As filed with the Securities and Exchange Commission on December 22, 1997
Registration No. 333-42295
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO.1
TO
FORM S-3
REGISTRATION STATEMENT
AND POST-EFFECTIVE AMENDMENT UNDER
THE SECURITIES ACT OF 1933
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THE BEAR STEARNS COMPANIES INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-3286161
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization
245 PARK AVENUE
NEW YORK, NEW YORK 10167
(212) 272-2000
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
WILLIAM J. MONTGORIS
CHIEF OPERATING OFFICER
THE BEAR STEARNS COMPANIES INC.
245 PARK AVENUE
NEW YORK, NEW YORK 10167
(212) 272-2000
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
DENNIS J. BLOCK, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
Approximate date of commencement of proposed sale of the securities to the
public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement 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.[_]
CALCULATION OF REGISTRATION FEE
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PROPOSED
TITLE OF EACH MAXIMUM
CLASS OF SECURITIES AGGREGATE AMOUNT OF
TO BE REGISTERED(1) OFFERING PRICE(2) REGISTRATION FEE
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Preferred Stock.................. $537,500,000 $158,563(4)
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Depositary Shares................ (3) (3)
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(1) There are being registered hereunder an indeterminate number of (i) shares
of Preferred Stock as may from time to time be issued with an aggregate
offering price of $537,500,000, and (ii) Depositary Shares representing
the Preferred Stock. Depositary Receipts evidencing the Depositary Shares
will be issued pursuant to a Deposit Agreement. In the event the
registrant elects to offer to the public fractional interests in shares of
Preferred Stock registered hereunder, Depositary Receipts will be
distributed to those persons purchasing such fractional interests and
shares of Preferred Stock will be deposited with the Depositary under the
Deposit Agreement.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) No additional consideration will be received for the Depositary Shares.
(4) Previously paid on December 12, 1997.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this Registration Statement is a combined Prospectus and relates to
this Registration Statement and Registration Statement No. 33-59140 previously
filed by the Registrant on Form S-3 and declared effective on March 11, 1993.
This Registration Statement also constitutes Post-Effective Amendment No. 1 to
Registration Statement No. 33-59140 and such Post-Effective Amendment shall
hereafter become effective concurrently with the effectiveness of this
Registration Statement in accordance with Section 8(c) of the Securities Act of
1933.
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 thereafter shall become effective in accordance with Section 8(a) of
the Securities Act of 1933 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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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED DECEMBER 22, 1997
PROSPECTUS
THE BEAR STEARNS COMPANIES INC.
PREFERRED STOCK
The Bear Stearns Companies Inc. (the "Company") may issue from time to
time in one or more series its Preferred Stock, $1.00 par value, with an
aggregate initial public offering price not to exceed $650,000,000 (the
"Preferred Stock"). The Preferred Stock may be issued in amounts, at prices and
on other terms to be determined in light of market conditions at the time of
sale. Information relating to the specific number of shares, title, stated value
and liquidation preference of each share, issuance price, dividend rate or
method of calculation, dividend periods, dividend payment dates, any redemption
or sinking fund provisions, whether fractional interests in shares of Preferred
Stock will be offered through depositary arrangements, any national securities
exchange or other trading market on which the Preferred Stock may be listed or
registered and other specific terms of each series of Preferred Stock in respect
of which this Prospectus is being delivered shall be set forth in an
accompanying Prospectus Supplement (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 SUPPLEMENT
HERETO. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Preferred Stock may be offered through dealers, through underwriters
or through agents designated from time to time, as set forth in the accompanying
Prospectus Supplement. Any such underwriters (and any representative thereof),
dealers or agents may include Bear, Stearns & Co. Inc., a wholly owned
subsidiary of the Company ("Bear Stearns"). The net proceeds to the Company will
be, in the case of a dealer, the sales price to such dealer, in the case of an
underwriter, the public offering price less the applicable underwriting discount
or commission, and, in the case of an agent, the public offering price less the
applicable agency commission, in each case, less other expenses attributable to
issuance and distribution. See "Plan of Distribution" for possible
indemnification arrangements for dealers, underwriters and agents.
Following the initial distribution of a series of Preferred Stock and
subject to obtaining the approval of the New York Stock Exchange, Inc., Bear
Stearns may offer and sell previously issued shares of such series of Preferred
Stock in the course of its business as a broker-dealer. Bear Stearns may act as
principal or agent in such transactions. This Prospectus and the accompanying
Prospectus Supplement may be used by Bear Stearns in connection with such
transactions. Such sales, if any, will be made at varying prices related to
prevailing market prices at the time of sale.
BEAR, STEARNS & CO. INC.
_____ __, 199__
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CERTAIN PERSONS PARTICIPATING IN THE OFFERING OF CERTAIN SECURITIES
HEREUNDER MAY ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE
AFFECT THE PRICE OF THOSE SECURITIES, INCLUDING OVERALLOTMENT, STABILIZING
AND SHORT-COVERING TRANSACTIONS AND THE IMPOSITION OF PENALTY BIDS. SEE "PLAN
OF DISTRIBUTION."
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SECURITIES BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED
OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information filed by the Company with the Commission 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 or at its Regional
Offices located at the Citicorp Center, 5000 West Madison Street, Suite 1400,
Chicago, Illinois 60661- 2511 and 7 World Trade Center, 13th Floor, New York,
New York 10048, and copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. Such information may also be accessed electronically
by means of the Commission's home page on the Internet at http://www.sec.gov.
Reports, proxy statements and other information concerning the Company can also
be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
This Prospectus constitutes a part of a Registration Statement filed by
the Company with the Commission under the Securities Act of 1933, as amended
(the "Securities Act"). This Prospectus omits certain of the information
contained in the Registration Statement in accordance with the rules and
regulations of the Commission. Reference is hereby made to the Registration
Statement and related exhibits for further information with respect to the
Company and the Preferred Stock. Statements contained herein concerning the
provisions of any document 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.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to Section 13 of the Exchange Act (File No. 1-8989), are incorporated herein by
reference: (i) the Annual Report on Form 10-K (including the portions of the
Company's Annual Report to Stockholders and Proxy Statement incorporated by
reference therein) for the fiscal year ended June 30, 1997 (the "1997 Form
10-K"), (ii) the Quarterly Report on Form 10-Q for the quarter ended September
26, 1997, and (iii) the Current Reports on Form 8-K, dated July 29, 1997, August
13, 1997, October 14, 1997 and October 28, 1997. All documents filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Preferred Stock 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 any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all documents incorporated by reference into this Prospectus
except the exhibits to such documents (unless such exhibits are specifically
incorporated by reference in such documents). Requests for such copies should be
directed to Corporate Communications Department, The Bear Stearns Companies
Inc., 245 Park Avenue, New York, New York 10167; telephone number (212)
272-2000.
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THE COMPANY
The Company is a holding company that, through its principal subsidiaries,
Bear, Stearns & Co. Inc. ("Bear Stearns") and Bear, Stearns Securities Corp.
("BSSC"), is a leading United States investment banking, securities trading and
brokerage firm serving corporations, governments, institutional and individual
investors worldwide. The business of the Company includes: market-making and
trading in corporate, United States Government, government-agency,
mortgage-related, asset-backed and municipal securities; trading in options,
futures, foreign currencies, interest-rate swaps and other derivative products;
securities and commodities arbitrage; securities, options and commodities
brokerage; underwriting and distributing securities; providing securities
clearance services; financing customer activities; securities lending; arranging
for the private placement of securities; assisting in mergers, acquisitions,
restructurings and leveraged transactions; providing other financial advisory
services; making principal investments in leveraged acquisitions; acting as
specialist on the floor of the New York Stock Exchange ("NYSE"); providing
fiduciary and other services, such as real estate brokerage, investment
management and investment advisory; and securities research.
The Company's business is conducted from its principal offices in New York
City; from domestic regional offices in Atlanta, Boston, Chicago, Dallas, Los
Angeles and San Francisco; from representative offices in Beijing, Geneva, Hong
Kong, Lugano and Shanghai; through international subsidiaries in Buenos Aires,
Dublin, Hong Kong, London, Paris, Sao Paulo, Singapore and Tokyo; and through
joint ventures with other firms in Belgium, Madrid, Paris and the Philippines.
The Company's foreign offices provide services and engage in investment
activities involving foreign clients and international transactions. The Company
provides trust- company services through its subsidiary, Custodial Trust
Company, located in Princeton, New Jersey.
Bear Stearns and BSSC are broker-dealers registered with the Commission.
They also are members of the NYSE, all other principal United States securities
and commodities exchanges, the National Association of Securities Dealers, Inc.
(the "NASD") and the National Futures Association. Bear Stearns is a "primary
dealer" in United States government securities, as designated by the Federal
Reserve Bank of New York.
The Company is incorporated in Delaware. The principal executive office of
the Company is located at 245 Park Avenue, New York, New York 10167; its
telephone number is (212) 272-2000.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of each series of
Preferred Stock for general corporate purposes, which may include additions to
working capital, the repayment of short-term indebtedness and investments in, or
extensions of credit to, subsidiaries.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
The ratio of earnings to combined fixed charges and preferred dividends
was 1.3 for the three months ended September 26, 1997 and 1.4, 1.4, 1.2, 1.6 and
1.8 for the fiscal years ended June 30, 1997, 1996, 1995, 1994 and 1993,
respectively. These ratios were calculated by dividing the sum of fixed charges
and preferred dividends into the sum of earnings before taxes and fixed charges.
Fixed charges for these purposes consist of all interest expense and certain
other immaterial expenses. Preferred dividends represent the pre-tax earnings
necessary to cover the dividends on the Company's preferred stock assuming such
earnings are taxed at the Company's consolidated effective tax rate.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. The particular terms of the Preferred Stock
offered by any Prospectus Supplement and the extent, if any, to which such
general terms do not apply to such Preferred Stock will be described in such
Prospectus Supplement. The description of the terms of
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the Preferred Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Company's Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), including the Certificate of Designations (the
"Certificate of Designations") relating to the applicable series of Preferred
Stock. The Certificate of Incorporation and any such Certificate of Designations
are filed as exhibits to or will be incorporated by reference in the
Registration Statement of which this Prospectus forms a part.
GENERAL
The Company is authorized by its Certificate of Incorporation to issue
10,000,000 shares of preferred stock, $1.00 par value, which may be issued from
time to time in one or more series and, subject to the provisions of the
Certificate of Incorporation applicable to all series of preferred stock, shall
have such designations, voting powers, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, as shall be stated in the resolution or resolutions
providing for the issue thereof adopted by the Company's Board of Directors (the
"Board of Directors") or a duly authorized committee thereof.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise specified in the applicable
Prospectus Supplement. Reference is made to the Prospectus Supplement relating
to the particular series of Preferred Stock offered thereby for specific terms,
including: (i) the designation, stated value and liquidation preference of such
Preferred Stock and the number of shares offered; (ii) the initial public
offering price at which such shares will be issued; (iii) the dividend rate or
rates (or method of calculation), the date or dates from which dividends shall
accrue, and whether such dividends shall be cumulative or noncumulative and, if
cumulative, the dates from which dividends shall commence to cumulate; (iv) any
redemption or sinking fund provisions; (v) the amount that shares of such series
shall be entitled to receive in the event of any liquidation, dissolution or
winding up of the Company; (vi) the terms and conditions, if any, on which
shares of such series shall be exchangeable for shares of stock of any other
class or classes, or other series of the same class, of the Company; (vii) the
voting rights, if any, of shares of such series in addition to those set forth
in "Voting Rights" below; (viii) the status as to reissuance or sale of shares
of such series redeemed, purchased or otherwise reacquired, or surrendered to
the Company on conversion or exchange; (ix) the conditions and restrictions, if
any, on the payment of dividends or on the making of other distributions on, or
the purchase, redemption or other acquisition by the Company or any subsidiary,
of the Common Stock or of any other class of stock of the Company ranking junior
to the shares of such series as to dividends or upon liquidation; (x) the
conditions and restrictions, if any, on the creation of indebtedness of the
Company, or any subsidiary, or on the issue of any additional stock ranking on a
parity with or prior to the shares of such series as to dividends or upon
liquidation; and (xi) any additional dividend, liquidation, redemption, sinking
or retirement fund and other rights, preferences, privileges, limitations and
restrictions of such Preferred Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the applicable Prospectus Supplement, the shares
of each series of Preferred Stock will upon issuance rank on a parity in all
respects with the outstanding shares of the Company's Adjustable Rate Cumulative
Preferred Stock, Series A, Cumulative Preferred Stock, Series B and Cumulative
Preferred Stock, Series C. As of December 10, 1997, there were outstanding
479,250 shares of the Company's Adjustable Rate Cumulative Preferred Stock,
Series A, 937,500 shares of the Company's Cumulative Preferred Stock, Series B
and 500,000 shares of the Company's Cumulative Preferred Stock, Series C. The
Preferred Stock will have no preemptive rights to subscribe for any additional
securities that may be issued by the Company.
DIVIDENDS
Unless otherwise specified in the applicable Prospectus Supplement, before
any dividends may be declared or paid to the holders of shares of the Common
Stock, par value $1.00 per share, of the Company (the "Common Stock") or of any
other capital stock of the Company ranking junior to any series of the Preferred
Stock as to the payment of dividends, the holders of the Preferred Stock of that
series will be entitled to receive, when and as declared by the Board of
Directors or a duly authorized committee thereof, out of the net profits or
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net assets of the Company legally available therefor, dividends payable
quarterly on January 15, April 15, July 15 and October 15, in each year at such
rates as will be specified in the applicable Prospectus Supplement. Such rates
may be fixed or variable or both. If variable, the formula used for determining
the dividend rate for each dividend period will be specified in the applicable
Prospectus Supplement. Dividends will be payable to the holders of record as
they appear on the stock transfer records of the Company on such dates (not less
than 15 days nor more than 60 days prior to a dividend payment date) as will be
fixed by the Board of Directors or a duly authorized committee thereof.
Dividends will be paid in the form of cash.
Dividends on any series of Preferred Stock may be cumulative or
noncumulative, as specified in the applicable Prospectus Supplement. If the
Board of Directors fails to declare a dividend payable on a dividend payment
date on any series of Preferred Stock for which dividends are noncumulative
("Noncumulative Preferred Stock"), then the holders of the Preferred Stock of
that series will have no right to receive a dividend in respect of the dividend
period relating to such dividend payment date, and the Company will have no
obligation to pay the dividend accrued for such period, whether or not dividends
on that series are declared or paid on any future dividend payment dates. If
dividends on any series of Preferred Stock are not paid in full or declared in
full and sums set apart for the payment thereof, then no dividends shall be
declared and paid on that series unless declared and paid ratably on all shares
of every series of Preferred Stock then outstanding, including dividends accrued
or in arrears, if any, in proportion to the respective amounts that would be
payable per share if all such dividends were declared and paid in full.
The Prospectus Supplement relating to a series of Preferred Stock will
specify the conditions and restrictions, if any, on the payment of dividends or
on the making of other distributions on, or the purchase, redemption or other
acquisition by the Company or any subsidiary of, the Common Stock or of any
other class of stock of the Company ranking junior to the shares of that series
as to dividends or upon liquidation and any other preferences, rights,
restrictions and qualifications that are not inconsistent with the Certification
of Incorporation.
LIQUIDATION RIGHTS
Unless otherwise specified in the Prospectus Supplement relating to a
series of Preferred Stock, upon any liquidation, dissolution or winding up of
the Company (whether voluntary or involuntary) the holders of Preferred Stock of
that series will be entitled to receive out of the assets of the Company
available for distribution to its stockholders, whether from capital, surplus or
earnings, the amount specified in the applicable Prospectus Supplement for that
series, together with all dividends accrued and unpaid, before any distribution
of the assets will be made to the holders of Common Stock or any other class or
series of shares ranking junior to that series of Preferred Stock upon
liquidation, dissolution or winding up, and will be entitled to no other or
further distribution. If, upon any liquidation, dissolution or winding up of the
Company, the assets distributable among the holders of a series of Preferred
Stock shall be insufficient to permit the payment in full to the holders of that
series of Preferred Stock of all amounts payable to those holders, then the
entire assets of the Company thus distributable will be distributed ratably
among the holders of that series of in proportion to the respective amounts that
would be payable per share if those assets were sufficient to permit payment in
full.
Neither the consolidation, merger or other business combination of the
Company with or into any other individual, firm, corporation or other entity nor
the sale, lease, exchange or conveyance of all or any part of the property,
assets or business of the Company will be deemed to be a liquidation,
dissolution or winding up of the Company.
REDEMPTION
If so specified in the applicable Prospectus Supplement, any series of
Preferred Stock may be redeemable, in whole or in part, at the option of the
Company or pursuant to a retirement or sinking fund or otherwise, on terms and
at the times and the redemption prices specified in that Prospectus Supplement.
If less than all shares of the series at the time outstanding are to be
redeemed, the shares to be redeemed will be selected pro rata or by lot, in such
manner as may be prescribed by resolution of the Board of Directors.
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Notice of any redemption of a series of Preferred Stock will be given by
publication in a newspaper of general circulation in the Borough of Manhattan,
the City of New York, such publication to be made not less than 30 nor more than
60 days prior to the redemption date. A similar notice will be mailed by the
Company, postage prepaid, not less than 30 nor more than 60 days prior to the
redemption date, addressed to the respective holders of record of shares of that
series at the addresses shown on the stock transfer records of the Company, but
the mailing of such notice will not be a condition of such redemption. In order
to facilitate the redemption of shares of Preferred Stock, the Board of
Directors may fix a record date for the determination of the shares to be
redeemed, and such record date will be not more than 60 days nor less than 30
days prior to the redemption date.
Prior to the redemption date, the Company will deposit money for the
payment of the redemption price with a bank or trust company doing business in
the Borough of Manhattan, the City of New York, and having a capital and surplus
of at least $10,000,000. Unless the Company fails to make such deposit, on the
redemption date, all dividends on the series of Preferred Stock called for
redemption will cease to accrue and all rights of the holders of shares of that
series as stockholders of the Company shall cease, except the right to receive
the redemption price (but without interest). Unless otherwise specified in the
applicable Prospectus Supplement, any monies so deposited which remain unclaimed
by the holders of the shares of that series at the end of six years after the
redemption date will become the property of, and will be paid by the bank or
trust company with which it has been so deposited to, the Company.
CONVERSION RIGHTS
No series of Preferred Stock will be convertible into Common Stock.
VOTING RIGHTS
Unless otherwise determined by the Board of Directors of the Company and
indicated in the Prospectus Supplement applicable to a particular series of
Preferred Stock, holders of the Preferred Stock of that series will not have any
voting rights except as set forth below or as otherwise from time to time
required by law. Whenever dividends on any series of Preferred Stock or any
other class or series of stock ranking on a parity with that series with respect
to the payment of dividends shall be in arrears for dividend periods, whether or
not consecutive, containing in the aggregate a number of days equivalent to six
calendar quarters, the holders of shares of that series (voting separately as a
class with all other series of Preferred Stock upon which like voting rights
have been conferred and are exercisable) will be entitled to vote for the
election of two of the authorized number of directors of the Company at the next
annual meeting of stockholders and at each subsequent meeting until all
dividends accumulated on that series have been fully paid or set apart for
payment. The term of office of all directors elected by the holders of a series
of Preferred Stock shall terminate immediately upon the termination of the right
of the holders of that series to vote for directors. Whenever the shares of a
series are or become entitled to vote, each holder of shares of that series will
have one vote for each share held.
So long as shares of any series of Preferred Stock remain outstanding, the
Company shall not, without the consent of the holders of at least two-thirds of
the shares of that series outstanding at the time (voting separately as a class
with all other series of Preferred Stock upon which like voting rights have been
conferred and are exercisable), (i) issue or increase the authorized amount of
any class or series of stock ranking senior to the shares of that series as to
dividends or upon liquidation or (ii) amend, alter or repeal the provisions of
the Company's Certificate of Incorporation or of the resolutions contained in
the Certificate of Designation, whether by merger, consolidation or otherwise,
so as to materially and adversely affect any power, preference or special right
of the outstanding shares of that series or the holders thereof; provided,
however, that any increase in the amount of the authorized Common Stock or
authorized Preferred Stock or the creation and issuance of Common Stock or any
other series of Preferred Stock ranking on a parity with or junior to a series
of Preferred Stock as to dividends and upon liquidation shall not be deemed to
materially and adversely affect the powers, preferences or special rights of the
shares of that series.
Unless otherwise indicated in the applicable Prospectus Supplement, the
transfer agent, dividend disbursing agent and registrar for each series of
Preferred Stock will be Chase Mellon Shareholder Services L.L.C.
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DESCRIPTION OF DEPOSITARY SHARES
The following summary and the summary in any Prospectus Supplement of the
terms and provisions of the Depositary Shares and Depositary Receipts does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Deposit Agreement relating to the applicable series of
Preferred Stock, which will be filed as an exhibit to or incorporated by
reference in the Registration Statement of which this Prospectus is a part.
GENERAL
The Company, at its option, may elect to offer fractional interests in
shares of a series of Preferred Stock, rather than whole shares. If the option
is exercised, the Company will provide for the issuance by a depositary of
depositary receipts ("Depositary Receipts") evidencing depositary shares
("Depositary Shares"), each of which will represent a fractional interest (to be
specified in the applicable Prospectus Supplement) in a share of a particular
series of the Preferred Stock as more fully described below.
If the Company offers fractional shares of any series of Preferred Stock,
those shares will be deposited under a separate deposit agreement (a "Deposit
Agreement") among the Company, a bank or trust company selected by the Company
and having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000 (the "Depositary") and the holders
from time to time of the Depositary Receipts issued thereunder by that
Depositary. The applicable Prospectus Supplement will set forth the name and
address of the Depositary. Subject to the terms of the Deposit Agreement, each
owner of a Depositary Share will be entitled, in proportion to the applicable
fractional interest in a share of Preferred Stock underlying such Depositary
Share, to all the rights and preferences of the fractional share of Preferred
Stock underlying such Depositary Share (including dividend, voting, redemption
and liquidation rights).
Pending the preparation of definitive engraved Depositary Receipts, upon
the written order of the Company, the Depositary may issue temporary Depositary
Receipts substantially identical to (and entitling the holders thereof to all
the rights pertaining to) the definitive Depositary Receipts but not in
definitive form. Definitive Depositary Receipts will be prepared thereafter
without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Company's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute to the holders of Depositary Receipts
evidencing Depositary Shares all cash dividends or other cash distributions
received in respect of the underlying fractional shares of Preferred Stock in
proportion to their respective holdings of the Depositary Shares on the relevant
record date. However, the Depositary will distribute only the amount that can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed will be held by the Depositary
(without liability for interest thereon) and will be added to and treated as
part of the next sum received by the Depositary for distribution to holders of
Depositary Receipts then outstanding.
If the Company distributes property other than cash in respect of shares
of Preferred Stock deposited under a Deposit Agreement, the Depositary will
distribute the property received by it to the record holders of Depositary
Receipts evidencing the Depositary Shares relating to those shares of Preferred
Stock, in proportion, as nearly as may be practicable, to their respective
holdings of the Depositary Shares on the relevant record date, unless the
Depositary determines that it is not feasible to make such a distribution, in
which case the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable to give effect to the distribution,
including the sale of the property so received and distribution of the net
proceeds from such sale to the holders of the Depositary Receipts.
Each Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar right offered by the Company to holders of
the Preferred Stock deposited under such Deposit Agreement will be made
available to holders of Depositary Shares.
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REDEMPTION OF DEPOSITARY SHARES
If the shares of Preferred Stock deposited under a Deposit Agreement are
subject to redemption, in whole or in part, then, upon any such redemption, the
Depositary Shares relating to those deposited shares will be redeemed from the
proceeds received by the Depositary as a result of the redemption. Whenever the
Company redeems shares of Preferred Stock held by a Depositary, the Depositary
will redeem as of the same redemption date the number of Depositary Shares
representing the shares of Preferred Stock so redeemed. The Depositary will mail
the notice of redemption not less than 20 and not more than 50 days prior to the
date fixed for redemption to the record holders of the Depositary Shares to be
so redeemed. The redemption price per Depositary Share will be equal to the
applicable fraction of the per share redemption price of the Preferred Stock
underlying such Depositary Share. If less than all the Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata as may be determined by the Depositary.
If notice of redemption shall have been given as described above, from and
after the date fixed for redemption, unless the Company shall have failed to
redeem the shares of Preferred Stock so called for redemption, the Depositary
Shares so called for redemption will no longer be deemed to be outstanding, and
all rights of the holders of such Depositary Shares will cease, except for the
right to receive the monies payable upon such redemption and any money or other
property to which the holders of such Depositary Shares were entitled upon such
redemption, upon surrender to the Depositary of the Depositary Receipts
evidencing such Depositary Shares.
VOTING RIGHTS
As soon as practicable after receipt of notice of any meeting at which the
holders of shares of Preferred Stock deposited under a Deposit Agreement are
entitled to vote, the Depositary will mail the information contained in that
notice of meeting (and any accompanying proxy materials) to the holders of the
Depositary Shares relating to such Preferred Stock as of the record date for
such meeting. Each such holder will be entitled, subject to any applicable
restrictions, to instruct the Depositary as to the exercise of the voting rights
of the Preferred Stock represented by such holder's Depositary Shares. The
Depositary will endeavor, insofar as practicable, to vote the Preferred Stock
represented by those Depositary Shares in accordance with the holder's
instructions, and the Company will agree to take all action deemed necessary by
the Depositary to enable the Depositary to do so. The Depositary will abstain
from voting shares of Preferred Stock deposited under a Deposit Agreement as to
which it has not received specific instructions from the holders of the
Depositary Shares representing those shares.
WITHDRAWAL OF STOCK
Upon surrender of Depositary Receipts at the principal office of the
relevant Depositary (unless the Depositary Shares evidenced thereby have
previously been called for redemption), and subject to the terms of the related
Deposit Agreement, the owner of the Depositary Shares evidenced thereby shall be
entitled to delivery of whole shares of Preferred Stock and all money and other
property, if any, represented by those Depositary Shares. Fractional shares of
Preferred Stock will not be delivered. If the Depositary Receipts surrendered by
the holder evidence Depositary Shares in excess of those representing the number
of whole shares of Preferred Stock to be withdrawn, the Depositary will deliver
to the holder at the same time a new Depositary Receipt evidencing the
Depositary Shares. Holders of shares of Preferred Stock thus withdrawn will not
thereafter be entitled to deposit such shares under a Deposit Agreement or to
receive Depositary Shares therefor. The Company does not expect that there will
be any public trading market for the Preferred Stock, except as represented by
Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing any Depositary Shares and any
provision of a Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary. However, any
amendment that materially and adversely alters the rights of the existing
holders of
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Depositary Shares will not be effective unless and until approved by the holders
of at least a majority of the Depositary Shares then outstanding under that
Deposit Agreement. Each Deposit Agreement will provide that each holder of
Depositary Shares who continues to hold those Depositary Shares at the time an
amendment becomes effective will be deemed to have consented to the amendment
and will be bound thereby. Except as may be necessary to comply with any
mandatory provisions of applicable law, no amendment may impair the right,
subject to the terms of the related Deposit Agreement, of any holder of any
Depositary Shares to surrender the Depositary Receipt evidencing those
Depositary Shares to the Depositary together with instructions to deliver to the
holder the whole shares of Preferred Stock represented by the surrendered
Depositary Shares and all money and other property, if any, represented thereby.
A Deposit Agreement may be terminated by the Company or the Depositary only if
(i) all outstanding Depositary Shares issued thereunder have been redeemed or
(ii) there has been a final distribution in respect of the Preferred Stock
relating to those Depositary Shares in connection with any liquidation,
dissolution or winding up of the Company and the amount received by the
Depositary as a result of that distribution has been distributed by the
Depositary to the holders of those Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of any Depositary in connection with the initial deposit of
Preferred Stock and the initial issuance of the relevant Depositary Shares and
any redemption of such Preferred Stock. Holders of Depositary Shares will pay
any other taxes and charges incurred for their accounts as are provided in the
relevant Deposit Agreement.
MISCELLANEOUS
Each Depositary will forward to the holders of Depositary Shares issued by
that Depositary all reports and communications from the Company that are
delivered to the Depositary and that the Company is required to furnish to the
holders of the Preferred Stock held by the Depositary. In addition, each
Depositary will make available for inspection by the holders of those Depositary
Shares, at the principal office of such Depositary and at such other places as
it may from time to time deem advisable, all reports and communications received
from the Company that are received by such Depositary as the holder of Preferred
Stock.
Neither any Depositary nor the Company will assume any obligation or will
be subject to any liability under a Deposit Agreement to holders of the
Depositary Shares other than for its negligence or willful misconduct. Neither
any Depositary nor the Company will be liable if it is prevented or delayed by
law or any circumstance beyond its control in performing its obligations under a
Deposit Agreement. The obligations of the Company and any Depositary under a
Deposit Agreement will be limited to performance in good faith of their duties
thereunder, and they will not be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or Preferred Stock unless
satisfactory indemnity is furnished. The Company and any Depositary may rely on
written advice of counsel or accountants, on information provided by persons
presenting Preferred Stock for deposit, holders of Depositary Shares or other
persons believed in good faith to be competent to give such information and on
documents believed to be genuine and to have been signed or presented by the
proper party or parties.
RESIGNATION AND REMOVAL OF DEPOSITARY
A Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove any Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States of America and having a combined capital and surplus
of at least $50,000,000.
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FEDERAL INCOME TAX CONSEQUENCES
Owners of the Depositary Shares will be treated for federal income tax
purposes as if they were owners of the Preferred Stock represented by such
Depositary Shares.
BOOK-ENTRY PROCEDURES AND SETTLEMENT
Any series of Preferred Stock (and the Depositary Shares relating to such
series) may be issued in certificated or book-entry form, as specified in the
applicable Prospectus Supplement. Preferred Stock or Depositary Shares issued in
book-entry form from the perspective of the beneficial owners thereof (the
"Shareholders") will be issued in the form of a single global stock certificate
or a single global Depositary Receipt (as the case may be) registered in the
name of the nominee of The Depository Trust Company ("DTC," which term, as used
herein, includes any successor or alternate depository selected by the Company).
DTC is a limited-purpose trust company created to hold securities for its
participating organizations (the "Participants") and to facilitate the clearance
and settlement of transactions in those securities between Participants through
electronic book-entry changes in the accounts of the Participants. Participants
include securities brokers and dealers, banks and trust companies, clearing
corporations and certain other organizations. Access to DTC's system is also
available to others (such as banks, brokers, dealers and trust companies) that
clear through or maintain a custodial relationship with a Participant, either
directly or indirectly ("Indirect Participants"). Persons who are not
Participants or Indirect Participants may beneficially own securities held by
DTC only through Participants or Indirect Participants.
DTC's nominee for all purposes will be considered the sole owner or holder
of the Preferred Stock or Depositary Shares held in book-entry form. Owners of
beneficial interests in the global stock certificate or Depositary Receipt will
not be entitled to have Preferred Stock or Depositary Shares registered in their
names, will not receive or be entitled to receive physical delivery of Preferred
Stock or Depositary Shares in definitive form and will not be considered the
holders thereof under the Certificate of Incorporation or any Deposit Agreement.
Neither the Company nor the Depository will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in the global stock certificate or Depositary
Receipt, or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
A Shareholder's ownership of Preferred Stock or Depositary Shares issued
in book-entry form will be recorded on or through the records of the brokerage
firm or other entity that maintains that Shareholder's account. In turn, the
total number of shares of Preferred Stock or Depositary Shares held by an
individual brokerage firm or other entity for its clients will be maintained on
the records of DTC in the name of that brokerage firm or other entity (or in the
name of a Participant that acts as agent for the Shareholder's brokerage firm or
other entity if it is not a Participant). Therefore, a Shareholder must rely
upon the records of the Shareholder's brokerage firm or other entity to evidence
the Shareholder's ownership of Preferred Stock or Depositary Shares and transfer
of ownership of that Preferred Stock or Depositary Shares may be effected only
through the brokerage firm or other entity that maintains the Shareholder's
account.
Dividends or other distributions payable in respect of Preferred Stock or
Depositary Shares will be paid by the Company or the Depositary, as the case may
be, to DTC. DTC will be responsible for crediting the amount of payments that it
receives to the accounts of the Participants in accordance with their respective
standard procedures, which currently provide for payment in next-day funds. Each
Participant will be responsible for disbursing the payments for which it is so
credited to the Shareholders that it represents and to each brokerage firm or
other entity for which it acts as agent. Each such brokerage firm or other
entity will be responsible for disbursing funds to the Shareholders that it
represents. It is suggested that any purchaser of Preferred Stock or Depositary
Shares with accounts at more than one brokerage firm or other entity effect
transactions in the
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Preferred Stock or Depositary Shares only through the brokerage firm or firms or
other entity or entities that hold such purchaser's Preferred Stock or
Depositary Shares.
If DTC is at any time unwilling or unable to continue as depository in
respect of a global certificate or global Depositary Receipt and a successor
depository is not appointed by the Company or the Depositary, as the case may
be, within 90 days, the Company will issue Preferred Stock or Depositary Shares,
as the case may be, in definitive form in exchange for the global stock
certificate or global Depositary Receipt. In addition, the Company may determine
at any time not to have Preferred Stock or Depositary Shares represented by a
global stock certificate or global Depositary Receipt (as the case may be), and,
in such event, will issue Preferred Stock or Depositary Shares in definitive
form in exchange for such global stock certificate or global Depositary Receipt.
In either instance, an owner of a beneficial interest in the global stock
certificate or global Depositary Receipt will be entitled to have Preferred
Stock or Depositary Shares equal in aggregate amount to that beneficial interest
registered in its name and will be entitled to physical delivery of a definitive
certificate or other instrument evidencing such Preferred Stock or Depositary
Shares. The registered holder of Preferred Stock or Depositary Shares will be
entitled to receive the dividends or other distributions or, if applicable, the
redemption price payable in respect of such Preferred Stock or Depositary
Shares, upon surrender of the certificate (or Depositary Receipt) evidencing
such Preferred Stock or Depositary Shares to the Company or the Depositary (as
the case may be), in accordance with the procedures set forth in the Certificate
of Incorporation or Deposit Agreement (as the case may be).
PLAN OF DISTRIBUTION
The Company may sell the Preferred Stock or Depositary Shares representing
the Preferred Stock (collectively, "Securities") in any of three ways: (i) to
underwriters (including Bear Stearns) or dealers, who may act directly or
through a syndicate represented by one or more managing underwriters (including
Bear Stearns); (ii) through broker-dealers (including Bear Stearns) designated
by the Company to act on its behalf as agents; or (iii) directly to one or more
purchasers. Each Prospectus Supplement will set forth the manner and terms of
the offering of the Securities covered thereby, including (i) whether that
offering is being made to underwriters or through agents; (ii) any underwriting
discounts, dealer concessions, agency commissions and any other items that may
be deemed to constitute underwriters', dealers' or agents' compensation, and
(iii) the purchase price or initial public offering price of the Securities and
the anticipated proceeds to the Company from the sale of the Securities.
When Securities are to be sold to underwriters, unless otherwise set forth
in the applicable Prospectus Supplement, the obligations of the underwriters to
purchase those Securities will be subject to certain conditions precedent but
the underwriters will be obligated to purchase all of the Securities if any are
purchased. The Securities will be acquired by the underwriters for their own
account and may be resold by the underwriters, either directly to the public or
to securities dealers, from time to time in one or more transactions, including
negotiated transactions, either at fixed public offering price or at varying
prices determined at the time of sale. The initial public offering price, if
any, and any concessions allowed or reallowed to dealers, may be changed from
time to time.
To the extent that any Securities underwritten by Bear Stearns are not
resold by Bear Stearns for an amount at least equal to the public offering price
thereof, the proceeds from the offering of those Securities will be reduced.
Until resold, those Securities will be eliminated in consolidation as if they
were not outstanding. Bear Stearns intends to resell any of those Securities
from time to time following termination of the offering at varying prices
related to prevailing market prices at the time of sale, subject to applicable
prospectus delivery requirements.
Unless otherwise indicated in the applicable Prospectus Supplement, when
Securities are sold through an agent, the designated agent will agree, for the
period of its appointment as agent, to use its best efforts to sell the
Securities for the Company's account and will receive commissions from the
Company as set forth in the applicable Prospectus Supplement.
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If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase Securities at the public offering price set forth in
the Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a future date specified in the Prospectus Supplement.
These contracts will be subject only to those conditions set forth in the
applicable Prospectus Supplement and the Prospectus Supplement will set forth
the commissions payable for solicitation of these contracts.
Underwriters and agents participating in any distribution of Securities
may be deemed "underwriters" within the meaning of the Securities Act and any
discounts or commissions they receive in connection therewith may be deemed to
be underwriting compensation for the purposes of the Securities Act. Those
underwriters and agents may be entitled, under their agreements with the
Company, to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act, or to contribution by the
Company to payments that they may be required to make in respect of those civil
liabilities. Various of those underwriters or agents may be customers of, engage
in transactions with or perform services for the Company or its affiliates in
the ordinary course of business.
Following the initial distribution of any series of Securities, and
subject to obtaining the approval of the New York Stock Exchange, Inc., Bear
Stearns may offer and sell previously issued Securities of that series from time
to time in the course of its business as a broker-dealer. Bear Stearns may act
as principal or agent in such transactions. This Prospectus and the Prospectus
Supplement applicable to those Securities will be used by Bear Stearns in
connection with those transactions. Sales will be made at prices related to
prevailing prices at the time of sale.
In order to facilitate the offering of certain Securities hereunder,
certain persons participating in the offering of those Securities may engage in
transactions that stabilize, maintain or otherwise affect the price of those
Securities during and after the offering of those Securities. Specifically, if
so set forth in the applicable Prospectus Supplement, the underwriters of those
Securities may over-allot or otherwise create a short position in those
Securities for their own account by selling more of those Securities than have
been sold to them by the Company and may elect to cover any such short position
by purchasing those Securities in the open market. In addition, the underwriters
may stabilize or maintain the price of those Securities by bidding for or
purchasing those Securities in the open market and may impose penalty bids,
under which selling concessions allowed to syndicate members or other
broker-dealers participating in the offering are reclaimed if Securities
previously distributed in the offering are repurchased in connection with
stabilization transactions or otherwise. The effect of these transactions may be
to stabilize or maintain the market price of the Securities at a level above
that which might otherwise prevail in the open market. The imposition of a
penalty bid may also affect the price of Securities to the extent that it
discourages resales thereof. No representation is made as to the magnitude or
effect of any such stabilization or other transactions. Such transactions, if
commenced, may be discontinued at any time.
Because Bear Stearns is a wholly owned subsidiary of the Company, each
distribution of Securities will conform to the requirements set forth in Rule
2720 of the NASD Conduct Rules.
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this Prospectus by reference from the Company's 1997
Annual Report on Form 10-K have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports, which are incorporated herein
by reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
VALIDITY OF THE SECURITIES
The validity of the Preferred Stock will be passed upon for the Company by
Weil, Gotshal & Manges LLP, New York, New York.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses in connection with the issuance
and distribution of the securities being registered. All amounts shown are
estimated, except the SEC registration fee and the NASD filing fee.
SEC registration fee......................................... $158,563
Depositary's fees and expenses............................... 36,000
Accounting fees.............................................. 20,000
Legal fees and expenses...................................... 50,000
Printing and engraving fees.................................. 125,000
NASD filing fee.............................................. 30,500
Miscellaneous................................................ 1,937
---------
Total $422,000
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 VIII of the registrant's Restated Certificate of Incorporation
provides for indemnification of directors and officers of the registrant against
certain liabilities incurred as a result of their duties as such and also
provides for the elimination of the monetary liability of directors for certain
actions as such. The registrant's Restated Certificate of Incorporation, as
amended, is filed as Exhibit 4(a) to the Registration Statement on Form S-8 (No.
33-49979) filed August 13, 1993.
The registrant has in effect reimbursement insurance for directors' and
officers' liability claims and directors' and officers' liability insurance
indemnifying, respectively, the registrant and its directors and officers within
specific limits for certain liabilities incurred by them, subject to the
conditions and exclusions and deductible provisions of the policies.
For the undertaking with respect to indemnification, see Item 17 herein.
ITEM 16. EXHIBITS.
1(a) -- Form of Underwriting Agreement (incorporated by
reference to Exhibit 1(a) to the Registration Statement
on Form S-3 (File No. 33-59140)).
4(a) -- Restated Certificate of Incorporation, as amended
(incorporated by reference to Exhibits 4(a)(1), (a)(2),
(a)(4), (a)(5), (a)(7), (a)(8), (a)(9). (a)(10), (a)(11)
and (a)(13) to the Registration Statement on Form S-8
(No. 33-49979)).
4(b) -- Certificate of Stock Designation relating to the
Registrant's Adjustable Rate Cumulative Preferred Stock,
Series A (incorporated by reference to Exhibit 4(a)(6)
to the Registration Statement on Form S-8 (File No.
33-49979)).
4(c) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series B
(incorporated by reference to Exhibit 4(a)(12) to the
Registration Statement on Form S-8 (File No. 33-49979)).
4(d) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series C
(incorporated by reference to Exhibit 4(a)(13) to the
Registration Statement on Form S-8 (File No. 33-49979)).
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4(e) -- Amended and Restated By-Laws (incorporated by
reference to Exhibit 3(b) to the Annual Report on Form
10-K for the fiscal year ended June 30, 1991, Exhibit
3(b) to the Quarterly Report on Form 10-Q for the
quarterly period ended December 31, 1992 and Exhibit
3(b)(2) to the Quarterly Report on Form 10-Q for the
quarterly period ended September 26, 1997).
4(f) -- Form of Deposit Agreement (incorporated by reference
to Exhibit 4(d) to the Registration Statement on Form
S-3 (File No. 33-59140)).
4(g) -- Specimen Depositary Receipt (included in Exhibit 4(f)).
5 -- Opinion of Weil, Gotshal & Manges LLP.
12 -- Computation of Ratio of Earning to Combined Fixed
Charges and Preferred Stock Dividends.*
23(a) -- Consent of Deloitte & Touche.*
23(b) -- Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5).
24 -- Power of attorney (included in the signature pages to
the Registration Statement).
- ---------------------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the "Securities
Act");
(ii) to reflect in the Prospectus any facts or events
arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered), and
any deviation from the low or high and of the estimated maximum
offering range, may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement;
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in this Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the Securities offered therein, and
the offering of such Securities at that time shall be deemed to be the
initial bona fide offering thereof.
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(c) To remove from registration by means of a post-effective
amendment any of the Securities being registered hereby which remain
unsold at the termination of the offering.
(d) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act of 1934, as amended, that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions referred to in Item
15 of this Registration Statement, 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 such 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 hereby, 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 such Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
hereby 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 amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of New York, State of New York, on the 22nd day of December, 1997.
THE BEAR STEARNS COMPANIES INC.
By: /s/ William J. Montgoris
----------------------------------
William J. Montgoris
Chief Operating 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.
SIGNATURE TITLE DATE
- --------- ----- ----
* Chairman of the Board and December 22, 1997
- -------------------------- Director
Alan C. Greenberg
* President and Chief Executive December 22, 1997
- -------------------------- Officer (Principal Executive
James E. Cayne Officer); Director
* Director December 22, 1997
- --------------------------
Carl D. Glickman
* Director December 22, 1997
- --------------------------
Donald J. Harrington
Director December , 1997
- --------------------------
William L. Mack
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Director December , 1997
- --------------------------
Frank T. Nickell
Director December , 1997
- --------------------------
Frederic V. Salerno
* Director December 22, 1997
- --------------------------
Vincent Tese
* Director December 22, 1997
- --------------------------
Fred Wilpon
* Controller December 22, 1997
- --------------------------
Michael J. Abatemarco
* Senior Vice President- December 22, 1997
- -------------------------- Finance and Chief Financial
Samuel L. Molinaro, Jr. Officer (Principal Accounting
Officer and Principal Financial
Officer)
* By: /s/ William J. Montgoris
-------------------------------
William J. Montgoris
Attorney-in-fact
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
1(a) -- Form of Underwriting Agreement (incorporated by
reference to Exhibit 1(a) to the Registration Statement
on Form S-3 (File No. 33-59140)).
4(a) -- Restated Certificate of Incorporation, as amended
(incorporated by reference to Exhibits 4(a)(1), (a)(2),
(a)(4), (a)(5), (a)(7), (a)(8), (a)(9). (a)(10), (a)(11)
and (a)(13) to the Registration Statement on Form S-8
(No. 33-49979)).
4(b) -- Certificate of Stock Designation relating to the
Registrant's Adjustable Rate Cumulative Preferred Stock,
Series A (incorporated by reference to Exhibit 4(a)(6)
to the Registration Statement on Form S-8 (File No.
33-49979)).
4(c) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series B
(incorporated by reference to Exhibit 4(a)(12) to the
Registration Statement on Form S-8 (File No. 33-49979)).
4(d) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series C
(incorporated by reference to Exhibit 4(a)(13) to the
Registration Statement on Form S-8 (File No. 33-49979)).
4(e) -- Amended and Restated By-Laws (incorporated by
reference to Exhibit 3(b) to the Annual Report on Form
10-K for the fiscal year ended June 30, 1991, Exhibit
3(b) to the Quarterly Report on Form 10-Q for the
quarterly period ended December 31, 1992 and Exhibit
3(b)(2) to the Quarterly Report on Form 10-Q for the
quarterly period ended September 26, 1997).
4(f) -- Form of Deposit Agreement (incorporated by reference
to Exhibit 4(d) to the Registration Statement on Form
S-3 (File No. 33-59140)).
4(g) -- Specimen Depositary Receipt (included in Exhibit 4(f)).
5 -- Opinion of Weil, Gotshal & Manges LLP.
12 -- Computation of Ratio of Earning to Combined Fixed
Charges and Preferred Stock Dividends.*
23(a) -- Consent of Deloitte & Touche.*
23(b) -- Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5).
24 -- Power of attorney (included in the signature pages to
the Registration Statement).
- ---------------------------
* Previously filed.
EXHIBIT 5
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NY 10153
212-310-8000
(FAX) 212-310-8007
December 22, 1997
The Board of Directors
The Bear Stearns Companies Inc.
245 Park Avenue
New York, New York 10167
Gentlemen:
We have acted as counsel to The Bear Stearns Companies Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing by the Company with the Securities and Exchange Commission of a
Registration Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended, with respect to an indeterminate number of
shares of the Company's Preferred Stock, $1.00 par value (the "Preferred
Stock"), as may from time to time be issued with an aggregate offering price of
$537,500,000. The Preferred Stock will be issued in one or more series, the
designations, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions of which shall be fixed
by resolutions to be adopted prior to such issuance by the Company's Board of
Directors or a duly authorized committee thereof.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement, the
Prospectus that is a part of the Registration Statement (the "Prospectus"), and
such corporate records, agreements, documents and other instruments and such
certificates or comparable documents of officers and representatives of the
Company, and have made such inquiries of such officers and representatives, as
we have deemed relevant and necessary as a basis for the opinions hereinafter
set forth.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of such latter
documents. We have further assumed that all documents examined by us in the
<PAGE>
The Board of Directors
The Bear Stearns Companies Inc.
December 22, 1997
Page 2
form of drafts will, when executed by the requisite signatories thereto, conform
in substance and form in all material respects to the drafts that we have
examined. As to all questions of fact material to this opinion that have not
been independently established, we have relied upon certificates of officers and
representatives of the Company.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is a validly existing
corporation under the laws of the State of Delaware.
2. Subject to the taking of the additional proceedings contemplated
by the Prospectus and provided that any issuance of shares of
Preferred Stock by the Company is duly authorized by the Company's
Board of Directors and that the number of shares of Preferred Stock
issued by the Company at no time exceeds the maximum amount of
shares of Preferred Stock authorized to be issued by the Company's
certificate of incorporation, the shares of Preferred Stock, when
issued, paid for and delivered, as contemplated by the Prospectus,
will be validly issued, fully paid and non-assessable.
This opinion is limited in all respects to the laws of the State of
New York, the corporate laws of the State of Delaware and the federal laws of
the United States, and we express no opinion on the effect on the matters
covered by this opinion of the laws of any other jurisdiction.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to any and all references to our firm in the
Prospectus.
We further consent to the use of this opinion as an exhibit to
applications to the securities commissioners of various states of the United
States for registration or qualification of the Preferred Stock and the
Depositary Shares under the securities laws of such states.
<PAGE>
The Board of Directors
The Bear Stearns Companies Inc.
December 22, 1997
Page 3
This opinion is rendered solely for your benefit in connection with
the transactions described above. This opinion may not be used or relied upon by
any other person and may not be disclosed, quoted, filed with a governmental
agency or otherwise referred to without our prior written consent except as
noted above.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
