AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 8, 1999
REGISTRATION NO. 333- ________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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THE BEAR STEARNS COMPANIES INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-3286161
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
245 PARK AVENUE
NEW YORK, NEW YORK 10167
(212) 272-2000
(Address, including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
THE BEAR STEARNS COMPANIES INC.
STOCK AWARD PLAN
(Full Title of the Plan)
SAMUEL L. MOLINARO JR.
CHIEF FINANCIAL OFFICER
THE BEAR STEARNS COMPANIES INC.
245 PARK AVENUE
NEW YORK, NEW YORK 10167
(212) 272-2000
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent For Service)
COPIES TO:
DENNIS J. BLOCK, ESQ.
CADWALADER, WICKERSHAM & TAFT
100 MAIDEN LANE
NEW YORK, NEW YORK 10038
(212) 504-6000
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PRICE PER UNIT(2) PRICE(2) FEE(2)
---------------- ------------- ------------------------- ------------------ --------------
<S> <C> <C> <C> <C>
Common Stock, par value $1.00 16,000,000
per share shares $40.25 $644,000,000 $170,016
</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 December
1, 1999.
<PAGE>
EXPLANATORY NOTE
This Registration Statement is being filed by The Bear Stearns Companies
Inc., a Delaware corporation (the "Company") in order to register 16,000,000
shares of the Company's common stock, par value $1.00 per share (the "Common
Stock"), the maximum number of shares as to which options or awards may be
granted under The Bear Stearns Companies Inc. Stock Award Plan (the "Stock Award
Plan").
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I of Form S-8 will be
sent or given to employees eligible to participate in the Stock Award Plan as
specified by Rule 428(b)(1) of the Securities Act. Those documents and the
documents incorporated by reference into this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the SEC 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, 1999; (ii) the
Quarterly Report on Form 10-Q for the quarter ended September 24, 1999;
(iii) the Current Reports on Form 8-K dated July 21, 1999, July 22, 1999,
August 5, 1999, August 9, 1999, October 13, 1999, October 29, 1999 and
December 1, 1999; and (iv) the description of the Common Stock, which is
registered under Section 12 of the Exchange Act, set forth under the caption
"Description of Capital Stock" contained in the Company's Registration
Statement on Form 10, dated September 19, 1985. 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 Registration Statement and prior to the
filing of a post-effective amendment indicating that all securities offered
hereby have been sold or deregistering all securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. 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 Company's Restated Certificate of Incorporation provides
for indemnification of directors and officers of the Company 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 Company's Restated Certificate of Incorporation, as amended, is filed
as Exhibit 4(a)(1) to the Registration Statement on Form S-3 (No. 333-57083)
filed June 17, 1998.
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 9.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
II-1
<PAGE>
ITEM 8. EXHIBITS.
Exhibit
No. Description
4(a)(1) -- Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit
4(a)(1) to the Registration Statement on Form S-3
(File No. 333-57083)).
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 E
(incorporated by reference to Exhibit 1.4 to the
Registration Statement on Form 8-A filed on January
14, 1998).
4(a)(4) -- 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(a)(5) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series G
(incorporated by reference to Exhibit 1.4 to the
Registration Statement on Form 8-A filed on June 18,
1998).
4(b) -- Amended and Restated By-laws of the Registrant
(incorporated by reference to Exhibit (4)(b) to
Post-Effective Amendment No. 1 to the Registration
Statement on Form S-8 (File No. 333-81901)).
4(c) -- The Bear Stearns Companies Inc. Stock Award Plan,
amended and restated as of October 29, 1999.
5 -- Opinion of Cadwalader, Wickersham & Taft.
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of Cadwalader, Wickersham & Taft (included
in Exhibit 5).
24 -- Power of attorney (included in the signature pages
to the Registration Statement).
ITEM 9. 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:
II-2
<PAGE>
(i) to include any prospectus required by Section 10(a)(3) of 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 thereto) 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 end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(i) and
(a)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the SEC by the registrant pursuant to Section 13 or
Section 15(d) of 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 will be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time will 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 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 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(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 6 of this
Registration Statement, or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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<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-8 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 December 8, 1999.
THE BEAR STEARNS COMPANIES INC.
By: /s/ Samuel L. Molinaro Jr.
-------------------------------
SAMUEL L. MOLINARO JR.
Senior Vice President-Finance
and Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan C. Greenberg, James E. Cayne and Samuel L.
Molinaro Jr. and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform such and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on December 8, 1999.
SIGNATURE TITLE
THE BEAR STEARNS COMPANIES INC.
/s/ Alan C. Greenberg Chairman of the Board and Director
- ------------------------------------
ALAN C. GREENBERG
/s/ James E. Cayne President, Chief Executive Officer
- ------------------------------------ and Director (Principal
JAMES E. CAYNE Executive Officer)
/s/ Carl D. Glickman Director
- ------------------------------------
CARL D. GLICKMAN
/s/ Donald J. Harrington Director
- ------------------------------------
DONALD J. HARRINGTON
/s/ William L. Mack Director
- ------------------------------------
WILLIAM L. MACK
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<PAGE>
/s/ Frank T. Nickell Director
- ------------------------------------
FRANK T. NICKELL
/s/ Frederic V. Salerno Director
- ------------------------------------
FREDERIC V. SALERNO
Director
- ------------------------------------
ALAN D. SCHWARTZ
/s/ Warren J. Spector Director
- ------------------------------------
WARREN J. SPECTOR
/s/ Vincent Tese Director
- ------------------------------------
VINCENT TESE
/s/ Fred Wilpon Director
- ------------------------------------
FRED WILPON
/s/ Samuel L. Molinaro Jr. Senior Vice President-Finance and
- ------------------------------------ Chief Financial Officer
SAMUEL L. MOLINARO JR. (Principal Financial Officer)
/s/ Marshall J Levinson Controller
- ------------------------------------ (Principal Accounting Officer)
MARSHALL J LEVINSON
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<PAGE>
Exhibit Index
Exhibit
Number Description
4(a)(1) -- Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 4(a)(1) to the
Registration Statement on Form S-3 (File No. 333-57083)).
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 E
(incorporated by reference to Exhibit 1.4 to the Registration
Statement on Form 8-A filed on January 14, 1998).
4(a)(4) -- 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(a)(5) -- Certificate of Stock Designation relating to the
Registrant's Cumulative Preferred Stock, Series G
(incorporated by reference to Exhibit 1.4 to the Registration
Statement on Form 8-A filed on June 18, 1998).
4(b) -- Amended and Restated By-laws of the Registrant
(incorporated by reference to Exhibit (4)(b) to
Post-Effective Amendment No. 1 to the Registration Statement
on Form S-8 (File No.
333-81901)).
4(c) -- The Bear Stearns Companies Inc. Stock Award Plan, amended
and restated as of October 29, 1999.
5 -- Opinion of Cadwalader, Wickersham & Taft.
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of Cadwalader, Wickersham & Taft (included in
Exhibit 5).
24 -- Power of attorney (included in the signature pages to the
Registration Statement).
Exhibit 4(c)
<PAGE>
THE BEAR STEARNS COMPANIES INC.
STOCK AWARD PLAN
Amended and Restated as of October 29, 1999
<PAGE>
THE BEAR STEARNS COMPANIES INC.
STOCK AWARD PLAN
(Amended and Restated as of October 29, 1999)
1. Purpose. The purpose of The Bear Stearns Companies Inc. Stock
Award Plan (the "Plan") is to secure for The Bear Stearns Companies Inc. and its
successors and assigns (the "Company") and its stockholders the benefits of the
additional incentive, inherent in the ownership of the Company's common stock,
par value $1.00 per share (the "Common Stock"), by selected key employees of the
Company and its subsidiaries who are important to the success and growth of the
business of the Company and its subsidiaries and to help the Company and its
subsidiaries secure and retain the services of such persons. Compensation
awarded under the Plan is intended to qualify for tax deductibility pursuant to
the requirements of Section 162(m) of the Internal Revenue Code of 1986, as
amended from time to time or any successor statute or statutes (the "Code"), to
the extent deemed appropriate by the Committee (as defined in Paragraph 2.1).
Pursuant to the Plan, such employees will be offered the opportunity
to acquire Common Stock through the grant of options and stock appreciation
rights in tandem with such options. Options granted under the Plan will be
either "incentive stock options," intended to qualify as such under the
provisions of Section 422 of the Code, or "nonqualified stock options." For
purposes of the Plan, the terms "parent" and "subsidiary" shall mean "parent
corporation" and "subsidiary corporation," respectively, as such terms are
defined in Sections 424(e) and (f) of the Code.
2. Committee.
2.1 Administration. The Plan shall be administered by the
Compensation Committee of the Board of Directors of the Company (the
"Committee"). Any vacancy on the Committee, whether due to action of the Board
of Directors or due to any other cause, may be filled, and shall be filled if
required to maintain a Committee of at least two disinterested persons, by
resolution adopted by the Board of Directors. For purposes of the Plan, a person
shall be deemed to be a "disinterested person" if, at the time of reference,
such person is not, and has not been at any time during the preceding one-year
period, eligible to participate in the Plan or any other plan of the Company or
any of its affiliates entitling participants therein to acquire stock, stock
options or stock appreciation rights of the Company or any of its affiliates.
Notwithstanding any of the foregoing, the Board of Directors may designate one
or more persons, who at the time of such designation are not disinterested
persons, to serve on the Committee effective upon the date such person or
persons qualify as disinterested persons.
2.2 Procedures. The Committee shall select one of its members
as Chairman and shall adopt such rules and regulations as it shall deem
appropriate concerning the holding of its meetings and the administration of the
Plan. A majority of the whole Committee shall constitute a quorum, and the acts
of a majority of the members of the Committee present at a meeting at which a
quorum is present, or acts approved in writing by all of the members of the
Committee, shall be the acts of the Committee.
<PAGE>
2.3 Interpretation. The Committee shall have full power and
authority to interpret the provisions of the Plan and any agreement evidencing
options granted under the Plan, and to determine any and all questions arising
under the Plan, and its decisions shall be final and binding on all participants
in the Plan.
3. Shares Subject to Grants.
3.1 Number of Shares. Subject to the provisions of Paragraph
17 (relating to adjustments upon changes in capitalization), the number of
shares of Common Stock subject at any one time to options granted under the
Plan, plus the number of shares of Common Stock theretofore issued or delivered
pursuant to the exercise of options granted under the Plan, shall not exceed
16,000,000 shares. If and to the extent that options granted under the Plan
terminate, expire or are cancelled without having been exercised, new options
may be granted under the Plan with respect to the shares of Common Stock covered
by such terminated, expired or cancelled options; provided, that the granting
and terms of such new options shall in all respects comply with the provisions
of the Plan.
3.2 Character of Shares. Shares of Common Stock delivered
under the Plan may be authorized and unissued Common Stock, issued Common Stock
held in the Company's treasury, or both.
3.3 Reservation of Shares. There shall be reserved at all
times for sale or award under the Plan a number of shares of Common Stock
(authorized and unissued Common Stock, issued Common Stock held in the Company's
treasury, or both) equal to the maximum number of shares set forth in Paragraph
3.1.
4. Employees Eligible. Options may be granted under the Plan to any
key employee of the Company or any of its subsidiaries, or to any prospective
key employee of the Company or any of its subsidiaries, conditioned upon, and
effective not earlier than, such person's becoming an employee. Directors and
executive officers shall be eligible to receive grants under the Plan only if
they are also key employees of the Company or any of its subsidiaries.
Notwithstanding the foregoing:
(a) No member of the Committee, while serving as such, shall
be eligible to receive any grants under the Plan and no person designated by the
Board of Directors pursuant to Paragraph 2.1 to serve on the Committee effective
at the time he or she qualifies as a disinterested person shall be eligible to
receive any grants under the Plan during the period from the date such
designation is made to the date such designation becomes effective.
(b) No incentive stock options may be granted under the Plan
to any person who owns, directly or indirectly (within the meaning of Sections
422(b)(6) and 424(d) of the Code), at the time the incentive stock option is
granted, stock possessing more than 10% of the total combined voting power of
all classes of stock of the employee's employer corporation or of its parent, if
any, or any of its subsidiaries, unless the option price is at least 110% of the
fair market value of the shares subject to the option, determined on the date of
the grant, and the option by its terms is not exercisable after the expiration
of five years from the date such option is granted.
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<PAGE>
(c) In each calendar year during any part of which the Plan is
in effect, no Participant (as defined below) may be granted options relating in
the aggregate to more than 1,000,000 shares of Common Stock, subject to
adjustment as provided in Paragraph 17.
An individual receiving any option under the Plan is hereinafter
referred to as a "Participant." Any reference herein to the employment of a
Participant by the Company shall include (i) his or her employment by the
Company or any of its subsidiaries, and (ii) with respect to a Participant who
was not an employee of the Company or any of its subsidiaries at the time of
grant of his or her option, his or her period of service in the capacity for
which the option was granted. For all purposes of this Plan, the time at which
an option is granted, in the case of the grant of an option to a key employee
shall be deemed to be the effective date of such grant.
5. Grant of Options.
The Committee shall determine, within the limitations of the Plan,
the persons to whom options are to be granted, the number of shares that may be
purchased under each option, the option price, and shall designate options at
the time of grant as either "incentive stock options" or "nonqualified stock
options"; provided, that the aggregate fair market value (determined as of the
time the option is granted) of the Common Stock with respect to which incentive
stock options become exercisable for the first time by any Participant (as
defined in Paragraph 4) in any calendar year (under all stock option plans of
the employee's employer corporation and its parent, if any, and its
subsidiaries) shall not exceed $100,000 (the provisions of Section 422(d) of the
Code are intended to govern). In determining the persons to whom options shall
be granted and the number of shares to be covered by each option, the Committee
shall take into consideration the person's present and potential contribution to
the success of the Company and its subsidiaries and such other factors as the
Committee may deem proper and relevant. Each option granted under the Plan shall
be evidenced by a written agreement between the Company and the Participant
containing such terms and conditions and in such form, not inconsistent with the
provisions of the Plan or, with respect to incentive stock options, Section 422
of the Code, as the Committee shall provide.
6. Option Price. Subject to Paragraph 17, the option price of each
share of Common Stock purchasable under any incentive stock option or
non-qualified stock option granted under the Plan shall not be less than the
fair market value of such share of Common Stock at the time the option is
granted. The option price of an option issued in a transaction described in
Section 424(a) of the Code shall be an amount which conforms to the requirements
of that Section and the regulations thereunder.
For purposes of this Plan, the "fair market value" of the Common
Stock on any date means (i) if the Common Stock is listed on a national
securities exchange or quotation system, the closing sales price on such
exchange or quotation system on such date or, in the absence of reported sales
on such date, the closing sales price on the immediately preceding date on which
sales were reported, (ii) if the Common Stock is not listed on a national
securities exchange or quotation system, the mean between the bid and offered
prices as quoted by the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") for such date or (iii) if the Common Stock
is neither listed on a national securities exchange or
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<PAGE>
quotation system nor quoted by NASDAQ, the fair value as determined by such
other method as the Committee determines in good faith to be reasonable.
7. Stock Appreciation Right. The Committee, in its sole discretion,
may in connection with the grant of any option also grant to the Participant a
stock appreciation right. Such stock appreciation right shall be granted by the
Committee simultaneously with the grant of the related stock option. A stock
appreciation right shall be exercised in the manner provided in Paragraph 9, and
shall result in the cancellation of options on shares with respect to which the
Participant exercises a stock appreciation right, and, upon such exercise, the
Company shall pay to the Participant an amount equal to the excess of the fair
market value of such shares with respect to which options are cancelled on the
date of exercise over the option price of such shares. A stock appreciation
right shall be exercisable to the same extent and under the same conditions as
the underlying option, except that a stock appreciation right granted in
connection with an incentive stock option may be exercised only when the fair
market value of the shares subject to the option exceeds the option price of
such shares. Payments on the exercise of stock appreciation rights shall be made
by the Company in cash to the Participant as soon as practicable following
exercise.
8. Exercisability and Duration of Options.
8.1 Determination of Committee; Acceleration. Each option
granted under the Plan shall be exercisable at such time or times, or upon the
occurrence of such event or events, and in such amounts, as the Committee shall
specify in the agreement evidencing the option. Subsequent to the grant of an
option which is not immediately exercisable in full, the Committee, at any time
before complete termination of such option, may accelerate the time or times at
which such option may be exercised in whole or in part.
8.2 Automatic Termination. The unexercised portion of any
option granted under the Plan shall automatically and without notice terminate
and become null and void at the time of the earliest to occur of the following:
(a) The expiration of ten years from the date on
which such option was granted;
(b) The expiration of three months from the date of
termination of the Participant's employment by the Company unless a longer
period is provided by the Committee (other than a termination described in
subparagraph (c) or (d) below); provided, that if the Participant shall die
during such three-month period, the time of termination of the unexercised
portion of any such option shall be determined under the provisions of
subparagraph (c) below;
(c) The expiration of six months following the
issuance of letters testamentary or letters of administration to the executor or
administrator of a deceased Participant, if the Participant's death occurs
either during his employment by the Company or during the three-month period
following the date of termination of such employment (other than a termination
described in subparagraph (d) below), but in no event later than one year after
the Participant's death;
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<PAGE>
(d) The termination of the Participant's employment
by the Company if such termination constitutes or is attributable to a breach by
the Participant of an employment or consulting agreement with the Company or any
of its subsidiaries, or if the Participant is discharged or his or her services
are terminated for cause; or
(e) The expiration of such period of time or the
occurrence of such event as the Committee in its discretion may provide upon
the granting thereof.
The Committee or the Board of Directors shall have the right to
determine what constitutes cause for discharge or termination of services,
whether the Participant has been discharged or his or her services terminated
for cause and the date of such discharge or termination of services, and such
determination of the Committee or the Board of Directors shall be final and
conclusive.
9. Exercise of Options, Stock Appreciation Rights. Options and stock
appreciation rights granted under the Plan shall be exercised by the Participant
(or by his or her executors or administrators, as provided in Paragraph 10) as
to all or part of the shares covered thereby, by the giving of written notice of
exercise to the Company, specifying the number of shares to be purchased or the
number of shares with respect to which stock appreciation rights are being
exercised, accompanied, in the case of an option, by payment of the full
purchase price for the shares being purchased. Payment of such purchase price
shall be made (a) by check payable to the Company, (b) with the consent of the
Committee, by delivery of shares of Common Stock already owned by the
Participant for at least six months (which may include shares received as the
result of a prior exercise of an option) having a fair market value (determined
as of the date such option is exercised) equal to all or part of the aggregate
purchase price, (c) with the consent of the Committee and at the election of the
Participant, by withholding from those shares that would otherwise be obtained
upon exercise of the option a number of shares having a fair market value equal
to the option exercise price, (d) in accordance with a "cashless exercise"
program established by the Committee in its sole discretion under which if so
instructed by the Participant, shares may be issued directly to the
Participant's broker or dealer upon receipt of the purchase price in cash from
the broker or dealer, (e) by any combination of (a), (b), (c) or (d) above, or
(f) by other means that the Committee deems appropriate. Such notice of
exercise, accompanied by such payment, shall be delivered to the Company at its
principal business office or such other office as the Committee may from time to
time direct, and shall be in such form, containing such further provisions
consistent with the provisions of the Plan, as the Committee may from time to
time prescribe. The date of exercise shall be the date of the Company's receipt
of such notice. The Company shall effect the transfer of the shares so purchased
to the Participant (or such other person exercising the option pursuant to
Paragraph 10 hereof) as soon as practicable. No Participant or other person
exercising an option shall have any of the rights of a stockholder of the
Company with respect to shares subject to an option granted under the Plan until
due exercise and full payment has been made as provided above. No adjustment
shall be made for cash dividends or other rights for which the record date is
prior to the date of such due exercise and full payment. In no event may any
option granted hereunder be exercised for a fraction of a share.
10. Non-Transferability of Options. Except as provided herein, no
option granted under the Plan or any right evidenced thereby shall be
transferable by the Participant
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other than by will or by the laws of descent and distribution, and an option may
be exercised, during the lifetime of a Participant, only by such Participant.
Notwithstanding the preceding sentence: (a) in the event of a Participant's
death during his or her employment by the Company, its parent, if any, or any of
its subsidiaries, or during the three-month period following the date of
termination of such employment, his or her options shall thereafter be
exercisable, during the period specified in Paragraph 8.2(c), by his or her
executors or administrators; and (b) the Participant, with the approval of the
Committee, may transfer his or her options (other than incentive stock options)
for no consideration to or for the benefit of the Participant's spouse, parents,
children (including stepchildren or adoptive children), grandchildren, or
siblings, or to a trust for the benefit of any of such persons.
11. Reload Options. At the time an option (the "original option") is
granted, the Committee may also authorize the grant of a "reload option," which
shall be subject to the following terms:
(a) The number of shares of Common Stock subject to
the reload option shall be the number of shares, if any, used by the Participant
to pay the purchase price upon exercise of the original option, plus the number
of shares, if any, delivered by the Participant to satisfy the tax withholding
requirement relating to such exercise.
(b) The reload option shall be a nonqualified stock
option.
(c) The grant of the reload option shall be
effective upon the date of exercise of the original option, and the term of the
reload option shall be the period, if any, remaining from that date to the date
upon which the original option would have expired.
(d) The grant of the reload option shall not be
effective if, on the date of exercise of the original option, the Participant
is not employed by the Company.
(e) Except as specified in (a) through (d) above,
the terms of the reload option shall be as prescribed in the preceding
Paragraphs of this Plan.
12. Withholding Tax. (a) Whenever under the Plan shares of stock are
to be delivered upon exercise of a nonqualified stock option, the Company shall
be entitled to require as a condition of delivery that the Participant remit or,
in appropriate cases, agree to remit when due an amount sufficient to satisfy
all federal, state and local withholding tax requirements relating thereto. At
the option of the Company, such amount may be remitted by check payable to the
Company, in shares of Common Stock (which may include shares received as the
result of a prior exercise of an option), by the Company's withholding of shares
of Common Stock issuable upon the exercise of any option or stock appreciation
right pursuant to the Plan, or any combination thereof. Whenever an amount shall
become payable to a Participant in connection with the exercise of a stock
appreciation right, the Company shall be entitled to withhold therefrom an
amount sufficient to satisfy all federal, state and local withholding tax
requirements relating to such amount.
13. Restrictions on Delivery and Sale of Shares. Each option granted
under the Plan is subject to the condition that if at any time the Committee, in
its discretion, shall determine that the listing, registration or qualification
of the shares covered by such option upon
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<PAGE>
any securities exchange or under any state or federal law is necessary or
desirable as a condition of or in connection with the granting of such option or
the purchase or delivery of shares thereunder, the delivery of any or all shares
pursuant to exercise of the option may be withheld unless and until such
listing, registration or qualification shall have been effected. The Committee
may require, as a condition of exercise of any option that the Participant
represent, in writing, that the shares received are being acquired for
investment and not with a view to distribution and agree that the shares will
not be disposed of except pursuant to an effective registration statement,
unless the Company shall have received an opinion of counsel satisfactory to the
Company that such disposition is exempt from such requirement under the
Securities Act of 1933. The Committee may require that the sale or other
disposition of any shares acquired upon exercise of an option hereunder shall be
subject to a right of first refusal in favor of the Company, which right shall
permit the Company to repurchase such shares from the Participant or his or her
representative prior to their sale or other disposition at their then current
fair market value in accordance with such terms and conditions as shall be
specified in the agreement evidencing the grant of the option. The Company may
endorse on certificates representing shares issued upon the exercise of an
option such legends referring to the foregoing representations or restrictions
or any other applicable restrictions on resale as the Company, in its
discretion, shall deem appropriate.
14. Change in Control.
(a) In the event of a Change in Control of the
Company, as defined below, the Committee may, in its sole discretion, provide
that any of the following applicable actions be taken as a result, or in
anticipation, of any such event to assure fair and equitable treatment of
Participants:
(i) accelerate the exercisability of any
outstanding options awarded pursuant to this Plan;
(ii) offer to purchase any outstanding options made
pursuant to this Plan from the holder for its equivalent cash value, as
determined by the Committee, as of the date of the Change in Control; or
(iii) make adjustments or modifications to
outstanding options as the Committee deems appropriate to maintain and protect
the rights and interests of the Participants following such Change in Control.
Any such action approved by the Committee shall be conclusive and
binding on the Company, its subsidiaries and all Participants.
(b) In no event, however, may (i) any option be
exercised prior to the expiration of six (6) months from the date of grant
(unless otherwise provided in the agreement evidencing the option), or (ii) any
option be exercised after ten (10) years from the date it was granted.
(c) To the extent not otherwise defined in this
Plan, the following terms used in this Paragraph 14 shall have the following
meanings:
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<PAGE>
"Affiliate" means (a) Bear Stearns (b) any other subsidiary of the
Company and (c) any other corporation or other entity which is controlled,
directly or indirectly, by, or under common control with, the Company and which
the Committee designates as an "Affiliate" for purposes of the Plan.
"Associate" of a Person means (a) any corporation or organization of
which such Person is an officer or partner or is, directly or indirectly, the
Beneficial Owner of 10% or more of any class of equity securities, (b) any trust
or other estate in which such Person has a substantial beneficial interest or as
to which such Person serves as trustee or in a similar fiduciary capacity and
(c) any relative or spouse of such Person, or any relative of such spouse, who
has the same home as such Person or who is a director or officer of such Person
or any of its parents or subsidiaries.
"Bear Stearns" means Bear, Stearns & Co. Inc., a Delaware
corporation, and its successors and assigns.
"Beneficial Owner" has the meaning ascribed thereto in Rule 13d-3
under the Exchange Act, except that, in any case, a Person shall be deemed the
Beneficial Owner of any securities owned, directly or indirectly, by the
Affiliates and Associates of such Person.
"Change in Control" means (a) a majority of the Board of Directors
ceases to consist of Continuing Directors; (b) any Person becomes the Beneficial
Owner of 25% or more of the outstanding voting power of the Company unless such
acquisition is approved by a majority of the Continuing Directors; (c) the
stockholders of the Company approve an agreement to merge or consolidate into
any other entity, unless such merger or consolidation is approved by a majority
of the Continuing Directors; or (d) the stockholders of the Company approve an
agreement to dispose of all or substantially all of the assets of the Company,
unless such disposition is approved by a majority of the Continuing Directors.
"Continuing Director" means any member of the Board of Directors who
is a member on the effective date of the Plan as set forth in Paragraph 19 or
who is elected to the Board of Directors after such date upon the recommendation
or with the approval of a majority of the Continuing Directors at the time of
such recommendation or approval.
"Person" means an individual, a corporation, a partnership, an
association, a joint stock company, a trust, any unincorporated organization or
a government or a political subdivision thereof.
15. Right to Terminate Employment. Nothing in the Plan or in any
option granted under the Plan shall confer upon any Participant the right to
continue as an employee of the Company or affect the right of the Company or any
of its subsidiaries, to terminate the Participant's employment at any time,
subject, however, to the provisions of any agreement of employment between the
Participant and the Company, its parent, if any, or any of its subsidiaries.
16. Transfer, Leave of Absence. For purposes of this Plan, neither
(i) a transfer of an employee from the Company to a subsidiary or other
affiliate of the Company, or
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<PAGE>
vice versa, or from one subsidiary or affiliate of the Company to another, nor
(ii) a duly authorized leave of absence, shall be deemed a termination of
employment.
17. Adjustment Upon Changes in Capitalization, etc. In the event of
any stock split, stock dividend, reclassification or recapitalization which
changes the character or amount of the Company's outstanding Common Stock while
any portion of any option theretofore granted under the Plan is outstanding but
unexercised, the Committee shall make such adjustments in the character and
number of shares subject to such options and in the option price, as shall be
equitable and appropriate in order to make the option, as nearly as may be
practicable, equivalent to such option immediately prior to such change;
provided, however, that no such adjustment shall give any Participant any
additional benefits under his or her option; and provided further, that, with
respect to any outstanding incentive stock option, if any such adjustment is
made by reason of a transaction described in Section 424(a) of the Code, it
shall be made so as to conform to the requirements of that Section and the
regulations thereunder.
If any transaction (other than a change specified in the preceding
paragraph) described in Section 424(a) of the Code affects the Company's Common
Stock subject to any unexercised option theretofore granted under the Plan
(hereinafter for purposes of this Paragraph 17 referred to as the "old option"),
the Board of Directors or any surviving or acquiring corporation may take such
action as it deems appropriate, and in conformity with the requirements of that
Section and the regulations thereunder, to substitute a new option for the old
option, in order to make the new option, as nearly as may be practicable,
equivalent to the old option, or to assume the old option.
If any such change or transaction shall occur, the number and kind
of shares for which options may thereafter be granted under the Plan shall be
adjusted to give effect thereto.
18. Expiration and Termination of the Plan.
18.1 General. Options may be granted under the Plan at any
time and from time to time on or prior to the tenth anniversary of the effective
date of the Plan as set forth in Paragraph 19 (the "Expiration Date"), on which
date the Plan will expire except as to options then outstanding under the Plan.
Such outstanding options shall remain in effect until they have been exercised,
terminated or have expired. The Plan may be terminated, modified or amended by
the Board of Directors at any time on or prior to the Expiration Date, except
with respect to any options then outstanding under the Plan; provided, however,
that the approval of the Company's stockholders will be required for any
amendment which (i) changes the class of employees eligible for grants, as
specified in Paragraph 4, (ii) increases the maximum number of shares subject to
grants, as specified in Paragraph 3 (unless made pursuant to the provisions of
Paragraph 17) or (iii) materially increases the benefits accruing to
participants under the Plan, within the meaning of Rule 16b-3 promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
18.2 Modifications. No modification, extension, renewal or
other change in any option granted under the Plan shall be made after grant,
unless the same is consistent with the provisions of the Plan and does not
disqualify an incentive stock option under the provisions of Section 422 of the
Code. In addition, the option price of an option may not be
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<PAGE>
changed after grant, other than in the case of an adjustment described in
Paragraph 14 or pursuant to Paragraph 17.
19. Effective Date of Plan. The Plan shall become effective on
September 28, 1999, the date of its adoption by the Board of Directors, subject,
however, to the approval of the Plan by the Company's stockholders within 12
months of such adoption.
[LETTERHEAD OF CADWALADER, WICKERSHAM & TAFT]
December 8, 1999
The Bear Stearns Companies Inc.
245 Park Avenue
New York, New York 10167
Re: The Bear Stearns Companies Inc.
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to The Bear Stearns Companies Inc. (the "Company") in
connection with the preparation and filing by the Company with the Securities
and Exchange Commission (the "Commission") of a Registration Statement on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the registration of up to 16,000,000
shares of common stock, par value $1.00 per share, of the Company (the "Shares")
to be issued pursuant to the Company's Stock Award Plan (the "Stock Award
Plan").
In rendering the opinion set forth below, we have examined and relied upon the
originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Registration Statement and the Stock Award Plan and such
certificates, corporate and public records, agreements and instruments and other
documents as we have deemed appropriate as a basis for the opinion expressed
below. In such examination we have assumed the genuineness of all signatures,
the authenticity of all documents, agreements and instruments submitted to us as
originals, the conformity to original documents, agreements and instruments of
all documents, agreements and instruments submitted to us as copies or
specimens, the authenticity of the originals of such documents, agreements and
instruments submitted to us as copies or specimens, and the accuracy of the
matters set forth in the documents, agreements and instruments we reviewed. As
to any facts material to such opinion that were not known to us, we have relied
upon statements and representations of officers and other representatives of the
Company. Except as expressly set forth herein, we have not undertaken any
<PAGE>
The Bear Stearns Companies Inc. -2- December 8, 1999
independent investigation (including, without limitation, conducting any review,
search or investigation of any public files, records or dockets) to determine
the existence or absence of the facts that are material to our opinion, and no
inference as to our knowledge concerning such facts should be drawn from our
reliance on the representations of the Company in connection with the
preparation and delivery of this letter.
We express no opinion concerning the laws of any jurisdiction other than the
laws of the State of New York and the General Corporation Law of the State of
Delaware. While we are not licensed to practice law in the State of Delaware, we
have reviewed applicable provisions of the Delaware General Corporation Law as
we have deemed appropriate in connection with the opinion expressed herein.
Based upon and subject to the foregoing, we are of the opinion that the Shares,
when issued in accordance with the Stock Award Plan, will be validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion letter as an exhibit to the
Registration Statement, without admitting that we are "experts" within the
meaning of the Securities Act or the rules and regulations of the Commission
issued thereunder with respect to any part of the Registration Statement,
including this exhibit.
Very truly yours,
/s/ Cadwalader, Wickersham & Taft
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-8 of our reports dated August 23,
1999, 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, 1999.
/s/ Deloitte & Touche LLP
December 8, 1999
New York, New York
