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.
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(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 following the following box. [ ]
box. [X]
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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6.15% Cumulative Preferred Stock, Series E* New York Stock Exchange, Inc.
Depositary Shares Each Representing a New York Stock Exchange, Inc.
One-Fourth Interest in a Share of 6.15%
Cumulative Preferred Stock, Series E
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 E Preferred Stock" on
pages S-2 to S-7 of the Prospectus Supplement dated January 9, 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)).
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1.3 - Form of Deposit Agreement relating to the registrant's
6.15% Cumulative Preferred Stock, Series E.
1.4 - Form of Certificate of Designations relating to
the registrant's 6.15% Cumulative Preferred Stock, Series E.
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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: January 14, 1998 By: /s/ William Montgoris
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Name: William Montgoris
Title: Chief Operating Officer
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EXHIBIT INDEX
Exhibit No. Description
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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 6.15%
Cumulative Preferred Stock, Series E.
1.4 - Form of Certificate of Designations relating to the
registrant's 6.15% Cumulative Preferred Stock, Series E.
EXHIBIT 1.3
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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 January 15, 1998
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DEPOSIT AGREEMENT dated as of January 15, 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 6.15% Cumulative Preferred
Stock, Series E, $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 6.15% Cumulative
Preferred Stock, Series E, $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
directions 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 their 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:
-----------------------------------
Authorized 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 6.15% CUMULATIVE
PREFERRED STOCK, SERIES E
($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
6.15% CUMULATIVE PREFERRED STOCK,
SERIES E ($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 6.15% Cumulative Preferred Stock, Series E,
$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 January 15th, 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 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
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<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
EXHIBIT 1.4
CERTIFICATE OF DESIGNATIONS
---------------------------
6.15% CUMULATIVE PREFERRED STOCK, SERIES E
------------------------------------------
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 6.15% Cumulative Preferred Stock, Series E:
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 resolution 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:
NYFS04...:\25\22625\0182\2041\CRT1068V.38D
<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."
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:
"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
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<PAGE>
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 additional 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 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
3
<PAGE>
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 among 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.
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
4
<PAGE>
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 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 January 13,
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:
5
<PAGE>
Section 1. Designation and Amount. The shares of such series shall
be designated as the "6.15% Cumulative Preferred Stock, Series E" (the
"Series E Preferred Stock") and the number of shares constituting such
series shall be 1,250,000, 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 E Preferred Stock.
Section 2. Dividends and Distribution.
(a) The holders of shares of Series E 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 E 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 $12.30 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 April 15, 1998.
(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 E 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 E 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 E 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
6
<PAGE>
thereof; provided, however, that the record date for the first Quarterly
Dividend Payment Date shall be March 31, 1998.
(c) If, prior to 18 months after the date of the original issuance
of the Series E 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 243(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 E 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)
(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")
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to the effect that such amendment does not apply to a dividend payable on
the Series E 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 E Preferred Stock on the record date applicable to
the next succeeding dividend payment date or, if the Series E Preferred
Stock is called for redemption prior to such record date, to holders of
Series E 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 E Preferred Stock (each, an "Affected Dividend Payment Date"), the
Corporation shall pay (if declared) additional dividends (the "Retroactive
Dividends") to holders of Series E 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
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declared, to holders of Series E Preferred Stock on the record date
following the date of enactment) or, if the Series E Preferred Stock is
called for redemption prior to such record date, to holders of Series E
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 E 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.
(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 E Preferred Stock that
reduces the Dividends-Received Percentage.
(i) In the event that the amount of dividends payable per share of
the Series E 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 E Preferred Stock.
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Section 3. Certain Restrictions.
(a) Whenever quarterly dividends payable on shares of Series E
Preferred Stock as provided in Section 2 hereof are in arrears, thereafter
and until all accrued but unpaid dividends, whether or not declared, on
the outstanding shares of Series E 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 E 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 E Preferred Stock ("Parity Stock"), other than
dividends or distributions payable in Junior Stock, except dividends paid
ratably on the Series E 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 Stock in exchange for shares of
Junior Stock; or (iv) redeem or purchase or otherwise acquire for
consideration any shares of Series E 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
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or otherwise acquire such shares at such time and in such manner.
Section 4. Redemption.
(a) The shares of Series E Preferred Stock shall not be redeemed by
the Corporation prior to January 15, 2008. The Corporation, at its option,
may redeem shares of Series E Preferred Stock, as a whole or in part, at
any time or from time to time on or after January 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 E 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 E Preferred Stock to be redeemed, given
as hereinafter provided.
(b) If less than all shares of Series E 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 E Preferred Stock
shall be given by publication in a newspaper of general circulation in the
Borough of Manhattan, The City of New York, such publication to be made
not less than 30 nor more than 60 days prior to the redemption date 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 E 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 E Preferred Stock, the Board of Directors may fix a
record date for the determination of shares of Series E Preferred Stock to
be redeemed, not more than 60 days nor less than 30 days prior to the date
fixed for such redemption.
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(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 E 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 E 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.
Section 5. Reacquired Shares. Any shares of Series E 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.
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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 E
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 E 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 E
Preferred Stock shall have the voting rights provided for in the
resolutions adopted by the Board of Directors by unanimous written consent
in lieu of a meeting dated as of July 15, 1993.
Section 8. Definitions. For the purposes of the Certificate of
Designations of the Series E 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.
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Section 9. Rank. The Series E Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets,
equally with all shares of the Adjustable Rate Cumulative Preferred Stock,
Series A, Cumulative Preferred Stock, Series B and Cumulative Preferred
Stock, Series C of the Corporation.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations of 6.15% Cumulative Preferred Stock, Series E 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 14th
day of January, 1998.
THE BEAR STEARNS COMPANIES INC.
By:
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William J. Montgoris
Chief Operating Officer
ATTEST:
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Kenneth L. Edlow
Secretary
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