of the Sponsor .................... 29
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees ................................. 30
SECTION 5.2 Delaware Trustee ................................... 30
SECTION 5.3 Institutional Trustee; Eligibility ................. 31
SECTION 5.4 Certain Qualifications of Regular Trustees
and Delaware Trustee Generally ..................... 32
SECTION 5.5 Regular Trustees ................................... 32
SECTION 5.6 Delaware Trustee ................................... 32
SECTION 5.7 Appointment, Removal and Resignation of
Trustees ........................................... 33
SECTION 5.8 Vacancies among Trustees ........................... 34
SECTION 5.9 Effect of Vacancies ................................ 34
SECTION 5.10 Meetings ........................................... 35
SECTION 5.11 Delegation of Power ................................ 35
SECTION 5.12 Merger, Conversion, Consolidation or
Succession to Business ............................. 36
SECTION 5.13 Co-Trustees and Separate Trustee ................... 36
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions ...................................... 38
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities ............ 38
SECTION 7.2 Paying Agent ....................................... 39
SECTION 7.3 Listing ............................................ 40
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust ............... 40
ii
<PAGE>
Page
----
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities ............................. 41
SECTION 9.2 Transfer of Certificates ........................... 41
SECTION 9.3 Deemed Security Holders ............................ 43
SECTION 9.4 Book Entry Interests ............................... 43
SECTION 9.5 Notices to Clearing Agency ......................... 45
SECTION 9.6 Appointment of Successor Clearing Agency ........... 45
SECTION 9.7 Definitive Preferred Security Certificates ......... 45
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates .. 46
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability .......................................... 46
SECTION 10.2 Exculpation ........................................ 47
SECTION 10.3 Fiduciary Duty ..................................... 47
SECTION 10.4 Indemnification .................................... 49
SECTION 10.5 Outside Businesses ................................. 52
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year ........................................ 53
SECTION 11.2 Certain Accounting Matters ......................... 53
SECTION 11.3 Banking ............................................ 53
SECTION 11.4 Withholding ........................................ 54
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments ......................................... 54
SECTION 12.2 Meetings of the Holders of Securities; Action
by Written Consent ................................. 56
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of
Institutional Trustee .............................. 58
iii
<PAGE>
Page
----
SECTION 13.2 Representations and Warranties of Delaware
Trustee ............................................ 59
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices ............................................ 60
SECTION 14.2 Governing Law ...................................... 61
SECTION 14.3 Intention of the Parties ........................... 61
SECTION 14.4 Headings ........................................... 62
SECTION 14.5 Successors and Assigns ............................. 62
SECTION 14.6 Partial Enforceability ............................. 62
SECTION 14.7 Counterparts ....................................... 62
ANNEX I TERMS OF SECURITIES ................................ I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE ............. A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE ................ A2-1
EXHIBIT B SPECIMEN OF DEBENTURE .............................. B-1
EXHIBIT C DEALER MANAGER AGREEMENT ........................... C-1
iv
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
310(a)................................................. 5.3(a)
310(c)................................................. Inapplicable
311(c)................................................. Inapplicable
312(a)................................................. 2.2(a)
312(b)................................................. 2.2(b)
313.................................................... 2.3
314(a)................................................. 2.4
314(b)................................................. Inapplicable
314(c)................................................. 2.5
314(d)................................................. Inapplicable
314(f)................................................. Inapplicable
315(a)................................................. 3.9(b)
315(c)................................................. 3.9(a)
315(d)................................................. 3.9(a)
316(a)................................................. Annex I
316(c)................................................. 3.6(e)
_______________
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
v
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
CITICORP CAPITAL [ ]
___________, 1997
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated
and effective as of ___________, 1997, by the Trustees (as defined herein), the
Sponsor (as defined herein) and the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established Citicorp
Capital [ ] (the "Trust"), a trust under the Business Trust Act (as defined
herein)pursuant to a Declaration of Trust dated as of January 27, 1997 (the
"Original Declaration"), and a Certificate of Trust filed with the Secretary of
State of the State of Delaware on January 30, 1997, for the sole purposes of
issuing certain securities representing undivided beneficial interests in the
assets of the Trust and investing in certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the
Trust have been issued; and
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the Original
Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
1
<PAGE>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" are
to this Declaration as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and Sections
and Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Additional Interest" has the meaning set forth in the Indenture.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is
authorized to legally bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than Saturday, Sunday or any
other day on which banking institutions in New York City, are permitted or
required by any applicable law to close.
2
<PAGE>
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq., as it may be amended from time to time, or
any successor legislation.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section 7.1(a).
"Common Securities Guarantee" means the guarantee agreement to be
dated as of ____________, 1997 of the Sponsor in respect of the Common
Securities.
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security substantially in the form
of Exhibit A-2.
"Company Indemnified Person" means (a) any Regular Trustee; (b)
any Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Institutional
Trustee at which the corporate trust business of the Institutional Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at Rodney Square North, 9th
Floor, 1100 North Market Street, Wilmington, Delaware 19890-0001.
3
<PAGE>
"Coupon Rate" has the meaning set forth in Section 2(a) of Annex
I.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Dealer Manager Agreement" means the Dealer Manager Agreement in
the form of Exhibit C.
"Debenture Issuer" means Citicorp, a Delaware corporation, or any
successor entity resulting from any consolidation, amalgamation, merger or other
business combination, in its capacity as issuer of the Debentures under the
Indenture.
"Debenture Trustee" means Wilmington Trust Company, a national
banking association duly organized and existing under the laws of the United
States, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture to be held by the Institutional Trustee, a
specimen certificate for such series of Debentures being Exhibit B.
"Definitive Preferred Security Certificates" has the meaning set
forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depositary Shares" means those certain depositary shares, each
representing a one-tenth interest in a share of Citicorp __% [Non]cumulative
Preferred Stock, Series __.
"Dissolution Tax Opinion" has the meaning set forth in Section
4(c) of Annex I hereto.
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) that has occurred and is continuing in
respect of the Debentures.
4
<PAGE>
"Exchange" means the exchange of Preferred Securities for
Depositary Shares, subject to the terms and conditions, and in the manner, set
forth in the registration statement referred to in Section 3.6(b).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Exchange Date" means the date on which the Trust commences
delivery of Preferred Securities for Depositary Shares pursuant to the Exchange.
"Expiration Date" means the expiration date for the tender of
Depositary Shares in the Exchange.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing
a Security is registered, such Person being a beneficial owner within the
meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of December 17, 1996,
among the Debenture Issuer and the Debenture Trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued.
"Institutional Trustee" has the meaning set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in
Section 3.8(c).
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount of the Securities" means, except
as provided in the terms of the Preferred Securities or by the Trust Indenture
Act, Holder(s) of
5
<PAGE>
outstanding Securities voting together as a single class or, as the context may
require, Holders of outstanding Preferred Securities or Holders of outstanding
Common Securities voting separately as a class, who are the record owners of
more than 50% of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"No Recognition Opinion" has the meaning set forth in Section
4(c) of Annex I hereto.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman, a Vice Chairman, a Vice President, the Chief
Auditor, the Treasurer, the Secretary or an Assistant Secretary of such Person.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 7.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning specified in Section
7.1(a).
6
<PAGE>
"Preferred Securities Guarantee" means the guarantee agreement to
be dated as of ____________, 1997, of the Sponsor and Wilmington Trust Company,
as Preferred Guarantee Trustee, in respect of the Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate representing
a Preferred Security substantially in the form of Exhibit A-1.
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Regulatory Capital Event" has the meaning set forth in Section
4(c) of Annex I hereto.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Institutional
Trustee, any officer within the Corporate Trust Office of the Institutional
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer or other officer of
the Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act, or
any successor rule or regulation.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
7
<PAGE>
"Securities Guarantees" means the Common Securities Guarantee and
the Preferred Securities Guarantee.
"Sponsor" means Citicorp, a Delaware corporation, or any
successor entity resulting from any merger, consolidation, amalgamation or other
business combination, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
5.7.
"Successor Institutional Trustee" has the meaning set forth in
Section 5.7.
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the meaning set forth in Section 4(c) of Annex I
hereto.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Terms Agreement" means the terms agreement between the Trust and
the Debenture Issuer with respect to the terms of the Debentures and the terms
of the Preferred Securities to be exchanged pursuant to the Exchange.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
8
<PAGE>
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Institutional Trustee Account and (iii) all
proceeds and rights in respect of the foregoing and any other property and
assets for the time being held by the Institutional Trustee for the Trust
pursuant to this Declaration.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is
a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by ss.ss. 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Institutional Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the
Institutional Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of such record date, provided
that neither the Sponsor nor the Regular Trustees on behalf of the Trust shall
be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Institutional
Trustee by the Sponsor and the Regular Trustees on behalf of the Trust, and (ii)
at any other time, within 30 days of receipt by the Trust of a written request
for a List of Holders as of a date no more than 14 days before such List of
Holders is given to the Institutional
9
<PAGE>
Trustee. The Institutional Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders given to
it or which it receives in the capacity as Paying Agent (if acting in such
capacity) provided that the Institutional Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations
under ss.ss. 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
Within 60 days after May 15 of each year, the Institutional
Trustee shall provide to the Holders of the Preferred Securities such reports as
are required by ss. 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by ss. 313 of the Trust Indenture Act. The Institutional
Trustee shall also comply with the requirements of ss. 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Institutional Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Institutional Trustee such documents, reports and
information as required by ss. 314 (if any) and the compliance certificate
required by ss. 314 of the Trust Indenture Act in the form, in the manner and at
the times required by ss. 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Institutional Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Declaration that
relate to any of the matters set forth in ss. 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to ss.
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
10
<PAGE>
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority") to
be waived under the Indenture, the Event of Default under the Declaration
may only be waived by the vote of the Holders of at least the proportion
in liquidation amount of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of ss.
316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section 2.6(b), the Event
of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Declaration as provided below
in this Section 2.6(b), the Event of Default under the Declaration may
only be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Common Securities
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that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Institutional Trustee will be deemed to be acting solely on behalf of the
Holders of the Preferred Securities and only the Holders of the Preferred
Securities will have the right to direct the Institutional Trustee in accordance
with the terms of the Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon such waiver, any such default shall
cease to exist and any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Event of Default with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Institutional Trustee, at the direction of the Holders of the Preferred
Securities, constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.6(c) shall be in
lieu of ss. 316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Securities, notices of all defaults with respect
to the Securities actually known to a Responsible Officer of the Institutional
Trustee, unless such defaults have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be an Event of Default as defined in the Indenture, not including any
periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for a default in the payment of
principal of (or premium, if any) or interest on any of the Debentures or in the
payment of any sinking fund installment
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established for the Debentures, the Institutional Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the
Institutional Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Institutional Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections 5.01(a) and 5.01(b) of the
Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "Citicorp Capital [__]" as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Citicorp,
399 Park Avenue, New York, New York 10043 Attn: Treasurer. On ten Business Days
written notice to the Holders of Securities, the Regular Trustees may designate
another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Common Securities, to exchange Preferred Securities for
Depositary Shares and to use the proceeds from such sale of Common Securities
and the Depositary Shares accepted in such exchange to acquire the Debentures
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
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SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Institutional Trustee, the Regular Trustees shall
have exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Institutional Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures
and the Institutional Trustee Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue the Securities in accordance with this Declaration;
provided, however, that the Trust may issue no more than one series of
Preferred Securities and no more than one series of Common Securities,
and, provided further, that there shall be no interests in the Trust
other than the Securities, and the issuance of Securities shall be
limited to a simultaneous issuance of both Preferred Securities and
Common Securities on the Exchange Date;
(b) in connection with the issue and exchange of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the registration
statement on Form S-4 prepared by the Sponsor, including any
amendments thereto, pertaining to the Preferred Securities and
the Exchange;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in
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which the Sponsor has determined to qualify or register such
Preferred Securities;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock Market's National
Market for listing upon notice of issuance of any Preferred
Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared
by the Sponsor, relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act; and
(v) execute and enter into the Dealer Manager Agreement and
Terms Agreement providing for the exchange of the Preferred
Securities;
(c) to acquire the Debentures with the proceeds of the sale of
the Common Securities and with the Depositary Shares accepted in the
Exchange for the Preferred Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of
record in the name of the Institutional Trustee for the benefit of the
Holders of the Preferred Securities and the Holders of the Common
Securities;
(d) to give the Sponsor and the Institutional Trustee prompt
written notice of the occurrence of a Tax Event or Regulatory Capital
Event; provided that the Regular Trustees shall consult with the Sponsor
and the Institutional Trustee before taking or refraining from taking any
ministerial action in relation to a Tax Event or Regulatory Capital
Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and
with respect to, for the purposes of ss. 316(c) of the Trust Indenture
Act, Distributions, voting rights, redemptions and exchanges, and to
issue relevant notices to the Holders of Preferred Securities and Holders
of Common Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or
against the Trust ("Legal Action"),
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unless pursuant to Section 3.8(e), the Institutional Trustee has the
exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may
be designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate required by ss. 314(a)(4) of the
Trust Indenture Act to the Institutional Trustee, which certificate may
be executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry
out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities or to appoint a Paying Agent for the
Securities as provided in Section 7.2;
(m) to give prompt written notice to the Holders of the
Securities of any notice received from the Debenture Issuer of its
election to defer payments of interest on the Debentures by extending the
interest payment period under the Indenture;
(n) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the
laws of the State of Delaware and of each other jurisdiction in which
such existence is necessary to protect the limited liability of the
Holders of the Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or
with applicable law, that the Regular Trustees determine in their
discretion to be necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.6, including, but not limited to:
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(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company
Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that
the Debentures will be treated as indebtedness of the Debenture
Issuer for United States federal income tax purposes,
provided that such action does not adversely affect the interests of
Holders in any material respect; and
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the Regular
Trustees, on behalf of the Trust.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none
of the powers or the authority of the Institutional Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the
Institutional Trustee) on behalf of the Trust shall not, engage in any activity
other than as required or authorized by this Declaration. In particular, the
Trust shall not and the Trustees (including the Institutional Trustee) shall
cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
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(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as provided in this Declaration or Annex I, (A)
direct the time, method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to the Debentures, (B)
waive any past default that is waivable under the Indenture, (C) exercise
any right to rescind or annul any declaration that the principal of all
the Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have received an opinion
of a nationally recognized independent counsel experienced in such
matters to the effect that such modification will not cause more than an
insubstantial risk that for United States federal income tax purposes the
Trust will not be classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and held
of record in the name of the Institutional Trustee in trust for the benefit of
the Holders of the Securities. The right, title and interest of the
Institutional Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Institutional Trustee in accordance with
Section 5.7. Such vesting and cessation of title shall be effective whether or
not conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Institutional Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
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(i) establish and maintain a segregated non-interest bearing
trust account (the "Institutional Trustee Account") in the name of and
under the exclusive control of the Institutional Trustee, except as
provided in Section 7.2 hereof, on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made in respect of
the Debentures held by the Institutional Trustee, deposit such funds into
the Institutional Trustee Account and make payments to the Holders of the
Preferred Securities and Holders of the Common Securities from the
Institutional Trustee Account in accordance with Section 6.1. Funds in
the Institutional Trustee Account shall be held uninvested until
disbursed in accordance with this Declaration. The Institutional Trustee
Account shall be an account that is maintained with a banking institution
the rating on whose long-term unsecured indebtedness is at least equal to
the rating assigned to the Preferred Securities by a "nationally
recognized statistical rating organization", as that term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be necessary
or appropriate to effect the redemption of the Securities to the extent
the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders of Securities upon the
occurrence of a Tax Event or a Regulatory Capital Event.
(d) The Institutional Trustee shall take all actions and perform
such duties as may be specifically required of the Institutional Trustee
pursuant to the terms of the Securities.
(e) The Institutional Trustee shall take any Legal Action which
arises out of or in connection with (i) an Event of Default of which a
Responsible Officer of the Institutional Trustee has actual knowledge or (ii)
the Institutional Trustee's duties and obligations under this Declaration or the
Trust Indenture Act, and if such Institutional Trustee shall have failed to take
such Legal Action, the Holders of the Preferred Securities may take such Legal
Action, to the same extent as if such Holders of Preferred Securities held a
principal amount of Debentures equal to the liquidation amount of such Preferred
Securities, without first proceeding against the Institutional Trustee or the
Trust; provided however, that if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay
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interest or principal on the Debentures on the date such interest or principal
is otherwise payable (or in the case of redemption, on the redemption date),
then a Holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such Holder of the principal of or interest then due
on the Debentures having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such Holder (a "Direct Action") on or
after the respective due date specified in the Debentures. In connection with
such Direct Action, the rights of the Holders of the Common Securities will be
subrogated to the rights of such Holder of Preferred Securities to the extent of
any payment made by the Issuer to such Holder of Preferred Securities in such
Direct Action. Except as provided in the preceding sentences, the Holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
(f) The Institutional Trustee shall not resign as a Trustee
unless either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a Successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7.
(g) The Institutional Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default actually known to a Responsible
Officer of the Institutional Trustee occurs and is continuing, the Institutional
Trustee shall, for the benefit of Holders of the Securities, enforce its rights
as holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) The Institutional Trustee shall be authorized to undertake
any actions set forth in ss. 317(a) of the Trust Indenture Act.
(i) Subject to this Section 3.8, the Institutional Trustee shall
have none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
The Institutional Trustee must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Institutional Trustee shall not
take any action that is inconsistent with the purposes and functions of the
Trust set out in Section 3.3.
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SECTION 3.9 Certain Duties and Responsibilities of the Institutional
Trustee.
(a) The Institutional Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and in the Securities and no implied covenants shall be read
into this Declaration against the Institutional Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section 2.6)
of which a Responsible Officer of the Institutional Trustee has actual
knowledge, the Institutional Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Institutional Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Institutional Trustee
shall be determined solely by the express provisions of this
Declaration and in the Securities and the Institutional Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Declaration and
in the Securities, and no implied covenants or obligations shall
be read into this Declaration against the Institutional Trustee;
and
(B) in the absence of bad faith on the part of the
Institutional Trustee, the Institutional Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions
furnished to the Institutional Trustee and conforming to the
requirements of this Declaration; provided, however, that in the
case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Institutional Trustee, the Institutional Trustee shall be under a
duty to examine the same to determine whether or not they conform
to the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any error
of judgment made in good faith by a
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Responsible Officer of the Institutional Trustee, unless it shall be
proved that the Institutional Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority
in liquidation amount of the Outstanding Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
indemnity reasonably satisfactory to the Institutional Trustee against
such risk or liability is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Institutional Trustee Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals with similar property
for its own account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this Declaration
and the Trust Indenture Act and, to the extent applicable, Rule 3a-7
under the Investment Company Act;
(vi) the Institutional Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or sufficiency
of the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Institutional Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree in
writing with the Sponsor. Money held by the Institutional Trustee need
not be segregated from other funds held by it except in relation to the
Institutional Trustee Account maintained by the Institutional Trustee
pursuant to Section 3.8(c)(i) and except to the extent otherwise required
by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under
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this Declaration, nor shall the Institutional Trustee be liable for any
default or misconduct of the Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Institutional Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Institutional Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the Regular
Trustees;
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(v) the Institutional Trustee may consult with counsel or other
experts of its selection and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of such
experts' area of expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion,
such counsel may be counsel to the Sponsor or any of its Affiliates, and
may include any of its employees. The Institutional Trustee shall have
the right at any time to seek instructions concerning the administration
of this Declaration from any court of competent jurisdiction;
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(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Institutional Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the
Institutional Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Institutional Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Declaration;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Institutional
Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Institutional
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other action
hereunder, the Institutional Trustee (i) may request instructions from
the Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation
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amount of the Securities as would be entitled to direct the Institutional
Trustee under the terms of the Securities in respect of such remedy,
right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii)
shall be protected in conclusively relying on or acting in or accordance
with such instructions;
(xi) except as otherwise expressly provided by this Declaration,
the Institutional Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration;
(xii) the Institutional Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Declaration; and
(xiii) if (A) in performing its duties under this Declaration the
Institutional Trustee is required to decide between alternative courses
of action or (B) in construing any of the provisions in this Declaration,
the Institutional Trustee finds the same ambiguous or same inconsistent
with any other provisions contained herein or (C) the Institutional
Trustee is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the Preferred
Securities Holders are entitled to vote under the terms of this
Declaration, the Institutional Trustee shall deliver a notice to the
Sponsor requesting written instructions of the Sponsor as to the course
of action to be taken. The Institutional Trustee shall take such action,
or refrain from taking such action, as the Institutional Trustee shall be
instructed in writing to take, or to refrain from taking, by the Sponsor
and shall be fully and conclusively protected in taking or refraining
from taking such action as so instructed; provided, however, that the
Institutional Trustee shall be under no duty to take any action unless
and until so instructed by the Sponsor; and provided, further, that if
the Institutional Trustee does not receive such instructions of the
Sponsor within ten Business Days after it has delivered such notice, or
such reasonably shorter period of time set forth in such notice (which to
the extent practicable shall not be fewer than two Business days), it
may, but shall be under no duty to, take or refrain from taking any such
action not inconsistent with this Declaration as it shall deem advisable
and in the best interest of the Securities Holders, in which event the
Institutional Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct.
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(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Institutional Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Institutional
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 5.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Institutional Trustee described
in this Declaration. Except as set forth in Section 5.2, the Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of ss.3807 of the Business Trust Act.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.6;
provided that, the registration statement referred to in Section 3.6(b)(i),
including any amendments thereto, shall be signed by a majority of or, if there
are less than three, all of the Regular Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of
Article VIII hereof, shall dissolve on May 15, 2052.
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SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees or,
if there are more than two, a majority of the Regular Trustees and without the
consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided
that:
(i) if the Trust is not the surviving entity, such successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the "Successor
Securities") so long as the Successor Securities rank the same as
the Securities rank with respect to Distributions and payments
upon liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed or quoted, or any Successor Securities will be so upon notice of
issuance, on any national securities exchange or other organization on
which the Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor Securities)
to be downgraded by any nationally recognized statistical rating
organization;
(v) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the
Holders of the Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of such
Holders' interests in the new entity);
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(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of counsel to the Trust
to the effect that:
(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges
of the Holders of the Securities (including any Successor
Securities) in any material respect (other than with respect to
any dilution of the Holders' interest in the new entity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company;
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue to
be classified as a grantor trust for United States federal income
tax purposes; and
(viii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent provided by
the Preferred Securities Guarantee and the Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or the Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes.
SECTION 3.16 Limitation to Trust Property.
All payments made by the Institutional Trustee or a Paying Agent
in respect of the Securities shall be made only from the income and proceeds
from the Trust Property and only to the extent that there shall be sufficient
income or proceeds from the Trust Property to enable the Institutional Trustee
or Paying Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Security, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to it as herein provided and
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that the Trustees shall not be personally liable to it for any amount
distributable in respect of any Security or for any other liability in respect
of any Security; provided that this Section 3.16 does not limit the liability of
the Trustees expressly set forth elsewhere in this Declaration or, in the case
of the Institutional Trustee, in the Trust Indenture Act.
SECTION 3.17 Compensation and Fees.
(a) The Sponsor agrees:
(i) to pay the Institutional Trustee from time to time
compensation for all services rendered by the Institutional Trustee
hereunder in accordance with a separate fee agreement between the Sponsor
and the Institutional Trustee (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust); and
(ii) except as otherwise expressly provided herein, to reimburse
the Institutional Trustee upon request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the
Institutional Trustee in accordance with any provision of this
Declaration (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, bad
faith or willful misconduct.
(b) The provisions of this Section shall survive the termination
of this Declaration.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Exchange Date, the Sponsor will purchase all of the Common
Securities issued by the Trust at the same time as the Preferred Securities are
issued in the Exchange.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and exchange of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-4 in relation to the Exchange and the
Preferred Securities, including any amendments thereto;
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(b) to determine the States in which to take appropriate action
to qualify or register all or part of the Preferred Securities and/or the
Exchange and to do any and all such acts, other than actions which must
be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed
by the Trust, as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including
any amendments thereto; and
(e) to negotiate the terms of the Dealer Manager Agreement and
Terms Agreement.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees initially shall be three (3), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees; and
(b) after the issuance of any Securities, the number of Trustees
may be increased or decreased by vote of the Holders of a majority in
liquidation amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities; provided, however, that,
the number of Trustees shall in no event be less than two (2); provided
further that (1) one Trustee shall be the Delaware Trustee; (2) there
shall be at least one Trustee who is an employee or officer of, or is
affiliated with the Sponsor (a "Regular Trustee"); and (3) one Trustee
shall be the Institutional Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and
such Trustee may also serve as Delaware Trustee if it meets the
applicable requirements.
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SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware;
or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the
requirements of applicable law,
provided that, if the Institutional Trustee has its principal place of business
in the State of Delaware and otherwise meets the requirements of applicable law,
then the Institutional Trustee shall also be the Delaware Trustee and Section
3.11 shall have no application.
SECTION 5.3 Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a financial institution organized and doing business
under the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under the
Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 5.3(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.7(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of ss. 310(b) of the Trust Indenture
Act, the Institutional Trustee and the
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Holder of the Common Securities (as if it were the obligor referred to in ss.
310(b) of the Trust Indenture Act) shall in all respects comply with the
provisions of ss. 310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be:
Wilmington Trust Company
SECTION 5.4 Certain Qualifications of Regular Trustees and
Delaware Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the
Institutional Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5 Regular Trustees.
The initial Regular Trustees shall be:
Peter Gallant
Ann Goodbody
(a) Except as expressly set forth in this Declaration and except
if a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular Trustees
may be exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or applicable law, any
Regular Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6, provided, that, the registration statement
referred to in Section 3.6, including any amendments thereto, shall be signed by
a majority of or, if there are less than three, all of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
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SECTION 5.6 Delaware Trustee.
The initial Delaware Trustee shall be:
Wilmington Trust Company
SECTION 5.7 Appointment, Removal and Resignation of
Trustees.
(a) Subject to Section 5.7(b), Trustees may be appointed or
removed without cause at any time except during an Event of Default:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders
of a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities.
(b)(i) The Trustee that acts as Institutional Trustee shall not
be removed in accordance with Section 5.7(a) until a successor Trustee
possessing the qualifications to act as Institutional Trustee under Section 5.3
(a "Successor Institutional Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Institutional
Trustee and delivered to the Regular Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with this Section 5.7(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections
5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Regular Trustees and the
Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
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(A) until a Successor Institutional Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Institutional Trustee and delivered to
the Trust, the Sponsor and the resigning Institutional Trustee;
or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders of
the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the Sponsor
and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor
Institutional Trustee as the case may be if the Institutional Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with this
Section 5.7.
(e) If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.7 within 60 days after delivery of an instrument of resignation or
removal, the Institutional Trustee or Delaware Trustee resigning or being
removed, as applicable, may petition any court of competent jurisdiction for
appointment of a Successor Institutional Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Institutional Trustee or
Successor Delaware Trustee, as the case may be.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number
of Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees
is increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.7.
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SECTION 5.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy in the number
of Regular Trustees shall occur, until such vacancy is filled by the appointment
of a Regular Trustee in accordance with Section 5.7, the Regular Trustees in
office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Declaration.
SECTION 5.10 Meetings.
If there is more than one Regular Trustee, meetings of the
Regular Trustees shall be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regular Trustees. Notice of any in-person
meetings of the Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 48 hours before such meeting. Notice of any telephonic meetings of the
Regular Trustees or any committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the meeting. The
presence (whether in person or by telephone) of a Regular Trustee at a meeting
shall constitute a waiver of notice of such meeting except where a Regular
Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this Declaration, any action of
the Regular Trustees may be taken at a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter, provided that a Quorum is present, or without
a meeting by the unanimous written consent of the Regular Trustees. In the event
there is only one Regular Trustee, any and all action of such Regular Trustee
shall be evidenced by a written consent of such Regular Trustee.
SECTION 5.11 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
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(b) the Regular Trustees shall have power to delegate from time
to time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 5.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Institutional Trustee or the
Delaware Trustee, as the case may be, may be merged or converted or with which
either may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any corporation succeeding to
all or substantially all the corporate trust business of the Institutional
Trustee or the Delaware Trustee, as the case may be, shall be the successor of
the Institutional Trustee or the Delaware Trustee, as the case may be,
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
SECTION 5.13 Co-Trustees and Separate Trustee.
(a) Unless an Event of Default shall have occurred and be
continuing, at any time or times for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any part
of the Trust Property may at the time be located, the Sponsor and the
Institutional Trustee shall have power to appoint, and upon the written request
of the Institutional Trustee, the Sponsor shall for such purpose join with the
Institutional Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Institutional Trustee either to act as co-trustee, jointly with
the Institutional Trustee, of all or any part of such Trust Property, or to act
as separate trustee of any such property, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section 5.13. If
the Sponsor does not join in such appointment within 15 days after the receipt
by it of a request so to do, or in case of an Event of Default has occurred and
is continuing, the Institutional Trustee alone shall have power to make such
appointment.
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(b) Should any written instrument from the Sponsor be required by
any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Sponsor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(i) The Securities shall be executed and delivered and all
rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees designated for
such purpose hereunder, shall be exercised, solely by such Trustees.
(ii) The rights, powers, duties and obligations hereby conferred
or imposed upon the Institutional Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Institutional Trustee or by the
Institutional Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the
Institutional Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate trustee.
(iii) The Institutional Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Sponsor, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section 5.13, and, in case an Event of Default has
occurred and is continuing, the Institutional Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Sponsor. Upon the written request
of the Institutional Trustee, the Sponsor shall join with the
Institutional Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this
Section 5.13.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Institutional
Trustee.
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(v) The Institutional Trustee shall not be liable by reason of
any act or omission of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Institutional Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein) in
accordance with the applicable terms of the relevant Holder's Securities.
Distributions shall be made on the Preferred Securities and the Common
Securities in accordance with the preferences set forth in their respective
terms. If and to the extent that the Debenture Issuer makes a payment of
interest (including Compounded Interest (as defined in the Indenture) and
Additional Interest), premium and/or principal on the Debentures held by the
Institutional Trustee (the amount of any such payment being a "Payment Amount"),
the Institutional Trustee shall and is directed, to the extent funds are
available for that purpose, to make a distribution (a "Distribution") of the
Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one
class of preferred securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Annex I (the
"Preferred Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Common Securities.") The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. In case any Regular Trustee of the
Trust who shall have signed any of the Securities shall cease to be such Regular
Trustee before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be
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delivered as though the person who signed such Certificates had not ceased to be
such Regular Trustee; and any Certificate may be signed on behalf of the Trust
by such persons who, at the actual date of execution of such Security, shall be
the Regular Trustees of the Trust, although at the date of the execution and
delivery of the Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation of any stock exchange on which Securities
may be listed, or to conform to usage.
(c) A Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Institutional Trustee. The
signature shall be conclusive evidence that the Security has been authenticated
under this Declaration.
The Institutional Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Institutional Trustee may do so. Each
reference in this Declaration to authentication by the Institutional Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Institutional Trustee to deal with the Sponsor or an Affiliate.
(d) The consideration received by the Trust for the issuance of
the Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration and the receipt of the consideration therefor, the Securities so
issued shall be deemed to be validly issued, fully paid and non-assessable.
(f) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
SECTION 7.2 Paying Agent.
The Trust shall appoint an agent (the "Paying Agent"), which
shall initially be Citibank, N.A., which shall make Distributions to the
Securities Holders from the Institutional
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Trustee Account and shall report the amounts of such Distributions to the
Regular Trustees and the Institutional Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Institutional Trustee Account for the
purpose of making the Distributions. The Institutional Trustee shall be entitled
to rely upon a certificate of the Paying Agent stating the amount of such funds
so to be withdrawn and that the same are to be applied by the Paying Agent in
accordance with this Section 7.2. The Regular Trustees may revoke such power and
remove the Paying Agent in their sole discretion. The Paying Agent may choose
any co-paying agent that is acceptable to the Regular Trustees. The Paying Agent
shall be permitted to resign upon 30 days' notice to the Regular Trustees. In
the event of the removal or resignation of the Paying Agent, the Regular
Trustees shall appoint a successor that is reasonably acceptable to the
Institutional Trustee to act as Paying Agent (which shall be a bank, trust
company or an Affiliate of the Sponsor). The Regular Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed to execute and
deliver to the Trustees an instrument in which such Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Securities Holders in trust for the benefit of the Securities
Holders entitled thereto until such sums shall be paid to such Securities
Holders. The Paying Agent shall return all unclaimed funds to the Institutional
Trustee and upon resignation or removal of a Paying Agent such Paying Agent also
shall return all funds in its possession to the Institutional Trustee. The
provisions of Sections 3.8(d), 3.9, 3.10 and 3.17 shall apply to the Paying
Agent appointed hereunder, and the Paying Agent shall be bound by the
requirements with respect to paying agents of securities issued pursuant to the
Trust Indenture Act. Any reference in this Declaration to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
SECTION 7.3. Listing: The Regular Trustees shall use their best efforts to cause
the Preferred Securities to be listed on the New York Stock Exchange, Inc.,
subject to notice of issuance, by the Exchange Date.
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve:
(i) on May 15, 2052, the expiration term of the Trust;
(ii) upon the bankruptcy of the Sponsor;
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(iii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the consent of at least a
majority in liquidation amount of the Securities affected thereby voting
together as a single class to file a certificate of cancellation with
respect to the Trust or the revocation of the Sponsor's charter and the
expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iv) upon the election by the Regular Trustees to dissolve the
Trust, following the occurrence of a Tax Event or a Regulatory Capital
Event in accordance with the terms of the Securities and the distribution
of all of the Debentures endorsed thereon to the Holders of Securities in
exchange for all of the Securities;
(v) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(vi) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the Securities;
or
(vii) before the issuance of any Securities, with the consent of
all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), and upon the completion of the winding up of the
Trust, one of the Trustees (each of whom is hereby authorized to take such
action) shall file a certificate of cancellation with the Secretary of State of
the State of Delaware terminating the Trust.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
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(c) The Sponsor may not transfer the Common Securities.
SECTION 9.2 Transfer of Certificates.
(a) The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Trust or the Sponsor
may reasonably require) in respect of any tax or other government charges that
may be imposed in relation to it. Upon surrender for registration of transfer of
any Certificate, the Regular Trustees shall cause one or more new Certificates
to be issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Certificate surrendered for registration of transfer shall be canceled by
the Regular Trustees. A transferee of a Certificate shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Certificate. By acceptance of a Certificate, each
transferee shall be deemed to have agreed to be bound by this Declaration.
(b) Upon receipt by the Institutional Trustee of a Definitive
Preferred Security Certificate, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Institutional Trustee,
requesting transfer of such Definitive Preferred Security Certificate for a
beneficial interest in a Global Certificate, the Institutional Trustee shall
cancel such Definitive Preferred Security Certificate and cause, or direct the
Clearing Agency to cause, the aggregate number of Preferred Securities
represented by the appropriate Global Certificate to be increased accordingly.
If no Global Certificates are then outstanding, the Trust shall issue and the
Institutional Trustee shall authenticate, upon written order of any Regular
Trustee, an appropriate number of Preferred Securities in global form.
(c) Upon receipt by the Institutional Trustee from the Clearing
Agency or its nominee on behalf of any Person having a beneficial interest in a
Global Certificate of written instructions or such other form of instructions as
is customary for the Clearing Agency or the person designated by the Clearing
Agency, requesting transfer of a beneficial interest in a Global Certificate for
a Definitive Preferred Security Certificate, then the Institutional Trustee or
the securities custodian, at the direction of the Institutional Trustee, will
cause, in accordance with the standing instructions and procedures existing
between the Clearing Agency and the securities custodian, the aggregate
principal amount of the Global Certificate to be reduced on its
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books and records and, following such reduction, the Trust will execute and the
Institutional Trustee will authenticate and deliver to the transferee a
Definitive Preferred Security Certificate.
Definitive Preferred Security Certificates issued in exchange for
a beneficial interest in a Global Certificate shall be registered in such names
and in such authorized denominations as the Clearing Agency, pursuant to
instructions from its Clearing Agency Participants or indirect participants or
otherwise, shall instruct the Institutional Trustee. The Institutional Trustee
shall deliver such Preferred Securities to the persons in whose names such
Preferred Securities are so registered in accordance with the instructions of
the Clearing Agency.
(d) Notwithstanding any other provisions of this Declaration, a
Global Certificate may not be transferred as a whole except by the Clearing
Agency to a nominee of the Clearing Agency or another nominee of the Clearing
Agency or by the Clearing Agency or any such nominee to a successor Clearing
Agency or a nominee of such successor Clearing Agency.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder of
such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on original issuance, will be
issued in the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Trust. Such Global Certificates shall
initially be registered on the books and records of the Trust in the name of
Cede & Co., the nominee of DTC, and no Preferred Security Beneficial Owner will
receive a definitive Preferred Security Certificate representing such Preferred
Security Beneficial Owner's interests in such Global Certificates, except as
provided in Section 9.7. Unless and until definitive, fully registered Preferred
Security Certificates (the "Definitive Preferred Security Certificates")
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have been issued to the Preferred Security Beneficial Owners pursuant to Section
9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the sole holder of the Global Certificates and shall have
no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions of
this Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall
be exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and receive and transmit payments of Distributions on the
Global Certificates to such Clearing Agency Participants. DTC will make
book entry transfers among the Clearing Agency Participants.
Clearing Agency Participants shall have no rights under this
Declaration with respect to any Global Certificate held on their behalf by the
Clearing Agency or by the Institutional Trustee as the custodian of the Clearing
Agency or under such Global Certificate, and the Clearing Agency may be treated
by the Trust, the Institutional Trustee and any agent of the Trust or the
Institutional Trustee as the absolute owner of such Global Certificate for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Trust, the Institutional Trustee or any agent of the Trust or the
Institutional Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Clearing Agency or impair, as between the
Clearing Agency and its Clearing Agency Participants, the operation of customary
practices of such Clearing Agency governing the exercise of the rights of a
holder of a beneficial interest in any Global Certificate.
At such time as all beneficial interests in a Global Certificate
have either been exchanged for Definitive Preferred Security Certificates to the
extent permitted by this Declaration or redeemed, repurchased or canceled in
accordance with the terms
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of this Declaration, such Global Certificate shall be returned to the Clearing
Agency for cancellation or retained and canceled by the Institutional Trustee.
At any time prior to such cancellation, if any beneficial interest in a Global
Certificate is exchanged for Definitive Preferred Security Certificates, or if
Definitive Preferred Security Certificates are exchanged for a beneficial
interest in a Global Certificate, Preferred Securities represented by such
Global Certificate shall be reduced or increased and an adjustment shall be made
on the books and records of the Institutional Trustee (if it is then the
securities custodian for such Global Certificate) with respect to such Global
Certificate, by the Institutional Trustee or the securities custodian, to
reflect such reduction or increase.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Regular Trustees shall give all
such notices and communications specified herein to be given to the Preferred
Security Holders to the Clearing Agency, and shall have no notice obligations to
the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency with
respect to such Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the
Sponsor to terminate the book entry system through the Clearing Agency
with respect to the Preferred Securities,
then:
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(c) Definitive Preferred Security Certificates shall be prepared
by the Regular Trustees on behalf of the Trust with respect to such
Preferred Securities; and
(d) upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions
of the Clearing Agency. Neither the Trustees nor the Trust shall be
liable for any delay in delivery of such instructions and each of them
may conclusively rely on and shall be protected in relying on, said
instructions of the Clearing Agency. The Definitive Preferred Security
Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate, or
as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock
exchange on which Preferred Securities may be listed, or to conform to
usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen
Certificates.
If:
(a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate;
and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep each of them
harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 9.8, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all
of the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to ss. 3803(a) of the Business Trust Act, the
Holders of the Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information,
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opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Securities might
properly be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Institutional Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall
act in a manner that is, or provides terms that are, fair and reasonable
to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to
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give any consideration to any interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 10.4 Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees and expenses), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment in
its favor by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees and expenses) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust
unless and only to the extent that the Court of Chancery of Delaware or
the court in which such
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action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full
extent permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by the
Debenture Issuer only as authorized in the specific case upon a
determination that indemnification of the Company Indemnified Person is
proper in the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination shall be
made (1) by the Regular Trustees by a majority vote of a quorum
consisting of such Regular Trustees who were not parties to such action,
suit or proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the Common
Security Holder of the Trust.
(v) Expenses (including attorneys' fees and expenses) incurred by
a Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a) shall be paid by the
Debenture Issuer in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Debenture
Issuer as authorized in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made (i) by the Regular Trustees
by a majority vote of a quorum of disinterested Regular Trustees, (ii) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel
in a written opinion or (iii) by the Debenture Issuer that, based upon
the facts known to the Regular
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Trustees, counsel or the Debenture Issuer at the time such determination
is made, such Company Indemnified Person acted in bad faith or in a
manner that such person did not believe to be in or not opposed to the
best interests of the Trust, or, with respect to any criminal proceeding,
that such Company Indemnified Person believed or had reasonable cause to
believe his conduct was unlawful. In no event shall any advance be made
in instances where the Regular Trustees, independent legal counsel or
Debenture Issuer reasonably determine that such person deliberately
breached his duty to the Trust or its Common or Preferred Security
Holders.
(vi) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 10.4(a)
shall not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the
Debenture Issuer or Preferred Security Holders of the Trust or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office. All rights to indemnification under
this Section 10.4(a) shall be deemed to be provided by a contract between
the Debenture Issuer and each Company Indemnified Person who serves in
such capacity at any time while this Section 10.4(a) is in effect. Any
repeal or modification of this Section 10.4(a) shall not affect any
rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not
the Debenture Issuer would have the power to indemnify him against such
liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity,
any constituent entity (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any person who is or was a
director, trustee, officer or employee of such constituent entity, or is
or was serving at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall stand in the
same position under the provisions of this Section 10.4(a) with respect
to the resulting or surviving entity as he would have with respect to
such constituent entity if its separate existence had continued.
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(ix) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 10.4(a) shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a Company Indemnified Person and shall inure to the benefit
of the heirs, executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify the (i)
Institutional Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the
Institutional Trustee and the Delaware Trustee, and (iv) any officers,
directors, shareholders, members, partners, employees, representatives,
custodians, nominees or agents of the Institutional Trustee and the Delaware
Trustee (each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, claim or expense
including taxes (other than taxes based on the income of such Fiduciary
Indemnified Person) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration or the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth in this
Section 10.4(b) shall survive the satisfaction and discharge of this
Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, or the Institutional Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if such opportunity
is of a character that, if presented to the Trust, could be taken by the Trust,
and any Covered Person, the Sponsor, the Delaware Trustee and the Institutional
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Covered Person, the Delaware Trustee and the
Institutional Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent
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for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes.
(b) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(c) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any state or local
taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Institutional Trustee shall be
made directly to the Institutional Trustee Account and no other funds of the
Trust shall be deposited in the Institutional Trustee Account. The sole
signatories for such accounts shall be designated by the Regular Trustees;
provided, however, that the Institutional
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Trustee shall designate the signatories for the Institutional Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two Regular
Trustees, a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the Institutional
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee;
(b) no amendment shall be made, and any such purported amendment
shall be void and ineffective:
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(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration (including the terms
of the Securities);
(ii) unless, in the case of any proposed amendment which affects
the rights, powers, duties, obligations or immunities of the
Institutional Trustee, the Institutional Trustee shall have first
received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms
of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a
grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture
Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act;
(c) at such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities and;
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(f) the rights of the Holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove Trustees
shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Common Securities; and
(g) Sections 12.1(a)(ii) and 12.1(b) shall not be amended without
the consent of the Institutional Trustee and Section 12.1(a)(iii) shall not be
amended without the consent of the Delaware Trustee; and
(h) notwithstanding Section 12.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor, provided such amendment does not have a material adverse effect
on the rights, preferences or privileges of the Holders;
(iv) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body,
court, government agency or regulatory authority which amendment does not
have a material adverse effect on the rights, preferences or privileges
of the Holders; and
(v) to modify, eliminate or add to any provision of the
Declaration to such extent as may be necessary to eliminate or reduce the
adverse effects resulting from the occurrence of a Tax Event or
Regulatory Capital Event, provided such amendment does not have a
material adverse effect on the rights, preferences or privileges of the
Holders.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such
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class if directed to do so by the Holders of at least 10% in liquidation amount
of such class of Securities. Such direction shall be given by delivering to the
Regular Trustees one or more calls in a writing stating that the signing Holders
of Securities wish to call a meeting and indicating the general or specific
purpose for which the meeting is to be called. Any Holders of Securities calling
a meeting shall specify in writing the Security Certificates held by the Holders
of Securities exercising the right to call a meeting and only those Securities
specified shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders
of Securities having a right to vote thereat at least seven days and not
more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or required
under this Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading, such vote,
consent or approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders of Securities owning
not less than the minimum amount of Securities in liquidation amount that
would be necessary to authorize or take such action at a meeting at which
all Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be
given to the Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that any written
ballot submitted to the Security Holder for the purpose of taking any
action without a meeting shall be returned to the Trust within the time
specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as otherwise provided herein,
all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware
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relating to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms
of the Securities, the Trust Indenture Act or the listing rules of any
stock exchange on which the Preferred Securities are then listed or
trading, otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place or purpose of
any meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements, voting
in person or by proxy or any other matter with respect to the exercise of
any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Institutional Trustee represents and warrants to the Trust
and the Sponsor at the time of the Successor Institutional Trustee's acceptance
of its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a Delaware banking corporation
with trust powers and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the Institutional
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The
Declaration has been duly executed and delivered by the Institutional
Trustee, and it constitutes a legal, valid and binding obligation of the
Institutional Trustee, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar
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laws affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or
at law);
(c) the execution, delivery and performance of this Declaration
by the Institutional Trustee does not conflict with or constitute a
breach of the charter or by-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration
with or notice to, any Delaware State or federal banking authority is
required for the execution, delivery or performance by the Institutional
Trustee, of this Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is duly organized, validly existing and
in good standing under the laws of the State of Delaware, with trust
power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, this Declaration.
(b) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors'
rights generally and to general principles of equity and the discretion
of the court (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration
with or notice to, any federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this
Declaration.
(d) The Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural
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person, an entity which has its principal place of business in the State
of Delaware.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Holders of the Securities):
Citicorp Capital [ ]
c/o Citicorp
399 Park Avenue
New York, New York 10043
Attention: Treasurer
Telecopy: (212) 527-2765
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of
to the Holders of the Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Department
Telecopy: (302) 651-1576
(c) if given to the Institutional Trustee, at the Institutional
Trustee's mailing address set forth below (or such other address as the
Institutional Trustee may give notice of to the Holders of the
Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Trustee
Administration
Telecopy: (302) 651-1576
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(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as
the Holder of the Common Securities may give notice to the Trust):
Citicorp
399 Park Avenue
New York, New York 10043
Attention: Treasurer
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to the
principles of conflict of laws of the State of Delaware or any other
jurisdiction that would call for the application of the law of any jurisdiction
other than the State of Delaware; provided, however, that there shall not be
applicable to the Trust, the Trustees or this Declaration any provision of the
laws (statutory or common) of the State of Delaware pertaining to trusts that
relate to or regulate, in a manner inconsistent with the terms hereof (a) the
filing with any court or governmental body or agency of trustee accounts or
schedules of trustee fees and charges, (b) affirmative requirements to post
bonds for trustees, officers, agents or employees of a trust, (c) the necessity
for obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (d) fees or other sums
payable to trustees, officers, agents or employees of a trust, (e) the
allocation of receipts and expenditures to income or principal, (f) restrictions
or limitations on the permissible nature, amount or concentration of trust
investments or requirements relating to the titling, storage or other manner of
holding or investing trust assets or (g) the establishment of fiduciary or other
standards of responsibility or limitations on the acts or powers of trustees
that are inconsistent with the limitations or liabilities or authorities and
powers of the Trustees as set forth or referenced in this Declaration. Section
3540 of Title 12 of the Delaware Code shall not apply to the Trust.
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SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention of
the parties.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to
be executed as of the day and year first above written.
__________________________________
Peter Gallant, as Regular Trustee
__________________________________
Ann Goodbody, as Regular Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:_______________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Institutional Trustee
By:_______________________________
Name:
Title:
CITICORP,
as Sponsor
By:_______________________________
Name:
Title:
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ANNEX I
TERMS OF
______% CAPITAL SECURITIES
______% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration
of Trust of Citicorp Capital __, dated as of __________, 1997 (as amended from
time to time, the "Declaration"), the designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital
Securities ("Preferred Securities" or "Capital Securities") and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
(a) Preferred Securities. _________ Preferred Securities of the
Trust with an aggregate liquidation amount with respect to the assets of the
Trust of __________ dollars ($_________) and a liquidation amount with respect
to the assets of the Trust of $25 per preferred security, are hereby designated
for the purposes of identification only as "____% Capital Securities" (the
"Preferred Securities"). The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange on which the Preferred Securities are listed.
(b) Common Securities. ____ Common Securities of the Trust with
an aggregate liquidation amount with respect to the assets of the Trust of
________ dollars ($________) and a liquidation amount with respect to the assets
of the Trust of $25 per common security, are hereby designated for the purposes
of identification only as "_____% Common Securities" (the "Common Securities").
The Common Security Certificates evidencing the Common Securities shall be
substantially in the form of Exhibit A-2 to the Declaration, with such changes
and additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a
rate per annum of ____% (the "Coupon Rate") of the stated liquidation amount of
$25 per Security, such rate being
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the rate of interest payable on the Debentures to be held by the Institutional
Trustee. Distributions in arrears for more than one quarterly Distribution
period will bear additional distributions thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
additional distributions payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions payable for any period
will be computed for any full quarterly Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per 90-day quarterly Distribution period.
In addition, a Distribution (the "Additional Distribution") shall
be made on the Securities on May 15, 1997, in an amount equal to the per annum
rate of __% on the stated liquidation amount of $25 per Security for the period
from and including February 15, 1997 to but excluding the Expiration Date. Such
Additional Distribution shall not be subject to any deferral provided in the
following paragraph.
(b) Distributions on the Securities will be cumulative, and
Distributions other than the Additional Distribution will accrue from _________,
1997, and will be payable quarterly in arrears, on February 15, May 15, August
15 and November 15 of each year, commencing on May 15, 1997, except as otherwise
described below. The Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period from time to time
on the Debentures for a period not exceeding 20 consecutive quarterly
Distribution periods, including the first such quarterly Distribution period
during such period (each an "Extension Period"), during which Extension Period
no interest shall be due and payable on the Debentures, provided that no
Extension Period shall extend beyond the maturity date of the Debentures. As a
consequence of such deferral, Distributions (other than the Additional
Distribution) will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with additional distributions thereon (to
the extent permitted by applicable law) at the Coupon Rate compounded quarterly
during any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period, together
with all such previous and further extensions within such Extension Period, may
not exceed 20 consecutive quarterly Distribution periods, including the first
quarterly Distribution period during such Extension Period, or
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extend beyond the maturity date of the Debentures. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates. While the Preferred Securities remain in book-entry only
form, the relevant record dates shall be one Business Day prior to the relevant
payment dates which payment dates correspond to the interest payment dates on
the Debentures. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Preferred
Securities will be made as described under the heading "Description of the
Capital Securities -- Book-Entry Only Issuance -- The Depository Trust Company"
in the Prospectus dated _________, 1997 (the "Prospectus"), of the Trust
included in the Registration Statement on Form S-4 of the Sponsor, the Trust and
certain other business trusts. The relevant record dates for the Common
Securities shall be the same record date as for the Preferred Securities. If the
Preferred Securities shall not continue to remain in book-entry only form, the
relevant record dates for the Preferred Securities shall conform to the rules of
any securities exchange on which the securities are listed and, if none, shall
be selected by the Regular Trustees, which dates shall be at least one Business
Day but not more than ten Business Days before the relevant payment dates, which
payment dates correspond to the interest payment dates on the Debentures.
Distributions payable on any Securities that are not punctually paid on any
Distribution payment date, as a result of the Debenture Issuer having failed to
make a payment under the Debentures, will cease to be payable to the Person in
whose name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on which Distributions
are payable on the Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay).
(d) If at any time while the Institutional Trustee is the Holder
of any Debentures, the Debenture Issuer is required to pay any Additional
Interest to the Trust or the Institutional Trustee under the Debentures, the
Payment Amount with respect to Distributions on the Securities pursuant to
Section 6.1 of the Declaration shall include any such Additional Interest.
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(e) In the event that there is any money or other property held
by or for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution,
winding-up or liquidation of the Trust, the Holders of the Securities on the
date of the dissolution, winding-up or termination, as the case may be, will be
entitled to receive out of the assets of the Trust available for distribution to
Holders of Securities, after paying or making reasonable provision to pay all
claims and obligations of the Trust in accordance with Section 3808(e) of the
Business Trust Act, an amount equal to the aggregate of the stated liquidation
amount of $25 per Security plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, Debentures in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of such Securities, with an interest rate equal to the Coupon Rate of,
and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, such Securities, shall be distributed on a Pro Rata
basis to the Holders of the Securities in exchange for such Securities, after
paying or making reasonable provision to pay all claims and obligations of the
Trust in accordance with Section 3808(e) of the Business Trust Act.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in part,
whether at maturity or upon redemption (either at the option of the Debenture
Issuer at any time on or after May 15, 2002 or pursuant to a Tax Event or
Regulatory Capital Event at any time prior to May 15, 2002), the proceeds from
such repayment or redemption shall be simultaneously applied to redeem, at the
Securities Redemption Price, Securities having an aggregate liquidation amount
equal to the aggregate principal amount of the Debentures so repaid or redeemed;
provided that holders will be given not less than 30 nor more than 60 days
notice of such redemption of Securities.
(b) The "Securities Redemption Price" for each $25 in stated
liquidation amount of Securities shall be:
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(i) in the case of redemption of the Securities upon the maturity
of the Debentures, the liquidation amount of $25 per Security, plus
accrued and unpaid Distributions thereon to but excluding the date of
redemption; and
(ii) in the case of redemption of the Securities upon any
redemption of the Debentures by the Debenture Issuer (either at the
option of the Debenture Issuer at any time on or after May 15, 2002 or
pursuant to a Tax Event or Regulatory Capital Event at any time prior to
May 15, 2002), equal to the applicable Redemption Price (as defined in
the Indenture) payable with respect to each $25 principal amount of
Debentures so redeemed in accordance with the terms of the Debentures.
If, at any time, a Regulatory Capital Event shall occur and be
continuing, the Sponsor may (i) cause the Trust to be dissolved, with the result
that after satisfaction of liabilities to creditors, if any, Debentures with an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the distribution rate of, and accrued and
unpaid interest equal to accrued and unpaid distributions on, the Securities,
would be distributed to the Holders of the Securities in liquidation of such
holders' interests in the Trust on a pro rata basis within 90 days following the
occurrence of such Regulatory Capital Event or (ii) within 90 days following the
occurrence of such Regulatory Capital Event, redeem the Debentures, in whole or
in part, upon not less than 30 nor more than 60 days' notice, for cash, with the
result that, following such redemption, Securities will be redeemed by the Trust
at the Securities Redemption Price; provided, however, that if at the time there
is available to the Sponsor or the Trust the opportunity to eliminate within
such 90- day period, the Regulatory Capital Event by taking some ministerial
action, such as filing a form or making an election or pursuing some other
similar reasonable measure that has no adverse effect on the Trust, the Sponsor
or the holders of the Securities, then the Sponsor or the Trust will pursue such
measure in lieu of distribution or redemption of the Debentures.
(c) "Regulatory Capital Event" means a determination by the
Sponsor, based on an opinion of counsel experienced in such matters (who may be
an employee of the Sponsor or any of its affiliates), that, as a result of any
amendment to, clarification of or change (including any announced prospective
change) in applicable laws or regulations or official interpretations thereof or
policies with respect thereto, which amendment, clarification or change is
effective after the date of the Prospectus, there is more than an insubstantial
risk that the Preferred Securities will no longer constitute Tier 1 capital of
the Sponsor (or its equivalent) for purposes of the capital adequacy guidelines
of the Board of Governors of the Federal
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Reserve System or its successor as the Sponsor's primary federal banking
regulator.
"Tax Event" means the Regular Trustees shall have received an
opinion (a "Dissolution Tax Opinion") of a nationally recognized independent tax
counsel experienced in such matters ("Tax Counsel") to the effect that, as a
result of (a) any amendment to, clarification of or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein or (b) any amendment to or change in an interpretation or application of
such laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination on or after
such date), there is more than an insubstantial risk that (i) the Trust would be
subject to United States federal income tax with respect to income accrued or
received on the Debentures, (ii) interest payable to the Trust on the Debentures
would not be deductible by the Sponsor for United States federal income tax
purposes or (iii) the Trust would be subject to more than a de minimis amount of
other taxes, duties or other governmental charges, provided that any such
change, clarification or amendment becomes effective on or after the date of the
Prospectus.
If, at any time, a Tax Event shall occur and be continuing, the
Sponsor may cause the Trust to be dissolved, with the result that after
satisfaction of liabilities to creditors, if any, Debentures with an aggregate
principal amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the distribution rate of, and accrued and unpaid
interest equal to accrued and unpaid distributions on, the Securities, would be
distributed to the holders of the Securities in liquidation of such holders'
interests in the Trust on a Pro Rata basis within 90 days following the
occurrence of such Tax Event; provided that such dissolution and distribution
shall be conditioned on (i) the Regular Trustees' receipt of an opinion of Tax
Counsel (a "No Recognition Opinion"), which opinion may rely on published
revenue rulings of the Internal Revenue Service, to the effect that the holders
of the Securities will not recognize any gain or loss for United States federal
income tax purposes as a result of such dissolution and distribution of
Debentures and (ii) the Sponsor being unable to avoid such Tax Event within such
90-day period by taking some ministerial action or pursuing some other
reasonable measure that will have no adverse effect on the Trust, the Sponsor or
the Holders of the Securities. Furthermore, if after receipt of a Dissolution
Tax Opinion by the Regular Trustees (i) the Sponsor has received an opinion (a
"Redemption Tax Opinion") of Tax Counsel that, as a result of a Tax Event, there
is more than an insubstantial risk that the Sponsor would be precluded from
deducting the interest on the
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Debentures for United States federal income tax purposes, even after the
Debentures were distributed to the holders of Securities in liquidation of such
Holders' interests in the Trust as described above, or (ii) the Regular Trustees
shall have been informed by such Tax Counsel that it cannot deliver a No
Recognition Opinion to the Trust, the Sponsor shall have the right, within 90
days following the occurrence of such Tax Event, to redeem the Debentures, in
whole or in part, upon not less than 30 nor more than 60 days' notice, for cash,
with the result that, following such redemption, the Securities will be redeemed
by the Trust at the Securities Redemption Price; provided, however, that if at
the time there is available to the Sponsor or the Trust the opportunity to
eliminate, within such 90-day period, the Tax Event by taking some ministerial
action, such as filing a form or making an election or pursuing some other
similar reasonable measure that has no adverse effect on the Trust, the Sponsor
or the Holders of the Securities, then the Sponsor or the Trust will pursue such
measure in lieu of redemption of the Debentures.
(d) In the case of a redemption, if fewer than all the
outstanding Securities are to be so redeemed, the Common Securities and the
Preferred Securities will be redeemed Pro Rata and the Preferred Securities to
be redeemed will be as described in Section 4(g)(ii) below.
(e) On and from the date fixed by the Regular Trustees for any
distribution of Debentures and dissolution of the Trust: (i) the Securities will
no longer be deemed to be outstanding, (ii) The Depository Trust Company (the
"Depository") or its nominee (or any successor Clearing Agency or its nominee),
as the record Holder of the Preferred Securities, will receive a registered
global certificate or certificates representing the Debentures to be delivered
upon such distribution and any certificates representing Securities, except for
certificates representing Preferred Securities held by the Depository or its
nominee (or any successor Clearing Agency or its nominee), will be deemed to
represent beneficial interests in the Debentures having an aggregate principal
amount equal to the aggregate stated liquidation amount of, with an interest
rate identical to the Coupon Rate of, and accrued and unpaid interest equal to
accrued and unpaid Distributions on such Securities until such certificates are
presented to the Debenture Issuer or its agent for transfer or reissue.
(f) The Trust may not redeem fewer than all the outstanding
Securities unless all accrued and unpaid Distributions have been paid on all
Securities for all quarterly Distribution periods terminating on or before the
date of redemption.
(g) The procedure with respect to redemptions and distributions
of Debentures shall be as follows:
I-7
<PAGE>
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities
to be redeemed or exchanged not fewer than 30 nor more than 60 days
before the date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of the
Debentures. For purposes of the calculation of the date of redemption or
exchange and the dates on which notices are given pursuant to this
Section 4(g)(i), a Redemption/ Distribution Notice shall be deemed to be
given on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders of Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of Securities at the address of each
such Holder appearing in the books and records of the Trust. No defect in
the Redemption/Distribution Notice or in the mailing of either thereof
with respect to any Holder shall affect the validity of the redemption or
exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed shall be redeemed Pro
Rata from each Holder of Preferred Securities, it being understood that,
in respect of Preferred Securities registered in the name of and held of
record by the Depository or its nominee (or any successor Clearing Agency
or its nominee), the distribution of the proceeds of such redemption will
be made to each Clearing Agency Participant (or Person on whose behalf
such nominee holds such securities) in accordance with the procedures
applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are to be redeemed as set out in this Section 4 (which notice
will be irrevocable), then (A) while the Preferred Securities are in
book-entry only form, with respect to the Preferred Securities, by 12:00
noon, New York City time, on the redemption date, provided that the
Debenture Issuer has paid the Institutional Trustee a sufficient amount
of cash in connection with the related redemption or maturity of the
Debentures, the Institutional Trustee will deposit irrevocably with the
Depository or its nominee (or successor Clearing Agency or its nominee)
funds sufficient to pay the applicable Securities Redemption Price with
respect to the Preferred Securities and will give the Depository
irrevocable instructions and authority to pay the Securities Redemption
Price to the Holders of the Preferred Securities, and (B) with respect to
Preferred Securities issued in definitive form and Common Securities,
provided that the
I-8
<PAGE>
Debenture Issuer has paid the Institutional Trustee a sufficient amount
of cash in connection with the related redemption or maturity of the
Debentures, the Institutional Trustee will pay the relevant Securities
Redemption Price to the Holders of such Securities by check mailed to the
address of the relevant Holder appearing on the books and records of the
Trust on the redemption date. If a Redemption/Distribution Notice shall
have been given and funds deposited as required, if applicable, then
immediately prior to the close of business on the date of such deposit,
or on the redemption date, as applicable, distributions will cease to
accrue on the Securities so called for redemption and all rights of
Holders of such Securities so called for redemption will cease, except
the right of the Holders of such Securities to receive the Securities
Redemption Price, but without interest on such Securities Redemption
Price. Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that
have been so called for redemption. If any date fixed for redemption of
Securities is not a Business Day, then payment of the Securities
Redemption Price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if
made on such date fixed for redemption. If payment of the Securities
Redemption Price in respect of any Securities is improperly withheld or
refused and not paid either by the Institutional Trustee or by the
Sponsor as guarantor pursuant to the relevant Securities Guarantee,
Distributions on such Securities will continue to accrue from the
original redemption date to the actual date of payment, in which case the
Securities Redemption Price shall include such additional accrued
Distributions.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the Preferred
Securities, the Depository or its nominee (or any successor Clearing
Agency or its nominee) if the Global Certificates have been issued or, if
Definitive Preferred Security Certificates have been issued, to the
Holder thereof, and (B) in respect of the Common Securities to the Holder
thereof.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws and banking
laws), provided the acquiror is not the Holder of the Common Securities
or the obligor under the Indenture, the Sponsor or any of its
subsidiaries may at any time and from time to time purchase outstanding
I-9
<PAGE>
Preferred Securities by tender, in the open market or by private
agreement.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred Securities
will have no voting rights.
(b) Subject to the requirements set forth in this paragraph, the
Holders of a majority in aggregate liquidation amount of the Preferred
Securities, voting separately as a class may direct the time, method, and place
of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercise any trust or power conferred upon the Institutional Trustee
under the Declaration, including the right to direct the Institutional Trustee,
as holder of the Debentures, to (i) exercise the remedies available under the
Indenture, conduct any proceeding for any remedy available to the Debenture
Trustee, or exercise any trust or power conferred on the Debenture Trustee with
respect to the Debentures, (ii) waive any past default and its consequences that
is waivable under Section 2.6 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall be
due and payable, provided, however, that, where a consent under the Indenture
would require the consent or act of the Holders of greater than a majority of
the Holders in principal amount of Debentures affected thereby, (a "Super
Majority"), the Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the proportion in
liquidation amount of the Preferred Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding. The
Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than with
respect to directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action in accordance with
the directions of the Holders of the Preferred Securities under this paragraph
unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action. If
the Institutional Trustee fails to enforce its rights under the Declaration, any
Holder of Preferred Securities may institute a legal proceeding directly against
any person to enforce the Institutional Trustee's rights under the Declaration
without first instituting a legal proceeding against the Institutional Trustee
or any other person. If a Declaration Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay
I-10
<PAGE>
interest or principal on the Debentures on the date such interest or principal
is otherwise payable (or in the case of redemption, on the redemption date),
then a holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such Holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder (a "Direct Action") on or after the
respective due date specified in the Debentures. In connection with such Direct
Action, the rights of the holders of the Common Securities Holder will be
subrogated to the rights of such holder of Preferred Securities to the extent of
any payment made by the Issuer to such holder of Preferred Securities in such
Direct Action. Except as provided in the preceding sentences, the Holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
Any approval or direction of Holders of Preferred Securities may
be given at a separate meeting of Holders of Preferred Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
No vote or consent of the Holders of the Preferred Securities
will be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding, unless all of the
Preferred Securities are owned by the sponsor or any such Affiliate.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b), (c), 7(a) and 8 as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
I-11
<PAGE>
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after the
Event of Default with respect to the Preferred Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section 2.6 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, provided that, where a consent or
action under the Indenture would require the consent or act of the Holders of
greater than a majority in principal amount of Debentures affected thereby (a
"Super Majority"), the Institutional Trustee may only give such consent or take
such action at the written direction of the Holders of at least the proportion
in liquidation amount of the Common Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding.
Pursuant to this Section 6(c), the Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Preferred Securities. Other than with respect to directing the time, method and
place of conducting any remedy available to the Institutional Trustee or the
Debenture Trustee as set forth above, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Institutional Trustee has obtained an
opinion of tax counsel to the effect that for the purposes of United States
federal income tax the Trust will not be classified as other than a grantor
trust on account of such action. If the Institutional Trustee fails to enforce
its rights under the Declaration, any Holder of Common Securities may institute
a legal proceeding directly against any Person to enforce the Institutional
Trustee's rights under the Declaration, without first instituting a legal
proceeding against the Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written
I-12
<PAGE>
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be mailed to each
Holder of record of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Common Securities will
be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
7. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of any or all of the
Securities, whether by way of amendment to the Declaration or otherwise, or (ii)
the dissolution, winding-up or termination of the Trust, other than as described
in Section 8.1 of the Declaration, then the Holders of outstanding Securities
voting together as a single class will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in liquidation amount of the Securities affected thereby;
provided, that, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination on the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where the taking of any such action under the
Indenture would require the consent of the holders of greater than a majority in
aggregate principal amount
I-13
<PAGE>
of the Debentures (a "Super Majority"), the Institutional Trustee may only give
such consent at the direction of the Holders of at least the proportion in
liquidation amount of the Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding;
provided, further, that where the taking of any such action under the Indenture
would require the consent of every holder of the Debentures, the consent of all
holders of Securities shall be required; provided, further, that the
Institutional Trustee shall not take any action in accordance with the
directions of the Holders of the Securities under this Section 7(b) unless the
Institutional Trustee has obtained an opinion of nationally recognized
independent tax counsel in such matters to the effect that for the purposes of
United States federal income tax the Trust will not be classified as other than
a grantor trust on account of such action.
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding.
9. Ranking.
The Preferred Securities rank pari passu with the Common
Securities and payment thereon shall be made Pro Rata with the Common
Securities, except that, if an Event of Default under the Declaration occurs and
is continuing, no payments in respect of Distributions on, or payments upon
liquidation, redemption or otherwise with respect to, the Common Securities
shall be made until the Holders of the Preferred Securities shall be paid in
full the Distributions, redemption, liquidation and other payments to which they
are entitled.
10. Acceptance of Securities Guarantee and Indenture.
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<PAGE>
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
11. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
12. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate)
and the Indenture (including any supplemental indenture) to a Holder without
charge on written request to the Sponsor at its principal place of business.
The Securities shall be governed by and interpreted in accordance
with the laws of the State of Delaware, and all rights and remedies shall be
governed by such laws without regard to principles of conflict of laws.
I-15
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
This Preferred Security is a Global Certificate within the
meaning of the Declaration hereinafter referred to and is registered in the name
of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Preferred Security is exchangeable for Preferred Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Declaration and no transfer of
this Preferred Security (other than a transfer of this Preferred Security as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
CUSIP NO. 17303 _______
Certificate Evidencing Preferred Securities
of
CITICORP CAPITAL [ ]
___% Capital Securities
(liquidation amount $25 per Capital Security)
CITICORP CAPITAL [ ], a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of preferred securities of
the Trust representing undivided beneficial interests in the assets of the Trust
designated the _____% Capital Securities (liquidation amount $25 per Capital
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person
A1-1
<PAGE>
or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of _________, 1997, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
____ day of __________, 1997.
CITICORP CAPITAL [ ]
By:________________________________
Name:
Title: Regular Trustee
A1-2
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
Dated __________, ____
The Wilmington Trust Company,
as Institutional Trustee
By:_______________________________
Authorized Signatory
or
Citibank, N.A.
as Authenticating Agent
By:_______________________________
Authorized Signatory
A1-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at
a rate per annum of ___% (the "Coupon Rate") of the stated liquidation amount of
$25 per Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarterly Distribution period will bear interest thereon
compounded quarterly at the Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such cash distributions
and any such interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarterly
Distribution period.
In addition, each Preferred Security will be entitled to its pro
rata share of an Additional Distribution payable on May 15, 1997, as provided in
the Declaration and Section 2(a) of Annex I thereto.
Except as otherwise described below, Distributions on the
Preferred Securities will be cumulative, and Distributions (other than the
Additional Distribution) will accrue from the date of original issuance and will
be payable quarterly in arrears, on February 15, May 15, August 15 and November
15 of each year, commencing on May 15, 1997. Distributions will be payable to
the holders of record on the relevant record dates (as specified in the
Declaration) next preceding such payment dates. The Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarterly interest periods, including the first such
quarterly Distribution period during such extension period (each an "Extension
Period"), provided that no Extension Period shall extend beyond the date of the
maturity of the Debentures. As a consequence of such deferral, Distributions
(other than the Additional Distribution) will also be deferred. Despite such
deferral, quarterly Distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at the Coupon Rate compounded
quarterly during any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further defer payments of interest by
further extending such Extension Period; provided that such Extension Period,
together with all such previous and further extensions within such Extension
Period, may not exceed 20 consecutive quarterly interest periods, including the
first quarterly interest period during such Extension Period, or extend
A1-4
<PAGE>
beyond the maturity date of the Debentures. Payments of accrued Distributions
will be payable to Holders as they appear on the books and records of the Trust
on the first record date after the end of the Extension Period. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above
requirements.
Upon the occurrence and continuation of a Tax Event, (x) the
Sponsor shall have the right, in certain circumstances described in Annex I to
the Declaration, to liquidate the Trust within 90 days following the occurrence
of such Tax Event and cause the Debentures to be distributed to the holders of
the Securities in liquidation of the Trust and (y) prior to May 15, 2002, the
Debenture Issuer shall have the right, in certain circumstances described in
Annex I to the Declaration, to redeem the Debentures in whole or in part within
90 days following the occurrence of such Tax Event and, following such
redemption, cause Securities with an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so redeemed to be redeemed by the
Trust.
Upon the occurrence and continuation of a Regulatory Capital
Event, (x) the Sponsor shall have the right to liquidate the Trust within 90
days following the occurrence of such Regulatory Capital Event and cause the
Debentures to be distributed to the holders of the Securities in liquidation of
the Trust and (y) prior to May 15, 2002, the Debenture Issuer shall have the
right to redeem the Debentures in whole or in part within 90 days following the
occurrence of such Regulatory Capital Event and, following such redemption,
cause Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed to be redeemed by the Trust.
The Preferred Securities shall be redeemable as provided in the
Declaration.
A1-5
<PAGE>
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
___________________________________________________________ agent to transfer
this Preferred Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee*: ___________________________________
________
* Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities and Exchange Act of 1934, as
amended.
A1-6
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
CITICORP CAPITAL [ ]
___% Common Securities
(liquidation amount $25 per Common Security)
CITICORP CAPITAL [ ], a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that Citicorp (the
"Holder") is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the ___%
Common Securities (liquidation amount $25 per Common Security) (the "Common
Securities"). The Common Securities are transferable on the books and records of
the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of _________, 1997, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Common Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Common Securities Guarantee and the Indenture (including any supplemental
indenture) to a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
A2-1
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
___ day of , 1997.
CITICORP CAPITAL [ ]
By:________________________________
Name:
Title: Regular Trustee
A2-2
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Declaration.
Dated __________, ____
The Wilmington Trust Company,
as Institutional Trustee
By:_____________________________
Authorized Signatory
or
Citibank, N.A.,
as Authenticating Agent
By:_____________________________
Authorized Signatory
A2-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a
rate per annum of ___% (the "Coupon Rate") of the stated liquidation amount of
$25 per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarterly Distribution period will bear interest thereon
compounded quarterly at the Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such cash distributions
and any such interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarterly
Distribution period.
In addition, each Common Security will be entitled to its pro
rata share of an Additional Distribution payable on May 15, 1997, as provided in
the Declaration and Section 2(a) of Annex I thereto.
Except as otherwise described below, Distributions (other than
the Additional Distribution) on the Common Securities will be cumulative, will
accrue from the date of original issuance and will be payable semiannually in
arrears, on February 15, May 15, August 15 and November 15 of each year,
commencing on May 15, 1997, to Holders of record fifteen (15) days prior to such
payment dates, which payment dates shall correspond to the interest payment
dates on the Debentures. The Debenture Issuer has the right under the Indenture
to defer payments of interest by extending the interest payment period from time
to time on the Debentures for a period not exceeding 20 consecutive calendar
quarterly interest periods, including the first such quarter during such
extension period (each an "Extension Period"), provided that no Extension Period
shall extend beyond the date of the maturity of the Debentures. As a consequence
of such deferral, Distributions (other than the Additional Distribution) will
also be deferred. Despite such deferral, quarterly Distributions will continue
to accrue with interest thereon (to the extent permitted by applicable law) at
the Coupon Rate compounded quarterly during any such Extension Period. Prior to
the termination of any such Extension Period, the Debenture Issuer may further
defer payments of interest by further extending such Extension Period; provided
that such Extension Period, together with all such previous and further
extensions within such Extension Period, may not exceed 20 consecutive calendar
quarterly interest periods, including the first quarterly interest period during
such Extension Period, or extend beyond the maturity date of the Debentures.
Payments of accrued Distributions will be
A2-4
<PAGE>
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
Upon the occurrence and continuation of a Tax Event, (x) the
Sponsor shall have the right, in certain circumstances described in Annex I to
the Declaration, to liquidate the Trust within 90 days following the occurrence
of such Tax Event and cause the Debentures to be distributed to the holders of
the Securities in liquidation of the Trust and (y) prior to May 15, 2002, the
Debenture Issuer shall have the right, in certain circumstances described in
Annex I to the Declaration, to redeem the Debentures in whole or in part within
90 days following the occurrence of such Tax Event and, following such
redemption, cause Securities with an aggregate liquidation amount equal to the
aggregate amount of the Debentures so redeemed to be redeemed by the Trust.
Upon the occurrence and continuation of a Regulatory Capital
Event, (x) the Sponsor shall have the right to liquidate the Trust within 90
days following the occurrence of such Regulatory Capital Event and cause the
Debentures to be distributed to the holders of the Securities in liquidation of
the Trust and (y) prior to May 15, 2002, the Debenture Issuer shall have the
right to redeem the Debentures in whole or in part within 90 days following the
occurrence of such Regulatory Capital Event and, following such redemption,
cause Securities with an aggregate liquidation amount equal to the aggregate
amount of the Debentures so redeemed to be redeemed by the Trust.
The Common Securities shall be redeemable as provided in the
Declaration.
A2-5
<PAGE>
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
___________________________________________________________ agent to transfer
this Preferred Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee*: ___________________________________
________
* Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities and Exchange Act of 1934, as
amended.
A2-6
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE>
EXHIBIT C
DEALER MANAGER AGREEMENT
C-1
====================================
[ ] SUPPLEMENTAL INDENTURE
between
CITICORP
and
WILMINGTON TRUST COMPANY, as Trustee
Dated as of [ ], 1997
=====================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms............................... 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.................. 3
SECTION 2.2. Maturity.......................................... 4
SECTION 2.3. Form and Payment.................................. 4
SECTION 2.4. Global Debenture.................................. 4
SECTION 2.5. Interest.......................................... 6
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event and Regulatory Capital Event
Redemption........................................ 7
SECTION 3.2. Optional Redemption by Company.................... 9
SECTION 3.3. No Sinking Fund................................... 10
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.............. 10
SECTION 4.2. Notice of Extension............................... 11
SECTION 4.3. Limitation of Transactions........................ 11
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses............................... 12
SECTION 5.2. Payment Upon Resignation or Removal............... 13
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture................................. 13
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures...................... 22
i
<PAGE>
Page
----
ARTICLE VIII
COVENANT TO LIST ON EXCHANGE
SECTION 8.1. Listing on an Exchange............................ 23
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture......................... 23
SECTION 9.2. Trustee Not Responsible for Recitals.............. 23
SECTION 9.3. Governing Law..................................... 23
SECTION 9.4. Separability...................................... 23
SECTION 9.5. Counterparts...................................... 23
ii
<PAGE>
[ ] SUPPLEMENTAL INDENTURE, dated as of [ ], 1997 (the "[
]Supplemental Indenture"), between Citicorp, a Delaware corporation (the
"Company"), and Wilmington Trust Company, as trustee (the "Trustee") under the
Indenture dated as of December 17, 1996 between the Company and the Trustee (the
"Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Securities to be
known as its [ ]% Junior Subordinated Deferrable Interest Debentures due May 15,
2027 (the "Debentures"), the form and substance of such Debentures and the
terms, provisions and conditions thereof to be set forth as provided in the
Indenture and this [ ]Supplemental Indenture;
WHEREAS, Citicorp Capital [X] [XI] [XII] [XIII] [XIV], a Delaware
statutory business trust (the "Trust"), has issued to the public, in exchange
for certain Depositary Shares, $__________ aggregate liquidation amount of its [
%] Capital Securities (the "Preferred Securities"), representing undivided
beneficial interests in the assets of the Trust and proposes to invest the
Depository Shares tendered and accepted in such exchange, together with the
proceeds of the issuance and sale by the Trust to the Company of $_________
aggregate liquidation amount of its [ %] Common Securities (the "Common
Securities"), in $_____________ aggregate principal amount of the Debentures;
and
WHEREAS, the Company has requested that the Trustee execute and
deliver this [ ] Supplemental Indenture and all requirements necessary to make
this [ ] Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this [ ] Supplemental Indenture has
been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of
the Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and
<PAGE>
conditions thereof, the Company covenants and agrees with the Trustee as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when
used in this [ ] Supplemental Indenture;
(b) a term defined anywhere in this [ ] Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this [ ] Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Clearing Agency; (ii) Delaware Trustee; (iii) Dissolution Tax
Opinion; (iv) Institutional Trustee; (v) No Recognition Opinion; (vi) Preferred
Security Certificate; (vii) Pricing Agreement; (viii) Redemption Tax Opinion;
(ix) Regular Trustees; (x) Regulatory Capital Event; (xi) Tax Event; (xii) Tax
Counsel; (xiii) Dealer Manager Agreement; and (xiv) Depositary Shares; and
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section
2.5.
"Compounded Interest" shall have the meaning set forth in Section
4.1.
"Declaration" means the Amended and Restated Declaration of Trust
of Citicorp Capital [X] [XI] [XII] [XIII] [XIV], a Delaware statutory business
trust, dated as of _________________ 1997.
"Deferred Interest" shall have the meaning set forth in Section
4.1.
2
<PAGE>
"Dissolution Event" means the liquidation of the Trust by the
Regular Trustees pursuant to the Declaration as a result of the occurrence and
continuation of a Tax Event or a Regulatory Capital Event, and the distribution
of the Debentures held by the Institutional Trustee to the Holders of the Trust
Securities issued by the Trust pro rata in accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Federal Reserve" shall mean the Board of Governors of the
Federal Reserve System.
"Global Debenture" shall have the meaning set forth in Section
2.4.
"Interest Payment Date" shall have the meaning set forth in
Section 2.5(a).
"Non Book-Entry Preferred Securities" shall have the meaning set
forth in Section 2.4.
"Redemption Percentage" shall have the meaning set forth in
Section 3.2.
"Redemption Price" shall have the meaning set forth in Section
3.2.
"Scheduled Maturity Date" shall mean the date on which the
Debentures mature and on which the principal shall be due and payable, together
with all accrued and unpaid interest thereon (including any Compounded Interest
and Additional Interest), which date shall be May 15, 2027, unless shortened to
a date not earlier than May 15, 2002, or extended to a date not later than May
15, 2046, as provided in Section 2.2.
"Trust Securities" shall mean the Preferred Securities and the
Common Securities, collectively.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
There is hereby authorized a series of Securities designated the
"[ %] Junior Subordinated Deferrable Interest Debentures due May 15, 2027",
limited in aggregate principal amount to $_____________, which amount shall be
as set forth in any written order of the Company for the authentication and
delivery of Debentures pursuant to Section 2.04 of the Indenture.
3
<PAGE>
SECTION 2.2 Maturity.
(a) The Debentures shall mature on May 15, 2027. The Company has
the right at any time to shorten the maturity of the Debentures to a date not
earlier than May 15, 2002. The exercise of such right is subject to the
obtaining of any required regulatory approvals. The Company also has the right
to extend the maturity of the Debentures to a date not later than May 15, 2046,
so long as at the time such election is made and at the time such extension
commences (i) the Company is not in bankruptcy, otherwise insolvent or in
liquidation, (ii) the Company is not in default in the payment of any interest
or principal on the Debentures, (iii) the Trust is not in arrears on payments of
distributions on the Preferred Securities and no deferred distributions on the
Preferred Securities are accumulated and (iv) the Debentures are rated at least
BBB- by Standard & Poor's Ratings Services, at least Baa3 by Moody's Investors
Service, Inc. or at least the equivalent by any other nationally recognized
statistical rating organization.
(b) In the event that the Company elects to shorten or extend the
maturity date of the Debentures, it shall give notice to the Trustee, and the
Trustee shall give notice of such shortening or extension to the holders of the
Debentures no more than 90 and no less than 30 days prior to the effectiveness
thereof.
SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued
in fully registered, certificated form without interest coupons. Principal and
interest on the Debentures issued in certificated form will be payable, the
transfer of such Debentures will be registrable and such Debentures will be
exchangeable for Debentures bearing identical terms and provisions at the office
or agency of the Trustee; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the holder at such address
as shall appear in the security register. Notwithstanding the foregoing, so long
as the holder of any Debentures is the Institutional Trustee, the payment of the
principal of and interest (including Compounded Interest and Additional
Interest, if any) on such Debentures held by the Institutional Trustee will be
made at such place and to such account as may be designated by the Institutional
Trustee.
SECTION 2.4 Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Institutional Trustee in
4
<PAGE>
exchange for a global Debenture in an aggregate principal amount equal to
the aggregate principal amount of all outstanding Debentures (a "Global
Debenture"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Trustee to the Depositary for crediting to
the accounts of its participants pursuant to the instructions of the
Regular Trustees. The Company upon any such presentation shall execute a
Global Debenture in such aggregate principal amount and deliver the same
to the Trustee for authentication and delivery in accordance with the
Indenture and this [ ] Supplemental Indenture. Payments on the Debentures
issued as a Global Debenture will be made to the Depositary; and
(ii) if any Preferred Securities are held in non- book-entry
certificated form, the Debentures in certificated form may be presented
to the Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Preferred Securities other than Preferred
Securities held by the Clearing Agency or its nominee ("Non Book-Entry
Preferred Securities") will be deemed to represent beneficial interests
in Debentures presented to the Trustee by the Institutional Trustee
having an aggregate principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Preferred Securities until such Preferred
Security Certificates are presented to the Security Registrar for
transfer or reissuance at which time such Preferred Security Certificates
will be cancelled and a Debenture, registered in the name of the holder
of the Preferred Security Certificate or the transferee of the holder of
such Preferred Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate liquidation amount of
the Preferred Security Certificate cancelled, will be executed by the
Company and delivered to the Trustee for authentication and delivery in
accordance with the Indenture and this [ ] Supplemental Indenture. Upon
the issuance of such Debentures, Debentures with an equivalent aggregate
principal amount that were presented by the Institutional Trustee to the
Trustee will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
for such series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depositary for such series is not appointed by
5
<PAGE>
the Company within 90 days after the Company receives such notice or becomes
aware of such condition, as the case may be, the Company will execute, and,
subject to Article II of the Indenture, the Trustee, upon written notice from
the Company, will authenticate and make available for delivery the Debentures in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. In addition, the Company may at
any time determine that the Debentures shall no longer be represented by a
Global Debenture. In such event the Company will execute, and subject to Section
2.07 of the Indenture, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver the
Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Debentures in definitive registered
form without coupons, in authorized denominations, the Global Debenture shall be
cancelled by the Trustee. Such Debentures in definitive registered form issued
in exchange for the Global Debenture shall be registered in such names and in
such authorized denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Securities to the Depositary for delivery to the
Persons in whose names such Securities are so registered.
SECTION 2.5 Interest.
(a) Each Debenture will bear interest at the rate of [ %] per
annum (the "Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article Four) quarterly in arrears on
February 15, May 15, August 15 and November 15, of each year (each, an "Interest
Payment Date") commencing on May 15, 1997, to the Person in whose name such
Debenture or any predecessor Debenture is registered, at the close of business
on the regular record date for such interest installment, which, in respect of
any Debentures of which the Institutional Trustee is the holder of a Global
Debenture, shall be the close of business on the Business Day next preceding
that Interest Payment Date. Notwithstanding the foregoing sentence, if the
Debentures are no longer in book-entry only form and not represented by a Global
Debenture, except if the Debentures are held by the Institutional Trustee, the
Company may select a regular record date for such interest installment which
shall be any date not less than one
6
<PAGE>
nor more than fifteen Business Days before an Interest Payment Date.
The Debentures will also accrue interest at the rate of __% per
annum of the principal amount thereof for the period from February 15, 1997 to
but excluding the Expiration Date, payable on May 15, 1997 as provided in the
preceding paragraph. No deferral of interest will be permitted with respect to
interest accrued for the period from February 15, 1997 to but excluding the
Expiration Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full quarterly period for which interest is computed, will
be computed on the basis of the actual number of days elapsed. In the event that
any date on which interest is payable on the Debentures is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
(c) If, at any time while the Institutional Trustee is the holder
of any Debentures, the Trust or the Institutional Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Debentures held by the Institutional Trustee,
such additional amounts as shall be required so that the net amounts received
and retained by the Trust and the Institutional Trustee after paying such taxes,
duties, assessments or other governmental charges will be equal to the amounts
the Trust or the Institutional Trustee would have received had no such taxes,
duties, assessments or other government charges been imposed. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
interest on, or in respect of, any Debenture, such mention shall be deemed to
include mention of the payment of Additional Interest, if any, provided for in
this Section 2.5 to the extent that, in such context, Additional Interest is,
was or would be payable in respect thereof pursuant to the provisions hereof and
express mention of the payment of Additional Interest (if applicable) in any
provisions hereof shall not be construed as excluding Additional Interest in
those provisions hereof where such express mention is not made.
7
<PAGE>
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Tax Event and Regulatory Capital Event Redemption.
(a) If at any time prior to May 15, 2002, a Tax Event has
occurred and is continuing and
(i) the Company has received a Redemption Tax Opinion; or
(ii) after receiving a Dissolution Tax Opinion, the Regular
Trustees shall have been informed by Tax Counsel that a No Recognition
Opinion cannot be delivered to the Trust,
then, in each case, notwithstanding anything to the contrary in Section 3.2(a)
but subject to Section 3.2(c), the Company shall have the right, upon not less
than 30 nor more than 60 days' notice to the Holders of the Debentures, to
redeem the Debentures, in whole or in part, within 90 days following the
occurrence of such Tax Event at the Redemption Price, provided that (i) if at
the time there is available to the Company the opportunity to eliminate, within
the 90 days following the occurrence of such Tax Event, the Tax Event by taking
some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure which has no adverse effect on
the Company, the Trust or the Holders of the Trust Securities issued by the
Trust, the Company shall pursue such ministerial action or measure in lieu of
redemption, and (ii) the Company shall have no right to redeem the Debentures
while the Trust is pursuing any such ministerial action pursuant to its
obligations under the Declaration.
(b) If at any time prior to May 15, 2002, a Regulatory Capital
Event has occurred and is continuing then, subject to Sections 3.2(b), (c) and
(d), the Company shall have the right, upon not less than 30 nor more than 60
days' notice to the Holders of the Debentures, to redeem the Debentures, in
whole or in part, within 90 days following the occurrence of such Regulatory
Capital Event, at the Redemption Price set forth in Section 3.2(b), provided
that (i) if at the time there is available to the Company the opportunity to
eliminate, within such 90-day period, the Regulatory Capital Event by taking
some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure which has no adverse effect on
the Company, the Trust or the Holders of the Trust Securities issued by the
Trust, the Company shall pursue such ministerial action or measure in lieu of
redemption, and (ii) the Company shall have no right to redeem the Debentures
while the Trust is pursuing any such ministerial action or measure pursuant to
its obligations under the Declaration.
8
<PAGE>
(c) The Redemption Price shall be paid prior to 12:00 noon, New
York time, on the date of such redemption or such earlier time as the Company
determines, provided that the Company shall deposit with the Trustee an amount
sufficient to pay the Redemption Price by 10:00 a.m., New York time, on the date
such Redemption Price is to be paid.
SECTION 3.2 Optional Redemption by Company.
(a) Subject to the provisions of Sections 3.1, 3.2(b), 3.2(c) and
to the provisions of Article Fourteen of the Indenture, except as otherwise may
be specified in this [ ] Supplemental Indenture, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time, on or
after May 15, 2002, at the Redemption Price.
(b) The Redemption Price in the case of any redemption pursuant
to Section 3.1(a), 3.1(b) or 3.2(a) will equal the applicable Redemption
Percentage (as described below) times the principal amount of the Debentures,
plus accrued interest thereon (including any Compounded Interest and Additional
Interest) to but excluding the date fixed for redemption (the "Redemption
Price").
The Redemption Percentage, in the case of any redemption
occurring prior to May 15, 2002, will equal the applicable percentage set out in
the following table if the redemption date occurs during the three-month period
beginning on and including the indicated Interest Payment Date and ending on and
including the day preceding the immediately following Interest Payment Date in
the years indicated:
DATE REDEMPTION PERCENTAGE
---- ---------------------
February 15, 1997..................... %
May 15, 1997..........................
August 15, 1997.......................
November 15, 1997.....................
February 15, 1998.....................
May 15, 1998..........................
August 15, 1998.......................
November 15, 1998.....................
February 15, 1999.....................
May 15, 1999..........................
August 15, 1999.......................
November 15, 1999.....................
February 15, 2000.....................
May 15, 2000..........................
August 15, 2000.......................
November 15, 2000.....................
February 15, 2001.....................
May 15, 2001..........................
9
<PAGE>
August 15, 2001.......................
November 15, 2001.....................
February 15, 2002.....................
May 15, 2002..........................
The Redemption Percentage will be 100% for any redemption on or
after May 15, 2002.
(c) If a partial redemption of the Debentures pursuant to Section
3.1 or this Section 3.2 would result in the delisting of the Preferred
Securities issued by the Trust from any national securities exchange or other
organization on which the Preferred Securities are then listed, the Company
shall not be permitted to effect such partial redemption and may only redeem the
Debentures in whole.
(d) Any redemption of Debentures pursuant to Section 3.1 or
Section 3.2 shall be subject to the Company obtaining the prior approval of the
Federal Reserve, if such approval is then required under applicable law or
capital guidelines of the Federal Reserve.
SECTION 3.3 No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to
time during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
exceeding 20 consecutive quarterly interest periods, including the first such
quarterly interest period during such extension period (the "Extended Interest
Payment Period"), during which Extended Interest Payment Period no interest
shall be due and payable; provided that no Extended Interest Payment Period may
extend beyond the Scheduled Maturity Date. To the extent permitted by applicable
law, interest, the payment of which has been deferred because of the extension
of the interest payment period pursuant to this Section 4.1, will bear interest
thereon at the Coupon Rate compounded quarterly for each quarterly interest
period within the Extended Interest Payment Period ("Compounded Interest"). At
the end of the Extended Interest Payment Period, the Company shall pay all
interest accrued and unpaid on the Debentures, including any Additional Interest
and Compounded Interest (together, "Deferred Interest") that shall be payable to
the Holders of the Debentures
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in whose names the Debentures are registered in the security register on the
first record date after the end of the Extended Interest Payment Period. Before
the termination of any Extended Interest Payment Period, the Company may further
defer payments of interest by further extending such period, provided that such
period, together with all such previous and further extensions within such
Extended Interest Payment Period, shall not exceed 20 consecutive quarterly
interest periods, including the first such quarterly interest period during such
Extended Interest Payment Period, or extend beyond the Scheduled Maturity Date
of the Debentures. Upon the termination of any Extended Interest Payment Period
and the payment of all Deferred Interest then due, the Company may commence a
new Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest Payment Period.
SECTION 4.2 Notice of Extension.
(a) If the Institutional Trustee is the only registered holder of
the Debentures at the time the Company selects or extends an Extended Interest
Payment Period, the Company shall give written notice to the Regular Trustees
and the Institutional Trustee of its selection of such Extended Interest Payment
Period one Business Day before the earlier of (i) the date on which
Distributions on the Preferred Securities issued by the Trust are payable, or
(ii) the date the Regular Trustees are required to give notice of the record
date, or the date such Distributions are payable, to any applicable
self-regulatory organization or to Holders of the Preferred Securities issued by
the Trust.
(b) If the Institutional Trustee is not the only holder of the
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give the Holders of the Debentures and the Trustee written
notice of its selection of such Extended Interest Payment Period at least 10
Business Days before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Company is required to give notice of the record or
payment date of such interest payment to any applicable self-regulatory
organization or to Holders of the Debentures.
(c) The quarterly interest period in which any notice is given
pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted as one of
the 20 quarterly interest periods permitted in the maximum Extended Interest
Payment Period permitted under Section 4.1.
SECTION 4.3 Limitation of Transactions.
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If (i) the Company shall exercise its right to defer payment of
interest as provided in Section 4.1 or (ii) there shall have occurred any Event
of Default, as defined in the Indenture, then (a) the Company shall not declare
or pay any dividends on, make any distributions with respect to, or redeem,
purchase, acquire for value or make a liquidation payment with respect to, any
of its capital stock (other than (x) purchases or acquisitions of shares of its
common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or other contractual obligations of
the Company (other than a contractual obligation ranking pari passu with or
junior in right of payment to the Debentures) entered into prior to the date of
issuance of the Debentures, (y) as a result of a reclassification of its capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of its capital stock or (z) the
purchase of fractional interests in shares of its capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged) and (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company which rank pari passu with or junior in
right of payment to the Debentures.
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Institutional Trustee and in connection with the sale and
issuance of the Common Securities and the offer and issuance of the Preferred
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions or other compensation to the
dealer managers (the "Dealer Managers") payable pursuant to the Dealer Manager
Agreement, and compensation of the Trustee under the Indenture in accordance
with the provisions of Section 6.06 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Common Securities and the offer and issuance
of the Preferred Securities(including fees or other compensation payable to the
Dealer Managers in connection therewith), the fees and expenses of the
Institutional Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including
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without limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses, costs
and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets, costs and expenses related to the dissolution of
the Trust and all fees and expenses related to the enforcement by the
Institutional Trustee of the rights of the Holders of the Preferred Securities);
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2 Payment Upon Resignation or Removal.
Upon termination of this [ ] Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee, unless otherwise stated,
the Company shall pay to the Trustee all amounts accrued to the date of such
termination, removal or resignation. Upon termination of the Declaration or the
removal or resignation of the Delaware Trustee or the Institutional Trustee, as
the case may be, pursuant to Section 5.6 of the Declaration, the Company shall
pay to the Delaware Trustee or the Institutional Trustee, as the case may be,
all amounts accrued to the date of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1 Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures registered in the name
of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this
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Debenture (other than a transfer of this Debenture as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
No. _________________ CUSIP No. ______________
CITICORP
[ %] JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE MAY 15, 2027
Citicorp, a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ______________ or registered
assigns, the principal sum of _____________ Dollars on May 15, 2027, as such
date may be shortened or extended as provided herein (such date, as it may be
shortened or extended, the "Scheduled Maturity Date") (or upon the earlier
redemption hereof as further described herein), and premium, if any, and to pay
interest on said principal sum from ____________, 1997, or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on February 15,May 15, August 15 and November 15 of
each year commencing __________15, 1997, at the rate of [ %] per annum until the
principal hereof shall have become due and payable, and on any overdue principal
and premium, if any, and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on this Debenture is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. The interest installment
so payable, and punctually paid or duly provided for, on any
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Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Debenture (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the regular record
date for such interest installment, which shall be the close of business on the
business day next preceding such Interest Payment Date. Payments of such
interest may be deferred by the Company pursuant to Article IV of the Indenture.
This Debenture will also accrue interest at the rate of __% per annum of the
principal amount thereof for the period from February 15, 1997 to but excluding
the Expiration Date (as defined in the Indenture), payable on May 15, 1997. No
deferral of interest will be permitted with respect to interest accruing for the
period from February 15, 1997 to but excluding the Expiration Date. [IF PURSUANT
TO THE PROVISIONS OF THE INDENTURE THE DEBENTURES ARE NO LONGER REPRESENTED BY A
GLOBAL DEBENTURE -- which shall be the close of business on the ____ business
day next preceding such Interest Payment Date.] Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable to
the registered Holders on such regular record date and may be paid to the Person
in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of this series of Debentures not less than 10
days prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debentures may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. The principal of
(and premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the security register.
Notwithstanding the foregoing, so long as the holder of this Debenture is the
Institutional Trustee, the payment of the principal of (and premium, if any) and
interest on this Debenture will be made at such place and to such account as may
be designated by the Institutional Trustee.
Whenever in this Debenture there is mentioned, in any context,
the payment of the principal of or interest on, or in respect of, any Debenture,
such mention shall be deemed to include mention of the payment of Additional
Interest, if any, provided for in Section 2.5 of the Indenture to the extent
that, in such context, Additional Interest is, was or would be payable in
respect thereof pursuant to the provisions herein and therein and express
mention of the payment of Additional Interest (if applicable) in any provisions
hereof shall not be construed as
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excluding Additional Interest in those provisions hereof where such express
mention is not made.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated: ____________, 1997
CITICORP
By:________________________________
Name:
Title:
Attest:
By:________________________________
Name:
Title:
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated _______________
Wilmington Trust Company, or Citibank, N.A.,
as Trustee as Authenticating
Agent
By _______________________ By____________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures
of the Company (herein sometimes referred to as the "Debentures"), specified in
the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of December 17, 1996, duly executed and
delivered between the Company and Wilmington Trust Company, as Trustee (the
"Trustee"), as supplemented by the [ ]Supplemental Indenture dated as
of___________, 1997, between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Debentures. By the terms of the
Indenture, the Debentures are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture. This series of Debentures is limited in aggregate principal amount as
specified in said [ ] Supplemental Indenture.
Upon the occurrence and continuation of a Tax Event the Company
shall have the right, subject to certain conditions set forth in Section 3.1 of
the Indenture, to redeem this Debenture prior to May 15, 2002, in whole or in
part, at the Redemption Price within 90 days following the occurrence of such
Tax Event. Upon the occurrence of a Regulatory Capital Event, the Company shall
have the right to redeem this Debenture prior to May 15, 2002, in whole or in
part, at the Redemption Price within 90 days following the occurrence of such
Regulatory Capital Event. In addition, the Company shall have the right to
redeem this
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Debenture, in whole or in part, at any time on or after May 15, 2002, at the
Redemption Price. The "Redemption Price", in the case of any such redemption,
will equal the applicable Redemption Percentage (as described below) of the
principal amount of the redeemed Debentures, plus accrued interest thereon
(including any Compounded Interest and Additional Interest) to but excluding the
date fixed for redemption.
The Redemption Percentage, in the case of any redemption
occurring prior to May 15, 2002 pursuant to Section 3.2(a), will equal the
applicable percentage set out in the following table if the redemption date
occurs during the three-month period beginning on and including the indicated
Interest Payment Date and ending on and including the day preceding the
immediately following Interest Payment Date in the years indicated:
DATE REDEMPTION PERCENTAGE
---- ---------------------
February 15,1997.................. %
May 15,1997.......................
August 15,1997....................
November 15,1997..................
February 15 15,1998...............
May 15,1998.......................
August 15,1998....................
November 15,1998..................
February 15,1999..................
May 15,1999.......................
August 15,1999....................
November 15,1999..................
February 15,2000..................
May 15,2000.......................
August 15,2000....................
November 15,2000..................
February 15,2001..................
May 15,2001.......................
August 15,2001....................
November 15,2001..................
February 15,2002..................
May 15,2002.......................
The Redemption Percentage will be 100% for any redemption on or
after May 15, 2002.
The Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or at such earlier time as the Company
determines. Any redemption pursuant to this paragraph will be made upon not less
than 30 days nor more than 60 days notice. If the Debentures are only partially
redeemed by the Company, the Debentures will be redeemed pro rata or by lot
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or by any other method utilized by the Trustee; provided that if, at the time of
redemption, the Debentures are registered as a Global Debenture, the Depositary
shall determine the principal amount of such Debentures held by each
Debentureholder to be redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of Debentures by
the Company shall be subject to the prior approval of the Board of Governors of
the Federal Reserve System (the "Federal Reserve"), if such approval is then
required under applicable law or capital guidelines of the Federal Reserve.
In case an Event of Default (as defined in the Indenture) shall
have occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Company has the right at any time to shorten the Scheduled
Maturity Date of the Debentures to a date not earlier than May 15, 2002. The
exercise of such right is subject to the obtaining of any required regulatory
approvals. The Company also has the right to extend the maturity of the
Debentures to a date no later than __________ 2046, so long as at the time such
election is made and at the time such extension commences (i) the Company is not
in bankruptcy, otherwise insolvent or in liquidation, (ii) the Company is not in
default in the payment of any interest or principal on the Debentures, (iii) the
Trust is not in arrears on payments of distributions on the Preferred Securities
and no deferred distributions on the Preferred Securities are accumulated and
(iv) the Debentures are rated at lest BBB- by Standard & Poor's Ratings
Services, at least Baa3 by Moody's Investors Service, Inc. or at least the
equivalent by any other nationally recognized statistical rating organization.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any Debentures of any series, or reduce the principal amount thereof
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(including in the case of a discounted Security the amount payable thereon in
the event of acceleration or the amount provable in bankruptcy) or any
redemption premium thereon, or reduce the rate or extend the time of payment of
interest thereon, or make the principal of, or interest or premiums, if any, on
the Debentures payable in any coin or currency other than that provided in the
Debentures, or impair or affect the right of any holder of Debentures to
institute suit for the payment thereof or the right of prepayment, if any, at
the option of the holder, without the consent of the holder of each Debenture so
affected, or (ii) reduce the aforesaid percentage of Debentures, the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holders of each Debenture then outstanding and affected thereby.
The Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Debentures of any series at the time
outstanding affected thereby, on behalf of all of the Holders of the Debentures
of such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture
with respect to such series, and its consequences, except a default in the
payment of the principal of or premium, if any, or interest on any of the
Debentures of such series. Any such consent or waiver by the registered holder
of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future Holders and owners
of this Debenture and of any Debenture issued in exchange heretofore or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
The Company shall have the right, at any time and from time to
time during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
exceeding 20 consecutive quarterly interest periods, including the first such
quarterly period during such extension period, and not to extend beyond the
Scheduled Maturity Date of the Debentures (an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is enforceable under
applicable law). In the event that the Company exercises its right to defer
interest payments, then, prior to the payment of all accrued interest on
outstanding Debentures, (a) the Company shall not
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declare or pay any dividends on, make any distributions with respect to, or
redeem, purchase, acquire for value or make a liquidation payment with respect
to, any of its capital stock (other than (i) purchases or acquisitions of shares
of the Company's Common Stock in connection with the satisfaction by the Company
of its obligations under any employee benefit plans or other contractual
obligations of the Company (other than a contractual obligation ranking pari
passu with or junior in right of payment to the Debentures) entered into prior
to the date of issuance of the Debentures, (ii) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock or (iii) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock of the Company or the security being converted
or exchanged) and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company that rank pari passu with or junior in right of
payment to the Debentures. Before the termination of any such Extended Interest
Payment Period, the Company may further defer payments of interest by further
extending such Extended Interest Payment Period, provided that such Extended
Interest Payment Period, together with all such previous and further extensions
within such Extended Interest Payment Period, shall not exceed 20 consecutive
quarterly interest periods, including the first quarterly period during such
Extended Interest Payment Period, or extend beyond the Scheduled Maturity Date
of the Debentures. Upon the termination of any such Extended Interest Payment
Period and the payment of all accrued and unpaid interest and any additional
amounts then due, the Company may commence a new Extended Interest Payment
Period, subject to the foregoing requirements.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the security register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the City
and State of New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
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Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security Registrar
may deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Debenture shall be overdue and notwithstanding any notice
of ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures of this series are issuable only in registered
form without coupons in denominations of $25 and any integral multiple thereof.
This Global Debenture is exchangeable for Debentures in definitive form only
under certain limited circumstances set forth in the Indenture. Debentures of
this series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations herein and therein set forth,
Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the holder surrendering the same.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THE DEBENTURES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1 Original Issue of Debentures.
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Debentures in the aggregate principal amount of $_____________
may, upon execution of this [ ] Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written order
of the Company, signed by its Chairman, its Vice Chairman, its President, or any
Vice President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
ARTICLE VIII
COVENANT TO LIST ON EXCHANGE
SECTION 8.1 Listing on an Exchange
If the Debentures are distributed to the holders of the Preferred
Securities issued by the Trust, and the Preferred Securities are then so listed,
the Company will use its best efforts to list such Debentures on the New York
Stock Exchange, Inc. or on such other exchange or automated quotation system on
which the Preferred Securities are then listed.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
The Indenture, as supplemented by this [ ] Supplemental
Indenture, is in all respects ratified and confirmed, and this [ ] Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
SECTION 9.2 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this [ ] Supplemental Indenture.
SECTION 9.3 Governing Law.
This [ ]Supplemental Indenture and each Debenture shall be deemed
to be a contract made under the internal laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
SECTION 9.4 Separability.
In case any one or more of the provisions contained in this [ ]
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any
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respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this [ ] Supplemental Indenture or of the Debentures, but
this [ ] Supplemental Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein or
therein.
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SECTION 9.5 Counterparts.
This [ ]Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this [ ]
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, on the date or dates indicated in the
acknowledgements and as of the day and year first above written.
CITICORP
By:________________________
Name:
Title:
Attest:
By:__________________________
WILMINGTON TRUST COMPANY,
as Trustee
By:________________________
Name:
Title:
Attest:
By:_________________________
26
============================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
Citicorp Capital [X] [XI] [XII] [XIII] [XIV]
Dated as of ___________________, 1997
============================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation............................... 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application............................. 5
SECTION 2.2 Lists of Holders of Securities............................... 6
SECTION 2.3 Reports by the Preferred Guarantee
Trustee...................................................... 6
SECTION 2.4 Periodic Reports to Preferred Guarantee
Trustee...................................................... 6
SECTION 2.5 Evidence of Compliance with Conditions
Precedent.................................................... 6
SECTION 2.6 Events of Default; Waiver.................................... 7
SECTION 2.7 Event of Default; Notice..................................... 7
SECTION 2.8 Conflicting Interests........................................ 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred
Guarantee Trustee............................................ 8
SECTION 3.2 Certain Rights of Preferred Guarantee
Trustee...................................................... 10
SECTION 3.3 Not Responsible for Recitals or Issuance
of Preferred Securities Guarantee............................ 12
SECTION 3.4 Compensation and Reimbursement............................... 12
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility..................... 13
SECTION 4.2 Appointment, Removal and Resignation of
Preferred Guarantee Trustee.................................. 14
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.................................................... 15
SECTION 5.2 Waiver of Notice and Demand.................................. 15
SECTION 5.3 Obligations Not Affected..................................... 15
SECTION 5.4 Rights of Holders............................................ 16
SECTION 5.5 Guarantee of Payment......................................... 17
SECTION 5.6 Subrogation.................................................. 17
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Page
----
SECTION 5.7 Independent Obligations...................................... 17
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions................................... 17
SECTION 6.2 Ranking...................................................... 18
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.................................................. 18
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.................................................. 19
SECTION 8.2 Indemnification.............................................. 19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns....................................... 20
SECTION 9.2 Amendments................................................... 20
SECTION 9.3 Notices...................................................... 20
SECTION 9.4 Benefit...................................................... 21
SECTION 9.5 Governing Law................................................ 21
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"),
dated as of ___________________1997, is executed and delivered by Citicorp, a
Delaware corporation (the "Guarantor"), and Wilmington Trust Company, a national
banking association duly organized and existing under the laws of the United
States, as trustee (the "Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of Citicorp Capital [X] [XI] [XII] [XIII] [XIV] , a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of_________________1997, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof _____________ preferred securities, having an
aggregate liquidation amount of $______________, designated the ______%
Preferred Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to acquire the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein.
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the rights of holders
of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated to the rights of Holders of Preferred
Securities to receive Guarantee Payments under this Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized terms used in this Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Preferred Securities Guarantee has
the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Preferred Securities Guarantee, unless otherwise
defined in this Preferred Securities Guarantee or unless the context
otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a day on which federal or
state banking institutions in the Borough of Manhattan, The City of New York,
are authorized or obligated by law, executive order or regulation to close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
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"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at Rodney Square North, 1100
North Market Street, Wilmington, DE 19890.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of junior subordinated debt securities
of the Guarantor designated the_______% Junior Subordinated Deferrable Interest
Debentures due ________15, 2027 held by the Institutional Trustee (as defined in
the Declaration) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Preferred Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
with respect to any Preferred Securities called for redemption by the Issuer,
and (iii) upon a voluntary or involuntary dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of Debentures to
the Holders in exchange for Preferred Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an Event of Default (as defined in the Indenture) has
occurred and is continuing, no Guarantee Payments under the Common Securities
Guarantee with respect to the Common Securities shall be made until the Holders
of Preferred Securities shall be paid in full the Guarantee Payments to which
they are entitled under this Preferred Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any
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request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee or of any Affiliate of
the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of December 17, 1996, among
the Guarantor (the "Debenture Issuer") and Wilmington Trust Company, as trustee,
and any indenture supplemental thereto pursuant to which certain subordinated
debt securities of the Debenture Issuer are to be issued to the Property Trustee
of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means a certificate signed by the Chairman,
a Vice Chairman, a Vice President, the Chief Auditor, the Secretary or an
Assistant Secretary of the Guarantor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
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"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Guarantee Trustee" means Wilmington Trust Company, a
national banking association duly organized and existing under the laws of the
United States, until a Successor Preferred Guarantee Trustee has been appointed
and has accepted such appointment pursuant to the terms of this Preferred
Securities Guarantee and thereafter means each such Successor Preferred
Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice president, any assistant vice president,
any assistant secretary, the treasurer, any assistant treasurer or other officer
of the Corporate Trust Office of the Preferred Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" means the Common Securities and the Preferred
Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts
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with the duties imposed by Section 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Preferred Guarantee Trustee with
a list, in such form as the Preferred Guarantee Trustee may reasonably require,
of the names and addresses of the Holders of the Preferred Securities ("List of
Holders") as of such date, (i) within one Business Day after January 1 and June
30 of each year, and (ii) at any other time within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Preferred Guarantee Trustee
provided, that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Preferred Guarantee Trustee by the Guarantor. The
Preferred Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee
Within 60 days after May 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Preferred Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Preferred
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
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required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Preferred Securities, notices of all Events of
Default actually known to a Responsible Officer of the Preferred Guarantee
Trustee, unless such defaults have been cured before the giving of such notice,
provided, that, the Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Preferred
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or of which a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of the Declaration shall have
obtained actual knowledge.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described in this
Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders
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of the Preferred Securities, and the Preferred Guarantee Trustee shall not
transfer this Preferred Securities Guarantee to any Person except a Holder of
Preferred Securities exercising his or her rights pursuant to Section 5.4(b) or
to a Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee shall automatically vest in any Successor Preferred Guarantee Trustee,
and such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Preferred Securities Guarantee for the
benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Preferred Securities Guarantee, and no implied covenants shall be
read into this Preferred Securities Guarantee against the Preferred Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a Responsible Officer
of the Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred Securities
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee
Trustee shall be determined solely by the express provisions of this
Preferred Securities Guarantee, and the Preferred Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Preferred
Securities Guarantee, and no implied
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covenants or obligations shall be read into this Preferred
Securities Guarantee against the Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and conforming to the
requirements of this Preferred Securities Guarantee; but in the case
of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority
in liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee, or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this Preferred
Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to
it under the terms of this Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
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(i) The Preferred Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine
and to have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting any
action hereunder, the Preferred Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the
Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in accordance with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred
Securities Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Preferred Guarantee Trustee such
security and indemnity, reasonably satisfactory to the Preferred Guarantee
Trustee, against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such
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reasonable advances as may be requested by the Preferred Guarantee
Trustee; provided that, nothing contained in this Section 3.2(a)(vi) shall
be taken to relieve the Preferred Guarantee Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Preferred Guarantee
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the Preferred
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of the Preferred Securities, and
the signature of the Preferred Guarantee Trustee or its agents alone shall
be sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Preferred
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Preferred Securities Guarantee, both of which shall
be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Preferred Securities
Guarantee the Preferred Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Preferred Guarantee Trustee (i) may
request instructions from the Holders of a Majority in liquidation amount
of the Preferred Securities, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are received,
and (iii) shall be fully and conclusively protected in relying on or
acting in accordance with such instructions.
(xi) The Preferred Guarantee Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to
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be authorized or within the discretion or rights or powers conferred upon
it by this Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
Guarantee
The recitals contained in this Preferred Securities Guarantee shall
be taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee.
SECTION 3.4 Compensation and Reimbursement
The Guarantor agrees:
(a) To pay the Preferred Guarantee Trustee from time to time such
reasonable compensation as the Guarantor and the Preferred Guarantee Trustee
shall from time to time agree in writing for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) Except as otherwise expressly provided herein, to reimburse the
Preferred Guarantee Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Preferred Guarantee Trustee
in accordance with the provisions of this Preferred Securities Guarantee
(including the reasonable compensation and expenses of its agents and counsel),
except any such expense, disbursement or advance that may be attributable to its
negligence or bad faith.
The provisions of this Section shall survive the termination of this
Preferred Securities Guarantee.
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ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee Trustee
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may
be appointed or removed without cause at any time by the Guarantor except during
an event of default.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
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(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery of an instrument of removal or resignation, the Preferred
Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued to the date of such termination, removal or resignation.
(g) The Guarantor shall give notice of each resignation and each
removal of the Preferred Guarantee Trustee and each appointment of a Successor
Preferred Guarantee Trustee to all Holders in the manner provided in Section 9.3
hereof. Each notice shall include the name of the Successor Preferred Guarantee
Trustee and the address of its corporate trust office.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
14
<PAGE>
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
15
<PAGE>
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting of
any proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Preferred Securities Guarantee or to direct the exercise of any
trust or power conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce such
Preferred Securities Guarantee, any Holder of Preferred Securities may institute
a legal proceeding directly against the Guarantor to enforce the Preferred
Guarantee Trustee's rights under this Preferred Securities Guarantee, without
first instituting a legal proceeding against the Issuer, the Preferred Guarantee
Trustee or any other person or entity. Notwithstanding the foregoing, if the
Company has failed to make a guarantee payment, a holder of Preferred Securities
may directly institute a proceeding against the Company for enforcement of the
Preferred Securities Guarantee for such payment. The Guarantor waives any right
or remedy to require that any action be brought first against the Issuer or any
other person or entity before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this
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<PAGE>
Preferred Securities Guarantee; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Preferred Securities Guarantee, if, at the time of any such payment,
any amounts are due and unpaid under this Preferred Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, if there
shall have occurred an Event of Default or an event of default under the
Declaration or the Guarantor has exercised its option to defer interest payments
on the Debentures, then (a) the Guarantor shall not declare or pay any dividends
on, make any distribution with respect to, or redeem, purchase, acquire for
value or make a liquidation payment with respect to any of its capital stock
(other than (i) purchases or acquisitions of shares of Common Stock in
connection with the satisfaction by the Guarantor of its obligations under any
employee benefit plans or other contractual obligations (other than a
contractual obligation ranking pari passu with or junior in right of payment to
the Debentures) entered into prior to the date of issuance of the Debentures,
(ii) as a result of a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital stock
for another class or series of the Guarantor's capital stock or (iii) the
purchase of fractional interests in shares of the Guarantor's capital stock
pursuant to the conversion or exchange provisions of such capital stock of the
Guarantor or the security being converted or exchanged) and (b) the Guarantor
shall not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities issued by the Guarantor
17
<PAGE>
that rank pari passu with or junior in right of payment to the Debentures.
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, (ii) pari passu with the most
senior preferred or preference stock now or hereafter issued by the Guarantor
and with any guarantee now or hereafter entered into by the Guarantor in respect
of any preferred or preference stock of any Affiliate of the Guarantor, and
(iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate (i) upon full
payment of the Redemption Price of all Preferred Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Preferred Securities
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Preferred
Securities must restore payment of any sums paid under the Preferred Securities
or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Preferred Securities Guarantee or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
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<PAGE>
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
SECTION 9.2 Amendments
This Preferred Securities Guarantee may be amended only by an
instrument in writing signed by the Guarantor, provided that, except with
respect to any changes that do not adversely affect the rights of Holders (in
which case no consent of Holders will be required), this Preferred Securities
Guarantee may only be amended with the prior approval of the Holders of at least
a Majority in liquidation amount (including the stated amount that would be paid
on redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of all the
outstanding
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<PAGE>
Preferred Securities; and provided, further, that no amendment that affects the
rights, powers, duties, obligations or immunities of the Preferred Guarantee
Trustee shall be effective unless approved in writing by the Preferred Guarantee
Trustee. The provisions of Section 12.2 of the Declaration with respect to
meetings of Holders of the Securities apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
Wilmington Trust Company
Rodney Square North
9th Floor
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Trustee
Administration
Telecopy: (302) 651-8882
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
Citibank, N.A.
Office of Corporate Finance
153 East 53rd Street, 6th floor
New York, New York 10043
Attention: Gregory C. Ehlke, Vice President
Telecopy: (212) 527-2765
(c) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
20
<PAGE>
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
21
<PAGE>
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
CITICORP, as Guarantor
By:_________________________
Name:
Title:
WILMINGTON TRUST COMPANY, as
Preferred Guarantee Trustee
By:_________________________
Name:
Title:
22
March 13, 1997
The Citicorp Trusts
(as defined below)
c/o Citicorp
399 Park Avenue
New York, New York 10043
Re: The Citicorp Trusts (as defined below)
Ladies and Gentlemen:
We have acted as special Delaware counsel to Citicorp Capital X,
Citicorp Capital XI, Citicorp Capital XII, Citicorp Capital XIII and Citicorp
Capital XIV, each a Delaware statutory business trust (collectively referred to
herein as the "Citicorp Trusts" and each individually as a "Citicorp Trust"), in
connection with certain matters relating to the creation of the Citicorp Trusts
and the proposed issuance of Preferred Securities therein to beneficial owners
in connection with the Exchange and pursuant to the Citicorp Trusts'
Registration Statement No. 333-21143 (and the Prospectus forming a part thereof)
on Form S-3 filed with the Securities and Exchange Commission on February 5,
1997, as amended by Pre-Effective Amendment No. 1 thereto to be filed on or
about the date hereof (as so amended, the "Registration Statement"). Capitalized
terms used herein and not otherwise herein defined are used as defined in the
form of Amended and Restated Declaration of Trust attached as an exhibit to the
Registration Statement.
In rendering this opinion, we have examined copies of the following
documents in the forms provided to us: the Certificate of Trust of each Citicorp
Trust, each as filed in the Office of the Secretary of State of Delaware (the
"State Office") on January 30, 1997 (the Certificate of Trust of each Citicorp
Trust is referred to herein as a "Certificate"); the Declaration of Trust of
each
<PAGE>
The Citicorp Trusts
c/o Citicorp
March 13, 1997
Page 2
Citicorp Trust, each dated as of January 27, 1997 (the Declaration of Trust of
each Citicorp Trust is referred to herein as an "Original Governing
Instrument"); the Indenture dated as of December 17, 1996 between Citicorp and
Wilmington Trust Company, as Trustee, and the form of Supplemental Indenture to
be entered into in connection therewith; the form of Preferred Securities
Guarantee to be made by Citicorp with respect to each Citicorp Trust; and the
Registration Statement. In such examinations, we have assumed the genuineness of
all signatures, the conformity to original documents of all documents submitted
to us as drafts or copies or forms of documents to be executed and the legal
capacity of natural persons to complete the execution of documents. We have
further assumed for purposes of this opinion: (i) the due information,
organization or creation, valid existence and good standing of the Citicorp
Trusts and each entity that is a party to any of the documents reviewed by us
under the laws of the jurisdiction of its respective formation, organization or
creation; (ii) the due authorization, execution and delivery by, or on behalf
of, each of the parties thereto of the above referenced documents with respect
to each Citicorp Trust; (iii) that Citicorp, Wilmington Trust Company and the
appropriate Regular Trustees will duly authorize, execute and deliver an amended
and restated declaration of trust for each Citicorp Trust in the form of the
Amended and Restated Declaration of Trust Attached as an exhibit to the
Registration Statement (each a "Governing Instrument") and all other documents
contemplated thereby or by the Registration Statement to be executed in
connection with the creation of each Citicorp Trust and the issuance by each
such Citicorp Trust of Preferred Securities, in each case prior to the first
issuance of Preferred Securities; (iv) that the Preferred Securities of each
Citicorp Trust will be offered and sold pursuant to the Registration Statement
and a prospectus supplement that will be consistent with, and accurately
describe, the terms of the applicable Governing Instrument and Preferred
Securities Guarantee relating to each such Citicorp Trust and all other relevant
documents; (v) that no event has or will occur subsequent to the filing of any
Certificate that would cause a dissolution or liquidation of any Citicorp Trust
under the applicable Original Governing Instrument or the applicable Governing
Instrument; (vi) that the activities of each Citicorp Trust have been and will
be conducted in accordance with its Original Governing Instrument or Governing
Instrument, as applicable, and the Delaware Business Trust Act, 12 Del. C.
Section 3801 et seq. (the "Delaware Act"); (vii) that each Person that will
acquire Preferred Securities of each Citicorp Trust in the Exchange relating to
such Citicorp Trust will validly tender Depositary Shares related to such
Citicorp Trust in exchange therefor, that the Depositary Shares so tendered will
be duly accepted, and that each such Person
<PAGE>
The Citicorp Trusts
c/o Citicorp
March 13, 1997
Page 3
will duly receive Capital Security Certificates of the appropriate Citicorp
Trust in consideration therefor, all in accordance with the terms and conditions
of the Registration Statement and the Prospectus forming a part thereof, the
applicable Governing Instrument and the applicable prospectus supplement, and
that the Preferred Securities of each Citicorp Trust are otherwise issued and
sold to the Preferred Securities Holders of such Citicorp Trust in accordance
with the terms, conditions, requirements and procedures set forth in the
Registration Statement and the Prospectus forming a part thereof, the applicable
Governing Instrument and the applicable prospectus supplement; and (viii) that
the documents examined by us, or contemplated hereby, express the entire
understanding of the parties thereto with respect to the subject matter thereof
and have not been, and, prior to the issuance of Preferred Securities by each
Citicorp Trust, will not be, modified, supplemented or otherwise amended, except
as herein referenced. No opinion is expressed with respect to the requirements
of, or compliance with, federal or state securities or blue sky laws. Further,
we express no opinion with respect to the Registration Statement or any other
offering materials relating to the Preferred Securities offered by any Citicorp
Trust and we assume no responsibility for their contents. As to any fact
material to our opinion, other than those assumed, we have relied without
independent investigation on the above referenced documents and on the accuracy,
as of the date hereof, of the matters therein contained.
Based on and subject to the foregoing, and limited in all respects to
matters of Delaware law, it is out opinion that, upon issuance, the Preferred
Securities of each Citicorp Trust will constitute validly issued and, subject to
the terms of the applicable Governing Instrument, fully paid and non-assessable
beneficial interests in the assets of such Citicorp Trust. We note that pursuant
to Section 11.04 of the Governing Instrument, each Citicorp Trust may withhold
amounts otherwise distributable to a Holder of Securities in such Citicorp Trust
and pay over such amounts to the applicable jurisdictions in accordance with
federal, state and local law and any amounts withheld will be deemed to have
been distributed to such Holder and that, pursuant to the Governing Instrument,
the Preferred Security Holders of each Citicorp Trust may be obligated to make
payments or provide indemnity or security under the circumstances set forth
therein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "VALIDITY OF
SECURITIES" in the Prospectus forming a part thereof. In giving this consent, we
do not thereby admit that we come within the category of persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange
<PAGE>
The Citicorp Trusts
c/o Citicorp
March 13, 1997
Page 4
Commission thereunder. This opinion speaks only as of the date hereof and is
based on our understandings and assumptions as to present facts, and our review
of the above referenced documents and the application of Delaware law as the
same exist on the date hereof, and we undertake no obligation to update or
supplement this opinion after the date hereof for the benefit of any person or
entity with respect to any facts or circumstances that may hereafter come to our
attention or any changes in facts or law that may hereafter occur or take
effect. This opinion is intended solely for the benefit of the addressees hereof
in connection with the matters contemplated hereby and may not be relied upon by
any other person or entity or for any other purpose without our prior written
consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
The Board of Directors
Citicorp:
We consent to the incoporation by reference of our report dated January 27, 1997
relating to the consolidated balance sheets of Citicorp and subsidiaries as of
December 31, 1996 and 1995, the related consolidated statements of income,
changes in stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1996, and the related consolidated balance
sheets of Citibank, N.A. and subsidiaries as of December 31, 1996 and 1995, in
the Amendment No. 1 to the Registration Statement on Form S-4 (No. 333-21143),
and to the reference to our firm under the heading "Experts" in the Registration
Statement. Our report with respect to these consolidated financial statements,
which contains an added explanatory paragraph, is included in the 1996 Citicorp
Annual Report and Form 10-K.
/S/ KPMG Peat Marwick LLP
March 13, 1997
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of CITICORP, a Delaware corporation, and CITIBANK, N.A., a national
association, hereby constitutes and appoints each of ROGER W. TRUPIN, GERARD E.
KETZ, AND FREDERICK W. BATTLINE his true and lawful attorney and agent, in the
name and on behalf of the undersigned, to do any and all acts and things and
execute any and all instruments which the said attorney and agent may deem
necessary or advisable to enable Citicorp and/or Citibank, N.A. to comply with
the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934,
as amended, any rules and regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under said Securities Act of 1933 of:
1. comon stock of Citicorp;
2. preferred stock of Citicorp;
3. debt securities or other obligations issued or guaranteed by Citicorp;
4. shares of common stock of Citicorp to be offered under the employee
benefit plans of Citicorp and/or Citibank, N.A. and interests in the
Savings Incentive Plan of Citibank, N.A. and Affiliates; and
5. mortgage pass-through certificates of Citibank, N.A. or any affiliate
thereof, and in connection with the reporting requirements under the
Securities Exchange Act of 1934 with respect thereto, including
specifically, but without limiting the generality of the foregoing, the
power and authority to sign the name of the undersigned in his capacity as
Director and/or Officer of Citicorp and Citibank, N.A. to one or more
Registration Statements to be filed with the Securities and Exchange
Commission with respect thereto, to any and all amendments, including
post-effective amendments, to the said Registration Statements and to any
and all instruments and documents filed as a part of or in connection with
the said Registration Statements or amendments thereto; HEREBY RATIFYING
AND CONFIRMING all that the said attorneys and agents, or any of them, has
done, shall do or cause to be done by virtue hereof.
This power of Attorney is given solely and exclusively for the purposes herein
mentioned for the period from February 20, 1997 through March 10, 1997,
inclusive.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand.
/s/ Thomas E. Jones
------------------------
Dated: February 18, 1997
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CITICORP
(Exact name of obligor as specified in its charter)
Delaware 13-2614988
(State of incorporation) (I.R.S. employer identification no.)
399 Park Avenue
New York, New York 10043
(Address of principal executive offices) (Zip Code)
Junior Subordinated Deferrable Interest Debentures of Citicorp
(Title of the indenture securities)
================================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ Christopher L. Kaiser
-------------------------- ----------------------------
Assistant Secretary Name: Christopher L. Kaiser
Title: Vice President
citi.f10
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EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
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(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by any law,
judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual
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owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon
such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of
the property held or owned by the Corporation, and to sell and
pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
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(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of
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stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to
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receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article Fourth, each holder of Common Stock shall have one vote
in respect of each share of Common Stock held on all matters
voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation), any
director or the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
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(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of
any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
13
<PAGE>
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
2
<PAGE>
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 10, 1997 By: /s/ Christopher L. Kaiser
-------------------------
Name: Christopher L. Kaiser
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank
City
in the State of DELAWARE , at the close of business on December 31, 1996.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............. 213,895
Interest-bearing balances....................................... 0
Held-to-maturity securities............................................... 465,818
Available-for-sale securities............................................. 752,297
Federal funds sold........................................................ 95,000
Securities purchased under agreements to resell........................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve 3,582,156
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 89,129
Other real estate owned................................................... 3,520
Investments in unconsolidated subsidiaries and associated companies....... 52
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 4,593
Other assets.............................................................. 114,300
Total assets.............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 3,749,697
Noninterest-bearing.................................. 852,790
Interest-bearing..................................... 2,896,907
Federal funds purchased................................................... 77,825
Securities sold under agreements to repurchase............................ 192,295
Demand notes issued to the U.S. Treasury.................................. 53,526
Trading liabilities....................................................... 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less...................... 714,000
With original maturity of more than one year.................... 43,000
Mortgage indebtedness and obligations under capitalized leases............ 0
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities......................................................... 98,756
Total liabilities ........................................................ 4,929,099
Limited-life preferred stock and related surplus.......................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus................................................................... 62,118
Undivided profits and capital reserves.................................... 367,371
Net unrealized holding gains (losses) on available-for-sale securities.... 862
Total equity capital...................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital....... 5,359,950
</TABLE>
2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CITICORP
CITICORP CAPITAL X
(Exact name of obligor as specified in its charter)
Delaware 13-2614988
Delaware To be applied for
(State of incorporation) (I.R.S. employer identification no.)
399 Park Avenue
New York, New York 10043
(Address of principal executive offices) (Zip Code)
Capital Securities of Citicorp Capital X
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By:/s/ Christopher L.Kaiser
------------------------------- ---------------------------
Assistant Secretary Name: Christopher L. Kaiser
Title: Vice President
citix.f10
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
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(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by any law,
judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual
3
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owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon
such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of
the property held or owned by the Corporation, and to sell and
pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
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<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of
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<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to
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<PAGE>
receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article Fourth, each holder of Common Stock shall have one vote
in respect of each share of Common Stock held on all matters
voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
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<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation), any
director or the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
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(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of
any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
13
<PAGE>
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
2
<PAGE>
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 10, 1997 By: /s/ Christopher L. Kaiser
-------------------------
Name: Christopher L. Kaiser
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank
City
in the State of DELAWARE , at the close of business on December 31, 1996.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............. 213,895
Interest-bearing balances....................................... 0
Held-to-maturity securities............................................... 465,818
Available-for-sale securities............................................. 752,297
Federal funds sold........................................................ 95,000
Securities purchased under agreements to resell........................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve 3,582,156
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 89,129
Other real estate owned................................................... 3,520
Investments in unconsolidated subsidiaries and associated companies....... 52
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 4,593
Other assets.............................................................. 114,300
Total assets.............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 3,749,697
Noninterest-bearing.................................. 852,790
Interest-bearing..................................... 2,896,907
Federal funds purchased................................................... 77,825
Securities sold under agreements to repurchase............................ 192,295
Demand notes issued to the U.S. Treasury.................................. 53,526
Trading liabilities....................................................... 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less...................... 714,000
With original maturity of more than one year.................... 43,000
Mortgage indebtedness and obligations under capitalized leases............ 0
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities......................................................... 98,756
Total liabilities ........................................................ 4,929,099
Limited-life preferred stock and related surplus.......................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus................................................................... 62,118
Undivided profits and capital reserves.................................... 367,371
Net unrealized holding gains (losses) on available-for-sale securities.... 862
Total equity capital...................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital....... 5,359,950
</TABLE>
2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CITICORP
CITICORP CAPITAL XI
(Exact name of obligor as specified in its charter)
Delaware 13-2614988
Delaware To be applied for
(State of incorporation) (I.R.S. employer identification no.)
399 Park Avenue
New York, New York 10043
(Address of principal executive offices) (Zip Code)
Capital Securities of Citicorp Capital XI
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By:/s/ Christopher L. Kaiser
------------------------------- ----------------------------
Assistant Secretary Name: Christopher L. Kaiser
Title: Vice President
citixi.f10
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
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(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by any law,
judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon
such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of
the property held or owned by the Corporation, and to sell and
pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
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<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to
6
<PAGE>
receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article Fourth, each holder of Common Stock shall have one vote
in respect of each share of Common Stock held on all matters
voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
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<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation), any
director or the entire Board of Directors of the
8
<PAGE>
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE>
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
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(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of
any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
2
<PAGE>
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 10, 1997 By: /s/ Christopher L. Kaiser
-------------------------
Name: Christopher L. Kaiser
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank
City
in the State of DELAWARE , at the close of business on December 31, 1996.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............. 213,895
Interest-bearing balances....................................... 0
Held-to-maturity securities............................................... 465,818
Available-for-sale securities............................................. 752,297
Federal funds sold........................................................ 95,000
Securities purchased under agreements to resell........................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve 3,582,156
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 89,129
Other real estate owned................................................... 3,520
Investments in unconsolidated subsidiaries and associated companies....... 52
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 4,593
Other assets.............................................................. 114,300
Total assets.............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 3,749,697
Noninterest-bearing.................................. 852,790
Interest-bearing..................................... 2,896,907
Federal funds purchased................................................... 77,825
Securities sold under agreements to repurchase............................ 192,295
Demand notes issued to the U.S. Treasury.................................. 53,526
Trading liabilities....................................................... 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less...................... 714,000
With original maturity of more than one year.................... 43,000
Mortgage indebtedness and obligations under capitalized leases............ 0
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities......................................................... 98,756
Total liabilities ........................................................ 4,929,099
Limited-life preferred stock and related surplus.......................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus................................................................... 62,118
Undivided profits and capital reserves.................................... 367,371
Net unrealized holding gains (losses) on available-for-sale securities.... 862
Total equity capital...................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital....... 5,359,950
</TABLE>
2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CITICORP
CITICORP CAPITAL XII
(Exact name of obligor as specified in its charter)
Delaware 13-2614988
Delaware To be applied for
(State of incorporation) (I.R.S. employer identification no.)
399 Park Avenue
New York, New York 10043
(Address of principal executive offices) (Zip Code)
Capital Securities of Citicorp Capital XII
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th
day of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ W. Chris Sponenberg By:/s/ Christopher L. Kaiser
------------------------------ ----------------------------
Assistant Secretary Name: Christopher L. Kaiser
Title: Vice President
citixii.f10
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
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(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by any law,
judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual
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owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon
such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of
the property held or owned by the Corporation, and to sell and
pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
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(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of
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<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to
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receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article Fourth, each holder of Common Stock shall have one vote
in respect of each share of Common Stock held on all matters
voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
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<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation), any
director or the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
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(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of
any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
2
<PAGE>
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 10, 1997 By: /s/ Christopher L. Kaiser
-------------------------
Name: Christopher L. Kaiser
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank
City
in the State of DELAWARE , at the close of business on December 31, 1996.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............. 213,895
Interest-bearing balances....................................... 0
Held-to-maturity securities............................................... 465,818
Available-for-sale securities............................................. 752,297
Federal funds sold........................................................ 95,000
Securities purchased under agreements to resell........................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve 3,582,156
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 89,129
Other real estate owned................................................... 3,520
Investments in unconsolidated subsidiaries and associated companies....... 52
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 4,593
Other assets.............................................................. 114,300
Total assets.............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 3,749,697
Noninterest-bearing.................................. 852,790
Interest-bearing..................................... 2,896,907
Federal funds purchased................................................... 77,825
Securities sold under agreements to repurchase............................ 192,295
Demand notes issued to the U.S. Treasury.................................. 53,526
Trading liabilities....................................................... 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less...................... 714,000
With original maturity of more than one year.................... 43,000
Mortgage indebtedness and obligations under capitalized leases............ 0
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities......................................................... 98,756
Total liabilities ........................................................ 4,929,099
Limited-life preferred stock and related surplus.......................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus................................................................... 62,118
Undivided profits and capital reserves.................................... 367,371
Net unrealized holding gains (losses) on available-for-sale securities.... 862
Total equity capital...................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital....... 5,359,950
</TABLE>
2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CITICORP
CITICORP CAPITAL XIII
(Exact name of obligor as specified in its charter)
Delaware 13-2614988
Delaware To be applied for
(State of incorporation) (I.R.S. employer identification no.)
399 Park Avenue
New York, New York 10043
(Address of principal executive offices) (Zip Code)
Capital Securities of Citicorp Capital XIII
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ W. Chris Sponenberg By:/s/ Christopher L. Kaiser
------------------------------ -----------------------------
Assistant Secretary Name: Christopher L. Kaiser
Title: Vice President
citixiii.f10
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
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(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by any law,
judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual
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owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon
such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of
the property held or owned by the Corporation, and to sell and
pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
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(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to
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receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article Fourth, each holder of Common Stock shall have one vote
in respect of each share of Common Stock held on all matters
voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation), any
director or the entire Board of Directors of the
8
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE>
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
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(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of
any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
2
<PAGE>
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 10, 1997 By: /s/ Christopher L. Kaiser
-------------------------
Name: Christopher L. Kaiser
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank
City
in the State of DELAWARE , at the close of business on December 31, 1996.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............. 213,895
Interest-bearing balances....................................... 0
Held-to-maturity securities............................................... 465,818
Available-for-sale securities............................................. 752,297
Federal funds sold........................................................ 95,000
Securities purchased under agreements to resell........................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve 3,582,156
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 89,129
Other real estate owned................................................... 3,520
Investments in unconsolidated subsidiaries and associated companies....... 52
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 4,593
Other assets.............................................................. 114,300
Total assets.............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 3,749,697
Noninterest-bearing.................................. 852,790
Interest-bearing..................................... 2,896,907
Federal funds purchased................................................... 77,825
Securities sold under agreements to repurchase............................ 192,295
Demand notes issued to the U.S. Treasury.................................. 53,526
Trading liabilities....................................................... 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less...................... 714,000
With original maturity of more than one year.................... 43,000
Mortgage indebtedness and obligations under capitalized leases............ 0
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities......................................................... 98,756
Total liabilities ........................................................ 4,929,099
Limited-life preferred stock and related surplus.......................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus................................................................... 62,118
Undivided profits and capital reserves.................................... 367,371
Net unrealized holding gains (losses) on available-for-sale securities.... 862
Total equity capital...................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital....... 5,359,950
</TABLE>
2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CITICORP
CITICORP CAPITAL XIV
(Exact name of obligor as specified in its charter)
Delaware 13-2614988
Delaware To be applied for
(State of incorporation) (I.R.S. employer identification no.)
399 Park Avenue
New York, New York 10043
(Address of principal executive offices) (Zip Code)
Capital Securities of Citicorp Capital XIV
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ W. Chris Sponenberg By:/s/ Christopher L. Kaiser
------------------------------ ----------------------------
Assistant Secretary Name: Christopher L. Kaiser
Title: Vice President
citixiv.f10
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by any law,
judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual
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owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon
such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of
the property held or owned by the Corporation, and to sell and
pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
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(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to
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receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article Fourth, each holder of Common Stock shall have one vote
in respect of each share of Common Stock held on all matters
voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
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<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation), any
director or the entire Board of Directors of the
8
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE>
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
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(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of
any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 10, 1997 By: /s/ Christopher L. Kaiser
-------------------------
Name: Christopher L. Kaiser
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank
City
in the State of DELAWARE , at the close of business on December 31, 1996.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............. 213,895
Interest-bearing balances....................................... 0
Held-to-maturity securities............................................... 465,818
Available-for-sale securities............................................. 752,297
Federal funds sold........................................................ 95,000
Securities purchased under agreements to resell........................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve 3,582,156
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 89,129
Other real estate owned................................................... 3,520
Investments in unconsolidated subsidiaries and associated companies....... 52
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 4,593
Other assets.............................................................. 114,300
Total assets.............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 3,749,697
Noninterest-bearing.................................. 852,790
Interest-bearing..................................... 2,896,907
Federal funds purchased................................................... 77,825
Securities sold under agreements to repurchase............................ 192,295
Demand notes issued to the U.S. Treasury.................................. 53,526
Trading liabilities....................................................... 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less...................... 714,000
With original maturity of more than one year.................... 43,000
Mortgage indebtedness and obligations under capitalized leases............ 0
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities......................................................... 98,756
Total liabilities ........................................................ 4,929,099
Limited-life preferred stock and related surplus.......................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus................................................................... 62,118
Undivided profits and capital reserves.................................... 367,371
Net unrealized holding gains (losses) on available-for-sale securities.... 862
Total equity capital...................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital....... 5,359,950
</TABLE>
2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CITICORP
(Exact name of obligor as specified in its charter)
Delaware 13-2614988
(State of incorporation) (I.R.S. employer identification no.)
399 Park Avenue
New York, New York 10043
(Address of principal executive offices) (Zip Code)
Guarantee Obligations of Citicorp with respect to
Capital Securities of Citicorp Capital X
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ W. Chris Sponenberg By:/s/ Christopher L. Kaiser
------------------------------ ----------------------------
Assistant Secretary Name: Christopher L. Kaiser
Title: Vice President
citixg.f10
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by any law,
judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon
such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of
the property held or owned by the Corporation, and to sell and
pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
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(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to
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<PAGE>
receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article Fourth, each holder of Common Stock shall have one vote
in respect of each share of Common Stock held on all matters
voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
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<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation), any
director or the entire Board of Directors of the
8
<PAGE>
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE>
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
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(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
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<PAGE>
such business combination, or immediately prior to the consummation of
any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 10, 1997 By: /s/ Christopher L. Kaiser
-------------------------
Name: Christopher L. Kaiser
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank
City
in the State of DELAWARE , at the close of business on December 31, 1996.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............. 213,895
Interest-bearing balances....................................... 0
Held-to-maturity securities............................................... 465,818
Available-for-sale securities............................................. 752,297
Federal funds sold........................................................ 95,000
Securities purchased under agreements to resell........................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve 3,582,156
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 89,129
Other real estate owned................................................... 3,520
Investments in unconsolidated subsidiaries and associated companies....... 52
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 4,593
Other assets.............................................................. 114,300
Total assets.............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 3,749,697
Noninterest-bearing.................................. 852,790
Interest-bearing..................................... 2,896,907
Federal funds purchased................................................... 77,825
Securities sold under agreements to repurchase............................ 192,295
Demand notes issued to the U.S. Treasury.................................. 53,526
Trading liabilities....................................................... 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less...................... 714,000
With original maturity of more than one year.................... 43,000
Mortgage indebtedness and obligations under capitalized leases............ 0
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities......................................................... 98,756
Total liabilities ........................................................ 4,929,099
Limited-life preferred stock and related surplus.......................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus................................................................... 62,118
Undivided profits and capital reserves.................................... 367,371
Net unrealized holding gains (losses) on available-for-sale securities.... 862
Total equity capital...................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital....... 5,359,950
</TABLE>
2
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CITICORP
(Exact name of obligor as specified in its charter)
Delaware 13-2614988
(State of incorporation) (I.R.S. employer identification no.)
399 Park Avenue
New York, New York 10043
(Address of principal executive offices) (Zip Code)
Guarantee Obligations of Citicorp with respect to
Capital Securities of Citicorp Capital XI
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By:/s/ Christopher L. Kaiser
Assistant Secretary Name: Christopher L. Kaiser
Title: Vice President
citixig.f10
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by any law,
judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon
such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of
the property held or owned by the Corporation, and to sell and
pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to
6
<PAGE>
receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article Fourth, each holder of Common Stock shall have one vote
in respect of each share of Common Stock held on all matters
voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
7
<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation), any
director or the entire Board of Directors of the
8
<PAGE>
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE>
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
10
<PAGE>
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
11
<PAGE>
such business combination, or immediately prior to the consummation of
any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
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<PAGE>
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
2
<PAGE>
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 10, 1997 By: /s/ Christopher L. Kaiser
-------------------------
Name: Christopher L. Kaiser
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank
City
in the State of DELAWARE , at the close of business on December 31, 1996.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............. 213,895
Interest-bearing balances....................................... 0
Held-to-maturity securities............................................... 465,818
Available-for-sale securities............................................. 752,297
Federal funds sold........................................................ 95,000
Securities purchased under agreements to resell........................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve 3,582,156
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 89,129
Other real estate owned................................................... 3,520
Investments in unconsolidated subsidiaries and associated companies....... 52
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 4,593
Other assets.............................................................. 114,300
Total assets.............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 3,749,697
Noninterest-bearing.................................. 852,790
Interest-bearing..................................... 2,896,907
Federal funds purchased................................................... 77,825
Securities sold under agreements to repurchase............................ 192,295
Demand notes issued to the U.S. Treasury.................................. 53,526
Trading liabilities....................................................... 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less...................... 714,000
With original maturity of more than one year.................... 43,000
Mortgage indebtedness and obligations under capitalized leases............ 0
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities......................................................... 98,756
Total liabilities ........................................................ 4,929,099
Limited-life preferred stock and related surplus.......................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus................................................................... 62,118
Undivided profits and capital reserves.................................... 367,371
Net unrealized holding gains (losses) on available-for-sale securities.... 862
Total equity capital...................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital....... 5,359,950
</TABLE>
2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CITICORP
(Exact name of obligor as specified in its charter)
Delaware 13-2614988
(State of incorporation) (I.R.S. employer identification no.)
399 Park Avenue
New York, New York 10043
(Address of principal executive offices) (Zip Code)
Guarantee Obligations of Citicorp with respect to
Capital Securities of Citicorp Capital XII
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By:/s/ Christopher L. Kaiser
------------------------------- ----------------------------
Assistant Secretary Name: Christopher L. Kaiser
Title: Vice President
citixiig.f10
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by any law,
judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon
such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of
the property held or owned by the Corporation, and to sell and
pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to
6
<PAGE>
receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article Fourth, each holder of Common Stock shall have one vote
in respect of each share of Common Stock held on all matters
voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
7
<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation), any
director or the entire Board of Directors of the
8
<PAGE>
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE>
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
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<PAGE>
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
11
<PAGE>
such business combination, or immediately prior to the consummation of
any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
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<PAGE>
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 10, 1997 By: /s/ Christopher L. Kaiser
-------------------------
Name: Christopher L. Kaiser
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank
City
in the State of DELAWARE , at the close of business on December 31, 1996.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............. 213,895
Interest-bearing balances....................................... 0
Held-to-maturity securities............................................... 465,818
Available-for-sale securities............................................. 752,297
Federal funds sold........................................................ 95,000
Securities purchased under agreements to resell........................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve 3,582,156
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 89,129
Other real estate owned................................................... 3,520
Investments in unconsolidated subsidiaries and associated companies....... 52
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 4,593
Other assets.............................................................. 114,300
Total assets.............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 3,749,697
Noninterest-bearing.................................. 852,790
Interest-bearing..................................... 2,896,907
Federal funds purchased................................................... 77,825
Securities sold under agreements to repurchase............................ 192,295
Demand notes issued to the U.S. Treasury.................................. 53,526
Trading liabilities....................................................... 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less...................... 714,000
With original maturity of more than one year.................... 43,000
Mortgage indebtedness and obligations under capitalized leases............ 0
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities......................................................... 98,756
Total liabilities ........................................................ 4,929,099
Limited-life preferred stock and related surplus.......................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus................................................................... 62,118
Undivided profits and capital reserves.................................... 367,371
Net unrealized holding gains (losses) on available-for-sale securities.... 862
Total equity capital...................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital....... 5,359,950
</TABLE>
2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CITICORP
(Exact name of obligor as specified in its charter)
Delaware 13-2614988
(State of incorporation) (I.R.S. employer identification no.)
399 Park Avenue
New York, New York 10043
(Address of principal executive offices) (Zip Code)
Guarantee Obligations of Citicorp with respect to
Capital Securities of Citicorp Capital XIII
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ W. Chris Sponenberg By:/s/ Christopher L. Kaiser
------------------------------ ----------------------------
Assistant Secretary Name: Christopher L. Kaiser
Title: Vice President
citix13g.f10
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by any law,
judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon
such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of
the property held or owned by the Corporation, and to sell and
pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to
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<PAGE>
receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article Fourth, each holder of Common Stock shall have one vote
in respect of each share of Common Stock held on all matters
voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
7
<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation), any
director or the entire Board of Directors of the
8
<PAGE>
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE>
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
10
<PAGE>
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
11
<PAGE>
such business combination, or immediately prior to the consummation of
any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 10, 1997 By: /s/ Christopher L. Kaiser
-------------------------
Name: Christopher L. Kaiser
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank
City
in the State of DELAWARE , at the close of business on December 31, 1996.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............. 213,895
Interest-bearing balances....................................... 0
Held-to-maturity securities............................................... 465,818
Available-for-sale securities............................................. 752,297
Federal funds sold........................................................ 95,000
Securities purchased under agreements to resell........................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve 3,582,156
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 89,129
Other real estate owned................................................... 3,520
Investments in unconsolidated subsidiaries and associated companies....... 52
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 4,593
Other assets.............................................................. 114,300
Total assets.............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 3,749,697
Noninterest-bearing.................................. 852,790
Interest-bearing..................................... 2,896,907
Federal funds purchased................................................... 77,825
Securities sold under agreements to repurchase............................ 192,295
Demand notes issued to the U.S. Treasury.................................. 53,526
Trading liabilities....................................................... 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less...................... 714,000
With original maturity of more than one year.................... 43,000
Mortgage indebtedness and obligations under capitalized leases............ 0
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities......................................................... 98,756
Total liabilities ........................................................ 4,929,099
Limited-life preferred stock and related surplus.......................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus................................................................... 62,118
Undivided profits and capital reserves.................................... 367,371
Net unrealized holding gains (losses) on available-for-sale securities.... 862
Total equity capital...................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital....... 5,359,950
</TABLE>
2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CITICORP
(Exact name of obligor as specified in its charter)
Delaware 13-2614988
(State of incorporation) (I.R.S. employer identification no.)
399 Park Avenue
New York, New York 10043
(Address of principal executive offices) (Zip Code)
Guarantee Obligations of Citicorp with respect to
Capital Securities of Citicorp Capital XIV
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ W. Chris Sponenberg By:/s/ Christopher L. Kaiser
------------------------------ ----------------------------
Assistant Secretary Name: Christopher L. Kaiser
Title: Vice President
citix14g.f10
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by any law,
judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon
such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of
the property held or owned by the Corporation, and to sell and
pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to
6
<PAGE>
receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article Fourth, each holder of Common Stock shall have one vote
in respect of each share of Common Stock held on all matters
voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
7
<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation), any
director or the entire Board of Directors of the
8
<PAGE>
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE>
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
10
<PAGE>
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
11
<PAGE>
such business combination, or immediately prior to the consummation of
any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
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<PAGE>
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 10, 1997 By: /s/ Christopher L. Kaiser
-------------------------
Name: Christopher L. Kaiser
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank
City
in the State of DELAWARE , at the close of business on December 31, 1996.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............. 213,895
Interest-bearing balances....................................... 0
Held-to-maturity securities............................................... 465,818
Available-for-sale securities............................................. 752,297
Federal funds sold........................................................ 95,000
Securities purchased under agreements to resell........................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve 3,582,156
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 89,129
Other real estate owned................................................... 3,520
Investments in unconsolidated subsidiaries and associated companies....... 52
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 4,593
Other assets.............................................................. 114,300
Total assets.............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 3,749,697
Noninterest-bearing.................................. 852,790
Interest-bearing..................................... 2,896,907
Federal funds purchased................................................... 77,825
Securities sold under agreements to repurchase............................ 192,295
Demand notes issued to the U.S. Treasury.................................. 53,526
Trading liabilities....................................................... 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less...................... 714,000
With original maturity of more than one year.................... 43,000
Mortgage indebtedness and obligations under capitalized leases............ 0
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities......................................................... 98,756
Total liabilities ........................................................ 4,929,099
Limited-life preferred stock and related surplus.......................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus................................................................... 62,118
Undivided profits and capital reserves.................................... 367,371
Net unrealized holding gains (losses) on available-for-sale securities.... 862
Total equity capital...................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital....... 5,359,950
</TABLE>
2
Exhibit 99(a)
[CITICORP LOGO]
[FORM OF]
LETTER OF TRANSMITTAL
TO TENDER DEPOSITARY SHARES (THE "DEPOSITARY SHARES"),
EACH REPRESENTING A 1/10 INTEREST IN A SHARE OF
_____% ___________________ PREFERRED STOCK (THE "PREFERRED STOCK")
(CUSIP 173034 ________)
OF CITICORP
PURSUANT TO THE OFFER BY CITICORP AND CITICORP CAPITAL __ (THE "OFFER")
TO EXCHANGE THE ____% TRUST ORIGINATED PREFERRED SECURITIES (SM)
OF CITICORP CAPITAL ___ ("CAPITAL SECURITIES") FOR UP TO _____________
DEPOSITARY SHARES
- --------------------------------------------------------------------------------
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME, ON APRIL __, 1997, UNLESS
THE OFFER IS EXTENDED (THE "EXPIRATION DATE").
- --------------------------------------------------------------------------------
THE EXCHANGE AGENT FOR THE OFFER IS:
CITIBANK, N.A.
BY MAIL (REGISTERED OR CERTIFIED
BY HAND: MAIL RECOMMENDED):
Citibank, N.A. Citibank, N.A.
Corporate Agency & Trust Services c/o Citicorp Data Distribution, Inc.
111 Wall Street, 5th Floor P.O. Box 7069
New York, New York 10043 Paramus, New Jersey 07653
BY OVERNIGHT COURIER:
Citibank, N.A.
c/o Citicorp Data Distribution, Inc.
404 Sette Drive
Paramus, New Jersey 07652
BY FACSIMILE:
(For Eligible Institutions Only)
(201) 262-3240
CONFIRM RECEIPT OF LETTER OF TRANSMITTAL BY TELEPHONE:
(800) 422-2077
Georgeson & Company Inc. has been retained as the Information Agent to assist in
connection with the Offer. Requests for assistance regarding completion of this
Letter of Transmittal may be directed to the Information
________
(sm) "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
<PAGE>
Agent as follows: Georgeson & Company Inc., Wall Street Plaza, New York, New
York 10005, (800) 223- 2064 (Toll-Free), Banks and Brokers (212) 440-9800
(Collect).
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
Subject to the terms and conditions set forth in the Prospectus (as
defined below) and herein, Citicorp Capital __ (the "Trust") will accept for
exchange up to an aggregate of _____________ (the "Maximum Number") Depositary
Shares validly tendered and not withdrawn. If more than the Maximum Number of
Depositary Shares are validly tendered for exchange pursuant to the Offer and
not withdrawn prior to the Expiration Date, the Trust will accept such shares on
a pro rata basis, with adjustments to avoid delivery of fractional Capital
Securities.
Concurrently with the Offer, certain other business trust subsidiaries
with Citicorp (together with the Trust, the "Trusts") are offering to exchange
their Trust Originated Preferred Securities(sm) for depositary shares
representing interests in other series of preferred stock of Citicorp. This
Letter of Transmittal relates only to the Offer by Citicorp Capital __.
The Depositary Shares are evidenced by depositary receipts ("Depositary
Receipts") issued by Citibank, N.A., as depositary (the "Depositary"), against
deposit of all of the shares of Preferred Stock, pursuant to the Deposit
Agreement, dated as of ___________ (the "Deposit Agreement"), among Citicorp,
the Depositary and the holders from time to time of the Depositary Receipts.
This Letter of Transmittal is to be completed by holders of Depositary
Shares, either if Depositary Receipts are to be forwarded herewith or, unless an
Agent's Message (as defined in the accompanying Prospectus of Citicorp and the
Trusts (as amended or supplemented (including documents incorporated by
reference) from time to time to the Expiration Date, the "Prospectus")) is
utilized, if tenders of Depositary Shares are to be made by book-entry transfer
into the account of Citibank, N.A., as Exchange Agent (the "Exchange Agent"), at
The Depository Trust Company ("DTC") pursuant to the procedures described under
"The Offers--Procedures for Tendering" in the Prospectus. Holders of Depositary
Shares who tender Depositary Shares by book-entry transfer are referred to
herein as "Book-Entry Shareholders."
Any holder of Depositary Shares who submits this Letter of Transmittal and
tenders Depositary Shares in accordance with the instructions contained herein
prior to the Expiration Date will thereby have directed the Exchange Agent to
transfer such Depositary Shares to or for the account of the Trust in accordance
with the terms of the Deposit Agreement and directed the Trust to deliver its
Capital Securities in exchange for such holder's Depositary Shares and in
consideration of the deposit by Citicorp with the Trust as trust assets of its
____% Junior Subordinated Deferrable Interest Debentures due 2027, as set forth
in the Prospectus. Tenders of Depositary Shares pursuant to this Letter of
Transmittal are subject to withdrawal as described in the Prospectus under the
caption "The Offers--Withdrawal of Tenders."
________
(sm) "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
-2-
<PAGE>
- --------------------------------------------------------------------------------
DESCRIPTION OF DEPOSITARY SHARES BEING TENDERED
- --------------------------------------------------------------------------------
DEPOSITARY RECEIPTS REPRESENTING DEPOSITARY
SHARES TENDERED (ATTACH ADDITIONAL SIGNED LIST IF
NECESSARY)
- --------------------------------------------------------------------------------
TOTAL NUMBER OF
NAME(S) AND ADDRESS(ES) OF DEPOSITARY SHARES NUMBER OF
REGISTERED HOLDER(S) (PLEASE FILL DEPOSITARY REPRESENTED BY DEPOSITARY
IN EXACTLY AS NAME(S) APPEAR(S) ON RECEIPT DEPOSITARY SHARES
CERTIFICATE(S) NUMBER(S) RECEIPT(S)* TENDERED**
- --------------------------------------------------------------------------------
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
- --------------------------------------------------------------------------------
TOTAL SHARES
- --------------------------------------------------------------------------------
* Need not be completed by shareholders tendering by book-entry transfer.
** Unless otherwise indicated, the holder will be deemed to have tendered the
full number of Depositary Shares evidenced by the tendered Depositary
Receipts. See Instruction 4.
- --------------------------------------------------------------------------------
[_] CHECK HERE IF TENDERED DEPOSITARY SHARES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER TO THE EXCHANGE AGENT'S ACCOUNT AT DTC AND COMPLETE THE
FOLLOWING:
Name of Tendering Institution_____________________________________________
Account No._______________________________________________________________
Transaction Code No.______________________________________________________
[_] CHECK HERE IF TENDERED DEPOSITARY SHARES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Tendering Shareholder(s)_______________________________________
Date of Execution of Notice of Guaranteed Delivery________________________
Name of Institution which Guaranteed Delivery_____________________________
IF DELIVERY IS BY BOOK-ENTRY TRANSFER AT DTC:
Name of Tendering Institution_____________________________________________
Account No._______________________________________________________________
Transaction Code No.______________________________________________________
- --------------------------------------------------------------------------------
-3-
<PAGE>
- --------------------------------------------------------------------------------
SOLICITED TENDERS
(SEE INSTRUCTION 11)
Citicorp will pay to any Soliciting Dealer, as defined in Instruction 11,
a solicitation fee of $____ per Depositary Share ($____ per Depositary Share
with respect to solicitation of beneficial holders of 10,000 shares or more)
validly tendered and accepted for exchange pursuant to the Offer (as herein
defined).
The undersigned represents that the Soliciting Dealer which solicited and
obtained this tender is:
Name of Firm:___________________________________________________________________
(Please print)
Name of Individual Broker or Financial Consultant:______________________________
Identification Number (if known):_______________________________________________
Address:________________________________________________________________________
(Include zip code)
The acceptance of compensation by such Soliciting Dealer will constitute a
representation by it that: (i) it has complied with the applicable requirements
of the Securities Exchange Act of 1934 and the applicable rules and regulations
thereunder in connection with such solicitations; (ii) it is entitled to such
compensation for such solicitation under the terms and conditions of the Offer
(unless the undersigned is not being compensated for such solicitation); (iii)
in soliciting tenders of Depositary Shares, it has used no soliciting materials
other than those furnished by Citicorp and the Trust; and (iv) if it is a
foreign broker or dealer not eligible for membership in the National Association
of Securities Dealers, Inc. (the "NASD"), it has agreed to conform to the NASD's
Rules of Fair Practice in making solicitations outside the United States to the
same extent as though it were an NASD member.
If tendered Depositary Shares are being delivered by book-entry transfer
made to an account maintained by the Exchange Agent with DTC, the Soliciting
Dealer must return a Notice of Solicited Tenders to the Exchange Agent to
receive a solicitation fee.
SOLICITING DEALERS ARE NOT ENTITLED TO A FEE FOR DEPOSITARY SHARES
BENEFICIALLY OWNED BY SUCH SOLICITING DEALER.
- --------------------------------------------------------------------------------
-4-
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Citicorp Capital __, a Delaware
statutory business trust, the Depositary Shares, each representing a 1/10
interest in a share of ____% ____________ Preferred Stock, Series __, of
Citicorp, pursuant to the Offer by the Trust to exchange its ____% Trust
Originated Preferred Securities(sm) for up to the Maximum Number of Depositary
Shares, upon the terms and subject to the conditions set forth in the
Prospectus, receipt of which is hereby acknowledged, and in this Letter of
Transmittal (which, together with the Prospectus, constitute the "Offer").
Subject to and effective upon acceptance for exchange of the Depositary
Shares tendered herewith, the undersigned hereby exchanges, assigns and
transfers to or upon the order of the Trust all right, title and interest in and
to all the Depositary Shares that are being tendered hereby and irrevocably
constitutes and appoints the Exchange Agent the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Depositary Shares, with
full power of substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest), to (a) deliver Depositary Receipts
representing such Depositary Shares or transfer ownership of such Depositary
Shares on the account books maintained by DTC, together, in any such case, with
all accompanying evidences of transfer and authenticity, to the Exchange Agent
for the account of the Trust, (b) present such Depositary Receipts for transfer
on the books of the Depository and (c) receive all benefits and otherwise
exercise all rights of beneficial ownership of the Shares, all in accordance
with the terms of the Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, assign and transfer the Depositary
Shares tendered hereby and to acquire the Capital Securities issuable upon the
exchange of such tendered Depositary Shares and that, when the undersigned's
Depositary Shares are accepted for exchange, the Trust will acquire good and
unencumbered title to such tendered Depositary Shares, free and clear of all
liens, restrictions, charges and encumbrances and not subject to any adverse
claim. The undersigned will, upon request, execute and deliver any additional
documents deemed by the Trust to be necessary or desirable to complete the
exchange, assignment and transfer of tendered Depositary Receipts or Depositary
Shares on the account books of DTC or transfer ownership thereof.
All authority herein conferred or agreed to be conferred shall survive the
death, bankruptcy or incapacity of the undersigned and every obligation of the
undersigned hereunder shall be binding upon the heirs, legal representatives,
successors, assigns, executors and administrators of the undersigned. Except as
stated in the Offer, this tender is irrevocable.
The undersigned understands that tenders of Depositary Shares pursuant to
any one of the procedures described in "The Offers--Procedures for Tendering" in
the Prospectus and in the instructions hereto will constitute agreements between
the undersigned, the Trust and Citicorp upon the terms and subject to the
conditions of the Offer.
The undersigned understands that if more than the Maximum Number of
Depositary Shares are validly tendered and not withdrawn in accordance with the
Offer, Depositary Shares so tendered and not withdrawn will be accepted on a pro
rata basis as described in the Prospectus.
________
(sm) "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
-5-
<PAGE>
The undersigned understands that, upon acceptance by the Trust of the
Depositary Shares tendered hereby, the undersigned will be deemed to have waived
all rights with respect to any dividends which accrue on the Preferred Stock
underlying the Depositary Shares on or after the Expiration Date.
Unless otherwise indicted under "Special Exchange Instructions," please
cause Capital Securities to be issued, and return any Depositary Receipts
evidencing Depositary Shares not tendered or not accepted for exchange, in the
name(s) of the undersigned (and, in the case of Depositary Shares tendered by
book-entry transfer, by credit to the account at DTC). Similarly, unless
otherwise indicated under "Special Delivery Instructions," please mail any
Depositary Receipts evidencing Depositary Shares not tendered or not accepted
for exchange (and accompanying documents, as appropriate) to the undersigned at
the address shown below the undersigned's signature(s). If both "Special
Exchange Instructions" and "Special Delivery Instructions" are completed, please
cause Capital Securities to be issued, and return any Depositary Receipts
evidencing Depositary Shares not tendered or not accepted for exchange, in the
name(s) of, and deliver them to, the person(s) so indicated (and in the case of
Depositary Shares tendered by book-entry transfer, by credit to the account at
DTC). The undersigned recognizes that the Trust has no obligation, pursuant to
the "Special Exchange Instructions," to transfer any Depositary Receipts from
the name of the registered holder(s) thereof if the Trust does not accept for
exchange any of the related Depositary Shares so tendered.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF DEPOSITARY
SHARES BEING TENDERED," ABOVE, AND SIGNING THIS LETTER OF TRANSMITTAL, WILL BE
DEEMED TO HAVE TENDERED THE DEPOSITARY SHARES AS SET FORTH IN SUCH BOX ABOVE.
-6-
<PAGE>
- --------------------------------------------------------------------------------
SPECIAL EXCHANGE INSTRUCTIONS (SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for Capital Securities, or Depositary
Receipts evidencing Depositary Shares not tendered or not accepted for exchange,
are to be issued to a person other than the person(s) signing this Letter of
Transmittal.
Issue
[_] Certificates for Capital Securities and/or
[_] Depositary Receipts evidencing Depositary Shares
to:
Name _________________________________________________________________
Address _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number ______________________________________
Tax Identification or Social Security Number ____________________________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 7)
To be completed ONLY if certificates for Capital Securities, or Depositary
Receipts evidencing Depositary Shares not tendered or not accepted for exchange,
are to be mailed to someone other than the person(s) signing this Letter of
Transmittal or to the person(s) signing this Letter of Transmittal an address
other than that shown above.
Mail
[_] Certificates for Capital Securities
[_] Depositary Receipts evidencing Depositary Shares
to:
Name _________________________________________________________________
Address _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number ______________________________________
Tax Identification or Social Security Number ____________________________
- --------------------------------------------------------------------------------
-7-
<PAGE>
- --------------------------------------------------------------------------------
HOLDER(S) OF DEPOSITARY SHARES SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 BELOW)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
Depositary Receipts or on a security position listing or by person(s) authorized
to become registered holder(s) by certificates and documents transmitted
herewith. If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, please set forth full title and see Instruction 5.
X_______________________________________________________________________________
X_______________________________________________________________________________
SIGNATURE(S) OF OWNER(S)
Dated: _________________________, 1997
Name(s)_________________________________________________________________________
(PLEASE PRINT)
Capacity (full title)
Address_________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No._____________________________________________________
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature____________________________________________________________
Dated: _________________________, 1997
Name(s)_________________________________________________________________________
(PLEASE PRINT)
Capacity (full title)___________________________________________________________
Name of Firm____________________________________________________________________
Address_________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No._____________________________________________________
- --------------------------------------------------------------------------------
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<PAGE>
IMPORTANT: THIS LETTER OR A FACSIMILE HEREOF (TOGETHER WITH THE DEPOSITARY
RECEIPTS OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED
DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY OR A TELEGRAM, TELEX OR FACSIMILE
THEREOF MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
To complete the Letter of Transmittal, you must do the following:
-- Fill in the box entitled "Description of Depositary Shares Being
Tendered" and the two subsequent boxes, if applicable.
-- Sign and date the Letter of Transmittal in the box entitled
"Holder(s) of Depositary Shares Sign Here."
-- Fill in and sign in the box entitled "Substitute Form W-9"
In completing the Letter of Transmittal, you may (but are not required to)
also do the following:
-- If you want certificates for Capital Securities, or Depositary
Receipts evidencing Depositary Shares not tendered or not accepted
for exchange, to be issued in the name of a third party, complete
the box entitled "Special Exchange Instructions."
-- If you want certificates for Capital Securities, or Depositary
Receipts evidencing Depositary Shares not tendered or not accepted
for exchange, to be mailed to a third party, or to be delivered to
an address other than that appearing under your signature, complete
the box entitled "Special Delivery Instructions."
If you complete the box entitled "Special Exchange Instructions" or
"Special Delivery Instructions," you must have your signature guaranteed by an
Eligible Institution (as defined in Instruction 1 below) unless the Letter of
Transmittal is signed by an Eligible Institution.
1. GUARANTEE OF SIGNATURES.
No signature guarantee is required on this Letter of Transmittal if (i) if
Depositary Receipts are registered in the name(s) of the undersigned and
the Capital Securities to be issued in exchange therefor are to be issued
(and any Depositary Receipts evidencing Depositary Shares not tendered or
not accepted for exchange are to be returned) in the name of the
registered holder(s) (which term, for the purposes described herein, shall
include any participant in DTC whose name appears on a security listing as
the owner of Depositary Shares) and (ii) such holder(s) have not completed
the instruction entitled "Special Exchange Instructions" or "Special
Delivery Instructions" on this Letter of Transmittal. If the Depositary
Receipts are registered in the name(s) of someone other than the
undersigned or if the Capital Securities to be issued in exchange therefor
are to be issued (or Depositary Receipts evidencing Depositary Shares not
tendered or not accepted for exchange are to be returned) in the name of
any other person, Depositary Receipts must be endorsed or accompanied by
written instruments of transfer in form satisfactory to the Trust and duly
executed by the registered holder, and the signature on the endorsement or
instrument of transfer must be guaranteed by a financial institution
(including most banks, savings and loan associations and brokerage houses)
-9-
<PAGE>
that is a participant in the Security Transfer Agents Medallion Program or
the Stock Exchange Medallion Program (any of the foregoing hereinafter
referred to as an "Eligible Institution"). See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND DEPOSITARY SHARES.
This Letter of Transmittal is to be completed by holders of Depositary
Shares either if Depositary Receipts are to be forwarded herewith or,
unless an Agent's Message (as defined in the Prospectus) is utilized, if
tenders are to be made pursuant to the procedure for tender by book-entry
transfer set forth under "The Offers--Procedures for Tendering" in the
Prospectus. Depositary Receipts or timely confirmation (a "Book-Entry
Confirmation") of a book-entry transfer of Depositary Shares into the
Exchange Agent's account at DTC, as well as this Letter of Transmittal (or
a facsimile hereof), properly completed and duly executed, with any
required signature guarantees, or an Agent's Message in the case of a
book-entry delivery, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at one of its
addresses set forth herein prior to the Expiration Date.
If a holder of Depositary Shares desires to participate in the Offer and
time will not permit this Letter of Transmittal or Depositary Receipts to
reach the Exchange Agent before the Expiration Date or the procedure for
book-entry transfer cannot be completed on a timely basis, a tender may be
effected if the Exchange Agent has received at one of the addresses set
forth herein prior to the Expiration Date, a letter, telegram or facsimile
transmission from an Eligible Institution setting forth the name and
address of the tendering holder, the name(s) in which the Depositary
Shares are registered and, if the Depositary Shares are held in
certificated form, the numbers of the Depositary Receipts to be tendered,
and stating that the tender is being made thereby and guaranteeing that
within three New York Stock Exchange ("NYSE") trading days after the date
of execution of such letter, telegram or facsimile transmission by the
Eligible Institution, the Depositary Receipts in proper form for transfer
together with a properly completed and duly executed Letter of Transmittal
(and any other required documents), or a confirmation of book-entry
transfer of such Depositary Shares into the Exchange Agent's account at
DTC, will be delivered by such Eligible Institution. Unless the Depositary
Receipts being tendered by the above-described method are deposited with
the Exchange Agent within the time period set forth above (accompanied or
preceded by a properly completed Letter of Transmittal and any other
required documents) or a confirmation of book-entry transfer of Depositary
Shares into the Exchange Agent's account at DTC in accordance with DTC's
Automated Tender Offer Program ("ATOP") procedures is received, the Trust
may, at its option, reject the tender.
THE METHOD OF DELIVERY OF DEPOSITARY SHARES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH DTC, IS AT THE OPTION AND RISK OF
THE TENDERING SHAREHOLDER. IF DEPOSITARY RECEIPTS ARE SENT BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE
TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted, and no
fractional Depositary Shares will be accepted for exchange. By executing
this Letter of Transmittal (or facsimile hereof), the tendering holder
waives any right to receive any notice of the acceptance of the Depositary
Shares for exchange.
3. INADEQUATE SPACE.
If the space provided herein is inadequate, the certificate numbers of the
Depositary Receipts and/or the number of Depositary Shares should be
listed on a separate signed schedule attached hereto.
-10-
<PAGE>
4. PARTIAL TENDERS (NOT APPLICABLE TO BOOK-ENTRY TRANSFERS).
If fewer than all the Depositary Shares evidenced by any Depositary
Receipt delivered to the Exchange Agent are to be tendered, fill in the
number of Depositary Shares which are to be tendered in the box entitled
"Number of Shares Tendered." In such case, a new Depositary Receipt for
the remainder of the Depositary Shares evidenced by the old Depositary
Receipt will be sent to the person(s) signing this Letter of Transmittal,
unless otherwise provided in the appropriate box on this Letter of
Transmittal, as promptly as practicable following the Expiration Date. All
Depositary Shares evidenced by Depositary Receipts delivered to the
Exchange Agent will be deemed to have been tendered unless otherwise
indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered holder(s) of the
Depositary Shares tendered hereby, the signature(s) must correspond with
the name(s) as written on the face of the Depositary Receipt without
alteration, enlargement or any change whatsoever.
If any of the Depositary Shares tendered hereby are held of record by two
or more persons, all such persons must sign this Letter of Transmittal.
If any of the Depositary Shares tendered hereby are registered in
different names on different Depositary Receipts, it will be necessary to
complete, sign and submit as many separate Letters of Transmittal as there
are different registrations of Depositary Receipts.
If this Letter of Transmittal is signed by the registered holder(s) of the
Depositary Shares tendered hereby, no endorsements of Depositary Receipts
or separate stock powers are required unless Capital Securities issued in
exchange therefor are to be issued, or Depositary Receipts representing
Depositary Shares not tendered or not exchanged are to be returned, in the
name of any person other than the registered holder(s). Signatures on any
such Depositary Receipts or stock powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Depositary Shares tendered hereby (including
any participant in DTC whose name appears on a security listing as the
owner of the Depositary Shares), Depositary Receipts must be endorsed or
accompanied by appropriate stock powers, in either case, signed exactly as
the name(s) of the registered holder(s) appear(s) on the Depositary
Receipts. Signature(s) on any such certificates or stock powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificate or stock power is signed
by a trustee, executor, administrator, guardian, attorney-in-fact, officer
of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to the Trust of the authority of such person so to act must
be submitted.
6. STOCK TRANSFER TAXES AND OTHER CHARGES.
Citicorp will pay all stock transfer taxes and charges of the Depository,
if any, applicable to the exchange of any Depositary Shares pursuant to
the Offer. If, however, certificates representing Capital Securities or
Depositary Receipts evidencing Depositary Shares not tendered or accepted
for exchange are to be delivered to, or are to be issued in the name of,
any person other than the registered holder of the Depositary Shares
tendered or if a transfer tax is imposed for any reason other than the
exchange of Depositary Shares pursuant to the Offer, then the amount of
any such transfer taxes (whether imposed
-11-
<PAGE>
on the registered holder or any other persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with this Letter of Transmittal, the
amount of such transfer taxes will be billed directly to such tendering
holder.
7. SPECIAL EXCHANGE AND DELIVERY INSTRUCTIONS.
If certificates representing Capital Securities are to be issued in the
name of, or any Depositary Receipts representing Depositary Shares not
tendered or not accepted for exchange are to be issued or to be returned
to, a person other than the person(s) signing this Letter of Transmittal
or any certificates for Capital Securities or Depositary Receipts
representing Depositary Shares not tendered or not accepted for exchange
are to be mailed to someone other than the person(s) signing this Letter
of Transmittal or to the person(s) signing this Letter of Transmittal at
an address other than that shown above, the appropriate boxes on this
Letter of Transmittal should be completed.
8. TAX CERTIFICATION.
Federal income tax law requires that a tendering holder whose Depositary
Shares are being exchanged must furnish his or her correct Taxpayer
Identification Number ("TIN"), which, in the case of an individual, is his
or her social security number or individual taxpayer identification
number. If a holder does not furnish the correct TIN or an adequate basis
for exemption, such holder will be subject to a $50 penalty imposed by the
Internal Revenue Service (the "IRS") unless such failure to provide such
TIN is due to reasonable cause and not to willful neglect. In addition,
the redemption price may be subject to backup withholding in an amount
equal to 31% of the redemption price. If withholding results in an
overpayment of taxes, a refund may be obtained.
Exempt holders (including, among others, all corporations and certain
foreign persons) are not subject to these backup withholding and reporting
requirements. See the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 (the "W-9 Guidelines") for
additional instructions.
To prevent backup withholding, each tendering holder whose Depositary
Shares are being tendered must provide his or her correct TIN by
completing the "Substitute Form W-9" set forth herein, certifying that the
TIN provided is correct (or that such holder is awaiting a TIN) and (i)
the holder is exempt from backup withholding, (ii) the holder has not been
notified by the IRS that he or she is subject to backup withholding as a
result of a failure to report all interest or dividends or (iii) the IRS
has notified the holder that he or she is no longer subject to backup
withholding. In order to satisfy Citicorp or its agent that a foreign
person qualifies as an exempt recipient, such holder must submit a
statement signed under penalty of perjury attesting to such exempt status.
Such statements may be obtained from the Exchange Agent.
If the Depositary Shares are in more than one name or are not in the name
of the actual owner, consult the W-9 Guidelines for information on which
TIN to report. If you do not have a TIN, consult the W-9 Guidelines for
instructions on applying for TIN, write "applied for" in lieu of your TIN
in Part I of the Substitute Form W-9, and sign and date the form. If you
do not provide your TIN on a Substitute Form W-9 to the Exchange Agent
prior to the exchange, backup withholding at the rate of 31% may be
applied to the proceeds distributed to you.
9. WAIVER OF CONDITIONS.
The conditions of the Offer may be waived by the Trust from time to time
in accordance with, and subject to the limitations described in, the
Prospectus, provided that acceptance of Depositary Shares
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<PAGE>
validly tendered in the Offer is subject to the condition that as of the
Expiration Date sufficient Depositary Shares shall have been tendered such
that, upon exchange of Capital Securities for the Depositary Shares, there
will be at least 400 record or beneficial holders of at least 1,000,000
Capital Securities to be issued in exchange for such Depositary Shares,
which condition may not be waived.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Requests for assistance or additional copies of the Prospectus and this
Letter of Transmittal may be obtained from the Information Agent, the
Dealer Managers or the Exchange Agent at their respective addresses or
telephone numbers set forth below.
11. SOLICITED TENDERS.
Citicorp will pay to a Soliciting Dealer (as defined herein) a
solicitation fee of ____ per Depositary Share ($____ per Depositary Share
with respect to the solicitation of beneficial holders of 10,000 or more
Depositary Shares) validly tendered and accepted for exchange pursuant to
the Offer. For purposes of this Instruction 11, "Soliciting Dealer"
includes (i) any broker or dealer in securities, including the Dealer
Managers in their capacity as dealers or brokers, who is a member of any
national securities exchange or of the National Association of Securities
Dealers, Inc. (the "NASD"), (ii) any foreign broker or dealer not eligible
for membership in the NASD who agrees to conform to the NASD's Rules of
Fair Practice in soliciting tenders outside the United States to the same
extent as though it were an NASD member, or (iii) any bank or trust
company, any one of whom has solicited and obtained a tender pursuant to
the offer. No such fee shall be payable to a Soliciting Dealer in respect
of Depositary Shares registered in the name of such Soliciting Dealer
unless such Depositary Shares are held by such Soliciting Dealer as
nominee and such Depositary Shares are being tendered for the benefit of
one or more beneficial owners identified on the Letter of Transmittal or
on the Notice of Solicited Tenders (included in the materials provided to
brokers and dealers). No solicitation fee shall be payable to a Soliciting
Dealer with respect to the tender of Depositary Shares unless the Letter
of Transmittal accompanying such tender designates such Soliciting Dealer
as such in the box captioned "Solicited Tenders."
If depositary receipts representing tendered Depositary Shares are being
delivered by book-entry transfer made to an account maintained by the
Exchange Agent with DTC, the Soliciting Dealer must return a Notice of
Solicited Tenders to the Exchange Agent within three NYSE trading days
after the Expiration Date in order to receive a solicitation fee. No
solicitation fee shall be payable to a Soliciting Dealer in respect of
Depositary Shares (i) beneficially owned by such Soliciting Dealer or (ii)
registered in the name of such Soliciting Dealer unless such Depositary
Shares are held by such Soliciting Dealer as nominee and such Depositary
Shares are being tendered for the benefit of one or more beneficial owners
identified on the Letter of Transmittal or the Notice of Solicited
Tenders. No solicitation fee shall be payable to the Soliciting Dealer
with respect to the tender of Depositary Shares by the holder of record,
for the benefit of the beneficial owner, unless the beneficial owner has
designated such Soliciting Dealer.
12. LOST, STOLEN OR DESTROYED DEPOSITARY RECEIPTS.
Any holder of Depositary Shares whose Depositary Receipt(s) for such
shares have been lost, stolen or destroyed should contact either the
Exchange Agent or the Information Agent at their respective addresses
shown on the back page of this Letter of Transmittal for special
instructions.
13. IRREGULARITIES.
All questions as to the number of Depositary Shares to be accepted, the
validity, form, eligibility (including time of receipt) and acceptance of
any tender of Depositary Shares will be determined by the Trust, in its
sole discretion, which determination shall be final and binding. The Trust
reserves the
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<PAGE>
absolute right to reject any or all tenders made pursuant to the Offer
determined by it not to be in appropriate form or the acceptance of or
payment for any Depositary Shares which would, in the opinion of the
Trust's counsel, be unlawful. The Trust also reserves the absolute right
to waive any of the conditions set forth in the Offer (other than the
Minimum Distribution Condition, as defined in the Prospectus) or any
defect or irregularity in any tender with respect to any particular
Depositary Shares or any particular shareholder, and the Trust's
interpretation of the terms and conditions of the Offer (including these
instructions) will be final and binding. Tenders will not be deemed to
have been made until all defects and irregularities have been cured or
waived prior to the Expiration Date or such times as the Trust shall
determine. Neither the Trust, the Exchange Agent, the Information Agent,
the Dealer Managers nor any other person will be obligated to give notice
of defects or irregularities in tenders, nor shall any of them incur any
liability for failure to give any such notice.
14. ORDER IN WHICH DEPOSITARY SHARES WILL BE ACCEPTED (NOT APPLICABLE TO
BOOK-ENTRY TRANSFERS).
In the event of proration, the Depositary Shares in the box captioned
"Description of Depositary Shares Being Tendered" will be accepted in the
order in which the Depositary Receipts for such Depositary Shares are
listed. Tendering holders who wish to have Depositary Shares accepted in a
specific order in the event of proration should list the Depositary
Receipts representing such Depositary Shares in the desired order in such
box.
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<PAGE>
SUBSTITUTE FORM W-9
PAYOR'S NAME: CITICORP
(See "Tax Certification" in Notice of Redemption)
================================================================================
PART I - Taxpayer Identification ------------- _________________________________
Number ("TIN") | | Name (if joint names, list first
------------- and circle the name of the person
PLEASE PROVIDE YOUR TIN IN THE or entity whose number you enter
BOX TO THE RIGHT AND CERTIFY BY in Part I)
SIGNING AND DATING BELOW.
PART II - For Payees Exempt from _________________________________
Backup Withholding Business Name
If you are an exempt recipient, _________________________________
you should complete this form to Address (number and street)
avoid possible erroneous backup -------------
withholding. Enter your correct | |
TIN in Part I, write "Exempt" in -------------
the box to the right, sign and _________________________________
date the form. City, State and Zip Code
_________________________________
Social Security or Employer
Identification Number
- --------------------------------------------------------------------------------
SUBSTITUTE CERTIFICATION - Under the penalties of perjury,
FORM W-9 I certify that:
Department of the Treasury (1) the number shown on this form is my correct
Internal Revenue Service taxpayer identification number (or I am
waiting for a number to be issued to me),
Payer's Request for Taxpayer and
Identification Number (TIN) (2) I am not subject to backup withholding
either because: (a) I am exempt from backup
withholding, or (b) I have not been
notified by the Internal Revenue Service
(the "IRS") that I am subject to backup
withholding as a result of a failure to
report all interest or dividends, or (c)
the IRS has notified me that I am no longer
subject to backup withholding.
CERTIFICATION INSTRUCTIONS - You must cross out
item (2) above if you have been notified by the
IRS that you are currently subject to backup
withholding because of under reporting of
interest or dividends on your tax return.
_________________________ ____________________
Signature Date
================================================================================
-15-
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER OF SUBSTITUTE FORM W-9
The Taxpayer Identification Number ("TIN") provided in the Substitute Form W-9
should be that of the holder of the Notes.
For a joint account, only that person whose TIN is furnished should sign the
Substitute Form W-9.
OBTAINING A NUMBER
If you don't have a TIN or you don't know your number, obtain Form SS-5,
Application for a Social Security Number Card, or Form SS-4, Application for
Employer Identification Number, at the local office of the Social Security
Administration or the Internal Revenue Service and apply for a number.
Note: Writing "Applied for" on the form means that you have already applied for
a TIN OR that you intend to apply for one in the near future.
As soon as you receive your TIN, complete another Form W-9, include your TIN,
sign and date the form and give it to the requester.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
The following is a list of payees exempt from backup withholding and for which
no information reporting is required. For purposes of this transaction, only
payees listed in (1) through (13), and a person registered under the Investment
Advisers Act of 1940 who regularly acts as a broker are exempt.
(1) A corporation.
(2) An organization exemption from tax under section 501(a), or an individual
retirement plan (IRA), or a custodial account under section 403(b)(7).
(3) The United States or any of its agencies or instrumentalities.
(4) A State, the District of Columbia, a possession of the United States, or
any of their political subdivisions, or instrumentalities.
(5) A foreign government or any of its political subdivisions, agencies or
instrumentalities.
(6) An international organization or any of its agencies or instrumentalities.
(7) A foreign central bank of issue.
(8) A dealer in securities or commodities required to register in the U.S. or
a possession of the U.S.
(9) A futures commission merchant registered with the Commodity Futures
Trading Commission.
(10) A real estate investment trust.
(11) An entity registered at all times during the tax year under the Investment
Company Act of 1940.
(12) A common trust fund operated by a bank under section 584(a).
(13) A financial institution.
(14) A middleman known in the investment community as a nominee or listed in
the most recent publications of the American Society of Corporate
Secretaries, Inc., Nominee List.
(15) A trust exempt from tax under section 664 or described in section 4947.
If you are a nonresident alien or a foreign entity not subject to backup
withholding, give the payer a completed Form W-8 Certificate of Foreign Status.
(1) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING -- If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(2) CRIMINAL PENALTY FOR FALSIFYING INFORMATION -- Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
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<PAGE>
THE INFORMATION AGENT FOR THE OFFER IS:
[GEORGESON & COMPANY INC. LOGO]
Wall Street Plaza
New York, New York 10005
(800) 223-2064 (Toll-Free)
Banks and Brokers Call Collect:
(212) 440-9800
THE DEALER MANAGERS FOR THE OFFER ARE:
MERRILL LYNCH & CO.
World Financial Center
North Tower -- Seventh Floor
New York, New York 10281
(888) ML4-TNDR (Toll-Free)
(888) 654-8637 (Toll-Free)
Attn: Susan L. Weinberg
SMITH BARNEY INC. PRUDENTIAL SECURITIES INC.
390 Greenwich Street -- Fifth Floor One New York Plaza -- Fifteenth Floor
New York, New York 10013 New York, New York 10292
(800) 655-4811 (Toll-Free) (800) 778-2241 (Toll-Free)
Attn: Paul S. Galant Attn: Martin Oring
THE EXCHANGE AGENT FOR THE OFFER IS:
CITIBANK, N.A.
Corporate Agency & Trust Services
111 Wall Street, 5th Floor
New York, New York 10043
(800) 422-2077 (Toll-Free)
March __, 1997
-17-
[CITICORP LOGO]
[FORM OF]
NOTICE OF GUARANTEED DELIVERY
This form, or a form substantially equivalent to this form, must be used
to tender pursuant to the Offer (as defined below) if (i) depositary receipts
for depositary shares (the "Depositary Shares"), each representing a 1/10
interest in a share of ____% ________________ Preferred Stock, Series __, of
Citicorp, cannot be delivered to the Exchange Agent by the Expiration Date (as
defined in the Prospectus of Citicorp, Citicorp Capital __ and certain other
business trusts affiliated with Citicorp dated _____________, 1997 (the
"Prospectus")), (ii) the procedure for book-entry transfer of depositary
receipts for Depositary Shares (as set forth in the Prospectus) cannot be
completed by the Expiration Date or (iii) the Letter of Transmittal (or a
facsimile thereof) and all other required documents cannot be delivered to the
Exchange Agent prior to the Expiration. This form, properly completed and duly
executed, may be delivered by hand, facsimile transmission or mail to the
Exchange Agent. See "The Offers --Procedures for Tendering" in the Prospectus.
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME, ON APRIL __, 1997,
UNLESS THE OFFER IS EXTENDED.
THE EXCHANGE AGENT FOR THE OFFER IS:
CITIBANK, N.A.
BY MAIL (REGISTERED OR CERTIFIED
BY HAND: MAIL RECOMMENDED):
Citibank, N.A. Citibank, N.A.
Corporate Agency & Trust Services c/o Citicorp Data Distribution, Inc.
111 Wall Street, 5th Floor P.O. Box 7069
New York, New York 10043 Paramus, New Jersey 07653
BY OVERNIGHT COURIER:
Citibank, N.A.
c/o Citicorp Data Distribution, Inc.
404 Sette Drive
Paramus, New Jersey 07652
BY FACSIMILE:
(For Eligible Institutions Only)
(201) 262-3240
CONFIRM RECEIPT OF NOTICE OF GUARANTEED DELIVERY BY TELEPHONE:
(800) 422-2077
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Citicorp Capital __ (the "Trust"), upon
the terms and subject to the conditions set forth in the Prospectus and the
related Letter of Transmittal (which together constitute the "Offer"), receipt
of which is hereby acknowledged, depositary receipts for the number of
Depositary Shares set forth below, pursuant to the guaranteed delivery procedure
set forth in the Prospectus. By so tendering, the undersigned hereby
acknowledges that he or she has received and reviewed such Prospectus and Letter
of Transmittal and understands the matters described therein and does make, at
and as of the date hereof, the representations and warranties of a tendering
holder of Depositary Shares as set forth in such Letter of Transmittal.
Number of Depositary
Shares Tendered:_______________________________________________________________
Certificate Nos. (if available):_______________________________________________
[_] Check if the depositary receipts for the Depositary Shares will be
tendered by book-entry transfer effected by The Depository Trust Company.
Name of
Tendering Institution:_________________________________________________________
DTC Account Number:____________________________________________________________
SIGN HERE
X______________________________________________________________________
X______________________________________________________________________
(Signature(s))
________________________________________________________________________________
________________________________________________________________________________
(Name(s)) (Please print)
________________________________________________________________________________
(Address(es))
________________________________________________________________________________
(City, state and zip code)
________________________________________________________________________________
(Area code and telephone number)
THE FOLLOWING GUARANTEE MUST BE COMPLETED
-2-
<PAGE>
GUARANTEE OF DELIVERY
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker, government securities dealer; (iii) a credit
union; (iv) a national securities exchange, register securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of the foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at one of its addresses set forth above, either the depositary
receipts for Depositary Shares tendered hereby in proper form for transfer, or
confirmation of the book-entry transfer of such depositary receipts to the
Exchange Agent's account at The Depositary Trust Company ("DTC"), pursuant to
the procedures for book-entry transfer set forth in the Prospectus, in either
case together with one or more properly completed and duly executed Letters of
Transmittal (or facsimiles thereof), with any required signature guarantees (or
an Agent's Message (as defined in the Prospectus) and any other required
documents within three New York Stock Exchange trading days after the date of
execution of this Notice.
The undersigned acknowledges that it must deliver the Letters of
Transmittal and the depositary receipts tendered hereby to the Exchange Agent
within the time period set forth above and that failure to do so could result in
a financial loss to the undersigned.
Name of Firm _________________________ Authorized Signature __________________
Address ______________________________ Name __________________________________
(Please type or print)
______________________________________
(City, State and Zip Code) Title _________________________________
Telephone Number _____________________ Date _________________________________
DO NOT SEND DEPOSITARY RECEIPTS FOR DEPOSITARY SHARES WITH THIS NOTICE OF
GUARANTEED DELIVERY. DEPOSITARY RECEIPTS FOR DEPOSITARY SHARES SHOULD BE SENT
WITH YOUR LETTER OF TRANSMITTAL.
-3-
Exhibit 99(c)
[CITICORP LOGO]
CITICORP CAPITAL __
OFFER TO EXCHANGE ITS
____% TRUST ORIGINATED PREFERRED SECURITIES(sm)1 ("TOPRS(sm)")
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY, FULLY AND UNCONDITIONALLY
GUARANTEED BY CITICORP TO THE EXTENT SET FORTH IN THE PROSPECTUS)
FOR UP TO _____________ OUTSTANDING DEPOSITARY SHARES,
EACH REPRESENTING A 1/10 INTEREST IN A SHARE OF
____% ___________ PREFERRED STOCK, SERIES __, OF CITICORP
(CUSIP 173034 _____)
- --------------------------------------------------------------------------------
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME, ON APRIL __, 1997,
UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
March __, 1997
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by Citicorp, a Delaware corporation, and Citicorp
Capital __, a Delaware statutory business trust (the "Trust"), to act as Dealer
Managers in connection with the offer by the Trust to exchange, upon the terms
and subject to the conditions set forth in the Prospectus referred to below and
the related Letter of Transmittal (which together constitute the "Offer"), its
____% Trust Originated Preferred Securities(sm) ("TOPrS(sm)") (the "Capital
Securities") for up to an aggregate of ____________ (the "Maximum Number")
depositary shares (the "Depositary Shares"), each representing a 1/10 interest
in a share of ____% __________ Preferred Stock, Series __, of Citicorp, not
owned by Citicorp, that are validly tendered and accepted for exchange pursuant
to the Offer.
Concurrently with the Offer, certain other business trusts affiliated with
Citicorp are offering to exchange their Trust Originated Preferred
Securities(sm) for depositary shares representing interests in other series of
preferred stock of Citicorp. This letter relates only to the Offer by Citicorp
Capital __.
Pursuant to the Offer, exchanges will be made on the basis of one Capital
Security for each Depositary Share validly tendered and accepted for exchange in
the Offer. The Trust will accept for exchange all Depositary Shares validly
tendered and not withdrawn, up to the Maximum Number, upon the terms and subject
to the conditions of the Offer described in the Prospectus dated _____________,
1997 (the "Prospectus"). If more than the Maximum Number of Depositary Shares
are validly tendered for exchange pursuant to the Offer and not
withdrawn prior to the Expiration Date, the Trust will accept such shares on a
pro rata basis. Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Prospectus.
For your information and for forwarding to your clients for whom you hold
Depositary Shares registered in your name or in the name of your nominee, we are
enclosing the following documents:
________
(sm) "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
<PAGE>
1. Prospectus;
2. Letter of Transmittal for your use and for the information of your
clients, together with Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 providing information relating to backup federal
income tax withholding;
3. Notice of Guaranteed Delivery to be used to accept the Offer if the
depositary receipts for the Depositary Shares and all other required documents
cannot be delivered to the Exchange Agent by the Expiration Date, or the
book-entry transfer of the depositary receipts for the Depositary Shares cannot
be completed by the Expiration Date;
4. A form of letter that may be sent to your clients for whose accounts
you hold Depositary Shares registered in your name or in the name of your
nominee, with space provided for obtaining such clients' instructions and
designation of Soliciting Dealer with regard to the Offer;
5. A letter from an executive officer of Citicorp to holders of Depositary
Shares that may be sent to your clients;
6. A Question and Answer pamphlet that may be sent to your clients; and
7. A return envelope addressed to Citibank, N.A., the Exchange Agent.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE.
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00
P.M., NEW YORK CITY TIME, ON APRIL __, 1997, UNLESS THE OFFER IS EXTENDED.
NONE OF CITICORP, THE BOARD OF DIRECTORS OF CITICORP, THE TRUSTEES OF THE
TRUST OR THE TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF DEPOSITARY SHARES AS
TO WHETHER TO TENDER OR REFRAIN FROM TENDERING IN THE OFFER. HOLDERS OF
DEPOSITARY SHARES ARE URGED TO CONSULT THEIR FINANCIAL AND TAX ADVISORS IN
MAKING THEIR DECISIONS ON WHAT ACTION TO TAKE IN LIGHT OF THEIR OWN PARTICULAR
CIRCUMSTANCES.
Citicorp will pay a solicitation fee of $____ per Depositary Share ($____
per Depositary Share with respect to solicitation of beneficial holders of
10,000 or more shares) for any Depositary Shares validly tendered and accepted
for exchange and exchanged pursuant to the Offer and covered by a Letter of
Transmittal which designates, as having solicited and obtained the tender, the
name of (i) any broker or dealer in securities, including the Dealer Managers in
their capacity as brokers or dealers, which is a member of any national
securities exchange or of the National Association of Securities Dealers, Inc.
(the "NASD"), (ii) any foreign broker or dealer not eligible for membership in
the NASD which agrees to conform to the NASD's Rules of Fair Practice in
soliciting tenders outside the United States to the same extent as though it
were an NASD member, or (iii) any bank or trust company (each of which is
referred to herein as a "Soliciting Dealer"). No solicitation fee shall be
payable to a Soliciting Dealer with respect to the tender of Depositary Shares
by a holder unless the Letter of Transmittal accompanying such tender designates
such Soliciting Dealer as such in the box captioned "Solicited Tenders."
Soliciting Dealers will include any of the organizations described in
clauses (i), (ii) and (iii) above even when the activities of such organizations
in connection with the Offer consist solely of forwarding to clients materials
relating to the Offer, including the Prospectus and Letter of Transmittal, and
tendering depositary receipts for Depositary Shares as directed by beneficial
owners thereof. No Soliciting Dealer is required to make any recommendation to
holders of Depositary Shares as to whether to tender or refrain from tendering
in the Offer. No assumption is made, in making payment to any Soliciting Dealer,
that its activities in connection with the Offer included any activities other
than those described above, and for all purposes noted in all materials relating
to the Offer, the term "solicit" shall be deemed to mean no more than
"processing depositary receipts for Depositary Shares tendered" and "forwarding
to customers materials regarding the Offer."
-2-
<PAGE>
If depositary receipts for tendered Depositary Shares are being delivered
by book-entry transfer made to an account maintained by the Exchange Agent with
The Depository Trust Company, the Soliciting Dealer must return a Notice of
Solicited Tenders to the Exchange Agent within three New York Stock Exchange
trading days after the Expiration Date in order to receive a solicitation fee.
Such Notice of Solicited Tenders is attached hereto on page 4. No solicitation
fee shall be payable to a Soliciting Dealer in respect of Depositary Shares (i)
beneficially owned by such Soliciting Dealer or (ii) registered in the name of
such Soliciting Dealer unless such Depositary Shares are held by such Soliciting
Dealer as nominee and such Depositary Shares are being tendered for the benefit
of one or more beneficial owners identified on the Letter of Transmittal or the
Notice of Solicited Tenders. No solicitation fee shall be payable to the
Soliciting Dealer with respect to the tender of Depositary Shares by the holder
of record, for the benefit of the beneficial owner, unless the beneficial owner
has designated such Soliciting Dealer.
No solicitation fee shall be payable to a Soliciting Dealer if such
Soliciting Dealer is required for any reason to transfer any portion of such fee
to a tendering holder (other than itself). No broker, dealer, bank, trust
company or fiduciary shall be deemed to be the agent of Citicorp, the Trust, the
Trustees, the Exchange Agent, the Information Agent or the Dealer Managers for
purposes of the Offer.
Citicorp will, upon request, reimburse brokers, dealers, commercial banks
and trust companies for reasonable and necessary costs and expenses incurred by
them in forwarding materials to their customers. Citicorp will pay all stock
transfer taxes applicable to the acceptance of Depositary Shares pursuant to the
Offer, subject to Instruction 6 of the Letter of Transmittal.
Soliciting Dealers should take care to ensure proper record-keeping to
document their entitlement to any solicitation fee.
Any inquiries you may have with respect to the Offer should be addressed
to, and additional copies of the enclosed materials may be obtained from, the
Information Agent or the undersigned at the addresses and telephone numbers set
forth below.
Concurrently with the Offer, certain other business trusts affiliated with
Citicorp are offering to exchange their Trust Originated Preferred
Securities(sm)2 for depositary shares representing interests in other series of
preferred stock of Citicorp. This letter relates only to the Offer by Citicorp
Capital __.
Very truly yours,
MERRILL LYNCH & CO.
SMITH BARNEY INC.
PRUDENTIAL SECURITIES INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
THE AGENT OF CITICORP, THE TRUST, THE TRUSTEES OF THE TRUST, THE DEALER
MANAGERS, THE INFORMATION AGENT OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY
OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM
IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE
STATEMENTS CONTAINED THEREIN.
________
(sm) "Trust Originated Preferred Securities" is a service mark of Merrill Lynch
& Co.
-3-
<PAGE>
CITICORP CAPITAL __
NOTICE OF SOLICITED TENDERS
List below the number of Depositary Shares whose tender you have
solicited. All Depositary Shares beneficially owned by a beneficial owner,
whether in one account or several, and in however many capacities, must be
aggregated for purposes of completing the tables below. Any questions as to what
constitutes beneficial ownership should be directed to the Exchange Agent. If
the space below is inadequate, list the Depositary Shares on a separate signed
schedule and affix the list to this Notice of Solicited Tenders. PLEASE DO NOT
COMPLETE THE SECTIONS OF THE TABLE HEADED "TO BE COMPLETED ONLY BY EXCHANGE
AGENT."
ALL NOTICES OF SOLICITED TENDERS SHOULD BE RETURNED TO THE EXCHANGE AGENT
WITHIN THREE NYSE TRADING DAYS AFTER THE EXPIRATION DATE AT THE ADDRESS SET
FORTH BELOW. ALL QUESTIONS CONCERNING THE NOTICES OF SOLICITED TENDERS SHOULD BE
DIRECTED TO THE INFORMATION AGENT AT THE TELEPHONE NUMBER SET FORTH BELOW.
NOTICE MAY BE FAXED TO THE EXCHANGE AGENT AT (____) _________, CONFIRMATION
NUMBER ______________. ENCLOSE ADDITIONAL PAGES AS NEEDED.
BENEFICIAL HOLDERS OF FEWER THAN 10,000 DEPOSITARY SHARES
- --------------------------------------------------------------------------------
TENDER SHARES
- --------------------------------------------------------------------------------
NUMBER OF DTC
SHARES PARTICIPANT
BENEFICIAL OWNERS TENDERED VOI NUMBER* NUMBER
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Beneficial Owner No. 1
- --------------------------------------------------------------------------------
Beneficial Owner No. 2
- --------------------------------------------------------------------------------
Beneficial Owner No. 3
- --------------------------------------------------------------------------------
Beneficial Owner No. 4
- --------------------------------------------------------------------------------
Beneficial Owner No. 5
- --------------------------------------------------------------------------------
Beneficial Owner No. 6
- --------------------------------------------------------------------------------
Beneficial Owner No. 7
- --------------------------------------------------------------------------------
Beneficial Owner No. 8
- --------------------------------------------------------------------------------
Beneficial Owner No. 9
- --------------------------------------------------------------------------------
Beneficial Owner No. 10
- --------------------------------------------------------------------------------
Total
- --------------------------------------------------------------------------------
BENEFICIAL HOLDERS OF 10,000 OR MORE DEPOSITARY SHARES
- --------------------------------------------------------------------------------
TENDER SHARES
- --------------------------------------------------------------------------------
NUMBER OF DTC
SHARES PARTICIPANT
BENEFICIAL OWNERS TENDERED VOI NUMBER NUMBER
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Beneficial Owner No. 1
- --------------------------------------------------------------------------------
Beneficial Owner No. 2
- --------------------------------------------------------------------------------
Beneficial Owner No. 3
- --------------------------------------------------------------------------------
Beneficial Owner No. 4
- --------------------------------------------------------------------------------
Beneficial Owner No. 5
- --------------------------------------------------------------------------------
Beneficial Owner No. 6
- --------------------------------------------------------------------------------
Beneficial Owner No. 7
- --------------------------------------------------------------------------------
Beneficial Owner No. 8
- --------------------------------------------------------------------------------
Beneficial Owner No. 9
- --------------------------------------------------------------------------------
-4-
<PAGE>
- --------------------------------------------------------------------------------
TENDER SHARES
- --------------------------------------------------------------------------------
NUMBER OF DTC
SHARES PARTICIPANT
BENEFICIAL OWNERS TENDERED VOI NUMBER NUMBER
- --------------------------------------------------------------------------------
Beneficial Owner No. 10
- --------------------------------------------------------------------------------
Total
- --------------------------------------------------------------------------------
All questions as to the validity, form and eligibility (including time of
receipt) of Notices of Solicited Tenders will be determined by the Exchange
Agent, in its sole discretion, which determination will be final and binding.
Neither the Exchange Agent nor any other person will be under any duty to give
notification of any defects or irregularities in any Notice of Solicited Tenders
or incur any liability for failure to give such notification.
The undersigned hereby confirms that: (i) it has complied with the
applicable requirements of the Securities Exchange Act of 1934, and the
applicable rules and regulations thereunder, in connection with such
solicitation; (ii) it is entitled to such compensation for such solicitation
under the terms and conditions of the Prospectus (unless the undersigned is not
being compensated for such solicitation); (iii) in soliciting tenders of
Depositary Shares, it has used no soliciting materials other than those
furnished by Citicorp or the Trust; and (iv) if it is a foreign broker or dealer
not eligible for membership in the NASD, it has agreed to conform to the NASD's
Rules of Fair Practice in making solicitations outside the United States to the
same extent as though it were an NASD member.
______________________________ ___________________________________
Print Firm Name Address
______________________________ ___________________________________
Authorized Signature City, State, Zip Code
______________________________ ___________________________________
Area Code and Telephone Number Attention
DO NOT SEND DEPOSITARY RECEIPTS FOR DEPOSITARY SHARES WITH THIS FORM. YOUR
DEPOSITARY RECEIPTS FOR DEPOSITARY SHARES MUST BE SENT WITH THE LETTER OF
TRANSMITTAL.
- --------------------------------------------------------------------------------
SOLICITATION FEE PAYMENT INSTRUCTIONS
Issue Check to:
Name ___________________________________________________________________
(Please Print)
Address ___________________________________________________________________
___________________________________________________________________
(City, State, Zip Code)
Taxpayer Identification No. (or Social Security No.)__________________________
- --------------------------------------------------------------------------------
-5-
<PAGE>
THE INFORMATION AGENT FOR THE OFFER IS:
[GEORGESON & COMPANY INC. LOGO]
Wall Street Plaza
New York, New York 10005
(800) 223-2064 (Toll-Free)
Banks and Brokers Call Collect:
(212) 440-9800
THE DEALER MANAGERS FOR THE OFFER ARE:
MERRILL LYNCH & CO.
World Financial Center
North Tower -- Seventh Floor
New York, New York 10281
(888) ML4-TNDR (Toll-Free)
(888) 654-8637 (Toll-Free)
Attn: Susan L. Weinberg
SMITH BARNEY INC. PRUDENTIAL SECURITIES INC.
390 Greenwich Street - Fifth Floor One New York Plaza - Fifteenth Floor
New York, New York 10013 New York, New York 10292
(800) 655-4811 (Toll-Free) (800) 778-2241(Toll-Free)
Attn: Paul S. Galant Attn: Martin Oring
THE EXCHANGE AGENT FOR THE OFFER IS:
CITIBANK, N.A.
BY HAND: BY MAIL (REGISTERED OR CERTIFIED MAIL
RECOMMENDED):
Citibank, N.A. Citibank, N.A.
Corporate Agency & Trust Services c/o Citicorp Data Distribution, Inc.
111 Wall Street, 5th Floor P.O. Box 7069
New York, New York 10043 Paramus, New Jersey 07653
BY OVERNIGHT COURIER:
Citibank, N.A.
c/o Citicorp Data Distribution, Inc.
404 Sette Drive
Paramus, New Jersey 07652
BY FACSIMILE:
(For Eligible Institutions Only)
(201) 262-3240
CONFIRM RECEIPT OF NOTICE OF GUARANTEED DELIVERY BY TELEPHONE:
(800) 422-2077
-6-
Exhibit 99(d)
CITICORP CAPITAL __
OFFER TO EXCHANGE ITS
_____% TRUST ORIGINATED PREFERRED SECURITIES(sm)1 ("TOPRS(sm)")
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY, FULLY AND UNCONDITIONALLY
GUARANTEED BY CITICORP TO THE EXTENT SET FORTH IN THE PROSPECTUS)
FOR UP TO ____________ OUTSTANDING DEPOSITARY SHARES,
EACH REPRESENTING A 1/10 INTEREST IN A SHARE OF
______% _____________ PREFERRED STOCK, SERIES __, OF CITICORP
(CUSIP 173034 _______)
-------------------------------------------------------------
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME, ON APRIL __, 1997,
UNLESS THE OFFER IS EXTENDED.
-------------------------------------------------------------
March __, 1997
To Our Clients:
Enclosed for your consideration are the Prospectus dated ______________,
1997 (the "Prospectus") and the related Letter of Transmittal (which together
constitute the "Offer") in connection with the Offer by Citicorp Capital __, a
Delaware statutory business trust (the "Trust"), to exchange its ____% Trust
Originated Preferred Securities(sm) ("TOPrS(sm)") (the "Capital Securities") for
up to an aggregate of _______________ (the "Maximum Number") depositary shares
(the "Depositary Shares"), each representing a 1/10 interest in a share of
______% ____________ Preferred Stock, Series __, of Citicorp, a Delaware
corporation, not owned by Citicorp, that are validly tendered and accepted for
exchange pursuant to the Offer. In connection with the Offer, Citicorp will
deposit in the Trust as trust assets its _____% Junior Subordinated Deferrable
Interest Debentures due 2027, as set forth in the Prospectus. Capitalized terms
used herein without definition shall have the meanings ascribed to them in the
Prospectus.
Concurrently with the Offer, certain other business trusts affiliated with
Citicorp are offering to exchange their Trust Originated Preferred
Securities(sm) for depositary shares representing interests in other series of
preferred stock of Citicorp. This letter relates only to the Offer by Citicorp
Capital __.
Pursuant to the Offer, exchanges will be made on the basis of one Capital
Security for each Depositary Share validly tendered and accepted for exchange in
the Offer. The Trust will accept for exchange, up to the Maximum Number of
Depositary Shares validly tendered and not withdrawn, upon the terms and subject
to the conditions of the Offer. If more than the Maximum Number of Depositary
Shares are validly tendered for exchange pursuant to the Offer and not withdrawn
prior to the Expiration Date, the Trust will accept such shares on a pro rata
basis.
We are the holder of record of Depositary Shares held for your account. A
tender of such Depositary Shares can be made only by us as the holder of record
and pursuant to your instructions. The Letter of Transmittal is furnished to you
for your information only and cannot be used by you to tender Depositary Shares
held by us for your account.
We request instructions as to whether you wish us to tender any or all of
the Depositary Shares held by us for your account, upon the terms and subject to
the conditions set forth in the Prospectus and the Letter of Transmittal. We
also request that you designate, in the box captioned "Soliciting Tenders," any
Soliciting Dealer who solicited your tender of Depositary Shares.
Your attention is called to the following:
________
(sm) "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
<PAGE>
1. The Offer, Proration Period and withdrawal rights expire at 5:00
P.M., New York City time, on April __, 1997, unless the Offer is extended
(such date and time, the "Expiration Date"). Tenders may be withdrawn at
any time prior to the Expiration Date and, unless previously accepted for
exchange by the Trust, at any time after the expiration of 40 Business
Days from the date of the Prospectus.
2. Consummation of the Offer is conditioned on, among other things,
tenders by a sufficient number of holders of Depositary Shares as of the
Expiration Date such that, upon exchange of Capital Securities for the
Depositary Shares, there be at least 400 record or beneficial holders of
at least 1,000,000 Capital Securities to be issued in exchange for such
Depositary Shares (the "Minimum Distribution Condition"), which condition
may not be waived.
3. The Trust expressly reserves the right, in its sole discretion,
subject to applicable law, to (i) terminate the Offer and not accept for
exchange any Depositary Shares and promptly return all Depositary Shares
upon the failure of any of the conditions specified above and in "The
Offers -- Conditions to the Offers" in the Prospectus, (ii) waive any
condition to the Offer (other than the Minimum Distribution Condition) and
accept up to the Maximum Number of Depositary Shares previously tendered
pursuant to the Offer, (iii) extend the Expiration Date of the Offer and
retain all Depositary Shares tendered pursuant to such offer until the
Expiration Date, subject, however, to all withdrawal rights of holders,
see "The Offers -- Withdrawal of Tenders" in the Prospectus, (iv) amend
the terms of the Offer, (v) modify the form of the consideration to be
paid pursuant to the Offer, or (vi) not accept for exchange Depositary
Shares at any time on or prior to the Expiration Date, for any reason. Any
amendment applicable to the Offer will apply to all Depositary Shares
tendered pursuant to the Offer. The minimum period during which the Offer
must remain open following material changes in the terms of the Offer or
the information concerning the Offer, other than a decrease in the amount
of Depositary Shares sought for exchange or a change in the amount or form
of consideration (for which the minimum period is ten Business Days),
depends upon the facts and circumstances, including the materiality of the
change or information. See "The Offers -- Expiration Date; Extensions;
Amendments; Termination" in the Prospectus.
4. Tendering shareholders will not pay brokerage fees or
commissions, solicitation fees or, subject to Instruction 6 of the Letter
of Transmittal, any stock transfer taxes applicable to the exchange of
Depositary Shares pursuant to the Offer.
Please note that a Question and Answer pamphlet regarding the Offer and
the Capital Securities is enclosed for your information.
If you wish to have us tender any or all of your Depositary Shares, please
so instruct us by completing, executing, detaching and returning to us the
instruction form on the detachable part hereof. An envelope to return your
instructions to us is enclosed. If you authorize tender of your Depositary
Shares, all such Depositary Shares will be tendered unless otherwise specified
on the detachable part hereof. Your instructions should be forwarded to us in
ample time to permit us to submit a tender on your behalf by the Expiration
Date.
THE OFFER IS NOT BEING MADE TO, NOR WILL TENDERS BE ACCEPTED FROM OR ON
BEHALF OF, HOLDERS OF DEPOSITARY SHARES IN ANY JURISDICTION IN WHICH THE MAKING
OF THE OFFER OR ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF
SUCH JURISDICTION. IN THOSE JURISDICTIONS THE LAWS OF WHICH REQUIRE THAT THE
OFFER BE MADE BY A LICENSED BROKER OR DEALER, THE OFFER SHALL BE DEEMED TO BE
MADE ON BEHALF OF THE TRUST BY MERRILL LYNCH & CO., SMITH BARNEY INC.,
PRUDENTIAL SECURITIES INC. OR ONE OR MORE REGISTERED BROKERS OR DEALERS LICENSED
UNDER THE LAWS OF SUCH JURISDICTION.
-2-
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER
BY CITICORP CAPITAL
- --------------------------------------------------------------------------------
The undersigned acknowledges receipt of your letter and the enclosed
Prospectus dated _____________, 1997 and the Letter of Transmittal in connection
with the Offer by the Trust to exchange its Capital Securities for up to the
Maximum Number of Depositary Shares of Citicorp that are validly tendered and
accepted for exchange. Pursuant to the Offer, exchanges will be made on the
basis of one Capital Security for each Depositary Share validly tendered and
accepted for exchange in the Offer. If more than the Maximum Number of
Depositary Shares are validly tendered for exchange pursuant to the Offer and
not withdrawn prior to the Expiration Date, the Trust will accept such shares on
a pro rata basis.
This will instruct you to tender the number of Depositary Shares indicated
below held by you for the account of the undersigned, upon the terms and subject
to the conditions set forth in the Prospectus and the Letter of Transmittal.
[_] By checking this box, all Depositary Shares held by you for our account,
including fractional shares, will be tendered in the Offer. If fewer than
all Depositary Shares are to be tendered, we have checked the box below
and indicated the aggregate number of Depositary Shares to be tendered by
you for our account.
[_] _________________________ shares*
_________
* Unless otherwise indicated, it will be assumed that all Depositary Shares
held by us for your account are to be tendered.
SIGN HERE
Signature(s): ______________________________________________________________
Name(s): ___________________________________________________________________
Address: ___________________________________________________________________
Social Security or Taxpayer ID No.:__________________________________________
- --------------------------------------------------------------------------------
(SEE OTHER SIDE)
-3-
<PAGE>
PLEASE DESIGNATE IN THE BOX BELOW ANY SOLICITING DEALER
WHO SOLICITED YOUR TENDER.
- --------------------------------------------------------------------------------
SOLICITED TENDERS
The undersigned represents that the Soliciting Dealer who solicited and
obtained this tender is:
Name of Firm:____________________________________________________________
(Please print)
Name of Individual Broker
or Financial Consultant: _______________________________________________
Identification Number (if known): ______________________________________
Address: _______________________________________________________________
_________________________________________________________________________
(Include zip code)
SIGN HERE
X_____________________________ _________________________________
X_____________________________ _________________________________
Signature(s) Print name(s) and address(es) here
Dated: ________________, 1997
- --------------------------------------------------------------------------------
-4-
EXCHANGE AGENT AGREEMENT
Citibank, N.A.
120 Wall Street, 13th Floor
New York, NY 10043
Attention: Corporate Trust Department
Dear Sirs:
Citicorp, a Delaware Corporation and Citicorp Capital X, Citicorp Capital XI,
Citicorp Capital XII, Citicorp Capital XIII, and Citicorp XIV, each a Delaware
statutory business trust (the "Trusts"), hereby respectively offer to exchange
the Trust Originated Preferred Securities of such Trust, for up to the Maximum
Number of the Depositary Shares (the "Shares"), each representing an interest in
a share of Citicorp's Preferred Stock, Series 16, Series 17, Series 20, Series
21 and Series 22, respectively, upon the terms and subject to the conditions set
forth in the Prospectus and the accompanying Letters of Transmittal ("LTs"),
including the instructions set forth therein (which together with the Prospectus
constitute the "Offers"). Definitive copies of each document being distributed
to stockholders of Citicorp in connection with the Offer have been previously
delivered to you.
Each Offer is commencing March , 1997 and will expire at 5:00 P.M., New York
City time, on April , 1997 unless extended by the Trust as provided in the Offer
(the last date to which an Offer is extended and on which it expires is herein
referred to as such offer's "Expiration Date").
This will confirm our agreement with you to act as the Exchange Agent in
connection with the Offers. In such capacity you will receive and make the
exchange for, on behalf of Citicorp and the Trusts, Shares tendered pursuant to
the terms of the Offers. In carrying out your duties as the Exchange Agent in
connection with each Offer, you are to act in accordance with the following
instructions:
1. You are directed to perform any of your duties hereunder by or through
Citicorp Data Distribution, Inc., a Delaware corporation ("CDDI"), and
you agree that any of your duties hereunder that relate to the final
acceptance of tendered Shares shall be performed by CDDI in the State of
New Jersey and shall not be performed by you as Exchange Agent.
2. You shall examine the LTs, the certificates for Shares and the other
documents delivered or mailed to you in connection with tenders of Shares
to ascertain whether they are completed and executed in accordance with
the instructions set forth in the LTs. In the event any LT has been
improperly completed or executed, or the certificates for Shares
accompanying such LT are not in proper form for transfer (as required by
the aforesaid instructions), or if some other apparent irregularity in
connection with any tender of Shares exists, you shall take such steps as
you deem necessary, which may include contacting Citicorp or other
entities party to the Offer, in order to correct such irregularity.
Determination of all questions as to the validity, form, eligibility
(including timeliness of receipt) and acceptance of any Shares tendered
or delivered shall be determined by you on behalf of Citicorp and the
Trust in the first instance, but final decisions on all such matters
shall be made by Citicorp and the Trust. Citicorp and the Trust will
reserve in the
<PAGE>
Offer the absolute right to reject any or all tenders of any particular
Shares determined by them not to be in proper form or the acceptance of
or exchange for which may, in the opinion of Citicorp's counsel, be
unlawful and to waive any of the conditions of the Offer or any defect or
irregularity in the tender of any particular Shares, and Citicorp's
interpretation of the terms and conditions of the Offer will be final.
3. You shall in accordance with Rule 17Ad-14 promulgated under the
Securities Exchange Act of 1934, as amended, and the terms and conditions
of the Offer establish accounts with respect to the Shares at The
Depository Trust Company ("DTC"), or the Philadelphia Depository Trust
Company ("PDTC"), sometimes referred to collectively as "Book Entry
Transfer Facilities", within two business days after the date of the
Prospectus. Any financial institution that is a participant in any of the
Book Entry Transfer Facilities may make book-entry delivery of the Shares
by causing the facility to transfer such Shares into the appropriate
account in accordance with its procedure for transfer. The accounts shall
be maintained until all Shares tendered pursuant to the Offer shall have
been either accepted for payment or returned.
4. All Shares must be tendered in accordance with the terms and conditions
set forth in the Offer. Exchange for Shares tendered and accepted
pursuant to the Offer shall be made only after deposit with you of the
certificates therefor (or confirmation of book-entry transfer of the
Shares into the appropriate account), the LT(s) and any other required
documents identified in the schedule attached hereto.
5. A tendering stockholder may withdraw Shares tendered as set forth in the
Prospectus,in which event you shall, as promptly as possible after
notification of such withdrawal, return such Shares to, or in accordance
with the instruction of, such stockholder and such Shares shall no longer
be considered properly tendered. All questions as to the form and
validity of notices of withdrawal, including timeliness of receipt, shall
be determined by Citicorp and the Trust, in their sole discretion, which
determination shall be final and binding.
6. On each business day up to and including the Expiration Date you shall
advise by telephone, not later than 5:00 p.m., New York City time,
________________________________ and such other persons, not to exceed
three, as either of them may direct, of the number of Shares which have
been duly tendered on such day, stating separately the number of such
Shares tendered by book-entry delivery, by Guarantees of Delivery, the
number of Shares tendered about which you have questions concerning
validity and the cumulative number of Shares tendered through the time of
such call. Promptly thereafter (by the next day), you shall confirm such
advice to each of the above persons in writing, to be transmitted by
telecopier, pouch or other form of delivery mutually agreed upon. You
shall also inform the aforementioned persons, and such other persons as
may be designated by either of them upon request made from time to time,
of such other information as either of them may request, including,
without limitation, the names and addresses of registered holders of
tendered Shares.
7. LTs or letters, facsimile transmissions, telexes or telegrams submitted
in lieu thereof shall be stamped by you as of the date and time of
receipt thereof and preserved by you as permanent records until you are
otherwise instructed by Citicorp. You are to match Guarantees of Delivery
submitted with the Shares tendered pursuant thereto. If so instructed by
Citicorp, you shall contact any Eligible Institutions by telephone if
necessary,
2
<PAGE>
which have tendered a significant number of Shares by means of the
aforementioned procedures to ascertain information in connection
therewith.
8. Citicorp and the Trusts will notify you of any extension or amendment of
any Offer.
9. You shall follow and act upon any written amendments, modifications or
supplements to these instructions, and upon any further written
instructions in connection with the Offer, any of which may be given to
you by the Citicorp or such other Persons as it may authorize in writing,
all of the above to be effective only after delivery of such items to you
and acceptance by you.
10. Citicorp will from time to time (as mutually agreed upon by Citicorp and
you) deposit or cause to be deposited with you, as agent for Soliciting
Dealers, an amount equal to the aggregate amount of solicitation fees
needed.You, as agent, will notify Citicorp by 4:00 P.M. EST on the day
prior to the release of checks of the amount to be deposited in order to
cover the checks as referenced above.
11. You shall comply with all the requirements of the Internal Revenue Code
of 1986, as amended and the Regulations promulgated thereunder
(collectively, the "federal income tax laws"), with respect to obtaining
and retaining all documents required to be so obtained and/or retained by
you with respect to tendered Shares which Citicorp and the Trusts have
accepted for exchange, including, without limitation, the obtaining and
retaining of substitute forms W 9. You shall also, pursuant to
Instruction 8 of the LTs, withhold any applicable back-up withholding
required to be so withheld and remit such withheld funds to the Internal
Revenue Service on a timely basis.
12. If, pursuant to the Provisions of Instruction 4 of the LTs, fewer than
all the Shares evidenced by any certificate submitted to you are to be
tendered, you shall, promptly after the Expiration Date, issue and
deliver or cause to be issued and delivered a new certificate for the
amount of shares not being tendered, registered in the same name as the
partially tendered certificate, or in another name in accordance with the
appropriate transfer instructions of the stockholder who has made the
partial tender of Shares deposited with you.
13. If, pursuant to an Offer, Citicorp do not accept the receipt of
instructions from a stockholder, you shall return the certificates for
such Shares to, or in accordance with the instructions of, the person who
deposited the same, together with a letter of notice provided by
Citicorp, explaining why the deposited Shares are being returned, and
return to Citicorp any surplus funds deposited by Citicorp with you.
14. Upon request by any person, you shall furnish to such person copies of
the Prospectus, any supplements to the Prospectus, the LTs, and the other
materials referred to in the Prospectus as being available to
stockholders. Citicorp will supply you with copies of such documents upon
your request.
15. As Exchange Agent you:
(a) shall have no obligation to make payment unless Citicorp shall have
provided the necessary funds to pay in full all amounts due and payable
with respect thereto;
3
<PAGE>
(b) shall have no duties or obligations other than those specifically set
forth herein or as may be subsequently requested of you by Citicorp and
agreed to by you, in writing;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any certificates for Shares or the Shares represented thereby deposited
with you pursuant to the Offers and will not be required and will make no
representations as to the validity, value or genuineness of any Offer;
(d) shall not be required to initiate any legal action hereunder without
written approval of Citicorp and then only upon such reasonable indemnity
as you may request;
(e) may rely on and shall be protected in acting upon any certificate,
instrument, opinion, notice, letter, telex, telegram or other document,
or any Share delivered to you, and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
(f) may rely on and shall be protected in acting upon written or
facsimile instructions from Citicorp or its representatives with respect
to any matter relating to your actions as Exchange Agent specifically
covered by this Exchange Agent Agreement or supplementing or qualifying
any such actions, any such facsimile instructions to be confirmed in the
original as soon as practicable by the sender. Set forth in Exhibit __
hereto is a list of names and specimen signatures of the persons
authorized to issue instructions to you with regard to this Exchange
Agent Agreement. This list may be changed from time to time by
_____________ or by __________________;
(g) may consult with counsel satisfactory to you (including counsel for
Citicorp) and rely on the written advice or opinion of such counsel;
(h) shall not at any time advise any person as to the wisdom of making
any tender pursuant to an Offer, the value of the Shares or as to any
other financial or legal aspect of an Offer or any transaction related
thereto.
(i) shall not be liable or responsible for any recital or statement
contained in the Offers or any documents relating thereto;
(j) shall not be liable or responsible for any delay, failure,
malfunction, interruption or error in the transmission or receipt of
communications or messages through electronic means to or from a Book
Entry Transfer Facility, or for the action of any other person in
connection with any such message or communication.
16. It is understood and agreed that the securities, money, assets or
property (the "Property") to be deposited with or received by you from
Citicorp as Exchange Agent constitute a special, segregated account.
17. For services rendered as Exchange Agent hereunder, you shall be entitled
to payment as specified in a fee schedule or agreement as you may reach
with Citicorp from time to time.
18. Citicorp covenants and agrees to indemnify and to hold you harmless
against any costs, expenses (including reasonably fees of your legal
counsel), losses or damages, which may be paid, incurred or suffered by
you or to which you may become subject, arising from or out of, directly
or indirectly, any claim or liability resulting from your actions as
Exchange
4
<PAGE>
Agent pursuant hereto; provided that such covenant and agreement does not
extend to, and you shall not be indemnified and held harmless with
respect to, such costs, expenses, losses and damages incurred or suffered
by you as a result of, or arising out of, your negligence, bad faith, or
willful misconduct in the performance your obligations hereunder. In no
case will Citicorp be liable under this indemnity with respect to any
claim against you unless promptly after you have received any written
assertion of a claim or have been served with summons or other first
legal process giving information as to the nature and basis of the claim,
you notify Citicorp by letter or cable or telex confirmed by letter, of
the written assertion of such claim against you or of any action
commenced against you or of the service of any summons on you, or other
first legal process giving information as to the nature and basis of the
claim. Citicorp will be entitled to participate at its own expense in the
defense. If Citicorp so elects at any time after receipt of such notices
and agrees in writing that such claim is a claim for which you are
entitled to be indemnified and held harmless or if you in such notice
request and Citicorp agrees, Citicorp will assume the defense of any suit
brought to enforce such claim. In the event Citicorp assumes the defense
of any such suit Citicorp may select counsel of its own choosing for such
purposes provided such counsel is satisfactory to you, and Citicorp will
not be liable for the fees and expenses of any additional counsel
thereafter retained by you, except that if you have reasonably concluded
based on the written opinion of your counsel that there may be legal
defenses to you which are not available to Citicorp, you shall have the
right to select separate counsel and to otherwise participate in the
defense of such action.
19. All reports, notices, and other communications required or permitted
hereunder shall be in writing (unless otherwise provided herein) and
shall be deemed given when addressed and delivered by hand, courier,
facsimile, telex or first-class mail, postage prepaid, as follows:
To the Exchange Agent
Citibank, N.A.
Corporate Trust Department
120 Wall Street, 13th Floor
New York, NY 10043
Attn: John Reasor
To Citicorp
Citicorp
153 E. 53rd. Street 6th Floor
New York, NY 10043
Attn: Peter Gallant
This Exchange Agent Agreement shall be governed by and construed in accordance
with the laws of the State of New York and shall inure to the benefit of, and
the obligations created hereby shall be binding upon, the successors and assigns
of the parties hereto.
This Agreement may be executed in separate counterparts, each of which when
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same Agreement.
5
<PAGE>
If the foregoing is acceptable to you, please acknowledge receipt of this letter
and confirm the arrangements herein provided by signing and returning the
enclosed copy.
Very truly yours,
CITICORP
By:____________________________
Peter Gallant
Vice president
Accepted as of the date first above written:
CITIBANK, N.A.
By:____________________________
John W. Reasor
Agreed and Accepted:
by Citicorp Capital X
Citicorp Capital XI
Citicorp Capital XII
Citicorp Capital XIII
Citicorp Capital XIV
____________________________
Peter Gallant
Regular Trustee
____________________________
Ann Goodbody
Regular Trustee
____________________________
(Date)
6
Exhibit 99(g)
THIS IS NEITHER AN OFFER TO EXCHANGE OR SELL NOR A SOLICITATION OF AN OFFER TO
EXCHANGE OR BUY ANY OF THESE SECURITIES. THE OFFERS ARE MADE ONLY BY THE
PROSPECTUS AND THE RESPECTIVE LETTER OF TRANSMITTAL AND THE OFFERS ARE NOT BEING
MADE TO, NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF, HOLDERS OF THE
SECURITIES IN ANY JURISDICTION IN WHICH THE MAKING OR ACCEPTANCE THEREOF WOULD
NOT BE IN COMPLIANCE WITH THE SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
IN ANY JURISDICTION WHERE THE SECURITIES OR BLUE SKY LAWS REQUIRE THE OFFERS TO
BE MADE BY A LICENSED BROKER OR DEALER, THE OFFERS ARE BEING MADE ON BEHALF OF
THE TRUST BY MERRILL LYNCH & CO., SMITH BARNEY INC., PRUDENTIAL SECURITIES INC.
OR ONE OR MORE OTHER BROKERS OR DEALERS WHICH ARE LICENSED UNDER THE LAWS OF
SUCH JURISDICTION.
NOTICE OF EXCHANGE OFFER TO HOLDERS
OF
[LOGO]
Citicorp Capital X Up to 12,900,000 Depositary Shares
___% Trust Originated Preferred each representing a 1/10 interest
Securities(sm) ("TOPrS(sm)"), in a share of 8.00% Noncumulative
redeemable on or after May 15, for Preferred Stock, Series 16, of
2002 (or earlier upon the Citicorp, redeemable on or after
occurrence of certain events June 1, 1998
described in the Prospectus)
Citicorp Capital XI Up to 13,900,000 Depositary Shares
___% TOPrS, redeemable on or after each representing a 1/10 interest
May 15, 2002 (or earlier upon the for in a share of 7.50% Noncumulative
occurrence of certain events Preferred Stock, Series 17, of
described in the Prospectus) Citicorp, redeemable on or after
September 1, 1998
Citicorp Capital XII Up to 4,900,000 Depositary Shares
___% TOPrS, redeemable on or after each representing a 1/10 interest
May 15, 2002 (or earlier upon the for in a share of 8.30% Noncumulative
occurrence of certain events Preferred Stock, Series 20, of
described in the Prospectus) Citicorp, redeemable on or after
November 15, 1999
Citicorp Capital XIII Up to 5,900,000 Depositary Shares
___% TOPrS, redeemable on or after each representing a 1/10 interest
May 15, 2002 (or earlier upon the for in a share of 8.50% Noncumulative
occurrence of certain events Preferred Stock, Series 21, of
described in the Prospectus) Citicorp, redeemable on or after
February 15, 2000
Citicorp Capital XIV Up to 4,900,000 Depositary Shares
___% TOPrS, redeemable on or after each representing a 1/10 interest
May 15, 2002 (or earlier upon the for in a share of 7.75% Cumulative
occurrence of certain events Preferred Stock, Series 22, of
described in the Prospectus) Citicorp, redeemable on or after
May 15, 2000
Citicorp Capital X, Citicorp Capital XI, Citicorp Capital XII, Citicorp
Capital XIII and Citicorp Capital XIV, each a Delaware statutory business trust
(each a "Trust" and together the "Trusts"), are respectively offering, upon the
terms and subject to the conditions set forth in the Prospectus dated
_____________, 1997 (the "Prospectus") and the accompanying Letters of
Transmittal (each a "Letter of Transmittal" which, together with the Prospectus,
constitute an "Offer"), to exchange the Trust Originated Preferred
Securities(sm) of such Trust (the "TOPrS(sm)" or the "Capital Securities" of
such Trust)) for up to the Maximum Number (as defined below) of depositary
shares ("Depositary Shares"), each representing a 1/10 interest
________
(sm) "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
<PAGE>
in a share of the series (a "Series") of Preferred Stock (the "Preferred Stock")
of Citicorp, a Delaware corporation, specified opposite the name of such Trust
above (the "Related Depositary Shares") not owned by Citicorp. Exchanges will be
made on the basis of one Capital Security of a particular Trust for each Related
Depositary Share validly tendered and accepted for exchange in the applicable
Offer up to the maximum aggregate number of such Related Depositary Shares set
forth above (with respect to any series of Related Depositary Shares, the
"Maximum Number"). If more than the Maximum Number of Depositary Shares for any
Series of Preferred Stock are validly tendered for exchange pursuant to the
applicable Offer and not withdrawn on or prior to the Expiration Date, as
defined herein, the applicable Trust will accept such Related Depositary Shares
on a pro rata basis. See "The Offers -- Terms of the Offers" in the Prospectus.
In connection with the Offers, Citicorp will deposit in each Trust as trust
assets its Junior Subordinated Debentures due 2027, as set forth in the
Prospectus.
- --------------------------------------------------------------------------------
EACH OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME, ON APRIL __, 1997,UNLESS AN
OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
NONE OF CITICORP, THE BOARD OF DIRECTORS OF CITICORP, THE TRUSTEES OF ANY
TRUST OR ANY TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF DEPOSITARY SHARES AS
TO WHETHER TO TENDER OR REFRAIN FROM TENDERING IN ANY OFFER. HOLDERS OF
DEPOSITARY SHARES ARE URGED TO CONTACT THEIR FINANCIAL AND TAX ADVISORS IN
MAKING THEIR DECISION ON WHAT ACTION TO TAKE IN LIGHT OF THEIR OWN PARTICULAR
CIRCUMSTANCES.
Upon the terms and subject to the conditions of the applicable Offer
described in the Prospectus, each Trust will accept for exchange up to the
Maximum Number of Related Depositary Shares validly tendered and not withdrawn
prior to 5:00 p.m., New York City time, on April __, 1997, or if an Offer is
extended by the applicable Trust, in its sole discretion, the latest date and
time to which such Offer has been extended (with respect to each Offer, the
"Expiration Date"). Tenders of Related Depositary Shares pursuant to the
applicable Offer may be withdrawn at any time prior to the Expiration Date and,
unless accepted for exchange by the applicable Trust, may be withdrawn at any
time after 40 business days after the date of the Prospectus.
Consummation of each Offer is conditioned on, among other things, tenders
by a sufficient number of holders of Related Depositary Shares, as of the
Expiration Date such that, upon exchange of Capital Securities for the
Depositary Shares, there will be at least 400 record or beneficial owners of at
least 1,000,000 Capital Securities to be issued by the related Trust in exchange
for such Related Depositary Shares (the "Minimum Distribution Condition"), which
condition may not be waived.
Each Trust expressly reserves the right, in its sole discretion, subject
to applicable law, to (i) terminate its Offer, and not accept for exchange any
Related Depositary Shares and promptly return all tendered Depositary Shares
upon the failure of any of the conditions specified above or in "The Offers --
Conditions to the Offers" in the Prospectus, (ii) waive any condition to its
Offer (other than the Minimum Distribution Condition) and accept up to the
Maximum Number of Related Depositary Shares previously tendered pursuant to such
Offer, (iii) extend the Expiration Date of its Offer and retain all Related
Depositary Shares tendered pursuant to its Offer until the Expiration Date,
subject, however, to all withdrawal rights of holders, see "The Offers --
Withdrawal of Tenders" in the Prospectus, (iv) amend the terms of its Offer, (v)
modify the form of the consideration to be paid pursuant to its Offer or (vi)
terminate its Offer, not accept for exchange the Related Depositary Shares at
any time on or prior to the Expiration Date and promptly return the tendered
Depositary Shares, for any reason. Any amendment applicable to the Offer of a
particular Trust will apply to all Related Depositary Shares tendered pursuant
to such Offer. During any extension of the Offer of a particular Trust, all
Related Depositary Shares previously tendered pursuant to such Offer and not
withdrawn will remain subject to such Offer. The minimum period during which the
Offer of a particular Trust must remain open following material changes in the
terms of such Offer or the information concerning such Offer, other than a
decrease in the amount of Related Depositary Shares sought for exchange or a
change in the amount or form of consideration (for which the minimum period is
ten Business Days), depends upon the facts and
-2-
<PAGE>
circumstances, including the materiality of the change or information. See "The
Offers -- Expiration Date; Extensions; Amendments; Termination" in the
Prospectus.
The purpose of the Offers is to refinance the Preferred Stock underlying
the Depositary Shares with the relevant Capital Securities offered in exchange
therefor to achieve certain tax efficiencies while preserving Citicorp's
flexibility with respect to future financings.
The Prospectus and applicable Letter of Transmittal contain important
information which should be read before any action is taken by holders of
Related Depositary Shares. Tenders into each Offer may be made only by a
properly completed and executed Letter of Transmittal applicable to such Offer
and in conformance with the terms thereof and of the Prospectus. The information
contained in the Prospectus, the applicable Letter of Transmittal and the other
offering documents is hereby incorporated in this notice by reference.
With respect to each Offer, Citicorp will pay to Soliciting Dealers (as
defined in the Prospectus) designated by the record or beneficial owner, as
appropriate, of Related Depositary Shares a solicitation fee of $____ per
Related Depositary Share ($____ per Related Depositary Share with respect to the
solicitation of beneficial holders of 10,000 or more shares) validly tendered
and accepted for exchange pursuant to the applicable Offer, subject to certain
conditions. Soliciting Dealers are not entitled to a solicitation fee for
Related Depositary Shares beneficially owned by such Soliciting Dealers.
The information required to be disclosed by paragraph (d)(1) of Rule 13e-4
of the General Rules and Regulations under the Securities Exchange Act of 1934,
as amended, is contained in the Prospectus and is incorporated herein by
reference.
The Prospectus and applicable Letter of Transmittal are first being sent
to holders of Related Depositary Shares on March __, 1997, and are being
furnished to brokers, dealers, banks and similar persons whose names, or names
of whose nominees, appear on the lists of holders of the Related Depositary
Shares or, if applicable, who are listed as participants in a clearing agency's
security position listing for subsequent transmittal to beneficial owners of
Related Depositary Shares.
Any questions or requests for assistance may be directed to the
Information Agent and the Dealer Managers at the addresses and telephone numbers
set forth below. Requests for copies of the Prospectus, the applicable Letter of
Transmittal or the Notice of Guaranteed Delivery may be directed to the
Information Agent, at (800)223-2064, and copies will be forwarded promptly at
Citicorp's expense. Shareholders may also contact their broker, dealer,
commercial bank or trust company for assistance concerning the Offers.
-3-
<PAGE>
THE INFORMATION AGENT FOR THE OFFERS IS:
[GEORGESON & COMPANY INC. LOGO]
Wall Street Plaza
New York, New York 10005
(800) 223-2064 (Toll-Free)
Banks and Brokers Call Collect:
(212) 440-9800
THE DEALER MANAGERS FOR THE OFFERS ARE:
MERRILL LYNCH & CO.
World Financial Center
North Tower--Seventh Floor
New York, New York 10281
(888) ML4-TNDR (Toll-Free)
(888) 654-8637 (Toll-Free)
Attn: Susan L. Weinberg
SMITH BARNEY INC. PRUDENTIAL SECURITIES INC.
390 Greenwich Street-- Fifth Floor One New York Plaza-- Fifteenth Floor
New York, New York 10013 New York, New York 10292
(800) 655-4811 (Toll-Free) (800) 778-2241 (Toll-Free)
Attn: Paul S. Galant Attn: Martin Oring
March __, 1997
-4-
