<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT TO
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13D-2(A)
CORT BUSINESS SERVICES CORPORATION
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
220493-10-0
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(CUSIP Number)
Lance C. Balk
Kirkland & Ellis
153 East 53rd Street
New York, NY 10022
(212) 446-4940
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
November 15, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
|_|.
NOTE: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See
Rule 13d-7(b) for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 7)
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CUSIP NO. 220493-10-0 13D PAGE 2 OF 7 PAGES
--------------------- -------- --------
(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Citicorp Venture Capital Ltd.
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ X ]
(b) [ ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS* WC
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
New York
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(7) SOLE VOTING POWER
NUMBER OF
SHARES --------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER 0
OWNED BY
EACH --------------------------------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON WITH
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(10) SHARED DISPOSITIVE POWER
5,778,518
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,778,518
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(12) CHECK BOX IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 44.1%
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(14) TYPE OF REPORTING PERSON* CO
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CUSIP NO. 220493-10-0 13D PAGE 3 OF 7 PAGES
--------------------- -------- --------
(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Citibank, N.A.
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ X ]
(b) [ ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS* OO
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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(7) SOLE VOTING POWER
NUMBER OF
SHARES --------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH --------------------------------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON WITH
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(10) SHARED DISPOSITIVE POWER
5,778,518
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,778,518
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(12) CHECK BOX IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 44.1%
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(14) TYPE OF REPORTING PERSON* BK
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<PAGE> 4
CUSIP NO. 220493-10-0 13D PAGE 4 OF 7 PAGES
--------------------- -------- --------
(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Citicorp
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ X ]
(b) [ ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS* OO
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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(7) SOLE VOTING POWER
NUMBER OF
SHARES --------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH --------------------------------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON WITH
--------------------------------------------------------
(10) SHARED DISPOSITIVE POWER
5,778,518
--------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,778,518
---------------------------------------------------------------------
(12) CHECK BOX IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
---------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 44.1%
---------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON* HC
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CUSIP NO. 220493-10-0 13D PAGE 5 OF 7 PAGES
--------------------- -------- --------
(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Citigroup Inc.
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ X ]
(b) [ ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS* OO
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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(7) SOLE VOTING POWER
NUMBER OF
SHARES --------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 1,400
EACH --------------------------------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON WITH
--------------------------------------------------------
(10) SHARED DISPOSITIVE POWER
5,902,708
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,902,708
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(12) CHECK BOX IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45.1%
---------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON* HC
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This Amendment No. 3 relates to the Common Stock, par value $.01
per share (the "Common Stock"), of CORT Business Services Corporation, a
Delaware corporation ("Issuer"). Amendment No. 3 is being filed due to the
deposit by Citicorp Venture Capital Ltd. ("CVC") of 1,428,107 additional shares
of Common Stock of the Issuer into a voting trust not controlled by CVC.
Item 4. Purpose of Transaction
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Except as described in the next paragraph, the shares of Common Stock that
are the subject of this Statement (together with any prior acquired shares, the
"Shares") were acquired by CVC in the ordinary course of business for investment
purposes.
Without connection to the acquisition of the Shares by CVC, various
subsidiaries of Citigroup acquired shares of Common Stock of the Issuer for
investment purposes, for third party accounts or for mutual funds managed by
such subsidiaries, as described in Item 5 below. The Citigroup subsidiaries
review their respective holdings of Issuer securities on a continuing basis.
Depending on such evaluations of the Issuer's business and prospects, and upon
future developments (including, but not limited to, market prices of the Common
Stock and availability and alternative uses of funds, as well as conditions in
the securities markets and general economic and industry conditions), each
Citigroup subsidiary may acquire others securities of the Issuer or sell all or
a portion of its Common Stock or other securities of the Issuer now owned or
hereafter acquired.
(a) On August 12, 1999, CVC deposited 4,350,411 shares of Common Stock
(the "Prior Trust Shares") into trust pursuant to a Voting Trust Agreement dated
as of August 12, 1999 between CVC and each of Harold O. Rosser, Stephen C.
Sherrill and Stephen F. Edwards as trustees (the "Prior Trustees"). On November
15, 1999, CVC deposited 1,428,107 additional shares of Common Stock into trust
(the "New Trust Shares", together with the Prior Trust Shares the "Trust
Shares") and the Prior Trustees resigned as trustees pursuant to an Amended and
Restated Voting Trust Agreement dated as of November 15, 1999 (the "Trust
Agreement") between CVC, Robert N. Pokelwaldt as replacement trustee and the
Prior Trustees as resigning trustees. CVC retains the right to dispose of the
Trust Shares and receive dividends and distributions in respect thereof. The
Voting Trust will terminate upon the earliest of the sale of all of the Trust
Shares, the conversion of the Trust Shares into non-voting shares of the Issuer,
or the tenth anniversary of the Trust Agreement.
(b) On November 4, 1999, the Issuer terminated the merger agreement dated
March 25, 1999, as amended, by and among the Issuer and an investor group.
(c)-(j) Not Applicable.
Item 5. Interest in Securities of the Issuer:
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(a)-(b) CVC beneficially owns 5,778,518 shares of Common Stock,
representing approximately 44.1% of the outstanding shares, of such class as to
which it has sole voting power and dispositive power. Citibank and Citicorp,
exclusively through their holding company structures, also both beneficially own
the same 5,778,518 shares of Common Stock, representing approximately 44.1% of
the outstanding shares of such class as to which each has sole voting and
dispositive powers. Citigroup, through its direct and indirect subsidiaires
(including those described in the second paragraph of Item 4) beneficially owns
5,902,708 shares of Common Stock representing approximately 45.1% of the
outstanding shares of such class as to which it has sole voting and dispositive
powers.
Except as stated above, none of the Reporting Persons beneficially
owns any of the shares of capital stock of the Issuer.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect To
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Securities of the Issuer.
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On August 12, 1999, CVC deposited 4,350,411 shares of Common Stock (the
"Prior Trust Shares") into trust pursuant to a Voting Trust Agreement dated as
of August 12, 1999 between CVC and each of Harold O. Rosser, Stephen C. Sherrill
and Stephen F. Edwards as trustees (the "Prior Trustees"). On November 15, 1999,
CVC deposited 1,428,107 additional shares of Common Stock into trust (the "New
Trust Shares", together with the Prior Trust Shares the "Trust Shares") and the
Prior Trustees resigned as trustees pursuant to an Amended and Restated Voting
Trust Agreement dated as of November 15, 1999 (the "Trust Agreement") between
CVC, Robert N. Pokelwaldt as replacement trustee and the Prior Trustees as
resigning trustees. CVC retains the right to dispose of the Trust Shares and
receive dividends and distributions in respect thereof. The Voting Trust will
terminate upon the earliest of the sale of all of the Trust Shares, the
conversion of the Trust Shares into non-voting shares of the Issuer, or the
tenth anniversary of the Trust Agreement.
Item 7. Exhibits
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1. Amended and Restated Voting Trust Agreement dated as of November 15,
1999, by and among CVC, each of Harold O. Rosser, Stephen C. Sherrill and
Stephen F. Edwards as resigning trustees, and Robert N. Pokelwaldt, as the
replacement trustee.
(Page 6 of 7)
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: November 24, 1999
CITICORP VENTURE CAPITAL LTD.
By: /s/ Byron Knief
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Name: Byron Knief
Title: Senior Vice President
CITIBANK, N.A.
By: /s/ Glenn S. Gray
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Name: Glenn S. Gray
Title: Assistant Secretary
CITICORP
By: /s/ Glenn S. Gray
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Name: Glenn S. Gray
Title: Assistant Secretary
CITIGROUP INC.
By: /s/ Glenn S. Gray
--------------------------------------
Name: Glenn S. Gray
Title: Assistant Secretary
(Page 7 of 7)
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AMENDED AND RESTATED VOTING TRUST AGREEMENT dated as of November 15,
1999 (this "Agreement"), among CITICORP VENTURE CAPITAL LTD., a New York
corporation (the "Company"), and HAROLD O. ROSSER, STEPHEN C. SHERRILL and
STEPHEN F. EDWARDS (the "Resigning Trustees"), and ROBERT N. POKELWALDT, as the
replacement trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company is the record and beneficial owner of voting
shares of Common Stock, par value $.01 per share (the "Common Shares"), of CORT
Business Services Corporation, a Delaware Corporation ("CORT"); and
WHEREAS, the Company and the Resigning Trustees are party to a Voting
Trust Agreement dated as of August 12, 1999 pursuant to which the Company placed
4,350,411 Common Shares of CORT in trust with the Resigning Trustees (the
"Original Agreement"); and
WHEREAS, the Resigning Trustees desire to resign their duties under the
Original Agreement and no longer serve as trustees of the Trust Shares (as
defined herein); and
WHEREAS, the Company desires to accept the resignation of the Resigning
Trustees as of the date hereof and waive compliance with the notice provisions
of Section 2.05 of the Original Agreement, and designate Robert N. Pokelwaldt as
Trustee of the Trust Shares; and
WHEREAS, the Company, the Resigning Trustees and the Trustee desire to
amend and restate the Original Agreement to give effect to the foregoing; and
WHEREAS, the Company has determined to place into the Trust 1,428,107
additional Common Shares of CORT representing the remainder of the Common Shares
held beneficially and of record by the Company; and
WHEREAS, the Trustee is willing to serve as the trustee of the voting
trust created under the Original Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereby agree as
follows:
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ARTICLE I
THE VOTING TRUST
SECTION 1.01 Amendment; Creation of Voting Trust; Resignation of
Trustees and Designation of Replacement Trustee. The Original Agreement is
hereby amended and restated in its entirety as set forth herein. Subject to the
terms and conditions of this Agreement, a voting trust (the "Trust") in respect
of the Common Shares hereinafter specified is hereby continued as so amended in
accordance with Section 218 of the Delaware General Corporation Law, and the
Company hereby accepts the resignation of each of Harold O. Rosser, Stepehen C.
Sherrill and Stephen F. Edwards as trustees, and appoints Robert N. Pokelwaldt
as trustee under this Agreement. The Trustee accepts the Trust created by this
Agreement and agrees to serve as a trustee under this Agreement (with all
attendant rights and duties hereunder). Subject to the provisions of this
Agreement, the Trust shall be managed solely by the Trustee.
SECTION 1.02 Replacement of Trustee. The rights and obligations of
the Resigning Trustees shall cease and the rights and obligations of the Trustee
shall become effective upon the execution of this Agreement.
SECTION 1.03 Acquisition and Holding of Common Shares by the Trust.
(a) On the date of this Agreement (i) the Company shall deliver
to, or cause to be delivered to, the Trustee a certificate or certificates
evidencing 1,428,107 Common Shares then owned directly or beneficially by the
Company, and (ii) the Resigning Trustees shall deliver or cause to be delivered
to the Trustee a certificate or certificates evidencing 4,350,411 Common Shares
then owned directly or indirectly by the Company and previously delivered to the
Resigning Trustees to the Company, which certificate or certificates shall, in
each case, be duly endorsed, or accompanied by stock powers duly executed in
blank or such other instrument as may be reasonably requested by the Trustee to
enable the Trustee to transfer the Trust Shares to the Trustee's name. All
Common Shares at any time deposited in the Trust are hereinafter referred to as
the "Trust Shares".
(b) If, following the date hereof, the Company shall acquire
"beneficial ownership" (as defined in Securities and Exchange Commission Rule
13d-3 under the Securities Exchange Act of 1934, as amended) of any Common
Shares (other than any such shares which the Company is deemed to beneficially
own solely by reason of its affiliation with any a broker, dealer, investment
advisor, investment manager, or other person) the Company shall, simultaneously
with such acquisition, deliver to, or cause to be delivered to, the Trustee a
certificate or certificates evidencing all such Common Shares, which certificate
or certificates shall be duly endorsed, or
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accompanied by stock powers duly executed in blank or such other instrument as
may be reasonably requested by the Trustee to enable the Trustee to transfer
such Common Shares to the Trustee's name.
(c) After the filing of a copy of this Agreement in the
registered office of CORT in the State of Delaware, as provided in Section 1.07,
each stock certificate evidencing the Trust Shares shall be surrendered and
canceled, and new stock certificates therefor shall be issued and delivered to
the Trustee. Each certificate for Trust Shares so issued to the Trustee shall
bear a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
ISSUED PURSUANT TO AND ARE SUBJECT TO THE TERMS OF
THAT CERTAIN AMENDED AND RESTATED VOTING TRUST
AGREEMENT MADE AS OF NOVEMBER 15, 1999 AMONG THE
TRUSTEE OF THE VOTING TRUST AND THE BENEFICIAL OWNER
OF THESE SECURITIES. THESE SECURITIES MAY NOT BE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS OF
SUCH VOTING TRUST AGREEMENT, A COPY OF WHICH IS ON
FILE AT CORT BUSINESS SERVICES CORPORATION'S
REGISTERED OFFICE IN THE STATE OF DELAWARE.
A like notation shall be made in the Company's stock transfer records
with respect to such Trust Shares.
(d) The Trustee shall retain and hold the stock certificates
evidencing the Trust Shares in accordance with, and subject to the terms and
conditions of this Agreement. Except as hereinafter provided, all stock
certificates evidencing the Trust Shares shall at all times be and remain in the
possession of the Trustee, or, at the direction of the Trustee, with the
Registrar (as defined below). The Trustee shall have no authority to sell,
transfer, assign, pledge or otherwise dispose of or encumber the Trust Shares,
except to the extent otherwise specifically provided in this Agreement. All
Trust Shares and all cash, securities or other property distributed in respect
of the Trust Shares that are held by the Trustee shall be held for the benefit
of the Company and no creditors of the Trustee shall have any right to or claim
against any of the assets of this Trust.
SECTION 1.04 Voting Trust Certificates.
(a) Issuance of Voting Trust Certificates. Upon receipt of the
new certificate or certificates representing any Trust Shares, the Trustee shall
deliver to the Company one
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or more voting trust certificates therefor, each substantially in the form of
Exhibit A hereto (each, a "Voting Trust Certificate"). Each Voting Trust
Certificate shall specify the series or class, and number of Trust Shares in
respect of which it is issued, shall be dated the date of its issuance and shall
be signed manually by the Trustee or its duly authorized representative.
(b) Transfer or Exchange of Voting Trust Certificates.
(i) The Trustee will maintain an office or agency in New York
City at which Voting Trust Certificates may be presented or surrendered for
registration of transfer or for exchange (the "Registrar"). The Registrar shall
keep a register of the Voting Trust Certificates and of their transfer and
exchange. The Trustee may appoint any person to act as Registrar on its behalf,
but in the absence of an effective appointment, any Trustee may act as Registrar
hereunder.
(ii) When Voting Trust Certificates are presented to the
Registrar with a request to register the transfer of such Voting Trust
Certificates, or to exchange them for Voting Trust Certificates of different
denominations which in the aggregate represent the Trust Shares for which such
Voting Trust Certificates are being exchanged, in each case, as accompanied by a
duly executed instrument of assignment or exchange substantially in the form
attached as Exhibit B hereto, then the Registrar shall register the transfer or
make the exchange as requested; provided, that the Registrar shall require, as a
condition to registering a transfer of Voting Trust Certificates, that the
transferee execute and deliver to the Trustee its written agreement to be bound
by the terms of this Agreement, substantially in the form of Exhibit C hereto.
(c) Registration of Holders. The Trustee may treat the registered
holder of a Voting Trust Certificate as the owner thereof for all purposes.
Every transferee of a Voting Trust Certificate hereunder shall be required to
become a party to this Agreement, with the same force and effect as if such
transferee had signed this Agreement, and such transferee shall for all purposes
have the rights of the Company hereunder with respect to such Voting Trust
Certificate.
(d) Replacement of Voting Trust Certificate. Upon receipt of
evidence reasonably satisfactory to the Trustee (an affidavit of the registered
holder will be satisfactory) of the ownership and the loss, theft, destruction
or mutilation of a Voting Trust Certificate, and in the case of any such loss,
theft or destruction, upon receipt of indemnity reasonably satisfactory to the
Trustee (provided that if the registered holder is a financial institution or
other institutional investor, its own agreement will be satisfactory), or, in
the case of any such mutilation, upon surrender of such certificate, the Trustee
shall (at the registered holder's expense) execute and deliver in lieu of such
certificate a new Voting Trust Certificate of like kind representing the number
of Trust Shares represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
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SECTION 1.05 Voting Rights of Trustee.
(a) During the term of this Agreement, the Trustee shall possess
and in its sole discretion shall be entitled to and have, the duty to exercise
any and all voting rights in respect of the Trust Shares either in person or by
nominee or proxy, as hereinafter provided, and may vote for, do or assent or
consent to any act or proceeding which the Company might or could vote for, do
or assent or consent to, and shall have all other powers, rights and privileges
of the record and beneficial owners of the Trust Shares with respect to the
voting of the Trust Shares.
(b) No person other than the Trustee shall have any voting rights
in respect of any Trust Shares so long as this Agreement shall be in effect. The
Trustee shall have no beneficial interest in the Trust Shares.
(c) In voting the Trust Shares, the Trustee shall incur no
responsibility as stockholder, trustee or otherwise, except for its own
individual malfeasance.
(d) The manner of exercising the voting rights in respect of the
Trust Shares shall be determined by the Trustee, or if at any time there shall
be more than one trustee, a majority of the Trustees, in each case with no
obligation to consult with the Company.
SECTION 1.06 Irrevocability. Following the deposit of the Trust
Shares with the Trustee, this Agreement, the Trust and the nomination of the
Trustee shall be irrevocable by the Company and shall terminate only in
accordance with Section 1.10.
SECTION 1.07 Maintenance of Records. The Trustee shall file an
executed copy of this Agreement at the registered office of CORT in the State of
Delaware and at CORT's chief executive office in Fairfax, Virginia, which copy
shall be open to the reasonable inspection of any stockholder of CORT or any
beneficiary of the Trust, daily during business hours. The Trustee shall also
maintain such other records and books as are necessary or appropriate to enable
the Trustee to carry out the terms and conditions of this Agreement.
SECTION 1.08 Dividends; Distribution of Proceeds of Sale of Trust
Shares or Assets.
(a) Subject to Section 1.08(b) below, the Company shall be
entitled to receive dividends or distributions of money, securities, or other
property, if any, collected or received by the Trustee with respect to the Trust
Shares. Any such payments received by any Trustee shall be held in trust for the
benefit of the Company and shall be paid over to the Company by the Trustee
promptly upon any Trustee's receipt of such dividends or distributions. In lieu
of
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receiving dividends or distributions and paying them to the Company, the Trustee
agrees to promptly instruct CORT in writing to pay the dividends or
distributions (other than dividends consisting of voting securities of CORT)
directly to the Company. In the event any such instruction is given to CORT, all
liability of the Trustee with regard to the payment of such dividends or
distributions shall cease, unless and until such instruction is revoked.
(b) In the event that the Trustee shall receive any additional
voting securities of CORT through a dividend or other distribution with respect
to any Trust Shares, the Trustee shall hold such voting securities subject to
this Agreement for the benefit of the Company, and such voting securities shall
become subject to all the terms and conditions of this Agreement to the same
extent as if they were Trust Shares acquired by the Trustee pursuant to Section
1.03. The Trustee shall issue Voting Trust Certificates in respect of such Trust
Shares to the Company as soon as practicable after the Trustee's receipt
thereof.
(c) If at any time during the term of this Agreement the Trustee
shall receive or collect any money or other property (other than voting
securities of CORT) through distribution by CORT to its stockholders, other than
as set forth in Subsections (a) or (b) of this Section 1.08, the Trustee shall
promptly distribute such money or other property to the Company.
SECTION 1.09 Disposition of Trust Shares by the Company. This Trust
is accepted by the Trustee subject to the right hereby reserved in the Company
at any time to sell, transfer, assign, or otherwise dispose of any or all of the
Trust Shares as hereinafter provided. Upon the receipt at any time of a written
direction from the Company, signed by a duly authorized officer thereof,
designating the person or entity to whom any or all of the Trust Shares have
been sold, transferred, assigned or otherwise disposed of by the Company,
together with the Voting Trust Certificates issued by the Trustee in respect of
such Trust Shares, the Trustee immediately shall deliver the certificates
representing the Trust Shares to be sold, endorsed in blank, to CORT or its
transfer agent, as applicable, for registration of transfer to the person or
entity therein named, all of the Trustee's right, title and interest in such
number of the Trust Shares as may be specified in such direction. If such
direction shall specify all the Trust Shares, the Trust shall cease and come to
an end upon transfer of the Trustee's right, title and interest in the Trust
Shares. If such direction is as to only a portion of the Trust Shares, then this
Trust shall cease to that portion of the Trust Shares upon such transfer, but
shall remain in full force and effect as to the remaining portion of the Trust
Shares and the Trustee shall deliver to the Company new Voting Trust
Certificates representing such shares.
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<PAGE> 7
SECTION 1.10 Termination.
(a) This Agreement and the Trust shall terminate upon the earlier
of (each, a "Trust Termination Event"): (i) the sale, transfer, assignment or
other disposition of all the Trust Shares as contemplated by Section 1.09; (ii)
upon notice to the Trustee of the Company's election to convert the Trust Shares
into CORT's non-voting Class B Common Stock, par value $.01 per share, or such
other shares as may be permitted pursuant to CORT's certificate of
incorporation; or (iii) upon the date that is ten (10) years after the date
hereof.
(b) Upon termination of this Agreement, the Trustee shall deliver
to the Company the stock certificates evidencing the Trust Shares, duly endorsed
or accompanied by stock powers duly executed, in proper form for transfer to the
Company, together with all other property held by the Trustee pursuant to this
Agreement and shall take all other actions appropriate to effectuate the
transfer of the Trust Shares to the Company.
ARTICLE II
THE TRUSTEE
SECTION 2.01 Actions of the Trustee. Any act by the Trustee, or if at
any time there shall be more than one trustee hereunder, a majority of the
Trustees, shall be an act of the Trust.
SECTION 2.02 Trustee's Expenses. The Trustee shall be entitled to
reimbursement of all reasonable fees and expenses of counsel, taxes and other
expenses reasonably incurred by the Trustee in the performance of its duties
under this Agreement, which reimbursement shall be made promptly by the Company
after the incurrence of such expenses.
SECTION 2.03 Delegation of Trustee's Duties. The Trustee may at any
time or from time to time appoint an agent or agents (other than an affiliate or
associate (as defined in Rule 12b-2 under the Exchange Act) of the Company) and
may delegate to such agent or agents the performance of any administrative duty
of the Trustee under this Agreement.
SECTION 2.04 Standard of Care; Indemnification of Trustee.
(a) The duties and responsibilities of the Trustee shall be
limited to those expressly set forth in this Agreement. Under no circumstance
shall the Trustee have any obligation to consult with the Company in connection
with any action taken by the Trustee in accordance with this Agreement. The
Trustee shall not be answerable for the default or misconduct of any agent or
attorney appointed by him in accordance with this Agreement if such agent or
attorney shall have been selected with reasonable care.
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<PAGE> 8
(b) The Trustee is expressly authorized to incur and pay all
reasonable charges and other expenses which the Trustee deems necessary and
proper in the performance of its duties under this Agreement. The Company hereby
agrees to indemnify, defend and hold harmless the Trustee from and against any
and all claims, costs of defense of claims (including reasonable attorneys' fees
and disbursements), expenses and liabilities incurred by the Trustee in
connection with the performance of its duties under this Agreement, except those
determined by a court of competent jurisdiction to have been incurred as a
result of the Trustee's gross negligence, bad faith or willful misconduct.
(c) The Trustee shall be free from liability in acting upon any
paper, document or signature believed by the Trustee to be genuine and to have
been signed by the proper party. The Trustee shall not be liable for any error
of judgment in any act done or omitted, nor for any mistake of fact or law, nor
for anything which the Trustee may do or refrain from doing in good faith. The
Trustee may consult with legal counsel and any action under this Agreement taken
or suffered in good faith by the Trustee and in accordance with the opinion of
the Trustee's counsel shall be conclusive for the parties to this Agreement and
the Trustee shall be fully protected and be subject to no liability in respect
thereof.
SECTION 2.05 Resignation and Replacement of Trustee.
(a) The Trustee may resign by giving 30 days' advance written
notice of resignation to the Company.
(b) The rights and duties of each Trustee under this Agreement
shall terminate upon such Trustee's incapacity to act, death or insolvency, and
no interest in any of the Trust Shares held by such Trustee nor any of the
rights and duties of a deceased or insolvent Trustee may be transferred by will,
devise, succession or in any other manner except as provided in this Agreement.
The heirs, administrators, executors or other representatives of an
incapacitated, deceased or insolvent Trustee shall, however, have the right and
duty to convey any Trust Shares held by such Trustee to one or more successor
Trustees.
(c) In the event of the resignation, incapacity to act, death or
insolvency of a Trustee, such Trustee shall be succeeded by a successor Trustee
chosen by the Company, upon such successor Trustee's becoming a party to this
Agreement. No such successor Trustee shall be an affiliate or associate (as
defined in Rule 12 b-2 under the Exchange Act) of the Company.
SECTION 2.06 Disclosure of Information. To the extent requested to do
so by the Company, the Trustee shall promptly furnish to the Company full
information with respect
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<PAGE> 9
to (a) all property theretofore delivered to it as Trustee, (b) all property
then held by it as Trustee, and (c) all actions theretofore taken by it as
Trustee.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 Entire Agreement; Amendment. This Agreement constitutes
the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and undertakings, both written and
oral, with respect to the subject matter hereof, including, without limitation,
the Original Agreement. This Agreement shall not be amended, altered or modified
except by an instrument in writing duly executed by each of the parties hereto.
SECTION 3.02 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner adverse to any party.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the terms of
this Agreement remain as originally contemplated to the fullest extent possible.
SECTION 3.03 Notices. All notices and other communications under this
Agreement shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by telecopy or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
3.03):
If to the Company:
Citicorp Venture Capital Ltd.
399 Park Avenue
New York, New York 10043
Attention: James A. Urry
9
<PAGE> 10
with a copy (which shall not constitute notice) to:
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, NY 10022
Attn: Kirk A Radke, Esq.
If to the Trustee:
Robert N. Pokelwaldt
---------------
---------------
---------------
SECTION 3.04 Assignment. Subject to Section 2.05, this Agreement
shall not be assignable by the Trustee. This Agreement shall be assignable by
the Company to any affiliate thereof.
SECTION 3.05 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
permitted successors and permitted assigns.
SECTION 3.06 Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 3.07 Specific Performance. The parties hereto agree that the
remedy at law for a breach of this Agreement will be inadequate and that any
party by whom this Agreement is enforceable shall be entitled to specific
performance in addition to any appropriate relief or remedy.
SECTION 3.08 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State.
10
<PAGE> 11
SECTION 3.09 Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
11
<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Voting Trust Agreement or caused this Amended and Restated Voting Trust
Agreement to be duly executed on their behalf as of the date and year first
hereinabove set forth.
CITICORP VENTURE CAPITAL LTD.
By: /s/ Byron L. Knief
---------------------------------------
Name: Byron L. Knief
Title: Vice President
THE TRUSTEE
/s/ Robert N. Polcelwaldt
---------------------------------------
Robert N. Pokelwaldt
THE RESIGNING TRUSTEES
/s/ Harold O. Rosser
---------------------------------------
Name: Harold O. Rosser
/s/ Stephen C. Sherrill
---------------------------------------
Name: Stephen C. Sherrill
/s/ Stephen F. Edwards
---------------------------------------
Name: Stephen F. Edwards
<PAGE> 13
Exhibit A to
Amended and Restated Voting Trust Agreement
THIS VOTING TRUST CERTIFICATE IS ISSUED PURSUANT TO AND IS SUBJECT TO THE TERMS
OF A CERTAIN AMENDED AND RESTATED VOTING TRUST AGREEMENT, DATED NOVEMBER 15,
1999 BETWEEN THE TRUSTEE OF THE VOTING TRUST AND THE BENEFICIAR(Y)(IES) OF THE
VOTING TRUST. THE BENEFICIAL INTEREST IN SHARES OF THE CAPITAL STOCK OF THE
COMPANY REPRESENTED BY THIS VOTING TRUST CERTIFICATE MAY NOT BE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE TERMS OF THE VOTING TRUST AGREEMENT, A COPY OF
WHICH IS ON FILE AT THE ISSUER'S REGISTERED OFFICE IN THE STATE OF DELAWARE.
THE SECURITIES REPRESENTED BY THIS VOTING TRUST CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE
SECURITIES LAW AND THE SECURITIES REPRESENTED HEREBY CANNOT BE TRANSFERRED
UNLESS SO REGISTERED OR QUALIFIED UNDER SUCH FEDERAL AND ANY APPLICABLE STATE
SECURITIES LAW OR UNLESS AN EXEMPTION FROM REGISTRATION OR QUALIFICATION IS
AVAILABLE.
Certificate No. VTC - __ Date of Issuance: _______
Number of Shares Beneficially
Represented Hereby: ________ shares
of __________ stock, par value
$___ per share
VOTING TRUST CERTIFICATE
------------------------
This Voting Trust Certificate (this "Certificate") certifies that the
undersigned Trustee has received certificate(s) representing ________ shares of
________ stock, par value $_____ per share (the "Trust Shares") of ___________,
a [Delaware] corporation (the "Company"), on behalf of ________________________
(the "Holder"), duly registered in the name of the undersigned Trustee, on the
following terms and conditions:
RIGHTS OF HOLDERS
-----------------
The Holder agrees to, accepts and ratifies all of the terms, conditions
and covenants of that certain Amended and Restated Voting Trust Agreement dated
November 15, 1999 (the "Agreement"), a counterpart of which is on file with the
registered office of the Company in the State of Delaware, and which is hereby
incorporated herein by reference. Capitalized terms used but not otherwise
defined, in this Certificate shall have the meanings given such terms in the
Agreement. The Holder shall possess and be entitled to rights of ownership of
the Trust Shares only as provided in the Agreement. The Holder of this
Certificate shall transfer or replace this Certificate only as provided in the
Agreement.
A-1
<PAGE> 14
VOTING AND OTHER RIGHTS
-----------------------
The Trustee during the term of the Agreement shall have sole voting
rights and certain other rights with respect to the Trust Shares as specified in
the Agreement (subject to the limitations imposed by the Company's certificate
of incorporation, bylaws or any agreement to which the Trust Shares may be
subject). No voting rights are granted by this Certificate and only those rights
provided to the Holder of a Certificate by the Agreement are represented by this
Certificate.
DIVIDENDS AND DISTRIBUTIONS
---------------------------
The Holder of this Certificate shall be entitled to receive, subject to
the provisions of the Agreement, all dividends or other distributions of cash,
securities or other property by the Company received by the undersigned Trustee
in respect of the Trust Shares, except that in the event of dividends or
distributions of Trust Shares or other voting securities of the Company, the
Trustee shall receive and hold any such dividends or distributions pursuant to
the terms of the Agreement and shall issue to the Holder hereof additional
Certificates representing such additional Trust Shares. In lieu of the Trustee
receiving dividends and distributions and paying them to the Holder of this
Certificate, the Trustee may instruct the Company to pay the dividends or
distributions directly to the Holder, as provided in the Agreement.
TERMINATION
-----------
The Voting Trust shall terminate upon the occurrence of a Trust
Termination Event, as provided in the Agreement.
SUBJECT TO VOTING TRUST AGREEMENT
---------------------------------
This Certificate is governed in all respects by the Agreement. In the
event of any inconsistency between the terms and conditions of this Certificate
and the Agreement, the Agreement shall control.
A-2
<PAGE> 15
IN WITNESS WHEREOF, this Certificate is executed and issued to the
Holder by the undersigned Trustee as of the date first written above.
------------,
as Trustee
By:
----------------------------
Name:
Title:
A-3
<PAGE> 16
Exhibit B to
Amended and Restated Voting Trust Agreement
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
its right, title and interest in and to the attached Voting Trust Certificate,
certificate number __, the beneficial interest in the shares of capital stock of
_________________, a [Delaware] corporation (the "Company") represented thereby
and all related rights under the Amended and Restated Voting Trust Agreement
dated as of November 15, 1999 (the "Voting Trust Agreement"), among
_______________ or its successor-in-interest, as trustee(s) (each individually a
"Trustee" and collectively the "Trustees") and the other parties thereto, to
___________________ and authorizes __________________ to surrender the attached
Voting Trust Certificate to the Trustee or its designee for registration of
transfer.
Date:
----------------------------- -------------------------------
[SIGNATURE OF STOCKHOLDER]
B-1
<PAGE> 17
Exhibit C to
Amended and Restated Voting Trust Agreement
JOINDER
-------
This Joinder (this "Agreement") is made as of the date written below by
the undersigned (the "Joining Party") in favor of and for the benefit of
____________, or its successor-in-interest (the "Voting Trustee") and the other
Persons party to the Amended and Restated Voting Trust Agreement, dated as of
November 15, 1999 (the "Voting Trust Agreement"), among the Voting Trustee and
the other parties thereto. Capitalized terms used but not defined herein shall
have the meanings given such terms in the Voting Trust Agreement.
Accordingly, the Joining Party hereby agrees as follows:
1. The Joining Party hereby acknowledges, agrees and confirms that,
by its execution of this Joinder, the Joining Party will be deemed to be a party
to the Voting Trust Agreement and shall have all of the obligations of a party
thereunder as if it had executed the Voting Trust Agreement. The Joining Party
hereby ratifies, as of the date hereof, and agrees to be bound by, all of the
terms, provisions and conditions contained in the Voting Trust Agreement.
C-1
<PAGE> 18
IN WITNESS WHEREOF, the undersigned has executed this Joinder as of the
date written below.
Date: [NAME]
------------------- -----------------------------------
By:
------------------------------
Name:
Title:
C-2
