ARTICLES OF INCORPORATION
OF
REPUBLIC NEW YORK CORPORATION
FIRST: THE UNDERSIGNED, STEPHEN E. GILHULEY, whose post office
address is 53 Wall Street, New York, New York 10005, being at least
eighteen years of age, does under and by virtue of the General Laws
of the State of Maryland authorizing the formation of corporations,
as an incorporator, hereby form a corporation.
SECOND: The name of the Corporation is:
REPUBLIC NEW YORK CORPORATION
THIRD: The Corporation shall have the following purposes and
powers:
(1) To acquire by purchase, subscription or otherwise, and
to receive, hold, own, guarantee, sell, assign, exchange, transfer,
mortgage, pledge or otherwise dispose of or deal in and with any
and all securities; as such term is hereinafter defined, issued or
created by any corporation, firm, organization, association or
other entity, public or private, whether formed under the laws of
the United States of America or of any state, commonwealth,
territory, dependency or possession thereof, or of any foreign
country or of any political subdivision, territory, dependency,
possession or municipality thereof, or issued or created by the
United States of America or any state or commonwealth thereof or
any foreign country, or by any agency, subdivision, territory,
dependency, possession or municipality of any of the foregoing, and
as owner thereof to possess and exercise all the rights, powers and
privileges of ownership, including the right to execute consents
and vote thereon, and to do any and all acts and things necessary
or advisable for the preservation, protection, improvement and
enhancement in value thereof.
The term "securities" as used in these Articles of
Incorporation shall mean any and all notes, stocks, treasury
stocks, bonds, debentures, evidences of indebtedness, certificates
of interest or participation in any profit-sharing agreement,
collateral-trust certificates, preorganization certificates or
subscriptions, transferable shares, investment contracts, voting
trust certificates, certificates of deposit for a security,
fractional undivided interests in oil, gas, or other mineral
rights, or, in general, any interests or instruments commonly known
as "securities", or any and all certificates of interest or
participation in, temporary or interim certificates for, receipts
for, guaranties of, or warrants or rights to subscribe to or
purchase, any of the foregoing.
(2) To make, establish and maintain investments in
securities, real estate and other property, and to supervise,
manage and do any and all other acts and things to enhance, protect
or preserve such investments.
(3) To engage in and carry on the business of traders,
brokers and dealers in commodities (which term as used in these
Articles of Incorporation includes contracts for the future
delivery thereof) of every kind, character or description
whatsoever, and, whether or not in connection therewith, to
purchase, borrow, acquire, hold, exchange, sell, distribute, lend,
mortgage, pledge, or otherwise dispose of, or import or export or
turn to account in any manner and generally to deal in or otherwise
effect any and all transactions of every kind, character or
description whatsoever in or with respect to commodities and
products, merchandise, articles of commerce, materials, personal
property, of every kind, character or description whatsoever and
any interest therein, and instruments evidencing rights to acquire
such interests, to guarantee any and all obligations relating to
transactions made on any board of trade, commodities exchange, or
similar institution, and to do any and all things which may be
useful in connection with or incidental to the conduct of such
business.
(4) To cause to be organized under the laws of the United
States of America or of any state, commonwealth, territory,
dependency or possession thereof, or of any foreign country or of
any political subdivision, territory, dependency, possession or
municipality thereof, one or more corporations, firms,
organizations, associations or other entities and to cause the same
to be dissolved, wound up, liquidated, merged or consolidated.
(5) To create, purchase or otherwise acquire (in whole or in
part), own, and in any manner sell, transfer or otherwise dispose
of businesses, corporations, enterprises and other entities, and
to act as a parent company or holding company in relation to such
entities.
(6) To acquire by purchase or exchange, or by transfer to or
by merger or consolidation with the Corporation or any corporation,
firm, organization, association or other entity directly or
indirectly owned or controlled by, or under common ownership or
control with, the Corporation, or to otherwise acquire, the whole
or any part of the business, good will, rights, or other assets of
any corporation, firm, organization, association or other entity,
and to undertake or assume in connection therewith the whole or any
part of the liabilities and obligations thereof, to effect any such
acquisition in whole or in part by delivery of cash or other
property, including securities issued by the Corporation, or by any
other lawful means.
(7) To make loans and give other forms of credit, with or
without security, and to negotiate and make contracts and
agreements in connection therewith.
(8) To aid by loan, subsidy, guaranty or in any other lawful
manner any corporation directly or indirectly owning or controlling
the Corporation or any corporation, firm, organization, association
or other entity of which any securities are in any manner directly
or indirectly held by the Corporation or by any such owning or
controlling corporation or in which the Corporation, any such
owning or controlling corporation, or any such corporation, firm,
organization, association or entity may be or become otherwise
interested; to guarantee the payment of dividends on any stock
issued by any such owning or controlling corporation or any such
corporation, firm, organization, association or entity; to
guarantee or, with or without recourse against any such owning or
controlling corporation or any such corporation, firm,
organization, association or entity, to assume the payment of the
principal of, or the interest on, any obligations issued or
incurred by such owning or controlling corporation or such
corporation, firm, organization, association or entity; to do any
and all other acts and things for the enhancement, protection or
preservation of any securities which are in any manner, directly
or indirectly, held, guaranteed or assumed by the Corporation or
by any such owning or controlling corporation, and to do any and
all acts and things designed to accomplish any such purpose.
(9) To borrow money for any business, object or purpose of
the Corporation from time to time, without limit as to amount; to
issue any kind of indebtedness, whether or not in connection with
borrowing money, including evidences of indebtedness convertible
into stock of the Corporation or of any other corporation directly
or indirectly owning or controlling the Corporation, to secure the
payment of any evidence of indebtedness by the creation of any
interest in any of the property or rights of the Corporation,
whether at that time owned or thereafter acquired.
(10) To the extent permitted by law, to render service,
assistance, counsel and advice to, and to act as representative or
agent in any capacity (whether managing, operating, financial,
purchasing, selling, advertising or otherwise) of, any individual,
corporation, firm, organization, association or other entity; as
such representative or agent, to develop, exploit, promote,
conduct, manage, operate, improve, extend or liquidate any business
or property, real or personal; and to aid, conduct, manage or
operate any lawful enterprise in connection therewith.
(11) To engage in any commercial, financial, mercantile,
industrial, manufacturing, marine, exploration, mining,
agricultural, research, licensing, servicing, or agency business
not prohibited by law, and any, some or all of the foregoing.
The purposes and powers specified in the foregoing paragraphs
shall, except where otherwise expressed, be in no wise limited or
restricted by reference to , or inference from, the terms of any
other paragraph of this or any other Article of these Articles of
Incorporation, but the purposes and powers specified in each of the
foregoing paragraphs of this Article shall be regarded as
independent, and construed as powers as well as objects and
purposes.
The Corporation shall be authorized to exercise and enjoy all
of the powers, rights and privileges granted to, or conferred upon,
corporations of a similar character by the General Laws of the
State of Maryland now or hereafter in force, and the enumeration
herein of any specific purposes or powers shall not be held to
limit or restrict in any manner the exercise by the Corporation of
any powers, rights or privileges so granted or conferred and shall
be in addition to the general powers of corporations under the
General Laws of the State of Maryland.
FOURTH: The post office address of the principal office of the
Corporation in Maryland is c/o The Corporation Trust Incorporated,
First Maryland Building, 25 South Charles Street, Baltimore,
Maryland 21201. The name of the registered agent of the
Corporation in Maryland is The Corporation Trust Incorporated, a
corporation of the State of Maryland, and the post office address
of the resident agent is First Maryland Building, 25 South Charles
Street, Baltimore, Maryland 21201.
FIFTH: The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is TWO THOUSAND
(2,000) shares, of which ONE THOUSAND (1,000) shares shall be
shares of Preferred Stock without par value (hereinafter called
"Preferred Stock"), and ONE THOUSAND (1,000) shares shall be shares
of Common Stock of the par value of FIVE DOLLARS ($5.00) per share
(hereinafter called "Common Stock") having an aggregate par value
of FIVE THOUSAND DOLLARS ($5,000).
Each share of Common Stock shall be equal to every other share
of Common Stock in every respect. Subject to any exclusive voting
rights which may vest in holders of Preferred Stock under the
provisions of any series of the Preferred Stock fixed by the Board
of Directors pursuant to authority herein provided, the shares of
Common Stock shall entitle the holders thereof to one vote for each
share upon all matters upon which stockholders have the right to
vote.
The following is a description of the preferences, rights,
voting powers, restrictions and qualifications of the Preferred
Stock of the Corporation:
(1) The Board of Directors shall have authority to
classify and reclassify any unissued shares of the Preferred
Stock, by fixing or altering in any one or more respects from
time to time before issuance, the preferences, rights, voting
powers, restrictions and qualifications of, the dividends on,
the times and prices of redemption of, and the conversion
rights of, such shares; provided, that the Board of Directors
shall not classify or reclassify any of such shares into shares
of the Common Stock. Subject to the foregoing, the power of
the Board of Directors to classify and reclassify any of the
shares of Preferred Stock shall include, without limitation,
subject to the provisions of the charter, authority to classify
or reclassify any unissued shares of such stock into a class or
classes of preferred stock, preference stock, special stock or
other stock, and to divide and classify shares of any class
into one or more series of such class, by determining, fixing
or altering one or more of the following:
(a) The distinctive designation of such class or series
and the number of shares to constitute such class or
series; provided that, unless otherwise prohibited by the
terms of such or any other class or series, the number of
shares of any class or series may be decreased by the Board
of Directors in connection with any classification or
reclassification of unissued shares and the number of
shares of such class or series may be increased by the
Board of Directors in connection with any such
classification or reclassification, and any shares of any
class or series which have been redeemed, purchased,
otherwise acquired or converted into shares of Common Stock
or any other class or series shall remain part of the
authorized Preferred Stock and be subject to classification
and reclassification as provided in this Article FIFTH;
(b) whether or not and, if so, the rates and times at
which, and the conditions under which, dividends shall be
payable on shares of such class or series, whether any such
dividends shall rank senior or junior to or on a parity
with the dividends payable on any other class or series of
Preferred Stock, and the status of any such dividends as
cumulative or non-cumulative and as participating or non-
participating;
(c) whether or not shares of such class or series shall
have voting rights, in addition to any voting rights
provided by law and, if so, the terms of such voting
rights;
(d) whether or not shares of such class or series shall
have conversion or exchange privileges and, if so, the
terms and conditions thereof, including provision for
adjustment of the conversion or exchange rate in such
events or at such times as the Board of Directors shall
determine;
(e) whether or not the shares of such class or series
shall be subject to redemption and, if so, the terms and
conditions of such redemption, including the date or dates
upon or after which they shall be redeemable and the amount
per share payable in case of redemption, which amount may
vary under different conditions and at different redemption
dates; and whether or not there shall be any sinking fund
or purchase account in respect thereof, and if so, the
terms thereof;
(f) the rights of the holders of shares of such class
or series upon the liquidation, dissolution or winding up
of the affairs of, or upon any distribution of the assets
of, the Corporation, which rights may vary depending upon
whether such liquidation, dissolution or winding up is
voluntary or involuntary and, if voluntary, may vary at
different dates, and whether such rights shall rank senior
or junior to or on a parity with such rights of any other
class or series of Preferred Stock;
(g) whether or not there shall be any limitations
applicable, while shares of such class or series are
outstanding, upon the payment of dividends or making of
distributions on, or the acquisition of, or the use of
moneys for purchase or redemption of, any stock of the
Corporation, or upon any other action of the Corporation,
including action under this paragraph, and, if so, the
terms and conditions thereof;
(h) any other preferences, rights, restrictions and
qualifications of shares of such class or series, not
inconsistent with law and these Articles of Incorporation.
SIXTH. The Board of Directors is hereby empowered to authorize the
issuance from time to time of shares of the Corporation's stock of
any class, whether now or hereafter authorized, and securities
convertible into shares of its stock of any class or classes,
whether now or hereafter authorized, for such considerations as the
Board of Directors may deem advisable and without any action by the
stockholders.
SEVENTH. The number of Directors shall be four, which number may
be increased or decreased pursuant to the By-Laws of the
Corporation but shall never be less than three. The names of the
persons who are to serve as Directors until the first annual
meeting of the stockholders or until their successors are duly
chosen and qualify are as follows: Rene Cohen, Ernest Ginsberg,
John R. Lytle and Peter White.
EIGHTH. The By-Laws of the Corporation may be made, altered,
amended or repealed by the Board of Directors. The books of the
Corporation (subject to the provisions of the laws of the State of
Maryland) may be kept outside of the State of Maryland at such
places as from time to time may be designated by the Board of
Directors.
NINTH. (1) The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the Corporation) by reason of the fact that he
is or was a director or officer of the Corporation, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(2) The Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director or officer of the Corporation,
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation,
unless and only to the extent that the court in which such action
or suit was brought, or a court of equity in the county in which
the Corporation has its principal office, shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(3) The Corporation may indemnify any person who is or was an
employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise to the extent and under the circumstances provided
by paragraphs 1 and 2 of this Article NINTH with respect to a
person who is or was a director or officer of the Corporation.
(4) Any indemnification under paragraph 1, 2 or 3 of this
Article NINTH (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth therein. Such
determination shall be made (a) by the Board of Directors by a
majority vote of a quorum (as defined in the by-laws of the
Corporation) consisting of directors who were not parties to such
action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (c) by the stockholders.
(5) Expenses (including attorneys' fees) incurred in
defending a civil or criminal action, suit or proceeding may be
paid by the Corporation in advance of the final disposition of such
action, suit or proceeding if authorized in the specific case by
a preliminary determination following one of the procedures set
forth in the next preceding paragraph that there is a reasonable
basis for a belief that the director, officer, employee or agent
met the applicable standard of conduct set forth in paragraph 1 or
2 of this Article NINTH upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent reasonably
assuring that such amount will be repaid unless it shall ultimately
be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article NINTH.
(6) The indemnification provided by this Article NINTH shall
not be deemed exlusive of any other rights to which those seeking
indemnification may be entitled under any statute, by-law,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(7) By action of its Board of Directors, notwithstanding any
interest of the directors in the action, the Corporation may
purchase and maintain insurance, in such amounts as the Board of
Directors deems appropriate, on behalf of any person who is or was
a director, officer, employee or agent of the Corporation, or of
any corporation a majority of the voting stock of which is owned
by the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether
or not the Corporation would have the power or would be required
to indemnify him against such liability under the provisions of
this Article NINTH or of the General Corporation Law of the State
of Maryland.
TENTH. No contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any other corporation, partnership, association or other
organization of which one or more of its directors or officers are
directors, officers or employees or in which one or more of its
directors or officers have a financial interest, as the holder of
any amount of its capital stock or otherwise, shall be void or
voidable or otherwise affected for this reason or because the
director or officer is present at or participates in the meeting
of the Board of Directors or committee thereof which authorizes the
contract or transaction or solely because his or their votes are
counted for such purpose; provided, however, that in any such case
the facts as to his relationship or interest and as to the contract
or transaction are disclosed or are known to the Board of Directors
or the committee thereof and the Board of Directors or committee
in good faith specifically authorizes the contract or transaction,
or the facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon and the contract or
transaction is specifically approved in good faith by vote of the
stockholders.
ELEVENTH. No holder of shares of stock of any class or any other
securities, whether now or hereafter authorized, shall be entitled
as a matter of right to subscribe for or purchase or receive any
stock of any class or any securities convertible into shares of
stock of any class, or to any right of subscription to, or to any
warrant or option for the purchase of, any thereof other than such
(if any) as the Board of Directors, in its discretion, may
determine from time to time; and any stock or other securities
which the Board of Directors may determine to offer for
subscription may, as the Board of Directors in its sole discretion
shall determine, be offered to the holders of any class, series or
type of stock or other securities at the time outstanding to the
exclusion of the holders of any or all other classes, series or
types of stock or other securities at the time outstanding.
TWELFTH. Notwithstanding any provision of law requiring a greater
proportion than a majority of the votes of all classes or of any
class of stock entitled to be cast to take or authorize any action,
the Corporation may take or authorize such action upon the
concurrence of a majority of the aggregate number of the votes
entitled to be cast thereon.
THIRTEENTH. The Corporation reserves the right from time to time
to amend, alter, change or repeal any provision contained in these
Articles of Incorporation, including any provision setting forth
the terms or rights of any of its capital stock, in the manner now
or hereafter authorized by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, the undersigned incorporator of REPUBLIC NEW
YORK CORPORATION has signed these Articles of Incorporation this
20th day of September, 1973.
/S/ Stephen E. Gilhuley
(Stephen E. Gilhuley)
REPUBLIC NEW YORK CORPORATION
ARTICLES OF AMENDMENT
Republic New York Corporation, a Maryland corporation, having its
principal office in the City of Baltimore, State of Maryland
(hereinafter called the "Corporation") , hereby certifies to the
State Department of Assessments and Taxation of Maryland that:
FIRST: The charter of the Corporation is hereby amended by
striking out the first paragraph of Article FIFTH of the Articles
of Incorporation and inserting in lieu thereof the following:
"FIFTH. The total number of shares of all classes of
capital stock which the Corporation shall have authority
to issue is TWELVE MILLION (12,000,000) shares, of
which TWO MILLION (2,000,000) shares shall be shares
of Preferred Stock without par value (hereinafter called
"Preferred Stock") , and TEN MILLION (10,000,000)
shares shall be shares of Common Stock of the par value
of FIVE DOLLARS ($5.00) per share (hereinafter called
"Common Stock") having an aggregate par value of FIFTY
MILLION DOLLARS ($50,000,000)."
SECOND: By unanimous written consent pursuant to Section 58 of
Article 23 of the Annotated Code of Maryland, the Board of
Directors of the Corporation on April 2, 1974, duly adopted a
resolution in which was set forth the foregoing amendment to the
charter, declaring that said amendment of the charter as proposed
was advisable and directing that it be submitted for action thereon
by the Stockholders of the Corporation at a Special Meeting of
Stockholders.
THIRD: Notice setting forth the said amendment of the charter and
stating that a purpose of the meeting of the Stockholders would be
to take action thereon, was duly waived pursuant to Section 46 of
Article 23 of the Annotated Code of Maryland by all Stockholders
entitled to vote thereon. The amendment of the charter of the
Corporation as hereinabove set forth was approved by the
Stockholders of the Corporation at a Special Meeting held on
April 4, 1974, by affirmative vote of two-thirds of all the votes
entitled to be cast thereon.
FOURTH: The amendment of the charter of the Corporation as
hereinabove set forth has been duly advised by the Board of
Directors and approved by the Stockholders of the Corporation.
FIFTH: (a) The total number of shares of all classes of stock
which the Corporation was heretofore authorized to issue is Two
Thousand (2,000) shares, divided into One Thousand (1,000)
shares of Preferred Stock without par value and One Thousand
(1,000) shares of Common Stock with the par value of Five Dollars
($5.00) per share having an aggregate par value of Five Thousand
Dollars ($5,000) .
(b) The total number of shares of all classes of stock is
increased by this amendment to Twelve Million (12,000,000)
shares, divided into Two Million (2,000,000) shares of Preferred
Stock without par value and Ten Million (10,000,000) shares of
Common Stock of the par value of Five Dollars ($5.00) per share
having an aggregate par value of Fifty Million Dollars
($50,000,000).
(c) A description of each class of stock of the Corporation
with the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, and qualifications, of
each class of the authorized capital stock as increased, is set
forth in the charter of the Corporation.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
presents to be signed in its name and on its behalf by its
President and by its Secretary on April 4, 1974.
REPUBLIC NEW YORK CORPORATION
By /s/ Peter White
Peter White
(President)
Attest:
/s/ Ernest Ginsberg
Ernest Ginsberg
(Secretary)
THE UNDERSIGNED, President of REPUBLIC NEW YORK CORPORATION, who
executed on behalf of said Corporation the foregoing Articles of
Amendment, of which this certificate is made a part, hereby
acknowledges, in the name and on behalf of said Corporation, the
foregoing Articles of Amendment to be the corporate act of said
Corporation and further certifies that, to the best of his
knowledge, information and belief, the matters and facts set forth
therein with respect to the approval thereof are true in all
material respects, under the penalties of perjury.
/s/ Peter White
Peter White
(President)
REPUBLIC NEW YORK CORPORATION
ARTICLES OF AMENDMENT
Republic New York Corporation, a Maryland corporation, having its
principal office in the City of Baltimore, State of Maryland
(hereinafter called the "Corporation"), hereby certifies to the
State Department of Assessments and Taxation of Maryland that:
FIRST: The charter of the Corporation is hereby amended by
striking out the first paragraph of Article FIFTH of the Articles
of Incorporation and inserting in lieu there of the following:
"FIFTH. The total number of shares of all classes of
capital stock which the Corporation shall have authority
to issue is SEVENTEEN MILLION (17,000,000) shares of
which SEVEN MILLION (7,000,000) shares shall be shares
of Preferred Stock without par value (hereinafter called
"Preferred Stock"), and TEN MILLION (10,000,000) shares
shall be shares of Common Stock of the par value of FIVE
DOLLARS ($5.00) per share (hereinafter called "Common
Stock") having an aggregate par value of FIFTY MILLION
DOLLARS ($50,000,000)."
SECOND: The Board of Directors of the Corporation on January 17,
1978 at a duly convened meeting thereof duly adopted a resolution
in which was set forth the foregoing amendment to the charter,
declaring that said amendment of the charter as proposed was
advisable and directing that it be submitted for action thereon by
the Stockholders of the Corporation at the Annual Meeting thereof
to be held on April 20, 1978.
THIRD: Notice setting forth the said amendment of the charter and
stating that a purpose of the Annual Meeting of the Stockholders
would be to take action thereon, was duly given pursuant to Section
2-504 of the Corporations and Associations Article of the Annotated
Code of Maryland to all Stockholders entitled to vote thereon. The
amendment of the charter of the Corporation as hereinabove set
forth was approved by the Stockholders of the Corporation at the
Annual Meeting held on April 20, 1978, by affirmative vote of two-
thirds of all the votes entitled to be cast thereon.
FOURTH: The amendment of the charter of the Corporation as
hereinabove set forth has been duly advised by the Board of
Directors and approved by the Stockholders of the Corporation.
FIFTH: (a) As of immediately before this amendment, the total
number of shares of all classes of stock which the Corporation was
authorized to issue is Twelve Million (12,000,000) shares, divided
into Two Million (2,000,000) shares of Preferred Stock without par
value and Ten Million (10,000,000) shares of Common Stock with the
par value of Five Dollars ($5.00) per share having an aggregate par
value of Fifty Million Dollars ($50,000,000).
(b) As amended, the total number of shares of all classes of
stock which the Corporation has authority to issue is Seventeen
Million (17,000,000) shares, divided into Seven Million (7,000,000)
shares of Preferred Stock without par value and Ten Million
(10,000,000) shares of Common Stock of the par value of Five
Dollars ($5.00) per share having an aggregate par value of Fifty
Million Dollars ($50,000,000).
(c) A description of each class of stock of the Corporation
with the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualification and terms
and conditions of redemption, of each class of the authorized
capital stock as increased, is set forth in the charter of the
Corporation, and such description has not been changed by the
amendment of the charter of the Corporation herein set forth.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
present to be signed in its name and on its behalf by its President
and witnessed by its Secretary on April 20, 1978.
REPUBLIC NEW YORK CORPORATION
By /s/ Peter White
Peter White
(President)
Witnessed:
/s/ Ernest Ginsberg
Ernest Ginsberg
(Secretary)
THE UNDERSIGNED, President of REPUBLIC NEW YORK CORPORATION, who
executed on behalf of said Corporation the foregoing Articles of
Amendment, of which this certificate is made a part, hereby
acknowledges, in the name and on behalf of said Corporation, the
foregoing Articles of Amendment to be the corporate act of said
Corporation and further certifies that, to the best of his
knowledge, information and belief, the matters and facts set forth
therein with respect to the approval thereof are true in all
material respects, under the penalties of perjury.
/s/ Peter White
Peter White
(President)
REPUBLIC NEW YORK CORPORATION
ARTICLES OF AMENDMENT
Republic New York Corporation, a Maryland corporation, having its
principal office in the City of Baltimore, State of Maryland
(hereinafter called the "Corporation"), hereby certifies to the
State Department of Assessments and Taxation of Maryland that:
FIRST: The charter of the Corporation is hereby amended by
striking out the first paragraph of Article FIFTH of the Articles
of Incorporation and inserting in lieu thereof the following
"FIFTH. The total number of shares of all classes of
capital stock which the Corporation shall have authority
to issue is FIFTY-SEVEN MILLION (57,000,000) shares, of
which SEVEN MILLION (7,000,000) shares shall be shares
of Preferred Stock without par value (hereinafter called
"Preferred Stock") , and FIFTY MILLION (50,000,000)
shares shall be shares of Common Stock of the par value
of FIVE DOLLARS ($5.00) per share (hereinafter called
"Common Stock") having an aggregate par value of TWO
HUNDRED FIFTY MILLION DOLLARS ($250,000,000)".
SECOND: The Board of Directors of the Corporation, by unanimous
written consent dated July 10, 1980, duly adopted a resolution in
which was set forth the foregoing amendment to the charter,
declaring that said amendment of the charter as proposed was
advisable and directing that it be submitted for action thereon by
the Stockholders of the Corporation at a Special Meeting thereof
to be held on August 1, 1980.
THIRD: Notice, setting forth the said amendment of the charter and
stating that the purpose of the Special Meeting of the
Stockholders, called thereby, would be to take action thereon, was
duly given pursuant to Section 2-504 of the Corporation and
Associations Articles of the Annotated Code of Maryland to all
Stockholders entitled to vote thereon. The amendment of the
charter of the Corporation as hereinabove set forth was approved
by the Stockholders of the Corporation at a Special Meeting held
on August 1, 1980, by affirmative vote of a majority of all the
votes entitled to be cast thereon as permitted by the charter of
the Corporation.
FOURTH: (a) As of immediately before this amendment, the total
shares of all classes of stock which the Corporation was authorized
to issue is Seventeen Million (17,000,000) shares, divided into
Seven Million (7,000,000) shares of Preferred Stock without par
value and Ten Million (10,000,000) shares of Common Stock with the
par value of Five Dollars ($5.00) per share having an aggregate par
value of Fifty Million Dollars ($50,000,000).
(b) As amended, the total number of shares of all classes
of stock which the Corporation has authority to issue is Fifty-
seven Million (57,000,000) shares, divided into Seven Million
(7,000,000) shares of Preferred Stock without par value and Fifty
Million (50,000,000) shares of Common Stock of the par value of
Five Dollars ($5.00) per share having an aggregate par value of Two
Hundred Fifty Million Dollars ($250,000,000).
(c) A description of each class of stock of the Corporation
with the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualification and terms
and conditions of redemption, of each class of the authorized
capital stock as increased, is set forth in the charter of the
Corporation, and such description has not been changed by the
amendment of the charter of the Corporation herein set forth.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
present to be signed in its name and on its behalf by a Senior Vice
President and witnessed by an Assistant Secretary on August 1,
1980.
REPUBLIC NEW YORK CORPORATION
By /s/ Ernest Ginsberg
Ernest Ginsberg
(Senior Vice President)
Witnessed:
/s/ William F. Rosenblum Jr.
William F. Rosenblum
(Assistant Secretary)
THE UNDERSIGNED, a Senior Vice President of REPUBLIC NEW YORK
CORPORATION, who executed on behalf of said Corporation the
foregoing Articles of Amendment, of which this certificate is made
a part, hereby acknowledges, in the name and on behalf of said
Corporation, the foregoing Articles of Amendment to be the
corporate act of said Corporation and further certifies that, to
the best of his knowledge, information and belief, the matters and
facts set forth therein with respect to the approval thereof are
true in all material respects, under the penalties of perjury.
/s/ Ernest Ginsberg
Ernest Ginsberg
(Senior Vice President)
REPUBLIC NEW YORK CORPORATION
ARTICLES OF AMENDMENT
Republic New York Corporation, a Maryland corporation, having its
principal office in the City of Baltimore, State of Maryland
(hereinafter called the "Corporation"), hereby certifies to the
State Department of Assessments and Taxation of Maryland that:
FIRST: The charter of the Corporation is hereby amended by
striking out the first paragraph of Article FIFTH of the Articles
of Incorporation and inserting in lieu thereof the following
"FIFTH. The total number of shares of all classes of
capital stock which the Corporation shall have authority
to issue is SIXTY-FIVE MILLION (65,000,000) shares, of
which FIFTEEN MILLION (15,000,000) shares shall be shares
of Preferred Stock without par value (hereinafter called
"Preferred Stock"), and FIFTY MILLION (50,000,000) shares
shall be shares of Common Stock of the par value of FIVE
DOLLARS ($5.00) per share (hereinafter called "Common
Stock") having an aggregate par value of TWO HUNDRED
FIFTY MILLION DOLLARS ($250,000,000)".
SECOND: The Board of Directors of the Corporation, at a meeting
held on January 21, 1981, duly adopted a resolution in which was
set forth the foregoing amendment to the charter, declaring that
said amendment of the charter as proposed was advisable and
directing that it be submitted for action thereon by the
Stockholders of the Corporation at the Annual Meeting thereof to
be held on April 22, 1981.
THIRD: Notice, setting forth the said amendment of the charter and
stating that the purpose of the Annual Meeting of the Stockholders,
called thereby, would be to take action thereon, was duly given
pursuant to Section 2-504 of the Corporation and Associations
Articles of the Annotated Code of Maryland to all Stockholders
entitled to vote thereon. The amendment of the charter of the
Corporation as hereinabove set forth was approved by the
Stockholders of the Corporation at the Annual Meeting held on April
22, 1981, by affirmative vote of a majority of all the votes
entitled to be cast thereon as permitted by the charter of the
Corporation.
FOURTH: (a) As of immediately before this amendment, the total
shares of all classes of stock which the Corporation was authorized
to issue is Fifty-Seven Million (57,000,000) shares, divided into
Seven Million (7,000,000) shares of Preferred Stock without par
value and Fifty Million (50,000,000) shares of Common Stock with
the par value of Five Dollars ($5.00) per share having an aggregate
par value of Two Hundred Fifty Million Dollars ($250,000,000).
(b) As amended, the total number of shares of all classes
of stock which the Corporation has authority to issue is Sixty-
Five Million (65,000,000) shares, divided into Fifteen Million
(15,000,000) shares of Preferred Stock without par value and Fifty
Million (50,000,000) shares of Common Stock of the par value of
Five Dollars ($5.00) per share having an aggregate par value of Two
Hundred Fifty Million Dollars ($250,000,000).
(c) A description of each class of stock of the Corporation
with the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualification and terms
and conditions of redemption, of each class of the authorized
capital stock as increased, is set forth in the charter of the
Corporation, and such description has not been changed by the
amendment of the charter of the Corporation herein set forth.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
present to be signed in its name and on its behalf by a Senior Vice
President and witnessed by an Assistant Secretary on April 22,
1981.
REPUBLIC NEW YORK CORPORATION
By: /s/ Ernest Ginsberg
Ernest Ginsberg
(Senior Vice President)
Witnessed:
/s/ Laurence R. Stern
Laurence R. Stern
(Assistant Secretary)
THE UNDERSIGNED, a Senior Vice President of REPUBLIC NEW YORK
CORPORATION, who executed on behalf of said Corporation the
foregoing Articles of Amendment, of which this certificate is made
a part, hereby acknowledges, in the name and on behalf of said
Corporation, the foregoing Articles of Amendment to be the
corporate act of said Corporation and further certifies that, to
the best of his knowledge, information and belief, the matters and
facts set forth therein with respect to the approval thereof are
true in all material respects, under the penalties of perjury.
/s/ Ernest Ginsberg
Ernest Ginsberg
(Senior Vice President)
REPUBLIC NEW YORK CORPORATION
ARTICLES OF AMENDMENT
Republic New York Corporation, a Maryland corporation, having its
principal office in the City of Baltimore, State of Maryland
(hereinafter called the "Corporation"), hereby certifies to the
State Department of Assessments and Taxation of Maryland that:
FIRST: The charter of the Corporation is hereby amended by
striking out in its entirety Article NINTH of the Articles of
Incorporation and inserting in lieu thereof the following:
"NINTH: The Corporation shall indemnify (a) its
directors to the full extent provided by the general laws
of the State of Maryland now or hereafter in force,
including the advance of expenses under the procedures
provided by such laws; (b) its officers to the same
extent it shall indemnify its directors; and (c) its
officers who are not directors to such further extent as
shall be authorized by the Board of Directors and be
consistent with law. The foregoing shall not limit the
authority of the corporation to indemnify other employees
and agents consistent with law."
SECOND: The Board of Directors of the Corporation, at a meeting
held on January 19, 1983, duly adopted a resolution in which was
set forth the foregoing amendment to the charter, declaring that
said amendment of the charter as proposed was advisable and
directing that it be submitted for action thereon by the
Stockholders of the Corporation at the Annual Meeting thereof to
be held on April 20, 1983.
THIRD: Notice, setting forth the said amendment of the charter and
stating that the purpose of the Annual Meeting of the Stockholders,
called thereby, would be to take action thereon, was duly given
pursuant to Section 2-504 of the Corporation and Associations
Articles of the Annotated Code of Maryland to all Stockholders
entitled to vote thereon. The amendment of the charter of the
Corporation as hereinabove set forth was approved by the
Stockholders of the Corporation at the Annual Meeting held on April
20, 1983, by affirmative vote of a majority of all the votes
entitled to be cast thereon as permitted by the charter of the
Corporation.
FOURTH: This amendment does not increase the authorized stock of
the Corporation.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
present to be signed in its name and on its behalf by a Senior Vice
President and witnessed by an Assistant Secretary on April 20,
1983.
REPUBLIC NEW YORK CORPORATION
By /s/ Ernest Ginsberg
Ernest Ginsberg
(Senior Vice President)
Witnessed:
/s/ William F. Rosenblum, Jr.
William F. Rosenblum, Jr.
(Assistant Secretary)
THE UNDERSIGNED, a Senior Vice President of REPUBLIC NEW YORK
CORPORATION, who executed on behalf of said Corporation the
foregoing Articles of Amendment, of which this certificate is made
a part, hereby acknowledges, in the name and on behalf of said
Corporation, the foregoing Articles of Amendment to be the
corporate act of said Corporation and further certifies that, to
the best of his knowledge, information and belief, the matters and
facts set forth therein with respect to the approval thereof are
true in all material respects, under the penalties of perjury.
/s/ Ernest Ginsberg
Ernest Ginsberg
(Senior Vice President)
REPUBLIC NEW YORK CORPORATION
ARTICLES OF AMENDMENT
Republic New York Corporation, a Maryland corporation, having its
principal office in the City of Baltimore, State of Maryland
(hereinafter called the "Corporation"), hereby certifies to the
State Department of Assessments and Taxation of Maryland that:
FIRST: The charter of the Corporation is hereby amended by
striking out the first paragraph of Article FIFTH of the Articles
of Incorporation and inserting in lieu thereof the following:
"FIFTH: The total number of shares of all classes of
capital stock which the Corporation shall have authority
to issue is ONE HUNDRED SIXTY FIVE million (165,000,000)
shares, of which FIFTEEN million (15,000,000) shares
shall be shares of Preferred Stock without par value
(hereinafter called "Preferred Stock"), and ONE HUNDRED
FIFTY million (150,000,000) shares shall be shares of
Common Stock of the par value of FIVE DOLLARS ($5.00)
per share (hereinafter called "Common Stock") having an
aggregate par value of SEVEN HUNDRED FIFTY million
dollars ($750,000,000)."
SECOND: The Board of Directors of the Corporation, at a meeting
held on July 17, 1991, duly adopted a resolution in which was set
forth the foregoing amendment to the charter, declaring that said
amendment of the charter as proposed was advisable and directing
that it be submitted for action thereon by the Stockholders of the
Corporation at a Special Meeting thereof to be held on September
4, 1991.
THIRD: Notice, setting forth the said amendment of the charter and
stating that the purpose of the Special Meeting of the
Stockholders, called thereby, would be to take action thereon, was
duly given pursuant to Section 2-504 of the Corporation and
Associations Article of the Annotated Code of Maryland to all
Stockholders entitled to vote thereon. The amendment of the
charter of the Corporation as hereinabove set forth was approved
by the Stockholders of the Corporation at a Special Meeting held
on September 4, 1991, by affirmative vote of a majority of all the
votes entitled to be cast thereon as permitted by the charter of
the Corporation.
FOURTH: (a) As of immediately before this amendment, the total
shares of all classes of stock which the Corporation was
authorized to issue is Sixty-Five Million (65,000,000) shares,
divided into Fifteen Million (15,000,000) shares of Preferred Stock
without par value and Fifty Million (50,000,000) shares of Common
Stock with the par value of Five Dollars ($5.00) per share having
an aggregate par value of Two Hundred Fifty Million Dollars
($250,000,000).
(b) As amended, the total number of shares of all classes
of stock which the Corporation has authority to issue is One
Hundred Sixty-Five Million (165,000,000) shares, divided into
Fifteen Million (15,000,000) shares of Preferred Stock without par
value and One Hundred Fifty Million (150,000,000) shares of Common
Stock of the par value of Five Dollars ($5.00) per share having an
aggregate par value of Seven Hundred Fifty Million Dollars
($750,000,000).
(c) A description of each class of stock of the Corporation
with the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualification and terms
and conditions of redemption, of each class of the authorized
capital stock as increased, is set forth in the charter of the
Corporation, and such description has not been changed by the
amendment of the charter of the Corporation herein set forth.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
present to be signed in its name and on its behalf by a Senior Vice
President and witnessed by an Assistant Secretary on September 4,
1991.
REPUBLIC NEW YORK CORPORATION
/s/ William F. Rosenblum, Jr.
William F. Rosenblum, Jr.
(Senior Vice President)
Witnessed:
/s/ Steven J. Wright
Steven J. Wright
(Assistant Secretary)
THE UNDERSIGNED, a Senior Vice President of REPUBLIC NEW YORK
CORPORATION, who executed on behalf of said Corporation the
foregoing Articles of Amendment, of which this certificate is made
a part, hereby acknowledges, in the name and on behalf of said
Corporation, the foregoing Articles of Amendment to be the
corporate act of said Corporation and further certifies that, to
the best of his knowledge, information and belief, the matters and
facts set forth therein with respect to the approval thereof are
true in all material respects, under the penalties of perjury.
/s/ William F. Rosenblum, Jr.
William F. Rosenblum, Jr.
(Senior Vice President)
REPUBLIC NEW YORK CORPORATION
ARTICLES OF AMENDMENT
Republic New York Corporation, a Maryland corporation, having its
principal office in the City of Baltimore, State of Maryland
(hereinafter called the "Corporation"), hereby certifies to the
State Department of Assessments and Taxation of Maryland that:
FIRST: The charter of the Corporation is hereby amended by
striking out the first paragraph of Article FIFTH of the Articles
of Incorporation and inserting in lieu thereof the following:
"FIFTH: The total number of shares of all classes of
capital stock which the Corporation shall have authority
to issue is ONE HUNDRED SEVENTY million (170,000,000)
shares, of which TWENTY million (20,000,000) shares shall
be shares of Preferred Stock without par value
(hereinafter called "Preferred Stock"), and ONE HUNDRED
FIFTY million (150,000,000) shares shall be shares of
Common Stock of the par value of FIVE DOLLARS ($5.00)
per share (hereinafter called "Common Stock") having an
aggregate par value of SEVEN HUNDRED FIFTY million
dollars ($750,000,000)."
SECOND: The Board of Directors of the Corporation, at a meeting
held on January 20, 1993, duly adopted a resolution in which was
set forth the foregoing amendment to the charter, declaring that
said amendment of the charter as proposed was advisable and
directing that it be submitted for action thereon by the
Stockholders of the Corporation at the Annual Meeting thereof to
be held on April 21, 1993.
THIRD: Notice, setting forth the said amendment of the charter and
stating that one of the purposes of the Annual Meeting of the
Stockholders, called thereby, would be to take action thereon, was
duly given pursuant to Section 2-504 of the Corporations and
Associations Article of the Annotated Code of Maryland to all
Stockholders entitled to vote thereon. The amendment of the
charter of the Corporation as hereinabove set forth was approved
by the Stockholders of the Corporation at the Annual Meeting held
on April 21, 1993, by the affirmative vote of a majority of all the
votes entitled to be cast thereon as permitted by the charter of
the Corporation.
FOURTH: (a) As of immediately before this amendment, the total
shares of all classes of stock which the Corporation was authorized
to issue is One Hundred Sixty-Five Million (165,000,000) shares,
divided into Fifteen Million (15,000,000) shares of Preferred Stock
without par value and One Hundred Fifty Million (150,000,000)
shares of Common Stock with the par value of Five Dollars ($5.00)
per share having an aggregate par value of Seven Hundred Fifty
Million Dollars ($750,000,000).
(b) As amended, the total number of shares of all classes
of stock which the Corporation has authority to issue is One
Hundred Seventy Million (170,000,000) shares, divided into Twenty
Million (20,000,000) shares of Preferred Stock without par value
and One Hundred Fifty Million (150,000,000) shares of Common Stock
of the par value of Five Dollars ($5.00) per share having an
aggregate par value of Seven Hundred Fifty Million Dollars
($750,000,000).
(c) A description of each class of stock of the
Corporation with the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends,
qualification and terms and conditions of redemption, of each class
of the authorized capital stock as increased, is set forth in the
charter of the Corporation, and such description has not been
changed by the amendment of the charter of the Corporation herein
set forth.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
presents to be signed in its name and on its behalf by a Senior
Vice President and witnessed by a Deputy Corporate Secretary on
April 21, 1993.
REPUBLIC NEW YORK CORPORATION
/s/ William F. Rosenblum, Jr.
William F. Rosenblum, Jr.
(Senior Vice President)
Witnessed:
/s/ Patricia J. Howard
Patricia J. Howard
(Deputy Corporate Secretary)
THE UNDERSIGNED, a Senior Vice President of REPUBLIC NEW YORK
CORPORATION, who executed on behalf of said Corporation the
foregoing Articles of Amendment, of which this certificate is made
a part, hereby acknowledges, in the name and on behalf of said
Corporation, the foregoing Articles of Amendment to be the
corporate act of said Corporation and further certifies that, to
the best of his knowledge, information and belief, the matters and
facts set forth therein with respect to the approval thereof are
true in all material respects, under the penalties of perjury.
/s/ William F. Rosenblum, Jr.
William F. Rosenblum, Jr.
(Senior Vice President)
REPUBLIC NEW YORK CORPORATION
ARTICLES SUPPLEMENTARY
REPUBLIC NEW YORK CORPORATION, a Maryland corporation having its
principal Maryland office in the City of Baltimore, State of
Maryland (hereinafter called the "Corporation"), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article FIFTH of the charter of the
Corporation, the Board of Directors has duly divided and classified
2,000,000 shares of the Preferred Stock of the Corporation into a
series designated $2.125 Cumulative Preferred Stock and has
provided for the issuance of such series.
SECOND: The terms of the $2.125 Cumulative Preferred Stock as set
by the Board of Directors are as follows:
1. $2.125 Cumulative Preferred Stock: 2,000,000 shares of
Preferred Stock of the Corporation, without par value, are hereby
constituted as the original number of shares of a series of
Preferred Stock designated as $2.125 Cumulative Preferred Stock
(hereinafter sometimes called the "Series A Stock"). The term
"Articles of Incorporation" when used herein shall include all
articles or certificates filed pursuant to law with respect to any
series of the Preferred Stock.
2. Dividends: The holders of the Series A Stock shall be
entitled to receive, but only when and as declared by the Board of
Directors out of funds legally available for the purpose, cash
dividends at the rate of $2.125 per share per annum, and no more,
payable quarterly on the first day of January, April, July and
October of each year. Such dividends shall be payable from, and
shall be cumulative from, the date of original issue of each share,
so that if in any quarterly dividend period (being the period
between such dividend payment dates) dividends at the rate of
$2.125 per share per annum shall not have been declared and paid
or set apart for payment on all outstanding shares of Series A
Stock for such quarterly dividend period and all preceding
quarterly dividend periods from and after the first day from which
dividends are cumulative, then the aggregate deficiency shall be
declared and fully paid or set apart for payment, but without
interest, before (i) any dividends or other distributions
(excluding dividends paid in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock of the
Corporation) shall be declared and paid or set apart for payment
on the Common Stock or on any other capital stock of the
Corporation ranking junior to the Series A Stock with respect to
the payment of dividends, or (ii) the Corporation shall purchase,
redeem or otherwise acquire any shares of Preferred Stock or any
shares of capital stock of the Corporation ranking on a parity with
or junior to the Series A Stock with respect to the payment of
dividends.
3. Voting Rights: (i) The holders of the Series A Stock shall
have the voting power and rights set forth and referred to in this
paragraph 3 and in paragraph 7, and shall have no other voting
power or rights except as otherwise from time to time required by
law.
(ii) Whenever dividends on the Series A Stock shall be unpaid
as a whole or in part for six consecutive dividend periods, then
at the annual meeting of stockholders next following omission of
the sixth successive dividend or any part thereof and at any annual
meeting thereafter and at any meeting called for the election of
Directors, until all dividends accumulated on the Series A Stock
have been paid or declared and a sum sufficient for payment has
been set aside, the holders of the Series A Stock, either alone or
together with the holders of one or more other cumulative series
of the Preferred Stock at the time outstanding which are granted
such voting right, voting as a class, shall be entitled, to the
exclusion of the holders of one or more other series or classes of
stock, to vote for and elect two members of the Board of Directors
of the Corporation, and the holders of Common Stock together with
the holders of any series or class or classes of stock of the
Corporation having general voting rights and not then entitled to
elect two members of the Board of Directors pursuant to this
paragraph 3 to the exclusion of the holders of all series then so
entitled, shall be entitled to vote and elect the balance of the
Board of Directors. In such case the Board of Directors of the
Corporation shall, as of the date of the annual meeting of
stockholders aforesaid, be increased by two Directors. The rights
of the Series A Stock to participate (either alone or together with
the holders of one or more other cumulative series of Preferred
Stock at the time outstanding which are granted such voting right)
in the exclusive election of two members of the Board of Directors
of the Corporation pursuant to this paragraph 3 shall continue in
effect until cumulative dividends have been paid in full or
declared and set apart for payment on the Series A Stock. At
elections for such Directors, each holder of Series A Stock shall
be entitled to one vote for each share held. The holders of Series
A Stock shall have no right to cumulate such shares in voting for
the election of Directors. At the annual meeting of stockholders,
next following the termination (by reason of the payment of all
accumulated and defaulted dividends on such stock or provision for
the payment thereof by declaration and setting apart thereof) of
the exclusive voting power pursuant to this paragraph 3 of the
holders of Series A Stock and the holders of all other cumulative
series which shall have been entitled to vote for and elect such
two members of the Board of Directors of the Corporation, the terms
of office of all persons who may have been elected Directors of the
Corporation by vote of such holders shall terminate and the two
vacancies created pursuant to this paragraph 3 to accommodate the
exclusive right of election conferred hereunder shall thereupon be
eliminated and the Board of Directors shall be decreased by two
Directors.
(iii) So long as any shares of Series A Stock remain
outstanding, the consent of the holders of at least two-thirds of
the shares of the Series A Stock outstanding at the time 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 (including any class or series of Preferred Stock) ranking
prior (as that term is defined in paragraph 5) to the Series A
Stock, or
(b) The authorization, creation or issuance of any class
or series of stock (including any class or series of Preferred
Stock) which ranks on a parity with the Series A Stock unless the
Articles Supplementary or other provisions of the charter creating
or authorizing such class or series shall provide that if in any
case the stated dividends or amounts payable on liquidation are not
paid in full on the Series A Stock and all outstanding shares of
stock ranking on a parity (as that term is defined in paragraph 5)
with the Series A Stock (the Series A Stock and all such other
stock being herein called "Parity Stock"), the shares of all Parity
Stock shall share ratably in the payment of dividends, including
accumulations (if any) in accordance with the sums which would be
payable on all Parity Stock if all dividends in respect of all
shares of Parity Stock were paid in full, and on any distribution
of assets upon liquidation ratably in accordance with the sums
which would be payable in respect of all shares of Parity Stock if
all sums payable were discharged in full, or
(c) The amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
charter of the Corporation including these Articles Supplementary
which would materially and adversely affect any right, preference,
privilege or voting power of the Series A Stock or of the holders
thereof; provided, however, that any increase in the amount of
authorized Preferred Stock or Series A Stock or the creation and
issuance of other series of Preferred Stock, in each case ranking
on a parity with or junior to the Series A Stock with respect to
the payment of dividends and the distribution of assets upon
liquidation, shall not be deemed to materially and adversely affect
such rights, preferences, privileges or voting powers.
The foregoing voting provision shall not apply if, at or
prior to the time when the act with respect to which such vote
would otherwise be required shall be effected, all outstanding
shares of the Series A Stock shall have been redeemed or sufficient
funds shall have been deposited in trust in accordance with
paragraph 5 to effect such redemption.
4. Liquidation: Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of the Series A Stock shall have preference and priority
over the Common Stock for payment out of the assets of the
Corporation or proceeds thereof, whether from capital or surplus,
of $25 per share (the "liquidation value") together with the amount
of any dividends accrued and unpaid thereon, and after such payment
the holders of Series A Stock shall be entitled to no other
payments. If, in such case, the assets of the Corporation or
proceeds thereof shall be insufficient to make the full liquidating
payment of $25 per share and accrued and unpaid dividends on the
Series A Stock and liquidating payments on any other outstanding
series of Parity Stock (including accrued and unpaid dividends, if
any), then such assets and proceeds shall be distributed among the
holders of the Series A Stock and any other outstanding series of
Parity Stock ratably in accordance with the respective amounts
which would be payable on all series of Parity Stock (including
accrued and unpaid dividends, if any) if all such liquidating
amounts payable were paid in full. A consolidation or merger of
the Corporation with or into any other corporation or corporations
or a sale, whether for cash, shares of stock, securities or
properties, of all or substantially all or any part of the assets
of the Corporation shall not be deemed or construed to be a
liquidation, dissolution or winding up of the Corporation.
5. Redemption: Subject to the restriction set forth in the
next paragraph, the Series A Stock may be redeemed, at the option
of the Corporation, as a whole or in part, at any time or from time
to time, at the following optional redemption prices (but not less
than $25 per share) during the 12 months' period ending September
30 of the years indicated below, in each case plus accrued and
unpaid dividends to the date of redemption:
1978 .. $27.125 1983 .. $26.594 1988 .. $26.063 1993 .. $25.531
1979 .. 27.019 1984 .. 26.488 1989 .. 25.956 1994 .. 25.425
1980 .. 26.913 1985 .. 26.381 1990 .. 25.850 1995 .. 25.319
1981 .. 26.806 1986 .. 26.275 1991 .. 25.744 1996 .. 25.213
1982 .. 26.700 1987 .. 26.169 1992 .. 25.638 1997 .. 25.106
and thereafter
at $25.00
The Corporation, however, shall not have the right under this
paragraph 5 to redeem any of the Series A Stock as part of a
refunding operation prior to October 1, 1982 by the application
of moneys borrowed or from proceeds from the sale of stock
ranking prior to or on a parity with, as to dividends or the
distribution of assets upon liquidation, the Series A Stock,
if such moneys borrowed have an annual interest cost to the
Corporation (calculated without any consideration of income tax
effect), or such stock has a dividend cost to the Corporation (so
calculated), less than the annual dividend rate of the Series A
Stock. Any class or classes of stock of the Corporation shall be
deemed to rank
(i) prior to the Series A Stock as to dividends or as to
distribution of assets if the 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
the Series A Stock; and
(ii) on a parity with the Series A Stock as to dividends
or as to distribution of assets, whether or not the dividend
rates, dividend payment dates, or redemption or liquidation
prices per share thereof be different from those of the Series
A Stock, if the holders of such class of stock and the Series
A Stock 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 resp
dividend rates or liquidation prices, without preference or
priority one over the other.
The Series A Stock is also subject to redemption and may
be redeemed on and after October 1, 1988, through the operation of
the Sinking Fund as hereinafter provided in paragraph 6.
At the option of the Corporation, shares of Series A Stock
redeemed or otherwise acquired (including sinking fund
acquisitions) may be restored to the status of authorized but
unissued shares of Preferred Stock.
In the case of any redemption, the Corporation shall give
notice of such redemption to the holders of the Series A Stock to
be redeemed in the following manner: a notice specifying the
shares to be redeemed and the time and place of redemption (and,
if less than the total outstanding shares are to be redeemed,
specifying the certificate numbers and number of shares to be
redeemed) shall be mailed by first class mail, addressed to the
holders of record of the Series A Stock to be redeemed at their
respective addresses as the same shall appear upon the books of the
Corporation, not more than 60 days and not less than 30 days
previous to the date fixed for redemption. In the event such
notice is not given to any stockholder such failure to give notice
shall not affect the notice given to other stockholders. If less
than the whole amount of outstanding Series A Stock is to be
redeemed, the shares to be redeemed shall be selected by lot or pro
rata in any manner determined by resolution of the Board of
Directors to be fair and proper. From and after the date fixed in
any such notice as the date of redemption (unless default shall be
made by the Corporation in providing moneys at the time and place
of redemption for the payment of the redemption price) all
dividends upon the Series A Stock so called for redemption shall
cease to accrue, and all rights of the holders of said Series A
Stock as stockholders in the Corporation, except the right to
receive the redemption price plus dividends accrued and unpaid to
the date of redemption (without interest) upon surrender of the
certificate representing the Series A Stock so called for
redemption, duly endorsed for transfer, if required, shall cease
and terminate. 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 Series A Stock 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 6
years from such redemption date shall be released or repaid to the
Corporation, after which the holders of such shares of Series A
Stock so called for redemption shall look only to the Corporation
for payment of the redemption price.
6. Sinking Fund: As and for a sinking fund for the redemption
of the Series A Stock, the Corporation shall set aside in trust,
when and as appropriated by the Board of Directors out of funds
legally available for the purpose, on or before the next business
day preceding October 1 in each of the years 1988 to 2007,
inclusive, as a sinking fund payment, an amount in cash sufficient
to redeem on each such October 1, 100,000 shares of Series A
Stock; each such sinking fund payment shall (and, at the
Corporation's option, each additional sinking fund payment provided
for by the second succeeding sentence may) be applied on October
1 to the redemption of Series A Stock at the redemption price of
$25 per share, plus an amount equal to the dividends accrued and
unpaid on such shares to the date of redemption. The sinking fund
payments provided for in the preceding sentence shall be
cumulative. Concurrently with the making of each annual sinking
fund payment provided for in the next preceding sentence, the
Corporation may, at its option, make an additional payment in cash
(the "Additional Payment") sufficient to redeem up to an additional
100,000 shares of Series A Stock at the redemption price of $25 per
share plus accrued and unpaid dividends to the date of redemption;
the right of the Corporation to make such an Additional Payment in
each year shall be non-cumulative and to the extent not exercised
in any year shall terminate. Any sinking fund payments required
by the first sentence of this paragraph 6 shall be subject to
decrease, at the election of the Corporation, by the application
in satisfaction of all or part of such sinking fund payment of
shares of Series A Stock theretofore redeemed either pursuant to
paragraph 5 or pursuant to any Additional Payment or otherwise
acquired by the Corporation, provided such shares have not been
applied in reduction of any prior sinking fund payment.
Notice of redemption, the manner of selection of shares to be
redeemed and the effect of depositing in trust funds for the
redemption of such shares shall be as set forth in paragraph 5.
If the Board of Directors should for any reason fail to
appropriate sinking fund payments for 100,000 shares in each year
starting in 1988 (or otherwise redeem 100,000 shares annually by
crediting shares voluntarily redeemed or otherwise acquired) then
the Board of Directors may not thereafter (i) pay any dividends
or make any other distribution (excluding dividends paid in shares
of, or options, warrants or rights to subscribe for or purchase
shares of, Common Stock of the Corporation) on the Common Stock or
any other capital stock of the Corporation ranking on a parity with
or junior to the Series A Stock with respect to the payment of
dividends or the distribution of assets on liquidation or (ii)
purchase, redeem or otherwise acquire any shares of capital stock
of the Corporation ranking junior to the Series A Stock with
respect to the payment of dividends or the distribution of assets
on liquidation.
7. Limitation on Merger and Sale of Assets and on Disposition
of the Voting Stock of the Bank: So long as any shares of Series
A Stock remain outstanding, the Corporation shall not, without the
affirmative vote or consent of the holders of at least a majority
of the votes of all Parity Stock entitled to vote outstanding at
the time, given in person or by proxy, either in writing or by
resolution adopted at a meeting at which the holders of Series A
Stock (alone or together with the holders of one or more other
series of Parity Stock at the time outstanding and entitled to
vote) vote separately as a class, (a) directly or indirectly,
sell, transfer or otherwise dispose of, or permit Republic National
Bank of New York (the "Bank") or any other subsidiary of the
Corporation, to issue, sell, transfer or otherwise dispose of any
shares of voting stock of the Bank, or securities convertible into
or options, warrants or rights to acquire voting stock of the Bank,
unless after giving effect to any such transaction the Bank remains
a Controlled Subsidiary (as hereinafter defined) of the Corporation
or of a Qualified Successor Company (as hereinafter defined); (b)
merge or consolidate with, or convey substantially all of its
assets to any person or corporation unless the entity surviving
such merger or consolidation is the Corporation or a Qualified
Successor Company or the transferee of such assets is a Qualified
Successor Company; or (c) permit the Bank to merge, consolidate
with, or convey substantially all of its assets to any person or
corporation unless the entity surviving such merger or
consolidation or the transferee of such assets is a Controlled
Subsidiary of the Corporation or of a Qualified Successor Company,
except in each case as may be required to comply with applicable
law, including without limitation any court or regulatory order.
The term "Qualified Successor Company" shall mean a corporation (or
other similar organization or entity whether organized under or
pursuant to the laws of the United States or any state thereof or
of another jurisdiction) which (i) is or is required to be a
registered bank holding company under the United States Bank
Holding Company Act of 1956, as amended, or any successor
legislation, (ii) issues to the holders of the Series A Stock in
exchange for the Series A Stock shares of preferred stock having
at least the same relative rights and preferences as the Series A
Stock (the "Exchanged Stock"), (iii) immediately after such
transaction has not outstanding or authorized any class of stock
or equity securities ranking prior to the Exchanged Stock with
respect to the payment of dividends or the distribution of assets
upon liquidation, and (iv) holds, as a Controlled Subsidiary or
Subsidiaries either the Bank or one or more other banking
corporations which, collectively, immediately after such
transaction hold substantially all of the assets and liabilities
which the Bank held immediately prior to such transaction (which
may be in addition to other assets and liabilities acquired in such
transaction). "Controlled Subsidiary" shall mean any corporation
at least 80% of the outstanding shares of voting stock of which
shall at the time be owned directly or indirectly by the
Corporation or a Qualified Successor Company. In connection with
the exercise of the voting rights contained in this paragraph 7,
holders of all series of Parity Stock which are granted such voting
rights (of which the Series A Stock is the initial series) shall
vote as a class, and each holder of Series A Stock shall have one
vote for each share of stock held and each other series shall have
such number of votes, if any, for each share of stock held as may
be granted to them.
The foregoing voting provisions will not apply if, in connection
with the matter specified, provision is made for the redemption or
retirement of all outstanding Series
A Stock.
8. Parity Stock: So long as any shares of Series A Stock shall
remain outstanding, in case the stated dividends or amounts payable
on liquidation are not paid in full with respect to all outstanding
shares of Parity Stock, all such shares shall share ratably in the
payment of dividends, including accumulations (if any) in
accordance with the sums which would be payable in respect of all
outstanding shares of Parity Stock if all dividends were paid in
full, and in any distribution of assets upon liquidation, ratably
in accordance with the sums which would be payable in respect of
all outstanding Parity Stock if all sums payable were discharged
in full.
9. For the Purposes Hereof:
(i) The term "outstanding", when used in reference to shares
of stock, shall mean issued shares, excluding shares held by the
Corporation and shares called for redemption pursuant to either
paragraph 5 or paragraph 6, funds for the redemption of which shall
have been deposited in trust pursuant to either paragraph 5 or
paragraph 6.
(ii) The amount of dividends "accrued" on any share of Series
A Stock as at any quarterly dividend payment date shall be deemed
to be the amount of any unpaid dividends accumulated thereon to
and including the end of the day preceding such quarterly dividend
date, whether or not earned or declared; and the amount of
dividends "accrued" on any share of Series A Stock as at any date
other than a quarterly dividend payment date shall be calculated
as the amount of any unpaid dividends accumulated thereon to and
including the end of the day preceding the last preceding quarterly
dividend payment date, whether or not earned or declared, plus an
amount equivalent to dividends on the liquidation value of such
share at the annual dividend rate fixed for such share for the
period after the end of the day preceding such last preceding
quarterly dividend payment date to and including the date as of
which the calculation is made.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused
these presents to be signed in its name and on its behalf by its
President and its corporate seal to be hereunto affixed and
attested by its Secretary, and the said officers of the Corporation
further acknowledged said instrument to be the corporate act of the
Corporation and stated under the penalties of perjury that to the
best of their knowledge, information and belief the matters and
facts therein set forth with respect to approval are true in all
material respects, all on October 6, 1977.
REPUBLIC NEW YORK CORPORATION
By /s/ Peter White
Peter White
(President)
Attest:
/s/ Ernest Ginsberg
Ernest Ginsberg
(Secretary)
REPUBLIC NEW YORK CORPORATION
ARTICLES SUPPLEMENTARY
REPUBLIC NEW YORK CORPORATION, a Maryland corporation having its
principal Maryland office in the City of Baltimore, State of
Maryland (hereinafter called the "Corporation"), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article FIFTH of the charter of the
Corporation, the Board of Directors has duly divided and classified
1,000,000 shares of the Preferred Stock of the Corporation into a
series designated $3.125 Cumulative Preferred Stock and has
provided for the issuance of such series.
SECOND: The terms of the $3.125 Cumulative Preferred Stock as set
by the Finance Committee of the Board of Directors pursuant to
authority duly delegated by the Board of Directors are as follows:
1. $3.125 Cumulative Preferred Stock: 1,000,000 shares of
Preferred Stock of the Corporation, without par value, are hereby
constituted as the original number of shares of a series of
Preferred Stock designated as $3.125 Cumulative Preferred Stock
(hereinafter sometimes called the "Series B Stock"). The term
"Articles of Incorporation" when used herein shall include all
articles or certificates filed pursuant to law with respect to any
series of the Preferred Stock.
2. Dividends: The holders of the Series B Stock shall be
entitled to receive, but only when and as declared by the Board of
Directors out of funds legally available for the purpose, cash
dividends at the rate of $3.125 per share per annum, and no more,
payable quarterly on the first day of January, April, July and
October of each year, with the first such dividend being payable
January 1, 1981. Such dividends shall be payable from, and shall
be cumulative from, the date of original issue of each share, so
that if in any quarterly dividend period (being the period between
such dividend payment dates or, in the case of the first such
period, from the date of original issue to January 1, 1981)
dividends at the rate of $3.125 per share per annum shall not have
been paid or declared and set apart for payment on all outstanding
shares of Series B Stock for such quarterly dividend period and
all preceding quarterly dividend periods from and after the first
day from which dividends are cumulative, then the aggregate
deficiency shall be declared and fully paid or set apart for
payment, but without interest, before (i) any dividends or other
distributions (excluding dividends paid in shares of, or options,
warrants or rights to subscribe for or purchase shares of, Common
Stock of the Corporation) shall be declared and paid or set apart
for payment on the Common Stock or on any other capital stock of
the Corporation ranking junior to the Series B Stock with respect
to the payment of dividends, or (ii) the Corporation shall
purchase, redeem or otherwise acquire any shares of Preferred Stock
or any shares of capital stock of the Corporation ranking on a
parity with or junior to the Series B Stock with respect to the
payment of dividends; provided , however, that any moneys set aside
in trust as a sinking fund payment for any series of Preferred
Stock pursuant to the resolutions providing for the issue of shares
of such series may thereafter be applied to the purchase or
redemption of Preferred Stock of such series whether or not at the
time of such application full cumulative dividends upon the
outstanding Series B Stock shall have been paid or declared and set
apart for payment.
3. Voting Rights: (i) The holders of the Series B Stock
shall have the voting power and rights set forth and referred to
in this paragraph 3 and in paragraph 6, and shall have no other
voting power or rights except as otherwise from time to time
required by law.
(ii) Whenever dividends on the Series B Stock shall be
unpaid as a whole or in part for six consecutive quarterly dividend
periods, then at the annual meeting of stockholders next following
omission of the sixth successive quarterly dividend or any part
thereof and at any annual meeting thereafter and at any meeting
called for the election of Directors, until all dividends
accumulated on the Series B Stock have been paid or declared and
a sum sufficient for payment has been set aside, the holders of the
Series B Stock, either alone or together with the holders of one
or more other cumulative series of the Preferred Stock at the time
outstanding which are granted such voting rights, voting as a
class, shall be entitled, to the exclusion of the holders of one
or more other series or classes of stock having general voting
rights, to vote for and elect two members of the Board of Directors
of the Corporation, and the holders of Common Stock together with
the holders of any series or class or classes of stock of the
Corporation having general voting rights and not then entitled to
elect two members of the Board of Directors pursuant to this
paragraph 3 to the exclusion of the holders of all series then so
entitled, shall be entitled to vote and elect the balance of the
Board of Directors. In such case the Board of Directors of the
Corporation shall, as of the date of the annual meeting of
stockholders aforesaid, be increased by two Directors. The rights
of the Series B Stock to participate (either alone or together with
the holders of one or more other cumulative series of Preferred
Stock at the time outstanding which are granted such voting rights)
in the exclusive election of two members of the Board of Directors
of the Corporation pursuant to this paragraph 3 shall continue in
effect until cumulative dividends have been paid in full or
declared and set apart for payment on the Series B Stock. At
elections for such Directors, each holder of Series B Stock shall
be entitled to one vote for each share held. The holders of Series
B Stock shall have no right to cumulate such shares in voting for
the election of Directors. At the annual meeting of stockholders,
next following the termination (by reason of the payment of all
accumulated and defaulted dividends on such stock or provision for
the payment thereof by declaration and setting apart thereof) of
the exclusive voting power pursuant to this paragraph 3 of the
holders of Series B Stock and the holders of all other cumulative
series which shall have been entitled to vote for and elect such
two members of the Board of Directors of the Corporation, the terms
of office of all persons who may have been elected Directors of the
Corporation by vote of such holders shall terminate and the two
vacancies created pursuant to this paragraph 3 to accommodate the
exclusive right of election conferred hereunder shall thereupon be
eliminated and the Board of Directors shall be decreased by two
Directors.
(iii) So long as any shares of Series B Stock remain
outstanding, the affirmative vote or consent of the holders of at
least two-thirds of the shares of the Series B Stock outstanding
at the time 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 (including any class or series of Preferred Stock) ranking
prior (as that term is defined in paragraph 5) to the Series B
Stock, or
(b) The authorization, creation or issuance of any
class or series of stock (including any class or series of
Preferred Stock) which ranks on a parity with the Series B Stock
unless the Articles Supplementary or other provisions of the
charter creating or authorizing such class or series shall provide
that if in any case the stated dividends or amounts payable on
liquidation are not paid in full on the Series B Stock and all
outstanding shares of stock ranking on a parity (as that term is
defined in paragraph 5) with the Series B Stock (the Series B Stock
and all such other stock being herein called "Parity Stock"), the
shares of all Parity Stock shall share ratably in the payment of
dividends, including accumulations (if any) in accordance with the
sums which would be payable on all Parity Stock if all dividends
in respect of all shares of Parity Stock were paid in full, and on
any distribution of assets upon liquidation ratably in accordance
with the sums which would be payable in respect of all shares of
Parity Stock if all sums payable were discharged in full, or
(c) The amendment, alteration or repeal, whether
by merger, consolidation or otherwise, of any of the provisions of
the charter of the Corporation including these Articles
Supplementary which would materially and adversely affect any
right, preference, privilege or voting power of the Series B Stock
or of the holders thereof; provided, however, that any increase in
the amount of authorized Preferred Stock, the Corporation's $2.125
Cumulative Preferred Stock or the Series B Stock or the creation
and issuance of other series of Preferred Stock, in each case
ranking on a parity with or junior to the Series B Stock with
respect to the payment of dividends and the distribution of assets
upon liquidation, shall not be deemed to affect materially and
adversely 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 which such
vote would otherwise be required shall be effected, all outstanding
shares of the Series B Stock shall have been redeemed or sufficient
funds shall have been deposited in trust in accordance with
paragraph 5 to effect such redemption.
4. Liquidation: Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of the Series B Stock shall have preference and priority
over the Common Stock for payment out of the assets of the
Corporation or proceeds thereof, whether from capital or surplus,
of $25 per share (the "liquidation value") together with the amount
of any dividends accrued and unpaid thereon, and after such payment
the holders of Series B Stock shall be entitled to no other
payments. If, in such case, the assets of the Corporation or
proceeds thereof shall be insufficient to make the full liquidating
payment of $25 per share and accrued and unpaid dividends on the
Series B Stock and liquidating payments on any other outstanding
series of Parity Stock (including accrued and unpaid dividends, if
any), then such assets and proceeds shall be distributed among the
holders of the Series B Stock and any other outstanding series of
Parity Stock ratably in accordance with the respective amounts
which would be payable on all series of Parity Stock (including
accrued and unpaid dividends, if any) if all such liquidating
amounts payable were paid in full. A consolidation or merger of
the Corporation with or into any other corporation or corporations
or a sale, whether for cash, shares of stock, securities or
properties, of all or substantially all or any part of the assets
of the Corporation shall not be deemed or construed to be a
liquidation, dissolution or winding up of the Corporation.
5. Redemption: Subject to the restriction set forth in the
next paragraph, the Series B Stock may be redeemed, at the option
of the Corporation, as a whole or in part, at any time or from time
to time, at the following optional redemption prices (but not less
than $25 per share) during the 12 month period ending September 30
in the years indicated below, in each case plus accrued and unpaid
dividends to the date of redemption:
1981 .. $28.13 1986 .. $27.34 1991 .. $26.56 1996 .. $25.78
1982 .. 27.97 1987 .. 27.19 1992 .. 26.41 1997 .. 25.63
1983 .. 27.81 1988 .. 27.03 1993 .. 26.25 1998 .. 25.47
1984 .. 27.66 1989 .. 26.88 1994 .. 26.09 1999 .. 25.31
1985 .. 27.50 1990 .. 26.72 1995 .. 25.94 2000 .. 25.16
and thereafter
at $25.00
The Corporation, however, shall not have the right under this
paragraph 5 to redeem any of the Series B Stock as part of a
refunding operation prior to October 1, 1985 by the application of
moneys borrowed or from proceeds from the sale of stock ranking
prior to or on a parity with, as to dividends or the distribution
of assets upon liquidation, the Series B Stock, if such moneys
borrowed have an annual interest cost to the Corporation
(calculated without any consideration of income tax effect), or
such stock has a dividend cost to the Corporation (so calculated),
less than the annual dividend rate of the Series B Stock. Any
class or classes of stock of the Corporation shall be deemed to
rank
(i) prior to the Series B Stock as to dividends or as to
distribution of assets if the 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
the Series B Stock; and
(ii) on a parity with the Series B Stock as to dividends
or as to distribution of assets, whether or not the dividend
rates, dividend payment dates, or redemption or liquidation
prices per share thereof be different from those of the Series
B Stock, if the holders of such class of stock and the Series
B Stock 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
dividend rates or liquidation prices, without preference or
priority one over the other.
At the option of the Corporation, shares of Series B Stock
redeemed or otherwise acquired may be restored to the status of
authorized but unissued shares of Preferred Stock.
In the case of any redemption, the Corporation shall give
notice of such redemption to the holders of Series B Stock to be
redeemed in the following manner: a notice specifying the shares
to be redeemed and the time and place of redemption (and, if less
than the total outstanding shares to be redeemed, specifying the
certificate numbers and number of shares to be redeemed) shall be
mailed by first class mail, addressed to the holders of record of
the Series B Stock to be redeemed at their respective addresses as
the same shall appear upon the books of the Corporation, not more
than 60 days and not less than 30 days previous to the date fixed
for redemption. In the event such notice is not given to any
stockholder such failure to give notice shall not affect the notice
given to other stockholders. If less than the whole amount of
outstanding Series B Stock is to be redeemed, the shares to be
redeemed shall be selected by lot or pro rata in any manner
determined by resolution of the Board of Directors to be fair and
proper. From and after the date fixed in any such notice as the
date of redemption (unless default shall be made by the Corporation
in providing moneys at the time and place of redemption for the
payment of the redemption price), all dividends upon the Series B
Stock so called for redemption shall cease to accrue, and all
rights of the holders of said Series B Stock as stockholders in the
Corporation, except the right to receive the redemption price plus
dividends accrued and unpaid to the date of redemption (without
interest) upon surrender of the certificate representing the Series
B Stock so called for redemption, duly endorsed for transfer, if
required, shall cease and terminate. 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 Series B Stock 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 6 years from such redemption date shall be
released or repaid to the Corporation, after which the holders of
such shares of Series B Stock so called for redemption shall look
only to the Corporation for payment of the redemption price.
6. Limitation on Merger and Sale of Assets and on Disposition
of the Voting Stock of the Bank: So long as any shares of Series
B Stock remain outstanding, the Corporation shall not, without the
affirmative vote or consent of the holders of at least a majority
of the votes of all Parity Stock entitled to vote outstanding at
the time, given in person or by proxy, either in writing or by
resolution adopted at a meeting at which the holders of series B
Stock (alone or together with the holders of one or more other
series of Parity Stock at the time outstanding and entitled to
vote) vote separately as a class, (a) directly or indirectly,
sell, transfer or otherwise dispose of, or permit Republic National
Bank of New York (the "Bank") or any other subsidiary of the
Corporation, to issue, sell, transfer or otherwise dispose of any
shares of voting stock of the Bank, or securities convertible into
or options, warrants or rights to acquire voting stock of the Bank,
unless after giving effect to any such transaction the Bank remains
a Controlled Subsidiary (as hereinafter defined) of the Corporation
or of a Qualified Successor Company (as hereinafter defined); (b)
merge or consolidate with, or convey substantially all of its
assets to any person or corporation unless the entity surviving
such merger or consolidation is the Corporation or a Qualified
Successor Company; or (c) permit the Bank to merge, consolidate
with, or convey substantially all of its assets to any person or
corporation unless the entity surviving such merger or
consolidation or the transferee of such assets is a Controlled
Subsidiary of the Corporation or of a Qualified Successor Company,
except in any of the foregoing cases as required to comply with
applicable law, including, without limitation, any court or
regulatory order. The term "Qualified Successor Company" shall
mean a corporation (or other similar organization or entity whether
organized under or pursuant to the laws of the United States or any
state thereof or of another jurisdiction) which (i) is or is
required to be a registered bank holding company under the United
States Bank Holding Company Act of 1956, as amended, or any
successor legislation, (ii) issues to the holders of the Series
B Stock in exchange for the Series B Stock shares of preferred
stock having at least the same relative rights and preferences as
the Series B Stock (the "Exchanged Stock"), (iii) immediately
after such transaction has not outstanding or authorized any class
of stock or equity securities ranking prior to the Exchanged Stock
with respect to the payment of dividends or the distribution of
assets upon liquidation, and (iv) holds, as a Controlled
Subsidiary or Subsidiaries, either the Bank or one or more other
banking corporations which, collectively, immediately after such
transaction hold substantially all of the assets and liabilities
which the Bank held immediately prior to such transaction (which
may be in addition to other assets and liabilities acquired in such
transaction). "Controlled Subsidiary" shall mean any corporation
at least 80% of the outstanding shares of voting stock of which
shall at the time be owned directly or indirectly by the
Corporation or a Qualified Successor Company. In connection with
the exercise of the voting rights contained in this paragraph 6,
holders of all series of Parity Stock which are granted such voting
rights (of which the Series B Stock is the second series) shall
vote as a class, and each holder of Series B Stock shall have one
vote for each share of stock held and each other series shall have
such number of votes, if any, for each share of stock held as may
be granted them.
The foregoing voting provisions shall not apply if, at or prior
to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
the Series B Stock shall have been redeemed or sufficient funds
shall have been deposited in trust in accordance with paragraph 5
to effect such redemption.
7. Parity Stock: So long as any shares of Series B Stock
shall remain outstanding, in case the stated dividends or amounts
payable on liquidation are not paid in full with respect to all
outstanding shares of Parity Stock, all such shares shall share
ratably in the payment of dividends, including accumulations (if
any) in accordance with the sums which would be payable in respect
of all outstanding shares of Parity Stock if all dividends were
paid in full, and in any distribution of assets upon liquidation,
ratably in accordance with the sums which would be payable in
respect of all outstanding Parity Stock if all sums payable were
discharged in full.
8. For the Purposes Hereof:
(i) The term "outstanding", when used in reference to
shares of stock, shall mean issued shares, excluding shares held
by the Corporation and shares called for redemption pursuant to
paragraph 5, funds for redemption of which shall have been
deposited in trust pursuant to paragraph 5.
(ii) The amount of dividends "accrued" on any share of
Series B Stock as at any quarterly dividend payment date shall be
deemed to be the amount of any unpaid dividends accumulated
thereon to and including the end of the day preceding such
quarterly dividend date, whether or not earned or declared; and the
amount of dividends "accrued" on any share of Series B Stock as at
any date other than a quarterly dividend payment date shall be
calculated as the amount of any unpaid dividends accumulated
thereon to and including the end of the day preceding the last
preceding quarterly dividend payment date, whether or not earned
or declared, plus an amount equivalent to dividends on the
liquidation value of such share at the annual dividend rate fixed
for such share for the period after the end of the day preceding
such last preceding quarterly dividend payment date to and
including the date as of which the calculation is made.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused
these presents to be signed in its name and on its behalf by its
President and its corporate seal to be hereunto affixed and
attested by its Secretary, and the said officers of the Corporation
further acknowledge said instrument to be the corporate act of the
Corporation and state under the penalties of perjury that to the
best of their knowledge, information and belief the matters and
facts therein set forth with respect to approval are true in all
material respects, all on September 5, 1980.
REPUBLIC NEW YORK CORPORATION
By /s/ Walter H. Weiner
Walter H. Weiner
Attest: (President)
/s/ Ernest Ginsberg
Ernest Ginsberg
(Secretary)
REPUBLIC NEW YORK CORPORATION
ARTICLES SUPPLEMENTARY
REPUBLIC NEW YORK CORPORATION, a Maryland corporation having its
principal Maryland office in the City of Baltimore, State of
Maryland (hereinafter called the "Corporation"), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article FIFTH of the charter of the
Corporation, the Board of Directors has duly divided and classified
1,500,000 shares of the Preferred Stock of the Corporation into a
series designated Cumulative Preferred Stock, Floating Rate Series
A, and has provided for the issuance of such series.
SECOND: The terms of the Cumulative Preferred Stock, Floating Rate
Series A, as set by the Finance Committee of the Board of Directors
pursuant to authority duly delegated by the Board of Directors are
as follows:
1. Cumulative Preferred Stock Floating Rate Series A:
1,500,000 shares of Preferred Stock of the Corporation, without par
value, are hereby constituted as the original number of shares of
a series of Preferred Stock designated as Cumulative Preferred
Stock,Floating Rate Series A (hereinafter sometimes called the
"Floating Rate Series A Stock"). The Floating Rate Series A Stock
shall be of a stated value of $50 per share (the "stated value").
The term "Articles of Incorporation" when used herein shall include
all articles or certificates filed pursuant to law with respect to
any series of the Preferred Stock.
2. Dividends: Dividend rates on the shares of Floating Rate
Series A Stock shall be: (i) for the period (the "Initial
Dividend Period") from the date of their original issue to and
including June 30, 1982, at a rate per annum of the stated value
thereof equal to 14 1/2%, and (ii) for each quarterly dividend
period (hereinafter referred to as a "Quarterly Dividend Period";
and the Initial Dividend Period or any Quarterly Dividend Period
being hereinafter individually referred to as a "Dividend Period"
and collectively referred to as "Dividend Periods") thereafter,
which quarterly dividend periods shall commence on January 1, April
1, July 1 and October 1 in each year and shall end on and include
the day next preceding the first day of the next quarterly dividend
period, at a rate per annum of the stated value thereof equal to
.75% above the Applicable Rate (as defined in paragraph 3) in
respect of such quarterly dividend period; provided, however, that
the dividend rate per annum on the shares of Floating Rate Series
A Stock for any Quarterly Dividend Period shall in no event be less
than 8% per annum or greater than 16 1/2% per annum. Such
dividends shall be cumulative from the date of original issue of
such shares and shall be payable, when and as declared by the Board
of Directors, on the first day of January, April, July and October
of each year, commencing July 1, 1982. If in any Dividend Period
dividends shall not have been paid or declared and set apart for
payment on all outstanding shares of Floating Rate Series A Stock
for such Dividend Period and for all preceding Dividend Periods
from and after the first day from which dividends are cumulative
at the respective rates per annum specified for such Dividend
Periods in the second preceding sentence, then the aggregate
deficiency shall be declared and fully paid or set apart for
payment, but without interest, before (i) any dividends or other
distributions (excluding dividends paid in shares of, or options,
warrants or rights to subscribe for or purchase shares of, Common
Stock of the Corporation) shall be declared and paid or set apart
for payment on the Common Stock or on any other capital stock of
the Corporation ranking junior to the Floating Rate Series A Stock
with respect to the payment of dividends, or (ii) the Corporation
shall purchase, redeem or otherwise acquire any shares of Preferred
Stock or any shares of capital stock of the Corporation ranking on
a parity with or junior to the Floating Rate Series A Stock with
respect to the payment of dividends; provided, however, that any
moneys set aside in trust as a sinking fund payment for any series
of Preferred Stock pursuant to the resolutions providing for the
issue of shares of such series may thereafter be applied to the
purchase or redemption of Preferred Stock of such series whether
or not at the time of such application full cumulative dividends
upon the outstanding Floating Rate Series A Stock shall have been
paid or declared and set apart for payment.
3. Definition of Applicable Rate, etc.: The "Applicable Rate"
for any Quarterly Dividend Period shall be the highest of the
Treasury Bill Rate, the Ten Year Constant Maturity Rate or the
Twenty Year Constant Maturity Rate (each as hereinafter defined)
for such Dividend Period. In the event that the Corporation
determines in good faith that for any reason
(i) any one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate or the Twenty Year Constant Maturity Rate cannot be
determined for any Quarterly Dividend Period, then the Applicable
Rate for such Dividend Period shall be the higher of whichever two
of such Rates can be so determined;
(ii) either only the Treasury Bill Rate or only the Ten Year
Constant Maturity Rate or only the Twenty Year Constant Maturity
Rate can be determined for any Quarterly Dividend Period, then the
Applicable Rate for such Dividend Period shall be whichever such
Rate can be so determined; or
(iii) neither the Treasury Bill Rate nor the Ten Year
Constant Maturity Rate nor the Twenty Year Constant Maturity Rate
can be determined for any Quarterly Dividend Period, then the
Applicable Rate in effect for the preceding Dividend Period shall
be continued for such Dividend Period.
Except as provided below in this paragraph, the "Treasury
Bill Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two most recent weekly per annum market
discount rates (or the one weekly per annum market discount rate,
if only one such rate shall be published during the relevant
Calendar Period as defined below) for three-month U.S. Treasury
bills, as published weekly by the Federal Reserve Board during the
Calendar Period immediately prior to the last ten calendar days of
March, June, September or December, as the case may be, prior to
the Quarterly Dividend Period for which the dividend rate on the
Floating Rate Series A Stock is being determined. In the event
that the Federal Reserve Board does not publish such a weekly per
annum market discount rate during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum market discount
rates (or the one weekly per annum market discount rate, if only
one such rate shall be published during the relevant Calendar
Period) for three-month U.S. Treasury bills, as published weekly
during such Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the Corporation.
In the event that a per annum market discount rate for three-month
U.S. Treasury bills shall not be published by the Federal Reserve
Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Treasury
Bill Rate for such Dividend Period shall be the arithmetic average
of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such
rate shall be published during the relevant Calendar Period) for
all of the U.S. Treasury bills then having maturities of not less
that 80 nor more than 100 days, as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve
Board shall not publish such rates, by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in good
faith that for any reason no such U.S. Treasury bill rates are
published as provided above during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the per annum market discount rates based upon the
closing bids during such Calendar Period for each of the issues of
marketable non-interest bearing U.S. Treasury securities with a
maturity of not less than 80 nor more than 100 days from the date
of each such quotation, as quoted daily for each business day in
New York City (or less frequently if daily quotations shall not be
generally available) to the Corporation by at least three
recognized U.S. Government securities dealers selected by the
Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the
Treasury Bill Rate for any Quarterly Dividend Period as provided
above in this paragraph, the Treasury Bill Rate for such Dividend
Period shall be the arithmetic average of the per annum market
discount rates based upon the closing bids during such Calendar
Period for each of the issues of marketable interest-bearing U.S.
Treasury securities with a maturity of not less than 80 nor more
than 100 days from the date of each such quotation, as quoted daily
for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by
at least three recognized U.S. Government securities dealers
selected by the Corporation.
Except as provided below in this paragraph, the "Ten Year
Constant Maturity Rate" for each Quarterly Dividend Period shall
be the arithmetic average of the two most recent weekly per annum
Ten Year Average Yields (or the one weekly per annum Ten Year
Average Yield, if only one such Yield shall be published during the
relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the
last ten calendar days of March, June, September or December, as
the case may be, prior to the Quarterly Dividend Period for which
the dividend rate on the Floating rate Series A Stock is being
determined. In the event that the Federal Reserve Board does not
publish such a weekly per annum Ten Year Average Yield during such
Calendar Period, then the Ten Year Constant Maturity Rate for such
Dividend period shall be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields, (or the one weekly
per annum Ten Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period), as published weekly
during such Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the Corporation.
In the event that a per annum Ten Year Average Yield shall not be
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two most
recent weekly per annum average yields to maturity (or the one
weekly average yield to maturity, if only one such yield shall be
published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities (as defined below)) then
having maturities of not less than eight nor more than twelve
years, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board shall not publish
such yields, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event
that the Corporation determines in good faith that for any reason
the Corporation cannot determine the Ten Year Constant Maturity
Rate for any Quarterly Dividend Period as provided above in this
paragraph, then the Ten Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such
Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than eight
nor more than twelve years from the date of each such quotation,
as quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available)
to the Corporation by at least three recognized U.S. Government
securities dealers selected by the Corporation.
Except as provided below in this paragraph, the "Twenty Year
Constant Maturity Rate" for each Quarterly Dividend Period shall
be the arithmetic average of the two most recent weekly per annum
Twenty Year Average Yields (or the one weekly per annum Twenty Year
Average Yield, if only one such Yield shall be published during the
relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the
last ten calendar days of March, June, September or December, as
the case may be, prior to the Quarterly Dividend Period for which
the dividend rate on the Floating Rate Series A Stock is being
determined. In the event that the Federal Reserve Board does not
publish such a weekly per annum Twenty Year Average Yield during
such Calendar Period, then the Twenty Year Constant Maturity Rate
for such Dividend Period shall be the arithmetic average of the two
most recent weekly per annum Twenty Year Average Yields (or the one
weekly per annum Twenty Year Average Yield, if only one such Yield
shall be published during the relevant Calendar Period), as
published weekly during such Calendar Period by any Federal Reserve
Bank or by any U.S. Government department or agency selected by the
Corporation. In the event that a per annum Twenty Year Average
Yield shall not be published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government department or agency
during such Calendar Period, then the Twenty Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of
the two most recent weekly per annum average yields to maturity (or
the one weekly average yield to maturity, if only one such yield
shall be published during the relevant Calendar Period) for all of
the actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) then having maturities
of not less than eighteen nor more than twenty-two years, as
published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board shall not publish such yields, by
any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that the
Corporation determines in good faith that for any reason the
Corporation cannot determine the Twenty Year Constant Maturity Rate
for any Quarterly Dividend Period as provided above in this
paragraph, then the Twenty Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such
Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than
eighteen nor more than twenty-two years from the date of each such
quotation, as quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be generally
available) to the Corporation by at least three recognized U.S.
Government securities dealers selected by the Corporation.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate and
the Twenty Year Constant Maturity Rate shall each be rounded to the
nearest five hundredths of a percentage point.
The amount of dividends payable for each Quarterly Dividend
Period shall be computed by annualizing the dividend rate for such
Dividend Period and dividing by four. The amount of dividends
payable for the Initial Dividend Period or any Dividend Period
shorter than a full Quarterly Dividend Period shall be computed on
the basis of 30-day months, a 360-day year and the actual number
of days elapsed in such Dividend Period.
The dividend rate with respect to each Quarterly Dividend Period
will be calculated as promptly as practicable by the Corporation
according to the appropriate method described herein. The
mathematical accuracy of each such calculation will be confirmed
in writing by independent accountants of recognized standing. The
Corporation will cause each dividend rate to be published in a
newspaper of general circulation in New York City prior to the
commencement of the new Quarterly Dividend Period to which it
applies and will cause notice of such dividend rate to be enclosed
with the dividend payment checks next mailed to the holders of the
Floating Rate Series A Stock.
For purposes of this Section, the term
(i) "Calendar Period" shall mean 14 calendar days;
(ii) "Special Securities" shall mean securities which
can, at the option of the holder, be surrendered at face value
in payment of any Federal estate tax or which provide tax
benefits to the holder and are priced to reflect such tax
benefits or which were originally issued at a deep or
substantial discount;
(iii) "Ten Year Average Yield" shall mean the average
yield to maturity for actively traded marketable U.S. Treasury
fixed interest rate securities (adjusted to constant
maturities of ten years); and
(iv) "Twenty Year Average Yield" shall mean the average
yield to maturity for actively traded marketable U.S. Treasury
fixed interest rate securities (adjusted to constant
maturities of 20 years).
4. Voting Rights: (i) The holders of the Floating Rate Series
A Stock shall have the voting power and rights set forth and
referred to in this paragraph 4 and in paragraph 7, and shall have
no other voting power or rights except as otherwise from time to
time required by law.
(ii) Whenever dividends on the Floating Rate Series A Stock
shall be unpaid as a whole or in part for six consecutive Dividend
periods, then at the annual meeting of stockholders next following
omission of the sixth successive quarterly dividend or any part
thereof and at any annual meeting thereafter and at any meeting
called for the election of Directors, until all dividends
accumulated on the Floating Rate Series A Stock have been paid or
declared and a sum sufficient for payment has been set aside, the
holders of the Floating Rate Series A Stock, either alone or
together with the holders of one or more other cumulative series
of the Preferred Stock at the time outstanding which are granted
such voting rights, voting as a class, shall be entitled, to the
exclusion of the holders of one or more other series or classes of
stock having general voting rights, to vote for and elect two
members of the Board of Directors of the Corporation, and the
holders of Common Stock together with the holders of any series or
class or classes of stock of the Corporation having general voting
rights and not then entitled to elect two members of the Board of
Directors pursuant to this paragraph 4 to the exclusion of the
holders of all series then so entitled, shall be entitled to vote
and elect the balance of the Board of Directors. In such case the
Board of Directors of the Corporation shall, as of the date of the
annual meeting of stockholders aforesaid, be increased by two
Directors. The rights of holders of Floating Rate Series A Stock
to participate (either alone or together with the holders of one
or more other cumulative series of Preferred Stock at the time
outstanding which are granted such voting rights) in the exclusive
election of two members of the Board of Directors of the
Corporation pursuant to this paragraph 4 shall continue in effect
until cumulative dividends have been paid in full or declared and
set apart for payment on the Floating Rate Series A Stock. At
elections for such Directors, each holder of the Floating Rate
Series A Stock shall be entitled to one vote for each share held.
The holders of Floating Rate Series A Stock shall have no right to
cumulate such shares in voting for the election of Directors. At
the annual meeting of stockholders, next following the termination
(by reason of the payment of all accumulated and defaulted
dividends on such stock or provision for the payment thereof by
declaration and setting apart thereof) of the exclusive voting
power pursuant to this paragraph 4 of the holders of Floating Rate
Series A Stock and the holders of all other cumulative series which
shall have been entitled to vote for and elect such two members of
the Board of Directors of the Corporation, the terms of office of
all persons who may have been elected Directors of the Corporation
by vote of such holders shall terminate and the two vacancies
created pursuant to this paragraph 4 to accommodate the exclusive
right of election conferred hereunder shall thereupon be eliminated
and the Board of Directors shall be decreased by two Directors.
(iii) So long as any shares of Floating Rate Series A Stock
remain outstanding, the affirmative vote or consent of the holders
of at least two-thirds of the shares of Floating Rate Series A
Stock outstanding at the time 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 (including any class or series of Preferred Stock) ranking
prior (as that term is defined below in this paragraph 4) to the
Floating Rate Series A Stock, or
(b) The authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class or series
of stock (including any class or series of Preferred Stock) which
ranks on a parity with the Floating Rate Series A Stock unless the
Articles Supplementary or other provisions of the charter creating
or authorizing such class or series shall provide that if in any
case the stated dividends or amounts payable on liquidation are not
paid in full on the Floating Rate Series A Stock and all
outstanding shares of stock ranking on a parity (as that term is
defined below in this paragraph 4) with the Floating Rate Series
A Stock (the Floating Rate Series A Stock and all such other stock
being herein called "Parity Stock"), the shares of all Parity Stock
shall share ratably in the payment of dividends, including
accumulations (if any) in accordance with the sums which would be
payable on all Parity Stock if all dividends in respect of all
shares of Parity Stock were paid in full, and on any distribution
of assets upon liquidation ratably in accordance with the sums
which would be payable in respect of all shares of Parity Stock if
all sums payable were discharged in full, or
(c) The amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
charter of the Corporation including these Articles Supplementary
which would materially and adversely affect any right, preference,
privilege or voting power of the Floating Rate Series A Stock or
of the holders thereof; provided, however, that any increase in the
amount of authorized Preferred Stock, the Corporation's $2.125
Cumulative Preferred Stock or $3.125 Cumulative Preferred Stock or
the Floating Rate Series A Stock or the creation and issuance of
other series of Preferred Stock, in each case ranking on a parity
with or junior to the Floating Rate Series A Stock with respect to
the payment of dividends and the distribution of assets upon
liquidation, shall not be deemed to affect materially and adversely
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 which such vote would
otherwise be required shall be effected, all outstanding shares of
the Floating Rate Series A Stock shall have been redeemed or
sufficient funds shall have been deposited in trust in accordance
with paragraph 6 to effect such redemption.
Any class or classes of stock of the Corporation shall be deemed
to rank
(i) prior to the Floating Rate Series A Stock as to
dividends or as to distribution of assets if the 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 t
the holders of Floating Rate Series A Stock; and
(ii) on a parity with the Floating Rate Series A Stock as
to dividends or as to distribution of assets, whether or not
the dividend rates, dividend payment dates, or redemption or
liquidation prices per share thereof be different from those
of the Floating Rate Series A Stock, if the holders of such
class of stock and the Floating Rate Series A stock 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 dividend
rates or liquidation prices, without preference or priority
one over the other.
5. Liquidation: Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of the Floating Rate Series A Stock shall have preference
and priority over the Common Stock for payment out of the assets
of the Corporation or proceeds thereof, whether from capital or
surplus, of $50 per share together with the amount of any dividends
accrued and unpaid thereon, and after such payment the holders of
Floating Rate Series A Stock shall be entitled to no other
payments. If, in such case, the assets of the Corporation or
proceeds thereof shall be insufficient to make the full liquidating
payment of $50 per share and accrued and unpaid dividends on the
Floating Rate Series A Stock and liquidating payments on any other
outstanding series of Parity Stock (including accrued and unpaid
dividends, if any), then such assets and proceeds shall be
distributed among the holders of the Floating Rate Series A Stock
and any other outstanding series of Parity Stock ratably in
accordance with the respective amounts which would be payable on
all series of Parity Stock (including accrued and unpaid dividends,
if any) if all such liquidating amounts payable were paid in full.
A consolidation or merger of the Corporation with or into any other
corporation or corporations or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all or any
part of the assets of the Corporation shall not be deemed or
construed to be a liquidation, dissolution or winding up of the
Corporation.
6. Redemption: The shares of Floating Rate Series A Stock may
not be redeemed prior to May 1, 1987. From May 1, 1987 through and
including April 30, 1992, the Floating Rate Series A Stock may be
redeemed, at the option of the Corporation, as a whole or in part,
at any time or from time to time, at a redemption price equal to
$51.50 per share plus accrued and unpaid dividends to the date of
redemption. After April 30, 1992, the Floating Rate Series A Stock
may be redeemed, at the option of the Corporation, as a whole or
in part, at any time or from time to time, at a redemption price
equal to the stated value per share plus accrued and unpaid
dividends to the date of redemption.
At the option of the Corporation, shares of Floating Rate Series
A Stock redeemed or otherwise acquired may be restored to the
status of authorized but unissued shares of Preferred Stock.
In the case of any redemption, the Corporation shall give
notice of such redemption to the holders of Floating Rate Series
A Stock to be redeemed in the following manner: a notice
specifying the shares to be redeemed and the time and place of
redemption (and, if less than the total outstanding shares are to
be redeemed, specifying the certificate numbers and number of
shares to be redeemed) shall be mailed by first class mail,
addressed to the holders of record of the Floating Rate Series A
Stock to be redeemed at their respective addresses as the same
shall appear upon the books of the Corporation, not more than 60
days and not less than 30 days previous to the date fixed for
redemption. In the event such notice is not given to any
stockholder such failure to give notice shall not affect the notice
given to other stockholders. If less than the whole amount of
outstanding Floating Rate Series A Stock is to be redeemed, the
shares to be redeemed shall be selected by lot or pro rata in any
manner determined by resolution of the Board of Directors to be
fair and proper. From and after the date fixed in any such notice
as the date of redemption (unless default shall be made by the
Corporation in providing moneys at the time and place of redemption
for the payment of the redemption price), all dividends upon the
Floating Rate Series A Stock so called for redemption shall cease
to accrue, and all rights of the holders of said Floating Rate
Series A Stock as stockholders in the Corporation, except the right
to receive the redemption price plus dividends accrued and unpaid
to the date of redemption (without interest) upon surrender of the
certificate representing the Floating Rate Series A Stock so called
for redemption, duly endorsed for transfer, if required, shall
cease and terminate. 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 Floating Rate Series A Stock 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 6 years from such redemption date shall be
released or repaid to the Corporation, after which the holders of
such shares of Floating Rate Series A Stock so called for
redemption shall look only to the Corporation for payment of the
redemption price.
7. Limitation on Merger and Sale of Assets and on Disposition
of the Voting Stock of the Bank: So long as any shares of Floating
Rate Series A Stock remain outstanding, the Corporation shall not,
without the affirmative vote or consent of the holders of at least
a majority of the votes of all Parity Stock entitled to vote
outstanding at the time, given in person or by proxy, either in
writing or by resolution adopted at a meeting at which the holders
of Floating Rate Series A Stock (alone or together with the holders
of one or more other series of Parity Stock at the time outstanding
and entitled to vote) vote separately as a class, (a) directly
or indirectly, sell, transfer or otherwise dispose of, or permit
Republic National Bank of New York (the "Bank") or any other
subsidiary of the Corporation, to issue, sell, transfer or
otherwise dispose of any shares of voting stock of the Bank, or
securities convertible into or options, warrants or rights to
acquire voting stock of the Bank, unless after giving effect to any
such transaction the Bank remains a Controlled Subsidiary (as
hereinafter defined) of the Corporation or of a Qualified Successor
Company (as hereinafter defined); (b) merge or consolidate with,
or convey substantially all of its assets to any person or
corporation unless the entity surviving such merger or
consolidation or the transferee of such assets is the Corporation
or a Qualified Successor Company; or (c) permit the Bank to
merge, consolidate with, or convey substantially all of its assets
to any person or corporation unless the entity surviving such
merger or consolidation or the transferee of such assets is a
Controlled Subsidiary of the Corporation or of a Qualified
Successor Company, except in any of the foregoing cases as required
to comply with applicable law, including, without limitation, any
court or regulatory order. The term "Qualified Successor Company"
shall mean a corporation (or other similar organization or entity
whether organized under or pursuant to the laws of the United
States or any state thereof or of another jurisdiction) which (i)
is or is required to be a registered bank holding company under the
United States Bank Holding Company Act of 1956, as amended, or any
successor legislation, (ii) issues to the holders of the Floating
Rate Series A Stock in exchange for the Floating Rate Series A
Stock shares of preferred stock having at least the same relative
rights and preferences as the Floating Rate Series A Stock (the
"Exchanged Stock"), (iii) immediately after such transaction has
not outstanding or authorized any class of stock or equity
securities ranking prior to the Exchanged Stock with respect to the
payment of dividends or the distribution of assets upon
liquidation, and (iv) holds, as a Controlled Subsidiary or
Subsidiaries, either the Bank or one or more other banking
corporations which, collectively, immediately after such
transaction hold substantially all of the assets and liabilities
which the Bank held immediately prior to such transaction (which
may be in addition to other assets and liabilities acquired in such
transaction). "Controlled Subsidiary" shall mean any corporation
at least 80% of the outstanding shares of voting stock of which
shall at the time be owned directly or indirectly by the
Corporation or a Qualified Successor Company. In connection with
the exercise of the voting rights contained in this paragraph 7,
holders of all series of Parity Stock which are granted such voting
rights (of which the Floating Rate Series A Stock is the third
series) shall vote as a class, and each holder of Floating Rate
Series A Stock shall have one vote for each share of stock held and
each other series shall have such number of votes, if any, for each
share of stock held as may be granted them.
The foregoing voting provisions shall not apply if, at or prior
to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares
of the Floating Rate Series A Stock shall have been redeemed or
sufficient funds shall have been deposited in trust in accordance
with paragraph 6 to effect such redemption.
8. Parity Stock: So long as any shares of Floating Rate Series
A Stock shall remain outstanding, in case the stated dividends or
amounts payable on liquidation are not paid in full with respect
to all outstanding shares of Parity Stock, all such shares shall
share ratably in the payment of dividends, including accumulations
(if any) in accordance with the sums which would be payable in
respect of all outstanding shares of Parity Stock if all dividends
in respect of all such shares of Parity Stock were paid in full,
and on any distribution of assets upon liquidation, ratably in
accordance with the sums which would be payable in respect of all
outstanding Parity Stock if all sums payable were discharged in
full.
9. For the Purposes Hereof:
(i) The term "outstanding", when used in reference to shares
of stock, shall mean issued shares, excluding shares held by the
Corporation and shares called for redemption pursuant to paragraph
6, funds for redemption of which shall have been deposited in trust
pursuant to paragraph 6.
(ii) The amount of dividends "accrued" on any share of
Floating Rate Series A Stock as at any quarterly dividend payment
date shall be deemed to be the amount of any unpaid dividends
accumulated thereon to and including the end of the day preceding
such quarterly dividend date, whether or not earned or declared;
and the amount of dividends "accrued" on any share of Floating Rate
Series A Stock as at any date other than a quarterly dividend
payment date shall be calculated as the amount of any unpaid
dividends accumulated thereon to and including the end of the day
preceding the last preceding quarterly dividend payment date,
whether or not earned or declared, plus an amount equivalent to
dividends on the stated value of such share at the dividend rate
fixed for such share for the period after the end of the day
preceding such last preceding quarterly dividend payment date to
and including the date as of which the calculation is made.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
presents to be signed in its name and on its behalf by its
President and its corporate seal to be hereunto affixed and
attested by its Secretary, and the said officers of the Corporation
further acknowledged said instrument to be the corporate act of the
Corporation and stated under the penalties of perjury that to the
best of their knowledge, information and belief the matters and
facts therein set forth with respect to approval are true in all
material respects, all on May 14, 1982.
REPUBLIC NEW YORK CORPORATION
By /s/ Walter H. Weiner
Walter H. Weiner
Attest: (President)
/s/ Ernest Ginsberg
Ernest Ginsberg
(Secretary)
REPUBLIC NEW YORK CORPORATION
ARTICLES SUPPLEMENTARY
REPUBLIC NEW YORK CORPORATION, a Maryland corporation having its
principal Maryland office in the City of Baltimore, State of
Maryland (hereinafter called the "Corporation"), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article FIFTH of the charter of the
Corporation, the Board of Directors has duly divided and classified
1,000,000 shares of the Preferred Stock of the Corporation into a
series designated Cumulative Preferred Stock, Floating Rate Series
B, and has provided for the issuance of such series.
SECOND: The terms of the Cumulative Preferred Stock, Floating Rate
Series B, as set by the Finance Committee of the Board of Directors
pursuant to authority duly delegated by the Board of Directors are
as follows:
1. Cumulative Preferred Stock Floating Rate Series B:
1,000,000 shares of Preferred Stock of the Corporation, without par
value, are hereby constituted as the original number of shares of
a series of Preferred Stock designated as Cumulative Preferred
Stock,Floating Rate Series B (hereinafter sometimes called the
"Floating Rate Series B Stock"). The Floating Rate Series B Stock
shall be of a stated value of $50 per share (the "stated value").
The term "Articles of Incorporation" when used herein shall include
all articles or certificates filed pursuant to law with respect to
any series of the Preferred Stock.
2. Dividends: Dividend rates on the shares of Floating Rate
Series B Stock shall be: (i) for the period (the "Initial
Dividend Period") from the date of their original issue to and
including July 1, 1984, at a rate per annum of the stated value
thereof equal to 10.68%, and (ii) for each quarterly dividend
period (hereinafter referred to as a "Quarterly Dividend Period";
and the Initial Dividend Period or any Quarterly Dividend Period
being hereinafter individually referred to as a "Dividend Period"
and collectively referred to as "Dividend Periods") thereafter,
which quarterly dividend periods shall commence on January 1, April
1, July 1 and October 1 in each year and shall end on and include
the day next preceding the first day of the next quarterly dividend
period, at a rate per annum of the stated value thereof equal to
1.60% below the Applicable Rate (as defined in paragraph 3) in
respect of such quarterly dividend period; provided, however, that
the dividend rate per annum on the shares of Floating Rate Series
B Stock for any Quarterly Dividend Period shall in no event be less
than 6.50% per annum or greater than 12.50% per annum. Such
dividends shall be cumulative from the date of original issue of
such shares and shall be payable, when and as declared by the Board
of Directors, on the first day of January, April, July and October
of each year, commencing July 1, 1984. If in any Dividend Period
dividends shall not have been paid or declared and set apart for
payment on all outstanding shares of Floating Rate Series B Stock
for such Dividend Period and for all preceding Dividend Periods
from and after the first day from which dividends are cumulative
at the respective rates per annum specified for such Dividend
Periods in the second preceding sentence, then the aggregate
deficiency shall be declared and fully paid or set apart for
payment, but without interest, before (i) any dividends or other
distributions (excluding dividends paid in shares of, or options,
warrants or rights to subscribe for or purchase shares of, Common
Stock of the Corporation) shall be declared and paid or set apart
for payment on the Common Stock or on any other capital stock of
the Corporation ranking junior to the Floating Rate Series B Stock
with respect to the payment of dividends, or (ii) the Corporation
shall purchase, redeem or otherwise acquire any shares of Preferred
Stock or any shares of capital stock of the Corporation ranking on
a parity with or junior to the Floating Rate Series B Stock with
respect to the payment of dividends; provided , however, that any
moneys set aside in trust as a sinking fund payment for any series
of Preferred Stock pursuant to the resolutions providing for the
issue of shares of such series may thereafter be applied to the
purchase or redemption of Preferred Stock of such series whether
or not at the time of such application full cumulative dividends
upon the outstanding Floating Rate Series B Stock shall have been
paid or declared and set apart for payment.
3. Definition of Applicable Rate, etc.: The "Applicable Rate"
for any Quarterly Dividend Period shall be the highest of the
Treasury Bill Rate, the Ten Year Constant Maturity Rate or the
Twenty Year Constant Maturity Rate (each as hereinafter defined)
for such Dividend Period. In the event that the Corporation
determines in good faith that for any reason
(i) any one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Twenty Year Constant Maturity Rate
cannot be determined for any Quarterly Dividend Period, then the
Applicable Rate for such Dividend Period shall be the higher of
whichever two of such Rates can be so determined;
(ii) either only the Treasury Bill Rate or only the Ten
Year Constant Maturity Rate or only the Twenty Year Constant
Maturity Rate can be determined for any Quarterly Dividend Period,
then the Applicable Rate for such Dividend Period shall be
whichever such Rate can be so determined; or
(iii) neither the Treasury Bill Rate nor the Ten Year
Constant Maturity Rate nor the Twenty Year Constant Maturity Rate
can be determined for any Quarterly Dividend Period, then the
Applicable Rate in effect for the preceding Dividend Period shall
be continued for such Dividend Period.
Except as provided below in this paragraph, the "Treasury
Bill Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two most recent weekly per annum market
discount rates (or the one weekly per annum market discount rate,
if only one such rate shall be published during the relevant
Calendar Period as defined below) for three-month U.S. Treasury
bills, as published weekly by the Federal Reserve Board during the
Calendar Period immediately prior to the last ten calendar days of
March, June, September or December, as the case may be, prior to
the Quarterly Dividend Period for which the dividend rate on the
Floating Rate Series B Stock is being determined. In the event
that the Federal Reserve board does not publish such a weekly per
annum market discount rate during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum market discount
rates (or the one weekly per annum market discount rate, if only
one such rate shall be published during the relevant Calendar
Period) for three-month U.S. Treasury bills, as published weekly
during such Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the Corporation.
In the event that a per annum market discount rate for three-month
U.S. Treasury bills shall not be published by the Federal Reserve
Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Treasury
Bill Rate for such Dividend Period shall be the arithmetic average
of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such
rate shall be published during the relevant Calendar Period) for
all of the U.S. Treasury bills then having maturities of not less
that 80 nor more than 100 days, as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve
Board shall not publish such rates, by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in good
faith that for any reason no such U.S. Treasury bill rates are
published as provided above during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the per annum market discount rates based upon the
closing bids during such Calendar Period for each of the issues of
marketable non-interest bearing U.S. Treasury securities with a
maturity of not less than 80 nor more than 100 days from the date
of each such quotation, as quoted daily for each business day in
New York City (or less frequently if daily quotations shall not be
generally available) to the Corporation by at least three
recognized U.S. Government securities dealers selected by the
Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the
Treasury Bill Rate for any Quarterly Dividend Period as provided
above in this paragraph, the Treasury Bill Rate for such Dividend
Period shall be the arithmetic average of the per annum market
discount rates based upon the closing bids during such Calendar
Period for each of the issues of marketable interest-bearing U.S.
Treasury securities with a maturity of not less than 80 nor more
than 100 days from the date of each such quotation, as quoted daily
for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by
at least three recognized U.S. Government securities dealers
selected by the Corporation.
Except as provided below in this paragraph, the "Ten Year
Constant Maturity Rate" for each Quarterly Dividend Period shall
be the arithmetic average of the two most recent weekly per annum
Ten Year Average Yields (or the one weekly per annum Ten Year
Average Yield, if only one such Yield shall be published during the
relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the
last ten calendar days of March, June, September or December, as
the case may be, prior to the Quarterly Dividend Period for which
the dividend rate on the Floating Rate Series B Stock is being
determined. In the event that the Federal Reserve Board does not
publish such a weekly per annum Ten Year Average Yield during such
Calendar Period, then the Ten Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (or the one weekly
per annum Ten Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period), as published weekly
during such Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the Corporation.
In the event that a per annum Ten Year Average Yield shall not be
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two most
recent weekly per annum average yields to maturity (or the one
weekly average yield to maturity, if only one such yield shall be
published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities (as defined below)) then
having maturities of not less than eight nor more than twelve
years, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board shall not publish
such yields, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event
that the Corporation determines in good faith that for any reason
the Corporation cannot determine the Ten Year Constant Maturity
Rate for any Quarterly Dividend Period as provided above in this
paragraph, then the Ten Year constant Maturity Rate for such
dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such
Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than eight
nor more than twelve years from the date of each such quotation,
as quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available)
to the Corporation by at least three recognized U.S. Government
securities dealers selected by the Corporation.
Except as provided below in this paragraph, the "Twenty Year
Constant Maturity Rate" for each Quarterly Dividend Period shall
be the arithmetic average of the two most recent weekly per annum
Twenty Year Average Yields (or the one weekly per annum Twenty Year
Average Yield, if only one such Yield shall be published during the
relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the
last ten calendar days of March, June, September or December, as
the case may be, prior to the Quarterly Dividend Period for which
the dividend rate on the Floating Rate Series B Stock is being
determined. In the event that the Federal Reserve Board does not
publish such a weekly per annum Twenty Year Average Yield during
such Calendar Period, then the Twenty Year Constant Maturity Rate
for such Dividend Period shall be the arithmetic average of the two
most recent weekly per annum Twenty Year Average Yields (or the one
weekly per annum Twenty Year Average Yield, if only one such Yield
shall be published during the relevant Calendar Period), as
published weekly during such Calendar Period by any Federal Reserve
Bank or by any U.S. Government department or agency selected by the
Corporation. In the event that a per annum Twenty Year Average
Yield shall not be published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government department or agency
during such Calendar Period, then the Twenty Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of
the two most recent weekly per annum average yields to maturity (or
the one weekly average yield to maturity, if only one such yield
shall be published during the relevant Calendar Period) for all of
the actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) then having maturities
of not less than eighteen nor more than twenty-two years, as
published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board shall not publish such yields, by
any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that the
Corporation determines in good faith that for any reason the
Corporation cannot determine the Twenty Year Constant Maturity Rate
for any Quarterly Dividend Period as provided above in this
paragraph, then the Twenty Year Constant Maturity Rate for such
dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such
Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than
eighteen nor more than twenty-two years from the date of each such
quotation, as quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be generally
available) to the Corporation by at least three recognized U.S.
Government securities dealers selected by the Corporation.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate and
the Twenty Year constant Maturity Rate shall each be rounded to the
nearest five hundredths of a percentage point.
The amount of dividends payable for each Quarterly Dividend
Period shall be computed by annualizing the dividend rate for such
Dividend Period and dividing by four. The amount of dividends
payable for the Initial Dividend Period or any Dividend Period
shorter than a full Quarterly Dividend Period shall be computed on
the basis of 30-day months, a 360-day year and the actual number
of days elapsed in such Dividend Period.
The dividend rate with respect to each Quarterly Dividend Period
will be calculated as promptly as practicable by the Corporation
according to the appropriate method described herein. The
mathematical accuracy of each such calculation will be confirmed
in writing by independent accountants of recognized standing. The
Corporation will cause each dividend rate to be published in a
newspaper of general circulation in New York City prior to the
commencement of the new Quarterly Dividend Period to which it
applies and will cause notice of such dividend rate to be enclosed
with the dividend payment checks next mailed to the holders of the
Floating Rate Series B Stock.
For purposes of this Section, the term
(i) "Calendar Period" shall mean 14 calendar days;
(ii) "Special Securities" shall mean securities which can,
at the option of the holder, be surrendered at face value in
payment of any Federal estate tax or which provide tax
benefits to the holder and are priced to reflect such tax
benefits or which were originally issued at a deep or
substantial discount;
(iii) "Ten Year Average Yield" shall mean the average yield
to maturity for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant maturities of
ten years); and
(iv) "Twenty Year Average Yield" shall mean the average
yield to maturity for actively traded marketable U.S. Treasury
fixed interest rate securities (adjusted to constant
maturities of 20 years).
4. Voting Rights: (i) The holders of the Floating Rate Series
B Stock shall have the voting power and rights set forth and
referred to in this paragraph 4 and in paragraph 7, and shall have
no other voting power or rights except as otherwise from time to
time required by law.
(ii) Whenever dividends on the Floating Rate Series B Stock
shall be unpaid as a whole or in part for six consecutive Dividend
periods, then at the annual meeting of stockholders next following
omission of the sixth successive quarterly dividend or any part
thereof and at any annual meeting thereafter and at any meeting
called for the election of Directors, until all dividends
accumulated on the Floating Rate Series B Stock have been paid or
declared and a sum sufficient for payment has been set aside, the
holders of the Floating Rate Series B Stock, either alone or
together with the holders of one or more other cumulative series
of the Preferred Stock at the time outstanding which are granted
such voting rights, voting as a class, shall be entitled, to the
exclusion of the holders of one or more other series or classes of
stock having general voting rights, to vote for and elect two
members of the Board of Directors of the Corporation, and the
holders of Common Stock together with the holders of any series or
class or classes of stock of the Corporation having general voting
rights and not then entitled to elect two members of the Board of
Directors pursuant to this paragraph 4 to the exclusion of the
holders of all series then so entitled, shall be entitled to vote
and elect the balance of the Board of Directors. In such case the
Board of Directors of the Corporation shall, as of the date of the
annual meeting of stockholders aforesaid, be increased by two
Directors. The rights of holders of Floating Rate Series B Stock
to participate (either alone or together with the holders of one
or more other cumulative series of Preferred Stock at the time
outstanding which are granted such voting rights) in the exclusive
election of two members of the Board of Directors of the
Corporation pursuant to this paragraph 4 shall continue in effect
until cumulative dividends have been paid in full or declared and
set apart for payment on the Floating Rate Series B Stock. At
elections for such Directors, each holder of the Floating Rate
Series B Stock shall be entitled to one vote for each share held.
The holders of Floating Rate Series B Stock shall have no right to
cumulate such shares in voting for the election of Directors. At
the annual meeting of stockholders, next following the termination
(by reason of the payment of all accumulated and defaulted
dividends on such stock or provision for the payment thereof by
declaration and setting apart thereof) of the exclusive voting
power pursuant to this paragraph 4 of the holders of Floating Rate
Series B Stock and the holders of all other cumulative series which
shall have been entitled to vote for and elect such two members of
the Board of Directors of the Corporation, the terms of office of
all persons who may have been elected Directors of the Corporation
by vote of such holders shall terminate and the two vacancies
created pursuant to this paragraph 4 to accommodate the exclusive
right of election conferred hereunder shall thereupon be eliminated
and the Board of Directors shall be decreased by two Directors.
(iii) So long as any shares of Floating Rate Series B Stock
remain outstanding, the affirmative vote or consent of the holders
of at least two-thirds of the shares of Floating Rate Series B
Stock outstanding at the time 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 (including any class or series of Preferred Stock) ranking
prior (as that term is defined below in this paragraph 4) to the
Floating Rate Series B Stock, or
(b) The authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class or series
of stock (including any class or series of Preferred Stock) which
ranks on a parity with the Floating Rate Series B Stock unless the
Articles Supplementary or other provisions of the charter creating
or authorizing such class or series shall provide that if in any
case the stated dividends or amounts payable on liquidation are not
paid in full on the Floating Rate Series B Stock and all
outstanding shares of stock ranking on a parity (as that term is
defined below in this paragraph 4) with the Floating Rate Series
B Stock (the Floating Rate Series B Stock and all such other stock
being herein called "Parity Stock"), the shares of all Parity Stock
shall share ratably in the payment of dividends, including
accumulations (if any) in accordance with the sums which would be
payable on all Parity Stock if all dividends in respect of all
shares of Parity Stock were paid in full, and on any distribution
of assets upon liquidation ratably in accordance with the sums
which would be payable in respect of all shares of Parity Stock if
all sums payable were discharged in full, or
(c) The amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the
charter of the Corporation including these Articles Supplementary
which would materially and adversely affect any right, preference,
privilege or voting power of the Floating Rate Series B Stock or
of the holders thereof; provided, however, that any increase in the
amount of authorized Preferred Stock, the Corporation's $2.125
Cumulative Preferred Stock or $3.125 Cumulative Preferred Stock or
Cumulative Preferred Stock, Floating Rate Series A or the Floating
Rate Series B Stock or the creation and issuance of other series
of Preferred Stock, in each case ranking on a parity with or junior
to the Floating Rate Series B Stock with respect to the payment of
dividends and the distribution of assets upon liquidation, shall
not be deemed to affect materially and adversely 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 which such vote would
otherwise be required shall be effected, all outstanding shares of
the Floating Rate Series B Stock shall have been redeemed or
sufficient funds shall have been deposited in trust in accordance
with paragraph 6 to effect such redemption.
Any class or classes of stock of the Corporation shall be deemed
to rank
(i) prior to the Floating Rate Series B Stock as to
dividends or as to distribution of assets if the 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 Floating Rate Series B Stock; and
(ii) on a parity with the Floating Rate Series B Stock as
to dividends or as to distribution of assets, whether or not
the dividend rates, dividend payment dates, or redemption or
liquidation prices per share thereof be different from those
of the Floating Rate Series B Stock, if the holders of such
class of stock and the Floating Rate Series B stock 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 dividend
rates or liquidation prices, without preference or priority
one over the other.
5. Liquidation: Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of the Floating Rate Series B Stock shall have preference
and priority over the Common Stock for payment out of the assets
of the Corporation or proceeds thereof, whether from capital or
surplus, of $50 per share together with the amount of any dividends
accrued and unpaid thereon, and after such payment the holders of
Floating Rate Series B Stock shall be entitled to no other
payments. If, in such case, the assets of the Corporation or
proceeds thereof shall be insufficient to make the full liquidating
payment of $50 per share and accrued and unpaid dividends on the
Floating Rate Series B Stock and liquidating payments on any other
outstanding series of Parity Stock (including accrued and unpaid
dividends, if any), then such assets and proceeds shall be
distributed among the holders of the Floating Rate Series B Stock
and any other outstanding series of Parity Stock ratably in
accordance with the respective amounts which would be payable on
all series of Parity Stock (including accrued and unpaid dividends,
if any) if all such liquidating amounts payable were paid in full.
A consolidation or merger of the Corporation with or into any other
corporation or corporations or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all or any
part of the assets of the Corporation shall not be deemed or
construed to be a liquidation, dissolution or winding up of the
Corporation.
6. Redemption: The shares of Floating Rate Series B Stock may
not be redeemed prior to April 1, 1989. From April 1, 1989 through
and including March 31, 1994, the Floating Rate Series B Stock may
be redeemed, at the option of the Corporation, as a whole or in
part, at any time or from time to time, at a redemption price equal
to $51.50 per share plus accrued and unpaid dividends to the date
of redemption. After March 31, 1994, the Floating Rate Series B
Stock may be redeemed, at the option of the Corporation, as a whole
or in part, at any time or from time to time, at a redemption price
equal to $51.50 per share plus accrued and unpaid dividends to the
date of redemption.
At the option of the Corporation, shares of Floating Rate Series
B Stock redeemed or otherwise acquired may be restored to the
status of authorized but unissued shares of Preferred Stock.
In the case of any redemption, the Corporation shall give
notice of such redemption to the holders of Floating Rate Series
B Stock to be redeemed in the following manner: a notice specifying
the shares to be redeemed and the time and place of redemption
(and, if less than the total outstanding shares are to be redeemed,
specifying the certificate numbers and number of shares to be
redeemed) shall be mailed by first class mail, addressed to the
holders of record of the Floating Rate Series B Stock to be
redeemed at their respective addresses as the same shall appear
upon the books of the Corporation, not more than 60 days and not
less than 30 days previous to the date fixed for redemption. In
the event such notice is not given to any stockholder such failure
to give notice shall not affect the notice given to other
stockholders. If less than the whole amount of outstanding
Floating Rate Series B Stock is to be redeemed, the shares to be
redeemed shall be selected by lot or pro rata in any manner
determined by resolution of the Board of Directors to be fair and
proper. From and after the date fixed in any such notice as the
date of redemption (unless default shall be made by the Corporation
in providing moneys at the time and place of redemption for the
payment of the redemption price), all dividends upon the Floating
Rate Series B Stock so called for redemption shall cease to accrue,
and all rights of the holders of said Floating Rate Series B Stock
as stockholders in the Corporation, except the right to receive the
redemption price plus dividends accrued and unpaid to the date of
redemption (without interest) upon surrender of the certificate
representing the Floating Rate Series B Stock so called for
redemption, duly endorsed for transfer, if required, shall cease
and terminate. 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 Floating Rate Series B Stock 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 6 years from such redemption date shall be released or repaid
to the Corporation, after which the holders of such shares of
Floating Rate Series B Stock so called for redemption shall look
only to the Corporation for payment of the redemption price.
7. Limitation on Merger and Sale of Assets and on Disposition
of the Voting Stock of the Bank: So long as any shares of Floating
Rate Series B Stock remain outstanding, the Corporation shall not,
without the affirmative vote or consent of the holders of at least
a majority of the votes of all Parity Stock entitled to vote
outstanding at the time, given in person or by proxy, either in
writing or by resolution adopted at a meeting at which the holders
of Floating Rate Series B Stock (alone or together with the holders
of one or more other series of Parity Stock at the time outstanding
and entitled to vote) vote separately as a class, (a) directly
or indirectly, sell, transfer or otherwise dispose of, or permit
Republic National Bank of New York (the "Bank") or any other
subsidiary of the Corporation, to issue, sell, transfer or
otherwise dispose of any shares of voting stock of the Bank, or
securities convertible into or options, warrants or rights to
acquire voting stock of the Bank, unless after giving effect to any
such transaction the Bank remains a Controlled Subsidiary (as
hereinafter defined) of the Corporation or of a Qualified Successor
Company (as hereinafter defined); (b) merge or consolidate with,
or convey substantially all of its assets to any person or
corporation unless the entity surviving such merger or
consolidation or the transferee of such assets is the Corporation
or a Qualified Successor Company; or (c) permit the Bank to
merge, consolidate with, or convey substantially all of its assets
to any person or corporation unless the entity surviving such
merger or consolidation or the transferee of such assets is a
Controlled Subsidiary of the Corporation or of a Qualified
Successor Company, except in any of the foregoing cases as required
to comply with applicable law, including, without limitation, any
court or regulatory order. The term "Qualified Successor Company"
shall mean a corporation (or other similar organization or entity
whether organized under or pursuant to the laws of the United
States or any state thereof or of another jurisdiction) which (i)
is or is required to be a registered bank holding company under the
United States Bank Holding Company Act of 1956, as amended, or any
successor legislation, (ii) issues to the holders of the Floating
Rate Series B Stock in exchange for the Floating Rate Series B
Stock shares of preferred stock having at least the same relative
rights and preferences as the Floating Rate Series B Stock (the
"Exchanged Stock"), (iii) immediately after such transaction has
not outstanding or authorized any class of stock or equity
securities ranking prior to the Exchanged Stock with respect to the
payment of dividends or the distribution of assets upon
liquidation, and (iv) holds, as a Controlled Subsidiary or
Subsidiaries, either the Bank or one or more other banking
corporations which, collectively, immediately after such
transaction hold substantially all of the assets and liabilities
which the Bank held immediately prior to such transaction (which
may be in addition to other assets and liabilities acquired in such
transaction). "Controlled Subsidiary" shall mean any corporation
at least 80% of the outstanding shares of voting stock of which
shall at the time be owned directly or indirectly by the
Corporation or a Qualified Successor Company. In connection with
the exercise of the voting rights contained in this paragraph 7,
holders of all series of Parity Stock which are granted such voting
rights (of which the Floating Rate Series B Stock is the fourth
series) shall vote as a class, and each holder of Floating Rate
Series B Stock shall have one vote for each share of stock held and
each other series shall have such number of votes, if any, for each
share of stock held as may be granted them.
The foregoing voting provisions shall not apply if, at or prior
to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
the Floating Rate Series B Stock shall have been redeemed or
sufficient funds shall have been deposited in trust in accordance
with paragraph 6 to effect such redemption.
8. Parity Stock: So long as any shares of Floating Rate Series
B Stock shall remain outstanding, in case the stated dividends or
amounts payable on liquidation are not paid in full with respect
to all outstanding shares of Parity Stock, all such shares shall
share ratably in the payment of dividends, including accumulations
(if any) in accordance with the sums which would be payable in
respect of all outstanding shares of Parity Stock if all dividends
in respect of all such shares of Parity Stock were paid in full,
and on any distribution of assets upon liquidation, ratably in
accordance with the sums which would be payable in respect of all
outstanding Parity Stock if all sums payable were discharged in
full.
9. For the Purposes Hereof:
(i) The term "outstanding", when used in reference to
shares of stock, shall mean issued shares, excluding shares held
by the Corporation and shares called for redemption pursuant to
paragraph 6, funds for redemption of which shall have been
deposited in trust pursuant to paragraph 6.
(ii) The amount of dividends "accrued" on any share of
Floating Rate Series B Stock as at any quarterly dividend payment
date shall be deemed to be the amount of any unpaid dividends
accumulated thereon to and including the end of the day preceding
such quarterly dividend date, whether or not earned or declared;
and the amount of dividends "accrued" on any share of Floating Rate
Series B Stock as at any date other than a quarterly dividend
payment date shall be calculated as the amount of any unpaid
dividends accumulated thereon to and including the end of the day
preceding the last preceding quarterly dividend payment date,
whether or not earned or declared, plus an amount equivalent to
dividends on the stated value of such share at the dividend rate
fixed for such share for the period after the end of the day
preceding such last preceding quarterly dividend payment date to
and including the date as of which the calculation is made.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
presents to be signed in its name and on its behalf by its
President and its corporate seal to be hereunto affixed and
attested by its Secretary, and the said officers of the Corporation
further acknowledged said instrument to be the corporate act of the
Corporation and stated under the penalties of perjury that to the
best of their knowledge, information and belief the matters and
facts therein set forth with respect to approval are true in all
material respects, all on March 7, 1984.
REPUBLIC NEW YORK CORPORATION
By /s/ Jeffrey C. Keil
Jeffrey C. Keil
Attest: (President)
/s/ Ernest Ginsberg
Ernest Ginsberg
(Secretary)
REPUBLIC NEW YORK CORPORATION
ARTICLES SUPPLEMENTARY
REPUBLIC NEW YORK CORPORATION, a Maryland corporation having its
principal Maryland office in the City of Baltimore, State of
Maryland (hereinafter called the "Corporation"), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article FIFTH of the Charter of the
Corporation, the Board of Directors has duly divided and classified
1,250 shares of the Preferred Stock of the Corporation into two
series of designated Dutch Auction Rate Transferable SecuritiesTM
Preferred Stock, Series A and B, and has provided for the issuance
of each such series.
SECOND: The terms of the Dutch Auction Rate Transferable
SecuritiesTM Preferred Stock, Series A and B, as set by the Finance
Committee of the Board of Directors pursuant to authority duly
delegated by the Board of Directors are as follows:
625 shares of Preferred Stock of the Corporation, without
par value, shall constitute a series of Preferred Stock
designated as "Dutch Auction Rate Transferable Securities
Preferred Stock, Series A", hereinafter referred to as the
"Series A DARTS". 625 shares of Preferred Stock of the
Corporation, without par value, shall constitute a series of
Preferred Stock designated as "Dutch Auction Rate T
Securities Preferred Stock, Series B", hereinafter referred
to as the "Series B DARTS". The Series A DARTS and the Series
B DARTS are herein referred to collectively as the "DARTS".
All shares of each series of DARTS shall be identical with
each other in all respects. The DARTS shall be of a stated
value of $100,000 per share (the "stated value").
1. Definitions. Unless the context or use indicates
another or different meaning or intent, the following terms shall
have the following meanings, whether used in the singular or
plural:
(a) "60-day 'AA' Composite Commercial Paper Rate", on any
date, means (i) the interest equivalent of the 60-day rate
on commercial paper placed on behalf of issuers whose
corporate bonds are rated "AA" by Standard & Poor's
Corporation ("S&P"), or the equivalent of such rating by S&P
or another rating agency, as such 60-day rate is made
available on a discount basis or otherwise by the Federal
Reserve Bank of New York for the Business Day immediately
preceding such date, or (ii) in the event that the Federal
Reserve Bank of New York does not make available such a rate,
then the arithmetic average of the interest equivalent of the
60-day rate on commercial paper placed on behalf of such
issuers, as quoted on a discount basis or otherwise by the
Commercial Paper Dealers to the Trust Company for the close
of business on the Business Day immediately preceding such
date. If any Commercial Paper Dealer does not quote a rate
required to determine the 60-day "AA" Composite Commercial
Paper Rate, the 60-day "AA" Composite Commercial Paper Rate
shall be determined on the basis of the quotation or
quotations furnished by the remaining Commercial Paper Dealer
or Commercial Paper Dealers and any Substitute Commercial
Paper Dealer or Substitute Commercial Paper Dealers selected
by the Corporation to provide such rate or rates not being
supplied by any Commercial Paper Dealer or Commercial Paper
Dealers, as the case may be, or, if the Corporation does not
select any such Substitute Commercial Paper Dealer or
Substitute Commercial Paper Dealers, by the remaining
Commercial Paper Dealer or Commercial Paper Dealers. If the
Board of Directors of the Corporation shall make the
adjustment referred to in the third sentence of paragraph
2(b)(i), then (i) if the Dividend Period Days shall be fewer
than 70 days, such rate shall be the interest equivalent of
the 60-day rate on such commercial paper; (ii) if the
Dividend Period Days shall be 70 or more days but fewer than
85 days, such rate shall be the arithmetic average of the
interest equivalent of the 60-day and 90-day rates on such
commercial paper; and (iii) if the Dividend Period Days
shall be 85 or more days but fewer than 98 days, such rate
shall be the interest equivalent of the 90-day rate on such
commercial paper. For purposes of this definition, the
"interest equivalent" of a rate stated on a discount basis (a
"discount rate") for commercial paper of a given day's
maturity shall be equal to the quotient of (A) the discount
rate divided by (B) the difference between (x) 1.00 and (y)
a fraction the numerator of which shall be the product of the
discount rate times the number of days in which such
commercial paper matures and the denominator of which shall
be 360. If the rate obtained by the Trust Company is quoted
on another basis, the Trust Company shall convert the quoted
rate to its interest equivalent after consultation with the
Corporation as to the method of such conversion.
(b) "Applicable Rate" means the rate per annum at which
dividends are payable on the shares of a particular series of
DARTS for any Dividend Period.
(c) "Auction" means each periodic operation of the Auction
Procedures.
(d) "Auction Procedures" means the procedures for
conducting Auctions set forth in paragraph 6 below.
(e) "Business Day" means a day on which the New York Stock
Exchange is open for trading and which is not a Saturday,
Sunday or other day on which banks in The City of New York are
authorized by law to close.
(f) "Code" means the Internal Revenue Code of 1954, as
amended.
(g) "Commercial Paper Dealers" means Salomon Brothers Inc,
Merrill Lynch, Pierce, Fenner & Smith, Lehman Commercial Paper
Incorporated and Bear, Stearns & Co. Inc., or, in lieu of any
thereof, their respective affiliates or successors.
(h) "Date of Original Issue" means the date on which the
Corporation originally issues shares of Series A DARTS or
Series B DARTS, as the case may be.
(i) "Divided Payment Date" has the meaning set forth in
paragraph 2(b)(i) below.
(j) "Dividend Period" has the meaning set forth in
paragraph 2(c)(i) below.
(k) "Dividend Period Days" has the meaning set forth in
paragraph 2(b)(i) below.
(l) "Holder" means the holder of shares of the
Corporation's Series A DARTS and Series B DARTS, as the case
may be, as the same appears on the Stock Books of the
Corporation.
(m) "Initial Dividend Payment Date" has the meaning set
forth in paragraph 2(b)(i) below.
(n) "Initial Dividend Rate" has the meaning set forth in
paragraph 2(c)(i) below.
(o) "Initial Dividend Period" has the meaning set
forth in paragraph 2(c)(i) below.
(p) "Minimum Holding Period" has the meaning set forth
in paragraph 2(b)(i) below.
(q) "Notice of Redemption" has the meaning set forth in
paragraph 4(c) below.
(r) "Parity Stock" has the meaning set forth in Section
5(c)(ii) below.
(s) "Stock Books" means the stock transfer books of the
Corporation maintained by the Trust Company.
(t) "Subsequent Dividend Period" has the meaning specified
in paragraph 2(c)(i) below.
(u) "Substitute Commercial Paper Dealer" means Goldman,
Sachs & Co. and Morgan Stanley & Co., Incorporated, or, in
lieu of any thereof, their respective affiliates or
successors.
(v) "Trust Company" means Manufacturers Hanover Trust
Company unless and until another bank or trust company shall
have been so appointed by a resolution of the Board of
Directors of the Corporation.
2. Dividends. (a) The Holders shall be entitled to
receive, when, as and if declared by the Board of Directors of the
Corporation, out of funds legally available therefor, cumulative
cash dividends at the Applicable Rate per annum, determined as set
forth below, and no more, payable on the respective dates set forth
below.
(b) (i) Dividends on shares of DARTS, at the Applicable
Rate per annum, shall accrue from the Date of Original Issue and
shall be payable commencing as follows:
Series A DARTS May 28, 1986
Series B DARTS June 3, 1986
and on each Tuesday that is the last day of successive 49-day
periods thereafter; provided, however, that if any of such Tuesday,
the Monday preceding such Tuesday or the Wednesday following such
Tuesday is not a Business Day, then (i) the Dividend Payment Date
will be the first Business Day after such Tuesday that is
immediately followed by a Business Day and is preceded by a
Business Day that is the preceding Monday or a day after such
Monday, or (ii) if the Securities Depository shall make available
to its participants and members in funds immediately available in
The City of New York on Dividend Payment Dates, the amount due as
dividends on such Dividend Payment Dates (and the Securities
Depository shall have so advised the Trust Company), then the
Dividend Payment Date will be the first Business Day on or after
such Tuesday that is preceded by a Business Day that is the
preceding Monday or a day after such Monday (each date of payment
of dividends being herein referred to as a "Dividend Payment Date"
and the first Dividend Payment Date for a particular series of
DARTS being herein referred to as the "Initial Dividend Payment
Date" for that series). Although any particular Dividend Payment
Date may not occur on the originally scheduled Tuesday because of
the above-mentioned provisos, the next succeeding Dividend Payment
Date shall be, subject to such provisos, the seventh Tuesday
following the originally designated Tuesday for the prior Dividend
Period. Notwithstanding the foregoing, in the event of a change
in law lengthening the minimum holding period (currently found in
paragraph 246(c) of the Code) (the "Minimum Holding Period")
required for taxpayers to be entitled to the dividends-received
deduction on preferred stock held by non-affiliated corporations
(currently found in paragraph 243 (a) of the Code), the Board of
Directors of the Corporation or a duly designated Committee thereof
shall adjust the period of time between Dividend Payment Dates so
as to adjust uniformly the number of days (such number of days
without giving effect to the provisos in the first sentence of this
paragraph 2(b)(i) being hereinafter referred to as "Dividend Period
Days") in Dividend Periods commencing after the date of such change
in law to equal or exceed the then-current Minimum Holding Period;
provided that the number of Dividend Period Days shall not exceed
by more than nine days the length of such then-current Minimum
Holding Period and shall be evenly divisible by seven, and the
maximum number of Dividend Period Days in no event shall exceed 98
days. Upon any such change in the number of Dividend Period Days
as a result of a change in law, the Corporation shall mail notice
of such change by first-class mail, postage prepaid, to the Trust
Company and to each Holder at such Holder's address as the same
appears on the Stock Books of the Corporation.
(ii) Each dividend shall be paid to the Holder of shares
of DARTS as its name appears on the Stock Books of the Corporation
at the opening of business on the Business Day next preceding the
Dividend Payment Date thereof. Dividends in arrears for any past
Dividend Period may be declared and paid at any time, without
reference to any regular Dividend Payment Date, in the manner
specified above. The persons entitled to such dividend payments
shall be the Holders whose names appear on the Stock Books of the
Corporation on a date, not exceeding 15 days preceding the payment
date thereof, as may be fixed by the Board of Directors of the
Corporation.
(c) (i) The dividend rate (the "Initial Dividend Rate")
on shares of DARTS during the period from and after the Date of
Original Issue to the Initial Dividend Payment Date (the "Initial
Dividend Period") shall be 4-7/8% per annum. Commencing on the
Initial Dividend Payment Date, the dividend rate on shares of each
series of DARTS for each subsequent dividend period (hereinafter
referred to as a "Subsequent Dividend Period", the Initial Dividend
Period or any Subsequent Dividend Period being hereinafter referred
to as a "Dividend Period"), which Subsequent Dividend Period shall
commence on the last day of the preceding dividend Period and shall
end on the next Dividend Payment Date, shall be equal to the rate
per annum that results from implementation of the Auction
Procedures.
(ii) The amount of dividends per share of a series of DARTS
payable for any Dividend Period or part thereof shall be computed
by multiplying the Applicable Rate for such Dividend Period by a
fraction the numerator of which shall be the number of days in such
Dividend Period or part thereof (calculated by counting the first
day thereof but excluding the last day thereof) such share was
outstanding and the denominator of which shall be 360 and
multiplying the amount so obtained by $100,000.
(d) (i) Except as hereinafter provided, no dividends shall
be declared or paid or set apart for payment on the shares of any
series of DARTS for any period unless full cumulative dividends
have been or contemporaneously are declared and paid on the shares
of DARTS of all series through the most recent Dividend Payment
Date. Holders of shares of a series of DARTS 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
shares of that series of DARTS. No interest, or sum of money in
lieu of interest, shall be payable in respect of any dividend
payment on the shares of DARTS that may be in arrears.
(ii) If in any Dividend Period full cumulative dividends
shall not have been paid or declared and set apart for payment on
all outstanding shares of DARTS for such Dividend Period and for
all preceding Dividend Periods, then the aggregate deficiency shall
be declared and fully paid or set apart for payment, but without
interest, before (i) any dividends or other distributions
(excluding dividends paid in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock of the
Corporation) shall be declared and paid or set apart for payment
on the Common Stock or on any other capital stock of the
Corporation ranking junior to the DARTS with respect to the payment
of dividends, or (ii) the Corporation shall purchase, redeem or
otherwise acquire any shares of Preferred Stock or any shares of
capital stock of the Corporation ranking on a parity with or junior
to the DARTS with respect to the payment of dividends; provided,
however, that any moneys set aside in trust as a sinking fund
payment for any series of Preferred Stock pursuant to the Articles
Supplementary providing for the issue of shares of such series may
thereafter be applied to the purchase or redemption of Preferred
Stock of such series whether or not at the time of such application
full cumulative dividends upon the outstanding DARTS shall have
been paid or declared and set apart for payment.
(iii) Any dividend payment made on shares of any Series of
DARTS shall first be credited against the earliest accrued but
unpaid dividend due with respect to shares of DARTS of that series.
3. Liquidation Rights. Upon any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary,
the Holders of the DARTS shall have preference and priority over
the Common Stock for payment out of the assets of the Corporation
or proceeds thereof, whether from capital or surplus, of $100,000
per share together with the amount of any dividends accrued and
unpaid thereon, and after such payment the Holders of DARTS shall
be entitled to no other payments. If, in such case, the assets of
the Corporation or proceeds thereof shall be insufficient to make
the full liquidating payment of $100,000 per share and accrued and
unpaid dividends on the DARTS and liquidating payments on any other
outstanding series of Parity Stock (including accrued and unpaid
dividends, if any), then such assets and proceeds shall be
distributed among the Holders of the DARTS and the holders of any
other outstanding series of Parity Stock ratably in accordance with
the respective amounts which would be payable on all series of
Parity Stock (including accrued and unpaid dividends, if any) if
all such liquidating amounts payable were paid in full. A
consolidation or merger of the Corporation with or into any other
corporation or corporations or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all or any
part of the assets of the Corporation shall not be deemed or
construed to be a liquidation, dissolution or winding up of the
Corporation.
4. Redemption. The DARTS shall be redeemable by the
Corporation as provided below:
(a) (i) At its option, the Board of Directors of the
Corporation or a duly designated Committee thereof may, out of
funds legally available therefor, upon at least 30 days, but not
more than 60 days, Notice of Redemption pursuant to clause (c) of
this paragraph 4, redeem the shares of any series of DARTS or of
all DARTS as a whole or from time to time in part on any Dividend
Payment Date at a redemption price equal to
(A) $103,000 per share if redeemed on or before
the first anniversary of the Date of Original Issue;
(B) $102,000 per share if redeemed thereafter and
on or before the second anniversary of the Date of
Original Issue;
(C) $101,000 per share if redeemed thereafter and
on or before the third anniversary of the Date of
Original Issue;
or
(D) $100,000 per share if redeemed thereafter;
plus, in each case, an amount equal to accrued and unpaid dividends
on such shares (whether or not earned or declared) to the
redemption date
(ii) The shares of any series of DARTS may also be
redeemed, at the option of the Board of Directors of the Corporation
or a duly designated Committee thereof, as a whole but not in part,
on any Dividend Payment Date, upon at least 30 days, but not more than
60 days, Notice of Redemption pursuant to clause (c) of this paragraph
4, at a redemption price of $100,000 per share, plus an amount equal
to accrued and unpaid dividends (whether or not earned or declared) on
such shares to the redemption date, if the Applicable Rate fixed for
the Dividend Period ending on such Dividend Payment Date shall equal or
exceed the 60-day "AA" Composite Commercial Paper Rate on the date of
determination of such Applicable Rate.
(b) Notwithstanding any other provision of this paragraph
4, shares of a particular series of DARTS may not be redeemed,
other than as a whole, unless all accrued and unpaid dividends
on all outstanding shares of the series shall have been paid
or are being contemporaneously paid or set apart for payment.
In the event that less than all the outstanding shares of a
series of DARTS are to be redeemed, the shares to be redeemed
shall be selected by lot or such other method as the
Corporation shall deem fair and equitable.
(c) Whenever shares of DARTS are to be redeemed, the
Corporation shall mail a notice ("Notice of Redemption") by
first-class mail, postage prepaid, to each Holder of record
of shares of DARTS to be redeemed and to the Trust Company.
A Notice of Redemption shall be addressed to the Holder at the
address of the Holder appearing on the Stock Books of the
Corporation maintained by the Trust Company. The Notice of
Redemption shall also be published in the Wall Street Journal.
The Notice of Redemption shall include a statement of (i)
the redemption date, (ii) the redemption price, (iii) the
number of shares of each series of DARTS to be redeemed, (iv)
the place or places where shares of DARTS are to be
surrendered for payment of the redemption price, (v) that
dividends on the shares to be redeemed will cease to accrue
on such redemption date, and (vi) the provision under which
redemption is made. No defect in the Notice of Redemption or
in the mailing or publication thereof shall affect the
validity of the redemption proceedings, except as required by
law.
If Notice of Redemption shall have been given as aforesaid
and the Corporation shall have deposited a sum sufficient to
redeem the shares of DARTS as to which Notice of Redemption
has been given with the Trust Company, with irrevocable
instructions and authority to pay the redemption price to the
Holders thereof, or if no such deposit is made, then upon such
date fixed for redemption (unless the Corporation shall
default in making payment of the redemption price), all rights
of the Holders thereof as stockholders of the Corporation by
reason of the ownership of such shares (except their right to
receive the redemption price thereof, but without interest),
shall terminate, and such shares shall no longer be deemed
outstanding. The Corporation shall be entitled to receive,
from time to time, from the Trust Company the interest, if
any, on such moneys deposited with it and the Holders of any
shares so redeemed shall have no claim to any such interest.
In case the Holder of any shares so called for redemption
shall not claim the redemption price for his shares within one
year after the date of redemption, the Trust Company shall,
upon demand, pay over to the Corporation such amount remaining
on deposit and the Trust Company shall thereupon be relieved
of all responsibility to the Holder of such shares and such
Holder of the shares of DARTS so called for the redemption
shall look only to the Corporation for the payment thereof.
(d) Except in an Auction and except as set forth above
with respect to redemptions, nothing contained in these
Articles Supplementary shall limit any legal right of the
Corporation to purchase or otherwise acquire any shares of
DARTS in privately negotiated transactions or in the over-
the-counter market or otherwise; provided that the Corporation
is current in the payment of dividends on all of the
outstanding series of DARTS.
(e) Shares of DARTS that have been redeemed, purchased or
otherwise acquired by the Corporation are not subject to
reissuance and shall be cancelled.
5. Voting Rights. (a) Holders of DARTS shall have no
voting rights, either general or special except as expressly
required by applicable law, the Charter and as specified in this
paragraph 5.
(b) Whenever dividends on any series of DARTS shall be
unpaid as a whole or in part for six consecutive dividend quarters,
then at the annual meeting of stockholders next following omission
of the last successive quarterly dividend or any part thereof in
such period and at any annual meeting thereafter and at any meeting
called for the election of Directors, until all dividends
accumulated on the series of DARTS have been paid or declared and
a sum sufficient for payment has been set aside, the Holders of the
series of DARTS either alone or together with the Holders of one
or more other series of DARTS or the holders of one or more other
cumulative series of the Preferred Stock at the time outstanding
which are granted such voting rights, voting as a class, shall be
entitled, to the exclusion of the holders of one or more other
series or classes of stock having general voting rights, to vote
for and elect two members of the Board of Directors of the
Corporation, and the holders of Common Stock together with the
holders of any series or class or classes of stock of the
Corporation having general voting rights and not then entitled to
elect two members of the Board of Directors pursuant to this
paragraph 5 to the exclusion of the holders of all series then so
entitled, shall be entitled to vote and elect the balance of the
Board of Directors. In such case the Board of Directors of the
Corporation shall, as of the date of the annual meeting of
stockholders aforesaid, be increased by two Directors. The rights
of Holders of DARTS of any series to participate (either alone or
together with the holders of one or more other cumulative series
of Preferred Stock at the time outstanding which are granted such
voting rights) in the exclusive election of two members of the
Board of Directors of the Corporation pursuant to this paragraph
5 shall continue in effect until cumulative dividends have been
paid in full or declared and set apart for payment on the series
of DARTS. At elections for such Directors, each Holder of DARTS
shall be entitled to 2,000 votes for each share held. The Holders
of DARTS shall have no right to cumulate such shares in voting for
the election of Directors. At the annual meeting of stockholders
next following the termination (by reason of the payment of all
accumulated and defaulted dividends on such stock or provision for
the payment thereof by declaration and setting apart thereof) of
the exclusive voting power pursuant to this paragraph 5 of the
Holders of DARTS and the holders of all other cumulative series
which shall have been entitled to vote for and elect such two
members of the Board of Directors of the Corporation, the terms of
office of all persons who may have been elected Directors of the
Corporation by vote of such holders shall terminate and the two
vacancies created pursuant to this paragraph 5 to accommodate the
exclusive right of election conferred hereunder shall thereupon be
eliminated, and the Board of Directors shall be decreased by two
Directors.
(c) So long as any shares of DARTS remain outstanding, the
affirmative vote of the Holders of at least two-thirds of the votes
of any series of DARTS outstanding at the time given in person or
by proxy, 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:
(i) The authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class
or series of stock (including any class or series of
Preferred Stock) ranking prior (as that term is defined
below in this paragraph 5) to such series of DARTS, or
(ii) The authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class
or series of stock (including any class or series of
Preferred Stock) which ranks on a parity with such series
of DARTS unless the Articles Supplementary or other
provisions of the charter creating or authorizing such
class or series shall provide that if in any case the
stated dividends or amounts payable on liquidation are
not paid in full on such series of DARTS and all
outstanding shares of stock ranking on a parity (as that
term is defined below in this paragraph 5) with such
series of DARTS (such series of DARTS and all such other
stock being herein called "Parity Stock"), the shares of
all Parity Stock shall share ratably in the payment of
dividends, including accumulations (if any) in accordance
with the sums which would be payable on all Parity Stock
if all dividends in respect of all shares of Parity Stock
were paid in full, and on any distribution of assets upon
liquidation ratably in accordance with the sums which
would be payable in respect of all shares of Parity Stock
if all sums payable were discharged in full, or
(iii) The amendment, alteration or repeal, whether
by merger, consolidation or otherwise, of any of the
provisions of the charter of the Corporation including
these Articles Supplementary which would materially and
adversely affect any right, preference, privilege or
voting power of such series of DARTS or of the Holders
thereof; provided, however, that any increase in the
amount of authorized Preferred Stock or Cumulative
Preferred Stock, Floating Rate Series A or the Floating
Rate Series B Stock or DARTS or the creation and issuance
of other series of Preferred Stock including DARTS, in
each case ranking on a parity with or junior to such
series of DARTS with respect to the payment of dividends
and the distribution of assets upon liquidation, shall
not be deemed to affect materially and adversely such
rights, preferences, privileges or voting powers.
The foregoing voting provisions shall not apply as to any
series of DARTS if, at or prior to the time when the act with
respect to which such vote would otherwise be required shall be
effected, all outstanding shares of such series of DARTS shall have
been redeemed or sufficient funds shall have been deposited in
trust in accordance with paragraph 4 to effect such redemption.
Any class or classes of stock of the Corporation shall be
deemed to rank
(A) prior to any series of DARTS as to dividends
or as to distribution of assets if the 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
such series of DARTS; and
(B) on a parity with any series of DARTS as to
dividends or as to distribution of assets, whether or not the
dividend rates, dividend payment dates, or redemption or
liquidation prices per share thereof be different from those
of any series of DARTS, if the holders of such class of stock
and any series of DARTS 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 dividend rates or liquidation prices,
without preference or priority one over the other.
In connection with the exercise of the voting rights
contained in this paragraph 5(c), each Holder of DARTS shall have
2,000 votes for each share of stock held.
(d) So long as any shares of DARTS remain outstanding,
the Corporation shall not, without the affirmative vote of the
holders of at least a majority of the votes of all Parity Stock
entitled to vote outstanding at the time, given in person or by
proxy, by resolution adopted at a meeting at which the Holders of
shares of DARTS (alone or together with the holders of one or more
other series of Parity Stock at the time outstanding and entitled
to vote) vote separately as a class, (a) directly or indirectly,
sell, transfer or otherwise dispose of, or permit Republic National
Bank of New York (the "Bank") or any other subsidiary of the
Corporation, to issue, sell, transfer or otherwise dispose of any
shares of voting stock of the Bank, or securities convertible into
or options, warrants or rights to acquire voting stock of the Bank,
unless after giving effect to any such transaction the Bank remains
a Controlled Subsidiary (as hereinafter defined) of the Corporation
or of a Qualified Successor Company (hereinafter defined); (b)
merge or consolidate with, or convey substantially all of its
assets to any person or corporation unless the entity surviving
such merger or consolidation or the transferee of such assets is
the Corporation or a Qualified Successor Company; or (c) permit
the Bank to merge, consolidate with, or convey substantially all
of its assets to any person or corporation unless the entity
surviving such merger or consolidation or the transferee of such
assets is a Controlled Subsidiary of the Corporation or of a
Qualified Successor Company, except in any of the foregoing cases
as required to comply with applicable law, including, without
limitation, any court or regulatory order. The term "Qualified
Successor Company" shall mean a corporation (or other similar
organization or entity whether organized under or pursuant to the
laws of the United States or any state thereof or of another
jurisdiction) which (i) is or is required to be a registered bank
holding company under the United States Bank Holding Company Act
of 1956, as amended, or any successor legislation, (ii) issues
to the holders of DARTS in exchange for the DARTS shares of
preferred stock having at least the same relative rights and
preferences as the DARTS (the "Exchanged Stock"), (iii)
immediately after such transaction has not outstanding or
authorized any class of stock or equity securities ranking prior
to the Exchanged Stock with respect to the payment of dividends or
the distribution of assets upon liquidation, and (iv) holds, as
a Controlled Subsidiary or Subsidiaries, either the Bank or one or
more other banking corporations which, collectively, immediately
after such transaction hold substantially all of the assets and
liabilities which the Bank held immediately prior to such
transaction (which may be in addition to other assets and
liabilities acquired in such transaction). "Controlled Subsidiary"
shall mean any corporation at least 80% of the outstanding shares
of voting stock of which shall at the time be owned directly or
indirectly by the Corporation or a Qualified Successor Company.
In connection with the exercise of the voting rights contained in
this paragraph 5(d), holders of all series of Parity Stock which
are granted such voting rights shall vote as a class, and each
Holder of DARTS shall have 2,000 votes for each share of stock
held, and each other series shall have such number of votes, if
any, for each share of stock held as may be granted them.
The foregoing voting provisions shall not apply if, at
or prior to the time when the act with respect to which such vote
would otherwise be required shall be effected, all outstanding
shares of the DARTS shall have been redeemed or sufficient funds
shall have been deposited in trust in accordance with paragraph 4
to effect such redemption.
6. Auction Procedures. (a) Certain definitions.
Capitalized terms not defined in this paragraph 6 shall have the
respective meanings specified in paragraphs 1 through 5 above. As
used in this paragraph 6, the following terms shall have the
following meanings, unless the context otherwise requires:
(i) "Affiliate" shall mean any Person known to the Trust
Company to be controlled by, in control of, or under common
control with the Corporation.
(ii) "Agent Member" shall mean the member of the
Securities Depository that will act on behalf of a Bidder and
is identified as such in such Bidder's Purchaser's Letter.
(iii) "Auction" shall mean the periodic operation of the
procedures set forth in this paragraph 6.
(iv) "Auction Date" shall mean the Business Day next
preceding a Dividend Payment Date.
(v) "Available DARTS" shall have the meaning specified
in paragraph 6(d)(i) below.
(vi) "Bid" shall have the meaning specified in paragraph
6(b)(i) below.
(vii) "Bidder" shall have the meaning specified in
paragraph 6(b)(i) below.
(viii) "Broker-Dealer" shall mean any broker-dealer, or
other entity permitted by law to perform the functions
required of a Broker-Dealer in this paragraph 6, that has been
selected by the Corporation and has entered into a Broker-
Dealer Agreement with the Trust Company that remains
effective.
(ix) "Broker-Dealer Agreement" shall mean an agreement
between the Trust Company and a Broker-Dealer pursuant to
which such Broker-Dealer agrees to follow the procedures
specified in this paragraph 6.
(x) "DARTS" shall mean Series A and Series B DARTS being
auctioned pursuant to this paragraph 6.
(xi) "Existing Holder", when used with respect to shares
of DARTS, shall mean a Person who has signed a Purchaser's
Letter and is listed as the beneficial owner of such shares
of DARTS in the records of the Trust Company.
(xii) "Hold Order" shall have the meaning specified in
paragraph 6(b)(i) below.
(xiii) "Maximum Applicable Rate", on any Auction Date,
shall mean the percentage of the 60-day "AA" Composite
Commercial Paper Rate on such Auction Date, determined as set
forth below based on the prevailing rating of shares of DARTS
in effect at the close of business on such Auction Date:
Prevailing Rating Percentage
AA/aa or Above............................ 110%
A/a....................................... 120%
BBB/baa................................... 130%
Below BBB/baa............................. 150%
For purposes of this definition, the "prevailing rating"
of shares of DARTS shall be (i) AA/aa or Above, if shares
of DARTS have a rating of AA- or better by Standard & Poor's
Corporation or its successor ("S&P") or aa3 or better by
Moody's Investors Service, Inc., or its successor ("Moody's"),
or the equivalent of either or both of such ratings by such
agencies or a substitute rating agency or substitute rating
agencies selected as provided below, (ii) if not AA/aa or
Above, then A/a if the shares of DARTS have a rating of A- or
better and lower than AA- by S&P or a3 or better and lower
then aa3 by Moody's or the equivalent of either or both of
such ratings by such agencies or a substitute rating agency
or substitute rating agencies selected as provided below,
(iii) if not AA/aa or Above or A/a, then BBB/baa, if the
shares of DARTS have a rating of BBB- or better and lower than
A-by S&P or baa3 or better and lower than a3 by Moody's or the
equivalent of either or both of such ratings by such agencies
or a substitute rating agency or substitute rating agencies
selected as provided below, and (iv) if not AA/aa or Above,
A/a or BBB/baa, then Below BBB/baa. The Company shall take
all reasonable action necessary to enable S&P and Moody's to
provide a rating for DARTS. If either S&P or Moody's shall
not make such a rating available, or neither S&P nor Moody's
shall make such a rating available, Salomon Brothers Inc,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Shearson
Lehman Brothers Incorporated and Bear, Stearns & Co. Inc.
and/or their successors shall select a nationally recognized
securities rating agency or two nationally recognized
securities rating agencies to act as substitute rating agency
or substitute rating agencies, as the case may be.
(xiv) "Order" shall have the meaning specified in
paragraph 6(b)(i) below.
(xv) "Outstanding" shall mean, as of any date, shares
of DARTS theretofore issued by the Corporation except, without
duplication, (A) any shares of DARTS theretofore cancelled
or delivered to the Trust Company for cancellation, or
redeemed by the Corporation or as to which a notice of
redemption shall have been given by the Corporation, (B) any
shares of DARTS as to which the Corporation or any Affiliate
thereof shall be an Existing Holder and (C) any shares of
DARTS represented by any certificate in lieu of whic
certificate has been executed and delivered by the
Corporation.
(xvi) "Person" shall mean and include an individual,
a partnership, a corporation, a trust, an unincorporated
association, a joint venture or other entity or a government
or any agency or political subdivision thereof.
(xvii) "Potential Holder" shall mean any Person,
including any Existing Holder, (A) who shall have executed
a Purchaser's Letter and (B) who may be interested in
acquiring shares of DARTS (or, in the case of an Existing
Holder, additional shares of DARTS).
(xviii) "Purchaser's Letter" shall mean a letter
addressed to the Corporation, the Trust Company and a Broker-
Dealer in which a Person agrees, among other things, to offer
to purchase, purchase, offer to sell and/or sell shares of
DARTS as set forth in this paragraph 6.
(xix) "Securities Depository" shall mean The Depository
Trust Company and its successors and assigns or any other
securities depository selected by the Corporation which agrees
to follow the procedures required to be followed by such
securities depository in connection with shares of DARTS.
(xx) "Sell Order" shall have the meaning specified in
paragraph 6(b)(i) below.
(xxi) "Submission Deadline" shall mean 12:30 P.M., New
York City time, on any Auction Date or such other time on any
Auction Date by which Broker-Dealers are required to submit
Orders to the Trust Company as specified by the Trust Company
from time to time.
(xxii) "Submitted Bid" shall have the meaning specified
in paragraph 6(d)(i) below.
(xxiii) "Submitted Hold Order" shall have the meaning
specified in paragraph 6(d)(i) below.
(xxiv) "Submitted Order" shall have the meaning specified
in paragraph 6(d)(i) below.
(xxv) "Submitted Sell Order" shall have the meaning
specified in paragraph 6(d)(i) below.
(xxvi) "Sufficient Clearing Bids" shall have the
meaning specified in paragraph 6(d)(i) below.
(xxvii) "Winning Bid Rate" shall have the meaning
specified in paragraph 6(d)(i) below.
(b) Orders by Existing Holders and Potential Holders.
(i) On or prior to each Auction Date:
(A) each Existing Holder may submit to a Broker-Dealer
information as to:
(1) the number of Outstanding shares, if any, of
DARTS held by such Existing Holder which such Existing
Holder desires to continue to hold without regard to the
Applicable Rate for the next succeeding Dividend Period;
(2) the number of Outstanding shares, if any, of
DARTS held by such Existing Holder which such Existing
Holder desires to continue to hold, provided that the
Applicable Rate for the next succeeding Dividend Period
shall not be less than the rate per annum specified by
such Existing Holder; and/or
(3) the number of Outstanding shares, if any, of
DARTS held by such Existing Holder which such Existing
Holder offers to sell without regard to the Applicable
Rate for the next succeeding Dividend Period; and
(B) each Broker-Dealer, using a list of Potential
Holders that shall be maintained in good faith for the purpose
of conducting a competitive Auction, shall contact Potential
Holders, including Persons that are not Existing Holders, on
such list to determine the number of Outstanding shares, if
any, of DARTS which each such Potential Holder offers to
purchase, provided that the Applicable Rate for the next
succeeding Dividend Period shall not be less than the rate
per annum specified by such Potential Holder.
For the purposes hereof, the communication to a Broker-
Dealer of information referred to in clause (A) or (B) of this
paragraph 6(b)(i) is hereinafter referred to as an "Order" and each
Existing Holder and each Potential Holder placing an Order is
hereinafter referred to as a "Bidder"; an Order containing the
information referred to in clause (A)(1) of this paragraph 6(b)(i)
is hereinafter referred to as a "Hold Order"; an Order containing
the information referred to in clause (A)(2) or (B) of this
paragraph 6(b)(i) is hereinafter referred to as a "Bid"; and an
Order containing the information referred to in clause (A)(3) of
this paragraph 6(b)(i) is hereinafter referred to as a "Sell
Order."
(ii) (A) A Bid by an Existing Holder shall constitute
an irrevocable offer to sell:
(l) the number of Outstanding shares of DARTS
specified in such Bid if the Applicable Rate determined
on such Auction Date shall be less than the rate
specified in such Bid; or
(2) such number or a lesser number of Outstanding
shares of DARTS to be determined as set forth in
paragraph 6(e)(i)(D) if the Applicable Rate determined
on such Auction Date shall be equal to the rate
specified therein; or
(3) a lesser number of Outstanding shares of DARTS
to be determined as set forth in paragraph 6(e)(ii)(C)
if such specified rate shall be higher than the Maximum
Applicable Rate and Sufficient Clearing Bids do not exist.
(B) A Sell Order by an Existing Holder shall constitute
an irrevocable offer to sell:
(1) the number of Outstanding shares of DARTS
specified in such Sell Order; or
(2) such number or a lesser number of Outstanding
shares of DARTS to be determined as set forth in paragraph
6(e)(ii)(C) if Sufficient Clearing Bids do not exist.
(C) A Bid by a Potential Holder shall constitute an
irrevocable offer to purchase:
(1) the number of Outstanding shares of DARTS
specified in such Bid if the Applicable Rate determined
on such Auction Date shall be higher than the rate
specified in such Bid; or
(2) such number or a lesser number of Outstanding
shares of DARTS to be determined as set forth in paragraph
6(e)(i)(E) if the Applicable Rate determined on such
Auction Date shall be equal to the rate specified therein.
(c) Submission of Orders by Broker-Dealers to Trust Company.
(i) Each Broker-Dealer shall submit in writing to the Trust
Company prior to the Submission Deadline on each Auction Date all
Orders obtained by such Broker-Dealer and specifying with respect
to each Order:
(A) the name of the Bidder placing such Order;
(B) the aggregate number of Outstanding shares of DARTS
that are the subject of such Order;
(C) to the extent that such Bidder is an Existing Holder:
(1) the number of Outstanding shares, if any, of
DARTS subject to any Hold Order placed by such Existing
Holder;
(2) the number of Outstanding shares, if any, of
DARTS subject to any Bid placed by such Existing Holder
and the rate specified in such Bid; and
(3) the number of Outstanding shares, if any, of
DARTS subject to any Sell Order placed by such Existing
Holder.
(D) to the extent such Bidder is a Potential Holder, the
rate specified in such Potential Holder's Bid.
(ii) If any rate specified in any Bid contains more than
three figures to the right of the decimal point, the Trust Company
shall round such rate up to the next highest one-thousandth (.001)
of 1%.
(iii) If an Order or Orders covering all of the Outstanding
shares of DARTS held by an Existing Holder is not submitted to the
Trust Company prior to the Submission Deadline, the Trust Company
shall deem a Hold Order to have been submitted on behalf of such
Existing Holder covering the number of Outstanding shares of DARTS
held by such Existing Holder and not subject to Orders submitted
to the Trust Company.
(iv) If one or more Orders covering in the aggregate more
than the number of Outstanding shares of DARTS held by an Ex
Holder are submitted to the Trust Company, such Orders shall be
considered valid as follows and in the following order of priority:
(A) any Hold Order submitted on behalf of such Existing
Holder shall be considered valid up to and including the
number of Outstanding shares of DARTS held by such Existing
Holder; provided that if more than one Hold Order is submitted
on behalf of such Existing Holder and the number of shares of
DARTS subject to such Hold Orders exceeds the number of
Outstanding shares of DARTS held by such Existing Holder, the
number of shares of DARTS subject to such Hold Orders shall
be reduced pro rata so that such Hold Orders shall cover the
number of Outstanding shares of DARTS held by such Existing
Holder;
(B) (1) any Bid shall be considered valid up to and
including the excess of the number of Outstanding shares
of DARTS held by such Existing Holder over the number of
shares of DARTS subject to Hold Orders referred to in
paragraph 6(c)(iv)(A);
(2) subject to clause (1) above, if more than one
Bid with the same rate is submitted on behalf of such
Existing Holder and the number of Outstanding shares of
DARTS subject to such Bids is greater than such excess,
the number of Outstanding shares of DARTS subject to
such Bids shall be reduced pro rata so that such Bids
shall cover the number of Outstanding shares of DARTS
equal to such excess; and
(3) subject to clause (1) above, if more than one
Bid with different rates is submitted on behalf of such
Existing Holder, such Bids shall be considered valid in
the ascending order of their respective rates and in any
such event the number, if any, of such Outstanding
shares subject to Bids not valid under this clause (B)
shall be treated as the subject of a Bid by a Potential
Holder; and
(C) any Sell Order shall be considered valid up to and
including the excess of the number of Outstanding shares of
DARTS held by such Existing Holder over the number of
Outstanding shares of DARTS subject to Hold Orders referred
to in paragraph 6(c)(iv)(A) and Bids referred to in paragraph
6 (c)(iv)(B).
(v) If more than one Bid is submitted on behalf of any
Potential Holder, each Bid submitted shall be a separate Bid with
the rate and shares of DARTS therein specified
(d) Determination of Sufficient Clearing Bids, Winning
Bid Rate and Applicable Rate. (i) Not earlier than the Submission
Deadline on each Auction Date, the Trust Company shall assemble all
Orders submitted to it by the Broker-Dealers (each such Order as
submitted or deemed submitted by a Broker-Dealer being hereinafter
referred to individually as a "Submitted Hold Order", a "Submitted
Bid" or a "Submitted Sell Order", as the case may be, or as a
"Submitted Order") and shall determine:
(A) the excess of the total number of Outstanding shares
of DARTS over the number of Outstanding shares of DARTS that
are the subject of Submitted Hold Orders (such excess being
hereinafter referred to as the "Available DARTS");
(B) from the Submitted Orders whether:
(1) the number of Outstanding shares of DARTS that
are the subject of Submitted Bids by Potential Holders
specifying one or more rates equal to or lower than the
Maximum Applicable Rate exceeds or is equal to the sum
of:
(2) (a) the number of Outstanding shares of DARTS
that are the subject of Submitted Bids by Existing
Holders specifying one or more rates higher than the
Maximum Applicable Rate, and
(b) the number of Outstanding shares of DARTS
that are subject to Submitted Sell Orders
(if such excess or such equality exists (other than
because the number of Outstanding shares of DARTS in
clauses (a) and (b) above are each zero because all the
Outstanding shares of DARTS are the subject of Submitted
Hold Orders), such Submitted Bids in clause (1) above
being hereinafter referred to collectively as
"Sufficient Clearing Bids"); and
(C) if Sufficient Clearing Bids exist, the lowest rate
specified in the Submitted Bids (the "Winning Bid Rate") which
if:
(1) each Submitted Bid from Existing Holders
specifying the Winning Bid Rate and all other Submitted
Bids from Existing Holders specifying lower rates were
rejected, thus entitling such Existing Holders to
continue to hold the shares of DARTS that are the subject
of such Submitted Bids, and
(2) each Submitted Bid from Potential Holders
specifying the Winning Bid Rate and all other Submitted
Bids from Potential Holders specifying lower rates were
accepted, thus entitling the Potential Holders to
purchase the shares of DARTS that are the subject of such
Submitted Bids,
would result in the number of shares subject to all Submitted
Bids specifying the Winning Bid Rate or a lower rate being at
least equal to the Available DARTS.
(ii) Promptly after the Trust company has made the
determinations pursuant to paragraph 6(d)(i), the Trust Company
shall advise the Corporation of the Maximum Applicable Rate and the
Minimum Applicable Rate and, based on such determinations, the
Applicable Rate for the next succeeding Dividend Period as follows:
(A) if Sufficient Clearing Bids exist, that the
Applicable Rate for the next succeeding Dividend Period shall
be equal to the Winning Bid Rate so determined;
(B) if Sufficient Clearing Bids do not exist (other
than because all of the Outstanding shares of DARTS are the
subject of Submitted Hold Orders), that the Applicable Rate
for the next succeeding Dividend Period shall be equal to the
Maximum Applicable Rate; or
(C) if all of the Outstanding shares of DARTS are the
subject of Submitted Hold Orders, that the Applicable Rate for
the next succeeding Dividend Period shall be 59% of the
60-day "AA" Composite Commercial Paper Rate on the date
of the Auction.
(e) Acceptance and Rejection of Submitted Bids and
Submitted Sell Orders and Allocation of Shares. Based on the
determinations made pursuant to paragraph 6(d)(i), the Submitted
Bids and Submitted Sell Orders shall be accepted or rejected and
the Trust Company shall take such other action as set forth below:
(i) If Sufficient Clearing Bids have been made, subject
to the provisions of paragraph 6(e)(ii) and 6(e)(iv),
Submitted Bids and Submitted Sell Orders shall be accepted or
rejected in the following order of priority and all other
Submitted Bids shall be rejected:
(A) the Submitted Sell Orders of Existing Holders shall
be accepted and the Submitted Bid of each of the Existing
Holders specifying any rate that is higher than the Winning
Bid Rate shall be accepted, thus requiring each such Existing
Holder to sell the Outstanding shares of DARTS that are the
subject of such Submitted Bid;
(B) the Submitted Bid of each of the Existing Holders
specifying any rate that is lower than the Winning Bid Rate
shall be rejected, thus entitling each such Existing Holder
to continue to hold the Outstanding shares of DARTS that are
the subject of such Submitted Bid;
(C) the Submitted Bid of each of the Potential Holders
specifying any rate that is lower than the Winning Bid Rate
shall be accepted;
(D) the Submitted Bid of each of the Existing Holders
specifying a rate that is equal to the Winning Bid Rate shall
be rejected, thus entitling each such Existing Holder to
continue to hold the Outstanding shares of DARTS that are the
subject of such Submitted Bid, unless the number of
Outstanding shares of DARTS subject to all such Submitted Bids
shall be greater than the number of Outstanding shares of
DARTS ("remaining shares") equal to the excess of the
Available DARTS over the number of Outstanding shares of DARTS
subject to Submitted Bids described in paragraphs 6(e)(i)(B)
and 6(e)(i)(C), in which event the Submitted Bids of each such
Existing Holder shall be accepted, and each such Existing
Holder shall be required to sell Outstanding shares of DARTS,
but only in an amount equal to the difference between (1)
the number of Outstanding shares of DARTS then held by such
Existing Holder subject to such Submitted Bid and (2) the
number of shares of DARTS obtained by multiplying (x) the
number of remaining shares by (y) a fraction the numerator of
which shall be the number of Outstanding shares of DARTS held
by such Existing Holder subject to such Submitted Bid and the
denominator of which shall be the sum of the number of
Outstanding shares of DARTS subject to such submitted Bids
made by all such Existing Holders that specified a rate equal
to the Winning Bid Rate; and
(E) the Submitted Bid of each of the Potential Holders
specifying a rate that is equal to the Winning Bid Rate shall
be accepted but only in an amount equal to the number of
Outstanding shares of DARTS obtained by multiplying (x) the
difference between the Available DARTS and the number of
Outstanding shares of DARTS subject to Submitted Bids
described in paragraphs 6(e)(i)(B), 6(e)(i)(C) and 6(e)(i)(D)
by (y) a fraction the numerator of which shall be the number
of Outstanding shares of DARTS subject to such Submitted Bid
and the denominator of which shall be the sum of the number
of Outstanding shares of DARTS subject to such Submitted Bids
made by all such Potential Holders that specified rates equal
to the Winning Bid Rate.
(ii) If Sufficient Clearing Bids have not been made (other
than because all of the Outstanding shares of DARTS are subject to
Submitted Hold Orders), subject to the provisions of paragraphs
6(e)(iii) and 6(e)(iv), Submitted Orders shall be accepted or
rejected in the following order of priority and all other Submitted
Bids shall be rejected:
(A) the Submitted bid of each Existing Holder specifying
any rate that is equal to or lower than the Maximum Applicable
Rate shall be rejected, thus entitling such Existing Holder
to continue to hold the Outstanding shares of DARTS that are
the subject of such Submitted Bid;
(B) the Submitted Bid of each Potential Holder specifying
any rate that is equal to or lower than the Maximum Applicable
Rate shall be accepted, thus requiring such Potential Holder
to purchase the Outstanding shares of DARTS that are the
subject of such Submitted Bid; and
(C) the Submitted Bids of each Existing Holder specifying
any rate that is higher than the Maximum Applicable Rate shall
be accepted and the Submitted Sell Orders of each Existing
Holder shall be accepted, in both cases only in an amount
equal to the difference between (1) the number of
Outstanding shares of DARTS then held by such Existing Holder
subject to such Submitted Bid or Submitted Sell Order and (2)
the number of shares of DARTS obtained by multiplying (x) the
difference between the Available DARTS and the aggregate
number of Outstanding shares of DARTS subject to Submitted
Bids described in paragraphs 6(e)(ii)(A) and 6(e)(ii)(B) by
(y) a fraction the numerator of which shall be the number of
Outstanding shares of DARTS held by such Existing holder
subject to such Submitted Bid or Submitted Sell Order and the
denominator of which shall be the number of Outstanding shares
of DARTS subject to all such Submitted Bids and Submitted Sell
Orders.
(iii) If, as a result of the procedures described in
paragraph 6(e)(i), any Potential Holder would be entitled or
required to purchase less than a whole share of DARTS on any
Auction Date, the Trust Company shall, in such manner as, in its
sole discretion, it shall determine, allocate shares of DARTS for
purchase among Potential Holders so that only whole shares of DARTS
are purchased on such Auction Date by any Potential Holder, even
if such allocation results in one or more of such Potential Holders
not purchasing shares of DARTS on such Auction Date.
(iv) If, as a result of the procedures described in
paragraph 6(e)(i) or 6(e)(ii), any Existing Holder would be
entitled or required to sell, or any Potential Holder would be
entitled or required to purchase, a fraction of a share of DARTS
on any Auction Date, the Trust Company shall, in such manner as,
in its sole discretion, it shall determine, round up or down the
number of shares of DARTS to be purchased or sold by any Existing
Holder or Potential Holder on such Auction Date so that the number
of Outstanding shares purchased or sold by each Existing Holder or
Potential Holder on such Auction Date shall be whole shares of
DARTS.
(v) Based on the results of each Auction, the Trust Company
shall determine the aggregate number of Outstanding shares of DARTS
to be purchased and the aggregate number of Outstanding shares of
DARTS to be sold by Potential Holders and Existing Holders on whose
behalf each Broker-Dealer submitted Bids or Sell Orders, and, with
respect to each Broker-Dealer, to the extent that such aggregate
number of Outstanding shares to be purchased and such aggregate
number of Outstanding shares to be sold differ, determine to which
other Broker-Dealer or Broker-Dealers acting for one or more
purchasers such Broker-Dealer shall deliver, or from which other
Broker-Dealer or Broker-Dealers acting for one or more sellers such
Broker-Dealer shall receive, as the case may be, Outstanding shares
of DARTS.
(f) Miscellaneous. The Board of Directors may interpret
the provisions of this paragraph 6 to resolve any inconsistency or
ambiguity, remedy any formal defect or make any other change or
modification which does not adversely affect the rights of Existing
Holders of DARTS. An Existing Holder (A) may sell, transfer or
otherwise dispose of shares of DARTS only pursuant to a Bid or Sell
Order in accordance with the procedures described in this paragraph
6 or to or through a Broker-Dealer or to a Person that has
delivered a signed copy of a Purchaser's Letter to the Trust
Company, provided that in the case of all transfers other than
pursuant to Auctions such Existing Holder, its Broker-Dealer or its
Agent Member advises the Trust Company of such transfer and (B)
except as otherwise provided by law, shall have the ownership of
the shares of DARTS held by it maintained in book entry form by the
Securities Depository in the account of its Agent Member, which in
turn will maintain records of such Existing Holder's beneficial
ownership. Neither the Corporation nor any Affiliate shall submit
an Order in any Auction. All of the outstanding DARTS shall be
represented by a certificate registered in the name of the nominee
of the Securities Depository.
(g) Headings of Subdivisions. The headings of the various
subdivisions of this paragraph 6 are for convenience of reference
only and shall not affect the interpretation of any of the
provisions hereof.
7. Parity Stock. So long as any shares of DARTS shall
remain outstanding, in case the stated dividends or amounts payable
on liquidation are not paid in full with respect to all outstanding
shares of Parity Stock, all such shares shall share ratably in the
payment of dividends, including accumulations (if any) in
accordance with the sums which would be payable in respect of all
outstanding shares of Parity Stock if all dividends in respect of
all such shares of Parity Stock were paid in full, and on any
distribution of assets upon liquidation, ratably in accordance with
the sums which would be payable in respect of all outstanding
Parity Stock if all sums payable were discharged in full.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
presents to be signed in its name and on its behalf by its Senior
Vice President and its corporate seal to be hereunto affixed and
attested by its Corporate Secretary, and the said officers of the
Corporation further acknowledged said instrument to be the
corporate act of the Corporation and stated under the penalties of
perjury that to the best of their knowledge, information and belief
the matters and facts therein set forth with respect to approval
are true in all material respects, all on March 27, 1986.
REPUBLIC NEW YORK CORPORATION
By /s/ Thomas F. Robards
Attest: Thomas F. Robards
(Senior Vice President)
/s/ William F. Rosenblum, Jr.
William F. Rosenblum, Jr.
(Corporate Secretary)
REPUBLIC NEW YORK CORPORATION
ARTICLES SUPPLEMENTARY
REPUBLIC NEW YORK CORPORATION, a Maryland corporation having its
principal Maryland office in the City of Baltimore, State of
Maryland (hereinafter called the "Corporation"), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article FIFTH of the Charter of the
Corporation, the Board of Directors has duly divided and classified
500 shares of the Preferred Stock of the Corporation into a series
designated Money Market Cumulative PreferredTM Stock and has
provided for the issuance of such series.
SECOND: The terms of the Money Market Cumulative PreferredTM Stock
as set by the Finance Committee of the Board of Directors pursuant
to authority duly delegated by the Board of Directors are as
follows:
PART I
1. Designation and Number of Shares. (a) 500 shares
of Preferred Stock of the Corporation, without par value, shall
constitute a series of Preferred Stock designated as "Preferred
Stock," hereinafter referred to as the "MMP." All shares of the
MMP shall be identical with each other in all respects. The MMP
shall be of a stated value of $100,000 per share (the "stated
value").
(b) All shares of MMP redeemed or purchased by the
Corporation shall be retired and cancelled and shall be restored
to the status of authorized but unissued shares of Preferred Stock,
without designation as to series, and may thereafter be issued, but
not as shares of MMP.
2. Dividends. (a) The Holders (as defined in Section
7 of this Part I) shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation (as defined
in Section 7 of this Part I), out of funds legally available
therefor, cumulative cash dividends at the Applicable Rate (as
defined in subparagraph (c)(i) of this Section 2) per annum,
determined as set forth in subparagraph (c)(i) of this Section 2,
and no more, payable on the respective dates set forth in
subparagraph (b)(i) of this Section 2.
(b) (i) Dividends on shares of MMP, at the Applicable
Rate per annum, shall accrue from the Date of Original Issue (as
defined in Section 7 of this Part I) and shall be payable
commencing on Monday, September 14, 1987, and on each succeeding
seventh Monday thereafter except that
(1) if the Monday that otherwise would be the Dividend
Payment Date is not a Business Day, or the Monday that
otherwise would be the Dividend Payment Date is succeeded by
a Tuesday that is not a Business Day, then the dividend
Payment Date shall be the next succeeding Business Day that
is immediately succeeded by a Business Day, provided that (2)
if the Securities Depositary shall make available to its
participants and members, in funds immediately available in
the City of New York on Dividend Payment Dates, the amount due
as dividends on such Dividend Payment Dates (and the
Securities Depositary shall have so advised the Trust
Company), and if the Monday that otherwise would be the
Dividend Payment Date is not a Business Day, then the Dividend
Payment Date shall be the next succeeding Business Day, and
provided, further, that (3) if the determination of the
otherwise applicable Dividend Payment Date in the manner
hereinabove provided would result in the Dividend Period
commencing on said otherwise applicable Dividend Payment Date
having less than the number of days constituting the minimum
holding period (currently found in Section 246(c) of the
Code) required for taxpayers to be entitled to the dividends
received deduction on preferred stock held by non-affiliated
corporations (currently found in Section 243(a) of the Code),
then the Board of directors or a committee thereof shall make
such adjustment to the next succeeding Dividend Payment Date
as shall be necessary to result in such Dividend Period having
the minimum number of days constituting the minimum holding
period. Although any particular Dividend Payment Date may not
occur on the originally scheduled Monday because of the
exceptions discussed above, the next succeeding Dividend
Payment Date shall be, subject to such exceptions, the seventh
Monday following the originally designated Monday that would
have been the Dividend Payment Date for the prior Dividend
Period. Notwithstanding the foregoing, in the event of a
change in law lengthening the minimum holding period
(currently found in Section 246(c) of the Code) required for
taxpayers to be entitled to the dividends received deduction
on preferred stock held by non-affiliated corporations
(currently found in Section 243(a) of the Code), the Board may
adjust the period of time between Dividend Payment Dates so
as to adjust uniformly the number of days (such number of
days, without giving effect to the exceptions referred to
above, being hereinafter referred to as "Dividend Period
Days") in Dividend Periods commencing after the date of such
change in law to equal or exceed the then current minimum
holding period; provided that the number of Dividend Period
Days shall not exceed by more than nine days the length of
such then current minimum holding period and in no event shall
exceed 98 days and that dividends shall continue to be payable
on Mondays, subject to the exceptions discussed above. Each
dividend payment date determined as provided above is herein
referred to as a "Dividend Payment Date" and the first
Dividend Payment Date is herein referred to as the "Initial
Dividend Payment Date." If the Board of Directors of the
Corporation determines to adjust the number of Dividend Period
Days in the Dividend Periods for the MMP, the Corporation will
mail notice of such change to all holders of shares of MMP so
affected.
(ii) So long as no Payment Default (as defined in
Section 7 of this Part I) shall have occurred, the Corporation
shall pay to the Trust Company not later than 12:00 noon, New York
City time, on the Business Day next preceding each Dividend Payment
Date an aggregate amount of funds available on the next Business
Day in The City of New York, equal to the dividends to be paid to
all Holders on such Dividend Payment Date. All such moneys shall
be held in trust for the payment of such dividends by the Trust
Company for the benefit of the Holders specified in subparagraph
(b)(iii) of this Section 2.
(iii) Each dividend shall be paid to the Holders as
their names appear on the records of the Corporation on the
Business Day next preceding the Dividend Payment Date thereof;
provided, however, that if a Payment Default shall have occurred,
such dividend shall be paid to the Holders as their names appear
on the records of the Corporation on such date, not exceeding 15
days preceding the payment date thereof, as may be fixed by the
Board of Directors of the Corporation. Dividends in arrears for
any past Dividend Period may be declared and paid at any time,
without reference to any regular Dividend Payment Date, to the
Holders as their names appear on the records of the Corporation on
such date, not exceeding 15 days preceding the payment date
thereof, as may be fixed by the Board of Directors of the
Corporation.
(c) (i) The dividend rate on shares of MMP during the
period from and after the Date of Original Issue to and including
the Initial Dividend Payment Date (the "Initial Dividend Period")
shall be 4.625% per annum. Commencing on the Initial Dividend
Payment Date, the dividend rate on shares of MMP for each
subsequent dividend period (herein referred to as a "Subsequent
Dividend Period" and collectively as "Subsequent Dividend Periods";
and the Initial Dividend Period or any Subsequent Dividend Period
being herein referred to as a "Dividend Period" and collectively
as "Dividend Periods") thereafter, which Subsequent Dividend
Periods shall commence on the day that is the last day of the
preceding Dividend Period and shall end on and include the next
succeeding Dividend Payment Date, shall be equal to the rate per
annum that results from implementation of the Auction Procedures
(as defined in Section 7 of this Part I); provided, however, that
if an Auction with respect to any Dividend Period is not held for
any reason, the dividend rate on the shares of MMP for such
Dividend Period will be the Maximum Rate on the Auction Date with
respect to such Dividend Period. Notwithstanding the foregoing,
if a Payment Default shall have occurred prior to the first day of
such Subsequent Dividend Period, the dividend rate for such
Subsequent Dividend Period shall be a rate per annum equal to 175%
of the 60-day "AA" Composite Commercial Paper Rate (as defined in
Section 7 of this Part I) (the rate per annum at which dividends
are payable on shares of MMP for any Dividend Period being herein
referred to as the "Applicable Rate").
(ii) The amount of dividends per share payable on shares
of MMP for any Dividend Period shall be computed by multiplying the
Applicable Rate for such Dividend Period by a fraction the
numerator of which shall be the number of days in such Dividend
Period (calculated by counting the first day thereof but excluding
the last day thereof) and the denominator of which shall be 360 and
applying the rate obtained against $100,000 per share of MMP.
(d) So long as any shares of MMP are outstanding, the
Corporation shall not (a) declare or pay or set apart for payment
any dividend or other distribution (other than dividends or
distributions payable in shares of stock of the Corporation ranking
junior to the MMP as to dividends and upon liquidation) for any
period upon any stock of the Corporation ranking on a parity with,
or any stock of the Corporation ranking junior to, such MMP as to
dividends or upon liquidation or (b) redeem, purchase or otherwise
acquire for any consideration any stock of the Corporation ranking
on a parity with, or any stock of the Corporation ranking junior
to, such MMP as to dividends or upon liquidation, unless, in either
case, all dividends payable to holders of shares of MMP and to
holders of any other stock of the Corporation ranking on a parity
therewith as to dividends for its current dividend period and all
past dividend periods have been paid, are contemporaneously being
paid or have been declared and a sum sufficient for the payment
thereof set aside for such payment, except that notwithstanding
clause (a) above the Corporation may pay dividends on the shares
of MMP and shares of stock of the Corporation ranking on a parity
therewith as to dividends ratably in accordance with the sums which
would be payable on such shares if all dividends, including
accumulations, if any, were declared and paid in full. Holders of
shares of MMP 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 MMP. No interest, or sum of
money in lieu of interest, shall be payable in respect of any
dividend payment or payments on the MMP which may be in arrears.
3. Redemption. (a)(i)(A) The shares of MMP may be
redeemed, at the option of the Corporation, as a whole or from time
to time in part on the second Business Day next preceding any
Dividend Payment Date at a redemption price of:
(i) $103,000 per share of MMP if redeemed during
the twelve months ending on July 23, 1988;
(ii) $102,000 per share of MMP if redeemed during
the twelve months ending on July 23, 1989;
(iii) $101,000 per share of MMP if redeemed during
the twelve months ending on July 23, 1990; and
(iv) $100,000 per share of MMP if redeemed
thereafter
plus, in each case, an amount equal to accrued and unpaid dividends
thereon (whether or not earned or declared) to the date fixed for
redemption.
(B) The shares of MMP are also redeemable at the option
of the Corporation, as a whole but not in part, on any Dividend
Payment Date at $100,000 per share of MMP, plus accrued and unpaid
dividends thereon (whether or not earned or declared) to the date
of redemption if the Applicable Rate for the Dividend Period ending
on such Dividend Payment Date equals or exceeds the 60-day "AA"
Composite Commercial Paper Rate on the date of determination of
such Applicable Rate.
(ii) If fewer than all of the outstanding shares of MMP
are to be redeemed, the number of shares to be redeemed shall be
determined by the Board of Directors of the Corporation, and such
shares shall be redeemed by lot or pro rata from the Holders in
proportion to the number of such shares held by such Holders as may
be determined by the Board of Directors of the Corporation or by
any other method as may be determined by the Board of Directors of
the Corporation in its sole discretion to be equitable.
(b) So long as no Payment Default shall have occurred,
the Corporation shall pay the applicable Redemption-Deposit Amount
(as defined in Section 7 of this Part I) to the Trust Company, in
funds available on the next Business Day in The City of New York
on the Business Day next preceding any redemption date for
disbursement to Holders as appropriate. All such moneys shall be
held in trust by the Trust Company for the benefit of Holders of
shares so to be redeemed.
(c) In the event the Corporation shall redeem shares of
MMP, 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: (i) the redemption date; (ii) the number of shares of
MMP to be redeemed and, if fewer than all the shares held by such
Holder are to be redeemed, the number of such shares to be redeemed
from such Holder; (iii) the redemption price, plus the amount of
accrued and unpaid dividends thereon (whether or not earned or
declared) to the redemption date; (iv) the place or places where
certificates for such shares are to be surrendered for payment of
the redemption price plus such accrued and unpaid dividends; and
(v) that dividends on the shares to be redeemed will cease to
accrue on such redemption date.
(d) 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 of the shares so called for redemption, plus an amount equal
to accrued and unpaid dividends thereon (whether or not earned or
declared) to the date fixed for redemption) dividends on the shares
of MMP 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 plus
an amount equal to such accrued and unpaid dividends) shall cease.
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 of the Corporation shall so
require and the notice shall so state), such shares shall be
redeemed by the Corporation at the redemption price plus an amount
equal to such accrued and unpaid dividends. In case fewer than all
the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(e) Any shares of MMP which shall at any time have been
redeemed shall, after such redemption, have the status of
authorized but unissued shares of Preferred Stock, without
designation as to series until such shares are once more designated
as part of a particular series by the Board of Directors.
(f) Notwithstanding the foregoing provisions of this
Section 3, if any dividends on MMP are in arrears, no shares of MMP
shall be redeemed, and the Corporation shall not purchase or
otherwise acquire any shares of MMP; provided, however, that the
foregoing shall not prevent the purchase or acquisition of shares
of MMP pursuant to a purchase or exchange offer made on the same
terms to all holders of MMP and any other shares of stock of the
Corporation ranking on a parity therewith as to dividends.
4. Conversion or Exchange. The holders of shares of
MMP 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 of
the Corporation.
5. Liquidation Rights. (a) Upon the dissolution,
voluntary or involuntary liquidation or winding up of the
Corporation, the Holders of the shares of MMP shall be entitled to
receive out of the assets of the Corporation, available for
distribution to stockholders before any payment or distribution of
assets shall be made on the Common Stock or on any other class of
stock of the Corporation ranking junior to the MMP upon
liquidation, the amount of $100,000 per share plus a sum equal to
all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(b) For the purposes of this Section 5, a voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation shall include neither the consolidation or merger of
the Corporation with or into any other corporation, nor any sale,
lease or conveyance of all or any part of the property or business
of the Corporation.
(c) After the payment to the holders of the shares of
MMP of the full preferential amounts provided for in this Section
5, the Holders of MMP as such shall have no right or claim to any
of the remaining assets of the Corporation.
(d) In the event the assets of the Corporation available
for distribution to the holders of shares of MMP upon any
dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to paragraph
(a) of this Section 5, no such distribution shall be made on
account of any shares of stock of the Corporation ranking on a
parity with the shares of MMP upon such dissolution, liquidation
or winding up unless proportionate distributive amounts shall be
paid on account of the shares of MMP, ratably, in proportion to the
full distributable amounts for which holders of all such parity
shares are respectively entitled upon such dissolution, liquidation
or winding up.
(e) Upon the dissolution, liquidation or winding up of
the Corporation, the holders of shares of MMP then outstanding
shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders all amounts to which
such holders are entitled pursuant to paragraph (a) of this Section
5 before any payment shall be made to the holders of any class of
capital stock of the Corporation ranking junior upon liquidation
to MMP.
6. Voting Rights. (a) Holders of shares of MMP shall
have no voting rights, either general or special except as
expressly required by applicable law, the Charter and as specified
in this Section 6.
(b) Whenever dividends on any shares of MMP shall be
unpaid as a whole or in part for not less than 540 consecutive
days, then at the annual meeting of stockholders next following
omission of the last successive quarterly dividend or any part
thereof in such period and at any annual meeting thereafter and at
any meeting called for the election of Directors, until all
dividends accumulated on the shares of MMP have been paid or
declared and a sum sufficient for payment has been set aside, the
Holders of the shares of MMP either alone or together with the
holders of one or more other cumulative series of the Preferred
Stock at the time outstanding which are granted such voting rights,
voting as a class, shall be entitled, to the exclusion of the
holders of one or more other series or classes of stock having
general voting rights, to vote for and elect two members of the
Board of Directors of the Corporation, and the holders of Common
Stock together with the holders of any series or class or classes
of stock of the Corporation having general voting rights and not
then entitled to elect two members of the Board of Directors
pursuant to this Section 6 to the exclusion of the holders of all
series then so entitled, shall be entitled to vote and elect the
balance of the Board of Directors. In such case the Board of
Directors of the Corporation shall, as of the date of the annual
meeting of stockholders aforesaid, be increased by two Directors.
The rights of Holders of shares of MMP to participate (either alone
or together with the holders of one or more other cumulative series
of Preferred Stock at the time outstanding which are granted such
voting rights) in the exclusive election of two members of the
Board of Directors of the Corporation pursuant to this Section 6
shall continue in effect until cumulative dividends have been paid
in full or declared and set apart for payment on the shares of MMP.
At elections for such Directors, each Holder of shares of MMP shall
be entitled to 2,000 votes for each share held. The Holders of
shares of MMP shall have no right to cumulate such shares in voting
for the election of Directors. At the annual meeting of
stockholders next following the termination (by reason of the
payment of all accumulated and defaulted dividends on such stock
or provision for the payment thereof by declaration and setting
apart thereof) of the exclusive voting power pursuant to this
Section 6 of the Holders of shares of MMP and the holders of all
other cumulative series which shall have been entitled to vote for
and elect such two members of the Board of Directors of the
Corporation, the terms of office of all persons who may have been
elected Directors of the Corporation by vote of such holders shall
terminate and the two vacancies created pursuant to this Section
6 to accommodate the exclusive right of election conferred
hereunder shall thereupon be eliminated, and the Board of Directors
shall be decreased by two Directors.
(c) So long as any shares of MMP remain outstanding, the
affirmative vote of the Holders of at least two-thirds of the votes
of the shares of MMP outstanding at the time given in person or by
proxy, 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:
(i) The authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class
or series of stock (including any class or series of
Preferred Stock) ranking prior (as that term is defined
below in this Section 6) to such shares of MMP, or
(ii) The authorization, creation or issuance, or
any increase in the authorized or issued amount, of any
class or series of stock (including any class or series
of Preferred Stock) which ranks on a parity with the
shares of MMP unless the Articles Supplementary or other
provisions of the charter creating or authorizing such
class or series shall provide that if in any case the
stated dividends or amounts payable on liquidation are
not paid in full on such series of MMP and all
outstanding shares of stock ranking on a parity (as that
term is defined below in this Section 6) with such shares
of MMP (such shares of MMP and all such other stock being
herein called "Parity Stock"), the shares of all Parity
Stock shall share ratably in the payment of dividends,
including accumulations (if any) in accordance with the
sums which would be payable on all Parity Stock if all
dividends in respect of all shares of Parity Stock were
paid in full, and on any distribution of assets upon
liquidation ratably in accordance with the sums which
would be payable in respect of all shares of Parity Stock
if all sums payable were discharged in full, or
(iii) The amendment, alteration or repeal, whether
by merger, consolidation or otherwise, of any of the
provisions of the charter of the Corporation including
these Articles Supplementary which would materially and
adversely affect any right, preference, privilege or
voting power of such shares of MMP or of the Holders
thereof; provided, however, that any increase or decrease
in the amount of authorized Preferred Stock or Cumulative
Preferred Stock, the Floating Rate Series B Stock, the
Series A and Series B Dutch Auction Rate Transferable
SecuritiesTM Preferred Stock, the Remarketed
Stock or the MMP or the creation and isuance of other
series of Preferred Stock including MMP, in each case
ranking on a parity with or junior to the shares of MMP
with respect to the payment of dividends and the
distribution of assets upon liquidation, shall not be
deemed to affect materially and adversely such rights,
preferences, privileges or voting powers.
Any class or classes of stock of the Corporation shall
be deemed to rank
(i) prior to the shares of MMP as to dividends or
as to distribution of assets if the 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 shares of MMP; and
(ii) on a parity with the shares of MMP as to
dividends or as to distribution of assets, whether or not the
dividend rates, dividend payment dates, or redemption or
liquidation prices per share thereof be different from the
shares of MMP, if the holders of such class of stock and the
shares of MMP 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 dividend rates or liquidation prices, without
preference or priority one over the other.
In connection with the exercise of the voting rights
contained in this Section 6(c), each Holder of shares of MMP shall
have 2,000 votes for each share of stock held.
(d) So long as any shares of MMP remain outstanding, the
Corporation shall not, without the affirmative vote of the holders
of at least a majority of the votes of all Parity Stock entitled
to vote outstanding at the time, given in person or by proxy, by
resolution adopted at a meeting at which the Holders of shares of
MMP (alone or together with the holders of one or more other series
of Parity Stock at the time outstanding and entitled to vote) vote
separately as a class, (a) directly or indirectly, sell, transfer
or otherwise dispose of, or permit Republic National Bank of New
York (the "Bank") or any other subsidiary of the Corporation, to
issue, sell, transfer or otherwise dispose of any shares of voting
stock of the Bank, or securities convertible into or options,
warrants or rights to acquire voting stock of the Bank, unless
after giving effect to any such transaction the Bank remains a
Controlled Subsidiary (as hereinafter defined) of the Corporation
or of a Qualified Successor Company (hereinafter defined); (b)
merge or consolidate with, or convey substantially all of its
assets to any person or corporation unless the entity surviving
such merger or consolidation or the transferee of such assets is
the Corporation or a Qualified Successor Company; or (c) permit
the Bank to merge, consolidate with, or convey substantially all
of its assets to any person or corporation unless the entity
surviving such merger or consolidation or the transferee of such
assets is a Controlled Subsidiary of the Corporation or of a
Qualified Successor Company, except in any of the foregoing cases
as required to comply with applicable law, including, without
limitation, any court or regulatory order. The term "Qualified
Successor Company" shall mean a corporation (or other similar
organization or entity whether organized under or pursuant to the
laws of the United States or any state thereof or of another
jurisdiction) which (i) is or is required to be a registered bank
holding company under the United States Bank Holding Company Act
of 1956, as amended, or any successor legislation, (ii) issues
to the holders of MMP in exchange for the MMP shares of preferred
stock having at least the same relative rights and preferences as
the MMP (the "Exchanged Stock"), (iii) immediately after such
transaction has not outstanding or authorized any class of stock
or equity securities ranking prior to the Exchanged Stock with
respect to the payment of dividends or the distribution of assets
upon liquidation, and (iv) holds, as a Controlled Subsidiary or
Subsidiaries, either the Bank or one or more other banking
corporations which, collectively, immediately after such
transaction hold substantially all of the assets and liabilities
which the Bank held immediately prior to such transaction (which
may be in addition to other assets and liabilities acquired in such
transaction). "Controlled Subsidiary" shall mean any corporation
at least 80% of the outstanding shares of voting stock of which
shall at the time be owned directly or indirectly by the
Corporation or a Qualified Successor Company. In connection with
the exercise of the voting rights contained in this Section 6(d),
holders of all series of Parity Stock which are granted such voting
rights shall vote as a class, and each Holder of MMP shall have
2,000 votes for each share of stock held, and each other series
shall have such number of votes, if any, for each share of stock
held as may be granted them.
The foregoing voting provisions shall not apply if, at
or prior to the time when the act with respect to which such vote
would otherwise be required shall be effected, all outstanding
shares of the MMP shall have been redeemed or sufficient funds
shall have been deposited in trust in accordance with Section 3 to
effect such redemption.
7. Definitions. As used in Parts I and II hereof, the
following terms shall have the following meanings (with terms
defined in the singular having comparable meanings when used in the
plural and vice versa), unless the context otherwise requires:
(a) "Applicable Rate" shall have the meaning specified
in subparagraph (c)(i) of Section 2 of this Part I.
(b) "Auction" shall mean each periodic implementation
of the Auction Procedures.
(c) "Auction Procedures" shall mean the procedures for
conducting Auctions set forth in Part II hereof.
(d) Board of Directors of the Corporation" shall mean
the Board of Directors of the Corporation or any duly
authorized committee thereof except with respect to the
declaration of dividends on the shares of MMP in which case
the "Board of Directors" shall mean the Board of Directors
only.
(e) "Business Day" shall mean a day on which the New
York Stock Exchange, Inc. is open for trading and which is
neither a Saturday, Sunday nor any other day on which banks
or trust companies in the City of New York, New York are
authorized by law to close.
(f) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(g) "Commercial Paper Dealers" shall mean Goldman Sachs
& Co., Shearson Lehman Commercial Paper Incorporated, Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Salomon
Brothers Inc, or, in lieu of any thereof, their respective
affiliates or successors provided that any such entity is a
commercial paper dealer.
(h) "Date of Original Issue" shall mean the date on
which the Corporation originally issues shares of MMP.
(i) "Divided Payment Date" shall have the meaning
specified in subparagraph (b)(i) of Section 2 of this Part I.
(j) "Dividend Period" and "Dividend Periods" shall have
the respective meanings specified in subparagraph (c)(i) of
Section 2 of this Part I.
(k) "Dividend Period Days" shall have the meaning
specified in subparagraph (b)(i) of Section 2 of this Part I.
(l) "Holder" shall mean the registered holder of shares
of MMP as the same appears on the stock books of the
Corporation.
(m) "Initial Dividend Payment Date" shall have the
meaning specified in subparagraph (b)(i) of Section 2 of this
Part I.
(n) "Initial Dividend Period" shall have the meaning
specified in subparagraph (c)(i) of Section 2 of this Part I.
(o) "Moody's" shall mean Moody's Investors Service,
Inc., a Delaware corporation and its successors.
(p) "Payment Default" shall mean the first failure by
the Corporation to pay to the Trust Company, not later than
12:00 noon, New York City time, (A) on the Business Day next
preceding any Dividend Payment Date, in funds available on
such Dividend Payment Date in the City of New York, New York,
the full amount of any dividend (whether or not earned or
declared) to be paid on such Dividend Payment Date on any
share of MMP or (B) on the Business Day next preceding any
redemption date in funds available on such redemption date in
the City of New York, New York, the redemption price to be
paid on such redemption date, plus an amount equal to accrued
and unpaid dividends thereon (whether or not earned or
declared) to the date fixed for redemption, of any share of
MMP after notice of redemption has been given pursuant to
paragraph (c) of Section 3 of this Part I.
(q) "Redemption Deposit Amount" shall mean the product
of (i) the number of outstanding shares of MMP to be redeemed
times (ii) an amount equal to the applicable redemption price,
plus an amount equal to accrued and unpaid dividends (whether
or not declared) to the date fixed for redemption.
(r) "Reference Banks" shall mean the principal London
offices of Bankers Trust Company, The Bank of Tokyo, Ltd.,
Barclays Bank PLC and National Westminster Bank PLC, or their
respective successors.
(s) "S&P" shall mean Standard and Poor's Corporation,
a New York corporation and its successors.
(t) "Subsequent Dividend Period" and "Subsequent
Dividend Periods" shall have the respective meanings specified
in subparagraph (c)(i) of Section 2 of this Part I.
(u) "Substitute Commercial Paper Dealer" shall mean The
First Boston Corporation or Morgan Stanley & Co. Incorporated,
or their respective affiliates or successors, if such dealer
or its affiliate or successor is a commercial paper dealer;
provided that neither such dealer nor any of its affiliates
or successors shall be a Commercial Paper Dealer.
(v) "Substitute Reference Bank" shall mean the principal
London offices of The Chase Manhattan Bank (National
Association), Deutsche Bank Aktiengesellschaft, Morgan
Guaranty Trust Company of New York or Swiss Bank Corporation,
or their respective successors, or, if none of such Substitute
Reference Banks are engaged in dealings in United States
dollars in the London interbank market, then a bank or banks,
selected by the Corporation, engaged in dealings in United
States dollars in the London interbank market.
(w) "Trust Company" shall mean the bank or trust company
or other entity appointed as such by a resolution of the Board
of Directors of the Corporation.
PART II
1. Certain Definitions. Capitalized terms not defined
in this Section 1 shall have the respective meanings specified in
Part I hereof. As used in this Part II, the following terms shall
have the following meanings, unless the context otherwise requires:
(a) "'AA' Composite Commercial Paper Rate", on any date,
shall mean (i) the interest equivalent of the 60-day rate
on commercial paper placed on behalf of issuers whose
corporate bonds are rated "AA" by S & P, or the equivalent of
such rating by S&P or another rating agency, as made available
on a discount basis or otherwise by the Federal Reserve Bank
of New York for the immediately preceding Business Day prior
to such date; or (ii) in the event that the Federal Reserve
Bank of New York does not make available such a rate, then the
arithmetic average of the interest equivalent of the 60-day
rate on commercial paper placed on behalf of such issuers, as
quoted on a discount basis or otherwise by the Commercial
Paper Dealers to the Trust Company for the close of business
on the immediately preceding Business Day prior to such date.
If any Commercial Paper Dealer does not quote a rate required
to determine the "AA" Composite Commercial Paper Rate, the
"AA" Composite Commercial Paper Rate shall be determined on
the basis of the quotation or quotations furnished by the
remaining Commercial Paper Dealer or Commercial Paper Dealers
and any Substitute Commercial Paper Dealer or Substitute
Commercial Paper Dealers selected by the Corporation to
provide such rate or rates not being supplied by any
Commercial Paper Dealer or Commercial Paper Dealers, as the
case may be, or, if the Corporation does not select any such
Substitute Commercial Paper Dealer or Substitute Commercial
Paper Dealers, by the remaining Commercial Paper Dealer or
Commercial Paper Dealers, provided that, in the event the
Corporation is unable to cause such quotations to be furnished
to the Trust Company by such sources, the Corporation may
cause the "AA" Composite Commercial Paper Rate to be furnished
to the Trust Company by such alternative source or sources as
the Corporation in good faith deems to be reliable. If the
Board of Directors of the Corporation shall make the
adjustment referred to in subparagraph (b)(i)(3) of Section
2 of Part I hereof, then (i) the number of Dividend Period
Days after such adjustment shall be fewer than 70 days, such
rate shall be the interest equivalent of the 60-day rate on
such commercial paper, (ii) if the Dividend Period Days
after such adjustment shall be 70 or more days but fewer than
85 days, such rate shall be based on the arithmetic average
of the interest equivalent of the 60-day and 90-day rates on
such commercial paper, or (iii) if the Dividend Period Days
after such adjustment shall be 85 or more days but 98 or fewer
days, such rate shall be based on the interest equivalent of
the 90-day rate on such commercial paper. For purposes of
this definition, the "interest equivalent" of a rate stated
on a discount basis (a "discount rate") for commercial paper
of a given days' maturity shall be equal to the quotient
(rounded upwards to the next higher one-thousandth (.001) of
1%) of (A) the discount rate divided by (B) the difference
between (x) 1.00 and (y) a fraction the numerator of which
shall be the product of the discount rate times the number of
days in which such commercial paper matures and the
denominator of which shall be 360.
(b) "'AA' Rate Multiple", on any Auction Date, shall
mean the percentage determined as set forth below based on the
prevailing rating of MMP in effect at the close of business
on the Business Day immediately preceding such Auction Date:
Prevailing Rating Percentage
AA/aa or Above........ 110%
A/a................... 120%
BBB/baa............... 130%
Below BBB/baa (includes no rating) 175%
For purposes of this definition, the "prevailing rating" of
MMP shall be (i) AA/aa or Above, if MMP has a rating of AA-
or better by S&P or aa3 or better by Moody's or the equivalent
of either or both of such ratings by such agencies or a
substitute rating agency or substitute rating agencies
selected as provided below, (ii) if not AA/aa or Above, then
A/a if MMP has a rating of A- or better and lower than AA- by
S&P or a3 or better and lower then aa3 by Moody's or the
equivalent of either or both of such ratings by such agencies
or a substitute rating agency or substitute rating agencies
selected as provided below, (iii) if not AA/aa or Above or
A/a, then BBB/baa if MMP has a rating of BBB- or better and
lower than A- by S&P or baa3 or better and lower than a3 by
Moody's or the equivalent of either or both of such ratings
by such agencies or a substitute rating agency or substitute
rating agencies selected as provided below, and (iv) if not
AA/aa or Above, A/a or BBB/baa, then Below BBB/baa. The
Corporation shall take all reasonable action necessary to
enable S&P and Moody's to provide a rating for MMP. If either
S&P or Moody's shall not make such a rating available, or
neither S&P nor Moody's shall make such a rating available,
Shearson Lehman Brothers Inc. and Salomon Brothers Inc or
their successors shall select a nationally recognized
statistical rating organization (as that term is used in the
rules and regulations of the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as
amended) or two nationally recognized statistical rating
organizations to act as substitute rating agency or substitute
rating agencies, as the case may be, and the Corporation shall
take all reasonable action necessary to enable such rating
agency or rating agencies to provide a rating or ratings for
the MMP.
(c) "Affiliate" shall mean any Person known to the Trust
Company to be controlled by, in control of or under common
control with the Corporation.
(d) "Agent Member" shall mean the member of, or
participant in, the Securities Depository that will act on
behalf of a Bidder and is identified as such in such Bidder's
Purchaser's Letter.
(e) "Auction Date" shall mean the Business Day next
preceding the first day of a Dividend Period.
(f) "Available MMP" shall have the meaning specified in
paragraph (a) of Section 4 of this Part II.
(g) "Bid" and "Bids" shall have the respective meanings
specified in paragraph (a) of Section 2 of this Part II.
(h) "Bidder" and "Bidders" shall have the respective
meanings specified in paragraph (a) of Section 2 of this Part II.
(i) "Broker-Dealer" shall mean any broker-dealer, or
other entity permitted by law to perform the functions
required of a Broker-Dealer in this Part II, that is a member
of, or a participant in, the Securities Depository, has been
selected by the Corporation and has entered into a Broker-
Dealer Agreement with the Trust Company that remains
effective.
(j) "Broker-Dealer Agreement" shall mean an agreement
between the Trust Company and a Broker-Dealer pursuant to
which such Broker-Dealer agrees to follow the procedures
specified in this Part II.
(k) "Existing Holder," when used with respect to shares
of MMP, shall mean a Person who has signed a Purchaser's
Letter and is listed as the beneficial owner of such shares
of MMP in the records of the Trust Company.
(l) "Hold Order" and "Hold Orders" shall have the
respective meanings specified in paragraph (a) of Section 2
of this Part II.
(m) "Maximum Rate," on any Auction Date, shall mean the
product of the "AA" Composite Commercial Paper Rate times the
"AA" Rate Multiple.
(n) "Order" and "Orders" shall have the respective
meanings specified in paragraph (a) of Section 2 of this Part II.
(o) "Outstanding" shall mean, as of any date, shares of
MMP theretofore issued by the Corporation except, without
duplication, (i) any shares of MMP theretofore cancelled or
delivered to the Trust Company for cancellation or redeemed
by the Corporation or as to which a notice of redemption shall
have been given by the Corporation, (ii) any shares of MMP
as to which the Corporation or any Affiliate thereof (other
than a Broker-Dealer Affiliate) shall be an Existing Holder
and (iii) any shares of MMP represented by any certificate
in lieu of which a new certificate has been executed and
delivered by the Corporation.
(p) "Person" shall mean and include an individual, a
partnership, a corporation, a trust, an unincorporated
association, a joint venture or other entity or a government
or any agency or political subdivision thereof.
(q) "Potential Holder" shall mean any Person, including
any Existing Holder, (i) who shall have executed a
Purchaser's Letter and (ii) who may be interested in
acquiring shares of MMP (or, in the case of an Existing
Holder, additional shares of MMP).
(r) "Purchaser's Letter" shall mean a letter, the form
of which is attached hereto, addressed to the Corporation, the
Trust Company, a Broker-Dealer and an Agent Member in which
a Person agrees, among other things, to offer to purchase, to
purchase, to offer to sell and/or to sell shares of MMP as set
forth in this Part II.
(s) "Securities Depository" shall mean The Depository
Trust Company and its successors and assigns or any other
securities depository selected by the Corporation which agrees
to follow the procedures required to be followed by such
securities depository in connection with shares of MMP.
(t) "Sell Order" and "Sell Orders" shall have the
respective meanings specified in paragraph (a) of Section 2
of this Part II.
(u) "Submission Deadline" shall mean 1:00 P.M., New York
City time, on any Auction Date or such other time on any
Auction Date by which Broker-Dealers are required to submit
Orders to the Trust Company as specified by the Trust Company
from time to time.
(v) "Submitted Bid" and "Submitted Bids" shall have the
respective meanings specified in paragraph (a) of Section 4
of this Part II.
(w) "Submitted Hold Order" and "Submitted Hold Orders"
shall have the respective meanings specified in paragraph (a)
of Section 4 of this Part II.
(x) "Submitted Order" and "Submitted Orders" shall have
the respective meanings specified in paragraph (a) of Section
4 of this Part II.
(y) "Submitted Sell Order" and "Submitted Sell Orders"
shall have the respective meanings specified in paragraph (a)
of Section 4 of this Part II.
(z) "Sufficient Clearing Bids" shall have the meaning
specified in paragraph (a) of Section 4 of this Part II.
(aa) "Winning Bid Rate" shall have the meaning specified
in paragraph (a) of Section 4 of this Part II.
2. Orders by Existing Holders and Potential Holders. (a) On or
prior to the Submission Deadline on each Auction Date:
(i) each Existing Holder may submit to a Broker-Dealer
information as to:
(A) the number of Outstanding shares, if any, of
MMP held by such Existing Holder which such Existing
Holder desires to continue to hold without regard to the
Applicable Rate for the next succeeding Dividend Period;
(B) the number of Outstanding shares, if any, of
MMP which such Existing Holder desires to continue to
hold if the Applicable Rate for the next succeeding
Dividend Period shall not be less than the rate per annum
specified by such Existing Holder; and/or
(C) the number of Outstanding shares, if any, of
MMP held by such Existing Holder which such Existing
Holder offers to sell without regard to the Applicable
Rate for the next succeeding Dividend Period; and
(ii) one or more Broker-Dealers, using lists of Potential
Holders, shall in good faith for the purpose of conducting a
competitive Auction in a commercially reasonable manner,
contact Potential Holders, including Persons that are not
Existing Holders, on such lists to determine the number of
shares, if any, of MMP which each such Potential Holder offers
to purchase if the Applicable Rate for the next succeeding
Dividend Period shall not be less than the rate per annum
specified by such Potential Holder.
For the purposes hereof, the communication to a Broker-Dealer of
information referred to in clause (i)(A), (i)(B), (i)(C) or (ii)
of this paragraph (a) is hereinafter referred to as an "Order" and
collectively as "Orders" and each Existing Holder and each
Potential Holder placing an Order is hereinafter referred to as a
"Bidder" and collectively as "Bidders"; an Order containing the
information referred to in clause (i)(A) of this paragraph (a) is
hereinafter referred to as a "Hold Order" and collectively as "Hold
Orders"; an Order containing the information referred to in clause
(i)(B) or (ii) of this paragraph (a) is hereinafter referred to as
a "Bid" and collectively as "Bids"; and an Order containing the
information referred to in clause (i)(C) of this paragraph (a) is
hereinafter referred to as a "Sell Order" and collectively as "Sell
Orders."
(b) (i) A Bid by an Existing Holder shall constitute
an irrevocable offer to sell:
(A) the number of Outstanding shares of MMP
specified in such Bid if the Applicable Rate determined
on such Auction Date shall be less than the rate
specified therein;
(B) such number or a lesser number of Outstanding
shares of MMP to be determined as set forth in clause
(iv) of paragraph (a) of Section 5 of this Part II if the
Applicable Rate determined on such Auction Date shall be
equal to the rate specified therein; or
(C) a lesser number of Outstanding shares of MMP
to be determined as set forth in clause (iii) of
paragraph (b) of Section 5 of this Part II if the rate
specified therein shall be higher than the Maximum Rate
and Sufficient Clearing Bids do not exist.
(ii) A Sell Order by an Existing Holder shall constitute
an irrevocable offer to sell:
(A) the number of Outstanding shares of MMP
specified in such Sell Order; or
(B) such number or a lesser number of Outstanding
shares of MMP as set forth in clause (iii) of paragraph
(b) of Section 5 of this Part II if Sufficient Clearing
Bids do not exist.
(iii) A Bid by a Potential Holder shall constitute an
irrevocable offer to purchase:
(A) the number of Outstanding shares of MMP
specified in such Bid if the Applicable Rate determined
on such Auction Date shall be higher than the rate
specified therein; or
(B) such number or a lesser number of Outstanding
shares of MMP as set forth in clause (v) of paragraph (a)
of Section 5 of this Part II if the Applicable Rate
determined on such Auction Date shall be equal to the
rate specified therein.
3. Submission of Orders by Broker-Dealers to Trust
Company. (a) Each Broker-Dealer shall submit in writing to the
Trust Company prior to the Submission Deadline on each Auction Date
all Orders obtained by such Broker-Dealer and shall specify with
respect to each Order:
(i) the name of the Bidder placing such Order;
(ii) the aggregate number of shares of MMP the subject
of such Order;
(iii) to the extent that such Bidder is an Existing Holder:
(A) the number of shares, if any, of MMP subject
to any Hold Order placed by such Existing Holder;
(B) the number of shares, if any, of MMP subject
to any Bid placed by such Existing Holder and the rate
specified in such Bid; and
(C) the number of shares, if any, of MMP subject
to any Sell Order placed by such Existing Holder; and
(iv) to the extent such Bidder is a Potential Holder, the
rate and number of shares specified in such Potential Holder's
(b) If any rate specified in any Bid contains more than
three figures to the right of the decimal point, the Trust Company
shall round such rate up to the next highest one-thousandth (.001)
of 1%.
(c) If an Order or Orders covering all of the Outstanding
shares of MMP held by any Existing Holder is not submitted to the
Trust Company prior to the Submission Deadline, the Trust Company
shall deem a Hold Order to have been submitted on behalf of such
Existing Holder covering the number of Outstanding shares of MMP
held by such Existing Holder and not subject to Orders submitted
to the Trust Company.
(d) If any Existing Holder submits through a Broker-
Dealer to the Trust Company one or more Orders covering in the
aggregate more than the number of Outstanding shares of MMP held
by an Existing Holder, such Orders shall be considered valid as
follows and in the following order of priority:
(i) all Hold Orders shall be considered valid, but only
up to and including in the aggregate the number of Outstanding
shares of MMP held by such Existing Holder and, solely for the
purpose of allocating compensation among the Broker-Dealers
submitting Hold Orders, if the number of shares of MMP subject
to such Hold Orders exceeds the number of Outstanding shares
of MMP held by such Existing Holder, the number of shares
subject to each such Hold Order shall be reduced pro rata to
cover the number of Outstanding shares of MMP held by such
Existing Holder;
(ii) (A) any Bid shall be considered valid up to and
including the excess of the number of Outstanding shares of
MMP held by such Existing Holder over the number of shares of
MMP subject to any Hold Orders referred to in clause (i)
above;
(B) subject to subclause (A), if more than one Bid with
the same rate is submitted on behalf of such Existing Holder
and the number of Outstanding shares of MMP subject to such
Bids is greater than such excess, such Bids shall be
considered valid up to and including the amount of such
excess, and, solely for the purpose of allocating compensation
among the Broker-Dealers submitting Bids with the same rate,
the number of shares of MMP subject to each Bid with the same
rate shall be reduced pro rata to cover the number of shares
of MMP equal to such excess;
(C) subject to subclause (A), if more than one Bid
with different rates is submitted on behalf of such Existing
Holder, such Bids shall be considered valid in the ascending
order of their respective rates up to and including the amount
of such excess; and
(D) in any such event, the number, if any, of such
Outstanding shares of MMP subject to Bids not valid under this
clause (ii) shall be treated as the subject of a Bid by a
Potential Holder at the rate therein specified; and
(iii) all Sell Orders shall be considered valid up to
and including the excess of the number of Outstanding shares
of MMP held by such Existing Holder over the sum of the shares
of MMP subject to valid Hold Orders referred to in clause (i)
above and valid Bids by such Existing Holder referred to in
clause (ii) above.
(e) If more than one Bid is submitted on behalf of any
Potential Holder, each Bid submitted shall be a separate Bid with
the rate and number of shares therein specified.
4. Determination of Sufficient Clearing Bids, Winning
Bid Rate and Applicable Rate. (a) Not earlier than the Submission
Deadline on each Auction Date, the Trust Company shall assemble all
valid Orders submitted or deemed submitted to it by the Broker-
Dealers (each such Order as submitted or deemed submitted by a
Broker-Dealer being hereinafter referred to individually as a
"Submitted Hold Order," a "Submitted Bid" or a "Submitted Sell
Order," as the case may be, or as a "Submitted Order" and
collectively as "Submitted Hold Orders," "Submitted Bids" or
"Submitted Sell Orders," as the case may be, or as "Submitted
Orders") and shall determine:
(i) the excess of the total number of Outstanding shares
of MMP over the number of Outstanding shares of MMP that are
the subject of Submitted Hold Orders (such excess being
hereinafter referred to as the "Available MMP");
(ii) from the Submitted Orders whether:
(A) the number of Outstanding shares of MMP that
are the subject of Submitted Bids by Potential Holders
specifying one or more rates equal to or lower than the
Maximum Rate;
exceeds or is equal to the sum of:
(B) the number of Outstanding shares of MMP that
are the subject of Submitted Bids by Existing Holders
specifying one or more rates higher than the Maximum
Rate; and
(C) the number of Outstanding shares of MMP that
are subject to Submitted Sell Orders (in the event of
such excess or such equality (other than because the
number of shares of MMP in subclauses (B) and (C) above
is zero because all of the Outstanding shares of MMP are
the subject of Submitted Hold Orders), such Submitted
Bids in subclause (A) above being hereinafter referred
to collectively as "Sufficient Clearing Bids"); and
(iii) if Sufficient Clearing Bids exist, the lowest rate
specified in the Submitted Bids (the "Winning Bid Rate") which
if:
(A)(I) each Submitted Bid from Existing Holders
specifying such lowest rate and (II) all other
Submitted Bids from Existing Holders specifying lower
rates were rejected, thus entitling such Existing
Holders to continue to hold the shares of MMP that are
the subject of such Submitted Bids; and
(B)(I) each Submitted Bid from Potential Holders
specifying such lowest rate and (II) all other
Submitted Bids from Potential Holders specifying lower
rates were accepted,
would result in such Existing Holders described in subclause
(A) above continuing to hold an aggregate number of
Outstanding shares of MMP which, when added to the number of
Outstanding shares of MMP to be purchased by such Potential
Holders described in subclause (B) above, would equal not less
than the Available MMP.
(b) Promptly after the Trust Company has made the
determinations pursuant to paragraph (a) of this Section 4, the
Trust Company shall advise the Corporation of the "AA" Composite
Commercial Paper Rate and the Maximum Rate on the Auction Date and,
based on such determinations, the Applicable Rate for the next
succeeding Dividend Period as follows:
(i) if Sufficient Clearing Bids exist, that the
Applicable Rate for the next succeeding Dividend Period shall
be equal to the Winning Bid Rate so determined;
(ii) if Sufficient Clearing Bids do not exist (other
than because all of the Outstanding shares of MMP are the
subject of Submitted Hold Orders), that the Applicable Rate
for the next succeeding Dividend Period shall be equal to the
Maximum Rate; or
(iii) if all of the Outstanding shares of MMP are the
subject of Submitted Hold Orders, that the Applicable Rate for
the next succeeding Dividend Period shall be equal to 59% of
the "AA" Composite Commercial Paper Rate.
5. Acceptance and Rejection of Submitted Bids and
Submitted Sell Orders and Allocation of Shares. Existing Holders
shall continue to hold the shares of MMP that are the subject of
Submitted Hold Orders, and, based on the determinations made
pursuant to paragraph (a) of Section 4 of this Part II, the
Submitted Bids and Submitted Sell Orders shall be accepted or
rejected and the Trust company shall take such other action as set
forth below:
(a) If Sufficient Clearing Bids have been made, all
Submitted Sell Orders shall be accepted and, subject to the
provisions of paragraph (d) and (e) of this Section 5, Submitted
Bids shall be accepted or rejected as follows in the following
order of priority and all other Submitted Bids shall be rejected:
(i) the Submitted Sell Orders of Existing Holders shall
be accepted and Existing Holders' Submitted Bids specifying
any rate that is higher than the Winning Bid Rate shall be
accepted, thus requiring each such Existing Holder to sell the
shares of MMP that are the subject of such Submitted Sell
Orders or Submitted Bids;
(ii) Existing Holders' Submitted Bids specifying any
rate that is lower than the Winning Bid Rate shall be
rejected, thus entitling each such Existing Holder to continue
to hold the shares of MMP that are the subject of such
Submitted Bids;
(iii) Potential Holders' Submitted Bids specifying any
rate that is lower than the Winning Bid Rate shall be
accepted;
(iv) each Existing Holders' Submitted Bid specifying a
rate that is equal to the Winning Bid Rate shall be rejected,
thus entitling such Existing Holder to continue to hold the
shares of MMP that are the subject of such Submitted Bid,
unless the number of Outstanding shares of MMP subject to all
such Submitted Bids shall be greater than the number of shares
of MMP ("remaining shares") equal to the excess of the
Available MMP over the number of shares of MMP subject to
Submitted Bids described in clauses (ii) and (iii) of this
paragraph (a), in which event such Submitted Bid of such
Existing Holder shall be accepted in part, and such Existing
Holder shall be required to sell shares of MMP subject to such
Submitted Bid, but only in an amount equal to the difference
between (A) the number of Outstanding shares of MMP then
held by such Existing Holder subject to such Submitted Bid and
(B) the number of shares of MMP obtained by multiplying the
number of remaining shares by a fraction the numerator of
which shall be the number of Outstanding shares of MMP held
by such Existing Holder subject to such Submitted Bid and the
denominator of which shall be the aggregate number of
Outstanding shares of MMP subject to such submitted Bids made
by all such Existing Holders that specified a rate equal to
the Winning Bid Rate; and
(v) each Potential Holder's Submitted Bid specifying a
rate that is equal to the Winning Bid Rate shall be accepted
but only in an amount equal to the number of shares of MMP
obtained by multiplying the difference between the Available
MMP and the number of shares of MMP subject to Submitted Bids
described in clauses (ii), (iii) and (iv) of this paragraph
(a) by a fraction the numerator of which shall be the number
of Outstanding shares of MMP subject to such Submitted Bid of
such Potential Holder and the denominator of which shall be
the aggregate number of Outstanding shares of MMP subject to
such Submitted Bids made by all such Potential Holders that
specified a rate equal to the Winning Bid Rate.
(b) If Sufficient Clearing Bids have not been made
(other than because all of the Outstanding shares of MMP are the
subject of Submitted Hold Orders), subject to the provisions of
paragraph (d) of this Section 5, Submitted Orders shall be accepted
or rejected as follows in the following order of priority and all
other Submitted Bids shall be rejected:
(i) Existing Holders' Submitted Bids specifying any rate
that is equal to or lower than the Maximum Rate shall be
rejected, thus entitling such Existing Holders to continue to
hold the shares of MMP that are the subject of such Submitted
Bids;
(ii) Potential Holders' Submitted Bids specifying any
rate that is equal to or lower than the Maximum Rate shall be
accepted; and
(iii) each Existing Holder's Submitted Bid specifying
any rate that is higher than the Maximum Rate and the
Submitted Sell Order of each Existing Holder shall be
accepted, but in both cases only in an amount equal to the
difference between (A) the number of Outstanding shares of
MMP then held by such Existing Holder subject to such
Submitted Bid or Submitted Sell Order and (B) the number of
shares of MMP obtained by multiplying the difference between
the Available MMP and the aggregate number of shares of MMP
subject to Submitted Bids described in clauses (i) and (ii)
of this paragraph (b) by a fraction the numerator of which
shall be the number of Outstanding shares of MMP held by such
Existing Holder subject to such Submitted Bid or Submitted
Sell Order and the denominator of which shall be the aggregate
number of Outstanding shares of MMP subject to all such
Submitted Bids and Submitted Sell Orders.
(c) If all of the Outstanding shares of MMP are the
subject of Submitted Hold Orders, all Submitted Bids shall be
rejected.
(d) If, as a result of the procedures described in
paragraph (a) or (b) of this Section 5, any Existing Holder would
be entitled or required to sell, or any Potential Holder would be
entitled or required to purchase, a fraction of a share of MMP on
any Auction Date, the Trust Company shall, in such manner as, in
its sole discretion, it shall determine, round up or down the
number of shares of MMP to be purchased or sold by any Existing
Holder or Potential Holder on such Auction Date so that the number
of shares purchased or sold by each Existing Holder or Potential
Holder on such Auction Date shall be whole shares of MMP.
(e) If, as a result of the procedures described in
paragraph (a) of this Section 5, any Potential Holder would be
entitled or required to purchase less than a whole share of MMP on
any Auction Date, the Trust Company shall, in such manner as, in
its sole discretion, it shall determine, allocate shares for
purchase among Potential Holders so that only whole shares of MMP
are purchased on such Auction Date by any Potential Holder, even
if such allocation results in one or more of such Potential Holders
not purchasing shares of MMP on such Auction Date.
(f) Based on the results of each Auction, the Trust
Company shall determine the aggregate number of shares of MMP to
be purchased and the aggregate number of shares of MMP to be sold
by Potential Holders and Existing Holders on whose behalf each
Broker-Dealer submitted Bids or Sell Orders and, with respect to
each Broker-Dealer, to the extent that such aggregate number of
shares to be purchased and such aggregate number of shares to be
sold differ, determine to which other Broker-Dealer or Broker-
Dealers acting for one or more purchasers such Broker-Dealer shall
deliver, or from which other Broker-Dealer or Broker-Dealers acting
for one or more sellers such Broker-Dealer shall receive, as the
case may be, shares of MMP.
6. Miscellaneous. (a) The Board of Directors of the
Corporation may interpret the provisions of this Part II to resolve
any inconsistency or ambiguity which may arise or be revealed in
connection with the Auction Procedures provided for herein, and if
such inconsistency or ambiguity reflects an inaccurate provision
hereof, the Board of Directors of the Corporation may, in
appropriate circumstances, authorize the filing of Articles of
Amendment or a Certificate of Correction.
(b) As long as no Payment Default shall have occurred, (i) an
Existing Holder may sell, transfer or otherwise dispose of
shares of MMP only pursuant to a Bid or Sell Order in accordance
with the procedures described in this Part II or to or through a
Broker-Dealer or to a Person that has delivered a signed copy of
a Purchaser's Letter to the Trust Company, provided that in the
case of all transfers other than pursuant to Auctions, such
Existing Holder, its Broker- Dealer or its Agent Member advises the
Trust Company of such transfer, and (ii) such Existing Holder
shall have the ownership of the shares of MMP held by it maintained
in book entry form by the Securities Depository for the account of
its Agent Member, which in turn will maintain records of such
Existing Holder's beneficial ownership.
(c) Neither the Corporation nor any affiliate thereof
may submit an Order in any Auction except as set forth in the next
sentence. Any Broker-Dealer that is an affiliate of the
Corporation may submit Orders in Auctions but only if such Orders
are not for its own account, except that if such affiliated Broker-
Dealer holds shares of MMP for its own account, it must submit a
Sell Order in the next Auction with respect to such shares.
(d) Commencing with the first day of the first Dividend
Period for which the Applicable Rate is determined by the Default
Rate, as set forth in subparagraph (c)(i) of Section 2 of Part I
hereof, the Corporation or an Affiliate thereof, at the option of
the Corporation, may perform any of the functions to be performed
by the Trust Company set forth herein.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
presents to be signed in its name and on its behalf by its
President and its corporate seal to be hereunto affixed and
attested by its Secretary, and the said officers of the Corporation
further acknowledged said instrument to be the corporate act of the
Corporation and stated under the penalties of perjury that to the
best of their knowledge, information and belief the matters and
facts therein set forth with respect to approval are true in all
material respects, all on July 17, 1987.
REPUBLIC NEW YORK CORPORATION
By /s/ Jeffrey C. Keil
Attest: Jeffrey C. Keil
(President)
/s/ William Rosenblum
William Rosenblum
(Secretary)
REPUBLIC NEW YORK CORPORATION
ARTICLES SUPPLEMENTARY
REPUBLIC NEW YORK CORPORATION, a Maryland corporation having its
principal Maryland office in the City of Baltimore, State of
Maryland (hereinafter called the "Corporation"), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article FIFTH of the Charter of the
Corporation, the Board of Directors has duly divided and classified
1,000 shares of the Preferred Stock of the Corporation as Republic
New York Corporation Remarketed Preferred Stock, and has provided
for the issuance of such shares.
SECOND: The terms of the Republic New York Corporation Remarketed
Preferred Stock as set by the Board of Directors are as follows:
1,000 shares of Preferred Stock of the Corporation,
without par value, shall constitute a series of Preferred
Stock designated as Republic New York Corporation Remarketed
Preferred Stock, hereinafter referred to as the "RP"TM [TM
Trademark of Merrill Lynch & Co., Inc]. At all times, other
than during the Initial Dividend Period, all shares of RP
within each Dividend Period shall be identical with each other
in all respects. The RP shall have no par value with a
liquidation preference of $100,000 per share, plus an amount
equal to accrued and unpaid dividends.
PART I
1. Definitions. Unless the context or use indicates
another or different meaning or intent, the following terms shall
have the following meanings, whether used in the singular or
plural:
"'AA' Composite Commercial Paper Rate", on any date, means
(i) the Interest Equivalent of the 5-day (in the case of a 7-day
Dividend Period) or 60-day (in the case of a 49-day Dividend
Period) rate, as the case may be, on commercial paper placed on
behalf of issuers whose corporate bonds are rated "AA" by S & P or
"Aa" by Moody's, or the equivalent of such rating by another rating
agency, as such rate is made available by the Federal Reserve Bank
of New York on a discount basis or otherwise for the first Business
Day before such date; or (ii) if the Federal Reserve Bank of New
York does not make available such a rate, then the arithmetic
average of the Interest Equivalent of the 5-day or 60-day rate, as
the case may be, on commercial paper placed on behalf of such
issuers, as quoted on a discount basis or otherwise by the
Commercial Paper Dealer to the Remarketing Agent for the close of
business on the first Business Day before such date. If the
Commercial Paper Dealer does not quote a rate required to determine
the "AA" Composite Commercial Paper Rate, the "AA" Composite
Commercial Paper Rate shall be determined on the basis of the
quotations or quotation furnished by any Substitute Commercial
Paper Dealers or Dealer selected by the Corporation to provide such
rates or rate not being supplied by the Commercial Paper Dealer.
However, in respect of any Dividend Period of 98 Dividend Period
Days or less (i) if the number of Dividend Period Days shall be
8 or more but less than 20, such rate shall be the Interest
Equivalent of the 15-day rate on such commercial paper, (ii) if
the number of Dividend Period Days shall be 20 or more but less
than 49, such rate shall be the Interest Equivalent of the 30-day
rate on such commercial paper, (iii) if the number of Dividend
Period Days shall be 49 or more but less than 70, such rate shall
be the Interest Equivalent of the 60-day rate on such commercial
paper, (iv) if the number of Dividend Period Days shall be 70 or
more but less than 85, such rate shall be the arithmetic average
of the Interest Equivalent of the 60-day and 90-day rates on such
commercial paper and (v) if the number of Dividend Period Days
shall be 85 or more but less than 99, such rate shall be the
Interest Equivalent of the 90-day rate on such commercial paper.
"Agent Member" means a designated member of the Securities
Depository which will maintain records for the Beneficial Owners
of shares of RP that have identified such Agent Member in their
Purchaser's Letters and which will be authorized and instructed to
disclose information to the Remarketing Agent and the Paying Agent
with respect to such Beneficial Owners.
"Applicable Dividend Rate" means, with respect to any share
of RP for the applicable Initial Dividend Period, the applicable
initial dividend rate, and for any subsequent Dividend Period for
such share the dividend rate, as determined by the Remarketing
Agent, that will be in effect for such share for any subsequent
Dividend Period. In certain circumstances, the Applicable Dividend
Rate may be the applicable Maximum Dividend Rate or the Penalty
Rate.
"Authorized Newspaper" means a newspaper of general
circulation in the English language generally published on Business
Days in The City of New York.
"Beneficial Owner" shall mean a person who has signed a
Purchaser's Letter and who is listed as the beneficial owner of
shares of RP in the records of the Paying Agent provided that, as
such term is used in paragraph 3 of this Part I, "Beneficial Owner"
shall mean, in respect of each share of RP, the registered holder
of such share as its name appears on the stock transfer books of
the Corporation at any time the Applicable Dividend Rate for such
share shall be the Penalty Rate.
"Business Day" means a day on which the New York Stock
Exchange is open for trading, and is not a day on which banks in
The city of New York are authorized by law to close.
"Cede" means Cede & Co., the nominee of DTC in whose name
the shares of RP will be initially registered.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commercial Paper Dealer" means Merrill Lynch, Pierce,
Fenner & Smith Incorporated, or in lieu thereof its affiliates or
successors.
"Common Stock" means the common stock of the Corporation,
$5.00 par value.
"Corporation" means Republic New York Corporation, a
Maryland corporation, that is the issuer of the shares of RP.
"Date of Original Issue" means the date on which the
Corporation originally issues the shares of RP.
"Dividend Payment Date" means (i) with respect to any
Optional Dividend Period of more than 91 but fewer than 365 days,
the 92nd day thereof, the 183rd day thereof, if any, the 274th day
thereof, if any, and the day next succeeding the last day thereof;
(ii) with respect to any Optional Dividend Period of 365 days or
more, the second Wednesday of each January, April, July and October
and the day next succeeding the last day thereof; and (iii) with
respect to any other Dividend Period, the day next succeeding the
last day thereof; provided, however, that if any such date would
not be a Business Day, the Dividend Payment Date shall be the
Business Day next succeeding such date, except for the purpose of
determining the length of a Dividend Period.
"Dividend Period" means with respect to each share of RP,
the Initial Dividend Period for such share and thereafter any
period commencing on the Dividend Payment Date (which, if the
Applicable Dividend Rate shall not be the Penalty Rate, shall be
the Settlement Date) for such share and ending on the day next
preceding the next succeeding such Dividend Payment Date for such
share, which day falls in the calendar week in which the last
Dividend Period Day in respect of such period falls (unless
otherwise required by any adjustment of the remarketing schedule
by the Remarketing Agent as provided herein), provided that if in
respect of such Dividend Period, the Board of Directors of the
Corporation adjusts the number of Dividend Period Days in the event
of a change in the Minimum Holding Period, such day will be
adjusted accordingly.
"Dividend Period Days" means in respect of any particular
Dividend Period applicable to a share of RP, such number of
consecutive calendar days commencing on and including the first
day of such period as is specified herein and ending with and
including the day next preceding the first day of the next
succeeding Dividend Period applicable to such share of RP.
"Dividend Reset Date" means the Business Day following the
Tender Date and the Business Day next preceding a Settlement Date
(normally a Wednesday).
"Dividends-Received Deduction" means the deduction allowed
to corporate holders of preferred stock with respect to dividends
received on such stock by Section 243 of the Code, or any successor
to Section 243 of the Code.
"DTC" means The Depository Trust Company.
"Holder" shall mean, with respect to any share of RP, the
person whose name appears on the stock transfer books of the
Corporation as the registered holder of such share.
"Initial Dividend Period" means the period commencing on
and including the Date of Original Issue and ending on September
16, 1987 for 500 shares of RP and October 14, 1987 for the
remaining 500 shares of RP.
"Interest Equivalent" means the equivalent yield on a 360-
day basis of a discount basis security to an interest bearing
security.
"Maximum Dividend Rate" means with respect to any 7-day or
49-day Dividend Period, the percentage set forth in the table below
(the "Applicable Percentage") of the "AA" Composite Commercial
Paper Rate applicable to such Dividend Period at the Dividend Reset
Date. "Maximum Dividend Rate" means with respect to any Optional
Dividend Period at any Dividend Reset Date (i) in the case of an
Optional Dividend Period of more than 98 Dividend Period Days, the
Maximum Dividend Rate (which may be a fixed rate or a variable rate
determined from time to time by formula or other means) determined
by the Board of Directors of the Corporation in respect of such
period, as provided herein, and (ii) in the case of an Optional
Dividend Period of 98 days or less, the Applicable Percentage of
the applicable "AA" Composite Commercial Paper Rate. The
Remarketing Agent shall round each applicable Maximum Dividend Rate
to the nearest one-thousandth (0.001) of one percent per annum,
with any such number ending in five ten-thousandths of one percent
being rounded upwards to the nearest one-thousandth (0.001) of one
percent. The Remarketing Agent shall not round the applicable "AA"
Composite Commercial Paper Rate as part of its calculation of the
applicable Maximum Dividend Rate. The Applicable Percentage varies
with the higher of the credit rating or ratings assigned by Moody's
and S&P (or if Moody's or S&P or both shall not make such rating
available, the equivalent of either or both of such ratings by a
Substitute Rating Agency or two Substitute Rating Agencies or, in
the event that only one such rating shall be available, such
rating) to the shares of RP on each Dividend Reset Date, as
follows:
Credit Ratings
Applicable
Moody's S&P Percentage
"aa3" or higher AA- or higher 110%
"a3" to "a1" A- to A+ 120%
"baa3" to "baa1" BBB- to BBB+ 130%
Below "baa3" Below BBB- 175%
"Minimum Holding Period" means 46 days or such other
minimum holding period required for corporate taxpayers to be
entitled to the Dividends-Received Deduction as provided in Section
246(c) of the Code or any successor thereto.
"Moody's" means Moody's Investors Service.
"Notice of Redemption" means the notice of a redemption
relating to a redemption in part, given to the Paying Agent, the
Securities Depository (and any other registered holder) and the
Remarketing Agent by the Corporation by telephone and confirmed in
writing, not later than 3:00 p.m., New York City time, on the
Settlement Date (or, if the Applicable Dividend Rate for any shares
of RP shall be the Penalty Rate, the later of the Dividend Payment
Date or the seventh day) prior to the earliest date on which any
such redemption shall occur; and the notice of a redemption
relating to a redemption in whole given to the Paying Agent, the
Securities Depository (and any other registered holder) and the
Remarketing Agent by the Corporation by telephone and in writing,
not later than 3:00 p.m., New York City time, on the Tender Date
(or, if the Applicable Dividend Rate for any share of RP shall be
the Penalty Rate, the later of the Dividend Payment Date or the
seventh day) prior to the earliest date on which any such
redemption shall occur.
"Optional Dividend Period" means any Dividend Period in
respect of which the Board of Directors of the Corporation
designates the number of Dividend Period Days and, if such number
is greater than 98, determines the Maximum Dividend Rate, and at
least seven days prior to the day such Dividend Period is to
commence, provides written notice of such designation and, if
applicable, such Maximum Dividend Rate to the Remarketing Agent,
the Paying Agent and the Securities Depository.
"Paying Agent" means Manufacturers Hanover Trust Company
or any successor company or entity, which has entered into a Paying
Agent Agreement with the Corporation to act, among other things,
as the transfer agent, registrar, dividend and redemption price
disbursing agent, settlement agent and agent for certain
notifications for the Corporation in connection with the shares of
RP in accordance with such agreement.
"Paying Agent Agreement" means an agreement to be entered
into between the Corporation and the Paying Agent.
"Penalty Rate" means 175% of the applicable "AA" Composite
Commercial Rate.
"Purchase Agreement" means the agreement between the
Corporation and the Underwriter pursuant to which the Underwriter
has agreed to purchase all the shares of RP from the Corporation.
"Purchaser's Letter" means a letter substantially in the
form of Exhibit A hereto which is required to be executed by each
purchaser of shares of RP or such other form as may be acceptable
to the Paying Agent.
"Remarketing" means each periodic operation of the process
for remarketing as described in Part II of these Articles
Supplementary.
"Remarketing Agent" means Merrill Lynch, Pierce, Fenner &
Smith Incorporated, or any successor company or entity which has
entered into an agreement with the Corporation to follow the
remarketing procedures for the purposes of determining the
Applicable Dividend Rate or Rates.
"RP" means Remarketed Preferred Stock of the Corporation.
"S&P" means Standard & Poor's Corporation.
"Securities Depository" means DTC or any successor
securities depository selected by the Corporation that agrees to
follow the procedures required to be followed by such securities
depository in connection with the shares of RP.
"Service" means the Internal Revenue Service.
"Settlement Date" means the first Business Day after a
Dividend Reset Date applicable to a share of RP (normally a
Thursday).
"Substitute Commercial Paper Dealers" means Salomon
Brothers Inc and Goldman, Sachs & Co. or, in lieu of either
thereof, their respective affiliates or successors.
"Substitute Rating Agency" and "Substitute Rating Agencies"
shall mean a nationally recognized securities rating agency or two
nationally recognized securities rating agencies selected by the
Corporation to act as the substitute rating agency or substitute
rating agencies, as the case may be, to determine the credit
ratings of the shares of RP.
"Tender and Dividend Reset" means the process pursuant to
which shares of RP may be tendered in a Remarketing or held and
become subject to the new Applicable Dividend Rate or Rates
determined by the Remarketing Agent in the Remarketing.
"Tender Date" means the Business Day preceding the Dividend
Reset Date (normally a Tuesday).
"Underwriter" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
"7-day Dividend Period" means a Dividend Period designated
as such by a holder of shares of RP in respect of which the number
of Dividend Period Days is seven.
"49-day Dividend Period" means (i) an Initial Dividend
Period, (ii) a Dividend Period designated as such by a holder of
shares of RP or (iii) the Dividend Period applicable to shares
of RP with respect to which the Applicable Dividend Rate is the
Penalty Rate, and, in all such cases, generally containing forty-
nine days.
2. Fractional Shares. No fractional shares of RP shall
be issued.
3. Dividends. (a) The Holders as of 12:00 noon, New
York City time on the Business Day preceding the applicable
Dividend Payment Date shall be entitled to receive, when, as and
if declared by the Board of Directors of the Corporation, out of
funds legally available therefor, cumulative cash dividends, at the
Applicable Dividend Rate per annum.
(b) Dividends on shares of RP shall accrue from the Date
of Original Issue and will be payable when, as and if declared by
the Board of Directors on each Dividend Payment Date applicable to
each such share of RP.
(c) Each declared dividend shall be payable to the Holder
or Holders of such shares on the applicable Dividend Payment Date
with respect to such shares of RP. Dividends in arrears for any
past Dividend Payment Date may be declared and paid at any time,
without reference to any regular Dividend Payment Date, to the
Holder or Holders of such shares on a date not exceeding five
Business Days preceding the payment date thereof, as may be fixed
by the Board of Directors of the Corporation. Any dividend payment
made on shares of RP shall first be credited against the dividends
accrued and unpaid with respect to the earliest Dividend Payment
Date on which dividends were not paid.
(d) If full cumulative dividends are not paid on the
shares of RP, all dividends declared on the shares of RP shall be
paid pro rata to the Holders of outstanding shares of RP. Holders
of shares of RP shall not be entitled to any dividends, whether
payable in cash, property or stock, in excess of full cumulative
dividends, on the shares of RP. Except as provided in paragraph
3(h) of this Part I, holders of shares of RP shall not be entitled
to any interest, or sum of money in lieu of interest, on any
dividend payment or payments on the shares of RP which may be in
arrears.
(e) The Applicable Dividend Rate for the Initial Dividend
Period shall be 4.65 percent per annum for 500 shares of RP and
4.75 percent per annum for the remaining 500 shares of RP. Except
as otherwise provided herein, the Applicable Dividend Rate on
shares of RP for each subsequent Dividend Period shall be equal to
the rate or rates per annum that result from implementation of the
remarketing procedures described in Part II of these Articles
Supplementary. If no Applicable Dividend Rate shall have been set
on a Dividend Reset Date in a Remarketing for a 7-day Dividend
Period, a 49-day Dividend Period or any Optional Dividend Period
or Periods or any or all of the foregoing for any reason (other
than because there is no Remarketing Agent or because the
Remarketing Agent is not required to conduct a Remarketing pursuant
to the terms of the Remarketing Agreement), then, unless the
Applicable Dividend Rate is the Penalty Rate pursuant to paragraph
3(h) of this Part I, the Remarketing Agent, in its sole discretion
will, after taking into account market conditions as reflected in
the prevailing yields on fixed and variable rate taxable and tax-
exempt debt securities and the prevailing dividend yields of fixed
and variable rate preferred stock, determine the Applicable
Dividend Rate or Rates, as the case may be, that would be initial
dividend rates in an offering on such Dividend Reset Date, assuming
a comparable dividend period, issuer and security. If there is no
Remarketing Agent or the Remarketing Agent is not required to
conduct a Remarketing pursuant to the terms of the Remarketing
Agreement, then, unless the Applicable Dividend Rate is the Penalty
Rate pursuant to paragraph 3(h) of this Part I of these Articles
Supplementary, the Applicable Dividend Rate for each such
subsequent Dividend Period for which no Remarketing takes place
because of the foregoing shall be the Maximum Dividend Rate for a
7-day Dividend Period and the next succeeding Dividend Period shall
be a 7-day Dividend Period.
(f) The amount of dividends per share of RP payable on
each Dividend Payment Date shall be computed by the Corporation by
multiplying the Applicable Dividend Rate in effect with respect to
dividends payable on such share on such Dividend Payment Date by
a fraction the numerator of which shall be the number of days such
share was outstanding from and including the Date of Original Issue
or preceding Dividend Payment Date, as the case may be, to and
including the last day of such Dividend Period, and the denominator
of which shall be 360, and then multiplying the rate obtained by
$100,000 per share of RP. In accordance with the remarketing
procedures set forth in Part II of these Articles Supplementary,
there may exist at any given time a number of Dividend Payment
Dates for all outstanding shares of RP and dividends on any share
shall be payable only on a Dividend Payment Date applicable to such
share of RP.
(g) No later than by 12:00 noon, New York City time on
any Dividend Payment Date, the Corporation shall deposit in same-
day funds, with the Paying Agent the full amount of any dividend
(whether or not earned or declared) payable on such Dividend
Payment Date on any share of RP.
(h) In the event of any failure by the Corporation to
(i) declare, prior to 12:00 noon New York City time on any
Dividend Payment Date, for payment on or within three Business Days
after such Dividend Payment Date to the persons who held shares of
RP as of 12:00 noon, New York City time on the Business Day
preceding such Dividend Payment Date, the full amount of any
dividend on any share of RP on such Dividend Payment Date or (ii)
deposit, irrevocably in trust, in same-day funds, with the Paying
Agent by 12:00 noon, New York City time, (A) on or within three
Business Days after any Dividend Payment Date the full amount of
any dividend (whether or not earned or declared) payable on such
Dividend Payment Date or (B) on or within three Business Days
after any redemption date, the redemption price to be paid on such
redemption date of any share of RP plus an amount equal to
dividends thereon (whether or not earned or declared) accrued to
and unpaid through such redemption date after a Notice of
Redemption has been given pursuant to paragraph 4(d) or 4(j) of
this Part I of these Articles Supplementary, then the Applicable
Dividend Rate for each Dividend Period in respect of each share of
RP commencing on or after the Dividend Payment Date first referred
to in this sentence shall be equal to the Penalty Rate (provided
that any share of RP for which an Optional Dividend Period of more
than 98 Dividend Period Days would otherwise be in effect for the
Dividend Period commencing on the Dividend Payment Date first
referred to in this sentence shall, instead, have a 7-day Dividend
Period), and each Dividend Period for each share of RP commencing
thereafter shall be a 49-day Dividend Period. Any amount of such
dividend (if the Corporation has declared prior to 12:00 noon New
York City time on any Dividend Payment Date, for payment on or
within three Business Days after such Dividend Payment Date to the
persons entitled to receive such dividends at the opening of
business on such Dividend Payment Date, the full amount of all
dividends due on all shares of RP on such Dividend Payment Date)
or redemption price not paid when due but paid within three
Business Days after such due date shall incur a late charge to be
paid therewith and calculated for such period of non-payment at the
Penalty Rate applied to the amount of such non-payment.
(i) So long as any shares of RP are outstanding, the
Corporation shall not (a) declare or pay or set apart for payment
any dividend or other distribution (other than dividends or
distributions payable in shares of stock of the Corporation ranking
junior to the RP as to dividends and upon liquidation) for any
period upon any stock of the Corporation ranking on a parity with,
or any stock of the Corporation ranking junior to, such RP as to
dividends or upon liquidation or (b) redeem, purchase or
otherwise acquire for any consideration any stock of the
Corporation ranking on a parity with, or any stock of the
Corporation ranking junior to, such RP as to dividends or upon
liquidation, unless, in either case, all dividends payable to
holders of shares of RP and holders of any other stock of the
Corporation ranking on a parity therewith as to dividends for its
current dividend period and all past dividend periods have been
paid, are contemporaneously being paid or have been declared and
a sum sufficient for the payment thereof set aside for such
payment, except that notwithstanding clause (a) above the
Corporation may pay dividends on the shares of RP and shares of
stock of the Corporation ranking on a parity therewith as to
dividends ratably in accordance with the sums which would be
payable on such shares if all dividends, including accumulations,
if any, were declared and paid in full. Holders of shares of RP
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 RP. No interest, or sum of money in lieu
of interest, shall be payable in respect of any dividend payment
or payments on the RP which may be in arrears.
(j) As long as no Applicable Dividend Rate applicable to
any outstanding share of RP shall be the Penalty Rate, at the end
of the Initial Dividend Period and at the end of each subsequent
Dividend Period applicable to each share of RP thereafter, (i)
the Beneficial Owner of each share of RP who is not tendering such
share of RP can elect either a 7-day Dividend Period, a 49-day
Dividend Period or any available Optional Dividend Period, except
that in the event that (x) such Beneficial Owner elects an
available Optional Dividend Period of more than 98 days and (y) the
Remarketing Agent is unable to remarket on the Dividend Reset Date
following such Tender Date all shares of RP tendered to it at a
price of $100,000 per share, the Dividend Period in respect of such
share will be a 7-day Dividend Period and the Applicable Dividend
Rate shall be the Maximum Dividend Rate for a 7-day Dividend
Period; (ii) the Beneficial Owner of each share of RP who fails
to tender or to make such election at the end of a Dividend Period
other than an Initial Dividend Period shall continue to hold such
share at the Applicable Dividend Rate for a Dividend Period of the
same type as the prior Dividend Period of such share except as
aforesaid in respect of an Optional Dividend Period of more than
98 days and except if the prior Dividend Period was an Initial
Dividend Period then the Beneficial Owner shall continue to hold
such shares for a 49-Day Dividend Period; (iii) the Beneficial
Owner of each share of RP which is tendered but not sold in a
Remarketing shall hold such share at the applicable Maximum
Dividend Rate for a 7-day Dividend Period; and (iv) the
Beneficial Owner of each share of RP purchased in a Remarketing
shall hold such share for a Dividend Period of the type elected by
the purchaser of such share in such Remarketing at the Applicable
Dividend Rate, except that under circumstances specified in (i)
above with respect to a Dividend Period of more than 98 days no
purchaser shall be permitted to acquire shares having such an
Optional Dividend Period.
(k) In the event of a change in law altering the Minimum
Holding Period, the Board of Directors of the Corporation may
adjust the period of time between Dividend Payment Dates so as to
adjust uniformly the number of Dividend Period Days in any 49-day
Dividend Period, Optional Dividend Period or Dividend Period for
which the Applicable Dividend Rate for any outstanding share of RP
shall be the Penalty Rate commencing after the date of such change
in law to equal or exceed the then current Minimum Holding Period;
provided that the number of Dividend Period Days for any Dividend
Period so adjusted shall not exceed 98 and shall be evenly
divisible by seven. Upon any such adjustment in the number of
Dividend Period Days, the Corporation will notify the Remarketing
Agent and the Paying Agent, and the Paying Agent will in turn
notify the Beneficial Owners of such adjustment, provided that, if
the Dividend Period whose length is being adjusted hereby is a
Dividend Period for which the Applicable Dividend Rate is the
Penalty Rate, the Corporation will notify the Holders of shares of
RP directly of such adjustment.
(l) Unless the Applicable Dividend Rate applicable to any
outstanding share of RP shall be the Penalty Rate, the Board of
Directors of the Corporation may at any time and from time to time
designate one or more Optional Dividend Periods with such number
of Dividend Period Days in respect thereof as the Board of
Directors of the Corporation shall determine; provided that, in
respect of any Optional Dividend Period of more than 98 Dividend
Period Days, the Board of Directors of the Corporation shall also
determine a Maximum Dividend Rate, which may be a fixed rate or a
variable rate determined from time to time by formula or other
means, in respect of such period. Once so designated, no Optional
Dividend Period may be rescinded, and once so determined, no
Maximum Dividend Rate may be changed. After designation of any
type of Optional Dividend Period by the Board of Directors of the
Corporation shall have become effective, an Optional Dividend
Period of such type shall commence on each Settlement Date. Any
designation of any type of Optional Dividend Period shall be
effective after seven days' written notice thereof and, if
applicable, of the Maximum Dividend Rate so determined in respect
thereof shall have been given to the Remarketing Agent, the Paying
Agent and the Securities Depository. The Corporation also shall
publish notice promptly of any such designation and Maximum
Dividend Rate, if applicable, at least once in an Authorized
Newspaper, but the failure so to publish shall not affect the
validity or effectiveness of any such designation or determination.
4. Redemption. Shares of RP shall be redeemable by the
Corporation as provided below.
(a) The Corporation at its option may redeem shares of
RP, in whole or in part, on the next succeeding scheduled Dividend
Payment Dates applicable to the shares of RP called for redemption,
out of funds legally available therefor, at a redemption price per
share equal to $100,000 plus an amount equal to dividends thereon
(whether or not earned or declared) accrued to and unpaid on the
date fixed for redemption. Shares of RP for which the Corporation
shall have given Notice of Redemption shall not be considered in
subsequent Remarketings and shares of RP the owners of which shall
have been given notice of redemption as set forth below shall not
be subject to transfer outside of a Remarketing.
(b) Subject to paragraph 4(c) of this Part I of these
Articles Supplementary, if fewer than all the outstanding shares
of RP are to be redeemed pursuant to this paragraph 4 of these
Articles Supplementary, the number of shares of RP to be so
redeemed shall be determined (and, if the Applicable Dividend Rate
for any outstanding shares of RP shall be the Penalty Rate, the
shares to be redeemed shall be selected pro rata among types of
Dividend Periods (except as hereinafter described) and by lot among
shares of the same type of Dividend Period) by the Corporation, and
the Corporation shall give a Notice of Redemption; provided that
no share of RP shall be redeemed on any Dividend Payment Date from
any Optional Dividend Period containing at least as many Dividend
Period Days as the then Minimum Holding Period at the time such
Optional Dividend Period was selected if a redemption at such time
would have the effect that a Holder who purchased such share in the
preceding Remarketing therefor would not satisfy the Minimum
Holding Period with respect thereto solely by reason of such
redemption. So long as the Applicable Dividend Rate for all
outstanding shares of RP shall not be the Penalty Rate, the Paying
Agent will first determine the number of shares to be redeemed pro
rata from each current Dividend Period, but with such adjustments
as the Paying Agent shall make in its sole discretion to allow for
redemption of whole shares of RP only. The Paying Agent shall give
to the Securities Depository and the Remarketing Agent a redemption
notice, which notice shall include the aggregate number of shares
of RP to be redeemed and the number of shares of RP to be redeemed
for each Dividend Period. The Securities Depository will then
determine by lot on a Dividend Period basis the number of shares
of RP to be redeemed from the account of each Agent Member (which
may include an Agent Member holding shares for its own account,
including the Remarketing Agent) and will notify the Paying Agent
and the Remarketing Agent of such determination by 10:00 a.m., New
York City time, on the second Business Day following the date on
which the Securities Depository receives the notice referred to in
the immediately preceding sentence. Upon receipt of such notice
from the Securities Depository, the Paying Agent will in turn
determine by lot the number of shares of RP from each Dividend
Period to be redeemed from the accounts of the Beneficial Owners
whose Agent Members have been selected. The Paying Agent may
determine that shares of RP will be redeemed from the accounts of
some Beneficial Owners without shares of RP being redeemed from the
accounts of other Beneficial Owners and shall give prompt notice
of such determination to the Remarketing Agent.
(c) Notwithstanding Paragraph 4(b) of this Part I of these
Articles Supplementary, if fewer than all the outstanding shares
of RP are to be redeemed pursuant to this paragraph 4 of these
Articles Supplementary and the Applicable Dividend Rate applicable
to any outstanding share of RP shall be the Penalty Rate, the
number of shares of RP to be redeemed shall be determined by the
Corporation and the shares to be redeemed shall be selected pro
rata from among types of Dividend Period (provided that no share
of RP shall be redeemed on any Dividend Payment Date from any
Optional Dividend Period containing at least as many Dividend
Period Days as the then Minimum Holding Period at the time such
Optional Dividend Period was selected if a redemption at such time
would have the effect that a Beneficial Owner who purchased such
share in the preceding Remarketing therefor would not satisfy the
Minimum Holding Period with respect thereto solely by reason of
such redemption) and by lot from among shares of the same type of
Dividend Period by the Corporation. The Corporation shall give a
Notice of Redemption which shall include the aggregate number of
shares to be redeemed and the specific shares selected to be
redeemed.
(d) Any Notice of Redemption with respect to a redemption
in whole or in part, pursuant to this paragraph 4 shall be given
by the Corporation to the Paying Agent, the Securities Depository
(and any other registered holder of shares of RP) and the
Remarketing Agent. In the case of a partial redemption, the
Remarketing Agent will, at the Corporation's expense, use
reasonable efforts to provide telephonic notice to each Beneficial
Owner of shares of RP called for redemption not later than the
close of business on the Business Day on which the Remarketing
Agent receives notice from the Paying Agent of its determination
of the shares to be redeemed (as described above) (or if the
Applicable Dividend Rate for all shares of RP shall be the Penalty
Rate, the Paying Agent shall give such telephonic notice not later
than the close of business on the Business Day immediately
following the day on which the Paying Agent receives Notice of
Redemption from the Corporation). In the case of a redemption in
whole, the Remarketing Agent (or the Paying Agent, if the
Applicable Dividend Rate with respect to any outstanding share of
RP shall be the Penalty Rate) will, at the Corporation's expense,
use its reasonable efforts to provide telephonic notice to each
Beneficial Owner, the Paying Agent and the Securities Depository
not later than the close of business on the Business Day
immediately following the day on which the Remarketing Agent
receives a Notice of Redemption from the Corporation. In any such
case, such telephonic notice shall be confirmed promptly in writing
not later than the close of business on the third Business Day
preceding the redemption date by notice sent by the Remarketing
Agent (or the Paying Agent, if the Applicable Dividend Rate with
respect to any outstanding share of RP shall be the Penalty Rate)
to each Beneficial Owner, the Paying Agent and the Securities
Depository of shares of RP called for redemption.
Every Notice of Redemption or other redemption notice shall
state: (i) the redemption date; (ii) the number of shares of
RP to be redeemed; (iii) the redemption price; and (iv) that
dividends on the shares of RP to be redeemed will cease to accrue
on such redemption date. In addition, notice of redemption given
to Beneficial Owners shall state the CUSIP number of the shares of
RP to be redeemed and the manner in which owners of such shares may
obtain payment of the redemption price. No defect in the Notice
of Redemption or other redemption notice or in the transmittal or
the mailing thereof shall affect the validity of the redemption
proceedings, except as required by applicable law. The Remarketing
Agent (or the Paying Agent, if the Applicable Dividend Rate with
respect to any outstanding share of RP shall be the Penalty Rate),
within two Business Days of the date of the Notice of Redemption,
will use its reasonable efforts to cause the publication of a
redemption notice in an Authorized Newspaper. The Corporation
shall pay the expenses incurred in providing the notices required
by this paragraph 4(d).
(e) On any redemption date, the Corporation shall deposit,
irrevocably in trust, in same-day funds, with the Paying Agent, by
12:00 noon New York City time, the price to be paid on such
redemption date of any share of RP plus an amount equal to
dividends thereon (whether or not earned or declared) accrued to
and unpaid through such redemption date.
(f) In connection with any redemption, upon the date of
deposit of the funds necessary for such redemption with the Paying
Agent and the giving of notice of redemption to the Beneficial
Owners of shares of RP so called for redemption, unless the
Corporation shall default in making payment of such redemption
price, all rights of the Holders of shares of RP so called for
redemption by requisite notice shall cease and terminate, except
the right of the Holders thereof to receive the redemption price
thereof, inclusive of an amount equal to dividends (whether or not
earned or declared) accrued to and unpaid through the redemption
date but without any interest, and such shares shall no longer be
deemed outstanding for any purposes. The Corporation shall be
entitled to receive, promptly after the date fixed for redemption,
any cash held by the Paying Agent in excess of the aggregate
redemption price of the shares of RP called for redemption on such
date. Any funds so deposited with the Paying Agent which are
unclaimed at the end of ninety days from such redemption date
shall, to the extent permitted by law, be repaid to the
Corporation, after which time the Holders of shares of RP so called
for redemption shall look only to the Corporation for payment
thereof. The Corporation shall be entitled to receive, from time
to time after the date fixed for redemption, any interest on the
funds so deposited.
(g) To the extent that any redemption for which Notice of
Redemption has been given is not made by reason of the absence of
legally available funds, such redemption shall be made as soon as
practicable to the extent such funds become available. Failure to
redeem shares of RP shall be deemed to exist at any time after the
date specified for redemption in a Notice of Redemption when the
Corporation shall have failed, for any reason whatsoever, to
deposit funds with the Paying Agent pursuant to paragraph 4(e) with
respect to any shares for which such Notice of Redemption has been
given. Notwithstanding the fact that the Corporation may not have
redeemed shares of RP for which Notice of Redemption has been
given, dividends may be declared and paid on shares of RP and shall
include those shares of RP for which Notice of Redemption has been
given.
(h) Notwithstanding the foregoing, (i) no share of RP
may be redeemed unless the full amount of cumulative dividends to
the date fixed for redemption for each such share of RP called for
redemption shall have been declared, and (ii) no share of RP may
be redeemed unless all outstanding shares of RP are simultaneously
redeemed, nor may any shares of RP be purchased or otherwise
acquired by the Corporation except in accordance with a purchase
offer made by the Corporation for all outstanding shares of RP,
unless in each such instance dividends on all outstanding shares
of RP to the end of the Dividend Period immediately preceding such
transaction (and, if such transaction is on a Dividend Payment
Date, for the Dividend Period ending on such Dividend Payment Date)
shall have been paid or declared and sufficient funds for the
payment thereof shall have been deposited with the Paying Agent.
(i) Except as set forth in this paragraph 4 with respect
to redemptions and subject to paragraph 4(h), nothing contained
herein shall limit any legal right of the Corporation or any
affiliate to purchase or otherwise acquire any shares of RP at any
price. Any shares of RP which have been redeemed, purchased or
otherwise acquired by the Corporation or any affiliate shall not
be reissued and the Corporation shall effect a retirement of such
shares; in no event shall such shares have any voting rights.
(j) Notwithstanding any of the foregoing provisions of
this paragraph 4, the Remarketing Agent may, in its sole
discretion, after consultation with the Corporation, modify the
procedures set forth above with respect to notification of
redemption provided any such modification does not adversely affect
the Holders of the shares of RP.
5. Liquidation. (a) Upon a liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or
involuntary, the Holders shall be entitled, whether from capital
or surplus, before any assets of the Corporation shall be
distributed among or paid over to holders of Common Stock or any
other class or series of stock of the Corporation junior to the RP
as to liquidation payments, to be paid in the amount of $100,000
per share of RP, plus an amount equal to all accrued and unpaid
dividends thereon (whether or not earned or declared) to and
including the date of final distribution. After any such payment,
the Holders shall not be entitled to any further participation in
any distribution of assets of the Corporation.
(b) If upon any such liquidation, dissolution or winding
up of the Corporation the assets of the Corporation shall be
insufficient to make such full payments to the Holders and the
holders of any preferred stock ranking as to liquidation,
dissolution or winding up, on a parity with the RP, then such
assets shall be distributed among the Holders ratably in accordance
with the respective amounts which would be payable on such shares
of RP or any other such preferred stock if all amounts thereon were
paid in full.
(c) Neither the sale, lease or exchange (for cash, shares
of stock, securities or other consideration) of all or
substantially all of the property and assets of the Corporation nor
the merger or consolidation of any other corporation into or with
the Corporation nor a reorganization of the Corporation, shall be
deemed to be a dissolution, liquidation or winding up of the
Corporation.
6. Voting Rights. (a) Holders of shares of RP shall have
no voting rights, either general or special except as expressly
required by applicable law, the Charter and as specified in this
paragraph 6.
(b) Whenever dividends on any shares of RP shall be in
arrears for such number of Dividend Periods which shall in the
aggregate contain not less than 540 days, then at the next annual
meeting of stockholders and at any annual meeting thereafter and
at any meeting called for the election of Directors, until all
dividends accumulated on the shares of RP have been paid or
declared and a sum sufficient for payment has been set aside, the
Holders of the shares of RP either alone or together with the
holders of one or more other cumulative series of the Preferred
Stock at the time outstanding which are granted such voting rights,
voting as a class, shall be entitled, to the exclusion of the
holders of one or more other series or classes of stock having
general voting rights, to vote for and elect two members of the
Board of Directors of the Corporation, and the holders of Common
Stock together with the holders of any series or class or classes
of stock of the Corporation having general voting rights and not
then entitled to elect two members of the Board of Directors
pursuant to this paragraph 6 to the exclusion of the holders of all
series then so entitled, shall be entitled to vote and elect the
balance of the Board of Directors. In such case the Board of
Directors of the Corporation shall, as of the date of the annual
meeting of stockholders aforesaid, be increased by two Directors.
The rights of Holders of shares of RP of any series to participate
(either alone or together with the holders of one or more other
cumulative series of Preferred Stock at the time outstanding which
are granted such voting rights) in the exclusive election of two
members of the Board of Directors of the Corporation pursuant to
this paragraph 6 shall continue in effect until cumulative
dividends have been paid in full or declared and set apart for
payment on the shares of RP. At elections for such Directors, each
Holder of shares of RP shall be entitled to 2,000 votes for each
share held. The Holders of shares of RP shall have no right to
cumulate such shares in voting for the election of Directors. At
the annual meeting of stockholders next following the termination
(by reason of the payment of all accumulated and defaulted
dividends on such stock or provision for the payment thereof by
declaration and setting apart thereof) of the exclusive voting
power pursuant to this paragraph 6 of the Holders of shares of RP
and the holders of all other cumulative series which shall have
been entitled to vote for and elect such two members of the Board
of Directors of the Corporation, the terms of office of all persons
who may have been elected Directors of the Corporation by vote of
such holders shall terminate and the two vacancies created pursuant
to this Paragraph 6 to accommodate the exclusive right of election
conferred hereunder shall thereupon be eliminated, and the Board
of Directors shall be decreased by two Directors.
(c) So long as any shares of RP remain outstanding, the
affirmative vote of the Holders of at least two-thirds of the votes
of the shares of RP outstanding at the time given in person or by
proxy, 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:
(i) The authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class
or series of stock (including any class or series of
Preferred Stock) ranking prior (as that term is
below in this paragraph 6) to such shares of RP, or
(ii) The authorization, creation or issuance, or
any increase in the authorized or issued amount, of any
class or series of stock (including any class or series
of Preferred Stock) which ranks on a parity with the
shares of RP unless the Articles Supplementary or other
provisions of the charter creating or authorizing such
class or series shall provide that if in any case the
stated dividends or amounts payable on liquidation are
not paid in full on such shares of RP and all outstanding
shares of stock ranking on a parity (as that term is
defined below in this paragraph 6) with s
RP (such shares of RP and all such other stock being
herein called "Parity Stock"), the shares of all Par
Stock shall share ratably in the payment of dividends,
including accumulations (if any) in accordance with the
sums which would be payable on all Parity Stock if all
dividends in respect of all shares of Parity Stock were
paid in full, and on any distribution of assets upon
liquidation ratably in accordance with the sums which
would be payable in respect of all shares of Parity Stock
if all sums payable were discharged in full,
(iii) The amendment, alteration or repeal, whether
by merger, consolidation or otherwise, of any of the
provisions of the charter of the Corporation including
these Articles Supplementary which would materially and
adversely affect any right, preference, privilege or
voting power of such shares of RP or of the Holders
thereof; provided, however, that any increase in the
amount of authorized Preferred Stock or Cumulative
Preferred Stock, Floating Rate Series B Stock, the Series
A and Series B Dutch Auction Rate Transferable
SecuritiesTM Preferred Stock, the MMP or the RP or the
creation and issuance of other series of Preferred Stock
including RP, in each case ranking on a parity with or
junior to the shares of RP with respect to the payment
of dividends and the distribution of assets upon
liquidation, shall not be deemed to affect materially and
adversely such rights, preferences, privileges or voting
powers.
The foregoing voting provisions shall not apply as to
any shares of RP if, at or prior to the time when the act with
respect to which such vote would otherwise be required shall be
effected, all outstanding shares of RP shall have been redeemed or
sufficient funds shall have been deposited in trust in accordance
with Part I, paragraph 4 to effect such redemption.
Any class or classes of stock of the Corporation shall
be deemed to rank
(i) prior to the shares of RP as to dividends or as
to distribution of assets if the 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
the shares of RP; and
(ii) on a parity with the shares of RP as to
dividends or as to distribution of assets, whether or not the
dividend rates, dividend payment dates, or redemption or
liquidation prices per share thereof be different from the
shares of RP, if the holders of such class of stock and the
shares of RP 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 dividend rates or liquidation prices, without
preference or priority one over the other.
In connection with the exercise of the voting rights
contained in this paragraph 6(c), each Holder of the shares of RP
shall have 2,000 votes for each share of stock held.
(d) So long as any shares of RP remain outstanding, the
Corporation shall not, without the affirmative vote of the holders
of at least a majority of the votes of all Parity Stock entitled
to vote outstanding at the time, given in person or by proxy, by
resolution adopted at a meeting at which the Holders of shares of
RP (alone or together with the holders of one or more other series
of Parity Stock at the time outstanding and entitled to vote) vote
separately as a class, (a) directly or indirectly, sell, transfer
or otherwise dispose of, or permit Republic National Bank of New
York (the "Bank") or any other subsidiary of the Corporation, to
issue, sell, transfer or otherwise dispose of any shares of voting
stock of the Bank, or securities convertible into or options,
warrants or rights to acquire voting stock of the Bank, unless
after giving effect to any such transaction the Bank remains a
Controlled Subsidiary (as hereinafter defined) of the Corporation
or of a Qualified Successor Company (hereinafter defined); (b)
merge or consolidate with, or convey substantially all of its
assets to any person or corporation unless the entity surviving
such merger or consolidation or the transferee of such assets is
the Corporation or a Qualified Successor Company; or (c) permit
the Bank to merge, consolidate with, or convey substantially all
of its assets to any person or corporation unless the entity
surviving such merger or consolidation or the transferee of such
assets is a Controlled Subsidiary of the Corporation or of a
Qualified Successor Company, except in any of the foregoing cases
as required to comply with applicable law, including, without
limitation, any court or regulatory order. The term "Qualified
Successor Company" shall mean a corporation (or other similar
organization or entity whether organized under or pursuant to the
laws of the United States or any state thereof or of another
jurisdiction) which (i) is or is required to be a registered bank
holding company under the United States Bank Holding Company Act
of 1956, as amended, or any successor legislation, (ii) issues
to the holders of RP in exchange for the RP shares of preferred
stock having at least the same relative rights and preferences as
the RP (the "Exchanged Stock"), (iii) immediately after such
transaction has not outstanding or authorized any class of stock
or equity securities ranking prior to the Exchanged Stock with
respect to the payment of dividends or the distribution of assets
upon liquidation, and (iv) holds, as a Controlled Subsidiary or
Subsidiaries, either the Bank or one or more other banking
corporations which, collectively, immediately after such
transaction hold substantially all of the assets and liabilities
which the Bank held immediately prior to such transaction (which
may be in addition to other assets and liabilities acquired in such
transaction). "Controlled Subsidiary" shall mean any corporation
at least 80% of the outstanding shares of voting stock of which
shall at the time be owned directly or indirectly by the
Corporation or a Qualified Successor Company. In connection with
the exercise of the voting rights contained in this paragraph 6(d),
holders of all series of Parity Stock which are granted such voting
rights shall vote as a class, and each Holder of RP shall have
2,000 votes for each share of stock held, and each other series
shall have such number of votes, if any, for each share of stock
held as may be granted them.
The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote
would otherwise be required shall be effected, all outstanding
shares of the RP shall have been redeemed or sufficient funds shall
have been deposited in trust in accordance with Part I, paragraph
4 to effect such redemption.
7. Exclusion of Other Rights. Unless otherwise required
by law, shares of RP shall not have any rights, including
preemptive rights, or references other than those specifically set
forth herein or as provided by applicable law.
8. Notice. All notices or communications unless otherwise
specified in the Bylaws of the Corporation or these Articles
Supplementary shall be sufficiently given if in writing and
delivered in person or mailed by first-class mail, postage prepaid.
Notice shall be deemed given on the earlier of the date received
or the date such notice is mailed.
PART II
REMARKETING PROCEDURES
1. Remarketing Schedule. A Remarketing with respect to
shares of RP subject to Tender and Dividend Reset for each Dividend
Period after the Initial Dividend Period shall be held over a
three-day (in each case a "normal remarketing day") period
consisting of the Tender Date (normally a Tuesday), the Dividend
Reset Date (normally a Wednesday) and the Settlement Date (normally
a Thursday) except that (i) if Tuesday is not a Business Day,
Monday shall be the Tender Date, Wednesday shall be the Dividend
Reset Date and Thursday shall be the Settlement Date; (ii) if
Wednesday is not a Business Day, Monday shall be the Tender Date,
Tuesday shall be the Dividend Reset Date and Thursday shall be the
Settlement Date; (iii) if Thursday is not a Business Day, the
preceding Friday shall be the Tender Date, the next following
Monday shall be the Dividend Reset Date and the Tuesday following
such Monday shall be the Settlement Date; and (iv) if Friday is
not a Business Day, Monday shall be the Tender Date, Tuesday shall
be the Dividend Reset Date and Wednesday shall be the Settlement
Date. If there are fewer than four Business Days in any seven-
day period which commences on a Tender Date such that none of the
foregoing clauses can be given effect such that Beneficial Owners
of RP whose shares have been sold in a Remarketing will receive
same-day funds for the purchase price thereof the day following the
Settlement Date (because the Tender Date, the Dividend Reset Date
or the Settlement Date would fall on a day which is not a Business
Day), the Remarketing Agent shall in its sole discretion adjust the
remarketing schedule as appropriate to complete such Remarketing.
Although any particular Tender Date, Dividend Reset Date and
Settlement Date may not occur on the originally scheduled normal
remarketing day because of the exceptions stated above, the next
succeeding Tender Date, Dividend Reset Date and Settlement Date
shall be, subject to the above listed exceptions, the originally
designated normal remarketing day.
2. Procedure for Tendering. (a) A share of RP is subject
to Tender and Dividend Reset only at the end of the current
Dividend Period applicable to such share and may be tendered in a
Remarketing only on the Tender Date immediately prior to the end
of such Dividend Period. By 12:00 noon, New York City time, on the
Tender Date, the Remarketing Agent shall, after canvassing the
market and considering prevailing market conditions at the time for
shares of RP and similar securities, provide Beneficial Owners, by
telephone, telex, or otherwise, non-binding indications of
Applicable Dividend Rates for the next succeeding 7-day Dividend
Period, 49-day Dividend Period and any Optional Dividend Period or
Periods. The actual Applicable Dividend Rates for such Dividend
Periods may be greater or less than the rates indicated in such
non-binding indications (but not greater than the applicable
Maximum Dividend Rate). By 1:00 p.m., New York City time, on such
Tender Date, each Beneficial Owner of shares of RP subject to
Tender and Dividend Reset must notify the Remarketing Agent of its
desire, on a share-by-share basis, to either tender such share of
RP at a price of $100,000 per share or to continue to hold such
share of RP and elect a 7-day Dividend Period, a 49-day Dividend
Period or an Optional Dividend Period, if any, at the new
Applicable Dividend Rate for the selected Dividend Period. Any
such notice shall be irrevocable, which irrevocability may not be
waived by the Remarketing Agent except that prior to 4:00 p.m., New
York City time, on the Dividend Reset Date, the Remarketing Agent
may, in its sole discretion (i) at the request of a Tendering
Beneficial Owner waive any such Beneficial Owner's tender and
thereby enable such Beneficial Owner to continue to hold the share
or shares in question for a 7-day, 49-day or available Optional
Dividend Period as agreed to by the Beneficial Owner and the
Remarketing Agent so long as such tendering Beneficial Owner has
indicated that it would accept the new Applicable Dividend Rate
determined in the current Remarketing for such Dividend Period and
(ii) at the request of a Beneficial Owner that has elected to hold
its shares of RP, waive such Beneficial Owner's election, but only
with respect to the type of the Dividend Period selected.
(b) The right of each Beneficial Owner to tender shares
of RP is limited to the extent that (i) the Remarketing Agent
conducts a Remarketing pursuant to the terms of the Remarketing
Agreement, (ii) shares tendered have not been called for
redemption, and (iii) the Remarketing Agent is able to find a
purchaser or purchasers on a share-by-share basis for tendered
shares of RP at an Applicable Dividend Rate for the applicable
Dividend Period or Periods that is not in excess of the applicable
Maximum Dividend Rate or Rates.
(c) Any share of RP which is not tendered by the
Beneficial Owner thereof for any reason (other than because there
is no Remarketing Agent or because the Remarketing Agent is not
required to conduct a Remarketing pursuant to the terms of the
Remarketing Agreement) according to the Remarketing provisions
provided for in this Part II and with respect to which no notice
to hold pursuant to paragraph 2(a) of this Part II has been given
will automatically accrue dividends at the new Applicable Dividend
Rate for a Dividend Period of the same type as the prior Dividend
Period for such share, except a 49-Day Dividend Period shall apply
if the prior Dividend Period was the Initial Dividend Period and
will be subject to Tender and Dividend Reset at the end of such new
Dividend Period. However, in the event that such prior Dividend
Period was an Optional Dividend Period of more than 98 days and if
the Remarketing Agent is unable to remarket on the applicable
Dividend Reset Date all shares of RP tendered to it in the relevant
Remarketing at a price of $100,000 per share, then such new
Dividend Period for such holder's shares shall be a 7-day Dividend
Period and such new Applicable Dividend Rate will be the applicable
Maximum Dividend Rate for a 7-day Dividend Period.
3. Determination of Applicable Dividend Rate. (a)
Between 1:00 p.m., New York City time, on the Tender Date and 4:00
p.m., New York City time, on the Dividend Reset Date, the
Remarketing Agent will determine (i) the allocation of tendered
shares of RP among a 7-day Dividend Period, a 49-day Dividend
Period and any available Optional Dividend Period (except as
provided in paragraph 4(a) of this Part II), and (ii) the
Applicable Dividend Rates to the nearest one-thousandth (0.001) of
one percent per annum for the next 7-day Dividend Period, 49-day
Dividend Period and available Optional Dividend Period, if any,
respectively. The Applicable Dividend Rate for each such Dividend
Period will be the dividend rate which the Remarketing Agent
determines, in its sole judgment, to be the lowest rate, giving
effect to such allocation, that would enable it to remarket on
behalf of the Beneficial Owners thereof all shares of RP tendered
to it at a price of $100,000 per share.
(b) If no Applicable Dividend Rate shall have been set in
any Remarketing for a 7-day Dividend Period or 49-day Dividend
Period, or any Optional Dividend Period or for any or all such
periods, for any reason (other than because there is no Remarketing
Agent or because the Remarketing Agent is not required to conduct
a Remarketing pursuant to the terms of the Remarketing Agreement)
the Remarketing Agent, in its sole discretion, will, after taking
into account market conditions as reflected in the prevailing
yields on fixed and variable rate taxable and tax exempt debt
securities and the prevailing dividend yields of fixed and variable
rate preferred stock, determine the Applicable Dividend Rate or
Rates for such Dividend Period or Periods which would be an initial
dividend rate fixed in an offering on such Dividend Reset Date,
assuming a comparable dividend period, issuer and security. If
there is no Remarketing Agent or if the Remarketing Agent is not
required to conduct a Remarketing pursuant to the Remarketing
Agreement, the Applicable Dividend Rate for each subsequent
Dividend Period for which no Remarketing takes place because of the
foregoing will be the applicable Maximum Dividend Rate for a 7-
day Dividend Period and the next succeeding Dividend Period will
be a 7-day Dividend Period.
(c) In determining such Applicable Dividend Rate or Rates,
and making such allocation, the Remarketing Agent will, after
taking into account market conditions as reflected in the
prevailing yields on fixed and variable rate taxable and tax-
exempt debt securities and the prevailing dividend yields on fixed
and variable rate preferred stocks in providing non-binding
indications of the Applicable Dividend Rates to Beneficial Owners
and potential purchasers of shares of RP (i) consider the number
of shares of RP tendered and the number of shares of RP potential
purchasers are willing to purchase and (ii) contact directly by
telephone or otherwise and ascertain from current and potential
Beneficial Owners of shares of RP the dividend rates at which they
would be willing to hold shares of RP.
(d) The Applicable Dividend Rates, as well as the
allocation of tendered shares of RP, shall be determined by the
Remarketing Agent in its sole discretion (except as otherwise
provided in these Articles Supplementary with respect to Applicable
Dividend Rates that shall be the Penalty Rate and Maximum Dividend
Rates) and shall be conclusive and binding on Beneficial Owners.
(e) As a condition precedent to purchasing shares of RP,
in any Remarketing or outside of any Remarketing, each purchaser
of shares of RP shall sign and deliver, as provided therein, a copy
of a Purchaser's Letter; the sufficiency of such Purchaser's Letter
shall be determined by the Remarketing Agent, in its sole
discretion.
(f) The Applicable Dividend Rate for any Dividend Period
shall not be more than the applicable Maximum Dividend Rate.
4. Allocation of Shares; Failure to Remarket at $100,000
Per Share. (a) If the Remarketing Agent is unable to remarket by
4:00 p.m., New York City time, on a Dividend Reset Date all shares
of RP tendered to it in a Remarketing at a price of $100,000 per
share, (i) each Beneficial Owner that tendered shares of RP for
sale shall sell a number of shares of RP on a pro rata basis, to
the extent practicable, or by lot, as determined by the Remarketing
Agent in its sole discretion based on the number of orders to
purchase shares of RP in such Remarketing; (ii) the next Dividend
Period for all tendered but unsold shares and for all other shares
the Beneficial Owners of which shall have elected or been deemed
to have elected to hold such shares for a Dividend Period of more
than 98 days shall be a 7-day Dividend Period; and (iii) the
Applicable Dividend Rates for the next 7-day Dividend Period
(including the 7-day Dividend Period referred to in the preceding
clause (ii)), next 49-day Dividend Period and, if applicable, next
Optional Dividend Period or Periods of 98 days or fewer will be the
applicable Maximum Dividend Rate for such Dividend Period.
(b) If the allocation procedures described above would
result in the sale of a faction of a share of RP, the Remarketing
Agent shall, in its sole discretion, round up or down the number
of shares of RP on such Dividend Reset Date so that each share sold
by a Beneficial Owner shall be a whole share of RP and the total
number of shares sold equals the total number of shares bought on
such Dividend Reset Date.
5. Notification of Results; Settlement. (a) By
approximately 4:30 p.m., New York City time, on each Dividend Reset
Date, by telephone, telex or otherwise, the Remarketing Agent will
advise (i) each Beneficial Owner (or the Agent Member thereof who
in turn will advise such Beneficial Owner) of shares of RP that
submitted a notice of intent to tender shares of RP in the related
Remarketing whether such tender was accepted in whole or in part
and to give instructions to its Agent Member to deliver those
shares of RP for which the tender was accepted, by book entry
against payment therefor to the Paying Agent through the Securities
Depository, by 8:30 a.m., New York City time on the related
Settlement Date and (ii) each purchaser (or the Agent Member
thereof who in turn will advise such purchaser) purchasing shares
of RP as a result of the related Remarketing, to give instructions
to its Agent Member to pay the purchase price to the Remarketing
Agent, against delivery of such shares, by book entry through the
Securities Depository, by 8:30 a.m., New York City time on the
related Settlement Date. The Paying Agent may return any shares
of RP delivered to the Paying Agent after 8:30 a.m. New York City
time on the Settlement Date for redelivery to the extent
practicable on the same or on the following day. The Paying Agent
shall deliver to the Remarketing Agent against receipt of payment,
through the Securities Depository, all shares of RP received by the
Paying Agent as provided herein.
(b) The Remarketing Agent also will (i) advise each
purchaser (or its Agent Member) that is to purchase shares of RP
as a result of the Remarketing of the amount that it will be
required, by 8:30 a.m., New York City time, on the Settlement Date,
to pay against delivery by book entry of the shares of RP to be
purchased, (ii) advise each Beneficial Owner (or its Agent
Member) that is to sell shares of RP as a result of the Remarketing
of the number of shares of RP that it will be required to deliver
by 8:30 a.m., New York City time, on the Settlement Date by book
entry against payment therefor, (iii) advise, upon request to the
Remarketing Agent, each existing Beneficial Owner of shares of RP
who will continue to hold shares of RP and each purchaser of shares
of RP of the Applicable Dividend Rates for the next Dividend
Periods, (iv) advise each existing Beneficial Owner (or its Agent
Member) who has elected to hold shares and has elected to change
the type of the Dividend Period with respect to such shares, to
deliver by 8:30 a.m., New York City time, on the Settlement Date
by book entry such shares "free" to the Paying Agent through the
Securities Depository to effectuate such change, (v) if the
Remarketing Agent is unable to remarket by 4:00 p.m., New York City
time, on a Dividend Reset Date all shares of RP tendered to it in
a Remarketing at a price of $100,000 per share, advise the
Beneficial Owners of all tendered but unsold shares and the
Beneficial Owners which shall have elected, or been deemed to have
elected, to hold shares for an Optional Dividend Period of more
than 98 days, to deliver such shares by 8:30 a.m., New York City
time, on the Settlement Date, by book entry "free" to the Paying
Agent through the Securities Depository to effectuate a conversion
to a 7-day Dividend Period, and (vi) advise the Paying Agent, by
4:30 p.m., New York City time, on each Dividend Reset Date, of the
Applicable Dividend Rate or Rates determined in the related
Remarketing, of the number of shares of RP to which such Applicable
Dividend Rate or Rates apply, of the shares of RP sold and
purchased in such Remarketing and of the selling and purchasing
Beneficial Owners and the Beneficial Owners who have elected to
change the length of the Dividend Period with respect to their
shares of RP and of the number of shares affected thereby.
(c) In accordance with the Securities Depository's normal
procedures, on the Settlement Date, the transactions described
above will be executed through the Securities Depository, as
authorized in accordance with paragraph 5(b) of this Part II, and
the accounts of the respective Agent Members at the Securities
Depository will be debited and credited and shares delivered by
book entry as necessary to effect the purchases and sales of shares
of RP or the change in length of Dividend Period as determined in
the Remarketing. Purchasers of shares of RP will make payment
through their Agent Members in New York Clearing House funds to the
Securities Depository against delivery through their Agent Members.
The Securities Depository will make payment in accordance with its
normal procedures, which now provide for payment in New York
Clearing House funds, provided that if the procedures of the
Securities Depository shall be changed to provide for payment in
same-day funds, then purchasers will make payment in same-day
funds.
(d) If any Beneficial Owner selling shares of RP in a
Remarketing fails to deliver such shares, the Agent Member of such
selling Beneficial Owner and of any other person that was to have
purchased shares of RP in such Remarketing may deliver to any such
other person a number of whole shares of RP that is less than the
number of shares that otherwise was to be purchased by such person.
In such event, the number of shares of RP to be so delivered shall
be determined by such Agent Member who shall give the Remarketing
Agent and the Paying Agent notice of such number. Delivery of such
lesser number of shares of RP shall constitute good delivery.
(e) The Remarketing Agent, Paying Agent and Securities
Depository will each use their reasonable commercial efforts to
meet the timing requirements set forth in paragraphs (a) and (b)
above; provided however, that in the event that there is a delay
in the occurrence of any delivery or other event connected with a
Remarketing, the Remarketing Agent, Paying Agent and Securities
Depository will each use their reasonable commercial efforts to
accommodate such delay in furtherance of the Remarketing.
(f) Notwithstanding any of the foregoing provisions of
this paragraph 5, the Remarketing Agent may, in its sole
discretion, after consultation with the Corporation, modify the
procedures set forth above with respect to settlement, provided any
such modification does not adversely affect the Holders of RP or
the Corporation; provided further that any such modification shall
not increase the obligations of the Paying Agent without the prior
consent of the Paying Agent.
6. Purchase of Shares of RP by Remarketing Agent. The
Remarketing Agent may purchase for its own account shares of RP in
a Remarketing, provided that it purchases all shares of RP not sold
in a Remarketing to other purchasers and that the Applicable
Dividend Rate or Rates set with respect to such shares in the
Remarketing are no higher than the Applicable Dividend Rate or
Rates that would have been set if the Remarketing Agent had not
purchased such shares. Notwithstanding the foregoing, the
Remarketing Agent is not obligated to purchase any shares of RP
that would otherwise remain unsold in a Remarketing. If the
Remarketing Agent owns any shares of RP immediately prior to a
Remarketing and if all other shares tendered for sale by other
Beneficial Owners of shares of RP have been sold in such
Remarketing, then the Remarketing Agent may sell such number of its
shares in such Remarketing as there are outstanding orders to
purchase. Neither the Corporation nor the Remarketing Agent is
obligated in any case to provide funds to make payment to a
Beneficial Owner upon such Beneficial Owner's tender of its shares
of RP for Remarketing.
7. Applicable Dividend Rate as the Penalty Rate. If the
Applicable Dividend Rate with respect to any share of RP shall be
the Penalty Rate, paragraphs 1, 2, 3, 4, 5 and 6 of this Part II
shall no longer be applicable to any of the shares of RP and the
shares of RP shall not be subject to Tender and Dividend Reset.
8. Transfers. So long as the Applicable Dividend Rate
applicable to any share of RP is not the Penalty Rate, shares of
RP may be sold, transferred or otherwise disposed of, either in a
Remarketing or otherwise, only to a person that has delivered a
signed copy of a Purchaser's Letter addressed to the Corporation,
the Remarketing Agent, the Paying Agent and the Agent Member and
to be delivered as provided in such Purchaser's Letter, provided
that, in the case of all transfers other than pursuant to
Remarketings, as a condition to such transfer, the Agent Member of
the transferee and of the transferor advise the Paying Agent and
the Remarketing Agent of such transfer.
9. Miscellaneous. The Board of Directors of the
Corporation may interpret or adjust the provisions of these
Articles Supplementary to resolve any inconsistency or ambiguity,
remedy any formal defect or make any other change or modification
which does not adversely affect the rights of Beneficial Owners of
shares of RP and if such inconsistency or ambiguity reflects an
incorrect provision hereof the Board of Directors may authorize
the filing of a Certificate of Correction.
10. Securities Depository; Stock Certificates. (a) The
Depository Trust Company will initially act as Securities
Depository for the Agent Members with respect to shares of RP. In
accordance with applicable law, on the Date of Original Issue an
appropriate number of certificates for all of the shares of RP will
be registered in the name of Cede, as nominee of the Securities
Depository. Such certificates will bear a legend to the effect
that such certificates are issued subject to the provisions
contained in these Articles Supplementary and each Purchaser's
Letter. The Corporation will also issue stop-transfer instructions
to the Paying Agent for the shares of RP. Except as provided in
paragraphs (b) and (c) below, Cede will be the Holder, and no
Beneficial Owner shall receive certificates representing its
ownership interest in such shares.
(b) If DTC shall cease acting as Securities Depository,
the Paying Agent and the Corporation shall, at the Corporation's
option, either (i) arrange for another securities depository to
maintain custody of the certificates evidencing the shares of RP
or (ii) cause the Corporation to issue one or more new
certificates registered in the names of the Beneficial Owners or
their nominees.
(c) If the Applicable Dividend Rate applicable to all
shares of RP shall be the Penalty Rate, the Corporation shall issue
one or more new certificates with respect to such shares (without
the legend referred to in paragraph 10(a) of this Part II)
registered in the names of the Beneficial Owners or their nominees
and shall rescind the stop-transfer instruction referred to in
paragraph 10(a) of this Part II with respect to such shares.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
presents to be signed in its name and on its behalf by its
President and its corporate seal to be hereunto affixed and
attested by its Secretary, and the said officers of the Corporation
further acknowledged said instrument to be the corporate act of the
Corporation and stated under the penalties of perjury that to the
best of their knowledge, information and belief the matters and
facts therein set forth with respect to approval are true in all
material respects, all on July 28, 1987.
REPUBLIC NEW YORK CORPORATION
By /s/ Jeffrey C. Keil
Jeffrey C. Keil
(President)
Attest:
/s/ William F. Rosenblum, Jr.
William F. Rosenblum, Jr.
(Secretary)
Exhibit A
TO BE SUBMITTED TO YOUR BROKER-DEALER WHO WILL THEN DELIVER
COPIES ON YOUR BEHALF TO THE RESPECTIVE TRUST COMPANY
MASTER PURCHASER'S LETTER
Relating to Securities Involving Rate Settings
Through Auctions or Remarketings
THE COMPANY
THE REMARKETING AGENT
THE TRUST COMPANY
A BROKER-DEALER
AN AGENT MEMBER
OTHER PERSONS
Dear Sirs:
1. This letter is designed to apply to publicly or privately
offered debt or equity securities ("Securities") of any issuer
("Company") which are described in any final prospectus or other
offering materials relating to such Securities as the same may be
amended or supplemented (collectively, with respect to the
particular Securities concerned, the "Prospectus") and which
involve periodic rate settings through auctions ("Auctions") or
remarketing procedures ("Remarketings"). This letter shall be for
the benefit of any Company and of any trust company, auction agent,
paying agent, (collectively, "trust company"), remarketing agent,
broker-dealer, agent member, securities depository or other
interested person in connection with any Securities and related
Auctions or Remarketings (it being understood that such persons may
be required to execute specified agreements and nothing herein
shall alter such requirements). The terminology used herein is
intended to be general in its application and not to exclude any
Securities in respect of which (in the Prospectus or otherwise)
alternative terminology is used.
2. We may from time to time offer to purchase, purchase, offer to sell
and/or sell Securities of any Company as described in the letter shall apply
to all such purchases, sales and offers and to Securities owned by us. We
understand that the dividend/interest rate on Securities may be
based from time to time on the results of Auctions or Remarketings
as set forth in the Prospectus.
3. We agree that any bid or sell order placed by us in an
Auction or a Remarketing shall constitute an irrevocable offer
(except as otherwise described in the Prospectus) by us to purchase
or sell the Securities subject to such bid or sell order, or such
lesser amount of Securities as we shall be required to sell or
purchase as a result of such Auction or Remarketing, at the
applicable price, all as set forth in the Prospectus, and that if
we fail to place a bid or sell order with respect to Securities
owned by us with a broker-dealer on any Auction or Remarketing
date, or a broker-dealer to which we communicate a bid or sell
order fails to submit such bid or sell order to the trust company
or remarketing agent concerned, we shall be deemed to have placed
a hold order with respect to such Securities as described in the
Prospectus. We authorize any broker-dealer that submits a bid or
sell order as our agent in Auctions or Remarketings to execute
contracts for the sale of Securities covered by such bid or sell
order. We recognize that the payment by such broker-dealer for
Securities purchased on our behalf shall not relieve us of any
liability to such broker-dealer for payment for such Securities.
4. We understand that in a Remarketing, the dividend or
interest rate or rates on the Securities and the allocation of
Securities tendered for sale between dividend or interest periods
of different lengths will be based from time to time on the
determinations of one or more remarketing agents, and we agree to
be conclusively bound by such determinations. We further agree to
the payment of different dividend or interest rates to different
holders of Securities depending on the length of the dividend or
interest period elected by such holders. We agree that any notice
given by us to a remarketing agent (or to a broker-dealer for
transmission to a remarketing agent) of our desire to tender
Securities in a Remarketing shall constitute an irrevocable (except
to the limited extend set forth in the Prospectus) offer by us to
sell the Securities specified in such notice, or such lesser number
of Securities as we shall be required to sell as a result of such
Remarketing, in accordance with the terms set forth in the
Prospectus, and we authorize the remarketing agent to sell,
transfer or otherwise dispose of such Securities as set forth in
the Prospectus.
5. We agree that, during the applicable period as described
in the Prospectus, dispositions of Securities can be made only in
the denominations set forth in the Prospectus and we will sell,
transfer or otherwise dispose of any Securities held by us from
time to time only pursuant to a bid or sell order placed in an
Auction, in a Remarketing, to or through a broker-dealer or, when
permitted in the Prospectus, to a person that has signed and
delivered to the applicable trust company or a remarketing agent
a letter substantially in the form of this letter (or other
applicable purchaser's letter), provided that in the case of all
transfers other than pursuant to Auctions or Remarketings we or our
broker-dealer or our agent member shall advise such trust company
or a remarketing agent of such transfer. We understand that a
restrictive legend will be placed on certificates representing the
Securities and stop-transfer instructions will be issued to the
transfer agent and/or registrar, all as set forth in the
Prospectus.
6. We agree that, during the applicable period as described
in the Prospectus, ownership of Securities shall be represented by
one or more global certificates registered in the name of the
applicable securities depository or its nominee, that we will not
be entitled to receive any certificate representing the Securities
and that our ownership of any Securities will be maintained in book
entry form by the securities depository for the account of our
agent member, which in turn will maintain records of our beneficial
ownership. We authorize and instruct our agent member to disclose
to the applicable trust company or remarketing agent such
information concerning our beneficial ownership of Securities as
such trust company or remarketing agent shall request.
7. We acknowledge that partial deliveries of Securities
purchased in Auctions or Remarketings may be made to us and such
deliveries shall constitute good delivery as set forth in the
Prospectus.
8. This letter is not a commitment by us to purchase any
Securities.
9. This letter supersedes any prior-dated version of this
master purchaser's letter, and supplements any prior- or post-
dated purchaser's letter specific to particular Securities, and
this letter may only be revoked by a signed writing delivered to
the original recipients hereof.
10. The descriptions of Auction or Remarketing procedures set
forth in each applicable Prospectus are incorporated by reference
herein and in case of any conflict between this letter, any
purchaser's letter specific to particular Securities and any such
description, such description shall control.
11. Any xerographic or other copy of this letter shall be
deemed of equal effect as a signed original.
12. Our agent member of the Depository Trust Company currently
is .
13. Our personnel authorized to place orders with broker-
dealers for the purpose set forth in the Prospectus in Auctions or
Remarketings currently is/are , telephone number
( ) .
14. Our taxpayer identification number is .
15. In the case of each offer to purchase, purchase, offer to
sell or sale by us of Securities not registered under the
Securities Act of 1933, as amended (the "Act"), we represent and
agree as follows:
A. We understand and expressly acknowledge that the
Securities have not been and will not be registered under the
Act and, accordingly, that the Securities may not be
reoffered, resold or otherwise pledged, hypothecated or
transferred unless an applicable exemption from the
registration requirements of the Act is available.
B. We hereby confirm that any purchase of Securities made
by us will be for our own account, or for the account of one
or more parties for which we are acting as trustee or agent
with complete investment discretion and with authority to bind
such parties, and not with a view to any public resale or
distribution thereof. We and each other party for which we
are acting which will acquire Securities will be "accredited
investors" within the meaning of Regulation D under the Act
with respect to the Securities to be purchased by us or such
party, as the case may be, will have previously invested in
similar types of instruments and will be able and prepared to
bear the economic risk of investing in and holding such
Securities.
C. We acknowledge that prior to purchasing any Securities
we shall have received a Prospectus (or private placement
memorandum) with respect thereto and acknowledge that we will
have had access to such financial and other information, and
have been afforded the opportunity to ask such questions of
representatives of the Company and receive answers thereto,
as we deem necessary in connection with our decision to
purchase Securities.
D. We recognize that the Company and broker-dealers will
rely upon the truth and accuracy of the foregoing investment
representations and agreements, and we agree that each of our
purchases of Securities now or in the future shall be deemed
to constitute our concurrence in all of the foregoing which
shall be binding on us and each party for which we are acting
as set forth in Subparagraph B above.
Dated:
Mailing Address of Purchaser (Name of Purchaser)
By:
Printed Name:
Title:
REPUBLIC NEW YORK CORPORATION
ARTICLES SUPPLEMENTARY
REPUBLIC NEW YORK CORPORATION, a Maryland corporation having its
principal Maryland office in the City of Baltimore, State of
Maryland (hereinafter called the "Corporation"), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article FIFTH of the Charter of the
Corporation, the Board of Directors has authorized the
classification of up to 4,000,000 of the 15,000,000 shares of
Preferred Stock (the "Preferred Stock") which the Corporation now
has authority to issue into a series designated $3.375 Cumulative
Convertible Preferred Stock and has provided for the issuance of
such series.
SECOND: The number of shares and terms of the $3.375 Cumulative
Convertible Preferred Stock as set by the Finance Committee of the
Board of Directors pursuant to authority duly delegated by the
Board of Directors are as follows:
1. $3.375 Cumulative Convertible Preferred Stock.
4,000,000 shares of Preferred Stock of the Corporation, without par
value, are hereby constituted as the original number of shares of
a series of Preferred Stock designated as $3.375 Cumulative
Convertible Preferred Stock (hereinafter sometimes called the
"Convertible Preferred Stock"). The Convertible Preferred Stock
is issuable in whole shares only. The Convertible Preferred Stock
shall be of a stated value of $50 per share (the "Stated Value").
The term "Charter" when used herein shall include all articles or
certificates filed pursuant to law with respect to any series of
the Preferred Stock.
2. Dividends. The holders of the Convertible Preferred
Stock shall be entitled to receive, but only when and as declared
by the Board of Directors out of funds legally available for the
purpose, cash dividends at the rate of $3.375 per share per annum,
and no more, payable quarterly on the first day of January, April,
July and October of each year, with the first such dividend being
payable July 1, 1991 (each a "dividend payment date"). Such
dividends shall be payable from, and shall be cumulative from, the
date of original issue of each share. Dividends will be payable,
in arrears, to holders of record as they appear on the stock
transfer records of the Corporation on such record dates, not more
than 60 days nor less than 10 days preceding the payment dates
thereof, as shall be fixed by the Board of Directors. The amount
of dividends payable per share for each full dividend period shall
be computed by dividing by four the $3.375 annual rate. The amount
of dividends payable for the initial dividend period or any period
shorter than a full dividend period shall be calculated on the
basis of a 360-day year of twelve 30-day months. If in any
quarterly dividend period (being the period between such dividend
payment dates or, in the case of the first such period, from the
date of original issue to July 1, 1991) dividends at the rate of
$3.375 per share per annum shall not have been paid or declared and
set apart for payment on all outstanding shares of Convertible
Preferred Stock for such quarterly dividend period and all
preceding quarterly dividend periods from and after the first day
from which dividends are cumulative, then the aggregate deficiency
shall be declared and fully paid or set apart for payment, but
without interest, before (i) any dividends or other distributions
(excluding dividends paid in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock of the
Corporation or shares of any other capital stock of the Corporation
ranking junior to the Convertible Preferred Stock with respect to
the payment of dividends and distribution of assets upon
liquidation, dissolution or winding up of the Corporation) shall
be declared and paid or set apart for payment on the Common Stock
or on any other capital stock of the Corporation ranking junior to
the Convertible Preferred Stock with respect to the payment of
dividends, or (ii) the Corporation shall purchase, redeem or
otherwise acquire any shares of Preferred Stock or any shares of
capital stock of the Corporation ranking on a parity with or junior
to the Convertible Preferred Stock with respect to the payment of
dividends, except by conversion into or exchange for capital stock
of the Corporation ranking junior to the Convertible Preferred
Stock with respect to the payment of dividends and distribution of
assets upon liquidation, dissolution or winding up of the
Corporation; provided, however, that any moneys set aside in trust
as a sinking fund payment for any series of Preferred Stock
pursuant to the resolutions providing for the issue of shares of
such series may thereafter be applied to the purchase or redemption
of Preferred Stock of such series whether or not at the time of
such application full cumulative dividends upon the outstanding
Convertible Preferred Stock shall have been paid or declared and
set apart for payment.
3. Conversion. (i) Subject to and upon compliance with
the provisions of this paragraph 3, each holder of Convertible
Preferred Stock shall have the right, at his option, at any time,
to convert any or all of the shares of Convertible Preferred Stock
held by such holder into the number of fully paid and nonassessable
shares of Common Stock (calculated as to each conversion, for the
purpose of determining the amount of any cash payments provided for
under subparagraph (iii) of this paragraph 3, to the nearest 1/100
of a share of Common Stock, with 1/200 of a share of Common Stock
being rounded upward) obtained by dividing the Stated Value of a
share of Convertible Preferred Stock by the Conversion Price (as
defined below) and multiplying such resulting number by the number
of shares of Convertible Preferred Stock to be converted, and by
surrendering such shares of Convertible Preferred Stock so to be
converted, such surrender to be made in the manner provided in
subparagraph (ii) of this paragraph 3; provided, however, that the
right to convert shares called for redemption pursuant to paragraph
6 shall terminate at the close of business on the date fixed for
such redemption unless the Corporation shall default in making
payment of the amount payable upon such redemption. The term
"Common Stock" shall mean the Common Stock, par value $5.00, of the
Corporation as the same exists at the date of these Articles
Supplementary or as such stock may be constituted from time to
time, except that for the purpose of subparagraph (v) of this
paragraph 3, the term "Common Stock" shall also mean and include
stock of the Corporation of any class, whether now or hereafter
authorized, which shall have the right to participate in the
distribution of either earnings or assets of the Corporation
without limit as to amount or percentage.
The term "Conversion Price" shall mean $72.50, as adjusted
in accordance with the provisions of this paragraph 3.
(ii) In order to exercise the conversion privilege, the
holder of each share of Convertible Preferred Stock to be converted
shall surrender the certificate representing such share at the
office of the conversion agent for the Convertible Preferred Stock
in the Borough of Manhattan, The City of New York, appointed for
such purpose by the Corporation, which shall initially be the
transfer agent for the Common Stock, with the Notice of Election
to Convert on the back of said certificate completed and signed.
Unless the shares issuable on conversion are to be issued in the
same name as the name in which such share of Convertible Preferred
Stock is registered, each share surrendered for conversion shall
be accompanied by instruments of transfer, in form satisfactory to
the Corporation, duly executed by the holder or his duly authorized
attorney, and by an amount sufficient to pay any transfer or
similar tax.
The holders of shares of Convertible Preferred Stock at the
close of business on a dividend payment record date shall be
entitled to receive the dividend payable on such shares (except
that holders of shares called for redemption on a redemption date
between such record date and the dividend payment date shall not
be entitled to receive such dividend on such dividend payment date)
on the corresponding dividend payment date notwithstanding the
conversion thereof or the Corporation's default in payment of the
dividend due on such dividend payment date. However, shares of
Convertible Preferred Stock surrendered for conversion during the
period between the close of business on any dividend payment record
date and the opening of business on the corresponding dividend
payment date (except shares called for redemption on a redemption
date during such period) must be accompanied by payment of an
amount equal to the dividend payable on such shares on such
dividend payment date. A holder of shares of Convertible Preferred
Stock on a dividend payment record date who (or whose transferee)
tenders any of such shares for conversion into shares of Common
Stock on a dividend payment date will receive the dividend payable
by the Corporation on such shares of Convertible Preferred Stock
on such date, and the converting holder need not include payment
in the amount of such dividend upon surrender of shares of
Convertible Preferred Stock for conversion. Except as provided
above, the Corporation shall make no payment or allowance for
unpaid dividends, whether or not in arrears, on converted shares
or for dividends on the shares of Common Stock issued upon such
conversion.
As promptly as practicable after the surrender of the
certificates for shares of Convertible Preferred Stock as
aforesaid, the Corporation shall issue and shall deliver at the
office of the conversion agent to such holder, or on his written
order, a certificate or certificates for the number of full shares
of Common Stock issuable upon the conversion of such shares in
accordance with the provisions of this paragraph 3, and any
fractional interest in respect of a share of Common Stock arising
upon such conversion shall be settled as provided in subparagraph
(iii) of this paragraph 3.
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which the
certificates for shares of Convertible Preferred Stock shall have
been surrendered, with the Notice of Election to Convert on the
back of said certificates completed and signed (and, if applicable,
payment of an amount equal to the dividend payable on such shares
shall have been made), to the Corporation as aforesaid, and the
person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such
conversion shall be deemed to have become the holder or holders of
record of the shares represented thereby at such time on such date
and such conversion shall be at the Conversion Price in effect at
such time on such date, unless the stock transfer books of the
Corporation shall be closed on such date, in which event such
person or persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding
day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date
upon which such shares shall have been surrendered and such notice
(and, if applicable, payment) received by the Corporation. All
shares of Common Stock delivered upon conversion of the Convertible
Preferred Stock will upon delivery be duly and validly issued and
fully paid and nonassessable, free of all liens and charges and not
subject to any preemptive rights.
(iii) In connection with the conversion of any shares of
Convertible Preferred Stock, no fractional shares or scrip
representing fractions of shares of Common Stock shall be issued
upon conversion of the Convertible Preferred Stock. Instead of any
fractional interest in a share of Common Stock which would
otherwise be deliverable upon the conversion of a share of
Convertible Preferred Stock or a fraction thereof, the Corporation
shall pay to the holder of such share of Convertible Preferred
Stock or fraction thereof an amount in cash (computed to the
nearest cent, with one-half cent being rounded upward) equal to the
reported last sales price (as defined in subparagraph (iv)(e) of
this paragraph 3) of the Common Stock on the Trading Day (as
defined in subparagraph (iv)(e) of this paragraph 3) next preceding
the day of conversion multiplied by the fraction of a share of
Common Stock represented by such fractional interest. If more than
one share of Convertible Preferred Stock shall be surrendered for
conversion at one time by the same holder, the number of full
shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate Stated Value of the shares
of Convertible Preferred Stock so surrendered.
(iv) The Conversion Price shall be adjusted from time to
time as follows:
(a) In case the Corporation shall (x) pay a dividend or
make a distribution on the Common Stock in shares of Common
Stock, (y) subdivide the outstanding Common Stock into a
greater number of shares or (z) combine the outstanding Common
Stock into a smaller number of shares, the Conversion Price
shall be adjusted so that the holder of any share of
Convertible Preferred Stock thereafter surrendered for
conversion shall be entitled to receive the number of shares
of Common Stock of the Corporation which he would have owned
or have been entitled to receive after the happening of any
of the events described above had such share of Convertible
Preferred Stock been converted immediately prior to the record
date in the case of a dividend or the effective date in the
case of subdivision or combination. An adjustment made
pursuant to this subparagraph (a) shall become effective
immediately after the record date in the case of a dividend,
except as provided in subparagraph (h) below, and shall become
effective immediately after the effective date in the case of
a subdivision or combination.
(b) In case the Corporation shall issue rights or
warrants to all holders of the Common Stock entitling them
(for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price
per share of Common Stock (as defined for purposes of this
subparagraph (b) in subparagraph (e) below), at the record
date for the determination of stockholders entitled to receive
such rights or warrants, the Conversion Price in effect
immediately prior thereto shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the date of issuance of
such rights or warrants by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding on
the date of issuance of such rights or warrants plus the
number of shares of Common Stock which the aggregate offering
price of the total number of shares of Common Stock so offered
would purchase at such current market price, and the
denominator of which shall be the number of shares of Common
Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock
receivable upon exercise of such rights or warrants. Such
adjustment shall be made successively whenever any such rights
or warrants are issued, and shall become effective
immediately, except as provided in subparagraph (h) below,
after such record date. In determining whether any rights or
warrants entitle the holders of the Convertible Preferred
Stock to subscribe for or purchase shares of Common Stock at
less than such current market price, and in determining the
aggregate offering price of such shares of Common Stock, there
shall be taken into account any consideration received by the
Corporation for such rights or warrants plus the exercise
price thereof, the value of such consideration or exercise
price, as the case may be, if other than cash, to be
determined by the Board.
(c) In case the Corporation shall distribute to all
holders of Common Stock any shares of capital stock of the
Corporation (other than Common Stock) or evidences of its
indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Corporation)
or rights or warrants to subscribe for or purchase any of its
securities (excluding those rights or warrants referred to in
subparagraph (b) above) (any of the foregoing being
hereinafter in this subparagraph (c) called the "Securities"),
then, in each such case, unless the Corporation elects to
reserve such Securities for distribution to the holders of the
Convertible Preferred Stock upon the conversion of the shares
of Convertible Preferred Stock so that any such holder
converting shares of Convertible Preferred Stock will receive
upon such conversion, in addition to the shares of the Common
Stock to which such holder is entitled, the amount and kind
of such Securities which such holder would have received if
such holder had, immediately prior to the record date for the
distribution of the Securities, converted its shares of
Convertible Preferred Stock into Common Stock, the Conversion
Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a
fraction the numerator of which shall be the current market
price per share (as defined for purposes of this subparagraph
(c) in subparagraph (e) below) of the Common Stock on the
record date mentioned above less the then fair market value
(as determined by the Board, whose determination shall, if
made in good faith, be conclusive) of the portion of the
Securities so distributed applicable to one share of Common
Stock, and the denominator of which shall be the current
market price per share (as defined in subparagraph (e) below)
of the Common Stock; provided, however, that in the event the
then fair market value (as so determined) of the portion of
the Securities so distributed applicable to one share of
Common Stock is equal to or greater than the current market
price per share (as defined in subparagraph (e) below) of the
Common Stock on the record date mentioned above, in lieu of
the foregoing adjustment, adequate provision shall be made so
that each holder of shares of Convertible Preferred Stock
shall have the right to receive the amount and kind of
Securities such holder would have received had he converted
each such share of Convertible Preferred Stock immediately
prior to the record date for the distribution of the
Securities. Such adjustment shall become effective
immediately, except as provided in subparagraph (h) below,
after the record date for the determination of stockholders
entitled to receive such distribution.
(d) If, pursuant to subparagraph (b) or (c) above, the
number of shares of Common Stock into which a share of
Convertible Preferred Stock is convertible shall have been
adjusted because the Corporation has declared a dividend, or
made a distribution, on the outstanding shares of Common Stock
in the form of any right or warrant to purchase securities of
the Corporation, or the Corporation has issued any such right
or warrant, then, upon the expiration of any such unexercised
right or unexercised warrant, the Conversion Price shall
forthwith be adjusted to equal the Conversion Price that would
have applied had such right or warrant never been declared,
distributed or issued.
(e) For the purpose of any computation under subparagraph
(b) above, the current market price per share of Common Stock
on any date shall be deemed to be the average of the reported
last sales prices for the thirty consecutive Trading Days (as
defined below) commencing forty-five Trading Days before the
date in question. For the purpose of any computation under
subparagraph (c) above, the current market price per share of
Common Stock on any date shall be deemed to be the average of
the reported last sales prices for the ten consecutive Trading
Days before the date in question. The reported last sales
price for each day (whether for purposes of subparagraph (b)
or subparagraph (c)) shall be the reported last sales price,
regular way, or, in case no sale takes place on such day, the
average of the reported closing bid and asked prices, regular
way, in either case as reported on the New York Stock Exchange
Composite Tape or, if the Common Stock is not listed or
admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which the Common
Stock is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on
the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or, if the Common Stock is not quoted on such
National Market System, the average of the closing bid and
asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for the Common
Stock on each such day shall not have been reported through
NASDAQ, the average of the bid and asked prices for such day
as furnished by any New York Stock Exchange member firm
regularly making a market in the Common Stock selected for
such purpose by the Board or a committee thereof or, if no
such quotations are available, the fair market value of the
Common Stock as determined by a New York Stock Exchange member
firm regularly making a market in the Common Stock selected
for such purpose by the Board or a committee thereof. As used
herein, the term "Trading Day" with respect to Common Stock
means (x) if the Common Stock is listed or admitted for
trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock
Exchange or such other national securities exchange is open
for business or (y) if the Common Stock is quoted on the
National Market System of the NASDAQ, a day on which trades
may be made on such National Market System or (z) otherwise,
any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized
or obligated by law or executive order to close.
(f) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that
any adjustments which by reason of this subsection (f) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment; and provided further
that adjustment shall be required and made in accordance with
the provisions of this paragraph 3 (other than this
subparagraph (f)) not later than such time as may be required
in order to preserve the tax free nature of a distribution to
the holders of Common Stock. All calculations under this
paragraph 3 shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be, with one-half
cent and 1/200 of a share, respectively, being rounded upward.
Anything in this subparagraph (iv) to the contrary
notwithstanding, the Corporation shall be entitled to make
such reductions in the Conversion Price, in addition to those
required by this subparagraph (iv), as it in its discretion
shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights or
warrants to purchase stock or securities, or distribution of
other assets (other than cash dividends) hereafter made by
the Corporation to its stockholders shall not be taxable.
(g) Whenever the Conversion Price is adjusted as herein
provided, the Corporation shall promptly file with any
conversion agent an officers' certificate, signed by the
Chairman, the President, any Vice-Chairman or any Executive
Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Corporation,
setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of
the correctness of such adjustment. Promptly after delivery
of such certificate, the Corporation shall prepare a notice
of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which such
adjustment becomes effective and shall mail such notice of
such adjustment of the Conversion Price to the holder of each
share of Convertible Preferred Stock at his last address as
shown on the stock books of the Corporation.
(h) In any case in which this subparagraph (iv) provides
that an adjustment shall become effective immediately after
a record date for an event, the Corporation may defer until
the occurrence of such event (y) issuing to the holder of any
share of Convertible Preferred Stock converted after such
record date and before the occurrence of such event the
additional shares of Common Stock issuable upon such
conversion by reason of the adjustment required by such event
over and above the Common Stock issuable upon such conversion
before giving effect to such adjustment and (z) paying to such
holder any amount in cash in lieu of any fractional share of
Common Stock pursuant to subparagraph (iii) of this paragraph 3.
(v) If:
(a) the Corporation shall declare a dividend (or any
other distribution) on the Common Stock (other than in cash
out of retained earnings); or
(b) the Corporation shall authorize the granting to the
holders of Common Stock of rights or warrants to subscribe for
or purchase any shares of any class of capital stock of the
Corporation or any other rights or warrants; or
(c) there shall be any reclassification or change of the
Common Stock (other than a subdivision or combination of the
outstanding Common Stock and other than a change in the par
value, or from par value to no par value, or from no par value
to par value), or any consolidation, merger, or statutory
share exchange to which the Corporation is a party and for
which approval of any stockholders of the Corporation is
required or any sale or transfer of all or substantially all
the assets of the Corporation as an entirety; or
(d) there shall be a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
then the Corporation shall cause to be filed with the conversion
agent, and shall cause to be mailed to the holders of shares of the
Convertible Preferred Stock at their addresses as shown on the
stock transfer records of the Corporation, at least 15 days prior
to the applicable date hereinafter specified, a notice stating (y)
the date on which a record is to be taken for the purpose of such
dividend, distribution or granting of rights or warrants, or, if
a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend,
distribution or rights or warrants are to be determined or (z) the
date on which such reclassification, change, consolidation, merger,
statutory share exchange, sale, transfer, liquidation, dissolution
or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reclassification,
consolidation, merger, statutory share exchange, sale, transfer,
liquidation, dissolution or winding up. Failure to give such
notice or any defect therein shall not affect the legality or
validity of the proceedings described in subparagraph (viii) of
this paragraph 3 or in subparagraph (v)(a), (v)(b), (v)(c) or
(v)(d) of this paragraph 3.
(vi) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued shares of Common Stock,
for the purpose of effecting conversions of the Convertible
Preferred Stock, the full number of shares of Common Stock
deliverable upon the conversion of all outstanding shares of
Convertible Preferred Stock not theretofore converted. For
purposes of this subparagraph (vi), the number of shares of Common
Stock which shall be deliverable upon the conversion of all
outstanding shares of Convertible Preferred Stock shall be computed
as if at the time of computation all such outstanding shares were
held by a single holder.
Before taking any action which would cause any adjustment
reducing the Conversion Price below the then par value (if any) of
the shares of Common Stock deliverable upon conversion of the
Convertible Preferred Stock, the Corporation will take any
corporate action which may, in the opinion of its counsel, be
necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of Common Stock at such
adjusted Conversion Price.
The Corporation will endeavor to list the shares of Common
Stock required to be delivered upon conversion of the Convertible
Preferred Stock prior to such delivery upon each national
securities exchange, if any, upon which the outstanding Common
Stock is listed at the time of such delivery.
Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon conversion of the
Convertible Preferred Stock, the Corporation will endeavor to
comply with all Federal and State laws and regulations thereunder
requiring the registration of such securities with, or any approval
of or consent to the delivery thereof by, any governmental
authority.
(vii) The Corporation will pay any and all documentary
stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Common Stock on conversions of the
Convertible Preferred Stock pursuant hereto; provided, however,
that the Corporation shall not be required to pay any tax which may
be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of
the holder of the Convertible Preferred Stock to be converted and
no such issue or delivery shall be made unless and until the person
requesting such issue or delivery has paid to the Corporation the
amount of any such tax or has established, to the satisfaction of
the Corporation, that such tax has been paid.
(viii) Notwithstanding any other provision herein to the
contrary, if any of the following events occur, namely (x) any
reclassification or change of outstanding shares of Common Stock
(other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a
subdivision of combination of the Common Stock), (y) any
consolidation, merger or combination of the Corporation with or
into another corporation as a result of which holders of Common
Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange
for such Common Stock or (z) any sale or conveyance of the
properties and assets of the Corporation as, or substantially as,
an entirety to any other entity as a result of which holders of
Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in
exchange for such Common Stock, then appropriate provision shall
be made so that the holder of each share of Convertible Preferred
Stock then outstanding shall have the right to convert such share
into the kind and amount of the shares of stock and other
securities or property or assets (including cash) that would have
been receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance by a holder of the number
of shares of Common Stock issuable upon conversion of such share
of Convertible Preferred Stock immediately prior to such
reclassification, change, consolidation, merger, combination, sale
or conveyance. The adjustments described in this subparagraph
(viii) shall be subject to further adjustments as appropriate that
shall be as nearly equivalent as may be practicable to the relevant
adjustments provided for in this paragraph 3. If, in the case of
any such consolidation, merger, combination, sale or conveyance,
the stock or other securities and property receivable thereupon by
a holder of shares of Common Stock includes shares of stock,
securities or other property or assets (including cash) of an
entity other than the successor or acquiring entity, as the case
may be, in such consolidation, merger, combination, sale or
conveyance, then the Corporation shall enter into an agreement with
such other entity for the benefit of the holders of Convertible
Preferred Stock that shall contain such provisions to protect the
interests of such holders as the Board shall reasonably consider
necessary by reason of the foregoing.
(ix) Upon any conversion or redemption of shares of
Convertible Preferred Stock, the shares of Convertible Preferred
Stock so converted or redeemed shall have the status of authorized
and unissued shares of Preferred Stock, and the number of shares
of Preferred Stock which the Corporation shall have authority to
issue shall not be decreased by the conversion or redemption of
shares of Convertible Preferred Stock.
4. Voting Rights. (i) Holders of the Convertible
Preferred Stock shall have no voting rights, either general or
special, except as expressly required by applicable law, the
Charter and as specified in this paragraph 4.
(ii) Whenever, at any time or times, dividends payable on
the shares of Convertible Preferred Stock shall be in arrears for
six consecutive calendar quarters, then at the next annual meeting
of stockholders and at any annual meeting thereafter and at any
meeting called for the election of Directors, until all dividends
accumulated on the Convertible Preferred Stock have been paid or
declared and a sum sufficient for payment has been set aside, the
holders of the Convertible Preferred Stock, either alone or
together with the holders of one or more other cumulative series
of the Preferred Stock at the time outstanding which are granted
such voting rights, voting as a class, shall be entitled, to the
exclusion of the holders of one or more other series or classes of
stock having general voting rights, to vote for and elect two
additional members of the Board of Directors of the Corporation,
and the holders of Common Stock together with the holders of any
series or class or classes of stock of the Corporation having
general voting rights and not then entitled to elect two members
of the Board of Directors pursuant to this paragraph 4 to the
exclusion of the holders of all series then so entitled, shall be
entitled to vote and elect the balance of the Board of Directors.
In such case the Board of Directors of the Corporation shall, as
of the date of the annual meeting of stockholders or at any meeting
called for the election of Directors aforesaid, be increased by two
Directors. The rights of the holders of the Convertible Preferred
Stock to participate (either alone or together with the holders of
one or more other cumulative series of Preferred Stock at the time
outstanding which are granted such voting rights) in the exclusive
election of two members of the Board of Directors of the
Corporation pursuant to this paragraph 4 shall continue in effect
until cumulative dividends have been paid in full or declared and
a sum sufficient has been set apart for payment on the Convertible
Preferred Stock. At elections for such Directors, each holder of
Convertible Preferred Stock shall be entitled to one vote for each
share of Convertible Preferred Stock held of record on the record
date established for the meeting. The holders of Convertible
Preferred Stock shall have no right to cumulate such shares in
voting for the election of Directors. At the annual meeting of
stockholders next following the termination (by reason of the
payment of all accumulated and defaulted dividends on such stock
or provision for the payment thereof by declaration and setting
apart thereof) of the exclusive voting power pursuant to this
paragraph 4 of the holders of Convertible Preferred Stock and the
holders of all other cumulative series which shall have been
entitled to vote for and elect such two members of the Board of
Directors of the Corporation, the terms of office of all persons
who may have been elected Directors of the Corporation by vote of
such holders shall terminate and the two vacancies created pursuant
to this paragraph 4 to accommodate the exclusive right of election
conferred hereunder shall thereupon be eliminated and the Board of
Directors shall be decreased by two Directors.
(iii) So long as any shares of Convertible Preferred Stock
remain outstanding, the affirmative vote of the holders of at least
two-thirds of the shares of Convertible Preferred Stock outstanding
at the time given in person or by proxy, 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 of
series of stock (including any class or series of Preferred
Stock) ranking prior (as that term is defined in paragraph 5)
to the Convertible Preferred Stock, or
(b) The authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class or
series of stock (including any class or series of Preferred
Stock) which ranks on a parity with the Convertible Preferred
Stock unless the Articles Supplementary or other provisions
of the Charter creating or authorizing such class or series
shall provide that if in any case the stated dividends or
amounts payable on liquidation, dissolution or winding up of
the Corporation are not paid in full on the Convertible
Preferred Stock and all outstanding shares of stock ranking
on a parity (as that term is defined in paragraph 5) with the
Convertible Preferred Stock (the Convertible Preferred Stock
and all such other stock being herein called "Parity Stock"),
the shares of all Parity Stock shall share ratably (x) in the
payment of dividends, including accumulations (if any) in
accordance with the sums which would be payable on all Parity
Stock if all dividends in respect of all shares of Parity
Stock were paid in full and (y) on any distribution of assets
upon liquidation, dissolution or winding up of the Corporation
in accordance with the sums which would be payable in respect
of all shares of Parity Stock if all sums payable were
discharged in full, or
(c) The amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Charter of the Corporation, including these Articles
Supplementary, which would materially and adversely affect any
right, preference, privilege or voting power of the
Convertible Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of
authorized Preferred Stock or the Corporation's Cumulative
Floating Rate Series B Preferred Stock, the Series A and
Series B Dutch Auction Rate Transferable Securities Preferred
Stock, the Money Market Cumulative Preferred Stock, the
Remarketed Preferred Stock or the Convertible Preferred Stock
or any other capital stock of the Corporation, or the creation
and issuance of other series of Preferred Stock including
convertible Preferred Stock or any other capital stock of the
Corporation, in each case ranking on a parity with or junior
to the Convertible Preferred Stock with respect to the payment
of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the Corporation, shall not be
deemed to affect materially and adversely such rights,
preferences, privileges or voting powers.
(iv) So long as any shares of Convertible Preferred Stock
remain outstanding and notwithstanding any provision of the Charter
of the Corporation requiring a greater percentage, the Corporation
shall not, without the affirmative vote of the holders of at least
a majority of the votes of all Parity Stock entitled to vote
outstanding at the time, given in person or by proxy, by resolution
duly adopted at a meeting at which a quorum was present and acting
and at which the holders of Convertible Preferred Stock (alone or
together with the holders of one or more other series of Parity
Stock at the time outstanding and entitled to vote) vote separately
as a class, (a) directly or indirectly, sell, transfer or otherwise
dispose of, or permit Republic National Bank of New York (the
"Bank") or any other subsidiary of the Corporation, to issue, sell,
transfer or otherwise dispose of any shares of voting stock of the
Bank, or securities convertible into or options, warrants or rights
to acquire voting stock of the Bank, unless after giving effect to
any such transaction the Bank remains a Controlled Subsidiary (as
hereinafter defined) of the Corporation or of a Qualified Successor
Company (as hereinafter defined); (b) merge or consolidate with,
or convey substantially all of its assets to any person or
corporation unless the entity surviving such merger or
consolidation or the transferee of such assets is the Corporation
or a Qualified Successor Company; or (c) permit the Bank to merge,
consolidate with, or convey substantially all of its assets to any
person or corporation unless the entity surviving such merger or
consolidation or the transferee of such assets is a Controlled
Subsidiary of the Corporation or of a Qualified Successor Company,
except in any of the foregoing cases as required to comply with
applicable law, including, without limitation, any court or
regulatory order. The term "Qualified Successor Company" shall
mean a corporation (or other similar organization or entity whether
organized under or pursuant to the laws of the United States or any
state thereof or of another jurisdiction) which (a) is or is
required to be a registered bank holding company under the United
States Bank Holding Company Act of 1956, as amended, or any
successor legislation, (b) issues to the holders of the Convertible
Preferred Stock in exchange for the Convertible Preferred Stock
shares of preferred stock having at least the same relative rights
and preferences as the Convertible Preferred Stock (the "Exchanged
Stock"), (c) immediately after such transaction has not outstanding
or authorized any class of stock or equity securities ranking prior
to the Exchanged Stock with respect to the payment of dividends or
the distribution of assets upon liquidation, dissolution or winding
up of the Corporation, and (d) holds, as a Controlled Subsidiary
or Subsidiaries, either the Bank or one or more other banking
corporations which, collectively, immediately after such
transaction hold substantially all of the assets and liabilities
which the Bank held immediately prior to such transaction (which
may be in addition to other assets and liabilities acquired in such
transaction). "Controlled Subsidiary" shall mean any corporation
at least 80% of the outstanding shares of voting stock of which
shall at the time be owned directly or indirectly by the
Corporation or a Qualified Successor Company. In connection with
the exercise of the voting rights contained in this paragraph
4(iv), holders of all series of Parity Stock which are granted such
voting rights shall vote as a class, and each holder of Convertible
Preferred Stock shall have one vote for each share of stock held,
and each other series shall have such number of votes, if any, for
each share of stock held as may be granted them.
The foregoing voting provisions shall not apply as to any
shares of Convertible Preferred Stock if, at or prior to the time
when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Convertible
Preferred Stock shall have been redeemed or sufficient funds shall
have been deposited in trust in accordance with paragraph 6 to
effect such redemption.
5. Rank. For the purposes of these Articles
Supplementary, any class or classes of stock of the Corporation
shall be deemed to rank:
(a) prior to the Convertible Preferred Stock as to
dividends or as to distribution of assets upon liquidation,
dissolution or winding up of the Corporation if the 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 the Convertible Preferred Stock;
(b) on a parity with the Convertible Preferred Stock as
to dividends or as to distribution of assets upon liquidation,
dissolution or winding up of the Corporation, whether or not
the dividend rates, dividend payment dates, or redemption or
liquidation preference per share thereof be different from
those of the Convertible Preferred Stock, if the holders of
such class of stock and the Convertible Preferred Stock 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 dividend
rates or liquidation preference, without preference or
priority one over the other; and
(c) junior to shares of the Convertible Preferred Stock,
either as to dividends or as to distribution of assets upon
liquidation, dissolution or winding up of the Corporation, or
both, if such class shall be Common Stock or if the holders
of the Convertible Preferred Stock shall be entitled to the
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up of the Corporation, as
the case may be, in preference or priority to the holders of
stock of such class or classes.
The Convertible Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the
Common Stock and on a parity with the Corporation's Cumulative
Floating Rate Series B Preferred Stock, the Series A and Series B
Dutch Auction Rate Transferable Securities Preferred Stock, the
Money Market Cumulative Preferred Stock and the Remarketed
Preferred Stock.
6. Optional Redemption. The shares of the Convertible
Preferred Stock may be redeemed at the option of the Corporation,
as a whole, or from time to time in part, at any time, upon not
less than 30 nor more than 60 days' prior notice mailed to the
holders of the shares to be redeemed at their addresses as shown
on the stock books of the Corporation; provided, however, that
shares of the Convertible Preferred Stock shall not be redeemable
prior to May 15, 1995. Subject to the foregoing, shares of the
Convertible Preferred Stock are redeemable at the following
redemption prices per share if redeemed during the 12-month period
beginning May 15, in the year indicated:
Year Price Year Price
1995 $52.0250 1998 $51.0125
1996 51.6875 1999 50.6750
1997 51.3500 2000 50.3375
and $50 if redeemed on or after May 15, 2001, in each case together
with an amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid to, but excluding, the
date fixed for redemption.
If full cumulative dividends on the Convertible Preferred
Stock have not been paid, the Convertible Preferred Stock may not
be redeemed in part and the Corporation may not purchase or acquire
any shares of the Convertible Preferred Stock otherwise than
pursuant to a purchase or exchange offer made on the same terms to
all holders of the Convertible Preferred Stock. If fewer than all
the outstanding shares of Convertible Preferred Stock are to be
redeemed, the Corporation will select those to be redeemed by lot
or a substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the
funds necessary for such redemption shall have been set aside by
the Corporation, separate and apart from its other funds, in trust
for the pro rata benefit of the holders of the shares of
Convertible Preferred Stock so called for redemption, then,
notwithstanding that any certificates for such shares have not been
surrendered for cancellation, on the redemption date dividends
shall cease to accrue on the shares to be redeemed, and at the
close of business on the redemption date the holders of such shares
shall cease to be stockholders with respect to such shares and
shall have no interest in or claims against the Corporation by
virtue thereof and shall have no voting or other rights with
respect to such shares, except the right to receive the moneys
payable upon surrender (and endorsement, if required by the
Corporation) of their certificates, and the shares evidenced
thereby shall no longer be outstanding. Notwithstanding the
foregoing, if notice of redemption has been given pursuant to this
paragraph 6 and any holder of shares of Convertible Preferred Stock
shall, prior to the close of business on the redemption date, give
written notice to the Corporation pursuant to paragraph 3 of the
conversion of any or all of the shares to be redeemed held by such
holder (accompanied by a certificate or certificates for such
shares, duly endorsed or assigned to the Corporation), then the
conversion of such shares to be redeemed shall become effective as
provided in paragraph 3. Subject to applicable escheat laws, any
moneys so set aside by the Corporation and unclaimed at the end of
ninety days from the redemption date shall revert to the general
funds of the Corporation, after which reversion the holders of such
shares so called for redemption shall look only to the general
funds of the Corporation for the payment of the amounts payable
upon such redemption. Any interest accrued on funds so deposited
shall be paid to the Corporation from time to time. Any funds
which have been deposited by the Corporation, or on its behalf,
with a paying agent or segregated and held in trust by the
Corporation for the redemption of shares converted into Common
Stock on or prior to the date fixed for such redemption shall
(subject to any right of the holder of such shares to receive the
dividend payable thereon as provided in paragraph 3) immediately
upon such conversion be returned to the Corporation or, if then
held in trust by the Corporation, shall be discharged from such
trust.
7. Liquidation. (i) Upon any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary,
the holders of the Convertible Preferred Stock shall be entitled,
whether from capital or surplus, before any assets of the
Corporation shall be distributed among or paid over to holders of
Common Stock or any other class or series of stock of the
Corporation junior to the Convertible Preferred Stock as to
liquidation preference, to be paid the amount of $50 per share (the
"liquidation preference") of the Convertible Preferred Stock, plus
an amount equal to all accrued and unpaid dividends thereon
(whether or not earned or declared) to and including the date of
final distribution. The holders of the Convertible Preferred Stock
will not be entitled to receive the liquidation preference until
the liquidation preference of any other class of stock of the
Corporation ranking senior to the Convertible Preferred Stock as
to rights upon liquidation, dissolution or winding up shall have
been paid (or a sum set aside therefor sufficient to provide for
payment) in full. After any such liquidation preference payment,
the holders of the Convertible Preferred Stock shall not be
entitled to any further participation in any distribution of assets
of the Corporation.
(ii) If upon any such liquidation, dissolution or winding
up of the Corporation the assets of the Corporation shall be
insufficient to make such full payments to the holders of the
Convertible Preferred Stock and the holders of any Preferred Stock
ranking as to liquidation, dissolution or winding up on a parity
with the Convertible Preferred Stock, then such assets shall be
distributed among the holders of the Convertible Preferred Stock
ratably in accordance with the respective amounts which would be
payable on such shares of Convertible Preferred Stock or any other
such Preferred Stock if all amounts thereon were paid in full.
(iii) Neither the sale, lease or exchange (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property and assets of the Corporation nor
the merger or consolidation of any other corporation into or with
the Corporation nor a reorganization of the Corporation, shall be
deemed to be a liquidation, dissolution or winding up of the
Corporation.
8. Parity Stock. So long as any shares of Convertible
Preferred Stock shall remain outstanding, in case the stated
dividends or amounts payable on liquidation, dissolution or winding
up of the Corporation are not paid in full with respect to all
outstanding shares of Parity Stock, all such shares shall share
ratably (x) in the payment of dividends, including accumulations
(if any) in accordance with the sums which would be payable in
respect of all outstanding shares of Parity Stock if all dividends
were paid in full and (y) in any distribution of assets upon
liquidation, dissolution or winding up of the Corporation, in
accordance with the sums which would be payable in respect of all
outstanding Parity Stock if all sums payable were discharged in
full.
9. Certain Definitions. (i) The term "outstanding", when
used in reference to shares of stock, shall mean issued shares,
excluding shares reacquired by the Corporation.
(ii) The amount of dividends "accrued" on any share of
Convertible Preferred Stock as at any quarterly dividend payment
date shall be deemed to be the amount of any unpaid dividends
accumulated thereon to and including the end of the day preceding
such quarterly dividend payment date, whether or not earned or
declared; and the amount of dividends "accrued" on any share of
Convertible Preferred Stock as at any date other than a quarterly
dividend payment date shall be calculated as the amount of any
unpaid dividends accumulated thereon to and including the end of
the day preceding the last preceding quarterly dividend payment
date, whether or not earned or declared, plus an amount equivalent
to dividends on the liquidation preference of such share at the
annual dividend rate fixed for such share for the period after the
end of the day preceding such last preceding quarterly dividend
payment date to and including the date as of which the calculation
is made, calculated in accordance with the provisions of paragraph 2.
10. Exclusion of Other Rights. Unless otherwise required
by law, shares of the Convertible Preferred Stock shall not have
any rights, including preemptive rights, or preferences other than
those specifically set forth herein, in the Charter or as provided
by applicable law.
11. Notice. All notices or communications unless
otherwise specified in the Bylaws of the Corporation or these
Articles Supplementary shall be sufficiently given if in writing
and delivered in person or mailed by first-class mail, postage
prepaid. Notice shall be deemed given on the earlier of the date
received or the date such notice is mailed.
12. Interpretation or Adjustment By Board of Directors.
The Board of Directors of the Corporation may, consistent with
Maryland law, interpret or adjust the provisions of these Articles
Supplementary to resolve any inconsistency or ambiguity, remedy
any formal defect or make any other change or modification which
does not adversely affect the rights of beneficial owners of the
Convertible Preferred Stock and if such inconsistency or ambiguity
reflects any typographical error, error in transcription or other
error the Board of Directors may authorize the filing of a
Certificate of Correction.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
presents to be signed in its name and on its behalf by its
President and its corporate seal to be hereunto affixed and
attested by its Secretary, and the said officers of the Corporation
further acknowledge said instrument to be the corporate act of the
Corporation and state under the penalties of perjury that to the
best of their knowledge, information and belief the matters and
facts therein set forth with respect to approval are true in all
material respects, all on May 14, 1991.
REPUBLIC NEW YORK CORPORATION
By: /s/ Dov C. Schlein
Dov C. Schlein
(Vice Chairman)
Attest:
/s/ William F. Rosenblum, Jr.
William F. Rosenblum, Jr.
(Secretary)
REPUBLIC NEW YORK CORPORATION
ARTICLES SUPPLEMENTARY
REPUBLIC NEW YORK CORPORATION, a Maryland corporation having its
principal Maryland office in the City of Baltimore, State of
Maryland (hereinafter called the "Corporation"), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article FIFTH of the Charter of
the Corporation, the Board of Directors has authorized the
classification of 4,000,000 of the 15,000,000 shares of Preferred
Stock (the "Preferred Stock") which the Corporation now has
authority to issue into a series designated $1.9375 Cumulative
Preferred Stock and has provided for the issuance of such series.
SECOND: The number of shares and terms of the $1.9375 Cumulative
Preferred Stock as set by the Finance Committee of the Board of
Directors pursuant to authority duly delegated by the Board of
Directors are as follows:
1. $1.9375 Cumulative Preferred Stock. 4,000,000 shares
of Preferred Stock of the Corporation, without par value, are
hereby constituted as the original number of shares of a series of
Preferred Stock designated as $1.9375 Cumulative Preferred Stock
(hereinafter sometimes called the "Cumulative Preferred Stock").
The Cumulative Preferred Stock is issuable in whole shares only.
The Cumulative Preferred Stock shall be of a stated value of $25
per share (the "Stated Value"). The term "Charter" when used
herein shall include all articles or certificates filed pursuant
to law with respect to any series of the Preferred Stock.
2. Dividends. The holders of the Cumulative Preferred
Stock shall be entitled to receive, but only when and as declared
by the Board of Directors out of funds legally available for the
purpose, cash dividends at the rate of $1.9375 per share per annum,
and no more, payable quarterly on the first day of January, April,
July and October of each year, with the first such dividend being
payable July 1, 1992 (each a "dividend payment date"). Such
dividends shall be payable from, and shall be cumulative from, the
date of original issue of each share. Dividends will be payable,
in arrears, to holders of record as they appear on the stock
transfer records of the Corporation on such record dates, not more
than 60 days nor less than 10 days preceding the payment dates
thereof, as shall be fixed by the Board of Directors. The amount
of dividends payable per share for each full dividend period shall
be computed by dividing by four the $1.9375 annual rate. The
amount of dividends payable for the initial dividend period or any
period shorter than a full dividend period shall be calculated on
the basis of a 360-day year of twelve 30-day months. If in any
quarterly dividend period (being the period between such dividend
payment dates or, in the case of the first such period, from the
date of original issue to July 1, 1992) dividends at the rate of
$1.9375 per share per annum shall not have been paid or declared
and set apart for payment on all outstanding shares of Cumulative
Preferred Stock for such quarterly dividend period and all
preceding quarterly dividend periods from and after the first day
from which dividends are cumulative, then the aggregate deficiency
shall be declared and fully paid or set apart for payment, but
without interest, before (i) any dividends or other distributions
(excluding dividends paid in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock of the
Corporation or shares of any other capital stock of the Corporation
ranking junior to the Cumulative Preferred Stock with respect to
the payment of dividends and distribution of assets upon
liquidation, dissolution or winding up of the Corporation) shall
be declared and paid or set apart for payment on the Common Stock
or on any other capital stock of the Corporation ranking junior to
the Cumulative Preferred Stock with respect to the payment of
dividends, or (ii) the Corporation shall purchase, redeem or
otherwise acquire any shares of Preferred Stock or any shares of
capital stock of the Corporation ranking on a parity with or junior
to the Cumulative Preferred Stock with respect to the payment of
dividends, except by conversion into or exchange for capital stock
of the Corporation ranking junior to the Cumulative Preferred Stock
with respect to the payment of dividends and distribution of assets
upon liquidation, dissolution or winding up of the Corporation;
provided, however, that any moneys set aside in trust as a sinking
fund payment for any series of Preferred Stock pursuant to the
resolutions providing for the issue of shares of such series may
thereafter be applied to the purchase or redemption of Preferred
Stock of such series whether or not at the time of such application
full cumulative dividends upon the outstanding Cumulative Preferred
Stock shall have been paid or declared and set apart for payment.
3. Voting Rights. (i) Holders of the Cumulative
Preferred Stock shall have no voting rights, either general or
special, except as expressly required by applicable law, the
Charter and as specified in this paragraph 3.
(ii) Whenever, at any time or times, dividends payable on
the shares of Cumulative Preferred Stock shall be in arrears for
six consecutive calendar quarters, then at the next annual meeting
of stockholders and at any annual meeting thereafter and at any
meeting called for the election of Directors, until all dividends
accumulated on the Cumulative Preferred Stock have been paid or
declared and a sum sufficient for payment has been set aside, the
holders of the Cumulative Preferred Stock, either alone or together
with the holders of one or more other cumulative series of
Preferred Stock at the time outstanding which are granted such
voting rights, voting as a class, shall be entitled, to the
exclusion of the holders of one or more other series or classes of
stock having general voting rights, to vote for and elect two
additional members of the Board of Directors of the Corporation,
and the holders of Common Stock together with the holders of any
series or class or classes of stock of the Corporation having
general voting rights and not then entitled to elect two members
of the Board of Directors pursuant to this paragraph 3 to the
exclusion of the holders of all series then so entitled, shall be
entitled to vote and elect the balance of the Board of Directors.
In such case the Board of Directors of the Corporation shall, as
of the date of the annual meeting of stockholders or at any meeting
called for the election of Directors aforesaid, be increased by two
Directors. The rights of the holders of the Cumulative Preferred
Stock to participate (either alone or together with the holders of
one or more other cumulative series of Preferred Stock at the time
outstanding which are granted such voting rights) in the exclusive
election of two members of the Board of Directors of the
Corporation pursuant to this paragraph 3 shall continue in effect
until cumulative dividends have been paid in full or declared and
a sum sufficient has been set apart for payment on the Cumulative
Preferred Stock. At elections for such Directors, each holder of
Cumulative Preferred Stock shall be entitled to one-half vote for
each share of Cumulative Preferred Stock held of record on the
record date established for the meeting. The holders of Cumulative
Preferred Stock shall have no right to cumulate such shares in
voting for the election of Directors. At the annual meeting of
stockholders next following the termination (by reason of the
payment of all accumulated and defaulted dividends on such stock
or provision for the payment thereof by declaration and setting
apart thereof) of the exclusive voting power pursuant to this
paragraph 3 of the holders of Cumulative Preferred Stock and the
holders of all other cumulative series which shall have been
entitled to vote for and elect such two members of the Board of
Directors of the Corporation, the terms of office of all persons
who may have been elected Directors of the Corporation by vote of
such holders shall terminate and the two vacancies created pursuant
to this paragraph 3 to accommodate the exclusive right of election
conferred hereunder shall thereupon be eliminated and the Board of
Directors shall be decreased by two Directors.
(iii) So long as any shares of Cumulative Preferred Stock
remain outstanding, the affirmative vote of the holders of at least
two-thirds of the shares of Cumulative Preferred Stock outstanding
at the time given in person or by proxy, 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 (including any class or series of Preferred
Stock) ranking prior (as set forth in paragraph 4(a)) to the
Cumulative Preferred Stock, or
(b) The authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class or
series of stock (including any class or series of Preferred
Stock) which ranks on a parity (as set forth in paragraph
4(b)) with the Cumulative Preferred Stock unless the Articles
Supplementary or other provisions of the Charter creating or
authorizing such class or series shall provide that if in any
case the stated dividends or amounts payable on liquidation,
dissolution or winding up of the Corporation are not paid in
full on the Cumulative Preferred Stock and all outstanding
shares of stock ranking on a parity with the Cumulative
Preferred Stock (the Cumulative Preferred Stock and all such
other stock being herein called "Parity Stock"), the shares
of all Parity Stock shall share ratably (x) in the payment of
dividends, including accumulations (if any) in accordance with
the sums which would be payable on all Parity Stock if all
dividends in respect of all shares of Parity Stock were paid
in full and (y) on any distribution of assets upon
liquidation, dissolution or winding up of the Corporation in
accordance with the sums which would be payable in respect of
all shares of Parity Stock if all sums payable were discharged
in full, or
(c) The amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Charter of the Corporation, including these Articles
Supplementary, which would materially and adversely affect any
right, preference, privilege or voting power of the Cumulative
Preferred Stock or of the holders thereof; provided, however,
that any increase in the amount of authorized Preferred Stock
or the Corporation's Cumulative Floating Rate Series B
Preferred Stock, the Series A and Series B Dutch Auction Rate
Transferable Securities Preferred Stock, the Money Market
Cumulative Preferred Stock, the Remarketed Preferred Stock,
the $3.375 Cumulative Convertible Preferred Stock or the
Cumulative Preferred Stock or any other capital stock of the
Corporation, or the creation and issuance of other series of
Preferred Stock including convertible Preferred Stock or any
other capital stock of the Corporation, in each case ranking
on a parity with or junior to the Cumulative Preferred Stock
with respect to the payment of dividends and the distribution
of assets upon liquidation, dissolution or winding up of the
Corporation, shall not be deemed to affect materially and
adversely such rights, preferences, privileges or voting
powers.
(iv) So long as any shares of Cumulative Preferred Stock
remain outstanding and not withstanding any provision of the
Charter of the Corporation requiring a greater percentage, the
Corporation shall not, without the affirmative vote of the holders
of at least a majority of the votes of all Parity Stock entitled
to vote outstanding at the time, given in person or by proxy, by
resolution duly adopted at a meeting at which a quorum was present
and acting and at which the holders of Cumulative Preferred Stock
(alone or together with the holders of one or more other series of
Parity Stock at the time outstanding and entitled to vote) vote
separately as a class, (a) directly or indirectly, sell, transfer
or otherwise dispose of, or permit Republic National Bank of New
York (the "Bank") or any other subsidiary of the Corporation, to
issue, sell, transfer or otherwise dispose of any shares of voting
stock of the Bank, or securities convertible into or options,
warrants or rights to acquire voting stock of the Bank, unless
after giving effect to any such transaction the Bank remains a
Controlled Subsidiary (as hereinafter defined) of the Corporation
or of a Qualified Successor Company (as hereinafter defined); (b)
merge or consolidate with, or convey substantially all of its
assets to any person or corporation unless the entity surviving
such merger or consolidation or the transferee of such assets is
the Corporation or a Qualified Successor Company; or (c) permit
the Bank to merge, consolidate with, or convey substantially all
of its assets to any person or corporation unless the entity
surviving such merger or consolidation or the transferee of such
assets is a Controlled Subsidiary of the Corporation or of a
Qualified Successor Company, except in any of the foregoing cases
as required to comply with applicable law, including, without
limitation, any court or regulatory order. The term "Qualified
Successor Company" shall mean a corporation (or other similar
organization or entity whether organized under or pursuant to the
laws of the United States or any state thereof or of another
jurisdiction) which (a) is or is required to be a registered bank
holding company under the United States Bank Holding Company Act
of 1956, as amended, or any successor legislation, (b) issues to
the holders of the Cumulative Preferred Stock in exchange for the
Cumulative Preferred Stock shares of preferred stock having at
least the same relative rights and preferences as the Cumulative
Preferred Stock (the "Exchanged Stock"), (c) immediately after such
transaction has not outstanding or authorized any class of stock
or equity securities ranking prior to the Exchanged Stock with
respect to the payment of dividends or the distribution of assets
upon liquidation, dissolution or winding up of the Corporation, and
(d) holds, as a Controlled Subsidiary or Subsidiaries, either the
Bank or one or more other banking corporations which, collectively,
immediately after such transaction hold substantially all of the
assets and liabilities which the Bank held immediately prior to
such transaction (which may be in addition to other assets and
liabilities acquired in such transaction). "Controlled Subsidiary"
shall mean any corporation at least 80% of the outstanding shares
of voting stock of which shall at the time be owned directly or
indirectly by the Corporation or a Qualified Successor Company.
In connection with the exercise of the voting rights contained in
this paragraph 4(iv), holders of all series of Parity Stock which
are granted such voting rights shall vote as a class, and each
holder of Cumulative Preferred Stock shall have one-half vote for
each share of stock held, and each other series shall have such
number of votes, if any, for each share of stock held as may be
granted them.
The foregoing voting provisions shall not apply as
to any shares of Cumulative Preferred Stock if, at or prior to the
time when the act with respect to which such vote would otherwise
be required shall be effected, all outstanding shares of Cumulative
Preferred Stock shall have been redeemed or sufficient funds shall
have been deposited in trust in accordance with paragraph 5 to
effect such redemption.
4. Rank. For the purposes of these Articles Supplementary, any
class or classes of stock of the Corporation shall be deemed to rank:
(a) prior to the Cumulative Preferred Stock as to
dividends or as to distribution of assets upon liquidation,
dissolution or winding up of the Corporation if the 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 the Cumulative Preferred Stock;
(b) on a parity with the Cumulative Preferred Stock as
to dividends or as to distribution of assets upon liquidation,
dissolution or winding up of the Corporation, whether or not
the dividend rates, dividend payment dates, or redemption or
liquidation preference per share thereof be different from
those of the Cumulative Preferred Stock, if the holders of
such class of stock and the Cumulative Preferred Stock 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 dividend
rates or liquidation preference, without preference or
priority one over the other; and
(c) junior to shares of the Cumulative Preferred Stock,
either as to dividends or as to distribution of assets upon
liquidation, dissolution or winding up of the Corporation, or
both, if such class shall be Common Stock or if the holders
of the Cumulative Preferred Stock shall be entitled to the
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up of the Corporation, as
the case may be, in preference or priority to the holders of
stock of such class or classes.
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the
Common Stock and on a parity with the Corporation's Cumulative
Floating Rate Series B Preferred Stock, the Series A and Series B
Dutch Auction Rate Transferable Securities Preferred Stock, the
Money Market Cumulative Preferred Stock, the Remarketed Preferred
Stock and the $3.375 Cumulative Convertible Preferred Stock.
5. Optional Redemption. The shares of the Cumulative
Preferred Stock may be redeemed at the option of the Corporation,
as a whole, or from time to time in part, at any time, upon not
less than 30 nor more than 60 days' prior notice mailed to the
holders of the shares to be redeemed at their addresses as shown
on the stock books of the Corporation; provided, however, that
shares of the Cumulative Preferred Stock shall not be redeemable
prior to February 27, 1997. Subject to the foregoing, shares of
the Cumulative Preferred Stock are redeemable at the following
redemption price of $25 if redeemed on or after February 27, 1997,
together with an amount equal to all dividends (whether or not
earned or declared) accrued and accumulated and unpaid to, but
excluding, the date fixed for redemption.
If full cumulative dividends on the Cumulative Preferred
Stock have not been paid, the Cumulative Preferred Stock may not
be redeemed in part and the Corporation may not purchase or acquire
any shares of the Cumulative Preferred Stock otherwise than
pursuant to a purchase or exchange offer made on the same terms to
all holders of the Cumulative Preferred Stock. If fewer than all
the outstanding shares of Cumulative Preferred Stock are to be
redeemed, the Corporation will select those to be redeemed by lot
or a substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 5 and if, on or before the date fixed for redemption, the
funds necessary for such redemption shall have been set aside by
the Corporation, separate and apart from its other funds, in trust
for the pro-rata benefit of the holders of the shares of Cumulative
Preferred Stock so called for redemption, then, notwithstanding
that any certificates for such shares have not been surrendered for
cancellation, on the redemption date dividends shall cease to
accrue on the shares to be redeemed, and at the close of business
on the redemption date the holders of such shares shall cease to
be stockholders with respect to such shares and shall have no
interest in or claims against the Corporation by virtue thereof and
shall have no voting or other rights with respect to such shares,
except the right to receive the moneys payable upon surrender (and
endorsement, if required by the Corporation) of their certificates,
and the shares evidenced thereby shall no longer be outstanding.
Subject to applicable escheat laws, any moneys so set aside by the
Corporation and unclaimed at the end of ninety days from the
redemption date shall revert to the general funds of the
Corporation, after which reversion the holders of such shares so
called for redemption shall look only to the general funds of the
Corporation for the payment of the amounts payable upon such
redemption. Any interest accrued on funds so deposited shall be
paid to the Corporation from time to time.
6. Liquidation. (i) Upon any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary,
the holders of the Cumulative Preferred Stock shall be entitled,
whether from capital or surplus, before any assets of the
Corporation shall be distributed among or paid over to holders of
Common Stock or any other class or series of stock of the
Corporation junior to the Cumulative Preferred Stock as to
liquidation preference, to be paid the amount of $25 per share (the
"liquidation preference") of the Cumulative Preferred Stock, plus
an amount equal to all accrued and unpaid dividends thereon
(whether or not earned or declared) to and including the date of
final distribution. The holders of the Cumulative Preferred Stock
will not be entitled to receive the liquidation preference until
the liquidation preference of any other class of stock of the
Corporation ranking senior to the Cumulative Preferred Stock as to
rights upon liquidation, dissolution or winding up shall have been
paid (or a sum set aside therefor sufficient to provide for
payment) in full. After any such liquidation preference payment,
the holders of the Cumulative Preferred Stock shall not be entitled
to any further participation in any distribution of assets of the
Corporation.
(ii) If upon any such liquidation, dissolution or winding
up of the Corporation the assets of the Corporation shall be
insufficient to make such full payments to the holders of the
Cumulative Preferred Stock and the holders of any Preferred Stock
ranking as to liquidation, dissolution or winding up on a parity
with the Cumulative Preferred Stock, then such assets shall be
distributed among the holders of the Cumulative Preferred Stock
ratably in accordance with the respective amounts which would be
payable on such shares of Cumulative Preferred Stock or any other
such Preferred Stock if all amounts thereon were paid in full.
(iii) Neither the sale, lease or exchange (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property and assets of the Corporation nor
the merger or consolidation of any other corporation into or with
the Corporation nor a reorganization of the Corporation, shall be
deemed to be a liquidation, dissolution or winding up of the
Corporation.
7. Parity Stock. So long as any shares of Cumulative
Preferred Stock shall remain outstanding, in case the stated
dividends or amounts payable on liquidation, dissolution or winding
up of the Corporation are not paid in full with respect to all
outstanding shares of Parity Stock, all such shares shall share
ratably (x) in the payment of dividends, including accumulations
(if any) in accordance with the sums which would be payable in
respect of all outstanding shares of Parity Stock if all dividends
were paid in full and (y) in any distribution of assets upon
liquidation, dissolution or winding up of the Corporation, in
accordance with the sums which would be payable in respect of all
outstanding Parity Stock if all sums payable were discharged in
full.
8. Certain Definitions. (i) The term "outstanding",
when used in reference to shares of stock, shall mean issued
shares, excluding shares reacquired by the Corporation.
(ii) The amount of dividends "accrued" on any share of
Cumulative Preferred Stock as at any quarterly dividend payment
date shall be deemed to be the amount of any unpaid dividends
accumulated thereon to and including the end of the day preceding
such quarterly dividend payment date, whether or not earned or
declared; and the amount of dividends "accrued" on any share of
Cumulative Preferred Stock as at any date other than a quarterly
dividend payment date shall be calculated as the amount of any
unpaid dividends accumulated thereon to and including the end of
the day preceding the last preceding quarterly dividend payment
date, whether or not earned or declared, plus an amount equivalent
to dividends on the liquidation preference of such share at the
annual dividend rate fixed for such share for the period after the
end of the day preceding such last preceding quarterly dividend
payment date to and including the date as of which the calculation
is made, calculated in accordance with the provisions of paragraph 2.
9. Exclusion of Other Rights. Unless otherwise required
by law, shares of the Cumulative Preferred Stock shall not have any
rights, including preemptive rights, or preferences other than
those specifically set forth herein, in the Charter or as provided
by applicable law.
10. Notice. All notices or communications unless
otherwise specified in the Bylaws of the Corporation or these
Articles Supplementary shall be sufficiently given if in writing
and delivered in person or mailed by first-class mail, postage
prepaid. Notice shall be deemed given on the earlier of the date
received or the date such notice is mailed.
11. Interpretation or Adjustment By Board of Directors.
The Board of Directors of the Corporation may, consistent with
Maryland law, interpret or adjust the provisions of these Articles
Supplementary to resolve any inconsistency or ambiguity, remedy any
formal defect or make any other change or modification which does
not adversely affect the rights of beneficial owners of the
Cumulative Preferred Stock and if such inconsistency or ambiguity
reflects any typographical error, error in transcription or other
error the Board of Directors may authorize the filing of a
Certificate of Correction.
IN WITNESS WHEREOF, REPUBLIC NEW YORK CORPORATION has caused these
presents to be signed in its name and on its behalf by its
President and its corporate seal to be hereunto affixed and
attested by its Secretary, and the said officers of the Corporation
further acknowledge said instrument to be the corporate act of the
Corporation and state under the penalties of perjury that to the
best of their knowledge, information and belief the matters and
facts therein set forth with respect to approval are true in all
material respects, all on February 24, 1992.
REPUBLIC NEW YORK CORPORATION
By: /s/ Jeffrey C. Keil
Jeffrey C. Keil
(President)
Attest:
/s/ William F. Rosenblum, Jr.
William F. Rosenblum, Jr.
(Secretary)