As filed with the Securities and Exchange Commission on June 17, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
------------
THE BEAR STEARNS COMPANIES INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-3286161
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
245 PARK AVENUE
NEW YORK, NEW YORK 10167
(212) 272-2000
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
WILLIAM J. MONTGORIS
CHIEF OPERATING OFFICER
THE BEAR STEARNS COMPANIES INC.
245 PARK AVENUE
NEW YORK, NEW YORK 10167
(212) 272-2000
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
DENNIS J. BLOCK, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
Approximate date of commencement of proposed sale of the securities to the
public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plan, please check the following box. [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plan, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]__________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[_]__________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of Each Class of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee(2)
Unit(2) Price(2)
- - -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $1.00 per
share.............................. 1,121,206 $53.28 $59,737,855 $17,623
===================================================================================================================================
</TABLE>
(1) Plus such indeterminate number of shares pursuant to Rule 416 as may be
issued in respect of stock splits, stock dividends and similar transactions.
(2) Pursuant to Rule 457 under the Securities Act of 1933, the proposed maximum
aggregate offering price and the registration fee are based upon the average of
the high and low prices per share of the Registrant's Common Stock reported on
the New York Stock Exchange Composite Tape on June 15, 1998.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
================================================================================
NYFS04...:\25\22625\0110\1324\FRM5288L.20F
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
- - --------------------------------------------------------------------------------
SUBJECT TO COMPLETION, DATED JUNE 17, 1998
PROSPECTUS
THE BEAR STEARNS COMPANIES INC.
COMMON STOCK (PAR VALUE $1.00 PER SHARE)
1,121,206 SHARES OF COMMON STOCK UNDER THE BEAR STEARNS COMPANIES INC.
CAPITAL ACCUMULATION PLAN FOR SENIOR MANAGING DIRECTORS
This Prospectus is being used in connection with the offering from time to
time by certain former employees (the "Selling Shareholders") of The Bear
Stearns Companies Inc., a Delaware corporation (the "Company"), and/or its
subsidiaries, of up to 1,121,206 shares (the "Shares") of common stock, par
value $1.00 per share, of the Company (the "Common Stock"), which have been
acquired by them pursuant to the Company's Capital Accumulation Plan for Senior
Managing Directors (the "Plan"). Unless the context indicates or requires
otherwise, references in this Prospectus to the "Company" are to The Bear
Stearns Companies Inc. and its subsidiaries.
The Shares are being sold by the Selling Shareholders acting as principals
for their own account. The Company will not be entitled to any of the proceeds
from such sales.
The Selling Shareholders or their pledgees, donees, transferees or other
successors in interest (including Bear, Stearns & Co. Inc. ("Bear Stearns") to
the extent that shares may be sold from a margin account) may sell the Shares
from time to time in one or more transactions (which may involve one or more
block transactions) on the New York Stock Exchange (the "NYSE"), in sales
occurring in the public market off such exchange, in privately negotiated
transactions, or in a combination of such transactions; each sale may be made
either at market prices prevailing at the time of such sale or at negotiated
prices; some or all of the Shares may be sold through brokers acting on behalf
of the Selling Shareholders or to dealers for resale by such dealers; and in
connection with such sales, such brokers or dealers may receive compensation in
the form of discounts, fees or commissions from the Selling Shareholders and/or
the purchasers of such shares for whom they may act as broker or agent (which
discounts, fees or commissions are not anticipated to exceed those customary in
the types of transactions involved). However, any securities covered by this
Prospectus which qualify for sale pursuant to Rule 144 under the Securities Act
of 1933, as amended (the "Securities Act"), may be sold under Rule 144 rather
than pursuant to this Prospectus. All expenses of registration incurred in
connection with this offering are being borne by the Company, but all brokerage
commissions and other expenses incurred by individual Selling Shareholders will
be borne by each such Selling Shareholder.
The Selling Shareholders and any dealer acting in connection with the
offering of any of the Shares or any broker executing selling orders on behalf
of the Selling Shareholders may be deemed to be "underwriters" within the
meaning of the Securities Act, in which event any profit on the sale of any or
all of the Shares by them and any discounts or concessions received by any such
brokers or dealers may be deemed to be underwriting discounts and commissions
under the Securities Act.
Bear Stearns and/or Bear, Stearns Securities Corp. ("BSSC"), subsidiaries
of the Company, may act as a broker on behalf of one or more of the Selling
Shareholders in connection with this offering and may receive fees or
commissions in connection therewith (which fees or commissions are not expected
to exceed those customary in the types of transactions involved). See "Plan of
Distribution."
The Common Stock is traded on the NYSE. On June 16, 1998, the closing
price of the Common Stock as reported on the NYSE Composite Tape was $53-5/8 per
share.
<PAGE>
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PRO-
SPECTUS OR ANY SUPPLEMENT HERETO. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------------
JUNE __, 1998
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<PAGE>
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY SECURITIES BY ANYONE IN ANY JURISDICTION IN
WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING
SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT
IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF.
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TABLE OF CONTENTS
PAGE
----
Available Information..............................................3
Incorporation of Certain Documents by Reference....................4
The Company........................................................5
Selling Shareholders...............................................5
Plan of Distribution...............................................9
Experts............................................................9
Validity of Common Stock...........................................10
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information filed by the Company with the Commission can be inspected
and copied at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 or at its Regional
Offices located at the Citicorp Center, 5000 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511 and 7 World Trade Center, 13th Floor, New York, New
York 10048, and copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. Such information may also be accessed electronically
by means of the Commission's home page on the Internet at http://www.sec.gov.
Reports, proxy statements and other information concerning the Company can also
be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act. This Prospectus omits
certain of the information contained in the Registration Statement in accordance
with the rules and regulations of the Commission. Reference is hereby made to
the Registration Statement and related exhibits for further information with
respect to the Company and the Shares. Statements contained herein concerning
the provisions of any document are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
3
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to Section 13 of the Exchange Act (File No. 1-8989) are incorporated herein by
reference: (i) the Annual Report on Form 10-K (including the portions of the
Company's Annual Report to Stockholders and Proxy Statement incorporated by
reference therein) for the fiscal year ended June 30, 1997 (the "1997 Form
10-K"), (ii) the Quarterly Reports on Form 10-Q for the quarters ended September
26, 1997, December 31, 1997 and March 27, 1998 and (iii) the Current Reports on
Form 8-K dated July 29, 1997, August 13, 1997, October 14, 1997, October 28,
1997, January 14, 1998, January 15, 1998, January 21, 1998, January 30, 1998,
April 1, 1998, April 6, 1998, April 15, 1998 and June 15, 1998. The description
of the Common Stock, which is registered under Section 12 of the Exchange Act,
is set forth under the caption "Description of Capital Stock" contained in the
Company's Registration Statement on Form 10, dated September 19, 1985, and is
also hereby incorporated herein by reference. All documents filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of the offering of the
Securities shall be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all documents incorporated by reference into this Prospectus
except the exhibits to such documents (unless such exhibits are specifically
incorporated by reference in such documents). Requests for such copies should be
directed to Corporate Communications Department, The Bear Stearns Companies
Inc., 245 Park Avenue, New York, New York 10167; telephone number (212)
272-2000.
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4
<PAGE>
THE COMPANY
The Company is a holding company that, through its principal subsidiaries,
Bear, Stearns & Co. Inc. ("Bear Stearns") and Bear, Stearns Securities Corp.
("BSSC"), is a leading United States investment banking, securities trading and
brokerage firm serving corporations, governments, institutional and individual
investors worldwide. The business of the Company includes: market-making and
trading in corporate, United States Government, government-agency,
mortgage-related, asset-backed and municipal securities; trading in options,
futures, foreign currencies, interest-rate swaps and other derivative products;
securities and commodities arbitrage; securities, options and commodities
brokerage; underwriting and distributing securities; providing securities
clearance services; financing customer activities; securities lending; arranging
for the private placement of securities; assisting in mergers, acquisitions,
restructurings and leveraged transactions; providing other financial advisory
services; making principal investments in leveraged acquisitions; acting as
specialist on the floor of the New York Stock Exchange ("NYSE"); providing
fiduciary and other services, such as real estate brokerage, investment
management and investment advisory; and securities research.
The Company's business is conducted from its principal offices in New York
City; from domestic regional offices in Atlanta, Boston, Chicago, Dallas, Los
Angeles and San Francisco; from representative offices in Beijing, Geneva, Hong
Kong, Lugano and Shanghai; through international subsidiaries in Buenos Aires,
Dublin, Hong Kong, London, Paris, Sao Paulo, Singapore and Tokyo; and through
joint ventures with other firms in Belgium, Madrid, Paris and the Philippines.
The Company's foreign offices provide services and engage in investment
activities involving foreign clients and international transactions. The Company
provides trust-company services through its subsidiary, Custodial Trust Company,
located in Princeton, New Jersey.
Bear Stearns and BSSC are broker-dealers registered with the Commission.
They also are members of the NYSE, all other principal United States securities
and commodities exchanges, the National Association of Securities Dealers, Inc.
(the "NASD") and the National Futures Association. Bear Stearns is a "primary
dealer" in United States government securities, as designated by the Federal
Reserve Bank of New York.
The Company is incorporated in Delaware. The principal executive office of
the Company is located at 245 Park Avenue, New York, New York 10167; its
telephone number is (212) 272-2000.
SELLING SHAREHOLDERS
This Prospectus relates to shares of Common Stock that have been acquired
under the Plan by the Selling Shareholders.
The Selling Shareholders are former employees of the Company and were
Senior Managing Directors of Bear Stearns. The following table sets forth the
name and principal position or positions over the past three years with the
Company of each Selling Shareholder (other than such Selling Shareholder's prior
position as a Senior Managing Director of Bear Stearns) and (a) the number of
shares of Common Stock each Selling Shareholder beneficially owned as of June 5,
1998; (b) the number of shares of Common Stock acquired by each Selling
Shareholder pursuant to the Plan and being registered hereby, some or all of
which shares may be sold pursuant to this Prospectus; and (c) the number of
shares of Common Stock and the percentage, if 1% or more, of the total class of
Common Stock outstanding to be beneficially owned by each Selling Shareholder
following this offering, assuming the sale pursuant to this offering of all
Shares acquired by such Selling Shareholder pursuant to the Plan and registered
hereby. There is no assurance that any of the Selling Shareholders will sell any
or all of the Shares offered by them hereunder.
This table reflects all Selling Shareholders who are eligible to resell and
the number of Shares available to be resold by such Selling Shareholders
5
<PAGE>
<TABLE>
<CAPTION>
Selling Shareholders, Addresses of Shares Beneficially Owned
Selling Shareholders and Prior Shares Beneficially Shares Covered by After This Offering
Principal Positions with the Company Owned (1)(2)(3) this Prospectus Number Percent
----------------------------------- --------------- --------------- --------------
<S> <C> <C> <C>
Stephen Cunningham 62,936 57,694 5,242 *
24 Greenbriar Lane
Greenwich, CT 06831
Neil Eigen 13,303 13,051 252 *
143 N. Passaic Avenue
Chatham, NJ 07928
Peter Fox 2,215 2,097 118 *
1118 W. Armory Street
Champaign, IL 61821
N. Richard Greenfield 21,729 21,729 0 0
62 Parker Street
Norwell, MA 02061
Michael Hellenbrand 31,358 31,358 0 0
424 West End Avenue
Apartment 17B
New York, NY 10024
James Marver 21,845 2,465 19,380 *
3212 Jackson Street
San Francisco, CA 94118
Brian Murray 5,449 *
57 Fairway Terrace
Norwood, NJ 07648
John Otto, Jr. 17,522 17,522 0 0
375 Round Hill Road
Greenwich, CT 06831
R. Blaine Roberts 233,539 233,108 431 *
7100 Armat Drive
Behesda, MD 20817
6
<PAGE>
Selling Shareholders, Addresses of Shares Beneficially Owned
Selling Shareholders and Prior Shares Beneficially Shares Covered by this After This Offering
Principal Positions with the Company Owned (1)(2)(3) Prospectus Number Percent
----------------------------------- --------------- ---------- --------------
Milton Rubin 89,272 11,340 77,932 *
98 Hill Drive
Oyster Bay, NY 11771
Greg Stoupnitzky 470 *
35 Seville Avenue
Rye, NY 10580
</TABLE>
7
<PAGE>
----------------------
* Less than one (1%) percent.
(a) Former officer of the Company.
1. Nature of beneficial ownership is sole voting and investment power except
as indicated in subsequent notes.
2. Includes shares of Common Stock owned by the Selling Stockholders through
The Bear Stearns Companies Inc. Employee Stock Ownership Plan (the "ESOP").
Shares owned by the ESOP that are allocated to former employees' accounts
are voted on a "pass through" basis by the former employees to whose
accounts such shares are allocated. Shares not allocated to accounts and
allocated shares for which voting directions have not been received are
voted by the trustee of the ESOP in proportion to the manner in which
allocated shares are directed to be voted by participants in the ESOP.
3. Does not include an aggregate of 893,226 shares underlying units credited
under the Plan to the indicated individuals because such individuals
neither have the present ability to direct the vote nor the ability to
dispose of such shares and will not have such rights within 60 days.
8
<PAGE>
PLAN OF DISTRIBUTION
The Shares are being sold by the Selling Shareholders acting as principals
for their own account. The Company will not be entitled to any proceeds from the
sale of any Shares sold by the Selling Shareholders as part of this offering.
. The Selling Shareholders or their pledgees, donees, transferees or other
successors in interest (including Bear Stearns to the extent that shares may be
sold from a margin account) may sell the Shares from time to time in one or more
transactions (which may involve one or more block transactions) on the NYSE, in
sales occurring in the public market off such exchange, in privately negotiated
transactions, or in a combination of such transactions; each sale may be made
either at market prices prevailing at the time of such sale or at negotiated
prices; some or all of the Shares may be sold through brokers acting on behalf
of the Selling Shareholders or to dealers for resale by such dealers; and in
connection with such sales, such brokers or dealers may receive compensation in
the form of discounts, fees or commissions from the Selling Shareholders and/or
the purchasers of such shares for whom they may act as broker or agent (which
discounts, fees or commissions are not anticipated to exceed those customary in
the types of transactions involved). However, any securities covered by this
Prospectus which qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than pursuant to this Prospectus. All expenses
of registration incurred in connection with this offering are being borne by the
Company, but all brokerage commissions and other expenses incurred by individual
Selling Shareholders will be borne by each such Selling Shareholder.
The Selling Shareholders and any dealer acting in connection with the
offering or any broker executing selling orders on behalf of the Selling
Shareholders may be deemed to be "underwriters" within the meaning of the
Securities Act, in which event any profit on the sale of any or all of the
Shares by them and any discounts or concessions received by any such brokers or
dealers may be deemed to be underwriting discounts and commissions under the
Securities Act.
Any broker or dealer participating in any distribution of Shares in
connection with this offering may be deemed to be an "underwriter" within the
meaning of the Securities Act and may be required to deliver a copy of this
Prospectus, including a Prospectus Supplement, to any person who purchases any
of the Shares from or through such broker or dealer.
Bear Stearns may act as a broker on behalf of one or more of the Selling
Shareholders in connection with the offering of the Shares and may receive fees
or commissions in connection therewith (which fees or commissions are not
expected to exceed those customary in the types of transactions involved). Bear
Stearns is a member firm of the NASD and its activities in connection with the
offering will conform to the requirements set forth in Rule 2720 of the NASD
Conduct Rules.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold only through registered or licensed brokers
or dealers.
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this prospectus by reference from the Company's 1997
Annual Report on Form 10-K have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports, which are incorporated herein
by reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
9
<PAGE>
VALIDITY OF THE COMMON STOCK
The validity of the Common Stock will be passed upon for the Company by
Weil, Gotshal & Manges LLP, New York, New York.
10
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses in connection with the issuance
and distribution of the securities being registered. All amounts shown are
estimated, except the SEC registration fee.
SEC registration fee ............................................$ 17,623
Accounting fees................................................... 5,000
Legal fees and expenses........................................... 10,000
Miscellaneous..................................................... 1,377
========
Total $ 34,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to section 145 of the Delaware General Corporation Law
which provides for indemnification of directors and officers in certain
circumstances.
Article VIII of the registrant's Restated Certificate of Incorporation
provides for indemnification of directors and officers of the registrant against
certain liabilities incurred as a result of their duties as such and also
provides for the elimination of the monetary liability of directors for certain
actions as such. The registrant's Restated Certificate of Incorporation, as
amended, is filed as Exhibit 4(a)(1) to this Registration Statement.
The registrant has in effect reimbursement insurance for directors' and
officers' liability claims and directors' and officers' liability insurance
indemnifying, respectively, the registrant and its directors and officers within
specific limits for certain liabilities incurred by them, subject to the
conditions and exclusions and deductible provisions of the policies.
For the undertaking with respect to indemnification, see Item 17 herein.
ITEM 16. EXHIBITS.
4(a)(1) -- Restated Certificate of Incorporation of the Registrant.
4(a)(2) -- Certificate of Stock Designation relating to the
Registrant's Adjustable Rate Cumulative Preferred Stock,
Series A (incorporated by reference to Exhibit 4(a)(6)
to the Registration Statement on Form S-8 (File No.
33-49979)).
4(a)(3) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series B
(incorporated by reference to Exhibit 4(a)(12) to the
Registration Statement on Form S-8 (File No. 33-49979)).
II-1
<PAGE>
4(a)(4) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series C
(incorporated by reference to Exhibit 4(a)(13) to the
Registration Statement on Form S-8 (File No. 33-49979)).
4(a)(5) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series E
(incorporated by reference to Exhibit 1.4 to the
Registration Statement on Form 8-A filed on January 14,
1998.)
4(a)(6) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series F
(incorporated by reference to Exhibit 1.4 to the
Registration Statement on Form 8-A filed on April 20,
1998.)
4(b) -- Amended and Restated By-laws of the Registrant (filed as
Exhibit (3)(b) to the Registrant's Quarterly Report on
Form 10-Q for the quarterly period ended December 31,
1997).
5 -- Opinion of Weil, Gotshal & Manges LLP.*
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5).
24 -- Power of attorney (included in the signature pages to
the Registration Statement).
- - -------------------------
* To be filed by amendment
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) to reflect in the Prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value of securities offered would not
exceed that which was registered), and any deviation from the low or high and of
the estimated maximum offering range, may be reflected in the form of prospectus
filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration Statement;
II-2
<PAGE>
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in this Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the Securities offered therein, and the
offering of such Securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the Securities being registered hereby which remain unsold at the termination
of the offering.
(d) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act of 1934, as amended, that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the securities offered herein and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions referred to in Item 15 of this
registration statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered hereby, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in such Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant hereby certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on the 17th day of
June, 1998.
THE BEAR STEARNS COMPANIES INC.
By: /s/ William J. Montgoris
--------------------------------
William J. Montgoris
Chief Operating Officer
We, the undersigned officers and directors of The Bear Stearns
Companies Inc., hereby severally constitute Alan C. Greenberg, James E. Cayne
and William J. Montgoris, and any of them singly, our true and lawful attorneys
with full power to them, and each of them singly, to sign for us and in our name
in the capacities indicated below, any and all amendments to this registration
statement on Form S-3 filed by The Bear Stearns Companies Inc. with the
Securities and Exchange Commission, and generally to do all such things in our
name and behalf in such capacities to enable The Bear Stearns Companies Inc. to
comply with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, and we hereby ratify and
confirm our signatures as they may be signed by our said attorneys, or any of
them, to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- - --------- ----- ----
Chairman of the Board and ,1998
- - --------------------------- Director
Alan C. Greenberg
/s/ James E. Cayne President and Chief June 17, 1998
- - --------------------------- Executive Officer
James E. Cayne (Principal Executive
Officer); Director
Director , 1998
- - ---------------------------
Carl D. Glickman
/s/ Donald J. Harrington Director June 17, 1998
- - ---------------------------
Donald J. Harrington
II-4
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/s/ William L. Mack Director June 17, 1998
- - ---------------------------
William L. Mack
Director , 1998
- - ---------------------------
Frank T. Nickell
Director , 1998
- - ---------------------------
Frederic V. Salerno
/s/ Vincent Tese Director June 17, 1998
- - ---------------------------
Vincent Tese
/s/ Fred Wilpon Director June 17, 1998
- - ---------------------------
Fred Wilpon
/s/ Samuel L. Molinaro Jr. Senior Vice President- June 17, 1998
- - --------------------------- Finance and
Samuel L. Molinaro Jr. Chief Financial Officer
(Principal Accounting
Officer and Principal
Financial Officer)
II-5
<PAGE>
Exhibit Index
-------------
Exhibit
Number Description
------ -----------
4(a)(1) -- Restated Certificate of Incorporation of the Registrant.
4(a)(2) -- Certificate of Stock Designation relating to the
Registrant's Adjustable Rate Cumulative Preferred Stock,
Series A (incorporated by reference to Exhibit 4(a)(6)
to the Registration Statement on Form S-8 (File No.
33-49979)).
4(a)(3) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series B
(incorporated by reference to Exhibit 4(a)(12) to the
Registration Statement on Form S-8 (File No. 33-49979)).
4(a)(4) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series C
(incorporated by reference to Exhibit 4(a)(13) to the
Registration Statement on Form S-8 (File No. 33-49979)).
4(a)(5) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series E
(incorporated by reference to Exhibit 1.4 to the
Registration Statement on Form 8-A filed on January 14,
1998.)
4(a)(6) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series F
(incorporated by reference to Exhibit 1.4 to the
Registration Statement on Form 8-A filed on April 20,
1998.)
4(b) -- Amended and Restated By-laws of the Registrant (filed as
Exhibit (3)(b) to the Registrant's Quarterly Report on
Form 10-Q for the quarterly period ended December 31,
1997).
5 -- Opinion of Weil, Gotshal & Manges LLP.*
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5).
24 -- Power of attorney (included in the signature pages to
the Registration Statement).
- - -------------------------
* To be filed by amendment
EXHIBIT 4(a)(1)
RESTATED CERTIFICATE OF INCORPORATION
of
THE BEAR STEARNS COMPANIES INC.
THE BEAR STEARNS COMPANIES INC., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
I. The name of the corporation is THE BEAR STEARNS COMPANIES INC., and
the name under which the corporation was originally incorporated is THE BEAR
STEARNS CORPORATION (DELAWARE).
The date of filing of its original Certificate of Incorporation with
the Secretary of State was August 21, 1985.
II. This Restated Certificate of Incorporation filed with the Secretary
of State only restates and integrates and does not further amend the provisions
of the Certificate of Incorporation of this corporation as heretofore amended or
supplemented and there is no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation.
III. The text of the Certificate of Incorporation as amended or
supplemented heretofore is hereby restated without further amendments or changes
to read as herein set forth in full:
ARTICLE I
NAME
The name of the corporation (hereinafter referred to as the
"Corporation") is
THE BEAR STEARNS COMPANIES INC.
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ARTICLE II
ADDRESS: REGISTERED AGENT
The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle. The name of its registered agent at such
address is THE CORPORATION TRUST COMPANY.
ARTICLE III
PURPOSES
The nature of the business and purposes to be conducted or
promoted by the Corporation are to engage in, carry on and conduct any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV
CAPITALIZATION
The total number of shares which the Corporation shall have
authority to issue is Two Hundred Ten Million (210,000,000) shares, consisting
of Ten Million (10,000,000) shares of Preferred Stock, of the par value of One
Dollar ($1.00) per share (hereinafter called "Preferred Stock"), and Two Hundred
Million (200,000,000) shares of Common Stock, of the par value of One Dollar
($1.00) per share (hereinafter called "Common Stock").
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ARTICLE V
RIGHTS OF STOCKHOLDERS
The Preferred Stock and the Common Stock shall have the
following voting powers, designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or
restrictions.
A. Preferred Stock.
1. The Preferred Stock may be issued from time to time in one
or more series, each of such series to have such voting powers (full or limited
or without voting powers), designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions thereof as are stated and expressed herein, or in a resolution
or resolutions providing for the issue of such series adopted by the Board of
Directors as hereinafter provided.
2. Authority is hereby granted to the Board of Directors,
subject to the provisions of this Article V, to create one or more series of
Preferred Stock and, with respect to each such series, to fix by resolution or
resolutions providing for the issue of such series:
(a) the number of shares to constitute such series and the
distinctive designation thereof;
(b) the dividend rate on the shares of such series, the
dividend payment dates, the periods in respect of which dividends are payable
("Dividend Periods"), whether such dividends shall be cumulative and, if
cumulative, the date or dates from which dividends shall accumulate;
(c) whether the shares of such series shall be redeemable and,
if redeemable, on what terms, including the redemption price or prices which the
shares of such series shall be entitled to receive upon the redemption thereof;
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(d) whether the shares of such series shall be subject to the
operation of retirement or sinking funds to be applied to the purchase or
redemption of such shares for retirement and, if such retirement or sinking fund
or funds be established, the amount thereof and the terms and provisions
relative to the operation thereof;
(e) whether the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the Corporation and
the conversion price or prices or rate or rates, or the rate or rates at which
such exchange may be made, with such adjustments, if any, as shall be stated and
expressed or provided in such resolution or resolutions;
(f) the preferences, if any, and the amounts thereof, which
the shares of such series shall be entitled to receive upon the voluntary or
involuntary dissolution, liquidation or winding up of the Corporation;
(g) the voting power, if any, of the shares of such series;
and
(h) such other terms, conditions, special rights and
provisions as may seem advisable to the Board of Directors.
Notwithstanding the fixing of the number of shares
constituting a particular series upon the issuance thereof, the Board of
Directors at any time thereafter may authorize the issuance of additional shares
of the same series.
3. No dividend shall be declared and set apart for payment on
any series of Preferred Stock in respect of any Dividend Period unless there
shall likewise be or have been paid, or declared and set apart for payment, on
all shares of Preferred Stock of each other series entitled to cumulative
dividends at the time outstanding which rank equally as to dividends with the
series in question, dividends ratably in accordance with the sums which would be
payable on the said shares through the end of the last preceding Dividend Period
if all dividends were declared and paid in full.
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4. If, upon the dissolution, liquidation or winding up of the
Corporation, the assets of the Corporation distributable among the holders of
any one or more series of Preferred Stock which (i) are entitled to a preference
over the holders of the Common Stock upon such dissolution, liquidation or
winding up, and (ii) rank equally in connection with any such distribution,
shall be insufficient to pay in full the preferential amount to which the
holders of such shares shall be entitled, then such assets, or the proceeds
thereof, shall be distributed among the holders of each such series of the
Preferred Stock ratably in accordance with the sums which would be payable on
such distribution if all sums payable were discharged in full.
5. Neither the merger or consolidation of the Corporation with
or into another corporation nor any sale, lease, conveyance or other disposition
of all or substantially all of the property, business or assets of the
Corporation shall be deemed to be a dissolution, liquidation or winding up of
the Corporation within the meaning of this Article V.
6. In the event that the Preferred Stock of any series shall
be redeemable, then, at the option of the Board of Directors, the Corporation
may, at such time or times as may be specified herein or by a resolution or
resolutions of the Board of Directors as provided in paragraph (c) of Section 2
of Part A of this Article V, redeem all, or any number less than all, of the
outstanding shares of such series at the redemption price thereof and on the
other terms fixed herein or by a resolution or resolutions of the Board of
Directors as provided in said paragraph (c).
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7. Subject to any applicable provisions of the General
Corporation Law of the State of Delaware, shares of Preferred Stock that have
been issued and reacquired in any manner by the Corporation (excluding, until
the Corporation elects to retire them, shares that are held as treasury shares
but including shares redeemed and shares purchased and retired, whether through
the operation of a retirement or sinking fund, or otherwise) may have the status
of authorized and unissued shares of Preferred Stock, and may be reissued as a
part of the series of which they were originally a part or be reclassified and
reissued as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors or as part of any other series of
Preferred Stock, all subject to the conditions or restrictions on issuance set
forth in any resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of Preferred Stock.
B. Common Stock.
1. Subject to the provisions of Part A of this Article V,
holders of Common Stock shall be entitled to receive such dividends as may be
declared thereon from time to time by the Board of Directors in its discretion
from any assets legally available for the payment of dividends.
2. In the event of the dissolution, liquidation or winding up
of the Corporation, whether voluntary or involuntary, after distribution to the
holders of all shares of Preferred Stock which shall be entitled to a preference
over the holders of Common Stock of the full preferential amounts to which the
holders of Preferred Stock are entitled, the holders of Common Stock shall be
entitled to share ratably in the distribution of the assets of the Corporation
or the proceeds thereof.
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3. Except as herein otherwise expressly provided and as
otherwise required by law, all shares of Common Stock shall have equal voting
rights and the holders of such shares shall have one vote, in person or by
proxy, for each share thereof held.
C. Preemptive Rights.
No holder of stock of any class of the Corporation shall be
entitled to any preemptive right to subscribe for or purchase any shares of
stock of any class or series, whether now or hereafter authorized, or any bonds,
debentures or other securities or evidences of indebtedness, whether or not
convertible into or exchangeable for stock, but shares of stock of any class, or
bonds, debentures or other securities or evidences of indebtedness may be
issued, sold or otherwise disposed of by the Board of Directors on such terms
and for such consideration, so far as may be permitted by law, and to such
person or persons as the Board of Directors in its absolute discretion may deem
advisable.
ARTICLE VI
ACTION BY STOCKHOLDERS;
STOCKHOLDERS' MEETINGS
1. Any action required or permitted to be taken by the holders
of the issued and outstanding stock of the Corporation may be effected solely at
an annual or special meeting of stockholders duly called and held in accordance
with law and this Certificate of Incorporation, and the power of stockholders,
or any of them, to consent in writing, without a meeting, to the taking of any
such action is hereby specifically denied.
PAGE 7
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2. Except as otherwise provided by law, at any annual or
special meeting of stockholders only such business shall be conducted as shall
have been properly brought before the meeting in accordance with the provisions
of this Certificate of Incorporation and the By-laws of the Corporation. In
order to be properly brought before the meeting, such business must have either
been (a) specified in the written notice of the meeting (or any supplement
thereto) given to stockholders of record on the record date for such meeting by
or at the direction of the Board of Directors, (b) brought before the meeting at
the direction of the Board of Directors or the Chairman of the meeting, or (c)
specified in a written notice given by or on behalf of a stockholder of record
on the record date for such meeting entitled to vote thereat or a duly
authorized proxy for such stockholder, in accordance with all of the following
requirements. A notice referred to in clause (c) of this Section must be
delivered personally to, or mailed to and received at, the principal executive
office of the Corporation, addressed to the attention of the Secretary, in the
case of business to be brought before a special meeting of stockholders, not
more than ten (10) days after the date of the initial notice referred to in
clause (a) of this Section, and, in the case of business to be brought before an
annual meeting of stockholders, not less than ten (10) days prior to the first
anniversary date of the initial notice referred to in clause (a) of this Section
of the previous year's annual meeting; provided, however, that such notice shall
not be required to be given more than seventy-five (75) days prior to an annual
meeting of stockholders. Such notice referred to in clause (c) of this Section
shall set forth (i) a full description of each such item of business proposed to
be brought before the meeting, (ii) the name and address of the person proposing
to bring such business before the meeting, (iii) the class and number of shares
held of record, held beneficially and represented by proxy by such person as of
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the record date for the meeting (if such date has then been made publicly
available) and as of the date of such notice, (iv) if any item of such business
involves a nomination for director, all information regarding each such nominee
that would be required to be set forth in a definitive proxy statement filed
with the Securities and Exchange Commission pursuant to Section 14 of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or any
successor thereto, and the written consent of each such nominee to serve if
elected, and (v) all other information that would be required to be filed with
the Securities and Exchange Commission if, with respect to the business proposed
to be brought before the meeting, the person proposing such business were a
participant in a solicitation subject to Section 14 of the Exchange Act, or any
successor thereto. No business shall be brought before any annual or special
meeting of stockholders of the Corporation otherwise than as provided in this
Section 2.
3. The annual meeting of stockholders of the Corporation for
the election of directors and the transaction of such other business as may be
brought before such meeting in accordance with this Certificate of Incorporation
shall be held at such hour and on such business day in each year as may be
determined by resolution adopted by the affirmative vote of a majority of the
entire Board of Directors. If the election of directors shall not be held on the
date designated therefor or at an adjournment of a meeting convened on such
date, the Board of Directors by resolution or resolutions adopted by the
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affirmative vote of a majority of the entire Board of Directors shall cause to
be held a special meeting of stockholders for such purpose as soon thereafter as
is reasonably practicable. Special meetings of stockholders other than as above
provided may be called at any other time only at the direction of the Board of
Directors by resolution adopted by the affirmative vote of a majority of the
entire Board of Directors or by such other person or persons as may be specified
in this Certificate of Incorporation. Annual and special meetings of
stockholders shall not be called or held otherwise than as herein provided.
Except as otherwise provided by law or by this Certificate of Incorporation, at
any meeting of stockholders of the Corporation the presence in person or by
proxy of the holders of a majority in voting power of the outstanding stock of
the Corporation entitled to vote shall constitute a quorum for the transaction
of business brought before the meeting in accordance with this Certificate of
Incorporation and, a quorum being present, the affirmative vote of the holders
of a majority in voting power present in person or represented by proxy and
entitled to vote shall be required to effect action by stockholders; provided,
however, that the affirmative vote of a plurality in voting power present in
person or represented by proxy and entitled to vote shall be required to effect
elections of directors. Election of directors need not be by written ballot
except to the extent provided in the By-laws of the Corporation. At every
meeting of stockholders, the Chairman of the Board of Directors or, in the
absence of such officer, the Chief Executive Officer, and in the absence of the
Chairman of the Board of Directors and the Chief Executive Officer such officer
or other person as shall be designated in accordance with the By-laws of the
Corporation, shall act as Chairman of the meeting. The Chairman of the meeting
shall have sole authority to prescribe the agenda and rules of order for the
conduct of each meeting of stockholders and to determine all questions arising
thereat relating to the order of business and the conduct of the meeting, except
as otherwise required by law.
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ARTICLE VII
BOARD OF DIRECTORS
1. The number of directors of the Corporation shall not be
fewer than eight (8) nor more than forty (40) (provided, however, that such
maximum number may be increased from time to time to the extent provided for in
any resolution or resolutions adopted by the Board of Directors providing for
the issuance of any series of Preferred Stock) and within such limits shall be
determined, and may be changed from time to time, solely by resolution adopted
by the affirmative vote of a majority of the entire Board of Directors (such
term meaning, for all purposes of this Certificate of Incorporation, the total
number of directors of the Corporation as last determined by the Board of
Directors in accordance herewith, including any directorships that are vacant
for any reason). Except as otherwise provided by law or by this Certificate of
Incorporation, a majority of the directors in office at the time of a duly
assembled meeting shall be necessary to constitute a quorum for the transaction
of business, and the act of a majority of the directors present at such meeting
shall be the act of the Board of Directors.
2. Any vacancy in the Board of Directors caused by death,
resignation, removal, disqualification or any other cause (other than an
increase in the number of directors) may be filled solely by resolution adopted
by the affirmative vote of a majority of the directors then in office, though
less than a quorum of the entire Board of Directors, or by a sole remaining
director; and a majority of the entire board may fill a vacancy which results
from an increase in the number of directors. A director elected to fill a
vacancy shall serve for the balance of the term of the replaced director.
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3. In furtherance of and not in limitation of the powers
conferred by statute, the Board of Directors of the Corporation, from time to
time (after adoption by the undersigned of the original By-laws of the
Corporation), may make, amend or repeal By-laws of the Corporation; provided,
that any By-laws made, amended or repealed by the Board of Directors may be
amended or repealed, and that any By-laws may be made, by the stockholders of
the Corporation.
4. The By-laws may confer upon the Board of Directors powers
in addition to the foregoing and in addition to the powers and authorities
expressly conferred upon them by law, but only to the extent permitted by law
and by the provisions of this Certificate of Incorporation.
ARTICLE VIII
INDEMNIFICATION
The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or an officer
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including, without limitation, attorneys' fees and disbursements), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding to the fullest extent and in the
manner set forth in and permitted by the General Corporation Law of the State of
Delaware and any other applicable law, as from time to time in effect.
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The indemnification provided by this Article VIII shall not be
deemed exclusive of any other rights to which a person seeking indemnification
may be entitled under any statute, by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, member,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article VIII
or of the General Corporation Law of the State of Delaware.
A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived any
improper personal benefit. Any repeal or modification of the foregoing sentence
by the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
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For purposes of this Article VIII, references to the
"Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, members,
employees or agents, so that any person who is or was a director, officer,
member, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
ARTICLE IX
TRANSACTIONS INVOLVING AN INTERESTED STOCKHOLDER
1. (a) In addition to any affirmative vote required by law or
this Certificate of Incorporation, and except as otherwise expressly provided in
Section 2 of this Article IX:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with, or any exchange of shares of
the Corporation or any Subsidiary pursuant to a plan of exchange
involving, (x) any Interested Stockholder (as hereinafter defined) or
(y) any other corporation (whether or not itself an Interested
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Stockholder) which is, or after such merger or consolidation would be,
an Affiliate or Associate (as hereinafter defined) of an Interested
Stockholder;
(ii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of transactions)
to or with an Interested Stockholder or any Affiliate or Associate of
an Interested Stockholder of any assets, securities or commitments of
the Corporation or any Subsidiary having an aggregate Fair Market
Value (as hereinafter defined) of Five Million Dollars ($5,000,000) or
more;
(iii) any reclassification of securities (including any
combination of shares or reverse stock split), or recapitalization or
reorganization of the Corporation, or any merger or consolidation of
the Corporation with or into any Subsidiary or any other transaction
(whether or not with or into or otherwise involving an Interested
Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share owned directly or indirectly by any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder, of the outstanding shares of any class of equity
securities or securities convertible into equity securities of the
Corporation or any Subsidiary;
(iv) the issuance, transfer or sale by the Corporation or by
any Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate or Associate of any Interested
Stockholder in exchange for cash, securities or other property (or a
combination thereof) having an aggregate Fair Market Value of, and/or
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involving, an aggregate amount of Five Million Dollars ($5,000,000) or
more;
(v) the adoption of any plan or proposal for the
dissolution, liquidation or winding up of the Corporation if, as of
the record date for the determination of stockholders entitled to
notice thereof and to vote thereon, any person shall be an Interested
Stockholder; or
(vi) any agreement, contract or other arrangement providing
for any one or more of the actions specified in the foregoing clauses
(i) through (v); shall require the affirmative vote of the holders of
not less than eighty percent (80%) in voting power of the outstanding
Common Stock and Preferred Stock of the Corporation entitled to vote
generally in the election of directors (for purposes of this Article
IX, the "Voting Stock"), voting together as a single class. Each such
affirmative vote shall be required notwithstanding the fact that no
vote may be required, or that a lesser percentage may be specified, by
law or in any agreement with any national securities exchange or
otherwise.
(b) The term "Significant Transaction" used in this Article IX
shall mean any transaction that is referred to in any one or more of clauses (i)
through (vi) of the foregoing paragraph (a) of this Section 1.
2. The provisions of Section 1 of this Article IX shall not be
applicable to any Significant Transaction, and such Significant Transaction
shall require only such affirmative vote as is required by law or any other
provision of the Certificate of Incorporation, if all of the conditions
specified in either of the following paragraphs (a) or (b) are met:
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(a) The Significant Transaction shall have been approved by a
majority of the Continuing Directors (as hereinafter defined), voting separately
and as a subclass of directors; or
(b) The transaction constituting the Significant Transaction
shall provide for a consideration to be received by the holders of shares of
Common Stock in exchange for their shares, and all of the following six
conditions shall have been met:
(i) the aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the Significant
Transaction of consideration other than cash to be received per share
by holders of the Common Stock in such Significant Transaction shall
be at least equal to the higher of the following:
(x) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid in order to acquire any shares of
Common Stock beneficially owned by the Interested Stockholder
which were acquired (A) within the two-year period immediately
prior to the first public announcement of the proposed
Significant Transaction (the "Announcement Date") or (B) in the
transaction in which it became an Interested Stockholder,
whichever is higher; and
(y) the Fair Market Value per share of Common
Stock on the Announcement Date or on the date on which the
Interested Stockholder became an Interested Stockholder (the
"Determination Date"), whichever is higher.
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All per share prices shall be adjusted to reflect any
intervening stock splits, stock dividends, share combinations
and reverse stock splits.
(ii) If the transaction constituting the Significant
Transaction shall also provide for a consideration to be received by
holders of any class or series of outstanding Voting Stock (other than
Common Stock) in exchange for their shares, the aggregate amount of
the cash and the Fair Market Value as of the date of the consummation
of the Significant Transaction of consideration other than cash to be
received per share by holders of shares of such Voting Stock, shall be
at least equal to the highest of the following, whether or not the
Interested Stockholder beneficially owns any shares of a particular
class of Voting Stock:
(x) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid in order to acquire any shares of
such class or series of Voting Stock beneficially owned by the
Interested Stockholder which were acquired (A) within the
two-year period immediately prior to the Announcement Date or (B)
in the transaction in which it became an Interested Stockholder,
whichever is higher;
(y) (if applicable) the highest preferential
amount per share to which the holders of shares of such class or
series of Voting Stock are entitled in the event of any voluntary
or involuntary dissolution, liquidation or winding up of the
Corporation; and
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(z) the Fair Market Value per share of such class
or series of Voting Stock on the Announcement Date or on the
Determination Date, whichever is higher. All per share prices
shall be adjusted to reflect any intervening stock splits, stock
dividends, share combinations and reverse stock splits.
(iii) The consideration to be received by holders of a
particular class or series of outstanding Voting Stock (including
Common Stock) shall be in cash or in the same form as was previously
paid by the Interested Stockholder for shares of such class or series
of Voting Stock. If the Interested Stockholder beneficially owns
shares of any class or series of Voting Stock which were acquired with
varying forms of consideration, the form of consideration to be
received by holders of such class or series of Voting Stock shall be
either cash or the form used to acquire Voting Stock beneficially
owned by it.
(iv) After such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of such
Significant Transaction: (x) except as approved by a majority of the
Continuing Directors, there shall have been no failure to declare and
pay at the regular date therefor any full quarterly dividends (whether
or not cumulative) on any outstanding shares of Preferred Stock; (y)
there shall have been (A) no reduction in the annual rate of dividends
paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock) except as approved by a majority of
the Continuing Directors, and (B) an increase in such annual rate of
dividends (as necessary to prevent any such reduction) in the event of
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any reclassification (including any share combination or reverse stock
split), recapitalization, reorganization or any similar transaction
which has the effect of reducing the number of outstanding shares of
Common Stock, unless the failure so to increase such annual rate is
approved by a majority of the Continuing Directors, and (z) such
Interested Stockholder shall not have become the beneficial owner of
any shares of Voting Stock except as part of the transaction in which
it became an Interested Stockholder.
(v) After such Interested Stockholder has become an
Interested Stockholder, such Interested Stockholder shall not have
received the benefit, directly or indirectly (except proportionately
as a stockholder), of any loans, advances, guarantees, credits or
other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Significant Transaction or
otherwise.
(vi) A proxy or information statement describing the
proposed Significant Transaction and complying with the requirements
of the Exchange Act and the rules and regulations thereunder (or any
subsequent provisions replacing such Exchange Act, rules or
regulations) shall be mailed to all stockholders of the Corporation at
least thirty (30) days prior to the consummation of such Significant
Transaction (whether or not such proxy or information statement is
required to be mailed pursuant to such Act, rules or regulations, or
subsequent provisions replacing any of the foregoing).
3. For the purposes of Article IX:
(a) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act, as in effect on
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September 5, 1985 (the term "registrant" in said Rule 12b-2 meaning,
in this case, the Corporation).
(b) "beneficially owned" shall have the meaning
ascribed to such term in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act, as in effect on September 5, 1985.
(c) "Continuing Director" means any member of the Board
of Directors who was a member of the Board of Directors on September
5, 1985 or who is elected to the Board of Directors after September 5,
1985 upon the recommendation of a majority of the Continuing
Directors, voting separately and as a subclass of directors on such
recommendation.
(d) "Fair Market Value" means: (x) in the case of
stock, the highest closing sale price during the thirty (30) day
period immediately preceding the date in question of a share of such
stock on the Composite Tape for New York Stock Exchange-Listed Stocks,
or, if such stock is not quoted on such Composite Tape, on the New
York Stock Exchange, or if such stock is not listed on such exchange,
on the principal United States securities exchange registered under
the Exchange Act on which such stock is listed, or, if such stock is
not listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the thirty (30) day
period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system
then in use or, if no such quotations are available, the fair market
value on the date in question of a share of such stock as determined
in good faith by majority vote of the Continuing Directors; and (y) in
the case of property other than cash or stock, the fair market value
of such property on the date in question as determined in good faith
by majority vote of the Continuing Directors.
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(e) "Interested Stockholder" at any particular time
means any person (other than the Corporation or any Subsidiary and
other than any pension, profit-sharing, employee stock ownership or
other employee benefit plan of the Corporation or any Subsidiary or
any trustee of or fiduciary with respect to any such plan when acting
in such capacity) who or which:
(i) is at such time the beneficial owner, directly
or indirectly, of shares of the Corporation having twenty percent
(20%) or more of the votes entitled to be cast by the holders of
all outstanding shares of Voting Stock;
(ii) at any time within the two-year period
immediately prior to such time was the beneficial owner, directly
or indirectly, of shares of the Corporation having twenty percent
(20%) or more of the votes entitled to be cast by the holders of
all outstanding shares of Voting Stock; or
(iii) is at such time an assignee of or has
otherwise succeeded to the beneficial ownership of any shares of
Voting Stock which were at any time within the two-year period
immediately prior to such time beneficially owned by any
Interested Stockholder, if such assignment or succession shall
have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933; provided, however, that
"Interested Stockholder" shall not mean any person who or which,
as of December 31, 1985, met any of the conditions set forth in
clauses (i), (ii) or (iii).
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(f) "Person" shall mean an individual, a corporation, a
partnership, an association, a joint stock company, a trust, any
unincorporated organization or a government or political subdivision
thereof.
(g) "Subsidiary" means any corporation of which a
majority of any class or series of equity security is owned, directly
or indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Interested Stockholder set forth in (e)
of this Section 3, the term "Subsidiary" shall mean only a corporation
of which a majority of each class or series of equity security is
owned, directly or indirectly, by the Corporation.
(h) A person shall be a "beneficial owner" of any
shares of Voting Stock:
(i) which are beneficially owned, directly or
indirectly, by such person or any of its Affiliates or
Associates;
(ii) which such Person or any of its Affiliates or
Associates has (x) the right to acquire (whether or not such
right is exercisable immediately) pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or
(y) the right to vote pursuant to any agreement, arrangement or
understanding; or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Voting Stock.
(i) For the purposes of determining whether a person is
an Interested Stockholder pursuant to paragraph (e) of this Section 3,
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the number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned by an Interested Stockholder through
application of paragraph (a) of this Section 3 but shall not include
any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise.
(j) In the event of any Significant Transaction in
which the Corporation survives, the phrase "consideration other than
cash to be received" as used in paragraph (b) of Section 2 shall
include the shares of Common Stock and/or the shares of any other
class of outstanding Voting Stock retained by the holders of such
shares.
4. For the purposes of this Article IX, the Continuing
Directors shall have the power and duty to determine, by majority vote, on the
basis of information known to them after reasonable inquiry, (a) whether a
person is an Interested Stockholder, (b) the number of shares of Voting Stock
beneficially owned by any person, (c) whether a person is an Affiliate or
Associate of another and (d) whether the assets, commitments and/or securities
which are the subject of any Significant Transaction have, or the consideration
to be received for the issuance, transfer or sale of securities by the
Corporation or any Subsidiary in any Significant Transaction has, an aggregate
Fair Market Value of Five Million Dollars ($5,000,000) or more or any
transaction specified in paragraphs (a)(ii) and (a)(iv) of Section 1 of this
Article IX meets any of the monetary or percentage tests set forth therein.
5. Nothing contained in this Article IX shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
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6. The fact that any Significant Transaction complies with the
provisions of this Article IX shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board of Directors, or any member
thereof, to approve such Significant Transaction or recommend its adoption or
approval to the stockholders, nor shall such compliance limit, prohibit or
otherwise restrict in any manner the Board of Directors, or any member thereof,
with respect to evaluations of, or actions and responses taken with respect to,
such Significant Transaction.
7. No action taken by, or omission of, a Continuing Director
in the exercise (or non-exercise) of the authority and discharge of the
responsibilities conferred or imposed upon Continuing Directors by this Article
IX shall be deemed to be, or involve, a breach of the fiduciary duty of such
Continuing Director to the stockholders of the Corporation unless it can be
demonstrated by the person asserting such breach that the Continuing Director
acted in bad faith (or failed in bad faith to act) and in a manner inconsistent
with the provisions and spirit of this Article IX.
8. All reasonable expenses (including, without limitation,
attorneys' fees and disbursements) incurred by the Continuing Directors in the
exercise of the authority and discharge of the responsibilities, conferred or
imposed upon them by this Article IX (or incurred by reason or as a consequence
of the exercise of such authority or the discharge of such responsibilities,
including, without limitation, all attorneys' fees and disbursements incurred in
asserting or defending any claim arising out of such exercise) shall be paid by
the Corporation. The provisions of this Section 8 shall be deemed to be a
contract between the Corporation and the Continuing Directors, and it shall be
the duty of the Chief Financial Officer of the Corporation to make prompt
payment thereof on the written request of a majority of the Continuing
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Directors, accompanied by appropriate vouchers and invoices. The rights
conferred upon the Continuing Directors and the obligations imposed upon the
Corporation by this Section 8 shall be in addition to the rights of the
Continuing Directors, as directors, to indemnification under Article VIII of
this Certificate of Incorporation; provided, however, that the Corporation shall
not, by reason of this sentence, be obliged to make duplicate payment of any
item of expense incurred by a Continuing Director.
ARTICLE X
AMENDMENT OR REPEAL
1. Notwithstanding any other provisions of this Certificate of
Incorporation, no provision set forth in Article IX may be repealed or amended
in any respect unless such action is approved by the affirmative vote of holders
of not less than eighty percent (80%) in voting power of the outstanding Common
Stock and Preferred Stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
2. To the extent now or hereafter permitted by law, the
Corporation reserves the right to amend, alter, change, supplement or repeal any
provision of this Certificate of Incorporation, as from time to time amended,
altered, changed, supplemented or repealed, and all rights of stockholders,
directors, officers, employees and agents are subject to this express
reservation.
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ARTICLE XI
RESTRICTIONS ON CERTAIN ACTIONS BY THE CORPORATION
1. Certain Purchases of Shares of the Corporation.
(a) Notwithstanding anything to the contrary contained
in this Restated Certificate of Incorporation or the By-laws of the
Corporation, the Corporation shall not, except as provided in
paragraph (b) below, directly or indirectly, purchase any shares of
Voting Stock (as hereinafter defined) owned by any Person or Group of
Persons (as hereinafter defined) who or which, at the time the
Corporation enters into an agreement providing for such purchase (or,
if there is no such agreement, at the time of such purchase), is a
Five Percent Stockholder (as hereinafter defined) for a Purchase Price
(as hereinafter defined) exceeding one hundred five percent (105%) of
the Market Value (as hereinafter defined) of such shares, unless such
purchase shall be approved by the affirmative vote of holders of a
majority of the shares of the Corporation entitled to vote generally
in the election of directors represented in person or by proxy at an
annual or special meeting of stockholders at which a quorum is
present, voting as a single class. Such affirmative vote shall be
required notwithstanding that no vote may be required, or that a
lesser percentage may be specified, by any law or any agreement with a
national securities exchange, or otherwise.
(b) The provisions of paragraph (a) of this Section 1
shall not apply to (i) any offer to purchase securities of the same
class or series of Voting Stock made by the Corporation or any
Subsidiary thereof on the same terms and conditions to all holders of
such class or series, (ii) any purchase by the Corporation or any
Subsidiary of the Corporation of shares owned by a Five Percent
Stockholder occurring after the end of two years following the date on
which such Person or Group of Persons became a Five Percent
Stockholder, provided that at all times during such two-year period
such Five Percent Stockholder shall have beneficially owned at least
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the number of shares to be purchased, (iii) any transaction made in
accordance with the terms of any stock option, stock bonus, deferred
compensation or other employee compensation or benefit plan now or
hereafter maintained by the Corporation, or (iv) any purchase by the
Corporation or any Subsidiary of the Corporation of Voting Stock
pursuant to the terms of a stock repurchase plan authorized by the
Board of Directors.
(c) The approval of stockholders contemplated by
paragraph (a) above shall be sufficient if obtained at any time prior
to the purchase of the shares involved, whether or not it shall have
been obtained prior to the Corporation having become obligated to make
such purchase, if the Corporation's obligation to purchase the shares
is expressly conditioned upon such approval being obtained.
(d) For purposes of this Section:
(i) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act, as in
effect on September 6, 1990.
(ii) a Person shall be a "beneficial owner" of any
security of any class of the Corporation (A) that such Person or
any of its Affiliates or Associates beneficially owns, directly
or indirectly, (B) that such Person or any of its Affiliates or
Associates has any right to vote pursuant to any agreement,
arrangement or understanding (whether or not in writing);
provided, however, that a Person shall not be deemed the
beneficial owner of any stock under this clause (B) if the
agreement, arrangement or understanding to vote such security (x)
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arises solely from a revocable proxy or consent given in response
to a proxy or consent solicitation made in accordance with the
applicable rules and regulations under the Exchange Act and (y)
is not then reportable on a Schedule 13D under the Exchange Act
(or any comparable or successor report), or (C) that such Person
or any of its Affiliates or Associates has the right to acquire
(whether such right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of
conversion rights, exchange rights, warrants, options or
otherwise. A security shall be "beneficially owned" by a Person
if such Person is the beneficial owner of such security.
(iii) "Exchange Act" shall mean the United States
Securities Exchange Act of 1934, as the same has been or
hereafter may be amended from time to time, or any successor
statute.
(iv) "Five Percent Stockholder" shall mean any
Person or any Group of Persons (other than the Corporation, any
Subsidiary of the Corporation, any employee benefit plan or
employee stock plan of the Corporation or any Subsidiary of the
Corporation or any trust or other entity organized, appointed,
established or holding Voting Stock for or pursuant to the terms
of any such plan when acting in such capacity) who or which owns
beneficially, directly or indirectly, shares of Voting Stock
entitling the holders thereof to exercise five percent (5%) or
more of the voting power of all shares of stock of the
Corporation entitled to vote generally in the election of
directors. Notwithstanding the foregoing, no Person or Group of
Persons shall be deemed to be a Five Percent Stockholder solely
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as a result of purchases of Voting Stock by the Corporation or
any Subsidiary of the Corporation (other than from such Person or
Group of Persons) unless, following the date on which such Person
or Group of Persons would (but for the effect of the first clause
of this sentence) have been deemed to be a Five Percent
Stockholder, such Person or Group of Persons becomes the
beneficial owner of any shares of Voting Stock which were not
beneficially owned by such Person or Group of Persons prior to
such date.
(v) "Group of Persons" shall mean two or more
Persons who act in concert as a partnership, limited partnership,
syndicate or other group pursuant to any written or oral
agreement, arrangement, relationship, understanding or otherwise
for the purpose of acquiring, owning, disposing or voting shares
of the Corporation.
(vi) "Market Value" means (A) in the case of stock
of the Corporation, the average closing sale price of a share on
the composite tape for New York Stock Exchange listed shares
during the thirty (30) trading days immediately preceding the
date the Corporation enters into an agreement providing for a
purchase described in paragraph (a) above (or, if there is no
such agreement, the date of such purchase) or, if the shares in
question are not quoted on the composite tape, or are not listed
on the New York Stock Exchange, on any principal United States
securities exchange registered under the Exchange Act on which
the shares are listed, or, if the shares are not listed on any
such exchange, on the National Association of Securities Dealers,
Inc. Automated Quotation National Market System ("NASDAQ-NMS"),
or, if the shares are not quoted on NASDAQ-NMS, the average
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closing bid quotation of a share on the National Association of
Securities Dealers, Inc. automated quotation system or any
similar system then in use; provided, however, that if the Person
or Group of Persons from whom shares are to be purchased has
commenced a tender offer for the shares or any other Voting Stock
of the Corporation or has announced an intention to acquire or
seek to acquire control of the Corporation, the period of thirty
(30) trading days referred to herein shall be the thirty (30)
trading days preceding the earlier of the commencement of such
tender offer or the making of such announcement, and provided
further that if no quotations are available as aforesaid, the
Market Value of a share shall be the Fair Market Value of such
share on the date the Corporation enters into an agreement
providing for a purchase described in paragraph (a) above (or, if
there is no such agreement, the date of such purchase), as
determined in good faith by the Board of Directors, and (B) in
the case of property other than cash or stock, the Fair Market
Value of such property on the date in question as determined by
the Board of Directors of the Corporation in good faith.
(vii) "Person" shall mean an individual, a
corporation, a partnership, an association, a joint stock
company, a trust, any unincorporated organization or a government
or political subdivision thereof.
(viii) the "Purchase Price" of any shares shall be
the amount of any cash to be paid therefor, together with the
Market Value of all indebtedness, securities or other property to
be issued or transferred as additional consideration for such
purchase.
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(ix) "Subsidiary" means any corporation a majority
of any class or series of equity security of which is owned,
directly or indirectly, by the Corporation.
(x) "Voting Stock" means shares of stock of the
Corporation entitled to vote generally in the election of
directors.
2. Certain Compensation Arrangements.
(a) Notwithstanding anything to the contrary contained
in this Restated Certificate of Incorporation or in the By-laws of the
Corporation, the Corporation shall not enter into or otherwise become
legally obligated in respect of any Compensation Arrangement (as
hereinafter defined) if such Compensation Arrangement provides for any
payment in the nature of compensation to (or for the benefit of) any
officer or employee of the Corporation or any of its Subsidiaries
which payment is contingent on a change in the ownership or effective
control of the Corporation unless (i) the Corporation is not obligated
to make any payment under such Compensation Arrangement which,
individually or together with any other payment from the Corporation
or its Subsidiaries in the nature of compensation to (or for the
benefit of) such individual which are contingent on such change in
ownership or effective control, would result in the making of a
Parachute Payment (as hereinafter defined) or (ii) such Compensation
Arrangement is approved by the affirmative vote of holders of a
majority of the shares of the Corporation entitled to vote generally
in the election of directors represented in person or by proxy at an
annual or special meeting of stockholders at which a quorum is
present, voting as a single class.
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(b) For purposes of this Section:
(i) The phrase "contingent on a change in the
ownership or effective control of the Corporation" shall have the
same meaning as it has for purposes of Section 280G (as
hereinafter defined), without giving effect to subparagraph
(b)(2)(C) thereof.
(ii) "Compensation Arrangement" shall mean and
include any employment agreement or contract, severance
agreement, employee benefit plan or similar arrangement, entered
into or adopted on or after the date on which this Article XI
becomes part of the Restated Certificate of Incorporation,
providing for any payment in the nature of compensation to be
paid to (or for the benefit of) any officer or employee of the
Corporation or any of its Subsidiaries.
(iii) "Parachute Payment" shall mean a "parachute
payment" within the meaning of Section 280G, except that the
phrase "3 times" in clause (b)(2)(A)(ii) thereof shall, for
purposes of this Section 2, be replaced by "150% of."
(iv) "Section 280G" shall mean Section 280G of the
Internal Revenue Code of 1986 as in effect on September 6, 1990.
(c) The approval of stockholders contemplated by clause
(ii) of paragraph (a) above shall be sufficient if obtained either (i)
prior to the Corporation becoming obligated under any Compensation
Arrangement or (ii) after the Corporation shall become obligated
thereunder but prior to the making of any payment thereunder, if in
such case the Corporation's obligations under such Compensation
Arrangement are expressly conditioned upon such approval being
obtained.
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3. Creation of Certain Rights and Options.
The Corporation shall not create or issue to its
stockholders generally, or to holders of any class or series of its
capital stock, any rights or options to purchase at any time any
shares of capital stock or other securities of the Corporation, any
Subsidiary thereof, any successor to the Corporation or any Subsidiary
of the Corporation or any transferee of any substantial portion of the
assets of the Corporation and its Subsidiaries, the terms and
conditions of which rights or options include restrictions or
conditions that preclude or limit the exercise, transfer or receipt of
such rights or options when held by certain stockholders, or that
invalidate or purport to invalidate or void such rights or options
held by certain stockholders, unless the creation and issuance of such
rights is approved by the affirmative vote of holders of a majority of
the shares of the Corporation entitled to vote generally in the
election of directors represented in person or by proxy at an annual
or special meeting of stockholders at which a quorum is present,
voting as a single class; provided, however, that (a) nothing
contained in this Section 3 shall limit the right or power of the
Corporation to issue options or other rights to purchase any shares of
its capital stock or other securities to (i) any director, officer or
employee of the Corporation or any Subsidiary thereof, as part of his
compensation or payment or as part of an employee stock option or
stock purchase plan or (ii) consultants or other persons providing
goods, services or other benefits to the Corporation or any Subsidiary
as consideration therefor and (b) the Corporation may issue such
rights or options if by the terms thereof they shall expire and be of
no further force or effect not later than ninety (90) days after the
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date of issuance thereof unless such rights or options have become
exercisable prior to such date or unless prior to such date the
issuance of such rights or options has been approved by the
affirmative vote of the holders of a majority of the shares of the
Corporation entitled to vote generally in the election of directors
represented in person or by proxy at an annual or special meeting of
stockholders at which a quorum is present, voting as a single class.
4. No Modification of Powers or Duties.
The provisions of this Article XI shall not be deemed
or construed to either enlarge or diminish the powers or duties of the
Board of Directors of the Corporation with respect to any matter or
action that may be taken by the Corporation which is not specifically
addressed in this Article XI.
IV. This Restated Certificate of Incorporation was duly
adopted by the Board of Directors in accordance with Section 245 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by William J. Montgoris, its Chief Operating Officer, this 15th day of
May, 1998.
THE BEAR STEARNS COMPANIES INC.
By: /s/ William J. Montgoris
-------------------------------
William J. Montgoris
Chief Operating Officer
PAGE 35
EXHIBIT 23(a)
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this registration statement of
The Bear Stearns Companies Inc. on Form S-3 of our report dated September 2,
1997, appearing in and incorporated by reference in the Annual Report on Form
10-K of The Bear Stearns Companies Inc., for the year ended June 30, 1997, and
to the reference to us under the heading "Experts" in the Prospectus, which is
part of the Registration Statement.
/s/ Deloitte & Touche LLP
June 16, 1998
New York, New York
