SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE BEAR STEARNS COMPANIES INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3286161
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(State of incorporation or organization) (IRS Employer
Identification No.)
245 Park Avenue, New York, New York 10167
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(Address of principal executive offices) (Zip Code)
If this Form relates to the If this Form relates to the
registration of a class of registration of a class of
securities pursuant to securities pursuant to Section
Section 12(b) of the Exchange 12(g) of the Exchange Act and is
Act and is effective upon filing effective pursuant to General
pursuant to General Instruction Instruction A(d) please check
A(c) please check the pursuant to General
following box. [X] the following box. [ ]
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
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5.72% Cumulative Preferred Stock, Series F* New York Stock Exchange, Inc.
Depositary Shares Each Representing a One-Fourth New York Stock Exchange, Inc.
Interest in a Share of 5.72% Cumulative Preferred
Stock, Series F
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
None
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* Application to be made for listing, not for trading, in connection with the
registration of the Depositary Shares.
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The registrant hereby incorporates by reference the
descriptions of the classes of securities registered hereby (the "Securities")
as set forth in the following documents previously filed by the registrant with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"):
(1) the descriptions set forth under the captions "Description
of Preferred Stock," and "Description of Depositary Shares" on pages 4 to 11 of
the Prospectus contained in the registrant's Registration Statement on Form S-3
as filed with the Commission on December 22, 1997; and
(2) the descriptions set forth under the captions "Certain
Terms of the Depositary Shares" and "Certain Terms of the Series F Preferred
Stock" on pages S-2 to S-7 of the Prospectus Supplement dated April 16, 1998
filed with the Commission pursuant to Rule 424(b) under the Securities Act.
ITEM 2. EXHIBITS.
The securities described herein are to be registered
pursuant to Section 12(b) of the Securities Exchange Act of 1934 on an exchange
on which other securities of the Registrant are currently registered. In
accordance with the instructions regarding exhibits on Form 8-A, the following
exhibits are either filed herewith or incorporated herein by reference to
exhibits contained in Amendment No.1 to the Registration Statement on Form S-3
filed by Registrant on December 22, 1997:
1.1 - Restated Certificate of Incorporation, as
amended (incorporated by reference to Exhibit 4(a) to the Registration Statement
on Form S-3 (No. 333-42295)).
1.2 - Amended and Restated By-laws (incorporated by
reference to Exhibit 4(e) to the Registration Statement on Form S-3 (No.
333-42295)).
1.3 - Form of Deposit Agreement relating to the
registrant's 5.72% Cumulative Preferred Stock, Series F.
1.4 - Form of Certificate of Designations relating to
the registrant's 5.72% Cumulative Preferred Stock, Series F.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
THE BEAR STEARNS COMPANIES INC.
Date: April 20, 1998 By: /s/ Samuel L. Molinaro, Jr.
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Samuel L. Molinaro, Jr.
Senior Vice President-
Finance and Chief
Financial Officer
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THE BEAR STEARNS COMPANIES INC.,
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., as Depositary
AND
THE HOLDER OF DEPOSITARY RECEIPTS HEREIN
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Deposit Agreement
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Dated as of April __, 1998
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DEPOSIT AGREEMENT dated as of April __, 1998, among THE BEAR
STEARNS COMPANIES INC., a corporation duly organized and existing under the laws
of the State of Delaware, Chase Mellon Shareholder Services L.L.C., a limited
liability company existing under the laws of the state of New Jersey and the
holders from time to time of the Receipts (as hereinafter defined) described
herein.
WHEREAS it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of 5.72% Cumulative Preferred
Stock, Series F, $1.00 par value, of THE BEAR STEARNS COMPANIES INC. with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary Shares in respect of the
Stock (as hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement and the Receipts:
"Certificate of Designations" shall mean the Certificate of
Designations filed with the Secretary of State of Delaware establishing the
Stock as a series of preferred stock of the Company.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation, as amended from time to time, of the Company.
"Company" shall mean The Bear Stearns Companies Inc., a
Delaware corporation having its principal office at 245 Park Avenue, New York,
New York 10167, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean ChaseMellon Shareholder Services
L.L.C., a limited liability company existing under the laws of the State of New
Jersey, and any successor as Depositary hereunder.
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"Depositary Shares" shall mean Depositary Shares, each
representing a one-fourth fractional interest in a share of Stock and evidenced
by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary in New York, New York, at which at any particular time its depositary
receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued
hereunder, whether in definitive or temporary form.
"Record Holder" as applied with respect to a Receipt shall
mean the person in whose name a Receipt is registered on the books of the
Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall
be appointed to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's 5.72% Cumulative
Preferred Stock, Series F, $1.00 par value.
ARTICLE II
Form or Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved borders
and shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.02, shall execute and deliver temporary Receipts which shall be
printed, lithographed, typewritten, mimeographed or otherwise substantially of
the tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the persons executing such Receipts may determine are necessary for such
temporary Receipts, as evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay. After the
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preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at the
Depositary's office, or such other office as the Depositary may designate,
without charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the same
benefits under this Agreement, and with respect to the Stock, as definitive
Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized signatory of the Depositary; provided, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized signatory of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed manually by a duly
authorized signatory of the Depositary or, if a Registrar for the Receipts
(other than the Depositary) shall have been appointed, by facsimile signature of
a duly authorized signatory of the Depositary and countersigned manually by a
duly authorized signatory of such Registrar. The Depositary shall record on its
books each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until transfer of a Receipt shall
be
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registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company may from time to time deposit shares of Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or certificates
for the Stock to be deposited, properly endorsed or accompanied, if required by
the Depositary, by a duly executed instrument of transfer or endorsement, in
form satisfactory to the Depositary, together with all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement, and together with a written order directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the number of Depositary Shares
representing interests in such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and upon
receipt of sufficient evidence by the Depositary of the recordation of the Stock
on the books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver, to or upon the order of the person or persons named in the
written order delivered to the Depositary referred to in the first paragraph of
this Section, a Receipt for the number of Depositary Shares relating to the
Stock so deposited and registered in such name or names as may be requested by
such person or persons. The Depositary shall execute and deliver such Receipt at
the Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery. However, in each case, such delivery will be
made only upon payment to the Depositary of all taxes and governmental charges
and fees payable by the depositor, as provided in Section 5.07.
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SECTION 2.03. Redemption of Stock. Whenever the Company shall
elect to redeem shares of Stock in accordance with the provisions of the
Certificate of Incorporation and the Certificate of Designations, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary not
less than 30 nor more than 60 days' notice of the date of such proposed
redemption of Stock. On the date of such redemption, provided that the Company
shall then have paid in full to the Depositary the redemption price of the Stock
to be redeemed, plus any accrued and unpaid dividends thereon, the Depositary
shall redeem the number of Depositary Shares representing such Stock. The
Depositary shall mail notice of such redemption and the proposed simultaneous
redemption of the number of Depositary Shares representing the Stock to be
redeemed, first-class postage prepaid, not less than 20 and not more than 50
days prior to the date fixed for redemption of such Stock and Depositary Shares
(the "Redemption Date"), to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemptions to
the other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price (which shall include full cumulative dividends thereon to the Redemption
Date); (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock underlying the Depositary Shares to be redeemed will cease
to accumulate at the close of business on such Redemption Date. In case less
than all the Outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected by lot or pro rata or such other
method as may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Company shall have failed to redeem
the shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the shares
of Stock so called for redemption shall cease to accumulate, the Depositary
Shares being redeemed from such Proceeds shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price) shall, to the extent
of such Depositary Shares, cease and terminate and, upon surrender in
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accordance with such notice of the Receipts evidencing any such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the Depositary at a
redemption price per Depositary Share equal to one-fourth of the redemption
price per share paid in respect of the shares of Stock plus all money and other
property, if any, represented by such Depositary Share, including one-fourth of
all amounts paid by the Company in respect of dividends which on the Redemption
Date have accumulated on a share of Stock to be so redeemed and have not
theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
SECTION 2.04. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any surrender
thereof by the holder in person or by duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer. Thereupon
the Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Deposit Agreement,
upon receipt by the Depositary of appropriate certification and a written order
of the Company, the Depositary shall execute and deliver a new Receipt or
Receipts in the authorized denomination or denominations requested, evidencing
the aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
Any holder of a Receipt or Receipts representing any number of
whole shares of Stock may withdraw the Stock and all money and other property,
if any, represented thereby by surrendering such Receipt or Receipts at the
Depositary's Office or at such other offices as the Depositary may designate for
such
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withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of Stock
to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or (subject to Section 2.04) upon his
order, a new Receipt evidencing such excess number of Depositary Shares.
Delivery of the Stock and the money and other property being withdrawn may be
made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder shall
execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder and reasonably acceptable to the Depositary.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant
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to Section 5.07, may require the production of evidence satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of Receipts may be
refused and the registration of transfer, surrender or exchange of outstanding
Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission or under any provision of this
Deposit Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
ARTICLE III
Certain Obligations of the Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to time to file
such proof of residence, or other matters or other information, to execute such
certificates and to make such representation and warranties as the Depositary or
the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Receipt or the
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withdrawal of the Stock represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution or the sale of
any rights or of the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations and warranties
are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Receipt or any withdrawal of Stock and all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until such payment due is made, and any dividends, interest
payments or other distributions may be withheld or all or any part of the Stock
or other property represented by the Depositary Shares evidenced by such Receipt
and not theretofore sold may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder prior to such sale),
and such dividends, interest payments or other distributions or the proceeds of
any such sale may be applied to any payment of such charges or expenses, the
holder of such Receipt remaining liable for any deficiency.
SECTION 3.02. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be validly issued,
fully paid and nonassessable. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 such
amounts of such dividend or distribution as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or
the Depositary shall be required to withhold and shall withhold from any cash
dividend or other cash distribution in respect of the Stock an amount on account
of taxes, the amount made available for distribution or distributed in respect
of Depositary Shares shall be reduced accordingly. The Depositary shall
distribute or make available
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for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash. Whenever the
Depositary shall receive any distribution other than cash on Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 such
amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
an account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary at the direction of the
Company shall adopt such method as the Company deems equitable and practicable
for the purpose of effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any part thereof,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Receipts as provided by Section 4.01 in the case
of a distribution received in cash.
Section 4.03. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as the Depositary may be
reasonably directed by the Company; provided, however, that (i) if at the time
of issue or offer of any such rights, preferences or privileges the Depositary
determines or is advised by legal counsel that it is not lawful or (after
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consultation with the Company) not feasible to make such rights, preferences or
privileges available to holders of Receipts by the issue of warrants or
otherwise, or (ii) if and to the extent so instructed by holders of Receipts who
do not desire to exercise such rights, preferences or privileges, then the
Depositary, in its discretion (with the approval of the Company, in any case
where the Depositary has determined that it is not feasible to make such rights,
preferences or privileges available), may, if applicable laws or the terms of
such rights, preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at such place or places and
upon such terms as it may deem proper. The net proceeds of any such sales shall
be distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.01 in the case of a distribution received in
cash.
If registration under the Securities Act of 1933, as amended,
of the securities to which any rights, preferences or privileges relate is
required in order for holders of Receipts to be offered or sold the securities
to which such rights, preferences or privileges relate, the Company agrees with
the Depositary that it will file promptly a registration statement pursuant to
such Act with respect to such rights, preferences or privileges and securities
and use its best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until such a
registration statement shall have become effective or unless the offering and
sale of such securities to such holders are exempt from registration under the
provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date
for Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights,
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preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of (a) any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice or (b) any election on the part of the Company to redeem any Shares of
Stock, the Depositary shall in each such instance fix a record date (which shall
be the same date as the record date fixed by the Company with respect to the
Stock) for the determination of the holders of Receipts who shall be entitled
hereunder to receive a distribution in respect of such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting or to
receive notice of such meeting or redemption of Stock.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of Receipts
a notice which shall contain (i) such information as is contained in such notice
of meeting and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock underlying their respective Depositary Shares
(including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Receipts on such record date, the
Depositary shall endeavor insofar as practicable to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the maximum
number of whole shares of Stock underlying the Depositary Shares evidenced by
all Receipts as to which any particular voting instructions are received. The
Company hereby agrees to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting (but, at its discretion, not
from appearing at any meeting with respect to such Stock unless directed to the
contrary by the holders of all the Receipts) to the extent of the Stock
underlying the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation or
sale of all or substantially all the Company's assets affecting the
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Company or to which it is a party, the Depositary may in its discretion with the
approval of, and shall upon the instructions of, the Company, and (in either
case) in such manner as the Depositary may deem equitable, (i) make such
adjustments in (a) the fraction of an interest in one share of Stock underlying
one Depositary Share and (b) the ratio of the redemption price per Depositary
Share to the redemption price of a share of Stock, in each case as may be
necessary fully to reflect the effects of such change in par or stated value,
split-up, combination or other reclassification of Stock, or of such
recapitalization, reorganization, merger, amalgamation or consolidation or sale
and (ii) treat any securities which shall be received by the Depositary in
exchange for or upon conversion of or in respect of the Stock as new deposited
securities so received in exchange for or upon conversion or in respect of such
Stock. In any such case the Depositary may in its discretion, with the approval
of the Company, execute and deliver additional Receipts, or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities.
Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in par or stated value, split-up, combination or other reclassification
of Stock or any such recapitalization, reorganization, merger, amalgamation or
consolidation to surrender such Receipts to the Depositary with instructions to
convert, exchange or surrender the shares of Stock attributable thereto into or
for, as the case may be, the kind and amount of shares of stock and other
securities and property and cash into which the Stock represented by such
Receipts was converted or for which such Stock was exchanged or surrendered
after giving effect to such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's Office, and
at such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock.
SECTION 4.08. List of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a list, as
of a recent date, of the names, addresses and holdings of Receipts of all
persons in whose names Receipts are registered on the books of the Depositary or
Registrar, as the case may be.
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ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit Agreement,
the Depositary shall maintain, at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration or transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for
the registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided, that any such holder requesting to exercise such right shall certify
to the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the Stock underlying such Depositary Shares shall be listed on the New York
Stock Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute Registrar appointed by the Depositary upon the request or with
the approval of the Company. The Company hereby appoints the Depositary as the
initial Registrar. If the Receipts, such Depositary Shares or such Stock are
listed on one or more other stock exchanges, the Depositary will, at the request
of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable stock
exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by
the Depositary, the Depositary's Agents, the Registrar or the
Company. Neither the Depositary nor any Depositary's Agent nor
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any Registrar nor the Company shall incur any liability to any holder of any
Receipt if by reason of any provision of any present or future law, or
regulation thereunder, of the United States of America or of any other
governmental authority or, in the case of the Depositary, the Depositary's Agent
or the Registrar, by reason of any provision, present or future, of the
Certificate of Incorporation (including the Certificate of Designations) or by
reason of any act of God or war or other circumstance beyond the control of the
relevant party, the Depositary, the Depositary's Agent, the Registrar or the
Company shall be prevented or forbidden from doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt or to the Company (i)
by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement
except, in case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the gross negligence or willful misconduct of
the party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement to holders of
Receipts other than for its gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts which in its opinion may involve it in expense
or liability unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable for any action or any failure to act
by it in reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Stock for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to give
such information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction
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or other document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Stock or for the manner
or effect of any such vote, as long as any such action or nonaction is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Depositary or any Registrar. [The Depositary
will indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their gross
negligence or willful misconduct. The Depositary, the Depositary's Agents and
any Registrar may own and deal in any class of securities of the Company or its
affiliates and in Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by notice of its election so to do delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time
resign or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor
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hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any moneys or property held hereunder to such successor and
shall deliver to such successor a list of the record holders of all outstanding
Receipts. Any successor Depositary shall promptly mail notice of its appointment
to the record holders of Receipts.
Any corporation or entity into or with which the Depositary
may be merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any further act.
Such successor Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary, and the Depositary will, promptly
after receipt thereof, transmit to the record holders of Receipts, in each case
at the address recorded in the Depositary's books, copies of all notices and
reports (including, without limitation, financial statements) required by law,
the rules of any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed or by the Certificate of
Incorporation (including the Certificate of Designations) to be furnished by the
Company to holders of Stock. Such transmission will be at the Company's expense,
and the Company will provide the Depositary with such number of copies of such
documents as the Depositary may reasonably request. In addition, the Depositary
will transmit to the holders of Receipts (at the Company's expense) such other
documents as may be requested by the Company.
SECTION 5.06. Indemnification by the Company. The Company
shall indemnify the Depositary, any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any loss, liability or expense
(including the costs and expenses of defending itself) which may arise out of
(i) acts performed or omitted in connection with this Agreement and the Receipts
(a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
gross negligence or willful misconduct on the respective parts of any such
person or persons, or (b) by the Company or any of its agents (other than the
Depositary, the Depositary's Agents, the Registrar, if any, or any of their
agents), or (ii) the offer, sale or registration of the Receipts or the Stock
pursuant to the provisions hereof.
SECTION 5.07. Charges and Expenses. The Company shall
pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. The
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Company shall pay all charges and expenses of the Depositary in connection with
the initial deposit of the Stock and the initial issuance of the Depositary
Shares and any redemption of the Stock at the option of the Company. All other
transfer and other taxes and governmental charges shall be at the expense of
holders of Receipts. If, at the request of a holder of Receipts, the Depositary
incurs charges or expenses for which it is not otherwise liable hereunder, such
holder will be liable for such charges and expenses. All other charges and
expenses of the Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, fees and expenses of counsel) incident to
the performance of their respective obligations hereunder and incurred following
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses will be paid. The Depositary
shall present its statement for charges and expenses (except for charges and
expenses directly arising from actions provided for in this Deposit Agreement
for which consultation and agreement shall not be necessary) to the Company once
every three months or at such other intervals as the Company and the Depositary
may agree.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable; provided, however, that no such amendment
which shall materially and adversely alter the rights of the holders of Receipts
shall be effective unless such amendment shall have been approved by the holders
of at least a majority of the Depositary Shares then outstanding. Every holder
of an outstanding Receipt at the time any such amendment becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.05 and 2.06 hereof, of any Depositary Shares to surrender the Receipt
evidencing such Depositary Shares with instructions to the Depositary to deliver
to the holder the Stock and all money and other property, if any, represented
thereby, except in order to comply with mandatory provisions of applicable law.
SECTION 6.02. Termination. This Agreement may be
terminated by the Company or the Depositary only after (i) all
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outstanding Depositary Shares shall have been redeemed pursuant to Section 2.03
or (ii) there shall have been made a final distribution in respect of the Stock
in connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Depositary
Shares pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement in accordance
with this Section, each of the parties hereto shall be discharged from all
obligations under this Deposit Agreement except for the obligations of the
Depositary to the Company and of the Company to the Depositary, any Depositary's
Agent and any Registrar, under Sections 5.03, 5.06 and 5.07.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together, shall constitute one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or facsimile
confirmed by letter, addressed to the Company at 245 Park Avenue, New York, New
York 10167, to the attention of the Secretary, or at any other address of which
the Company shall have notified the Depositary in writing.
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Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by facsimile confirmed by
letter, addressed to the Depositary at the Depositary's Office, at 450 West 33rd
Street, New York NY 10001 or at any other address of which the Depositary shall
have notified the Company in writing.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by facsimile,
addressed to such recordholder at the address of such record holder as it
appears on the books of the Depositary, or if such holder shall have filed with
the Depositary a written request that notices intended for such holder be mailed
to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by facsimile shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a facsimile) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any facsimile received by it from the other or from any holder
of a Receipt, notwithstanding that such facsimile shall not subsequently be
confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from
time to time appoint Depositary's Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time
appoint additional Depositary's Agents and vary or terminate the appointment of
such Depositary's Agents. The Depositary will notify the Company of any such
action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 7.08. Inspection of Deposit Agreement. Copies
of this Deposit Agreement shall be filed with the Depositary and
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the Depositary's Agents and shall be open to inspection during business hours at
the Depositary's Office
SECTION 7.09. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement, as of the day and year first above set forth, and all
holders by Receipts shall become parties hereto by and upon acceptance of them
of delivery of Receipts issued in accordance with the terms hereof.
THE BEAR STEARNS COMPANIES INC.
By:
William J. Montgoris
Chief Operating Officer
CHASE MELLON SHAREHOLDER SERVICES L.L.C.
By:
Authorized Officer
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FORM OF FACE OF DEPOSITARY RECEIPT
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING A ONE-FOURTH
INTEREST IN A SHARE OF 5.72% CUMULATIVE
PREFERRED STOCK, SERIES F
($1.00 par value)
OF
THE BEAR STEARNS COMPANIES INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
NUMBER ___ DEPOSITARY SHARES
(EACH DEPOSITARY SHARE REPRESENTS A
ONE-FOURTH INTEREST IN A SHARE OF
5.72% CUMULATIVE PREFERRED STOCK,
SERIES F ($1.00 par value))
CUSIP
1. ChaseMellon Shareholder Services, L.L.C., a limited
liability company duly organized and existing under the laws of the State of New
Jersey as Depositary (the "Depositary"), hereby certifies that [ ] is the
registered owner of Depositary Shares ("Depositary Shares"), each Depositary
Share representing a one-fourth interest in a share of 5.72% Cumulative
Preferred Stock, Series F, $1.00 par value (the "Preferred Stock"), of The Bear
Stearns Companies Inc., a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"). Subject to the terms of the Deposit
Agreement (as defined below), each owner of a Depositary Share is entitled,
proportionately, through the Depositary, to all the rights and preferences of
the Preferred Stock relating thereto, including dividend, voting, redemption and
liquidation rights contained in the Company's Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), and the certificate of
designations adopted under the authority of the Company's Board of Directors and
filed with the Secretary of State of the State of Delaware establishing the
Preferred Stock as a series of preferred stock of the Company and setting forth
the number,
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terms, powers, designations, rights, preferences, qualifications, restrictions
and limitations of the Preferred Stock (the "Certificate of Designations"),
copies of which are on file at the Depositary's Office located, as of the
execution date of the Deposit Agreement, at 450 West 33rd Street, New York, NY
10001.
2. The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt is one, are made available upon the terms and
conditions set forth in the Deposit Agreement, dated as of April 21, 1998 (the
"Deposit Agreement"), among the Company, the Depositary and the holders from
time to time of Receipts. The Deposit Agreement (copies of which are on file at
the Depositary's Office) sets forth the rights of holders of Receipts and the
rights and duties of the Depositary and the Company in respect of the Preferred
Stock deposited, and any and all other property and cash deposited from time to
time, thereunder. The statements made on the face and the reverse of this
Receipt are summaries of certain provisions of the Deposit Agreement and are
subject to the detailed provisions thereof, to which reference is hereby made.
Unless otherwise expressly herein provided, all capitalized terms used herein
shall have the meanings ascribed thereto in the Deposit Agreement.
3. Redemption. Whenever the Company shall be permitted and
shall elect to redeem shares of Preferred Stock in accordance with the
provisions of the Certificate of Incorporation and the Certificate of
Designations, it shall (unless otherwise agreed in writing with the Depositary)
give the Depositary not less than 30 nor more than 60 days' notice of the date
of such proposed redemption of Preferred Stock. The Depositary shall mail notice
of such redemption and the proposed simultaneous redemption of the number of
Depositary Shares representing the Preferred Stock to be redeemed, first-class
postage prepaid, not less than 20 and not more than 50 days prior to the date
fixed for redemption of such Preferred Stock and Depositary Shares (the
"Redemption Date") to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed. Each such notice shall state: (a) the
Redemption Date; (b) the number of Depositary Shares to be redeemed and, if less
than all the Depositary Shares held by any such holder are to be redeemed the
number of Depositary Shares held by such holder to be redeemed; (c) the
redemption price (which shall include full cumulative dividends thereon to the
Redemption Date); (d) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; and (e) that
dividends in respect of the Preferred Stock underlying the Depositary Shares to
be redeemed will cease to accumulate at the close of business on such Redemption
Date. In case less than all the outstanding
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Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata or by such other method as may be
determined by the Depositary to be equitable. Notice having been mailed by the
Depositary as aforesaid, from and after the Redemption Date (unless the Company
shall have failed to redeem the shares of Preferred Stock to be redeemed by it
on such date), all dividends in respect of the shares of Preferred Stock so
called for redemption shall cease to accumulate, the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, all
rights of the holders of Receipts such Depositary Shares (except the right to
receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate and, upon surrender in accordance with such notice of the
Receipts evidencing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to one-fourth of the redemption price per share paid in respect of the shares of
Preferred Stock plus all money and other property, if any, represented by such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of
Preferred Stock to be so redeemed and have not theretofore been paid.
4. Transfer, Split-ups, Combinations. This Receipt is
transferable on the books of the Depositary upon surrender of this Receipt of
the Depositary by the holder in person or by duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer, and upon
such transfer the Depositary shall execute a new Receipt to or upon the order of
the person entitled thereto, as provided in the Deposit Agreement. This Receipt
may be split into other Receipts or combined with other Receipts into one
Receipt, subject to the terms and conditions of the Deposit Agreement,
evidencing the same aggregate number of Depositary Shares as the Receipt or
Receipts surrendered.
5. Surrender of Receipts and Withdrawal of Preferred Stock.
The holder of this Receipt, if this Receipt (together with any other Receipts
surrendered by such holder) represents any number of whole shares of Preferred
Stock, may withdraw the Preferred Stock and all money and other property, if
any, represented hereby by surrendering this Receipt (and such other Receipts)
at the Depositary's Office or at such other offices as the Depositary may
designate for such withdrawals. Upon such surrender, the Depositary shall
deliver to such holder, or upon the order of such other person or persons
designated by such holder as provided in the Deposit Agreement, the number of
whole
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shares of Preferred Stock and all money and other property, if any, represented
by the Receipt or Receipts so surrendered for withdrawal, but holders of such
whole shares of Preferred Stock will not thereafter be entitled to deposit such
Preferred Stock under the Deposit Agreement or to receive Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of
Preferred Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Preferred Stock and such money and
other property, if any, to be so withdrawn, deliver to such holder, or (subject
to the provisions of the Deposit Agreement) upon his order, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Preferred
Stock and money and other property being withdrawn may be made by the delivery
of such certificates, documents of title and other instruments as The Depositary
may deem appropriate, which, if required by law, shall be properly endorsed or
accompanied by proper instruments of transfer.
If the Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of this Receipt or such other Receipts being surrendered for withdrawal
of Preferred Stock, such holder shall execute and deliver to the Depositary a
written order so directing the Depositary, and the Depositary may require that
this Receipt or such other Receipts surrendered by such holder for withdrawal of
such shares of Preferred Stock be properly endorsed in blank or accompanied by a
properly executed instrument of transfer in blank.
6. Suspension of Delivery, Transfer, etc. The
transfer or surrender of this Receipt may be suspended during any period when
the register of stockholders of the Company is closed or if any such action is
deemed necessary or advisable by the Depositary, any agent of the Depositary or
the Company at any time or from time to time because of any requirement of law
or any government or governmental body or commission, or under any provision of
the Deposit Agreement.
7. Payment of Taxes or Other Governmental Charges. If any tax
or other governmental charge shall become payable by or on behalf of the
Depositary with respect to this Receipt, such tax (including transfer taxes, if
any) or governmental charge shall be payable by the holder hereof, subject to
certain exceptions in the Deposit Agreement. Transfer of this Receipt may be
refused until such payment is made, and any dividends, interest payments or
other distributions may be withheld or all
A-4
<PAGE>
or any part of the Preferred Stock or other property represented by this Receipt
and not theretofore sold may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder prior to such sale),
and such dividends, interest payments or other distributions or the proceeds of
any such sale may be applied to any payment of such charges or expenses, the
holder of this Receipt remaining liable for any deficiency.
8. Warranty by the Company. The Company has represented and
warranted that the Preferred Stock, when issued, will be validly issued, fully
paid and nonassessable.
9. Amendment. The form of the Receipts and any provisions of
the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they deem
necessary or desirable; provided, however, that no such amendment which shall
materially and adversely alter the rights of the holders of Receipts shall be
effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. A holder of a
Receipt at the time any such amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of Sections 2.05 and 2.06
of the Deposit Agreement, of the owner of the Depositary Shares evidenced by
this Receipt to surrender this Receipt with instructions to the Depositary to
A-5
<PAGE>
deliver to the holder the number of whole shares of the Preferred Stock and all
money and other property, if any, represented thereby, except in order to comply
with mandatory provisions of applicable law.
Dated: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Depositary, Transfer Agent and
Registrar
By
Authorized Signatory
FURTHER CONDITIONS AND AGREEMENTS FORMING PART OF THIS RECEIPT APPEAR ON THE
REVERSE SIDE.
A-6
<PAGE>
FORM OF REVERSE OF DEPOSITARY RECEIPT
10. Charges of Depositary. The Company will pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements and all charges and expenses of the Depositary in
connection with the initial deposit of the Preferred Stock and the initial
issuance of the Depositary Shares and any redemption of the Preferred Stock at
the option of the Company. All other transfer and other taxes and other
governmental charges shall be at the expense of holders of Depositary Shares.
11. Title to Receipts. This Receipt (and the Depositary Shares
evidenced hereby), when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that until transfer of a
Receipt shall be registered on the books of the Depositary, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the person
entitled to distributions of dividends or other distributions or to any notice
provided for in the Deposit Agreement, and for all other purposes.
12. Dividends and Distributions. Whenever the Depositary
receives any cash dividend or other cash distribution on the Preferred Stock,
the Depositary will, subject to the provisions of the Deposit Agreement, make
such distribution to the Receipt holders as nearly as practicable in proportion
to the number of Depositary Shares evidenced by the Receipts held by them;
provided, however, that the amount distributed will be reduced by any amounts
required to be withheld by the Company or the Depositary on account of taxes.
Other distributions received on the Preferred Stock may be distributed to
holders of Receipts as provided in the Deposit Agreement.
13. Fixing of Record Date. Whenever any cash dividend or other
cash distribution shall become payable or any distribution other than cash shall
be made, or if rights, preferences or privileges shall at any time be offered,
with respect to the Preferred Stock, or whenever the Depositary shall receive
notice of (a) any meeting at which holders of Preferred Stock are entitled to
vote or of which holders of Preferred Stock are entitled to notice or (b) any
election on the part of the Company to redeem any shares of Preferred Stock, the
Depositary shall in each instance fix a record date (which shall be the record
date fixed by the Company with respect to the Preferred
A-7
<PAGE>
Stock), for the determination of the holders of Receipts who shall be entitled
to receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to notice of such
meeting or redemption of Preferred Stock or for any other appropriate reasons.
14. Voting Rights. Upon receipt of notice of any meeting at
which holders of Preferred Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the record holders of Receipts a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Preferred Stock relating to their respective
Depositary Shares (including an express indication that instructions may be
given to the Depositary to give a discretionary proxy to a person designated by
the Company) and a brief statement as to the manner in which such instructions
may be given. Upon the written request of the holders of Receipts on such record
date, the Depositary shall endeavor insofar as practicable to vote or cause to
be voted, in accordance with the instructions set forth in such request, the
maximum number of whole shares of Preferred Stock underlying the Depositary
Shares evidenced by all Receipts as to which any particular voting instructions
are received. In the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting (but, at its discretion, not
from appearing at any meeting with respect to such Preferred Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Preferred Stock underlying the Depositary Shares evidenced by such Receipt.
15. Changes Affecting Deposited Securities. Upon any
change in par or stated value, split-up, combination or any other
reclassification of the Preferred Stock or upon any recapitalization,
reorganization, merger amalgamation or consolidation or sale of all or
substantially all of the Company's assets affecting the Company or to which it
is a party, the Depositary may in its discretion with the approval of, and shall
upon the instructions of, the Company, and (in either case) in such manner as
the Depositary may deem equitable, (i) make such adjustments in (a) the fraction
of an interest in one share of Preferred Stock underlying one Depositary Share
and (b) the ratio of the redemption price per Depositary Share to the redemption
price of a share of Preferred Stock, in each case as may be necessary fully to
reflect the effect of such change in par or stated value, split-up, combination
or other
A-8
<PAGE>
reclassification of Preferred Stock, or such recapitalization, reorganization,
merger, amalgamation or consolidation or sale and (ii) treat any securities
which shall be received by the Depositary in exchange for or upon conversion or
in respect of the Preferred Stock as new deposited securities so received in
exchange for or upon conversion or in respect of such Preferred Stock. In any
such case, the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or it may call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities. Anything to the contrary herein or in
the Deposit Agreement notwithstanding, holders of Receipts shall have the right
from and after the effective date of any such change in par or stated value,
split-up, combination or other reclassification of the Preferred Stock or any
such recapitalization, reorganization, merger, amalgamation, consolidation or
sale to surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Preferred Stock represented thereby only into or for,
as the case may be, the kind and amount of shares of stock and other securities
and property and cash into which the Preferred Stock represented by such
Receipts was converted or for which such Preferred Stock was exchanged or
surrendered after giving effect to such transaction.
16. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company. Neither the Depositary
nor any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law or regulation thereunder of the United States of America
or any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or any Registrar, by reason of any provision, present or
future, of the Certificate of Incorporation (including the Certificate of
Designations) or by reason of any act of God or war or other circumstance beyond
their control, the Depositary, the Depositary's Agent, any Registrar or the
Company shall be prevented or forbidden from doing or performing any act or
thing which the terms of the Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt or the Company by
reason of nonperformance or delay, caused as aforesaid, in performance of any
act or thing which by the terms of the Deposit Agreement it is provided shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement except, in the
case of any exercise or failure to exercise discretion not caused as aforesaid,
if caused by the gross
A-9
<PAGE>
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
17. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor any Registrar nor the Company assumes any obligation or shall be subject to
any liability under the Deposit Agreement to holders of Receipts other than for
its gross negligence or willful misconduct. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Preferred Stock, the Depositary Shares or the
Receipts which in its opinion may involve it in expense or liability unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company shall be liable for any action or any failure to
act by it in reliance upon the written advice of legal counsel or accountants,
or information from any person presenting Preferred Stock for deposit, any
holder of a Receipt or any other person believed by it in good faith to be
competent to give such information. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be protected in acting
upon any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the share of Preferred Stock or for the manner or
effect of any such vote, as long as any such action or non-action is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in the Deposit Agreement, and no implied covenants or obligations shall be
read into the Deposit Agreement against the Depositary or any Registrar. The
Depositary, the Depositary's Agents and any Registrar may own and deal in any
class of securities of the Company and its affiliates and in Receipts. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
18. Resignation and Removal of Depositary. The Depositary may
at any time (i) resign by written notice of its election to do so delivered to
the Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment, or (ii) be removed by the
Company by notice of such removal delivered to the Depositary, such removal to
take effect upon the appointment of a successor
A-10
<PAGE>
Depositary and its acceptance of such appointment, all as provided in the
Deposit Agreement.
19. Termination of Deposit Agreement. The Deposit Agreement
may be terminated by the Company or the Depositary only after (i) all
outstanding Depositary Shares shall have been redeemed or (ii) there shall have
been made a final distribution in respect of the Preferred Stock in connection
with any liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the holders of Receipts. Upon the
termination of the Deposit Agreement in accordance with this Section, each of
the parties hereto shall be discharged from all obligations thereunder except
for the obligations of the Depositary to the Company and of the Company to the
Depositary, any Depositary's Agent and any Registrar, with respect to
indemnification, charges and expenses, in either case in accordance with the
terms of the Deposit Agreement.
20. Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT AND
ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose, unless this Receipt
shall have been authenticated, manually or, if a Registrar for the Receipts
(other than the Depositary) shall have been appointed, by facsimile signature of
a duly authorized signatory of the Depositary and, if authenticated by facsimile
signature of the Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized signatory.
A COPY OF THE DEPOSIT AGREEMENT AND A FULL STATEMENT OF THE
DESIGNATION, RELATIVE RIGHTS, INTERESTS, PREFERENCES AND RESTRICTIONS OF THE
PREFERRED STOCK REPRESENTED BY THIS RECEIPT AND OF EACH CLASS OF SHARES OR
SERIES THEREOF THAT THE COMPANY IS AUTHORIZED TO ISSUE WILL BE FURNISHED BY THE
COMPANY, WITHOUT CHARGE, TO EACH HOLDER OF A RECEIPT UPON WRITTEN REQUEST TO THE
SECRETARY OF THE COMPANY AT 245 PARK AVENUE, NEW YORK, NEW YORK 10167.
A-11
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OR ASSIGNEE
- -------------------------------
| |
| |
- -------------------------------
------------------------------------------------------
Please print or typewrite name and address of assignee
the within Receipt and all rights and interests represented
thereby, and hereby irrevocably Constitute and appoints
----------------------------------------------,
attorney to transfer the same on the books of the within named Depositary, with
full power of substitution in the premises.
Dated: Signature
ASSIGNMENT AND TRANSFER SIGNATURE LINES
NOTE: The signature to any endorsement hereon must correspond with the name as
written upon the face of this Receipt in every particular, without alteration or
enlargement or any change whatever. If the endorsement be executed by an
attorney, executor, administrator, trustee or guardian, the person executing the
endorsement must give his full title in such capacity, and proper evidence of
authority to act in such capacity, if not on file with the Depositary, must be
forwarded with this Receipt. All endorsements or assignments of Receipts must be
guaranteed by a New York Stock Exchange member firm or member of the Clearing
House of the American Stock Exchange Clearing Corporation or by a bank or trust
company having an office or Correspondent in The City of New York.
A-12
NYFS04...:\25\22625\0182\2041\AGR4158U.29A
CERTIFICATE OF DESIGNATIONS
---------------------------
5.72% CUMULATIVE PREFERRED STOCK, SERIES F
------------------------------------------
OF
--
THE BEAR STEARNS COMPANIES INC.
------------------------------
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
The Bear Stearns Companies Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"), hereby certifies that the Board of Directors of the Corporation
(the "Board of Directors") and the Executive Committee of the Board of
Directors, pursuant to authority conferred upon the Board of Directors by the
provisions of the Certificate of Incorporation, as amended, of the Corporation
and by Section 151 of the General Corporation Law of the State of Delaware, and
pursuant to authority conferred upon the Executive Committee of the Board of
Directors by Section 141(c) of the General Corporation Law of the State of
Delaware, by Article 4 of the By-Laws of the Corporation and by the resolutions
of the Board of Directors set forth herein, have adopted the following
resolutions creating a series of preferred stock, $1.00 par value, of the
Corporation, designated as 5.72% Cumulative Preferred Stock, Series F:
Article I
The Board of Directors by unanimous written consent in lieu of
a meeting dated as of March 4, 1993 (the "Original Resolutions"), adopted the
following resolutions authorizing the issuance and sale of up to 5,000,000
shares of preferred stock, $1.00 par value, of the Corporation (defined therein
as the "Preferred Stock"), granting authority to the Executive Committee of the
Board of Directors to authorize the issuance and to designate the terms, from
time to time, of one or more series of additional shares of authorized Preferred
Stock and authorizing such committee to act on behalf of the Board of Directors
in connection with the issuance and sale of such Preferred Stock:
<PAGE>
"NOW, THEREFORE, BE IT RESOLVED . . . to authorize and empower
the Executive Committee, on behalf of and in place of the Board of
Directors . . . to authorize the issuance at any time and from time to
time of up to 5,000,000 shares of the authorized Preferred Stock of the
Corporation in one or more series and that the Executive Committee be
further authorized and empowered, on behalf of and in place of the
Board of Directors, . . . to fix the designations, preferences and
relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, of the shares of
such series to the extent permitted by the Delaware General Corporation
Law (in addition to the powers, designations, preferences and relative,
participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof set forth in the
Certificate of Incorporation) or fix the number of shares of any series
of stock or authorize the increase or decrease of the shares of any
series;
RESOLVED, that except to the extent that this resolution shall
be superseded or modified by subsequent action of the Board of
Directors with respect to any particular series of the Preferred Stock,
the holder of shares of each series of Preferred Stock which are
authorized for issuance by the Executive Committee pursuant to the
authority conferred by these resolutions shall have no voting rights
whatsoever, except for any voting rights to which they are entitled
under the laws of the State of Delaware, and except for the following:
(a) Whenever, at any time or times, dividends payable on the
shares of Preferred Stock or any other class or series of stock ranking
on a parity with the Preferred Stock with respect to the payment of
dividends, shall be in arrears for an aggregate number of days equal to
six calendar quarters or more, whether or not consecutive, the holders
of the outstanding shares of Preferred Stock shall have the right, with
holders of shares of any one or more other classes or series of
preferred stock upon which like voting rights have been conferred and
are exercisable (voting together as a class), to elect two of the
authorized number of members of the Board of Directors at the
Corporation's next annual meeting of stockholders and at each
subsequent annual meeting of stockholders until
2
<PAGE>
such arrearages have been paid or set apart for payment, at which time
such right shall terminate, except as herein or by law expressly
provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned. Upon any
termination of the right of the holders of shares of Preferred Stock as
a class to vote for directors as herein provided, the term of office of
all directors then in office elected by the holders of shares of
Preferred Stock shall terminate immediately.
Any director who shall have been so elected pursuant to this
paragraph may be removed at any time, either with or without cause. Any
vacancy thereby created may be filled only by the affirmative vote of
the holders of shares of Preferred Stock voting separately as a class
(together with the holders of shares of any other class or series of
preferred stock upon which like voting rights have been conferred and
are exercisable). If the office of any director elected by the holders
of shares of Preferred Stock voting as a class becomes vacant for any
reason other than removal from office as aforesaid, the remaining
director elected pursuant to this paragraph may choose a successor who
shall hold office for the unexpired term in respect of which such
vacancy occurred. At elections for such directors, each holder of
shares of Preferred Stock shall be entitled to one vote for each share
held (the holders of shares of any other class or series of preferred
stock having like voting rights being entitled to such number of votes,
if any, for each share of such stock held as may be granted to them).
(b) So long as any shares of Preferred Stock remain
outstanding, the consent of the holders of at least two-thirds of the
shares of Preferred Stock outstanding at the time and all other classes
or series of preferred stock upon which like voting rights have been
conferred and are exercisable (voting together as a class) given in
person or by proxy, either in writing or at any meeting called for the
purpose, shall be necessary to permit, effect or validate any one or
more of the following:
(i) the issuance or increase of the
authorized amount of any class or series of shares
if the holders of stock of such class or classes
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<PAGE>
shall be entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference
or priority to the holders of shares of the Preferred Stock;
or
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Certificate of Incorporation (including this resolution
or any provision hereof) that would materially and adversely
affect any power, preference, or special right of the shares
of Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of authorized common
stock or authorized Preferred Stock or any increase or decrease in the
number of shares of any series of Preferred Stock or the creation and
issuance of other series of Common Stock or Preferred Stock, in each
case ranking on a parity with or junior to the shares of Preferred
Stock with respect to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding up, shall not be deemed
to materially and adversely affect such powers, preferences or special
rights.
(c) The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
Preferred Stock shall have been redeemed or called for redemption and
sufficient funds shall have been deposited in trust to effect such
redemption."
Article II
The Board of Directors by unanimous written consent in lieu of
a meeting dated as of July 15, 1993, adopted the following resolutions modifying
in certain respects the voting rights of each series of Preferred Stock created
on or after the date thereof, with such modifications taking effect and
superseding the voting rights adopted by the Board of Directors in the Original
Resolutions:
4
<PAGE>
"NOW, THEREFORE, BE IT RESOLVED, that, except to the extent
that this resolution shall be superseded or modified by subsequent
action of the Board of Directors with respect to all series or any
particular series of the Preferred Stock, the holder of shares of each
series of Preferred Stock which are authorized for issuance by the
Executive Committee pursuant to the authority conferred by the Original
Resolutions shall have no voting rights whatsoever, except for any
voting rights to which they may be entitled under the Certificate of
Incorporation of the Corporation or the laws of the State of Delaware,
and except for the following:
(a) Whenever, at any time or times, dividends payable on the
shares of any series of Preferred Stock or any other class or series of
stock ranking on a parity with the Preferred Stock 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 or more, the holders of the
outstanding shares of that series of Preferred Stock (voting together
as a class with all other series of Preferred Stock upon which like
voting rights have been conferred and are exercisable) (collectively,
the "Defaulted Preferred Stock") shall have the right (the "Special
Election Right") to elect two members of the Board of Directors. The
Special Election Right may be exercised at any annual meeting or at any
special meeting called for that purpose as hereinafter provided or at
any adjournment thereof, or by the written consent, delivered to the
Secretary of the Corporation, of the holders of a majority of all
outstanding shares of Defaulted Preferred Stock, until dividends in
default on the outstanding shares of Defaulted Preferred Stock shall
have been paid in full (or such dividends shall have been declared and
funds sufficient therefor set apart for payment), at which time the
term of office of the two directors so elected shall terminate
automatically.
So long as the Special Election Right continues (and unless
the Special Election Right shall have previously been exercised by
written consent of the holders of a majority of the outstanding shares
of Defaulted Preferred Stock) the Secretary of the Corporation may
call, and within 30 days after delivery
5
<PAGE>
to the Secretary addressed to him at the principal office of the
Corporation of the written request from the holders of record of a
majority of the outstanding shares of Defaulted Preferred Stock will be
required to call, a special meeting of the holders of those shares for
the Special Election Right. Such meeting shall be held within 30 days
after delivery of such request to the Secretary, at the place and upon
the notice provided by law and in the By-laws of the Corporation for
the holding of meetings of stockholders. No such special meeting or
adjournment thereof shall be held on a date less than 30 days before an
annual meeting of stockholders or any special meeting in lieu thereof.
If at any annual or special meeting or any adjournment thereof the
holders of a majority of the then outstanding shares of Defaulted
Preferred Stock entitled to vote shall be present or represented by
proxy, or if the holders of a majority of the outstanding shares of
Defaulted Preferred Stock shall have acted by written consent in lieu
of a meeting with respect thereto, then the authorized number of
directors shall be increased by two, and the holders of the Defaulted
Preferred Stock shall be entitled to elect the two additional
directors. Directors so elected shall serve until the next annual
meeting or until their successors shall be elected and qualified,
unless the term of office of the person so elected as directors shall
have terminated as described above.
In case of any vacancy occurring between the directors elected
by the holders of the Defaulted Preferred Stock as a class, the
remaining director who shall have been so elected may appoint a
successor to hold office for the unexpired term of the director whose
place shall be vacant. If both directors so elected by the holders of
Defaulted Preferred Stock as a class shall cease to serve as directors
before their terms shall expire, the holders of the Defaulted Preferred
Stock then outstanding and entitled to vote for such directors may, by
written consent as hereinabove provided, or at a special meeting of
holders of Defaulted Preferred Stock called as provided above, elect
successors to hold office for the unexpired terms of the directors
whose place shall be vacant.
6
<PAGE>
Whenever shares of Defaulted Preferred Stock become entitled
to vote, each holder shall have one vote for each share held.
(b) So long as any shares of Preferred Stock remain
outstanding, the consent of the holders of at least two-thirds of the
shares of Preferred Stock outstanding at the time and all other classes
or series of preferred stock upon which like voting rights have been
conferred and are exercisable (voting together as a class) given in
person or by proxy, either in writing or at any meeting called for the
purpose, shall be necessary to permit, effect or validate any one or
more of the following:
(i) the issuance or increase of the authorized amount of any
class or series of shares if the holders of stock of such
class or series shall be entitled by the terms thereof to the
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of shares of the
Preferred Stock; or
(ii) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the
Certificate of Incorporation (including this resolution or any
provisions hereof) that would materially and adversely affect
any power, preference or special right of the shares of
Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of authorized Common
Stock or authorized Preferred Stock or any increase or decrease in the
number of shares of any series of Preferred Stock or the creation and
issuance of other series of Common Stock or Preferred Stock, in each
case ranking on a parity with or junior to the shares of Preferred
Stock with respect to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding up, shall not be deemed
to materially and adversely affect such powers, preferences or special
rights.
(c) The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required
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<PAGE>
shall be effected, all outstanding shares of Preferred Stock shall have
been redeemed or called for redemption and sufficient funds shall have
been deposited in trust to effect such redemption.
Article III
The Executive Committee of the Board of Directors on April 20,
1998, adopted the following resolution:
"RESOLVED, that a series of the class of authorized Preferred
Stock, $1.00 par value, of the Corporation be hereby created, and that
the designation and amount thereof and the preferences and relative,
participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restriction thereof are
as follows:
Section 1. Designation and Amount. The shares of such series
shall be designated as the "5.72% Cumulative Preferred Stock, Series F"
(the "Series F Preferred Stock") and the number of shares constituting
such series shall be 1,000,000, which number may be increased or
decreased by the Board of Directors or a committee so authorized by the
Board of Directors without a vote of stockholders; provided, however,
that such number may not be decreased below the number of then
currently outstanding shares of Series F Preferred Stock.
Section 2. Dividends and Distribution.
(a) The holders of shares of Series F Preferred Stock, in
preference to the holders of shares of the common stock, par value
$1.00 per share (the "Common Stock"), of the Corporation and of any
other capital stock of the Corporation ranking junior to the Series F
Preferred Stock as to payment of dividends, shall be entitled to
receive, when and as declared by the Board of Directors out of net
profits or net assets of the Corporation legally available for the
payment of dividends, cumulative cash dividends in the amount of $11.44
per share per annum, and no more, in equal quarterly payments on
January 15, April 15, July 15 and October 15 in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on July 15, 1998.
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(b) Dividends payable pursuant to paragraph (a) of this
Section 2 shall begin to accrue and be cumulative from the date of
original issue of the Series F Preferred Stock. The amount of dividends
so payable shall be determined on the basis of twelve 30-day months and
a 360-day year. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series F Preferred Stock in an amount
less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The record date
for the determination of holders of shares of Series F Preferred Stock
entitled to receive payment of a dividend declared thereon shall be
such date, not less than 15 nor more than 60 days prior to the date
fixed for the payment thereof, as may be determined by the Board of
Directors or a duly authorized committee thereof; provided, however,
that the record date for the first Quarterly Dividend Payment Date
shall be June 30, 1998.
(c) If, prior to 18 months after the date of the original
issuance of the Series F Preferred Stock, one or more amendments to the
Internal Revenue Code of 1986, as amended (the "Code"), are enacted
that reduce the percentage of the dividends-received deduction for
certain corporations (currently 70%) as specified in section 24.3(a)(1)
of the Code or any successor provision "Dividends-Received
Percentage"), certain adjustments shall be made in respect of the
dividends payable by the Corporation, and Post Declaration Date
Dividends and Retroactive Dividends (as such terms are defined below)
shall become payable, as described below.
(d) The amount of each dividend payable (if declared) per
share of Series F Preferred Stock for dividend payments made on or
after the effective date of such change in the Code will be adjusted by
multiplying the amount of the dividend payable described above (before
adjustment) by the following fraction (the "DRD Formula"), and rounding
the result to the nearest cent (with one-half cent rounded up):
1 - .35 (1 - .70)
-----------------------
1 - .35 (1 - DRP)
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(e) For the purposes of the DRD Formula, "DRP" means the
Dividends-Received Percentage (expressed as a decimal) applicable to
the dividend in question; provided, however, that if the
Dividends-Received Percentage applicable to the dividend in question
shall be less than 50%, then the DRP shall equal .50. No amendment to
the Code, other than a change in the percentage of the
dividends-received deduction set forth in section 243(a)(1) of the Code
or any successor provision thereto, will give rise to an adjustment.
Notwithstanding the foregoing provisions, if, with respect to any such
amendment, the Corporation receives either an unqualified opinion of
nationally recognized independent tax counsel selected by the
Corporation or a private letter ruling or similar form of authorization
from the Internal Revenue Service ("IRS") to the effect that such
amendment does not apply to a dividend payable on the Series F
Preferred Stock, then such amendment will not result in the adjustment
provided for pursuant to the DRD Formula with respect to such dividend.
The opinion referenced in the previous sentence shall be based upon the
legislation amending or establishing the DRP on upon a published
pronouncement of the IRS addressing such legislation. The Corporation's
calculation of the dividends payable, as so adjusted and as certified
accurate as to calculation and reasonable as to method by the
independent certified public accountants then regularly engaged by the
Corporation, shall be final and not subject to review absent manifest
error.
(f) Notwithstanding the foregoing, if any such amendment to
the Code is enacted after the dividend payable on a dividend payment
date has been declared, the amount of the dividend payable on such
dividend payment date shall not be increased; instead, additional
dividends (the "Post Declaration Date Dividends") equal to the excess,
if any, of (x) the product of the dividend paid by the Corporation on
such dividend payment date and the DRD Formula (where the DRP used in
the DRD Formula would be equal to the greater of the Dividend-Received
Percentage applicable to the dividend in question and .50) over (y) the
dividend paid by the Corporation on such dividend payment date, shall
be payable (if declared) to holders of Series F Preferred Stock on the
record date applicable to the next succeeding dividend payment date or,
if the Series F Preferred Stock is called for
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redemption prior to such record date, to holders of Series F Preferred
Stock on the applicable redemption date, as the case may be, in
addition to any other amounts payable on such date.
(g) If any such amendment to the Code is enacted and the
reduction in the Dividends-Received Percentage retroactively applies to
a dividend payment date as to which the Corporation previously paid
dividends on the Series F Preferred Stock (each, an "Affected Dividend
Payment Date"), the Corporation shall pay (if declared) additional
dividends (the "Retroactive Dividends") to holders of Series F
Preferred Stock on the record date applicable to the next succeeding
dividend payment date (or, if such amendment is enacted after the
dividend payable on such dividend payment date has been declared, to
holders of Series F Preferred Stock on the record date following the
date of enactment) or, if the Series F Preferred Stock is called for
redemption prior to such record date, to holders of Series F Preferred
Stock on the applicable redemption date, as the case may be, in an
amount equal to the excess of (x) the product of the dividend paid by
the Corporation on each Affected Dividend Payment Date and the DRD
Formula (where the DRP used in the DRD Formula would be equal to the
greater of the Dividends-Received Percentage and .50 applied to each
Affected Dividend Payment Date) over (y) the sum of the dividend paid
by the Corporation on each Affected Dividend Payment Date. The
Corporation shall only make one payment of Retroactive Dividends for
any such amendment. Notwithstanding the foregoing provisions, if, with
respect to any such amendment, the Corporation receives either an
unqualified opinion of nationally recognized independent tax counsel
selected by the Corporation or a private letter ruling or similar form
of authorization from the IRS to the effect that such amendment does
not apply to a dividend payable on an Affected Dividend Payment Date
for the Series F Preferred Stock, then such amendment will not result
in the payment of Retroactive Dividends with respect to such Affected
Dividend Payment Date. The opinion referenced in the previous sentence
shall be based upon the legislation amending or establishing the DRP or
upon a published pronouncement of the IRS addressing such legislation.
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<PAGE>
(h) Notwithstanding the foregoing, no adjustment in the
dividends payable by the Corporation shall be made, and no Post
Declaration Date Dividends or Retroactive Dividends shall be payable by
the Corporation, in respect of the enactment of any amendment to the
Code 18 months or more after the date of original issuance of the
Series F Preferred Stock that reduces the Dividends-Received
Percentage.
(i) In the event that the amount of dividends payable per
share of the Series F Preferred Stock is adjusted pursuant to the DRD
Formula and/or Post Declaration Date Dividends or Retroactive Dividends
are to be paid, the Corporation will give notice of such adjustment,
and if applicable, any Post-Declaration Date Dividends and Retroactive
Dividends to the holders of Series F Preferred Stock.
Section 3. Certain Restrictions.
(a) Whenever quarterly dividends payable on shares of Series F
Preferred Stock as provided in Section 2 hereof are in arrears,
thereafter and until all accrued and unpaid dividends, whether or not
declared, on the outstanding shares of Series F Preferred Stock shall
have been paid in full or declared and set apart for payment, the
Corporation shall not: (i) declare or pay dividends, or make any other
distributions, on any shares of Common Stock or other capital stock
ranking junior (either as to payment of dividends or distribution of
assets upon liquidation, dissolution or winding up) to the Series F
Preferred Stock ("Junior Stock"), other than dividends or distributions
payable in Junior Stock; (ii) declare or pay dividends, or make any
other distributions, on any shares of capital stock ranking on a parity
(either as to payment of dividends or distribution of assets upon
liquidation, dissolution or winding up) with the Series F Preferred
Stock ("Parity Stock"), other than dividends or distributions payable
in Junior Stock, except dividends paid ratably on the Series F
Preferred Stock and all Parity Stock on which dividends are payable or
in arrears, in proportion to the total amounts to which the holders of
all such shares are then entitled; (iii) redeem or purchase or
otherwise acquire for consideration any shares of Junior Stock;
provided, that the Corporation may at any time redeem, purchase or
otherwise acquire any shares of Junior
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<PAGE>
Stock in exchange for shares of Junior Stock; or (iv) redeem or
purchase or otherwise acquire for consideration any shares of Series F
Preferred Stock or Parity Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any Subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of capital stock of the Corporation unless the Corporation
could, pursuant to paragraph (a) of this Section 3, purchase or
otherwise acquire such shares at such time and in such manner.
Section 4. Redemption.
(a) The shares of Series F Preferred Stock shall not be
redeemed by the Corporation prior to April 15, 2008. The Corporation,
at its option, may redeem shares of Series F Preferred Stock, as a
whole or in part, at any time or from time to time on or after April
15, 2008, at a price of $200.00 per share, plus an amount per share
equal to all accrued but unpaid dividends thereon, whether or not
declared, to the date fixed for redemption (hereinafter called the
"redemption price"). The Corporation's election to redeem shares of
Series F Preferred Stock shall be expressed by resolution of the Board
of Directors. Any such redemption shall be made upon not less than 30,
nor more than 60 days' previous notice to holders of record of the
shares of Series F Preferred Stock to be redeemed, given as hereinafter
provided.
(b) If less than all shares of Series F Preferred Stock at the
time outstanding are to be redeemed, the shares to be redeemed shall be
selected pro rata or by lot, in such manner as may be prescribed by
resolution of the Board of Directors.
(c) Notice of any redemption of shares of Series F Preferred
Stock shall be given by publication in a
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<PAGE>
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 fixed by the Board of Directors
and specified therein. A similar notice shall be mailed by the
Corporation, postage prepaid, not less than 30 nor more than 60 days
prior to such redemption date, addressed to the respective holders of
record of shares of Series F Preferred Stock to be redeemed at their
respective addresses as the same shall appear on the stock transfer
records of the Corporation, but the mailing of such notice shall not be
a condition of such redemption. In order to facilitate the redemption
of shares of Series F Preferred Stock, the Board of Directors may fix a
record date for the determination of shares of Series F Preferred Stock
to be redeemed, not more than 60 days nor less than 30 days prior to
the date fixed for such redemption.
(d) Notice having been given pursuant to paragraph (c) of this
Section 4, from and after the date specified therein as the date of
redemption, unless default shall be made by the Corporation in
providing moneys for the payment of the redemption price pursuant to
such notice, all dividends on the Series F Preferred Stock thereby
called for redemption shall cease to accrue, and from and after the
date of redemption so specified, unless default shall be made by the
Corporation as aforesaid, or from and after the date (if prior to the
date of redemption so specified) on which the Corporation shall provide
the moneys for the payment of the redemption price by depositing the
amount thereof 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, provided that the notice of redemption
shall state the intention of the Corporation to deposit such amount on
a date prior to the date of redemption so specified in such notice, all
rights of the holders thereof as stockholders of the Corporation,
except the right to receive the redemption price (but without
interest), shall cease. Any interest allowed on moneys so deposited
shall be paid to the Corporation. Any moneys so deposited which shall
remain unclaimed by the holders of such Series F Preferred Stock at the
end of six years after the redemption date shall become the property
of, and be paid by such bank or trust company to, the Corporation.
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<PAGE>
Section 5. Reacquired Shares. Any shares of Series F Preferred
Stock redeemed, purchased or otherwise acquired by the Corporation in
any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock, $1.00 par
value, of the Corporation and may be reissued as part of another series
of Preferred Stock, $1.00 par value, of the Corporation subject to the
conditions or restrictions on issuance set forth herein, in the
Certificate of Incorporation, in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (i) to the holders of shares
of Junior Stock, unless, prior thereto, the holders of shares of Series
F Preferred Stock shall have received $200.00 per share, plus an amount
per share equal to all accrued but unpaid dividends thereon, whether or
not declared, to the date of such payment or (ii) to the holders of
shares of Parity Stock, except distributions made ratably on the Series
F Preferred Stock and all such Parity Stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
(b) Neither the consolidation, merger or other business
combination of the Corporation with or into any other Person or
Persons, nor the sale, lease, exchange or conveyance of all or any part
of the property, assets or business of the Corporation, shall be deemed
to be a liquidation, dissolution or winding up of the Corporation for
purposes of this Section 6.
Section 7. Voting Rights. The holders of shares of Series F
Preferred Stock shall have the voting rights provided for in the
resolutions adopted by the Board of Directors by unanimous written
consents in lieu of meetings dated as of March 4, 1993 and as of July
15, 1993.
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Section 8. Definitions. For the purposes of the Certificate of
Designations of the Series F Preferred Stock which embodies this
resolution:
"Persons" shall mean any individual, firm, corporation or
other entity, and shall include any successor (by merger or otherwise)
of such entity.
"Subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such
Person.
Section 9. Rank. The Series F Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets,
equally with all shares of the Adjustable Cumulative Preferred Stock,
Series A, Cumulative Preferred Stock, Series B, Cumulative Preferred
Stock, Series C and Cumulative Preferred Stock, Series E of the
Corporation.
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IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Designations of 5.72% Cumulative Preferred Stock, Series F to be
duly executed by its Chief Operating Officer and attested to by its Secretary
and has caused its corporate seal to be affixed hereto, this ___ day
of April, 1998.
THE BEAR STEARNS COMPANIES INC.
By:
William J. Montgoris
Chief Operating Officer
ATTEST:
Kenneth L. Edlow
Secretary
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