As filed with the Securities and Exchange Commission on July 12, 1996
Registration No. 33-96768
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------------------
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
DONALDSON, LUFKIN & JENRETTE, INC.
(Exact name of registrant as specified in its charter)
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<CAPTION>
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DELAWARE 6211 13-1898818
(State or other jurisdiction of (Primary Standard Industrial Classification (I.R.S. Employer
incorporation or organization) Code Number) Identification Number)
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277 PARK AVENUE
NEW YORK, NEW YORK 10172
(212) 892-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------------
MICHAEL A. BOYD
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
DONALDSON, LUFKIN & JENRETTE, INC.
277 PARK AVENUE
NEW YORK, NEW YORK 10172
(212) 892-3000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
COPIES TO:
-----------------------
JEFFREY SMALL
RICHARD D. TRUESDELL, JR.
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 450-4000
-----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- -----
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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EXPLANATORY NOTE
This Post-Effective Amendment to the Registration Statement contains a
Prospectus relating to certain market-making transactions in the $500,000,000
6 7/8 % Senior Notes due 2005 of Donaldson, Lufkin & Jenrette, Inc. In order
to register under Rule 415 of the Securities Act of 1933 those Senior Notes
that will be offered and sold in market-making transactions, the appropriate
box on the cover page of the Registration Statement has been checked and the
undertakings required by Item 512(a) of Regulation S-K have been included in
Item 17 of Part II.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION DATED JULY 12, 1996
PROSPECTUS
, 1996
$500,000,000
DONALDSON, LUFKIN & JENRETTE, INC.
6 7/8 % SENIOR NOTES DUE 2005
The 6 7/8 % Senior Notes due 2005 (the "Senior Notes") were originally
offered (the "Offering") by Donaldson, Lufkin & Jenrette, Inc. (the
"Company") pursuant to a Prospectus dated October 25, 1995. The Senior Notes
bear interest at the rate of 6 7/8 % per annum, payable semi-annually in
arrears on May 1 and November 1 of each year, commencing on May 1, 1996 and
will mature on November 1, 2005. The Senior Notes are not redeemable by the
Company prior to maturity and are not entitled to any sinking fund.
The Senior Notes were issued only in fully registered form and are
represented by one or more global notes registered in the name of a nominee
of The Depository Trust Company, as Depositary. Beneficial interests in
global notes are shown on and transfer thereof are effected through, the
records maintained by the Depositary (with respect to participants'
interests) and its participants. Except as described herein, the Senior Notes
are not available in definitive form. The Senior Notes will trade in DTC
Same-Day Funds Settlement System until maturity, and secondary market trading
activity for the Senior Notes will therefore settle in immediately available
funds. All payments of principal and interest will be made by the Company in
immediately available funds. See "Description of Senior Notes-- Same-Day
Settlement."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
This Prospectus has been prepared for use by Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC") in connection with offers and sales of the
Senior Notes which may be made by it from time to time in market-making
transactions at negotiated prices relating to prevailing market prices at the
time of sale. The Company has been advised by DLJSC that it currently makes a
market in the Senior Notes; however, it is not obligated to do so. Any such
market making may be discontinued at any time, and there is no assurance as
to the liquidity of, or trading market for, the Senior Notes. DLJSC may act
as principal or agent in such transactions. See "Plan of Distribution."
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The registration
statement of which this Prospectus forms a part, as well as reports, proxy
statements and other information filed by the Company, may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549; 7 World Trade Center, New York,
New York 10048; and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
at prescribed rates from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549. Such material may also be
accessed electronically by means of the Commission's home page on the
Internet at http: //www.sec.gov. The Company's common stock, par value $0.10
per share (the "Common Stock"), is listed on the New York Stock Exchange,
Inc. and reports and other information concerning the Company can also be
inspected at the office of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
This Prospectus constitutes a part of the Post-Effective Amendment on Form
S-3 to the Registration Statement on Form S-1 (together with all amendments
and exhibits thereto, the "Registration Statement") filed with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Senior Notes. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission.
Reference is made to such Registration Statement and to the exhibits relating
thereto for further information with respect to the Company and the Senior
Notes. Any statements contained herein concerning the provisions of any
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission or incorporated by reference herein are not necessarily
complete, and in each instance reference is made to the copy of such document
so filed for a more complete description of the matter involved. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1995, Quarterly Report on Form 10-Q for the quarter ended March 31, 1996 and
Current Reports on Form 8-K dated February 9, 1996 and February 12, 1996,
previously filed by the Company with the Commission, are incorporated by
reference in this Prospectus.
All documents filed by the Company after the date of this Prospectus
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the termination of the offering of the Senior Notes offered hereby, shall be
deemed to be incorporated herein by reference and to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statements as modified or superseded
shall be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon written or oral request of such person, a
copy of any or all of the documents referred to above which have been or may
be incorporated by reference in this Prospectus (other than certain exhibits
to such documents). Requests for such documents should be directed to
Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York
10172, Attention: Corporate Secretary (Telephone: (212) 892-3000).
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USE OF PROCEEDS
Donaldson, Lufkin & Jenrette, Inc. will not receive any proceeds from the
sale of the Senior Notes in any market making transaction with which this
Prospectus may be delivered.
RATIOS OF EARNINGS
TO FIXED CHARGES AND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends for the
Company for the periods indicated.
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THREE MONTHS ENDED
YEARS ENDED DECEMBER 31, MARCH 31,
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1991 1992 1993 1994 1995 1996
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Ratio of earnings to fixed
charges (1) ................. 1.07 1.21 1.20 1.10 1.11 1.16
Ratio of earnings to combined
fixed charges and preferred
stock dividends (2) ......... -- -- -- 1.09 1.10 1.15
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(1) For the purpose of calculating the ratio of earnings to fixed charges
(i) earnings consist of income before provision for income taxes and
fixed charges and (ii) fixed charges consist of interest expense and
one-third of rental expense which is deemed representative of an
interest factor.
(2) For the purpose of calculating the ratio of earnings to combined fixed
charges and preferred stock dividends (i) earnings consist of income
before provision for income taxes and fixed charges and (ii) fixed
charges consist of interest expense and one-third of rental expense
which is deemed representative of an interest factor. No preferred
dividends were paid until 1994.
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THE COMPANY
The Company is a leading integrated investment and merchant bank that
serves institutional, corporate, governmental and individual clients. The
Company's businesses include securities underwriting, sales and trading;
merchant banking; financial advisory services; investment research;
correspondent brokerage services; and asset management. While results have
fluctuated from year to year, for the years 1991 through 1995, the Company's
total revenues and net income increased by a compound annual growth rate of
22.8% and 32.7%, respectively. The Company's average annual after-tax return
on common equity for the past five years was 23.1%. At March 31, 1996, the
Company had total assets of $46.6 billion and total stockholders' equity of
$1.3 billion.
The Company's principal strategy is to focus its resources on certain core
businesses where management believes the Company can compete profitably and
be among the leading participants in each targeted market. Over the past
several years, the Company has significantly expanded the scope of its
business activities and its customer base, both in the U.S. and
internationally. It has established strong positions in selected high-margin
activities, including equity and high-yield corporate securities underwriting
as well as merchant banking, and has increased its market share in a broad
range of businesses. Key elements of this expansion have been the Company's
recruitment of experienced professionals during periods of turmoil in the
securities industry, the continued development and retention of the Company's
existing personnel at all levels and the continuity of senior management. In
addition, the Company has historically emphasized economic and investment
research in the development of its business and believes that its commitment
to research has been an important contributor to its success.
The Company conducts its business through three principal operating
groups, each of which is an important contributor to revenues and earnings:
the Banking Group, which includes the Company's Investment Banking, Merchant
Banking and Emerging Markets groups; the Capital Markets Group, consisting of
the Company's institutional debt and equity businesses as well as Sprout, its
venture capital affiliate; and the Financial Services Group, comprised of its
Pershing clearing division, high-net-worth retail brokerage and asset
management businesses.
The Company's Banking Group is a major participant in the raising of
capital and the providing of financial advice to companies throughout the
U.S. and has significantly expanded its activities abroad. Through its
Investment Banking group, the Company manages and underwrites public
offerings of securities, arranges private placements and provides advisory
and other services in connection with mergers, acquisitions, restructurings
and other financial transactions. Since 1991, the Investment Banking group
has raised over $190.0 billion for clients from the public and private
markets in corporate equity and debt securities and has completed over 350
merger and acquisition, restructuring and divestiture assignments aggregating
approximately $89.0 billion. Its Merchant Banking group pursues direct
investments in a variety of areas through a number of investment vehicles
funded with capital provided primarily by institutional investors, the
Company and its employees. Since the Company began investing in leveraged
investments in 1985 through March 31, 1996, it invested over $1.0 billion on
behalf of the Company, its employees and funds it manages in 52 companies
with an aggregate purchase price of over $19.5 billion and achieved an
average annual internal rate of return substantially in excess of comparable
industry benchmarks. The Emerging Markets group specializes in client
advisory services, merchant banking and the underwriting, sales and trading
of securities in Latin America, Asia and certain other international markets.
The Capital Markets Group encompasses a broad range of activities
including trading, research, origination and distribution of equity and
fixed-income securities, private equity investments and venture capital. Its
focus is primarily client-driven, in contrast to that of many other
securities firms which emphasize proprietary trading, an approach that
reduces the Company's exposure to market volatility. Its Taxable Fixed-Income
division provides institutional clients with research, trading and sales
services for a broad range of taxable fixed-income products including
high-yield corporate, investment-grade corporate, U.S. government and
mortgage-backed securities. The Institutional Equities division provides
institutional clients with research, trading and sales services in U.S.
listed and over-the-counter equity securities. The Company's equity sales and
trading capabilities, combined with its research expertise, have
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contributed to commission revenues increasing, for the years 1991 through
1995, at a compound annual growth rate of 15.6%. In addition, the Company's
Equity Derivatives division provides a broad range of equity and index
options products, while Sprout is one of the oldest and largest groups in the
private equity investment and venture capital industry.
The Financial Services Group provides a broad array of services to
individual investors and the financial intermediaries which represent them.
Pershing is a leading provider of correspondent brokerage services, clearing
transactions for over 600 U.S. brokerage firms which collectively maintain
over 1.3 million client accounts. These client accounts held over $ 127.0
billion of assets at March 31, 1996. During 1995, Pershing accounted for more
than 10% of the daily reported trading volume on the NYSE. In addition,
Pershing's PC Financial Network (Service Mark) , a leading on-line discount
broker in the U.S., has experienced significant growth over the past several
years. The Company's Investment Services Group, which consists of
approximately 270 account executives, provides high-net-worth individuals and
medium to smaller size institutions with access to the Company's equity and
fixed-income research, trading services and underwriting and has one of the
highest revenues per account executive in the industry. Through Wood,
Struthers & Winthrop Management Corp. and affiliates the Company provides
investment management and trust services primarily to high-net-worth
individual investors and institutions, and at March 31, 1996 had over $4.1
billion in assets under management.
Apart from its three principal operating groups, the Company also
maintains a separate brokerage subsidiary, Autranet, Inc., which provides
institutional investors with research generated by independent originators
that are not affiliated with Wall Street brokerage firms.
Founded in 1959, the Company initially focused on providing in-depth
investment research to institutional investors. In 1970, the Company became
the first member firm of the New York Stock Exchange, Inc. to be owned
publicly. Fifteen years later, the Company was purchased by subsidiaries of
The Equitable Companies Incorporated ("EQ") (EQ and its subsidiaries other
than the Company, collectively, "Equitable"). Equitable, which as of March
31, 1996, owned an approximately 80% interest in the Company following the
Company's initial public offering in October 1995, is a diversified financial
services organization and one of the world's largest investment management
organizations. AXA is EQ's largest stockholder, beneficially owning at March
31, 1996, approximately 60.7% of EQ's outstanding shares of common stock and
$392.2 million of EQ's Series E convertible preferred stock.
The principal executive offices of the Company are located at 277 Park
Avenue, New York, NY, 10172 and its telephone number is (212) 892-3000. The
Company has 17 additional offices in 14 locations in the U.S., and ten
offices in Europe, Asia and Latin America.
5
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DESCRIPTION OF SENIOR NOTES
The Senior Notes were issued under an indenture dated as of October 25,
1995 (the "Indenture") between Donaldson, Lufkin & Jenrette, Inc., as issuer
(the "Issuer"), and The Bank of New York, as trustee (the "Trustee").
A copy of the Indenture has been incorporated by reference as an exhibit
to the Registration Statement of which this Prospectus is a part. The
Indenture is subject to and governed by the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). Section references contained herein are
to the Indenture. The following summaries of certain provisions of the
Indenture do not purport to be complete, and where reference is made to
particular provisions of the Indenture, such provisions, including
definitions of certain terms, are incorporated by reference as a part of such
summaries or terms, which are qualified in their entirety by such reference.
GENERAL
The Indenture provides for the issuance of debentures, notes (including
the Senior Notes) or other evidences of indebtedness by the Issuer
("Securities") in an unlimited amount. Additional Securities may be issued
under the Indenture from time to time. In addition to the Senior Notes, in
February 1996 the Company issued $250,000,000 in aggregate principal amount
of 5 5/8 % Medium-Term-Notes due 2016 under the Indenture, all of which were
outstanding as of the date hereof.
The Senior Notes will mature on November 1, 2005 and are limited to
$500,000,000 aggregate principal amount. The Senior Notes are unsubordinated
and unsecured obligations of the Issuer, ranking pari passu in right of
payment with all other existing and future unsubordinated and unsecured
indebtedness of the Issuer. The operations of the Issuer are conducted
through its subsidiaries, and, therefore, the Issuer is dependent upon the
earnings and cash flow of its subsidiaries to meet its obligations, including
obligations under the Senior Notes. The Senior Notes will be effectively
subordinated to all indebtedness of the Issuer's subsidiaries. As of March
31, 1996, the aggregate amount of indebtedness of the Issuer's subsidiaries
to which holders of the Senior Notes would have been structurally
subordinated was approximately $1.4 billion, substantially all of which was
incurred under customary arrangements utilized by the securities brokerage
industry. The Issuer's rights and the rights of its creditors, including
holders of Senior Notes, to participate in the distribution of assets of any
subsidiary upon such subsidiary's liquidation or reorganization will be
subject to prior claims of such subsidiary's creditors, including trade
creditors, except to the extent the Issuer may itself be a creditor with
recognized claims against such subsidiary. In addition, net capital
requirements under the Exchange Act and NYSE rules applicable to certain of
the Issuer's subsidiaries could limit the payment of dividends and the making
of loans and advances to the Issuer by such subsidiaries.
Each Senior Note bears interest at the rate set forth on the cover page
hereof from October 30, 1995 or from the most recent interest payment date to
which interest has been paid, payable semi-annually on May 1 and November 1
of each year, commencing on May 1, 1996, to the person in whose name the
Senior Note is registered on the close of business on the April 15 or October
15 next preceding such interest payment date (Section 2.4).
The Senior Notes were issued only in fully registered form in
denominations of $1,000 and any integral multiple thereof and are represented
by one or more global Senior Notes (each a "Global Security") registered in
the name of a nominee of The Depository Trust Company, as Depositary (the
"Depositary"). Beneficial interests in the Global Securities are shown on,
and transfers thereof are effected through, the records maintained by the
Depositary (with respect to participants' interests) and its participants.
See "--Book-Entry System."
The Senior Notes may not be redeemed by the Company prior to maturity and
are not entitled to any mandatory sinking fund payments for the Senior Notes.
BOOK-ENTRY SYSTEM
The Senior Notes were issued under a book-entry system in the form of a
Global Security. Each Global Security was deposited with, or on behalf of,
The Depository Trust Company, New York, New York. The Global Securities are
registered in the name of the Depositary or its nominee.
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The Depositary has advised the Issuer that the Depositary is a limited
purpose trust company organized under the laws of the State of New York, a
"banking organization" within the meaning of the New York banking law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of section 17A of the Exchange Act. The
Depositary was created to hold securities of its participants and to
facilitate the clearance and settlement of securities transactions among its
participants through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of
securities certificates. The Depositary's participants include securities
brokers and dealers (including the Underwriters), banks, trust companies,
clearing corporations, and certain other organizations, some of whom (and/or
their representatives) own the Depositary. Access to the Depositary's
book-entry system is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly.
Ownership of beneficial interests in the Global Security is limited to
participants or persons that may hold interests through participants.
Ownership of beneficial interests by participants in the Global Security is
shown on, and the transfer of that ownership interest is effected only
through, records maintained by such participants. The laws of some
jurisdictions may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such laws may impair the
ability to own, transfer or pledge beneficial interest in a Global Security.
So long as the Depositary or its nominee is the registered owner of a
Global Security, it will be considered the sole owner or holder of the Senior
Notes for all purposes under the Indenture. Except as set forth below, owners
of a beneficial interest in such Global Security will not be entitled to have
the Senior Notes represented thereby registered in their names, will not
receive or be entitled to receive physical delivery of certificates
representing the Senior Notes and will not be considered the owners or
holders thereof under the Indenture. Accordingly, each person owning a
beneficial interest in such Global Security must rely on the procedures of
the Depositary and, if such person is not a participant, on the procedures of
the participant through which such person owns its interest, to exercise any
rights of a holder under the Indenture. The Issuer understands that under
existing practice, in the event that the Issuer requests any action of a
holder or a beneficial owner desires to take any action a holder is entitled
to take, the Depositary would act upon the instructions of, or authorize, the
participant to take such action.
Payment of principal of, and interest on, the Senior Notes will be made to
the Depositary or its nominee, as the case may be, as the registered owner
and holder of the Global Security representing such Senior Notes. None of the
Issuer, the Trustee, any paying agent or registrar for the Senior Notes will
have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in the
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
The Issuer has been advised by the Depositary that the Depositary will
credit participants' accounts with payments of principal or interest on the
payment date thereof in amounts proportionate to their respective beneficial
interests in the principal amount of the Global Security as shown on the
records of the Depositary. The Issuer expects that payments by participants
to owners of beneficial interests in the Global Security held through such
participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers registered in "street name," and will be the responsibility of such
participants.
A Global Security may not be transferred except as a whole by the
Depositary to a nominee or successor of the Depositary or by a nominee of the
Depositary to another nominee of the Depositary. A Global Security
representing all but not part of the Senior Notes is exchangeable for Senior
Notes in definitive form of like tenor and terms if (i) the Depositary
notifies the Issuer that it is unwilling or unable to continue as depositary
for such Global Security or if at any time the Depositary is no longer
eligible to be, or in good standing as, a clearing agency registered under
the Exchange Act, and in either case, a successor depositary is not appointed
by the Issuer within 90 days of receipt by the Issuer of such notice
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or of the Issuer becoming aware of such ineligibility, or (ii) the Issuer in
its sole discretion at any time determines not to have all of the Senior
Notes represented by a Global Security and notifies the Trustee thereof. A
Global Security exchangeable pursuant to the preceding sentence shall be
exchangeable for Senior Notes registered in such names and in such authorized
denominations as the Depositary for such Global Security shall direct.
SAME-DAY SETTLEMENT
All payments by the Issuer to the Depositary of principal and interest
will be made in immediately available funds.
So long as any Senior Notes are represented by Global Securities
registered in the name of the Depositary or its nominee, such Senior Notes
will trade in DTC's Same-Day Funds Settlement system, and secondary market
trading activity in such Notes will therefore be required by the Depositary
to settle in immediately available funds. No assurance can be given as to the
effect, if any, of settlement in immediately available funds on trading
activity in the Senior Notes.
NEGATIVE PLEDGE
The Indenture provides that the Issuer and any successor corporation will
not, and will not permit any Subsidiary to, create, assume, incur or
guarantee any indebtedness for borrowed money secured by a pledge, lien or
other encumbrance except for Permitted Liens (as defined in the Indenture) on
the Voting Stock of DLJSC or any other Subsidiary of the Issuer which shall
hereafter succeed by merger or otherwise to all or substantially all of the
business of DLJSC (a "DLJSC Successor"), without making effective provision
whereby the Senior Notes will be secured equally and ratably with such
secured indebtedness (Section 4.3).
CERTAIN DEFINITIONS
The term "Holder" or "Securityholder" as defined in the Indenture means
the registered holder of any Security with respect to registered Securities
and the bearer of any unregistered Security or any coupon appertaining
thereto, as the case may be.
"Original Issue Discount Security" as defined in the Indenture means any
Security that provides for an amount less than the principal amount thereof
to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2 of the Indenture.
The term "Subsidiary" as defined in the Indenture means with respect to
any Person, any corporation, association or other business entity of which
more than 50% of the outstanding Voting Stock (as defined in the Indenture)
is owned directly or indirectly, by such Person and one or more other
Subsidiaries of such Person.
RESTRICTIONS ON MERGERS AND SALES OF ASSETS
Under the Indenture, the Issuer shall not consolidate with, merge with or
into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or substantially
as an entirety in one transaction or a series of related transactions) to,
any Person (other than a consolidation with or merger with or into a
Subsidiary or a sale, conveyance, transfer, lease or other disposition to a
Subsidiary) or permit any Person to merge with or into the Issuer unless: (a)
either (i) the Issuer shall be the continuing Person or (ii) the Person (if
other than the Issuer) formed by such consolidation or into which the Issuer
is merged or that acquired or leased such property and assets of the Issuer
shall be a corporation organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee,
all of the obligations of the Issuer on all of the Securities and under the
Indenture and the Issuer shall have delivered to the Trustee an opinion of
counsel stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all conditions
precedent provided for in the Indenture relating to such transaction have
been complied with and that
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such supplemental indenture constitutes the legal, valid and binding
obligation of the Issuer or such successor enforceable against such entity in
accordance with the terms, subject to customary exceptions; and (b) the
Issuer shall have delivered to the Trustee an officers' certificate to the
effect that immediately after giving effect to such transaction, no Default
(as defined in the Indenture) shall have occurred and be continuing and an
opinion of counsel as to the matters set forth in paragraph (a) above.
(Section 5.1)
EVENTS OF DEFAULT
Events of Default defined in the Indenture with respect to the Securities
of any series are: (a) the Issuer defaults in the payment of all or any part
of the principal of any Security of such series when the same becomes due and
payable at maturity, upon acceleration, redemption or mandatory repurchase,
including as a sinking fund installment, or otherwise; (b) the Issuer
defaults in the payment of any interest on any Security of such series when
the same becomes due and payable, and such default continues for a period of
30 days; (c) the Issuer defaults in the performance of or breaches any other
covenant or agreement of the Issuer in the Indenture with respect to any
Security of such series or in the Securities of such series and such default
or breach continues for a period of 60 consecutive days after written notice
thereof has been given to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of 25% or more in aggregate principal amount of the
Securities of all series affected thereby; (d) an involuntary case or other
proceeding shall be commenced against the Issuer or DLJSC (including for
purposes of paragraph (d) and (e) hereof any DLJSC Successor) with respect to
the Issuer or DLJSC or their respective debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of the Issuer or DLJSC or for any substantial part of the property
and assets of the Issuer or DLJSC, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60 days; or
an order for relief shall be entered against the Issuer or DLJSC under any
bankruptcy, insolvency or other similar law now or hereafter in effect; (e)
the Issuer or DLJSC (i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any
such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Issuer or DLJSC or for all or substantially all of the
property and assets of the Issuer or DLJSC or (iii) effects any general
assignment for the benefit of creditors; (f) an event of default, as defined
in any one or more indentures or instruments evidencing or under which the
Issuer has at the date of the Indenture or shall thereafter have outstanding
an aggregate of at least $25,000,000 aggregate principal amount of
indebtedness for borrowed money, shall happen and be continuing and such
indebtedness shall have been accelerated so that the same shall be or become
due and payable prior to the date on which the same would otherwise have
become due and payable, and such acceleration shall not be rescinded or
annulled within ten days after notice thereof shall have been given to the
Issuer by the Trustee (if such event be known to it), or to the Issuer and
the Trustee by the holders of at least 25% in aggregate principal amount of
the Securities at the time outstanding; provided that if such event of
default under such indentures or instruments shall be remedied or cured by
the Issuer or waived by the holders of such indebtedness, then the Event of
Default under the Indenture by reason thereof shall be deemed likewise to
have been thereupon remedied, cured or waived without further action upon the
part of either the Trustee or any of the Securityholders; (g) failure by the
Issuer to make any payment at maturity, including any applicable grace
period, in respect of at least $25,000,000 aggregate principal amount of
indebtedness for borrowed money and such failure shall have continued for a
period of ten days after notice thereof shall have been given to the Issuer
by the Trustee (if such event be known to it), or to the Issuer and the
Trustee by the holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding; provided that if such failure shall be
remedied or cured by the Issuer or waived by the holders of such
indebtedness, then the Event of Default under the Indenture by reason thereof
shall be deemed likewise to have been thereupon remedied, cured or waived
without further action upon the part of either the Trustee or any of the
Securityholders; or (h) any other Event of Default established with respect
to any series of Securities issued pursuant to the Indenture occurs. (Section
6.1)
The Indenture provides that if an Event of Default described in clauses
(a) or (b) of the immediately preceding paragraph with respect to the
Securities of any series then outstanding occurs and is continuing,
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then, and in each and every such case, except for any series of Securities
the principal of which shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the Securities of any such affected series then outstanding under the
Indenture (each such series treated as a separate class) by notice in writing
to the Issuer (and to the Trustee if given by Securityholders), may declare
the entire principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series established pursuant to the
Indenture) of all Securities of such affected series, and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Event of
Default described in clauses (c) or (h) of the immediately preceding
paragraph with respect to the Securities of one or more series then
outstanding occurs and is continuing, then, in each and every such case,
except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than
25% in aggregate principal amount (or, if the Securities of any such series
are Original Issue Discount Securities, such portion of the principal as may
be specified in the terms thereof established pursuant to the Indenture) of
the Securities of all such affected series then outstanding under the
Indenture (treated as a single class) by notice in writing to the Issuer (and
to the Trustee if given by Securityholders), may declare the entire principal
amount (or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to the Indenture) of all Securities
of all such affected series, and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall
become immediately due and payable. If an Event of Default described in
clauses (d) or (e) of the immediately preceding paragraph occurs and is
continuing, then the principal amount (or, if any Securities are Original
Issue Discount Securities, such portion of the principal as may be specified
in the terms thereof established pursuant to the Indenture) of all the
Securities then outstanding and interest accrued thereon, if any, shall be
and become immediately due and payable, without any notice or other action by
any Holder or the Trustee to the full extent permitted by applicable law. If
an Event of Default described in clauses (f) or (g) of the immediately
preceding paragraph, or in clauses (c) or (h) of the immediately preceding
paragraph with respect to the Securities of all series then outstanding,
occurs and is continuing, then, in each and every such case, either the
Trustee or the Holders of not less than 25% in aggregate principal amount
(or, if the Securities of any outstanding series are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof established pursuant to the Indenture) of all Securities of any
series then outstanding under the Indenture except for any series of
Securities the principal of which shall have already become due and payable
(treated as a single class) by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal amount
(or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to the Indenture) of all Securities
of any series then outstanding, and the interest accrued thereon, if any, to
be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable. Upon certain conditions such declarations
may be rescinded and annulled and past defaults may be waived by the Holders
of a majority in principal of the then outstanding Securities of all such
series that have been accelerated (voting as a single class). (Section 6.2)
Because the ability of Holders to declare the Securities of any series due
and payable upon an Event of Default under clauses (c), (f), (g) or (h) of
the immediately preceding paragraph depends on the requisite action by
Holders of all affected series of Securities, if there is more than one
series of Securities outstanding, Holders of Senior Notes may be unable to
declare the Senior Notes due and payable upon an Event of Default described
in clauses (c), (f), (g) or (h) of the immediately preceding paragraph
without action by Holders of such other series. In addition to the Senior
Notes, in February 1996 the Company issued $250,000,000 in aggregate
principal amount of 5 5/8 % Medium-Term-Notes due 2016 under the Indenture,
all of which were outstanding as of the date hereof.
The Indenture contains a provision under which, subject to the duty of the
Trustee during a default to act with the required standard of care, (i) the
Trustee may rely and shall be protected in acting or refraining from acting
upon any officers' certificate, opinion of counsel (or both), resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
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other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper person or
persons and the Trustee need not investigate any fact or matter stated in the
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit; (ii) before
the Trustee acts or refrains from acting, it may require an officers'
certificate and/or an opinion of counsel, which shall conform to the
requirements of the Indenture and the Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion; subject to the terms of the Indenture, whenever in
the administration of the trusts of the Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action under the Indenture, such matter
(unless other evidence in respect thereof be specifically prescribed in the
Indenture) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an officers'
certificate delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted to be taken by it under
the provisions of the Indenture upon the faith thereof; (iii) the Trustee may
act through its attorneys and agents not regularly in its employ and shall
not be responsible for the misconduct or negligence of any agent or attorney
appointed with due care; (iv) any request, direction, order or demand of the
Issuer mentioned in the Indenture shall be sufficiently evidenced by an
officers' certificate (unless other evidence in respect thereof be
specifically prescribed in the Indenture); and any Board Resolution may be
evidenced to the Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Issuer; (v) the Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by the
Indenture at the request, order or direction of any of the Holders, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred
by it in compliance with such request, order or direction; (vi) the Trustee
shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within its rights or powers or for any
action it takes or omits to take in accordance with the direction of the
Holders in accordance with the Indenture relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under the
Indenture; (vii) the Trustee may consult with counsel and the written advice
of such counsel or any opinion of counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted to be taken by it under the Indenture in good faith and in reliance
thereon; and (viii) prior to the occurrence of an Event of Default under the
Indenture and after the curing or waiving of all Events of Default, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, officers' certificate, opinion
of counsel, Board Resolution, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of the Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding. (Section 7.2)
Subject to such provisions in the Indenture for the indemnification of the
Trustee and certain other limitations, the Holders of at least a majority in
aggregate principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof established pursuant to the Indenture) of the outstanding Securities
of all series affected (voting as a single class) may direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by the Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or the
Indenture, that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further,
that the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities pursuant
to this paragraph. (Section 6.5)
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Subject to various provisions in the Indenture, the Holders of at least a
majority in principal amount (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof established pursuant to the Indenture) of the outstanding
Securities of all series affected (voting as a single class), by notice to
the Trustee, may waive an existing Default or Event of Default with respect
to the Securities of such series and its consequences, except a Default in
the payment of principal of or interest on any Security as specified in
clauses (a) or (b) of Section 6.1 of the Indenture or in respect of a
covenant or provision of the Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series arising therefrom shall be
deemed to have been cured, for every purpose of the Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto. (Section 6.4)
The Indenture provides that no Holder of any Securities of any series may
institute any proceeding, judicial or otherwise, with respect to the
Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy under the Indenture, unless: (i)
such Holder has previously given to the Trustee written notice of a
continuing Event of Default with respect to the Securities of such series;
(ii) the Holders of at least 25% in aggregate principal amount of outstanding
Securities of all such series affected shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee under the Indenture; (iii) such Holder or Holders have
offered to the Trustee indemnity reasonably satisfactory to the Trustee
against any costs, liabilities or expenses to be incurred in compliance with
such request; (iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and (v) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities of all such affected series
have not given the Trustee a direction that is inconsistent with such written
request. A Holder may not use the Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
(Section 6.6)
The Indenture contains a covenant that the Issuer will file with the
Trustee, within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information,
documents and other reports which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
(Section 4.5)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides with respect to each series of Securities that the
Issuer may terminate its obligations under the Securities of any series and
the Indenture with respect to Securities of such series if: (i) all
Securities of such series previously authenticated and delivered, with
certain exceptions, have been delivered to the Trustee for cancellation and
the Issuer has paid all sums payable by it under the Indenture; or (ii) (a)
the Securities of such series mature within one year or all of them are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for giving the notice of redemption, (b) the Issuer irrevocably
deposits in trust with the Trustee, as trust funds solely for the benefit of
the Holders of such Securities for that purpose, money or U.S. Government
Obligations or a combination thereof sufficient (unless such funds consist
solely of money, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment, to pay
the principal of and interest on the Securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable by it under
the Indenture, and (c) the Issuer delivers to the Trustee an officers'
certificate and an opinion of counsel, in each case stating that all
conditions precedent provided for in the Indenture relating to the
satisfaction and discharge of the Indenture with respect to the Securities of
such series have been complied with. With respect to the foregoing clause
(i), only the Issuer's obligations to compensate and indemnify the Trustee
under the Indenture shall survive. With respect to the foregoing clause (ii),
only the Issuer's obligations to execute and deliver Securities of such
series for authentication, to set the terms of the Securities of such series,
to maintain an office or agency in respect of the Securities of such series,
to have moneys held for payment in trust, to register the transfer or
exchange of Securities of such series, to deliver Securities of such series
for replacement or to be canceled, to compensate and indemnify the
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Trustee and to appoint a successor trustee, and its right to recover excess
money held by the Trustee shall survive until such Securities are no longer
outstanding. Thereafter, only the Issuer's obligations to compensate and
indemnify the Trustee, and its right to recover excess money held by the
Trustee shall survive. (Section 8.1)
The Indenture provides that the Issuer (i) will be deemed to have paid and
will be discharged from any and all obligations in respect of the Securities
of any series, and the provisions of the Indenture will, except as noted
below, no longer be in effect with respect to the Securities of such series
("legal defeasance") and (ii) may omit to comply with any term, provision or
condition of the Indenture described above under "--Negative Pledge" (or any
other specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture which may by its terms be defeased
pursuant to the Indenture), and such omission shall be deemed not to be an
Event of Default under clauses (c) or (h) of the first paragraph of "--Events
of Default" with respect to the outstanding Securities of a series ("covenant
defeasance"); provided that the following conditions shall have been
satisfied: (a) the Issuer has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities of
such series, for payment of the principal of and interest on the Securities
of such series, money or U.S. Government Obligations or a combination thereof
sufficient (unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local taxes
or other charges and assessments in respect thereof payable by the Trustee,
to pay and discharge the principal of and accrued interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the case may
be; (b) such deposit will not result in a breach or violation of, or
constitute a default under, the Indenture or any other material agreement or
instrument to which the Issuer is a party or by which it is bound; (c) no
Default with respect to such Securities of such series shall have occurred
and be continuing on the date of such deposit; (d) the Issuer shall have
delivered to the Trustee an opinion of counsel that (1) the Holders of the
Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of the Issuer's exercise of its option under
this provision of the Indenture and will be subject to federal income tax on
the same amount and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred and (2) the
Holders of the Securities of such series have a valid security interest in
the trust funds subject to no prior liens under the Uniform Commercial Code,
and (e) the Issuer has delivered to the Trustee an officers' certificate and
an opinion of counsel, in each case stating that all conditions precedent
provided for the Indenture relating to the defeasance contemplated have been
complied with. In the case of legal defeasance under clause (i) above, the
opinion of counsel referred to in clause (d)(1) above may be replaced by a
ruling directed to the Trustee received from the Internal Revenue Service to
the same effect. Subsequent to legal defeasance under clause (i) above, the
Issuer's obligations to execute and deliver Securities of such series for
authentication, to set the terms of the Securities of such series, to
maintain an office or agency in respect of the Securities of such series, to
have moneys held for payment in trust, to register the transfer or exchange
of Securities of such series, to deliver Securities of such series for
replacement or to be canceled, to compensate and indemnify the Trustee and to
appoint a successor trustee, and its right to recover excess money held by
the Trustee shall survive until such Securities are no longer outstanding.
After such Securities are no longer outstanding, in the case of legal
defeasance under clause (i) above, only the Issuer's obligations to
compensate and indemnify the Trustee and its right to recover excess money
held by the Trustee shall survive. (Sections 8.2 and 8.3)
MODIFICATION OF THE INDENTURE
The Indenture provides that the Issuer and the Trustee may amend or
supplement the Indenture or the Securities of any series without notice to or
the consent of any Holder: (1) to cure any ambiguity, defect or inconsistency
in the Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders; (2) to comply
with Article 5 of the Indenture in connection with a consolidation or merger
of the Issuer or the sale, conveyance, transfer, lease or other disposal of
all or substantially all of the property and assets of the Issuer; (3) to
comply with any requirements of the Commission in connection with the
qualification of the Indenture under the Trust
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Indenture Act; (4) to evidence and provide for the acceptance of appointment
under the Indenture with respect to the Securities of any or all series by a
successor Trustee; (5) to establish the form or forms or terms of Securities
of any series or of the coupons pertaining to such Securities as permitted
under the Indenture; (6) to provide for uncertificated or unregistered
Securities and to make all appropriate changes for such purpose; or (7) to
make any change that does not materially and adversely affect the rights of
any Holder. (Section 9.1)
The Indenture also contains provisions whereby the Issuer and the Trustee,
subject to certain conditions, without prior notice to any Holders, may amend
the Indenture and the outstanding Securities of any series with the written
consent of the Holders of a majority in principal amount of the Securities
then outstanding of all series affected by such amendment (all such series
voting as one class), and the Holders of a majority in principal amount of
the outstanding Securities of all series affected thereby (all such series
voting as one class) by written notice to the Trustee may waive future
compliance by the Issuer with any provision of the Indenture or the
Securities of such series. Notwithstanding the foregoing provisions, without
the consent of each Holder affected thereby, an amendment or waiver,
including a waiver pursuant to Section 6.4 of the Indenture, may not: (i)
extend the stated maturity of the principal of, or any sinking fund
obligation or any installment of interest on, such Holder's Security, or
reduce the principal thereof or the rate of interest thereon (including any
amount in respect of original issue discount), or any premium payable with
respect thereto, or adversely affect the rights of such Holder under any
mandatory redemption or repurchase provision or any right of redemption or
repurchase at the option of such Holder, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof or the amount thereof
provable in bankruptcy, or change any place of payment where, or the currency
in which, any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on
or after the due date therefor; (ii) reduce the percentage in principal
amount of outstanding Securities of the relevant series the consent of whose
Holders is required for any such supplemental indenture, for any waiver of
compliance with certain provisions of the Indenture or certain Defaults and
their consequences provided for in the Indenture; (iii) waive a Default in
the payment of principal of or interest on any Security of such Holder; or
(iv) modify any of the provisions of this provision of the Indenture, except
to increase any such percentage or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Security affected thereby. A supplemental
indenture which changes or eliminates any covenant or other provision of the
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of Holders
of Securities of such series with respect to such covenant or provision,
shall be deemed not to affect the rights under the Indenture of the Holders
of Securities of any other series or of the coupons appertaining to such
Securities. It shall not be necessary for the consent of any Holder under
this provision of the Indenture to approve the particular form of any
proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof. After an amendment, supplement or
waiver under this section of the Indenture becomes effective, the Issuer
shall give to the Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. The Issuer will mail supplemental indentures
to Holders upon request. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver. (Section 9.2)
GOVERNING LAW
The Indenture and the Senior Notes are governed by the laws of the State
of New York.
CONCERNING THE TRUSTEE
The Issuer and its subsidiaries maintain ordinary banking relationships
with The Bank of New York and its affiliates.
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PLAN OF DISTRIBUTION
This Prospectus has been prepared for use by DLJSC in connection with
offers and sales of the Senior Notes in market-making transactions at
negotiated prices related to prevailing market prices at the time of the
sale. DLJSC may act as principal or agent in such transactions. DLJSC has
advised the Company that it currently makes a market in the Senior Notes, but
it is not obligated to do so and may discontinue any such market-making at
any time without notice. Accordingly, no assurance can be given as to the
liquidity of, or the trading market for, the Senior Notes.
DLJSC served as an underwriter in the Offering and received total
underwriting discounts and commissions of $1,419,000 in connection therewith.
LEGAL MATTERS
The validity of the Senior Notes has been passed upon for the Company by
Davis Polk & Wardwell.
EXPERTS
The consolidated financial statements and financial statement schedule of
the Company as of December 31, 1995 and 1994 and for each of the years in the
three-year period ended December 31, 1995 have been incorporated by reference
herein and in the Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated
herein by reference, and upon the authority of said firm as experts in
accounting and auditing.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN CONNECTION
WITH ANY OFFERING CONTEMPLATED HEREBY, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY AGENT OR DEALER. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO
OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
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<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Available Information ..................... 2
Incorporation of Certain Information by
Reference ................................ 2
Use of Proceeds ........................... 3
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and
Preferred Stock Dividends ................ 3
The Company ............................... 4
Description of Senior Notes ............... 6
Plan of Distribution ...................... 15
Legal Matters ............................. 15
Experts ................................... 15
</TABLE>
===============================================================================
$500,000,000
DONALDSON, LUFKIN &
JENRETTE, INC.
6 7/8 % SENIOR NOTES
DUE 2005
----------
PROSPECTUS
----------
, 1996
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCES AND DISTRIBUTION
The following table sets forth the fees and expenses payable by the
Company in connection with the issuance and distribution of the securities
other than underwriting discounts and commissions. All of such expenses
except the Securities and Exchange Commission registration fee are estimated:
Securities and Exchange Commission registration fee $ 155,173
NASD filing fee ..................................... 30,500
Blue Sky fees and expenses .......................... 20,000
Printing expense .................................... 150,000
Accounting fees and expenses ........................ 100,000
Legal fees and expenses ............................. 325,000
Rating agency fees .................................. 190,000
Trustee's fees and expenses ......................... 10,000
Miscellaneous ....................................... 219,327
------------
Total ........................................... $1,200,000
============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty,
except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
the unlawful payment of dividends or unlawful stock purchases or redemptions)
or (iv) for any transaction from which a director derived an improper
personal benefit.
Section 145 of the DGCL empowers the Company to indemnify, subject to the
standards set forth therein, any person in connection with any action, suit
or proceeding brought before or threatened by reason of the fact that the
person was a director, officer, employee or agent of such company, or is or
was serving as such with respect to another entity at the request of such
company. The DGCL also provides that the Company may purchase insurance on
behalf of any such director, officer, employee or agent.
The Company's Certificate of Incorporation provides in effect for the
indemnification by the Company of each director and officer of the Company to
the fullest extent permitted by applicable law.
ITEM 16. EXHIBITS
See index to exhibits at E-1.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if
II-1
<PAGE>
the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraph (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrants pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 15 above or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, Donaldson,
Lufkin & Jenrette, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this post-effective amendment to the registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City of New York, New York, on the 12th day of July, 1996.
DONALDSON, LUFKIN & JENRETTE, INC.
By: /s/ John S. Chalsty
-------------------------------------
John S. Chalsty
Chairman, Chief Executive Officer and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
POST-EFFECTIVE AMENDMENT TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
- ------------------------ --------------------------------- -----------------
/s/ John S. Chalsty Chairman, Chief Executive July 12, 1996
- ------------------------- Officer and Director
John S. Chalsty
* President, Chief Operating July 12, 1996
- ------------------------- Officer and Director
Joe L. Roby
* Vice Chairman and Director July 12, 1996
- -------------------------
Carl B. Menges
* Executive Vice President, Chief July 12, 1996
- ------------------------- Financial Officer and Director
Anthony F. Daddino
* Chairman, Financial Services July 12, 1996
- ------------------------- Group and Director
Richard S. Pechter
* Chairman, Capital Markets Group July 12, 1996
- ------------------------- and Director
Theodore P. Shen
Chairman, Banking Group and July 12, 1996
- ------------------------- Director
Hamilton E. James
* Senior Vice President and Chief July 12, 1996
- ------------------------- Accounting Officer
Michael M. Bendik
Director July 12, 1996
- -------------------------
Claude Bebear
* Director July 12, 1996
- -------------------------
Henri de Castries
II-3
<PAGE>
SIGNATURE TITLE DATE
- ------------------------ --------------------------------- -----------------
* Director July 12, 1996
- -------------------------
Jerry M. de St. Paer
Director July 12, 1996
- -------------------------
Kevin C. Dolan
Director July 12, 1996
- -------------------------
Louis Harris
* Director July 12, 1996
- -------------------------
Henri G. Hottinguer
* Director July 12, 1996
- -------------------------
W. Edwin Jarmain
Director July 12, 1996
- -------------------------
Francis Jungers
* Director July 12, 1996
- -------------------------
Joseph J. Melone
Director July 12, 1996
- -------------------------
W. J. Sanders
Director July 12, 1996
- -------------------------
John C. West
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
- ----------- ----------------------------------------------------------------------------- ----------------
<S> <C> <C>
1.1 Form of Underwriting Agreement# ..............................................
4.1 Senior Notes Indenture dated as of October 25, 1995 between the Company and
The Bank of New York, as Trustee* ............................................
4.2 Form of Senior Note# .........................................................
5.1 Opinion of Davis Polk & Wardwell regarding the validity of the Securities
being registered# ............................................................
12.1 Computation of ratio of earnings to fixed charges and ratio of earnings to
combined fixed charges and preferred stock dividends .........................
23.1 Consent of Davis Polk & Wardwell (included Exhibit 5.1) ......................
23.2 Consent of KPMG Peat Marwick LLP .............................................
24.1 Power of Attorney# ...........................................................
25.1 Statement of Eligibility of Trustee on Form T-1 (separately bound)# .........
- ------------
</TABLE>
# Previously filed.
* Incorporated by reference to Exhibit 4.1 to the Registrant's Quarterly
Report on Form 10-Q filed on December 8, 1995.
E-1
EXHIBIT 12.1
DONALDSON, LUFKIN & JENRETTE, INC.
STATEMENT RE: COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT FOR RATIO)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31,
----------------------------------------
1991 1992 1993
------------ ------------ ------------
<S> <C> <C> <C>
Earnings:
Income before provision for
income taxes ................ $ 89,000 $ 245,000 $ 302,000
Add: Fixed Charges
Interest expense (gross) .... 1,244,332 1,130,709 1,465,303
Interest factor in rents ... 13,619 13,899 15,432
------------ ------------ ------------
Total fixed charges ......... 1,257,951 1,144,608 1,480,735
Earnings before fixed charges,
and provision for income
taxes ........................ $1,346,951 $1,389,608 $1,782,735
============ ============ ============
Ratio of earnings to fixed
charges ...................... 1.07 1.21 1.20
============ ============ ============
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
THREE MONTHS
FISCAL YEAR ENDED MARCH
ENDED DECEMBER 31, 31,
-------------------------- --------------
1994 1995 1996
------------ ------------ --------------
<S> <C> <C> <C>
Earnings:
Income before provision for
income taxes ................ $ 205,000 $ 298,500 $108,500
Add: Fixed Charges
Interest expense (gross) .... 2,116,655 2,699,769 662,386
Interest factor in rents ... 18,565 22,064 7,399
------------ ------------ --------------
Total fixed charges ......... 2,135,220 2,721,833 669,785
Earnings before fixed charges,
and provision for income
taxes ........................ $2,340,220 $3,020,333 $778,285
============ ============ ==============
Ratio of earnings to fixed
charges ...................... 1.10 1.11 1.16
============ ============ ==============
</TABLE>
<PAGE>
EXHIBIT 12.1
DONALDSON, LUFKIN & JENRETTE, INC.
STATEMENT RE: COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(IN THOUSANDS, EXCEPT FOR RATIO)
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH
DECEMBER 31, 31,
-------------------------- --------------
1994 1995 1996
------------ ------------ --------------
<S> <C> <C> <C>
Earnings:
Income before provision for income taxes ................ $ 205,000 $ 298,500 $108,500
Add: Fixed Charges
Interest (gross) ........................................ 2,116,655 2,699,769 662,386
Interest factor in rents ............................... 18,565 22,064 7,399
------------ ------------ --------------
Total fixed charges .................................... 2,135,220 2,721,833 669,785
Add: Preferred dividends ................................. 20,970 19,868 4,967
Combined fixed charges and preferred dividends ......... 2,156,190 2,741,701 674,752
Earnings before fixed charges,preferred dividends and
provision for income taxes .............................. $2,340,220 $3,020,333 $778,285
============ ============ ==============
Ratio of earnings to fixed charges and preferred
dividends ............................................... 1.09 1.10 1.15
============ ============ ==============
</TABLE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
Donaldson, Lufkin & Jenrette, Inc.:
We consent to the use of our report incorporated by reference into this
Post-Effective Amendment No. 1 on Form S-3 to Form S-1 Registration Statement
and to the reference to our firm under the heading "Experts" in the
prospectus.
/s/ KPMG Peat Marwick LLP
New York, New York
July 12, 1996
