8-A12B
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SERIES 22 FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
_________________________
Citicorp
(Exact name of registrant as specified in its charter)
Delaware 13-2614988
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
399 Park Avenue
New York, New York 10043
-------------------------- ------------------------
(Address of principal (Zip Code)
executive offices)
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12 (b) OF THE ACT:
Title of each class Name of each exchange
to be so registered on which each class is
to be registered
------------------- ----------------------
Depositary Shares each New York Stock Exchange
representing a one-tenth
interest in a Share of
7 3/4 % Cumulative Preferred
Stock, Series 22 (Without Par Value)
(the "Depositary Shares")
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12 (b) OF THE ACT:
7 3/4 % Cumulative Preferred Stock, Series 22 (Without Par Value)
(the "Preferred Stock")
Item 1. Description of Registrant's Securities.
1.1 For a description of the Preferred Stock, reference is
hereby made to the description of the Preferred Stock contained
in the Prospectus dated May 12, 1995 as supplemented by the
Prospectus Supplement dated May 12, 1995 relating to the
Preferred Stock filed with the Securities and Exchange Commission
pursuant to Rule 424 (b) under the Securities Act of 1933 (File
No. 33-64574) and incorporated herein by reference (see in
particular "Description of Offered Preferred Stock" in the
Prospectus Supplement and "Description of Preferred Stock" in the
Prospectus).
1.2 For a description of the Depositary Shares, reference
is hereby made to the description of the Depositary Shares
contained in the Prospectus dated May 12, 1995 as supplemented by
the Prospectus Supplement dated May 12, 1995 referred to above
and incorporated herein by reference (see in particular
"Description of Depositary Shares" in the Prospectus Supplement
and the Prospectus).
Item 2. Exhibits.
2.1 Deposit Agreement.
2.2 Certificate of Designations, authorizing the issuance
and establishing the designation, preferences and rights of the
Preferred Stock.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of
1934, the registrant has duly caused this Registration Statement
on
Form 8-A to be signed on its behalf by the undersigned, thereunto
duly authorized.
CITICORP
Registrant
By: /s/ Michael T. Nugent
Michael T. Nugent
Vice President
Date: May 19, 1995
EX-2
2
EXH. 2.1 DEPOSIT AGREEMENT
Exhibit 2.1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of May 19, 1995, among
CITICORP, a Delaware corporation, Citibank, N.A., a national
banking association, and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set
forth in this Deposit Agreement, for the deposit of shares of 7
% Cumulative Preferred Stock, Series 22, without par value, of
Citicorp with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts
evidencing Depositary Shares in respect of the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions,
modifications and omissions, as hereinafter provided in this
Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the
parties hereto agree as follows:
ARTICLE I
Definitions
The following definitions, in addition to the
definitions included elsewhere in this Deposit Agreement, shall
for all purposes, unless otherwise indicated, apply to the
respective terms used in this Deposit Agreement:
"Certificate" shall mean the certificate of
designations filed with the Secretary of State of the State of
Delaware establishing the Stock as a series of preferred stock of
the Company.
"Company" shall mean Citicorp, a Delaware corporation,
and its successors.
"Deposit Agreement" shall mean this Deposit Agreement,
as amended or supplemented from time to time.
"Depositary" shall mean Citibank, N.A., and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing a one-tenth interest in a share of Stock and
evidenced by a Receipt.
"Depositary's Agent" shall mean any agent appointed by
the Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office
of the Depositary in New York City, at which at any particular
time its depositary receipt business shall be administered.
"Receipt" shall mean one of the Depositary Receipts
issued hereunder by the Depositary, whether in definitive or
temporary form, evidencing interests held in Depositary Shares in
substantially the form set forth in Exhibit A hereto. If the
context so requires, the term "Receipt" shall be deemed to
include the DTC Receipt (as defined in Section 2.01 hereof).
"record holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the
Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which
shall be appointed to register ownership and transfers of
Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Stock" shall mean shares of the Company's 7 3/4 %
Cumulative Preferred Stock, Series 22, without par value.
ARTICLE II
Book-Entry Form, Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Book-Entry Form; Form and Transfer of
Receipts. The Company and the Depositary shall make application
to The Depository Trust Company ("DTC") for acceptance of all or
a portion of the Receipts for its book-entry settlement system.
The Company hereby appoints the Depositary acting through any
authorized officer thereof as its attorney-in-fact, with full
power to delegate, for purposes of executing any agreements,
certifications or other instruments or documents necessary or
desirable in order to effect the acceptance of such Receipts for
DTC eligibility, including but not limited to the FAST Balance
Certificate Agreement between the Depositary and DTC (the "FAST
Agreement"), a copy of which is attached as Exhibit B. So long
as the Receipts are eligible for book-entry settlement with DTC
except as provided for in Section 2.09 of this Deposit Agreement,
or unless otherwise required by law, all Depositary Shares to be
traded on the New York Stock Exchange with book-entry settlement
through DTC shall be represented by a single receipt (the "DTC
Receipt") which shall be deposited with DTC (or its designee)
evidencing all such Depositary Shares and registered in the name
of the nominee of DTC (initially expected to be Cede & Co.).
Citibank, N.A. or such other entity as is agreed to by DTC may
hold the DTC Receipt as custodian for DTC. During any period in
which any Depositary Shares are evidenced by the DTC Receipt
except as expressly provided for in Section 2.09 of this Deposit
Agreement, no person acquiring Depositary Shares traded on the
New York Stock Exchange with book-entry settlement through DTC
shall receive or be entitled to receive physical delivery of the
Receipts evidencing such Depositary Shares. Ownership of
beneficial interests in the DTC Receipt shall be shown on, and
the transfer of such ownership shall be effected through, records
maintained by (i) DTC or its nominee for such DTC Receipt, or
(ii) institutions that have accounts with DTC.
If DTC subsequently ceases to make its book-entry settlement
system available for the Receipts, the Company may instruct the
Depositary regarding making other arrangements for book-entry
settlement. In the event that the Receipts are not eligible for,
or it is no longer necessary to have the Receipts available in
book-entry form, the Depositary shall provide written
instructions to DTC to deliver to the Depositary for cancellation
the DTC Receipt, and the Company shall instruct the Depositary to
deliver to the beneficial owners of the Depositary Shares
previously evidenced by the DTC Receipt definitive Receipts in
physical form evidencing such Depositary Shares. Such definitive
Receipts shall be in the form annexed hereto as Exhibit A with
appropriate insertions, modifications and omissions, as hereafter
provided.
The beneficial owners of Depositary Shares shall, except as
stated above with respect to Depositary Shares in book-entry form
represented by the DTC Receipt, be entitled to receive Receipts
in physical, certificated form as herein provided.
The Receipts may be typewritten, in the case of the DTC
Receipt, and otherwise shall, upon notice by the Company to the
Depositary, be definitive Receipts which shall be engraved or
printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. The DTC Receipt shall bear
such legend or legends as may be required by DTC in order for it
to accept the Depositary Shares for its book-entry settlement
system. Until such time as the Receipts are so engraved or
printed or lithographed in accordance with the preceding
sentence, the Depositary, upon the written order of the Company
or any holder of Stock, as the case may be, delivered in
compliance with Section 2.02, shall execute and deliver temporary
Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine,
as evidenced by their execution of such Receipts. After the
preparation of definitive Receipts, the temporary Receipts shall
be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Depositary's Office, without charge to
the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same
number of Depositary Shares as represented by the surrendered
temporary Receipt or Receipts. Such exchange shall be made at
the Company's expense and without any charge therefor to the
holder of the Receipts. Until so exchanged, the temporary
Receipts shall in all respects be entitled to the same benefits
under this Deposit Agreement, and with respect to the Stock, as
definitive Receipts.
Receipts shall be executed by the Depositary by the
manual signature of a duly authorized officer of the Depositary,
provided that such signature may be a facsimile if a Registrar
for the Receipts (other than the Depositary) shall have been
appointed and such Receipts are countersigned by manual signature
of a duly authorized officer of the Registrar. No Receipt shall
be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose unless it shall have been
executed manually by a duly authorized officer of the Depositary
or, if a Registrar for the Receipts (other than the Depositary)
shall have been appointed, by manual or facsimile signature of a
duly authorized officer of the Depositary and countersigned
manually by a duly authorized officer of such Registrar. The
Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of
whole Depositary Shares.
Receipts may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement as may
be required by the Depositary or required to comply with any
applicable law or any regulation or with the rules and
regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform
with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are
subject.
Subject to any limitations set forth in a Receipt or in
this Deposit Agreement, title to Depositary Shares evidenced by a
Receipt which is properly endorsed or accompanied by a properly
executed instrument of transfer, shall be transferable by
delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt
shall be registered on the books of the Depositary as provided in
Section 2.04, the Depositary may, notwithstanding any notice to
the contrary, treat the record holder thereof at such time as the
absolute owner thereof for the purpose of determining the person
entitled to distributions of dividends or other distributions,
the exchange of Depositary Shares for Stock, the right to
exchange Receipts pursuant to Section 2.09 or to any notice
provided for in this Deposit Agreement and for all other
purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof. Subject to the terms and
conditions of this Deposit Agreement, the Company or any holder
of Stock may from time to time deposit shares of the Stock under
this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by law or the
Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together
with all such certifications as may be required by the Depositary
in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company or such holder, as
the case may be, directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in
such order a Receipt or Receipts for the number of Depositary
Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the
Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the
provisions of this Section, together with the other documents
required as above specified, and upon recordation of the Stock on
the books of the Company in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of
this Deposit Agreement, shall execute and deliver, to or upon the
order of the Company or a holder of Stock depositing shares of
Stock in accordance with the first paragraph of this Section, a
Receipt or Receipts for the number of Depositary Shares
representing the Stock so deposited and registered in such name
or names as may be requested by the Company or such holder. The
Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the
Depositary may designate. Delivery at other offices shall be at
the risk and expense of the person requesting such delivery. The
DTC Receipt shall provide that it shall evidence the aggregate
amount of Depositary Shares from time to time indicated in the
records of the Depositary and that the aggregate amount of
Depositary Shares evidenced thereby may from time to time be
increased or decreased by making adjustments on such records of
the Depositary.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of
dividends or other distributions of Stock, if any, there shall be
deposited hereunder not more than 500,000 shares of Stock.
SECTION 2.03. Redemption of Stock. Whenever the
Company shall elect to redeem shares of Stock in accordance with
the provisions of the Certificate, it shall (unless otherwise
agreed to in writing with the Depositary) give the Depositary not
less than 40 nor more than 70 days' notice of the date of such
proposed redemption of Stock and of the number of such shares
held by the Depositary to be so redeemed and the applicable
redemption price, as set forth in the Certificate, which notice
shall be accompanied by a certificate from the Company stating
that such redemption of Stock is in accordance with the
provisions of the Certificate. Such notice, if given more than
60 days prior to the redemption date, shall be in addition to the
notice required to be given for redemption pursuant to the
Certificate. On the date of such redemption, provided that the
Company shall then have paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus any accrued
and unpaid dividends thereon to the date of redemption, the
Depositary shall redeem the number of Depositary Shares
representing such Stock. The Depositary shall mail notice of
such redemption and the proposed simultaneous redemption of the
number of Depositary Shares representing the Stock to be redeemed
by first-class mail, postage prepaid, not less than 30 and not
more than 60 days prior to the date fixed for redemption of such
Stock and Depositary Shares (the "Redemption Date"), to the
record holders of the Receipts evidencing the Depositary Shares
to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to
mail any such notice to one or more such holders nor any defect
in any notice to one or more such holders shall affect the
sufficiency of the proceedings for redemption as to other
holders. Each such notice shall state: (i) the Redemption Date;
(ii) the number of Depositary Shares to be redeemed and, if less
than all the Depositary Shares held by any such holder are to be
redeemed, the number of such Depositary Shares held by such
holder to be so redeemed; (iii) the redemption price; (iv) the
place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v)
that dividends in respect of the Stock represented by the
Depositary Shares to be redeemed will cease to accumulate on such
Redemption Date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be
so redeemed shall be selected by lot or pro rata as may be
determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as
aforesaid, from and after the Redemption Date (unless the Company
shall have failed to redeem the shares of Stock to be redeemed by
it as set forth in the Company's notice provided for in the
preceding paragraph) all dividends in respect of the shares of
Stock so called for redemption shall cease to accrue, the
Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of
Receipts evidencing such Depositary Shares (except the right to
receive the redemption price therefor) shall, to the extent of
such Depositary Shares, cease and terminate and, upon surrender
in accordance with such notice of the Receipts evidencing any
such Depositary Shares called for redemption (properly endorsed
or assigned for transfer, if the Depositary shall so require),
such Depositary Shares shall be redeemed by the Depositary at a
redemption price per Depositary Share equal to one-tenth of the
redemption price per share paid in respect of the shares of Stock
so redeemed plus all money and other property, if any,
represented by such Depositary Shares, including all amounts paid
by the Company in respect of accrued and unpaid dividends
(whether or not declared) to the date of redemption.
If less than all the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary,
together with the redemption payment, a new Receipt evidencing
the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
SECTION 2.04. Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement,
the Depositary shall register on its books from time to time
transfers of Receipts upon any surrender thereof by the holder in
person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer.
Thereupon the Depositary shall execute a new Receipt or Receipts
evidencing the same aggregate number of Depositary Shares as
those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of
a Receipt or Receipts at the Depositary's Office or at such other
offices as it may designate for the purpose of effecting a
split-up
or combination of such Receipt or Receipts, and subject to the
terms and conditions of this Deposit Agreement, the Depositary
shall execute and deliver a new Receipt or Receipts in the
authorized denomination or denominations requested, evidencing
the aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any
number of whole shares of Stock (or such holder's duly authorized
attorney) may withdraw the Stock and all money and other
property, if any, represented thereby by surrendering such
Receipt or Receipts at the Depositary's Office or at such other
offices as the Depositary may designate for such withdrawals. If
such holder's Depositary Shares are being held by DTC or its
nominee pursuant to Section 2.01, such holder shall request, in
accordance with Section 2.09, withdrawal from the book-entry
system of the number of Depositary Shares specified in the
preceding sentence. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or
persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property,
if any, represented by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole shares of Stock will not
thereafter be entitled to deposit such Stock hereunder or to
receive Depositary Shares in exchange therefor. If a Receipt
delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess
of the number of Depositary Shares representing the number of
whole shares of Stock to be so withdrawn, the Depositary shall at
the same time, in addition to such number of whole shares of
Stock and such money and other property, if any, to be so
withdrawn, deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of
the Stock and money and other property being withdrawn may be
made by the delivery of such certificates, documents of title and
other instruments as the Depositary may deem appropriate.
Stock delivered pursuant to the preceding paragraph may
be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the
Depositary or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any
securities exchange upon which the Stock may be listed or to
conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular
shares of Stock are subject.
If the Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than
the record holder of the Receipt or Receipts being surrendered
for withdrawal of Stock, such holder shall execute and deliver to
the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock
be properly endorsed in blank or accompanied by a properly
executed instrument of transfer in blank.
Delivery of the Stock and the money and other property,
if any, represented by Receipts surrendered for withdrawal shall
be made by the Depositary at the Depositary's Office, except
that, at the request, risk and expense of the holder surrendering
such Receipt or Receipts and for the account of the holder
thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts. As a condition
precedent to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of any
Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the
payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt pursuant
to Section 5.07 (or evidence reasonably satisfactory to the
Company that such charges and expenses have been paid), may
require the production of evidence satisfactory to it as to the
identity and genuineness of any signature and may also require
compliance with such regulations, if any, as the Depositary or
the Company may establish consistent with the provisions of this
Deposit Agreement.
The deposit of Stock may be refused, the delivery of
Receipts against Stock may be suspended, the registration of
transfer of Receipts may be refused and the registration of
transfer, surrender or exchange of outstanding Receipts may be
suspended (i) during any period when the register of stockholders
of the Company is closed or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body
or commission or under any provision of this Deposit Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt
shall be mutilated, destroyed, lost or stolen, the Depositary in
its discretion may execute and deliver a Receipt of like form and
tenor in exchange and substitution for such mutilated Receipt, or
in lieu of and in substitution for such destroyed, lost or stolen
Receipt, upon (i) the filing by the holder thereof with the
Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity
thereof and of his or her ownership thereof and (ii) the
furnishing of the Depositary with reasonable indemnification
satisfactory to it.
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts. All Receipts surrendered to the Depositary
or any Depositary's Agent shall be cancelled by the Depositary.
Except as prohibited by applicable law or regulation, the
Depositary is authorized to destroy all Receipts so cancelled.
Any Receipt evidenced in book-entry form shall be deemed
cancelled when the Depositary has caused the amount of Depositary
Shares evidenced by the DTC Receipt to be reduced in proportion
to the number of Depositary Shares evidenced by the surrendered
Receipt.
SECTION 2.09. Interchangeability of Book-Entry
Receipts and Receipts in Physical, Certificated Form. Subject to
the terms and conditions of this Deposit Agreement, upon receipt
by the Depositary of written instructions from a DTC participant
on behalf of any person having a beneficial interest in
Depositary Shares evidenced by the DTC Receipt for the purpose of
directing the Depositary to execute and deliver a Receipt in
physical, certificated form evidencing such Depositary Shares,
the Depositary shall follow the procedures set forth in the FAST
Agreement for the purpose of reducing the number of Depositary
Shares evidenced by the DTC Receipt and, following such
reduction, shall execute and deliver to or upon the order of the
person or persons named in such order a Receipt or Receipts
registered in the name or names requested by such person and
evidencing in the aggregate the number of Depositary Shares equal
to the reduction in the number evidenced by the DTC Receipt. The
Depositary may require in such written instructions any
certification or representation as it shall deem necessary to
comply with applicable law.
Subject to the terms and conditions of this Deposit
Agreement, upon receipt by the Depositary of a Receipt or
Receipts in physical, certificated form, duly endorsed or
accompanied by appropriate instruments of transfer, in form
satisfactory to the Depositary, including any required
certifications, and together with written instructions directing
the Depositary to adjust its records to reflect an increase in
the aggregate amount of Depositary Shares evidenced by the DTC
Receipt (including, without limitation, information regarding the
DTC participant account to be credited with such increase), and
upon payment of the fees and expenses of the Depositary, the
Depositary shall cancel such Receipt or Receipts in physical,
certificated form and shall follow the procedures set forth in
the FAST Agreement for the purpose of reflecting such increase in
the number of Depositary Shares evidenced by the DTC Receipt.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time
to time to file such proof of residence, or other matters or
other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of
transfer, redemption or exchange, of any Receipt or the
withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or
other distribution or the sale of any rights or of the proceeds
thereof until such proof or other information is filed or such
certificates are executed or such representations and warranties
are made.
SECTION 3.02. Payment of Taxes or Other Governmental
Charges. Holders of Receipts shall be obligated to make payments
to the Depositary of certain charges and expenses as provided in
Section 5.07, or provide reasonably satisfactory evidence to the
Depositary that such charges and expenses have been paid.
Registration of transfer of any Receipt or any withdrawal of
Stock and all money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused until
any such payment due is made, and any dividends, interest
payments or other distributions may be withheld or any part of or
all the Stock or other property represented by the Depositary
Shares evidenced by such Receipt and not theretofore sold may be
sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such
charges or expenses, the holder of such Receipt remaining liable
for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company
hereby represents and warrants that the Stock, when issued, will
be validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of the
Stock and the issuance of the Receipts.
SECTION 3.04. Warranty as to Receipts. The Depositary
hereby represents and warrants that the Receipts, when issued,
will be legal, valid and binding obligations of the Depositary,
enforceable against the Depositary in accordance with their
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting
creditors' rights generally and by general equitable principles.
Such representation and warranty shall survive the deposit of the
Stock and the issuance of the Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on Stock, the Depositary shall, subject to Sections
3.01 and 3.02, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.04 such amounts of such
dividend or distribution as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or
other cash distribution in respect of the Stock an amount on
account of taxes, the amount made available for distribution or
distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however,
as can be distributed without attributing to any holder of
Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution
to record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges. Whenever the Depositary shall receive
any distribution other than cash, rights, preferences or
privileges upon Stock, the Depositary shall, subject to Sections
3.01 and 3.02, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.04 such amounts of the
securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders,
in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution. If in the
opinion of the Depositary such distribution cannot be made
proportionately among such record holders, or if for any other
reason (including any requirement that the Company or the
Depositary withhold an amount on account of taxes) the Depositary
deems, after consultation with the Company, such distribution not
to be feasible, the Depositary may, with the approval of the
Company, adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and
upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided
by Section 4.01 in the case of a distribution received in cash.
The Company shall not make any distribution of such securities
unless the Company shall have provided an opinion of counsel
stating that such securities have been registered under the
Securities Act or do not need to be so registered.
SECTION 4.03. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to
be offered to the persons in whose names Stock is recorded on the
books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in
such manner as the Depositary may determine, either by the issue
to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of
the Company; provided, however, that (i) if at the time of issue
or offer of any such rights, preferences or privileges the
Depositary determines that it is not lawful or (after
consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the
issue of warrants or otherwise, or (ii) if and to the extent so
instructed by holders of Receipts who do not desire to exercise
such rights, preferences or privileges, then the Depositary, in
its discretion (with approval of the Company, in any case where
the Depositary has determined that it is not feasible to make
such rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences or
privileges permit such transfer, sell such rights, preferences or
privileges at public or private sale, at such place or places and
upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any
distribution of any such rights, preferences or privileges unless
the Company shall have provided an opinion of counsel stating
that such rights, preferences or privileges have been registered
under the Securities Act or do not need to be so registered.
If registration under the Securities Act of the
securities to which any rights, preferences or privileges relate
is required in order for holders of Receipts to be offered or
sold the securities to which such rights, preferences or
privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act
with respect to such rights, preferences or privileges and
securities and use its best efforts and take all steps available
to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall
have become effective, or unless the offering and sale of such
securities to such holders are exempt from registration under the
provisions of the Securities Act.
If any other action under the laws of any jurisdiction
or any governmental or administrative authorization, consent or
permit is required in order for such rights, preferences or
privileges to be made available to holders of Receipts, the
Company agrees with the Depositary that the Company will use its
best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
SECTION 4.04. Fixing of Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time
be offered, with respect to Stock, or whenever the Depositary
shall receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to
notice, or whenever the Depositary and the Company shall decide
it is appropriate, the Depositary shall in each such instance fix
a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the
determination of the holders of Receipts who shall be entitled to
receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting or
for any other appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice which shall contain (i) such
information as is contained in such notice of meeting and (ii) a
statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Stock represented by
their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to
give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions
may be given. Upon the written request of the holders of
Receipts on the relevant record date, the Depositary shall vote
or cause to be voted, in accordance with the instructions set
forth in such requests, the maximum number of shares of Stock
represented by the Depositary Shares evidenced by all Receipts as
to which any particular voting instructions are received. The
Company hereby agrees to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to
vote such Stock or cause such Stock to be voted. In the absence
of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting (but, at its discretion, not
from appearing at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to
the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
Holders of Receipts shall also be entitled to vote on
certain amendments to the Deposit Agreement pursuant to Section
6.01 hereof.
SECTION 4.06. Changes Affecting Deposited Securities
and Reclassifications, Recapitalizations, etc. Upon any change
in par or stated value, split-up, combination or any other
reclassification of the Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting
the Company or to which it is a party or sale of all or
substantially all of the Company's assets, the Depositary may in
its discretion with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner
as the Depositary may deem equitable, (i) make such adjustments
as are certified by the Company in (x) the fraction of an
interest represented by one Depositary Share in one share of
Stock and (y) the ratio of the redemption price per Depositary
Share to the redemption price of a share of Stock, in each case
as may be necessary fully to reflect the effects of such change
in par or stated value, split-up, combination or other
reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation, consolidation, or sale of
all or substantially all of the Company's assets and (ii) treat
any securities which shall be received by the Depositary in
exchange for or upon conversion of or in respect of the Stock as
new deposited securities so received in exchange for or upon
conversion or in respect of such Stock. In any such case the
Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or may call for
the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities.
Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date
of any such change in par or stated value, split-up, combination
or other reclassification of the Stock or any such
recapitalization, reorganization, merger, amalgamation,
consolidation or sale of all or substantially all of the
Company's assets to surrender such Receipts to the Depositary
with instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the
kind and amount of shares of stock and other securities and
property and cash into which the Stock represented by such
Receipts might have been converted or for which such Stock might
have been exchanged or surrendered immediately prior to the
effective date of such transaction.
SECTION 4.07. Inspection of Reports. The Depositary
shall make available for inspection by holders of Receipts at the
Depositary's Office, and at such other places as it may from time
to time deem advisable, any reports and communications received
from the Company which are received by the Depositary as the
holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon
request from time to time by the Company, the Depositary shall
furnish to it a list, as of a recent date, of the names,
addresses and holdings of Depositary Shares of all persons in
whose names Receipts are registered on the books of the
Depositary.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary; Registrar. Upon execution of
this Deposit Agreement, the Depositary shall maintain at the
Depositary's Office, facilities for the execution and delivery,
registration and registration of transfer, surrender and exchange
of Receipts, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, registration of transfer,
surrender and exchange of Receipts, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's
Office for the registration and registration of transfer of
Receipts, and to reflect split-ups and combinations of Depositary
Shares, which books at all reasonable times shall be open for
inspection by the record holders of Receipts; provided, that any
such holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books only when the
register of stockholders of the Company is closed.
The Depositary may, with the approval of the Company,
appoint a Registrar for registration of the Receipts or the
Depositary Shares evidenced thereby. If the Receipts or the
Depositary Shares evidenced thereby or the Stock represented by
such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary will appoint a Registrar (acceptable to
the Company) for registration of such Receipts or Depositary
Shares in accordance with any requirements of such Exchange. The
Depositary shall initially act as Registrar. Such Registrar may
be removed and a substitute registrar appointed by the Depositary
upon the request or with the approval of the Company. If the
Receipts, such Depositary Shares or such Stock are listed on one
or more other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of
such Receipts, such Depositary Shares or such Stock as may be
required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by
the Depositary, the Depositary's Agents, the Registrar or the
Company. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company shall incur any liability to any
holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United
States of America or of any other governmental authority or, in
the case of the Depositary, the Depositary's Agent or the
Registrar, by reason of any provision, present or future, of the
Company's Restated Certificate of Incorporation, as amended
(including the Certificate) or by reason of any act of God or war
or other circumstance beyond the control of the relevant party,
the Depositary, the Depositary's Agent, the Registrar or the
Company shall be prevented or forbidden from, or subjected to any
penalty on account of, doing or performing any act or thing which
the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any
Registrar or the Company incur any liability to any holder of a
Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms
of this Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement
except, in the case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the negligence
or willful misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the
Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Receipts
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other
proceeding in respect of the Stock, the Depositary Shares or the
Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company shall be liable for any action or
any failure to act by it in reliance upon the written advice of
legal counsel or accountants, or information from any person
presenting Stock for deposit, any holder of a Receipt or any
other person believed by it in good faith to be competent to give
such information. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be
protected in acting upon any written notice, request, direction
or other document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure
to carry out any instruction to vote any of the shares of Stock
or for the manner or effect of any such vote made, as long as any
such action or non-action is in good faith and does not result
from the gross negligence or willful misconduct of the
Depositary. The Depositary undertakes, and any Registrar shall
be required to undertake, to perform such duties and only such
duties as are specifically set forth in this Deposit Agreement,
and no implied covenants or obligations shall be read into this
Deposit Agreement against the Depositary or any Registrar. The
Depositary will indemnify the Company against any liability which
may arise out of acts performed or omitted by the Depositary or
the Depositary's Agents due to its or their negligence or bad
faith. The Depositary, the Depositary's Agents, and any
Registrar may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Depositary may
also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of Successor Depositary. The Depositary
may at any time resign as Depositary hereunder by notice of its
election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the
Company by notice of such removal delivered to the Depositary,
such removal to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder
shall resign or be removed, the Company shall, within 60 days
after the delivery of the notice of resignation or removal, as
the case may be, appoint a successor Depositary, which shall be a
bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at
least $50,000,000. If no successor Depositary shall have been so
appointed and have accepted appointment within 60 days after
delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment
of a successor Depositary. Every successor Depositary shall
execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and
thereupon such successor Depositary, without any further act or
deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes
shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written
request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Stock and any moneys or
property held hereunder to such successor, and shall deliver to
such successor a list of the record holders of all outstanding
Receipts. Any successor Depositary shall promptly mail notice of
its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may
be merged, consolidated or converted shall be the successor of
such Depositary without the execution or filing of any document
or any further act, and notice thereof shall not be required
hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name
of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The
Company agrees that it will transmit, or will cause the
Depositary to transmit, to the record holders of Receipts, in
each case at the addresses furnished to it pursuant to Section
4.08, all notices and reports (including without limitation
financial statements) required by law, by the rules of any
national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Company's Restated
Certificate of Incorporation, as amended (including the
Certificate), to be furnished by the Company to holders of Stock.
Such transmission will be at the Company's expense.
SECTION 5.06. Indemnification by the Company. The
Company shall indemnify the Depositary, any Depositary's Agent
and any Registrar against, and hold each of them harmless from,
any loss, liability or expense (including the costs and expenses
of defending itself) which may arise out of (a) acts performed or
omitted in connection with this Deposit Agreement and the
Receipts (i) by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent), except for
any liability arising out of negligence or bad faith on the
respective parts of any such person or persons, or (ii) by the
Company or any of its agents, or (b) the offer, sale or
registration of the Receipts or the Stock pursuant to the
provisions hereof. The obligations of the Company set forth in
this Section 5.06 shall survive any succession of any Depositary,
Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall
pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. The
Company shall pay all charges of the Depositary in connection
with the initial deposit of the Stock, the initial issuance of
the Depositary Shares and any redemption of the Stock at the
option of the Company and all withdrawals of shares of the Stock
by owners of Depositary Shares. All other transfer and other
taxes and governmental charges shall be at the expense of holders
of Depositary Shares. The Depositary may refuse to effect any
transfer of a Receipt or any withdrawal of Stock evidenced
thereby until all such taxes and charges with respect to such
Receipt or Stock are paid by the holder thereof. If a holder of
Receipts requests the Depositary to perform duties not required
under this Deposit Agreement, the Depositary shall notify the
holder of the approximate cost of the performance of such duties.
If such duties are subsequently performed at the request of such
holder, such holder will be liable for such charges and expenses.
All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in
each case, fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be
paid upon consultation and agreement between the Depositary and
the Company as to the amount and nature of such charges and
expenses. The Depositary shall present its statement for charges
and expenses to the Company once every three months or at such
other intervals as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and
any provisions of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or
desirable; provided, however, that no such amendment (other than
any change in the fees of any Depositary, Registrar or Transfer
Agent, which shall go into effect not sooner than three months
after notice thereof to the holders of the Receipts) which shall
materially and adversely alter the rights of the holders of
Receipts shall be effective unless such amendment shall have been
approved by the holders of at least a majority (or, in the case
of amendments relating to or affecting rights of the holders of
Receipts to receive dividends or distributions, or voting or
redemption rights, two-thirds) of the Depositary Shares then
outstanding. Every holder of an outstanding Receipt at the time
any such amendment becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended
thereby.
SECTION 6.02. Termination. This Deposit Agreement may
be terminated by the Company or the Depositary only (i) after all
outstanding Depositary Shares shall have been redeemed pursuant
to Section 2.03, (ii) after there shall have been made a final
distribution in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the holders of
Depositary Shares pursuant to Section 4.01 or 4.02, as
applicable, or (iii) upon the consent of holders of Receipts
representing not less than two- thirds of the Depositary Shares
then outstanding.
Whenever the Deposit Agreement has been terminated pursuant
to (iii) above, the Depositary will mail notice of such
termination to the record holders of all Depositary Shares then
outstanding at least 30 days prior to the date fixed in that
notice for termination of the Deposit Agreement. If any
Depositary Shares remain outstanding after the date of
termination, the Depositary thereafter will discontinue the
transfer of Depositary Shares, will suspend the distribution of
dividends to the owners thereof, and will not give any further
notices (other than notice of such termination) or perform any
further acts under this Deposit Agreement, except that the
Depositary will continue (i) to collect dividends on the Stock
and any other distributions with respect thereto, (ii) to deliver
or cause to be delivered shares of Stock, together with such
dividends and distributions, or principal and interest, and the
net proceeds of any sales of rights, preferences, privileges or
other property (other than real property) in exchange for
Depositary Shares surrendered. At any time after the expiration
of three years from the date of termination, the Depositary may
sell the Stock then held by it at public or private sale, at such
place or places and upon such terms as it deems proper and may
thereafter hold the net proceeds of any such sale, without
liability for interest, for the pro rata benefit of the owners of
the Depositary Shares which have not theretofore been
surrendered. Subject to applicable escheat laws, any monies set
aside by the Company in respect of any payment with respect to
the Stock represented by the Depositary Shares, or dividends
thereon, and unclaimed at the end of three years from the date
upon which such payment is due and payable shall revert to the
general funds of the Company, after which reversion the holders
of such Depositary Shares shall look only to the general funds of
the Company for the payment thereof.
Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit
Agreement except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.06 and
5.07.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement
may be executed in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall
constitute one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This
Deposit Agreement is for the exclusive benefit of the parties
hereto, including the holders of the Receipts, and their
respective successors hereunder, and shall not be deemed to give
any legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any
one or more of the provisions contained in this Deposit Agreement
or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Notices. Any and all notices to be
given to the Company hereunder or under the Receipts shall be in
writing and shall be deemed to have been duly given if personally
delivered or sent by mail or by telecopy, addressed to the
Company at 153 East 53rd Street, Sixth Floor, New York, New York
10043, telecopy number (212) 527-2765, to the attention of the
Office of Corporate Finance, or at any other address of which the
Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary
hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by
mail or by telecopy, addressed to the Depositary at the
Depositary's Office at 111 Wall Street, 5th Floor, New York, New
York 10043, telecopy number (212) 825-3483, or at any other
address of which the Depositary shall have notified the Company
in writing.
Any and all notices to be given to any record holder of
a Receipt hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered
or sent by mail or by telegram or telex confirmed by letter,
addressed to such record holder at the address of such record
holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request
that notices intended for such holder be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail shall be deemed to be
effected at the time when a duly addressed letter containing the
same is deposited, postage prepaid, in a post office letter box.
Delivery of a notice sent by telecopy shall be effected at the
time receipt of such communication is confirmed.
SECTION 7.05. Depositary's Agents. The Depositary may
from time to time appoint Depositary's Agents to act in any
respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's
Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such
action.
SECTION 7.06. Holders of Receipts Are Parties. The
holders of Receipts from time to time shall be parties to this
Deposit Agreement and shall be bound by and entitled to the
benefits of all of the terms and conditions hereof and of the
Receipts by acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement
and the Receipts and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by, and construed
in accordance with, the laws of the State of New York.
SECTION 7.08. Inspection of Deposit Agreement. Copies
of this Deposit Agreement shall be filed with the Depositary and
the Depositary's Agents and shall be open to inspection during
business hours at the Depositary's Office and the respective
offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.09. Headings. The headings of articles and
sections in this Deposit Agreement and in the form of Receipt set
forth in Exhibit A hereto have been inserted for convenience only
and are not to be regarded as a part of this Deposit Agreement or
the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have
duly executed this Deposit Agreement as of the day and year first
above set forth, and all holders of Receipts shall become parties
hereto by and upon acceptance by them of delivery of Receipts
issued in accordance with the terms hereof.
CITICORP
By: /S/Michael T. Nugent
----------------------
Michael T. Nugent
Vice President
CITIBANK, N.A. as Depositary
By: /S/John Reasor
---------------------
John Reasor
Assistant Vice President
EX-2
3
EXH. 2.2 CERT. OF DESIG
Exhibit 2.2
CITICORP
___________
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
_____________
7 3/4 % CUMULATIVE PREFERRED STOCK, SERIES 22
(Without Par Value)
______________
CITICORP, a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), HEREBY
CERTIFIES that the following resolution was duly adopted by the
Board of Directors of the Corporation pursuant to authority
conferred upon the Board of Directors by the provisions of the
Restated Certificate of Incorporation of the Corporation, which
authorizes the issuance of up to 50,000,000 shares of preferred
stock without par value, and by the Stock Committee of the Board
of Directors, pursuant to authority conferred upon the Stock
Committee of the Board of Directors in accordance with Section
141(c) of the General Corporation Law of the State of Delaware,
by Article 5, Section 1 of the By-Laws of the Corporation and by
resolutions of the Board of Directors at meetings of the Board of
Directors duly held on March 21, 1989, October 16, 1990,
September 17, 1991, January 19, 1993 and April 18, 1995, at a
meeting of the Stock Committee of the Board of Directors duly
held on May 12, 1995:
RESOLVED, that the issue of a series of preferred stock
without par value of this Corporation is hereby
authorized and the designation, powers, preferences and
privileges, relative, participating, optional and other
special rights, and qualifications, limitations and
restrictions thereof, in addition to those set forth in
the Restated Certificate of Incorporation, as amended,
of the Corporation, are hereby fixed as follows:
7 3/4 % CUMULATIVE PREFERRED STOCK, SERIES 22
(1) Number of Shares and Designation. 500,000 shares of
the preferred stock without par value of the Corporation are
hereby constituted as a series of preferred stock without par
value designated as "7 3/4 % Cumulative Preferred Stock, Series
22"
(hereinafter called the "Preferred Stock, Series 22").
(2) Dividends. (a) The holders of shares of the
Preferred Stock, Series 22, shall be entitled to receive cash
dividends, as, if and when declared by the Board of Directors of
the Corporation (the "Board of Directors") or by the Stock
Committee of said Board of Directors (the "Stock Committee"), out
of funds legally available for that purpose, at the rate set
forth below in this Section (2) applied to the amount of $250 per
share. Such dividends shall be cumulative from the date of
original issue of such shares and shall be payable quarterly, as,
if and when declared by the Board of Directors or by the Stock
Committee on February 15, May 15, August 15 and November 15 of
each year, commencing on August 15, 1995. Each such dividend
shall be payable in arrears to the holders of record of shares of
the Preferred Stock, Series 22, as they appear on the stock
register of the Corporation on such record dates, not more than
30 nor less than 15 days preceding the payment dates thereof, as
shall be fixed by the Board of Directors or the Stock Committee.
Dividends on account of arrears for any past Dividend Periods (as
defined in subsection (b) of this Section (2)) may be declared
and paid at any time, without reference to any regular dividend
payment date, to holders of record on such date, not exceeding 45
days preceding the payment date thereof, as may be fixed by the
Board of Directors or the Stock Committee.
(b) Dividend periods ("Dividend Periods") shall commence on
February 15, May 15, August 15 and November 15 of each year other
than the initial Dividend Period, which shall commence on the
date of original issue of the Preferred Stock, Series 22 and
shall end on and include the calendar day next preceding the
first day of the next Dividend Period. The dividend rate on the
shares of Preferred Stock, Series 22, for the period from the
date of original issue thereof to but not including August 15,
1995 will be $4.628 per share of Preferred Stock, Series 22 and
such dividends shall be payable on August 15, 1995. For each
Dividend Period thereafter the dividend rate on the shares of
Preferred Stock, Series 22 shall be 7 3/4 % per annum. The
amount
of dividends payable for each full Dividend Period for the
Preferred Stock, Series 22, shall be computed by dividing the
dividend rate of 7 3/4 % per annum by four and applying the
resulting rate of 1.9375% to the amount of $250 per share. The
amount of dividends payable for any period shorter or longer than
a full Dividend Period on the Preferred Stock, Series 22, shall
be computed on the basis of twelve 30-day months, a 360-day year
and, for any Dividend Period of less than one month (other than
the initial Dividend Period), the actual number of days elapsed
in such period. Unless otherwise required by law, dividends
payable with respect to each share of Preferred Stock, Series 22,
shall be rounded to the nearest one cent, with $.005 being
rounded upward. Holders of shares called for redemption on a
redemption date between a dividend payment record date and the
dividend payment date shall not be entitled to receive the
dividend payable on such dividend payment date.
(c) So long as any shares of the Preferred Stock, Series 22
are outstanding, no full dividends shall be declared or paid or
set apart for payment on the preferred stock of the Corporation
of any series ranking, as to dividends, on a parity with or
junior to the Preferred Stock, Series 22, for any period unless
full cumulative dividends for all Dividend Periods terminating on
or prior to the date of payment of such full dividends have been
or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on
the Preferred Stock, Series 22. When dividends are not paid in
full, as aforesaid, upon the shares of the Preferred Stock,
Series 22, and any other preferred stock of the Corporation
ranking on a parity as to dividends with the Preferred Stock,
Series 22, all dividends declared upon shares of the Preferred
Stock, Series 22, and any other preferred stock of the
Corporation ranking on a parity as to dividends (whether
dividends on such other preferred stock are cumulative or
noncumulative) with the Preferred Stock, Series 22, shall be
declared pro rata so that the amount of dividends declared per
share on the Preferred Stock, Series 22, and such other preferred
stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the shares of the Preferred Stock,
Series 22 and such other preferred stock bear to each other (but
without any cumulation in respect of unpaid dividends on any
noncumulative preferred stock). Holders of shares of the
Preferred Stock, Series 22 shall not be entitled to any
dividends, whether payable in cash, property or stock, in excess
of full cumulative dividends, as herein provided, on the
Preferred Stock, Series 22. No interest, or sum of money in lieu
of interest, shall be payable in respect of any dividend payment
on the Preferred Stock, Series 22 which may be in arrears.
(d) So long as any shares of the Preferred Stock, Series 22
are outstanding, no dividend (other than dividends or
distributions paid in shares of, or options, warrants or rights
to subscribe for or purchase shares of stock ranking junior to
the Preferred Stock, Series 22, as to dividends and upon
liquidation and other than as provided in subsection (c) of this
Section (2)) shall be declared or paid or set aside for payment
or other distribution declared or made upon any stock of the
Corporation ranking junior to or on a parity with the Preferred
Stock, Series 22, as to dividends or upon liquidation, nor shall
any stock of the Corporation ranking junior to or on a parity
with the Preferred Stock, Series 22, as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any shares of any such stock)
by the Corporation (except by conversion into or exchange for
stock of the Corporation ranking junior to the Preferred Stock,
Series 22, as to dividends and upon liquidation) unless, in each
case, full cumulative dividends for all Dividend Periods
terminating on or prior to the date of payment of such full
dividends on all outstanding shares of the Preferred Stock,
Series 22, shall have been paid or set apart for payment and the
Corporation is not in default with respect to any redemption of
shares of Preferred Stock, Series 22, announced by the
Corporation pursuant to Section (4) below.
(3) Liquidation Preference. (a) In the event of any
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or
surplus) shall be made to or set apart for the holders of any
series or class or classes of stock of the Corporation ranking
junior to the Preferred Stock, Series 22, upon liquidation,
dissolution or winding up, the holders of the shares of the
Preferred Stock, Series 22, shall be entitled to receive $250 per
share plus an amount equal to all dividends (whether or not
earned or declared) accrued and unpaid thereon to the date of
final distribution to such holders; but such holders shall not be
entitled to any further payment. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders
of the shares of the Preferred Stock, Series 22, shall be
insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other preferred stock ranking, as to
liquidation, dissolution or winding up, on a parity with the
Preferred Stock, Series 22, then such assets, or the proceeds
thereof, shall be distributed among the holders of shares of
Preferred Stock, Series 22, and any such other preferred stock
ratably in accordance with the respective amounts which would be
payable on such shares of Preferred Stock, Series 22, and any
such other preferred stock if all amounts payable thereon were
paid in full. For the purposes of this Section (3), a
consolidation or merger of the Corporation with one or more
corporations shall not be deemed to be a liquidation, dissolution
or winding up, voluntary or involuntary.
(b) Subject to the rights of holders of shares of any
series or class or classes of stock ranking on a parity with or
prior to the Preferred Stock, Series 22, as to distribution of
assets upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Corporation, after
payment shall have been made in full to the holders of Preferred
Stock, Series 22, as provided in this Section (3), but not prior
thereto, any other series or class or classes of stock ranking
junior to the Preferred Stock, Series 22, upon liquidation shall,
subject to the respective terms and provisions (if any) applying
thereto, be entitled to receive any and all assets remaining to
be paid or distributed, and the holders of the Preferred Stock,
Series 22, shall not be entitled to share therein.
(4) Redemption. (a) Except as provided in subsection
(b) of this Section (4), the Preferred Stock, Series 22, may not
be redeemed prior to May 15, 2000. At any time or from time to
time on and after May 15, 2000, the Corporation, at its option,
may, with prior Federal Reserve Board approval to the extent then
required by applicable law, redeem shares of the Preferred Stock,
Series 22, in whole or in part, out of funds legally available
therefor, at a redemption price of $250 per share, together in
each case with accrued and unpaid dividends (whether or not
declared) to the date fixed for redemption.
(b) Prior to May 15, 2000, the Corporation, at its option,
may, with prior Federal Reserve Board approval to the extent then
required by applicable law, redeem all, but not less than all, of
the outstanding shares of the Preferred Stock, Series 22, out of
funds legally available therefor if the holders of the shares of
the Preferred Stock, Series 22, shall be entitled to vote upon or
consent to a merger or consolidation of the Corporation as
provided in Section 11 below and all of the following conditions
have been satisfied: (i) the Corporation shall have requested the
vote or consent of the holders of the Preferred Stock, Series 22,
to the consummation of such merger or consolidation, stating in
such request that failing the requisite favorable vote or consent
the Corporation will have the option to redeem the Preferred
Stock, Series 22, (ii) the Corporation shall not have received
the favorable vote or consent requisite to the consummation of
the transaction within 60 days after making such written request
(which shall be deemed to have been made upon the mailing of the
notice of any meeting of holders of the Preferred Stock, Series
22, to vote upon such merger or consolidation or the mailing of
the form of written consent to be signed by such holders), and
(iii) such transaction shall be consummated on the date fixed for
such redemption, which date shall be no more than one year after
such request is made. Any such redemption shall be on notice as
set forth in subsection (c) of this Section 4 at a redemption
price of $250 per share of the Preferred Stock, Series 22,
together with accrued and unpaid dividends (whether or not
declared) to the date fixed for redemption.
(c) In the event the Corporation shall redeem shares of
Preferred Stock, Series 22, notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the redemption date, to each
holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock register of the
Corporation. Each such notice shall state: (1) the redemption
date; (2) the number of shares of Preferred Stock, Series 22, to
be redeemed and, if less than all the shares held by such holder
are to be redeemed, the number of such shares to be redeemed from
such holder; (3) the redemption price; (4) the place or places
where certificates for such shares are to be surrendered for
payment of the redemption price; and (5) that dividends on the
shares to be redeemed will cease to accrue on such redemption
date. Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation
in providing money for the payment of the redemption price,
together with accrued and unpaid dividends to the date of
redemption) dividends on the shares of the Preferred Stock,
Series 22, so called for redemption shall cease to accrue, and
said shares shall no longer be deemed to be outstanding, and all
rights of the holders thereof as stockholders of the Corporation
(except the right to receive from the Corporation the redemption
price, together with accrued and unpaid dividends (whether or not
declared) to the date fixed for redemption) shall cease. The
Corporation's obligation to provide moneys in accordance with the
preceding sentence shall be deemed fulfilled if, on or before the
redemption date, the Corporation shall deposit with a bank or
trust company (which may be an affiliate of the Corporation)
having an office in the Borough of Manhattan, City of New York,
having a capital and surplus of at least $50,000,000, funds
necessary for such redemption, in trust, with irrevocable
instructions that such funds be applied to the redemption of the
shares of Preferred Stock, Series 22, so called for redemption.
Any interest accrued on such funds shall be paid to the
Corporation from time to time. Any funds so deposited and
unclaimed at the end of two years from such redemption date shall
be released or repaid to the Corporation, after which the holder
or holders of such shares of Preferred Stock, Series 22, so
called for redemption shall look only to the Corporation for
payment of the funds necessary for such redemption.
Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors shall so require
and the notice shall so state), such shares shall be redeemed by
the Corporation at the applicable redemption price aforesaid,
together with accrued and unpaid dividends to the date of
redemption. If less than all the outstanding shares of Preferred
Stock, Series 22, are to be redeemed, shares to be redeemed shall
be selected by the Corporation from outstanding shares of
Preferred Stock, Series 22, not previously called for redemption
by lot or pro rata (as nearly as may be) or by any other method
determined by the Corporation in its sole discretion to be
equitable. If fewer than all the shares represented by any
certificate are redeemed a new certificate shall be issued
representing the unredeemed shares without cost to the holder
thereof.
(d) In no event shall the Corporation redeem less than all
the outstanding shares of Preferred Stock, Series 22, pursuant to
subsection (a) of this Section (4) unless full dividends shall
have been paid or declared and set apart for payment upon all
outstanding shares of Preferred Stock, Series 22, for all
Dividend Periods ending on or prior to the date of redemption.
(5) Shares to be Retired. All shares of Preferred Stock,
Series 22, purchased or redeemed by the Corporation shall be
retired and canceled and the Board of Directors shall cause to be
taken all action necessary to restore such shares to the status
of authorized but unissued shares of preferred stock, without
designation as to series, and such shares may thereafter be
issued, but not as shares of Preferred Stock, Series 22.
(6) Conversion or Exchange. The holders of shares of
Preferred Stock, Series 22, shall not have any rights herein to
convert such shares into or exchange such shares for shares of
any other class or classes or of any other series of any class or
classes of capital stock (or any other security) of the
Corporation.
(7) Ranking. Any class or series of stock of the
Corporation shall be deemed to rank:
(i) prior to the Preferred Stock, Series 22, as to
dividends or as to distribution of assets upon liquidation,
dissolution or winding up, if holders of such class shall be
entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up,
as the case may be, in preference or priority to the holders
of Preferred Stock, Series 22;
(ii) on a parity with the Preferred Stock, Series 22,
as to dividends or as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those
of the Preferred Stock, Series 22, if the holders of such
class of stock and the Preferred Stock, Series 22 (whether
or not such class of stock is cumulative or noncumulative as
to payment of dividends) shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in proportion
to their respective amounts of accrued and unpaid dividends
per share or liquidation prices, without preference or
priority one over the other (except with respect to the
cumulation of dividends on such class of stock); and
(iii) junior to the Preferred Stock, Series 22, as
to dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, if such stock shall
be common stock or if the holders of Preferred Stock, Series
22, shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up,
as the case may be, in preference or priority to the holders
of shares of such stock.
Accordingly, the Preferred Stock, Series 22, shall be deemed
to rank on a parity with all other series of preferred stock of
the Corporation (whether or not such other series of preferred
stock is cumulative or noncumulative as to payment of dividends)
outstanding on the date on which this Certificate of Designations
is first filed with the Secretary of State of the State of
Delaware.
(8) Exclusion of Other Rights. Unless otherwise required
by law, shares of Preferred Stock, Series 22, shall not have any
rights, including preemptive rights, or preferences other than
those specifically set forth herein or as provided by applicable
law.
(9) Notices. All notices or communications, unless
otherwise specified in the By-Laws of the Corporation or the
Restated Certificate of Incorporation, as amended, shall be
sufficiently given if in writing and delivered in person or
mailed by first-class mail, postage prepaid to the holders of
record of the Preferred Stock, Series 22. Notice shall be deemed
given on the earlier of the date received or the date such notice
is mailed.
(10) Record Holders. The Corporation and the transfer agent
for the Preferred Stock, Series 22, may deem and treat the record
holder of any share of such Preferred Stock as the true and
lawful owner thereof for all purposes, and neither the
Corporation nor such transfer agent shall be affected by any
notice to the contrary.
(11) Voting Rights. Except as hereinafter set forth in this
Section (11) or as otherwise from time to time required by law,
the Preferred Stock, Series 22, shall have no voting rights.
Whenever, at any time or times, dividends payable on the
Preferred Stock, Series 22, 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 the
outstanding Preferred Stock, Series 22, shall have the exclusive
right, voting separately as a class with holders of shares of any
one or more other series of preferred stock ranking on a parity
with the Preferred Stock, Series 22, either as to dividends
(whether or not such other series of preferred stock is
cumulative or noncumulative as to payment of dividends) or on the
distribution of assets upon liquidation, dissolution or winding
up and upon which like voting rights have been conferred and are
exercisable, to elect two directors of the Corporation at the
Corporation's next annual meeting of stockholders and at each
subsequent annual meeting of stockholders. At elections for such
directors, each holder of the Preferred Stock, Series 22, shall
be entitled to one vote for each share held (the holders of
shares of any other series of preferred stock ranking on such a
parity being entitled to such number of votes, if any, for each
share of stock held as may be granted to them). Upon the vesting
of such right of such holders, the maximum authorized number of
members of the Board of Directors shall automatically be
increased by two and the two vacancies so created shall be filled
by vote of the holders of such outstanding shares of the
Preferred Stock, Series 22 (either alone or together with the
holders of shares of any one or more other series of preferred
stock ranking on such a parity) as hereinafter set forth. The
right of such holders of such shares of the Preferred Stock,
Series 22, voting separately as a class, to elect (together with
the holders of shares of any one or more other series of
preferred stock ranking on such a parity) members of the Board of
Directors of the Corporation as aforesaid shall continue until
such time as all dividends accumulated on such shares of
Preferred Stock, Series 22, shall have been paid in full, at
which time such right shall terminate, except as herein or by law
expressly provided, subject to revesting in the event of each and
every subsequent default of the character above mentioned.
Upon any termination of the right of the holders of the
Preferred Stock, Series 22, as a class to vote for directors as
herein provided, the term of office of all directors then in
office elected by such holders voting as a class shall terminate
immediately. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, retirement, disqualification, removal from office or
otherwise, the remaining director elected by such holders voting
as a class may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
Whenever the term of office of the directors elected by such
holders voting as a class shall end and the special voting powers
vested in such holders as provided in this Section (11) shall
have expired, the number of directors shall automatically be
decreased to such number as may be provided for in the By-Laws
irrespective of any increase made pursuant to the provisions of
this Section (11).
So long as any shares of the Preferred Stock, Series 22,
remain outstanding, the consent of the holders of at least
two-thirds
of the shares of the Preferred Stock, Series 22,
outstanding at the time (voting separately as a class together
with all other series of preferred stock ranking on a parity with
such series either as to dividends (whether or not such other
series of preferred stock is cumulative or noncumulative as to
payment of dividends) or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting
rights have been conferred and are exercisable) given in person
or by proxy, either in writing or at any special or annual
meeting called for the purpose, shall be necessary to permit,
effect or validate any one or more of the following:
(a) The authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class or
series of stock ranking prior to the Preferred Stock, Series
22, with respect to payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up, or
(b) The amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Restated Certificate of Incorporation, as amended, or
of the resolution contained in this Certificate of
Designations for the Preferred Stock, Series 22, and the
powers, preferences and privileges, relative, participating,
optional and other special rights and qualifications,
limitations and restrictions thereof which would materially
and adversely affect any right, preference, privilege or
voting power of the Preferred Stock, Series 22, or of the
holders thereof; provided, however, that any increase in the
amount of authorized preferred stock or the creation and
issuance of other series of preferred stock, or any increase
in the amount of authorized shares of the Preferred Stock,
Series 22, or of any other series of preferred stock, in
each case ranking on a parity with or junior to the
Preferred Stock, Series 22, with respect to the payment of
dividends (whether or not such other series of preferred
stock is cumulative or noncumulative as to payment of
dividends) and the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially
and adversely affect such rights, preferences, privileges or
voting powers.
The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to such vote would
otherwise be required shall be effected, all outstanding shares
of the Preferred Stock, Series 22, shall have been redeemed or
sufficient funds shall have been deposited in trust to effect
such redemption, scheduled to be consummated within three months
after such time.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Designations to be signed by Michael T. Nugent, a
Vice President, and attested by Gregory J. Koczanski, an
Assistant Secretary, this 15th day of May, 1995.
CITICORP
By: /S/Michael T. Nugent
--------------------
Michael T. Nugent
Vice President
Attest:
By: /S/Gregory J. Koczanski
-----------------------
Gregory J. Koczanski
Assistant Secretary