<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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HSBC AMERICAS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 22-1093160
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
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ONE MARINE MIDLAND CENTER
BUFFALO, NEW YORK 14203
(716) 841-2424
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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<TABLE>
<S> <C>
PHILIP S. TOOHEY, ESQ. JAMES F. MUNSELL, ESQ.
GENERAL COUNSEL AND SECRETARY CLEARY, GOTTLIEB, STEEN & HAMILTON
HSBC AMERICAS, INC. ONE LIBERTY PLAZA
ONE MARINE MIDLAND CENTER NEW YORK, NEW YORK 10006
BUFFALO, NEW YORK 14203 (212) 225-2000
(716) 841-2473
</TABLE>
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
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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, please check the following box and list
the Securities Act registration number of the earlier effective registration
statement for the same offering. / /
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. /X/
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED UNIT(2) PRICE(2) FEE
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Debt Securities................. (1) (1) (1) (1)
Preferred Stock.................
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TOTAL........................... $250,000,000 100% $250,000,000 $86,207
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</TABLE>
(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3. In no event will the aggregate initial
offering price of the Debt Securities and Preferred Stock issued under this
registration statement exceed $250,000,000. Securities registered hereby may
be sold separately, together or in units with other securities registered
hereunder.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(o). The proposed maximum offering price per unit will be
determined from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder.
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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<PAGE> 2
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 JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH JURISDICTION.
SUBJECT TO COMPLETION -- DATED JUNE 12, 1996
PROSPECTUS
LOGO
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DEBT SECURITIES
PREFERRED STOCK
HSBC Americas, Inc. (the "Corporation") intends to issue from time to time
in one or more series up to $250,000,000 in aggregate initial offering price of
(i) debt securities, which may be either senior (the "Senior Securities") or
subordinated (the "Subordinated Securities"; and collectively with the Senior
Securities, the "Debt Securities") and (ii) shares of preferred stock (the
"Preferred Stock"). The Debt Securities and Preferred Stock offered hereby
(collectively, the "Securities") may be offered, separately or as units with
other Securities, in separate series in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in an accompanying supplement
to this Prospectus (a "Prospectus Supplement").
------------------
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Corporation. The Subordinated Securities will be
subordinate to all existing and future Senior Indebtedness of the Corporation
(as defined herein). Unless otherwise indicated in the applicable Prospectus
Supplement, the maturity of the Subordinated Securities will be subject to
acceleration only in the event of certain events of bankruptcy, insolvency or
reorganization of the Corporation or the receivership of Marine Midland Bank.
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in a Prospectus Supplement, together with the
terms of the offering of the Securities and the initial price and net proceeds
to the Corporation from the sale thereof. The Prospectus Supplement will include
the following information with respect to the Securities, where applicable: (i)
in the case of Debt Securities, the specific designation, aggregate principal
amount, ranking, denomination, maturity, priority, rate of interest (which may
be variable or fixed), time of payment of interest, terms for optional
redemption or repayment by the Corporation or any holder, the initial public
offering price, any stock exchange listings, any special provisions related to
Debt Securities issued as medium-term notes, original issue discount securities
or other special terms and the designation of the Trustee, Security Registrar
and Paying Agent, (ii) in the case of Preferred Stock, the specific title and
stated value, number of shares or fractional interests therein, terms of any
dividend, liquidation, redemption, voting and other rights, any stock exchange
listings, and the initial public offering price and (iii) in the case of all
Securities, whether such Securities are being offered separately or as a unit
with other Securities. The Prospectus Supplement will also contain information,
where applicable, about certain United States federal income tax considerations
relating to the Securities covered by the Prospectus Supplement.
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 OR ANY PROSPECTUS SUPPLEMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES WILL BE UNSECURED OBLIGATIONS OF THE CORPORATION AND WILL NOT BE
SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR NONBANK
SUBSIDIARY OF THE CORPORATION AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, (THE "FDIC"), BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
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The Securities may be sold by the Corporation directly to purchasers,
through agents designated from time to time, through underwriting syndicates led
by one or more managing underwriters or through one or more underwriters. The
Corporation expects that any such agents, managing underwriters or underwriters
in the United States may include HSBC Securities, Inc. or other affiliates of
the Corporation. If underwriters or agents are involved in any offering of the
Securities, the names of the underwriters or agents will be set forth in the
applicable Prospectus Supplement. If an underwriter, agent or dealer is involved
in any offering of the Securities, the underwriter's discount, agent's
commission or dealer's purchase price will be set forth in, or may be calculated
from the information set forth in, the applicable Prospectus Supplement, and the
net proceeds to the Corporation from such offering will be the public offering
price of such Securities less such commission in the case of an offering through
an agent, and less, in each case, the other expenses of the Corporation
associated with the issuance and distribution of such Securities.
The Corporation or one or more of its subsidiaries may from time to time
purchase or acquire a position in the Offered Securities and may at its option,
hold, resell, cancel or exercise, if applicable, such Securities. HSBC
Securities, Inc. expects to offer and sell previously issued Securities in the
course of its business as a broker-dealer and may act as principal or agent in
such transactions. In addition, this Prospectus may be used by HSBC Securities,
Inc. in connection with offers and sales related to market making activities.
HSBC Securities, Inc. may act as principal or agent in any such transactions.
Such sales will be made at prices related to the prevailing market prices at the
time of sale.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is June , 1996.
<PAGE> 3
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR THE PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR ANY UNDERWRITER OR
AGENT. THE DELIVERY OF THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT AT ANY TIME
DOES NOT IMPLY THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE OF SUCH INFORMATION. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES IN
ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION.
UNLESS OTHERWISE INDICATED, CURRENCY AMOUNTS IN THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT ARE STATED IN U.S. DOLLARS ("$," "DOLLARS," "U.S.
DOLLARS," OR "U.S. $").
AVAILABLE INFORMATION
The Corporation is subject to the information reporting requirements of The
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Such reports and other information filed
by the Corporation can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's regional offices at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and 7
World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained upon written request to the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 at
prescribed rates. Certain securities of the Corporation are listed on the New
York Stock Exchange ("NYSE"), and such reports and other information concerning
the Corporation also may be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Corporation has filed with the Commission a registration statement on
Form S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the Securities. This Prospectus does not contain
all the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement and to the exhibits thereto. Statements contained herein
concerning the provisions of certain documents are not necessarily complete, and
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the following
documents and information heretofore filed with the Commission pursuant to
Sections 12 or 13 of the Exchange Act:
1. The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1995 (the "1995 10-K").
2. The Corporation's Report on Form 10-Q for the quarter ended March
31, 1996.
3. The Corporation's Report on Form 8-K dated June 5, 1996 (the "June
5th 8-K").
4. The description of the Corporation's Preferred Stock contained in
the Corporation's registration statements filed under Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
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<PAGE> 4
All documents subsequently filed by the Corporation pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of the Securities offered hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of filing
of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in the accompanying Prospectus Supplement, 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 statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
THE CORPORATION WILL PROVIDE UPON REQUEST AND WITHOUT CHARGE TO EACH PERSON
TO WHOM THIS PROSPECTUS IS DELIVERED A COPY OF ANY OR ALL OF THE FOREGOING
DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED THEREIN BY REFERENCE). WRITTEN
REQUESTS SHOULD BE DIRECTED TO MANAGER, TREASURY TRANSACTIONS, HSBC AMERICAS,
INC., ONE MARINE MIDLAND CENTER, 21ST FLOOR, BUFFALO, NEW YORK 14203. TELEPHONE
REQUESTS MAY BE DIRECTED TO MANAGER, TREASURY TRANSACTIONS AT (716) 841-2577.
THE CORPORATION
HSBC Americas, Inc. (the "Corporation"), formerly Marine Midland Banks,
Inc., is a New York State based bank holding company registered under the Bank
Holding Company Act of 1956, as amended. At March 31, 1996, the Corporation,
together with its subsidiaries, had assets of $21.6 billion and employed
approximately 8,300 full and part time employees.
All of the Corporation's common stock is owned by HSBC Holdings B.V., an
indirect wholly owned subsidiary of HSBC Holdings plc ("HSBC"). HSBC, with
assets of $352 billion at December 31, 1995 and net income of approximately $3.9
billion for the year ended December 31, 1995, is one of the world's largest
banking groups. HSBC, the ultimate parent company of The Hongkong and Shanghai
Banking Corporation Limited and Midland Bank plc, is an international banking
and financial services organization with major commercial and investment banking
franchises operating under long established names in Asia, Europe, North America
and the Middle East. Principal executive offices of HSBC are located in London.
The Corporation's principal subsidiary, Marine Midland Bank (the "Bank"),
which had assets of $21.4 billion and deposits of $16.9 billion at March 31,
1996, is supervised and routinely examined by the Superintendent of Banks of the
State of New York and the Board of Governors of the Federal Reserve System (the
"Board of Governors"). The Bank is a regional bank with a distinctive geographic
franchise encompassing the entire State of New York. Selected banking products
are offered on a national basis. The Bank is engaged in a general commercial
banking business, offering a full range of banking products and services to
corporations, institutions, governments and individuals. Through its affiliation
with HSBC, the Bank offers its customers access to global markets and services.
In turn, the Bank plays a role in the delivery and processing of other HSBC
products.
The Corporation's reported results are consolidated with Concord Leasing,
Inc. ("Concord") and Oleifera Investments, Ltd. ("Oleifera"). Concord, which
provides equipment financing through secured loan and finance lease
transactions, had assets of $1.5 billion at December 31, 1994. Concord was
merged with the Corporation on January 1, 1995 through the contribution of
Concord's outstanding common stock held by HSBC Holdings, B.V. to the
Corporation. The merger transaction was accounted for as a transfer of assets
between companies under common control, with the assets and liabilities of
Concord combined with those of the Corporation at their historical carrying
values. Oleifera had assets of $183 million at December 31, 1995. The assets of
Oleifera were transferred to the Corporation on January 1, 1996 through a
transaction involving the contribution of common stock held by HSBC Holdings,
B.V. to the Corporation. The transaction was
3
<PAGE> 5
accounted for as a transfer of assets between companies under common control.
The Corporation's consolidated financial statements set forth in the June 5th
8-K reflect a restatement of all prior periods to include the accounts and
results of operations of Oleifera as though the transaction occurred as of the
beginning of the earliest period presented.
COMPETITION AND INDUSTRY CONSOLIDATION
The Corporation and its subsidiaries face competition in all of the markets
they serve, competing with other major financial institutions, including
commercial banks, investment banks, savings and loan associations, credit
unions, consumer finance companies, money market funds and other non-banking
institutions, such as insurance companies, major retailers, brokerage firms, and
investment companies in New York, throughout the United States, and
internationally. One of the principal methods of competing effectively in the
financial services industry is to improve customer service through the quality
and range of services available, easing access to facilities and pricing. One
outgrowth of this competitive environment has been a significant number of
consolidations in the banking industry both on a national and regional level,
partially in response to changes in the regulatory framework governing banks'
interstate activities. See "Supervision and Regulation". The Corporation engages
on an ongoing basis in reviewing and discussing possible acquisitions of
financial institutions, as well as banking and other assets in order to expand
its business. The Corporation intends to continue to explore acquisition
opportunities as they arise in order to take advantage of the continuing
consolidation in the banking industry.
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<PAGE> 6
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
The Corporation's ratio of earnings to fixed charges and earnings to
combined fixed charges and preferred stock dividend requirements are set forth
below for the periods indicated, including restatement on a historic basis to
include the accounts and results of operations of Concord and Oleifera which
were merged with the Corporation on January 1, 1995 and 1996 respectively (see
discussion of the Corporation):
<TABLE>
<CAPTION>
THREE MONTHS
ENDED YEARS ENDED DECEMBER 31,
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3/31/96 3/31/95 1995 1994 1993 1992 1991
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<S> <C> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits...... 3.98 1.31 3.35 1.48 0.00 0.73 0.55
Including Interest on Deposits...... 1.83 1.09 1.55 1.17 0.58 0.90 0.85
Earnings to Combined Fixed Charges and
Preferred Stock Dividend
Requirements
Excluding Interest on Deposits...... 3.81 1.28 3.19 1.43 0.00 0.71 0.54
Including Interest on Deposits...... 1.80 1.08 1.53 1.16 0.57 0.89 0.84
</TABLE>
Fixed charges exceeded earnings by $212 million in 1993, $62 million in
1992, and $152 million in 1991. Fixed charges and Preferred Stock dividends
exceeded earnings by $218 million in 1993, $68 million in 1992, and $159 million
in 1991.
Management also believes that it is informative to view the coverage of
fixed charges for 1994 and prior years without this restatement since the
acquisitions took place in 1995 and 1996. Without the restatement, the
Corporation's ratio of earnings to fixed charges and earnings to combined fixed
charges and preferred stock dividends was as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------
1994 1993 1992 1991
---- ---- ---- -----
<S> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits............................. 4.33 2.30 2.25 -0.13
Including Interest on Deposits............................. 1.83 1.36 1.24 0.78
Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements:
Excluding Interest on Deposits............................. 3.98 2.17 2.05 -0.12
Including Interest on Deposits............................. 1.80 1.34 1.21 0.78
</TABLE>
Fixed charges exceeded earnings by $183 million in 1991. Fixed charges and
preferred stock dividends exceeded earnings by $190 million in 1991.
For purposes of computing both the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividend requirements,
earnings represent net income (loss) before extraordinary items and cumulative
effect of changes in accounting principles plus applicable income taxes and
fixed charges. Fixed charges, excluding interest on deposits, include interest
expense (other than on deposits) and the proportion deemed representative of the
interest factor of rent expense, net of income from subleases. Fixed charges,
including interest on deposits, include all interest expense and the proportion
deemed representative of the interest factor of rent expense, net of income from
subleases. Pretax earnings required for preferred stock dividends were computed
using tax rates for the applicable year. No tax adjustments were made in loss
years.
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SUPERVISION AND REGULATION
Banks and bank holding companies are extensively regulated under both
federal and state law. Activities in which the Corporation and its subsidiaries
are presently engaged or which they may undertake in the future are subject to
certain statutory and regulatory restrictions.
The Corporation is subject to the supervision of, and to regular inspection
by, the Board of Governors. The Bank is subject to banking laws and regulations
which, among other things, require that reserves be maintained against deposits
and currently limit the establishment of branch banking offices in the U.S.
outside its home state. There are also various legal limitations upon the extent
to which the Bank can finance or otherwise supply funds to the Corporation or
certain of its affiliates and certain regulatory limitations on the payment of
dividends to the Corporation by the Bank. The Corporation is also prohibited,
with certain exceptions, from engaging, directly or indirectly, in activities
which are not closely related to banking. In addition, the Federal Reserve Act
restricts certain transactions between banks and their nonbank affiliates. Many
of the Corporation's competitors are not subject to the same laws and
regulations imposed on the Corporation and its subsidiaries.
The Riegel-Neal Interstate Banking and Branching Efficiency Act of 1994
("IBBEA") authorized interstate acquisitions of banks and bank holding companies
without geographic limitation beginning in 1995. In addition, beginning in 1997,
a bank may merge with a bank in an other state as long as neither of the states
opts out of interstate branching. Also, IBBEA protects key provisions of state
law, establishes a mechanism for de novo interstate branching, and includes
provisions relating to interstate branching by foreign banks. The enactment of
banking legislation such as the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 ("FIRREA") and the Federal Deposit Insurance Corporation
Improvement Act of 1991 ("FDICIA") have affected the banking industry by, among
other things, broadening the regulatory powers of the federal banking agencies.
Under FIRREA the failure to meet capital guidelines could subject a financial
institution to a variety of regulatory actions, including the termination of
deposit insurance by the FDIC. Among other things, FDICIA set standards for:
addressing the safety and soundness of the deposit insurance system, supervision
of domestic and foreign depositary institutions, accounting, prompt regulatory
action and federal deposit insurance. Pursuant to FDICIA, a well capitalized
institution must have a Tier 1 risk-based capital ratio of at least 6%, a total
risk-based capital ratio of at least 10%, a leverage ratio of at least 5% and
not be subject to a capital directive order. The leverage ratio measures Tier 1
capital (essentially common equity, excluding net unrealized gain (loss) on
securities available for sale and goodwill, plus certain types of perpetual
preferred stock) against total non-risk weighted assets. The Bank's ratios at
December 31, 1995 exceeded the ratios required for the well capitalized
category.
In connection with establishing standards to assure the safety and
soundness of financial institutions as required by FDICIA, the Federal Reserve
Board issued guidelines on operations, management and compensation. The Federal
Reserve Board has also proposed standards for asset quality and earnings. The
Corporation does not expect the guidelines and proposed regulations to have a
material effect on its operations.
6
<PAGE> 8
USE OF PROCEEDS
The Corporation intends to use the net proceeds from the sale of the
Securities for general corporate purposes which may include one or more of the
following: investments in and advances to the Corporation's subsidiaries,
including the Bank; financing future acquisitions of financial institutions, as
well as banking and other assets; and the redemption of certain of the
Corporation's outstanding securities. The precise amounts and timing of the
application of proceeds used for such corporate purposes will depend upon
funding requirements and the availability of other funds to the Corporation and
its subsidiaries.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The following sets forth certain general terms and provisions of the Debt
Securities to which any Prospectus Supplement may relate. The particular terms
of any Debt Securities and the extent, if any, to which such general provisions
may apply to such Debt Securities will be described in the Prospectus Supplement
relating to such Debt Securities.
The Senior Securities offered hereby are to be issued under an Indenture,
dated as of June , 1996 between the Corporation and Bankers Trust Company,
("Bankers Trust" or the "Trustee"), as Trustee (the "Senior Indenture") and the
Subordinated Securities offered hereby are to be issued under an Indenture,
dated as of June , 1996, between the Corporation and Bankers Trust, as Trustee
(the "Subordinated Indenture" and collectively with the Senior Indenture, the
"Indentures"), copies of which are filed as exhibits to the Registration
Statement. The following summaries of certain provisions of the Indentures do
not purport to be complete and such summaries are qualified in their entirety by
reference to all of the provisions of the Indentures, including the definitions
therein of certain terms. Whenever particular sections, articles or defined
terms of the Indentures are referred to, such provisions or definitions are
incorporated herein by reference.
Because the Corporation is a holding company, its rights and the rights of
its creditors, including the Holders of the Debt Securities, to participate in
the assets of any subsidiary, including the Bank, upon the subsidiary's
liquidation or reorganization or otherwise would be subject to the prior claims
of the subsidiary's creditors, except to the extent that the Corporation may
itself be a creditor with recognized claims against the subsidiary.
The Indentures do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and Debt Securities may be issued
thereunder in series up to the aggregate principal amount which may be
authorized from time to time by the Corporation. (Section 301). The Debt
Securities will be unsecured obligations of the Corporation. (Section 113). The
Senior Securities will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Corporation. The Subordinated Securities will
be subordinate in right of payment as described below under "Subordination."
The Debt Securities may be issued in one or more separate series of Senior
Securities and/or one or more separate series of Subordinated Securities.
Reference is made to the Prospectus Supplement relating to the particular series
of Debt Securities offered thereby for the terms of such Debt Securities,
including, where applicable:
(1) the title of such Debt Securities (which shall distinguish such
Debt Securities from all other series of Debt Securities), which may
include medium-term notes;
(2) the limit, if any, on the aggregate principal amount or aggregate
initial offering price of the Debt Securities;
(3) the dates on which or periods during which such Debt Securities
will be issued, and the dates on, or the range of dates within, which the
principal of (and premium, if any, on) such Debt Securities will be
payable;
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(4) the rate or rates at which the Debt Securities will bear interest,
if any, which rate may be zero in the case of certain Debt Securities
issued at an issue price representing a discount from the principal amount
payable at maturity, or the method by which such rate or rates will be
determined, and the date or dates from which such interest, if any, will
accrue or the method by which such date or dates will be determined;
(5) the date or dates on which such interest, if any, on the Debt
Securities will be payable and the regular record date, if any, for such
Interest Payment Dates or the method by which such date or dates will be
determined;
(6) the place or places where (i) the principal of and premium, if
any, and any interest on the Debt Securities will be payable, (ii) Debt
Securities may be surrendered for registration of transfer, (iii) Debt
Securities may be surrendered for exchange and (iv) notices to or upon the
Company in respect of the Debt Securities of the series and this Indenture
may be served;
(7) the period or periods within which, the price or prices at which,
the Debt Securities may, pursuant to any redemption provision, be redeemed,
in whole or in part, and the other detailed terms and provisions of any
such redemption provisions;
(8) if other than denominations of $1,000 and any integral multiples
thereof, the denominations in which any Debt Securities will be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount, the portion of the principal
amount (or the method by which such portion will be determined) of Debt
Securities that will be payable upon declaration of acceleration of the
Maturity thereof;
(11) any index, formula or other method (including a method based on
changes in the prices of particular securities, currencies, intangibles,
goods, articles or commodities) used to determine the amount of payments of
principal of and premium, if any, and interest, if any, on the Debt
Securities;
(12) whether such Debt Securities are Senior Securities or
Subordinated Securities, or include both;
(13) whether provisions relating to defeasance and covenant defeasance
will be applicable to such series of Debt Securities;
(14) any provisions granting special rights to Holders of Debt
Securities upon the occurrence of specified events;
(15) any modifications, deletions or additions to the Events of
Default, Defaults (in the case of Subordinated Securities) or covenants of
the Corporation with respect to the Debt Securities;
(16) whether any Debt Securities are issuable initially in temporary
or permanent global form and, if so (i) whether (and the circumstances
under which) beneficial owners of interests in permanent global Debt
Securities may exchange their interests for Debt Securities of like tenor
of any authorized form and denomination, and (ii) the identity of any
initial depositary for such global Debt Securities;
(17) the date as of which any temporary global Debt Security will be
dated if other than the original issuance date of the first Debt Security
of that series to be issued;
(18) the Person to whom any interest on any Registered Debt Securities
will be payable, if other than the registered Holder, and the extent to
which and manner that any interest payable on a temporary global Debt
Security will be paid if other than as specified in the Indentures;
(19) the form and/or terms of certificates, documents or conditions,
if any, for Debt Securities to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Debt Security of such
Series);
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(20) any other terms, conditions, rights and preferences (or
limitations on such rights or preferences) relating to the Debt Securities
(which terms shall not be inconsistent with the provisions of the
applicable Indenture and the Trust Indenture Act). (Section 301).
If the amount of payments of principal of and premium, if any, or any
interest on Debt Securities is determined with reference to any type of index or
formula or changes in prices of particular securities, currencies, intangibles,
goods, articles or commodities, the Federal income tax consequences, specific
terms and other information with respect to such Debt Securities and such index
or formula, securities, currencies, intangibles, goods, articles or commodities
will be described in the Prospectus Supplement relating thereto.
Debt Securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate that at the time of
issuance is below market rates ("Discount Securities"). Federal income tax
consequences and other special considerations applicable to any such Debt
Securities will be described in the Prospectus Supplement relating thereto.
REGISTRATION AND TRANSFER
Unless otherwise provided in the Prospectus Supplement, each series of Debt
Securities will be issued only as Registered Securities. (Section 302). Marine
Midland Bank shall serve as the initial Securities Registrar. Unless otherwise
provided in the Prospectus Supplement, Registered Securities may be presented
for transfer (duly endorsed or accompanied by a written instrument of transfer,
if so required by the Corporation or the Security Registrar) or exchanged for
other Debt Securities of the same series at the Corporate Trust Office of the
Trustee in New York City. Such transfer or exchange shall be made without
service charge, but the Corporation may require payment of any tax or other
governmental charge as described in the applicable Indenture. (Sections 301,
305, 1202).
Unless otherwise indicated in the Prospectus Supplement, Registered
Securities, other than Registered Securities issued in global form which may be
of any denomination, will be issued without coupons and in denominations of
$1,000 or integral multiples thereof. (Section 302).
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depositary or common depositary (the "Common
Depositary") identified in the Prospectus Supplement. Global Securities may only
be issued in registered form and in either temporary or permanent form. Unless
and until it is exchanged in whole or in part for the individual Debt Securities
represented thereby, a Global Security may not be transferred except as a whole
by the Common Depositary for such Global Security to its nominee or another
nominee or by a nominee to the Common Depositary or another nominee or by the
Common Depositary or any nominee to a successor Common Depositary or any nominee
of such successor. (Sections 303, 305).
Principal and interest payments on the Global Securities registered in the
name of the Common Depositary or its nominee will be made to the Common
Depositary or its nominee, as the case may be, as the registered owner of such
Global Securities. Under the terms of the Indentures, the Corporation and the
Paying Agents will treat the persons in whose names the Global Securities are
registered as the owners of such Global Securities for the purpose of receiving
payment of principal and interest on such Global Securities and for all other
purposes whatsoever. Therefore, neither the Corporation nor the Paying Agents
has any direct responsibility or liability for the payment of principal of or
interest on the Global Securities to owners of beneficial interests in the
Global Securities.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the Prospectus Supplement, payment of
principal of and premium, if any, and interest, if any, on the Securities will
be made at the corporate trust office of the Trustee in New York City or at the
corporate offices of Marine Midland Bank in New York City, except that, at the
option of the
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Corporation, interest may be paid by mailing a check to the address of the
person entitled thereto as such address appears in the Security Register.
(Sections 301, 307, 1202).
CONSOLIDATION, MERGER AND SALE OF ASSETS
Under each Indenture, the Corporation, without the consent of the Holders
of any of the Debt Securities outstanding under the applicable Indenture, may
consolidate with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to any Person
provided that: (i) the successor is a corporation organized and existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the successor corporation expressly assumes, by an indenture supplemental
to the applicable Indenture, the Corporation's obligation for the due and
punctual payment of the principal of and premium, if any, and interest, if any,
on all of the Debt Securities under the applicable Indenture and the performance
of every covenant of the applicable Indenture; (iii) after giving effect to the
transaction, no Event of Default under the Senior Indenture and no Default under
the Subordinated Indenture, and no event which, after notice or lapse of time,
or both, would become an Event of Default or a Default, as the case may be,
shall have happened and be continuing; and (iv) certain other conditions are
met. (Section 1001)
MODIFICATION AND WAIVER
Each Indenture provides that modification or amendments of the Indentures
may be made by the Corporation and the Trustee, with the consent of the Holders
of 66 2/3 percent in principal amount of the outstanding Debt Securities of each
series affected by such modification or amendment; provided, however, that no
such modification or amendment may, without the consent of the Holder of each
outstanding Debt Security affected thereby: (a) change the Stated Maturity of
the principal of, or any installment of interest on, any Debt Security; (b)
reduce the principal amount of, or rate of interest, if any, on, or any premium
payable upon the redemption of any Debt Security; (c) reduce the amount of
principal of any Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof or the amount provable in
bankruptcy; (e) adversely affect any right of repayment at the option of any
Holder of any Debt Security; (f) change the place or currency of, or (in the
case of Subordinated Securities) class of Capital Securities for, payment of
principal of, or any premium or interest on, any Debt Security; (g) impair the
right to institute suit for the enforcement of any payment on or with respect to
any Debt Security on or after the Stated Maturity thereof (or, in the case of
redemption, exchange (in the case of Subordinated Securities) or repayment at
the option of the Holder, on or after the Redemption Date, or Repayment Date);
(h) reduce the percentage of principal amount of outstanding Debt Securities of
any series, the consent of whose Holders is required for modification or
amendment of the Indentures, or for waiver of compliance with certain provisions
of the Indentures or for waiver of certain defaults and their consequences, or
reduce the requirements for quorum or voting by the Holders; or (i) modify
certain provisions of the Indentures except to increase the percentage of
Holders required to consent thereon to amendment or modification thereof or to
provide that certain other Indenture provisions cannot be modified or waived
without the consent of the Holder of each outstanding Debt Security affected
thereby. (Section 1102).
The Holders of 66 2/3 percent in principal amount of the outstanding Debt
Securities of each series may, on behalf of all Holders of Debt Securities of
that series, waive, insofar as that series is concerned, compliance by the
Corporation with certain terms, conditions, or provisions of the Indentures.
(Section 1207). The Holders of not less than a majority in principal amount of
the outstanding Debt Securities of any series may, on behalf of all Holders of
Debt Securities of that series, waive any past default under the applicable
Indentures with respect to Debt Securities of that series and its consequences,
except a default in the payment of principal or premium, if any, or interest, if
any, or in respect of a covenant or provision which under Article XI of each
Indenture cannot be modified or amended without the consent of the Holder of
each outstanding Debt Security of such series affected. (Section 513).
Each Indenture provides that, in determining whether the Holders of the
requisite principal amount of the outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or are present at a meeting of Holders for quorum purposes, and for making
calculations required under Section 313 of the Trust Indenture Act: (a) the
principal amount of a Discount Security that
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may be counted in making such determination or calculation and that shall be
deemed to be outstanding shall be the amount of principal thereof that would be
due and payable as of the time of such determination upon acceleration of the
Maturity thereof; and (b) the principal amount of any indexed Debt Security that
may be counted in making such determination or calculation and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount
of such indexed Debt Security at original issuance, unless otherwise provided
with respect to such Debt Security. (Section 101).
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that the Corporation may elect (a) to defease and be
discharged from its obligations with respect to any Debt Securities of or within
a series (except the obligations to register the transfer of or exchange such
Debt Securities; to replace temporary or mutilated, destroyed, lost or stolen
Debt Securities; to maintain an office or agency in respect of such Debt
Securities; and to hold moneys for payment in trust) ("defeasance") or (b) with
respect to the Senior Indenture, to be released from its obligations with
respect to such Debt Securities under Section 1205 of the Senior Indenture (the
restriction described above under "Restrictions on Liens") or, if provided
pursuant to Section 301 of the applicable Indenture, its obligations with
respect to any other covenant, and any omission to comply with such obligations
shall not constitute a default or an Event of Default under the Senior Indenture
or a Default under the Subordinated Indenture with respect to such Debt
Securities ("covenant defeasance"), in either case by (a) depositing irrevocably
with the Trustee as trust funds in trust (i) an amount dollars in cash, or (ii)
Government Obligations (as defined below), in each case in an amount which
through the scheduled payment of principal of and premium, if any, and interest,
if any, in respect thereof in accordance with their terms will provide, not
later than one business day before the due date of any payment, money in an
amount or (iii) a combination of dollars in cash and Government Obligations,
sufficient to pay the principal (including in the case of Subordinated
Securities, principal to be paid by the delivery of Capital Securities) of and
premium, if any, and interest, if any, on the Debt Securities of such series on
the Stated Maturity of such principal or installment of principal or interest
and any similar payments applicable to such Debt Securities and (b) satisfying
certain other conditions precedent specified in the Indentures. Such deposit and
termination is conditioned among other things upon the Corporation's delivery of
an Opinion of Counsel that the Holders of the Debt Securities of such series
will have no U.S. federal income tax consequences as a result of such deposit
and termination and an Officer's Certificate that all conditions precedent to
the defeasance have been met. (Senior Indenture, Article XIV; Subordinated
Indenture, Article XIV.)
If the Corporation exercises its covenant defeasance option with respect to
any series of Debt Securities and such Debt Securities declared due and payable
because of the occurrence of any Event of Default other than with respect to a
covenant as to which there has been covenant defeasance described above, the
money and U.S. Government Obligations on deposit with the Trustee will be
sufficient to pay amounts due on such Debt Securities at their Stated Maturity
but may not be sufficient to pay amounts due on such Debt Securities at the time
of acceleration relating to such Event of Default. However, the Corporation
would remain liable to make payment of such amounts due at the time of
acceleration.
The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within any particular series.
Unless otherwise specified in the Prospectus Supplement, "U.S. Government
Obligations" means securities that are (i) direct obligations of the United
States government or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States government, the
payment of which is unconditionally guaranteed by such government, which, in
either case, are full faith and credit obligations of such government payable in
dollars and are not callable or redeemable at the option of the issuer thereof,
and also includes a depositary receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depositary receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the
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Government Obligation or the specific payment of interest or principal of the
Government Obligation evidenced by such depositary receipt. (Section 1402).
REGARDING THE TRUSTEE
Bankers Trust, the Trustee under the Indentures, has its principal
corporate trust office at 4 Albany Street, New York, New York 10006. The
Corporation and its banking subsidiaries maintain banking relationships with the
Trustee.
SENIOR SECURITIES
The Senior Securities will be direct unsecured obligations of the
Corporation and will constitute Senior Indebtedness (as defined below under
"Subordinated Securities -- Subordination") ranking on a parity with the other
Senior Indebtedness of the Corporation.
EVENTS OF DEFAULT
The following will be Events of Default under the Senior Indenture with
respect to Senior Securities of any series: (a) failure to pay principal or
premium, if any, on any Senior Security of that series at Maturity; (b) failure
to pay any interest on any Senior Security of that series when due and payable,
continued for 30 days; (c) failure to perform any covenant or warranty of the
Corporation in the Senior Indenture (other than a covenant or warranty included
in the Senior Indenture solely for the benefit of series of Senior Securities
other than that series), continued for 60 days after written notice as provided
in the Senior Indenture; (d) default under any bond, debenture, note, mortgage,
indenture, other instrument or other evidence of Indebtedness for Money Borrowed
in an aggregate principal amount exceeding $5 million by the Corporation or the
Bank or its successors (including a default with respect to Senior Securities of
another series) under the terms of the instrument or instruments by or under
which such indebtedness is evidenced, issued or secured, which default results
in the acceleration of such indebtedness, if such acceleration is not rescinded
or annulled, or such indebtedness is not discharged, within ten days after
written notice as provided in the Senior Indenture; (e) certain events in
bankruptcy, insolvency or reorganization of the Corporation or the Bank; and (f)
any other Event of Default provided with respect to Senior Securities of that
series. (Senior Indenture, Section 501).
If an Event of Default with respect to Senior Securities of any series at
the time outstanding occurs and is continuing, either the Trustee or the Holders
of at least 25 percent in aggregate principal amount of the outstanding Senior
Securities of that series may declare the principal amount (or, if the
Securities of that series are Discount Senior Securities or Indexed Securities,
such portion of the principal amount of such senior Securities as may be
specified in the terms thereof) of all the Senior Securities of that series to
be due and payable immediately, by a written notice to the Corporation (and to
the Trustee, if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. At any
time after a declaration of acceleration with respect to Senior Securities of
any series has been made, but before a judgment or decree for payment of the
money due has been obtained, the Holders of a majority in principal amount of
outstanding Senior Securities of that series may, under certain circumstances,
rescind and annul such declaration and its consequences, if all Events of
Default have been cured, or if permitted, waived, and all payments due (other
than those due as a result of acceleration) have been made or provided for.
(Senior Indenture, Section 502).
The Senior Indenture provides that, subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the Senior
Indenture at the request or direction of any of the Holders of Senior Securities
of any series, unless such Holders shall have offered to the Trustee reasonable
indemnity or security against the costs, expenses and liabilities which may be
incurred. (Senior Indenture, Section 601). Subject to certain provisions, the
Holders of a majority in aggregate principal amount of the Outstanding Senior
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
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Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Senior Securities of that series. (Senior Indenture, Section 512).
The Corporation is required to deliver to the Trustee annually an Officers'
Certificate as to its performance and observance of any of the terms, provisions
and conditions with respect to certain provisions in the Senior Indenture and as
to the absence of default. (Senior Indenture, Section 1206).
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Corporation. The obligations of the Corporation pursuant to the Subordinated
Securities will be subordinate in right of payment to all Senior Indebtedness as
defined below under "Subordination."
Unless otherwise indicated in the applicable Prospectus Supplement, the
maturity of the Subordinated Securities will be subject to acceleration only in
the event of certain events of bankruptcy, insolvency or reorganization of the
Corporation or the receivership of the Bank. See "Events of Default; Defaults"
below.
SUBORDINATION
The obligation of the Corporation to make any payment on account of the
principal of or premium, if any, and interest, if any, on the Subordinated
Securities will be subordinate and junior in right of payment to the
Corporation's obligations to the Holders of Senior Indebtedness of the
Corporation to the extent described in the next paragraph. (Subordinated
Indenture, Section 1501). "Senior Indebtedness" of the Corporation is defined in
the Subordinated Indenture to mean Indebtedness for Money Borrowed of the
Corporation, whether outstanding on the date of execution of the Subordinated
Indenture or thereafter created, assumed or incurred, except "Indebtedness
Ranking on a Parity with the Debt Securities" or "Indebtedness Ranking Junior to
the Securities" and any deferrals, renewals or extensions of such Senior
Indebtedness. "Indebtedness for Money Borrowed" of the Corporation is defined in
the Subordinated Indenture as any obligation of, or any obligation guaranteed
by, the Corporation for the repayment of borrowed money, whether or not
evidenced by bonds, debentures, notes or other written instruments, and any
deferred obligations for the payment of the purchase price of property or
assets. "Indebtedness Ranking on a Parity with the Securities" is defined in the
Subordinated Indenture to mean Indebtedness for Money Borrowed of the
Corporation, whether outstanding on the date of execution of the Subordinated
Indenture or thereafter created, assumed or incurred, which specifically by its
terms ranks equally with and not prior to the Subordinated Securities in the
right of payment upon the happening of any event of the kind specified in the
next paragraph. Indebtedness Ranking on a Parity with Subordinated Securities
includes the Corporation's:
(i) Floating Rate Subordinated Capital Notes due September 1996 issued
under an indenture dated as of September 15, 1984, between Marine Midland
Bank and Bankers Trust as Trustee;
(ii) 8 5/8% Subordinated Capital Notes due March 1997 issued under an
indenture dated March 1, 1987 between the Corporation and Chemical Bank as
Trustee;
(iii) Floating Rate Subordinated Capital Notes due March 1999 issued
under an indenture dated as of April 1, 1987 between the Corporation and
Chemical Bank as Trustee;
(iv) Floating Rate Subordinated Notes due December 2000 issued under
an indenture dated December 12, 1985 between the Corporation and Chase
Manhattan Bank, N.A. as Trustee;
(v) Floating Rate Subordinated Notes due December 2009 issued under an
indenture dated December 15, 1984 between the Corporation and Chase
Manhattan Bank, N.A. as Trustee.
"Indebtedness Ranking Junior to the Securities" is defined in the
Subordinated Indenture to mean any Indebtedness for Money Borrowed of the
Corporation, whether outstanding on the date of execution of the Subordinated
Indenture or thereafter created, assumed or incurred, which specifically by its
terms ranks junior to and not equally with or prior to the Subordinated
Securities (and any other Indebtedness Ranking on a Parity with the Subordinated
Securities) in right of payment upon the happening of any event of the kind
specified in the next paragraph. (Subordinated Indenture, Section 101).
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In the case of any bankruptcy, insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshaling of assets and liabilities or
similar proceedings or any liquidation or winding up of or relating to the
Corporation as a whole, whether voluntary or involuntary, all obligations of the
Corporation to Holders of Senior Indebtedness of the Corporation shall be
entitled to be paid in full before any payment shall be made on account of the
principal of, or premium, if any, or interest, if any, on the Subordinated
Securities of any series. In the event of any such proceeding, after payment in
full of all sums owing with respect to Senior Indebtedness of the Corporation,
the Holders of the Subordinated Securities of any series, together with the
Holders of any Indebtedness Ranking on a Parity with the Subordinated
Securities, shall be entitled, ratably, to be paid from the remaining assets of
the Corporation the amounts at the time due and owing on account of unpaid
principal of, and premium, if any, and interest, if any, on the Subordinated
Securities of such series and on any indebtedness Ranking on a Parity with the
Subordinated Securities before any payment or other distribution, whether in
cash, property or otherwise, shall be made on account of any capital stock or
any Indebtedness Ranking Junior to the Debt Securities. In the event and during
the continuation of any default in the payment of principal of, or premium, if
any, or interest, if any, on, any Senior Indebtedness beyond any applicable
grace period, or in the event that any event of default with respect to any
Senior Indebtedness shall have occurred and be continuing, or would occur as a
result of certain payments, permitting the holders of such Senior Indebtedness
(or a trustee on behalf of the holders thereof) to accelerate the maturity
thereof, then, unless and until such default or event of default shall have been
cured or waived or shall have ceased to exist, no payment of principal of, or
premium, if any, or interest, if any, on the Subordinated Securities, or in
respect of any redemption, exchange, retirement, purchase or other acquisition
of any of the Subordinated Securities, shall be made by the Corporation.
(Subordinated Indenture, Sections 1501, 1503).
Holders of Subordinated Securities, by their acceptance of such
Subordinated Securities, shall be deemed to have irrevocably waived any rights
such Holders may have to set off amounts owed by such Holders to the Corporation
against amounts owed to such Holders by the Corporation under the Subordinated
Indenture or to institute proceedings in respect of such amounts.
By reason of such subordination in favor of the Holders of Senior
Indebtedness of the Corporation, in the event of the insolvency of the
Corporation, Holders of Senior Indebtedness of the Corporation may receive more,
ratably, and Holders of the Subordinated Securities having a claim pursuant to
the Subordinated Securities may receive less, ratably, than the other creditors
of the Corporation.
REDEMPTION
No early repayment of amounts owed under the Subordinated Securities,
including purchases of capital notes by the Corporation or its subsidiaries, may
be made without the prior written consent of the Bank of England. Such consent
will depend on the Bank of England's being satisfied that the Corporation's
capital is adequate and is likely to remain so.
EVENTS OF DEFAULT; DEFAULTS
The following will be Events of Default under the Subordinated Indenture
with respect to Subordinated Securities of any series: (a) certain events in
bankruptcy, insolvency or reorganization of the Corporation or the receivership
of the Bank; and (b) any other Event of Default provided with respect to
Subordinated Securities of that series. (Subordinated Indenture, Section 501).
If an Event of Default with respect to Subordinated Securities of any
series at the time Outstanding occurs and is continuing, the Trustee or the
Holders of at least 25 percent in aggregate principal amount of the Outstanding
Subordinated Securities of that series may declare the principal amount (or, in
any of the Subordinated Securities of that series are Discount Subordinated
Securities or Indexed Securities, such portion of the principal amount of such
Subordinated Securities as may be specified in the terms thereof) of and accrued
but unpaid interest on all the Subordinated Securities of that series to be due
and payable immediately, by a written notice to the Corporation (and to the
Trustee, if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
(Subordinated Indenture, Section 502). The foregoing provision would, in the
event of the bankruptcy or
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insolvency of the Corporation, be subject as to enforcement to the broad equity
powers of a Federal bankruptcy court and to the determination by that court of
the nature and status of the payment claims of the Holders of the Subordinated
Securities. At any time after a declaration of acceleration with respect to the
Subordinated Securities of any series has been made, but before a judgment or
decree for payment of the money due has been obtained, the Holders of a majority
in principal amount of Outstanding Subordinated Securities of that series may,
under certain circumstances, rescind and annul such acceleration but only if all
Defaults have been remedied, or if permitted, waived and if certain other
conditions have been satisfied. (Subordinated Indenture, Sections 502, 513).
The following events will be Defaults under the Subordinated Indenture with
respect to Subordinated Securities of any series: (a) an Event of Default with
respect to such series of Subordinated Securities; (b) failure to pay principal
or premium, if any, on any Subordinated Security of that series at Maturity; (c)
failure to pay any interest, if any, on any Subordinated Security of that series
when due and payable, continued for 30 days; (d) failure to perform any covenant
or warranty of the Corporation in the Subordinated Indenture (other than a
covenant for warranty included in the Subordinated Indenture solely for the
benefit of series of Subordinated Securities other than that series), continued
for 60 days after written notice as provided in the Subordinated Indenture; (e)
default under any bond, debenture, note, mortgage, indenture, other instruments
or other evidence of Indebtedness for Money Borrowed (including a default with
respect to Subordinated Securities of another series) in an aggregate principal
amount exceeding $5 million by the Corporation or the Bank or its successors
under the terms of the instrument or instruments by or under which such
indebtedness is evidenced, issued or secured, which default results in the
acceleration of such indebtedness, if such acceleration is not rescinded or
annulled, or such indebtedness is not discharged, within ten days after written
notice as provided in the Subordinated Indenture; and (f) any other default
provided with respect to Subordinated Securities of that series. (Subordinated
Indenture, Section 507).
Unless otherwise provided in the terms of a series of Subordinated
Securities, there will be no right of acceleration of the payment of principal
of the Subordinated Securities of such series upon a default in the payment
(including any obligation to exchange Capital Securities for Subordinated
Securities of such series) of principal of or premium, if any, or interest, if
any, or a default in the performance of any covenant or agreement in the
Subordinated Securities or the Subordinated Indenture. If a Default with respect
to the Subordinated Securities of any series occurs and is continuing, the
Trustee may, subject to certain limitations and conditions, seek to enforce its
rights and the rights of the Holders of Subordinated Securities of such series
or the performance of any covenant or agreement in the Subordinated Indenture.
(Subordinated Indenture, Section 503).
The Subordinated Indenture provides that, subject to the duty of the
Trustee upon the occurrence of a Default to act with the required standard of
care, the Trustee will be under no obligation to exercise any of its rights or
powers under the Subordinated Indenture at the request or direction of any of
the Holders of Subordinated Securities of any series unless such Holders shall
have offered to the Trustee reasonable indemnity or security against the costs,
expenses and liabilities which may be incurred. (Subordinated Indenture, Section
601). Subject to certain provisions, the Holders of a majority in aggregate
principal amount of the Outstanding Subordinated Securities of any series will
have the right to 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 Subordinated Securities of
that series. (Subordinated Indenture, Section 507).
The Corporation is required to furnish to the Trustee annually an Officer's
Certificate as to the performance and observance by the Corporation of certain
of the terms, provisions and conditions under the Subordinated Indenture and as
to the absence of default. (Subordinated Indenture, Section 1206).
REPLACEMENT DEBT SECURITIES
Unless otherwise provided for in the applicable Prospectus Supplement, if a
Debt Security of any series is mutilated, destroyed, lost or stolen, it may be
replaced at the corporate trust office of the Trustee in the City and State of
New York upon payment by the Holder of such expenses as may be incurred by the
Corporation
15
<PAGE> 17
and the Trustee in connection therewith and the furnishing of such evidence and
indemnity as the Corporation and such Trustee may require. Mutilated Debt
Securities must be surrendered before new Debt Securities will be issued.
(Section 306).
NOTICES
Unless otherwise provided in the applicable Prospectus Supplement, any
notice required to be given to a Holder of a Debt Security of any series that is
a Registered Security will be mailed to the last address of such Holder set
forth in the applicable Security Register. (Section 105).
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of certain general terms of
the Corporation's Preferred Stock to which any Prospectus Supplement may relate.
Certain terms of any series of the Preferred Stock offered by any Prospectus
Supplement will be described in the Prospectus Supplement relating thereto. If
so indicated in the Prospectus Supplement, the terms of any series may differ
from the terms set forth below. The description of certain provisions of the
Preferred Stock does not purport to be complete and is subject to and qualified
in its entirety by reference to the provisions of the Corporation's Restated
Certificate of Incorporation (the "Certificate"), and the Certificate of
Designations Establishing a Series of a Class of Stock (the "Designations")
relating to each particular series of the Preferred Stock, which will be filed
with the Commission at or prior to the time of the sale of such Preferred Stock.
GENERAL
Under the Corporation's Certificate, the Board of Directors of the
Corporation is authorized, without further stockholder action, to provide for
the issuance of up to 49,158 shares of preferred stock, without par value and up
to 10,000,000 shares of preferred stock, par value $1.00 per share, in one or
more series, with such designations or titles; dividend rates; special or
relative rights in the event of liquidation, distribution or sale of assets or
dissolution or winding up of the Corporation; any redemption or purchase account
provisions; any conversion provisions; and any voting rights thereof, as shall
be set forth as and when established by the Board of Directors of the
Corporation. The shares of any series of Preferred Stock will be, when issued,
fully paid and non-assessable and holders thereof shall have no preemptive
rights in connection therewith.
As of the date hereof, the Corporation has outstanding 1,916,950 shares of
Adjustable Rate Cumulative Preferred Stock and 22,154 shares of $5.50 Cumulative
Preferred Stock. The Adjustable Rate Cumulative Preferred Stock has a
liquidation preference of $50 per share. The dividend rate is determined
quarterly and is based on a formula which considers certain short- and long-term
interest rates. The dividend rate per annum for any dividend period will not be
less than 6% nor greater than 12%. This stock is redeemable at the option of the
Corporation at any time at a redemption price of $50 per share. The $5.50
Cumulative Preferred Stock has a stated value and a liquidation value of $100
per share and is redeemable at the election of the Corporation at any time at a
redemption price of $100 per share.
The liquidation preference of any series of the Preferred Stock is not
necessarily indicative of the price at which shares of such series of Preferred
Stock will actually trade at or after the time of their issuance. The market
price of any series of Preferred Stock can be expected to fluctuate with changes
in market and economic conditions, the financial condition and prospects of the
Corporation and other factors that generally influence the market prices of
securities.
RANK
Any series of the Preferred Stock will, with respect to dividend rights and
rights on liquidation, winding up and dissolution, rank (i) senior to all
classes of common stock, of the Corporation and with all equity securities
issued by the Corporation, the terms of which specifically provide that such
equity securities will rank junior to the Preferred Stock (collectively referred
to as the "Junior Securities"); (ii) on a parity with all equity securities
issued by the Corporation, the terms of which specifically provide that such
equity securities
16
<PAGE> 18
will rank on a parity with the Preferred Stock, (collectively referred to as the
"Parity Securities"); and (iii) junior to all equity securities issued by the
Corporation, the terms of which specifically provide that such equity securities
will rank senior to the Preferred Stock (collectively referred to as the "Senior
Securities"). As used in any Designation for these purposes, the term "equity
securities" will not include debt securities convertible into or exchangeable
for equity securities.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors of the Corporation, out of
funds legally available therefor, cash dividends at such rates and on such dates
as are set forth in the Prospectus Supplement relating to such series of the
Preferred Stock. Dividends will be payable to holders of record of the Preferred
Stock as they appear on the books of the Corporation on such record dates, as
shall be fixed by the Board of Directors. Dividends on any series of Preferred
Stock may be cumulative or non-cumulative.
No full dividends may be declared or paid or funds set apart for the
payment of dividends on any Parity Securities unless dividends shall have been
paid or set apart for such payment on the Preferred Stock. If full dividends are
not so paid, the Preferred Stock shall share dividends pro rata with the Parity
Securities. If dividends are cumulative, any accumulated unpaid dividends will
not bear interest.
REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Corporation or the holder thereof upon terms and at
the redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the Board of Directors of the
Corporation or by any other method determined to be equitable by the Board of
Directors.
On and after a redemption date, unless the Corporation defaults in the
payment of the redemption price, dividends will cease to accrue on shares of
Preferred Stock called for redemption and all rights of holders of such shares
will terminate except for the right to receive the redemption price.
Under current regulations, bank holding companies may not exercise any
option to redeem shares of preferred stock which constitute Tier 1 capital for
purposes of the Board of Governors' risk-based capital requirements without the
prior approval of the Board of Governors. Ordinarily, the Board of Governors
would permit such a redemption if (1) the shares are redeemed with the proceeds
of a sale by the bank holding company of common stock or perpetual preferred
stock or (2) the Board of Governors determines that a bank holding company's
capital position after such redemption would clearly be adequate and that its
condition and circumstances warrant the reduction of a source of permanent
capital.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, holders of each series of Preferred Stock that ranks senior to
the Junior Securities will be entitled to receive out of assets of the
Corporation available for distribution to stockholders, before any distribution
is made on any Junior Securities, including Common Stock, distributions upon
liquidation in the amount set forth in the Prospectus Supplement relating to
such series of Preferred Stock, plus an amount equal to any accrued and unpaid
dividends. If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the amounts payable with respect to the Preferred
Stock of any series and any other Parity Securities are not paid in full, the
holders of the Preferred Stock of such series and the Parity Securities will
share ratably in any such distribution of assets of the Corporation in
proportion to the full liquidation preferences to which each is entitled. After
payment of the full amount of the liquidation preference to which they are
entitled, the holders of such series of Preferred Stock will not be entitled to
any further participation in any distribution of assets of the Corporation.
However, neither (i) the merger or consolidation of the Corporation with or into
one or more
17
<PAGE> 19
corporations pursuant to any statute which provides in effect that the
stockholders of the Corporation shall continue as stockholders of the continuing
or combined corporation nor (ii) the acquisition by the Corporation of assets or
stock of another corporation shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of Preferred Stock, or except as expressly required by
applicable law, the holders of the Preferred Stock will have no voting rights.
Under regulations adopted by the Board of Governors, if the holders of
shares of any series of Preferred Stock of the Corporation became entitled to
vote for the election of directors, such series may then be deemed a "class of
voting securities" and a holder of 25% or more of such series (or a holder of 5%
if it otherwise exercises a "controlling influence" over the Corporation) may
then be subject to regulation as a bank holding company in accordance with the
Bank Holding Company Act of 1956, as amended. In addition, at such time as such
series is deemed a class of voting securities, (i) any other bank holding
company may be required to obtain the approval of the Board of Governors to
acquire or retain 5% or more of such series, and (ii) any person other than a
bank holding company may be required to obtain the approval of the Board of
Governors under the Change in Bank Control Act to acquire or retain 10% or more
of such series.
PLAN OF DISTRIBUTION
The Corporation may sell Securities to one or more underwriters for public
offering and sale by them or may sell Securities to investors directly or
through agents which solicit to receive offers on behalf of the Corporation or
through dealers or through a combination of any such methods of sale. The
applicable Prospectus Supplement will set forth the terms of the offering of any
Securities, including the names of the underwriters, the purchase price of such
Securities and the proceeds to the Corporation from such sale, any underwriting
discounts and other items constituting underwriters' compensation, any initial
public offering price, any discounts or concessions allowed or reallowed or paid
to dealers, and any securities exchanges on which such Securities may be listed.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. Such Securities may be offered to the public either through
underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Unless otherwise set forth in the applicable Prospectus
Supplement, the obligations of the underwriters to purchase such Securities will
be subject to certain conditions precedent, and the underwriters will be
obligated to purchase all of such Securities if any of such Securities are
purchased.
The Corporation also may offer and sell the Securities in exchange for one
or more of its outstanding issues of debt or convertible debt securities. The
Corporation may, from time to time, authorize agents acting on a best efforts
basis as agents of the Corporation to solicit or receive offers to purchase the
Securities upon the terms and conditions as are set forth in the applicable
Prospectus Supplement. In connection with the sale of Securities, underwriters
or agents may be deemed to have received compensation from the Corporation in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of Securities for whom they may act as agents.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agent. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Underwriters, dealers and agents participating in a distribution of the
Securities (including agents only soliciting or receiving offers to purchase
Securities on behalf of the Corporation) may be deemed to be underwriters, and
any discounts and commissions received by them and any profit realized by them
on resale of the Securities may be deemed to be underwriting discounts and
commissions, under the Act. Underwriters,
18
<PAGE> 20
dealers and agents may be entitled, under agreements entered into with the
Corporation, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Act. The Corporation may agree to
reimburse underwriters or agents for certain expenses incurred in connection
with the distribution of the Securities.
If so indicated in the applicable Prospectus Supplement, the Corporation
will authorize agents or dealers acting as the Corporation's agents to solicit
offers by certain institutions to purchase Securities from the Corporation at
the public offering price set forth in such Prospectus Supplement pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery on
the date or dates stated in such Prospectus Supplement. Each Contract will be
for an amount not less than, and the aggregate principal amount of Securities
sold pursuant to Contracts shall be not less nor more than, the respective
amounts stated in such Prospectus Supplement. Institutions with whom Contracts,
when authorized, may be made commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions,
and other institutions but will in all cases be subject to the approval of the
Corporation. Contracts will not be subject to any conditions except (i) the
purchase by an institution of the Securities covered by its Contracts shall not
at the time of delivery be prohibited under the laws of any jurisdiction in the
United States to which such institution is subject, and (ii) if the Securities
are being sold to underwriters, the Corporation shall have sold to such
underwriters the total principal amount of the Securities less the principal
amount thereof covered by Contracts.
Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in accordance
with a redemption or repayment pursuant to their terms, by one or more firms
("remarketing firms") acting as principals for their own accounts or as agents
for the Corporation. Any remarketing firm will be identified and the terms of
its agreement, if any, with the Corporation and its compensation will be
described in the Prospectus Supplement. Remarketing firms may be deemed to be
underwriters in connection with the Securities remarketed thereby.
Certain of the underwriters, dealers or agents and their associates may be
customers of, engage in transactions with, and perform services for, the
Corporation in the ordinary course of business.
HSBC Securities, Inc., an affiliate of the Corporation, may be a managing
underwriter, underwriter or agent in connection with any offer or sale of the
Securities. Each offering of the Securities will be conducted in compliance with
any applicable requirements of Rule 2720 of the Conduct Rules of the National
Association of Securities Dealers, Inc. regarding the underwriting by HSBC
Securities, Inc. of the securities of an affiliate. In addition, this Prospectus
may be used by HSBC Securities, Inc. in connection with offers and sales related
to market making activities. HSBC Securities, Inc. may act as principal or agent
in any such transactions. Such sales will be made at prices related to the
prevailing market prices at the time of sale.
ERISA MATTERS
The Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
imposes certain restrictions on employee benefit plans ("Plans") that are
subject to ERISA and on persons who are fiduciaries with respect to such Plans.
In accordance with ERISA's general fiduciary requirements, a fiduciary with
respect to any such Plan who is considering the purchase of the Securities on
behalf of such Plan should determine whether such purchase is permitted under
the governing Plan documents and is prudent and appropriate for the Plan in view
of its overall investment policy and the composition and diversification of its
portfolio. Other provisions of ERISA and Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), prohibit certain transactions involving
the assets of a Plan and persons who have certain specified relationships to the
Plan ("parties in interest" within the meaning of ERISA or "disqualified
persons" within the meaning of Section 4975 of the Code). Thus, a Plan fiduciary
considering the purchase of the Securities should consider whether such a
purchase might constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code.
The Corporation, directly or through its affiliates, may be considered a
"party in interest" or a "disqualified person" with respect to many Plans that
are subject to ERISA. The purchase of Securities by a
19
<PAGE> 21
Plan that is subject to the fiduciary responsibility provisions of ERISA or the
prohibited transaction provisions of Section 4975 of the Code (including
individual retirement accounts and other plans described in Section 4975(e)(1)
of the Code) and with respect to which the Corporation is a party in interest or
a disqualified person may constitute or result in a prohibited transaction under
ERISA or Section 4975 of the Code, unless such Securities are acquired pursuant
to and in accordance with an applicable exemption, such as Prohibited
Transaction Class Exemption ("PTCE") 84-14 (an exemption for certain
transactions determined by an independent qualified professional asset manager),
PTCE 91-38 (an exemption for certain transactions involving bank collective
investment funds), PTCE 90-1 (an exemption for certain transactions involving
insurance company pooled separate accounts), or PTCE 95-60 (an exemption for
certain transactions involving insurance company general accounts). ANY PENSION
OR OTHER EMPLOYEE BENEFIT PLAN PROPOSING TO ACQUIRE ANY SECURITIES SHOULD
CONSULT WITH ITS COUNSEL.
Certain of the underwriters and their associates may be customers of,
engage in transactions with and perform services for the Corporation in the
ordinary course of business.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for the
Corporation by Philip S. Toohey, General Counsel of the Corporation and for the
Underwriters by .
EXPERTS
The consolidated financial statements as of December 31, 1994 and 1995 and
for each of the years in the three-year period ended December 31, 1995 and the
consolidated balance sheet of Marine Midland Bank as of December 31, 1994 and
1995 contained in the Corporation's 1995 Form 10-K and the supplemental
consolidated financial statements as of December 31, 1994 and 1995 and for each
of the years in the three-year period ended December 31, 1995 and the
consolidated balance sheet of Marine Midland Bank as of December 31, 1994 and
1995 contained in the Corporation's Form 8-K dated June 5, 1996, have been
incorporated herein by reference in reliance upon the reports, set forth therein
of KPMG Peat Marwick LLP, independent accountants, and upon the authority of
said firm as experts in accounting and auditing.
20
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and distribution of the
securities being registered other than underwriting compensation are as follows:
<TABLE>
<S> <C>
SEC registration fee........................................................ $86,207
Rating agency fees..........................................................
Printing and engraving expenses.............................................
Accountants' fees and expenses..............................................
Trustees' fees and expenses.................................................
Blue sky fees and expenses..................................................
Listing fees................................................................
NASD fee.................................................................... 25,500
Legal fees and expenses.....................................................
Miscellaneous...............................................................
Total.....................................................................
</TABLE>
- ---------------
All the above amounts except the SEC registration fee and the NASD fee are
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 145 of the Delaware General Corporation Law
which provides for indemnification of directors and officers in certain
circumstances.
Article Fifteenth of the Corporation's Restated Certificate of
Incorporation provides for the elimination of the monetary liability of
directors for certain actions as such. The Company's Restated Certificate of
Incorporation is filed as Exhibit 3(a) to the Corporation's Annual Report on
Form 10-K for the year ended December 31, 1995.
The Company maintains insurance policies covering liabilities of directors
and officers to the extent not covered by indemnification from the Company,
subject to the conditions and exclusions of the policies, deductible provisions,
a maximum amount of coverage of L100 million and disputes with insurers about
availability of coverage.
For the undertaking with respect to indemnification, see Item 17 herein.
See the Form of proposed Underwriting Agreement filed as Exhibit 1(a) for
certain indemnification provisions.
II-1
<PAGE> 23
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
(1) (a) -- Form of Underwriting Agreement relating to the Debt Securities.***
(4) (a) -- Restated Certificate of Incorporation of the Corporation, as amended through June
12, 1996, incorporated herein by reference to Exhibit 3(a) to the Corporation's
Annual Report on Form 10-K for the year ended December 31, 1995 (File No.
1-2940).*
(4) (b) -- By-Laws of the Corporation, as amended through June 12, 1996, incorporated herein
by reference to Exhibit 3(b) to the Corporation's Annual Report on Form 10-K for
the year ended December 31, 1995 (File No. 1-2940).*
(4) (c) -- Senior Indenture, between the Corporation and Bankers Trust Company ("Bankers
Trust"), as Trustee, dated as of June , 1996.***
(4) (d) -- Subordinated Indenture between the Corporation and Bankers Trust, as Trustee,
dated as of June , 1996.***
(5) -- Opinion of Philip S. Toohey, Esq.***
(12) (a) -- Computation of the Corporation's Consolidated Ratio of Earnings to Fixed Charges
(excluding interest on deposits).**
(12) (b) -- Computation of the Corporation's Consolidated Ratio of Earnings to Fixed Charges
(including interest on deposits).**
(12) (c) -- Computation of the Corporation's Consolidated Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividend Requirements (excluding interest on
deposits).**
(12) (d) -- Computation of the Corporation's Consolidated Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividend Requirements (including interest on
deposits).**
(21) -- Subsidiaries of the Corporation. The Corporation's only significant subsidiary, as
defined, is Marine Midland Bank, a state bank organized under the laws of New York
State.
(23) (a) -- Consent of KPMG Peat Marwick LLP.***
(23) (b) -- Consent of Philip S. Toohey, Esq.***
(24) -- Power of Attorney of certain officers and directors.***
(25) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Bankers
Trust, as Trustee.***
</TABLE>
- ---------------
*Previously filed and incorporated by reference herein.
**Filed herewith.
***To be filed by amendment.
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 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; and
(2) to remove from 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 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE> 24
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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
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 Act and will
be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that: (1) for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective; and (2) for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus 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.
II-3
<PAGE> 25
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, the registrant
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Buffalo, State of New York, on the 12th day of June,
1996.
HSBC AMERICAS, INC.,
By *
(James H. Cleave)
(President And Chief Executive
Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- ------------------------------------------------------
<S> <C> <C>
* Chairman of the Board of June 12, 1996
(Northrup R. Knox) Directors
* President, Chief Executive June 12, 1996
(James H. Cleave) Officer and Director
* Executive Vice President and June 12, 1996
(Robert M. Butcher) Chief Financial Officer
(Principal Financial Officer)
* Executive Vice President June 12, 1996
(Gerald A. Ronning) and Controller
(Principal Accounting Officer)
* Director June 12, 1996
(John R. H. Bond)
* Director June 12, 1996
(William R. P. Dalton)
* Director June 12, 1996
(Sir William Purves)
</TABLE>
- ---------------
* The undersigned, by signing his name hereto, does hereby sign this
registration statement or amendment on behalf of each of the above indicated
directors and officers of HSBC Americas, Inc. pursuant to powers of attorney
executed on behalf of each such officer.
<TABLE>
<S> <C> <C>
By /s/ PHILIP S. TOOHEY
Fact) (Philip S. Toohey, Attorney-In-
</TABLE>
II-4
<PAGE> 26
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- ---------- --------------------------------------------------------------- -----------
<S> <C> <C>
1(a) -- Form of Underwriting Agreement relating to the Debt
Securities.***
(4)(a) -- Restated Certificate of Incorporation of the Corporation, as
amended through June 12, 1996, incorporated herein by reference
to Exhibit 3(a) to the Corporation's Annual Report on Form 10-K
for the year ended December 31, 1995 (File No. 1-2940)*
(4)(b) -- By-Laws of the Corporation, as amended through June 12, 1996,
incorporated herein by reference to Exhibit 3(b) to the
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1995 (File No. 1-2940).*
(4)(c) -- Senior Indenture, between the Corporation and Bankers Trust
Company ("Bankers Trust"), as Trustee, dated as of June ,
1996.***
(4)(d) -- Subordinated Indenture between the Corporation and Bankers
Trust, as Trustee, dated as of June , 1996.***
(5) -- Opinion of Philip S. Toohey, Esq.***
(12)(a) -- Computation of the Corporation's Consolidated Ratio of Earnings
to Fixed Charges (excluding interest on deposits).**
(12)(b) -- Computation of the Corporation's Consolidated Ratio of Earnings
to Fixed Charges (including interest on deposits).**
(12)(c) -- Computation of the Corporation's Consolidated Ratio of Earnings
to Combined Fixed Charges and Preferred Stock Dividend
Requirements (excluding interest on deposits).**
(12)(d) -- Computation of the Corporation's Consolidated Ratio of Earnings
to Combined Fixed Charges and Preferred Stock Dividend
Requirements (including interest on deposits).**
(21) -- Subsidiaries of the Corporation. The Corporation's only
significant subsidiary, as defined, is Marine Midland Bank, a
state bank organized under the laws of New York State.
(23)(a) -- Consent of KPMG Peat Marwick.***
(23)(b) -- Consent of Philip S. Toohey, Esq.***
(24) -- Power of Attorney of certain officers and directors.***
(25) -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939
of Bankers Trust, as Trustee.***
</TABLE>
- ---------------
* Previously filed and incorporated by reference herein.
** Filed herewith.
*** To be filed by amendment.
II-5
<PAGE> 1
Exhibit 12(a)
HSBC AMERICAS, INC. AND SUBSIDIARIES
CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES (a)
(EXCLUDING INTEREST ON DEPOSITS)
(IN MILLIONS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
Three Months
Ended March 31, (b) Years Ended December 31,
-------------------- ---------------------------------------
1996 1995 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss) Before Cumulative Effect of Change
in Accounting Principle and Extraordinary Item $ 86 $ 74 $284 ($37) ($230) ($88) ($174)
Applicable Income Tax Expense (Credit) 49 (62) 52 126 22 30 27
Undistributed Equity Earnings (c) 1 0(d) 0(d) 4 4 4 5
Fixed Charges:
Interest On:
Borrowed Funds 30 23 81 81 83 59 143
Long-Term Debt 12 13 50 86 116 155 183
One Third of Rents, Net of Income from Subleases (e) 3 3 12 11 14 13 13
---- ---- ---- ---- ---- ---- ----
Total Fixed Charges 45 39 143 178 213 227 339
Earnings (Loss) Before Taxes Based on
Income and Fixed Charges $179 $ 51 $479 $263 $ 1 $165 $187
---- ---- ---- ---- ---- ---- ----
Consolidated Ratio of Earnings to
Combined Fixed Charges 3.98 1.31 3.35 1.48 0.00 0.73 0.55
---- ---- ---- ---- ---- ---- ----
<FN>
(a) The Three Months Ended March 31, 1995 and the Years Ended December 31, 1995
to 1991 have been restated to include the results of Oleifera Investments,
Ltd. merged with the Corporation on January 1, 1996.
(b) Unaudited
(c) Undistributed equity earnings of less than fifty percent owned companies.
(d) Less than $500,000.
(e) The portion deemed representative of the interest factor.
* The amount by which earnings for the years ended December 31, 1993, 1992
and 1991 were insufficient to cover combined fixed charges were $212
million, $62 million and $152 million respectively (excluding and including
interest on deposits).
</TABLE>
<PAGE> 1
Exhibit 12(b)
HSBC AMERICAS, INC. AND SUBSIDIARIES
CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES (a)
(INCLUDING INTEREST ON DEPOSITS)
(IN MILLIONS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
Three Months
Ended March 31, (b) Years Ended December 31,
-------------------- --------------------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Total Fixed Charges (as above) $ 45 $ 39 $ 143 $ 178 $ 213 $ 227 $ 339
Add: Interest on Deposits 117 102 465 308 290 397 669
----- ----- ----- ----- ----- ----- ------
Total Fixed Charges and Interest on Deposits $ 162 $ 141 $ 608 $ 486 $ 503 $ 624 $1,008
Earnings (Loss) Before Taxes Based on Income and
Fixed Charges (as above) $ 179 $ 51 $ 479 $ 263 $ 1 $ 165 $ 187
Add: Interest on Deposits 117 102 465 308 290 397 669
----- ----- ----- ----- ----- ----- ------
Total $ 296 $ 153 $ 944 $ 571 $ 291 $ 562 $ 856
Consolidated Ratio of Earnings to
Combined Fixed Charges 1.83 1.09 1.55 1.17 0.58 0.90 0.85
----- ----- ----- ----- ----- ----- ------
<FN>
(a) The Three Months Ended March 31, 1995 and the Years Ended December 31, 1995
to 1991 have been restated to include the results of Oleifera Investments,
Ltd. merged with the Corporation on January 1, 1996.
(b) Unaudited
(c) Undistributed equity earnings of less than fifty percent owned companies.
(d) Less than $500,000.
(e) The portion deemed representative of the interest factor.
* The amount by which earnings for the years ended December 31, 1993, 1992
and 1991 were insufficient to cover combined fixed charges were $212
million, $62 million and $152 million respectively (excluding and including
interest on deposits).
</TABLE>
<PAGE> 1
Exhibit 12(c)
HSBC AMERICAS, INC. AND SUBSIDIARIES
CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND DIVIDENDS ON PREFERRED STOCK (a)
(EXCLUDING INTEREST ON DEPOSITS)
(IN MILLIONS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
Three Months
Ended March 31, (a) Years Ended December 31,
-------------------- --------------------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Income (Loss) Before Cumulative Effect of Changes in
Accounting Principle and Extraordinary Item $86 $74 $284 ($37) ($230) ($88) ($174)
Applicable Income Tax Expenses (Credit) 49 (62) 52 126 22 30 27
Undistributed Equity Earnings (c) 1 .0 (d) 0 4 4 4 5
Fixed Charges:
Interest On:
Borrowed Funds 30 23 81 81 83 59 143
Long-Term Debt 12 13 50 86 116 155 183
One Third of Rents, Net of Income from Subleases (a) 3 3 12 11 14 13 13
-- -- -- -- -- -- --
Total Fixed Charges 45 39 143 178 213 227 339
Earnings (Loss) Before Taxes Based on
Income and Fixed Charges $179 $51 $479 $263 $1 $165 $187
==== === ==== ==== == ==== ====
Total Fixed Charges $45 $39 $143 $178 $213 $227 $339
Preferred Stock Dividends 1 1 6 6 6 6 7
Ratio of Pretax income (Loss) to Income (Loss)
After Applicable Income Tax Expenses 1.57 (f) 1.18 (f) (f) (f) (f)
---- --- ---- --- --- --- ---
Total Preferred Stock Dividend Factor 2 1 7 6 6 6 7
Fixed Charges, Including Preferred Stock Dividend Factor $47 $40 $150 $184 $219 $233 $346
=== === ==== ==== ==== ==== ====
Consolidated Ratio of Earnings to Combined Fixed
Charges and Dividends on Preferred Stock 3.81 1.28 3.19 1.43 0.00 0.71 0.54
==== ==== ==== ==== ==== ==== ====
<FN>
(a) The Three Months Ended March 31, 1995 and the years Ended December 31, 1995
to 1991 have been restated to include the results of Oleifera Investments,
Ltd. merged with the Corporation on January 1, 1996.
(b) Unaudited
(c) Undistributed equity earnings of less than fifty percent owned competition.
(d) Less than $500,000.
(e) The portion deemed representative of the interest factor.
(f) Ratio is less than one, therefore actual preferred stock dividend amount
used.
* The amount by which earnings for the years ended December 31, 1993, 1992,
and 1991 were insufficent to cover combined fixed charges and dividends on
preferred stock were $218 million, $68 million and $159 million respectively
(excluding and including interest on deposits).
</TABLE>
<PAGE> 1
Exhibit 12(d)
HSBC AMERICAS, INC. AND SUBSIDIARIES
CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND DIVIDENDS ON PREFERRED STOCK (a)
(Including Interest on Deposits)
(In Millions Except Ratios)
<TABLE>
<CAPTION>
Three Months
Ended March 31, (b) Years Ended December 31,
--------------- -------------------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ----- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Total Fixed Charges, including Preferred Stock
Dividend Factor (as above) $47 $40 $150 $184 $219 $233 $346
Add: Interest on Deposits 117 102 465 308 290 397 669
---- ---- ---- ---- ---- ---- ----
Fixed Charges, including Preferred Stock
Dividend Factor and Interest on Deposits $164 $142 $615 $492 $509 $630 $1,015
Earnings (Loss) Before Taxes: Based on
Income and Fixed Charges (as above) $179 $ 51 $479 $263 $1 $165 $187
Add: Interest on Deposits 117 102 465 308 290 397 669
---- ---- ---- ---- ---- ---- ----
Total $296 $153 $944 $571 $291 $562 $856
---- ---- ---- ---- ---- ---- ----
Consolidated Ratio of Earnings to Combined Fixed
Charges and Dividends on Preferred Stock 1.80 1.08 1.53 1.16 0.57 0.89 0.84
==== ==== ==== ==== ==== ==== ====
<FN>
(a) The Three Months Ended March 31, 1995 and the Years Ended December 31, 1995
to 1991 have been restated to include the results of Oleifera Investments,
Ltd. merged with the Corporation on January 1, 1996.
(b) Unaudited
(c) Undistributed equity earnings of less than fifty percent owned companies.
(d) Less than $500,000
(e) The portion deemed representatively of the interest factor.
(f) Ratio is less than one, therefore mutual preferred stock dividends amount
used.
* The amount by which earnings for the years ended December 31, 1993, 1992,
and 1991 were insufficent to cover combined fixed charges and dividends on
preferred stock were $218 million, $68 million and $159 million respectively
(excluding and including interest on deposits).
</TABLE>
