<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 8, 2000
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
AND POST-EFFECTIVE AMENDMENT
UNDER THE SECURITIES ACT OF 1933
---------------------
THE BEAR STEARNS COMPANIES INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 13-3286161
(State or Other Jurisdiction of Incorporation or (I.R.S. Employer Identification No.)
Organization)
</TABLE>
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)
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
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At various
times after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box./X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / 333-___
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. / / 333-___
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>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED(1)(4) PER UNIT OFFERING PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities and Warrants (3)
Preferred Stock
Depositary Shares (5)
Totals $9,042,683,162 $9,042,683,162 $2,112,000(6)
</TABLE>
(1) In U.S. dollars or their equivalent in one or more foreign or composite
currencies.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The amount of debt securities and warrants to be registered is their issue
price plus the issue price of any warrants or the issue price of any debt
securities to be issued upon the exercise of the warrants and that amount
also includes any offers and sales of debt securities and warrants in
market-making transactions by Bear, Stearns & Co. Inc., an affiliate of the
Registrant.
(4) An indeterminate principal amount or number of debt securities, preferred
stock, warrants and depositary shares of The Bear Stearns Companies Inc. as
may from time to time be issued at indeterminate prices, with an aggregate
offering price not to exceed $8,000,000,000. Depositary receipts evidencing
the depositary shares will be issued pursuant to a deposit agreement. In the
event the Registrant elects to offer to the public fractional interests in
shares of preferred stock registered by this Registration Statement,
depositary receipts will be distributed to those persons purchasing
fractional interests and shares of preferred stock will be deposited with
the depositary under the deposit agreement.
(5) No additional consideration will be received for the depositary shares.
(6) Pursuant to Rule 429(b) under the Securities Act of 1933, this Registration
Statement includes debt securities and warrants having an initial public
offering price of $1,042,683,162 and previously registered on Registration
Statement No. 333-83049 filed by the Registrant on Form S-3 and declared
effective on August 9, 1999. In connection with such amount of debt
securities and warrants previously registered on Registration Statement
No. 333-83049, the Registrant paid a fee of $2,085,000. In connection with
this Registration Statement, the Registrant is paying a fee based solely on
the additional debt securities and warrants as well as the preferred stock
and depositary shares being registered and having an aggregate initial
public offering price of $8,000,000,000.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this Registration Statement is a combined Prospectus and relates
to this Registration Statement and Registration Statement No. 333-83049.
This Registration Statement also constitutes Post-Effective Amendment No. 1
to Registration Statement No. 333-83049 and such Post-Effective Amendment
shall hereafter become effective concurrently with the effectiveness of this
Registration Statement in accordance with Section 8(c) of the Securities Act
of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT 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 COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 8, 2000
PROSPECTUS
THE BEAR STEARNS COMPANIES INC.
DEBT SECURITIES
WARRANTS
PREFERRED STOCK
DEPOSITARY SHARES
---------------------------------------------------
By this Prospectus, we intend to offer at one or more times--
Debt Securities
Warrants to Purchase Debt Securities
Preferred Stock
Depositary Shares
in one or more series with an aggregate initial public
offering price of up to $9,042,683,162 (as described in the
applicable Prospectus Supplement).
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We will provide the specific terms of these securities in
supplements to this Prospectus. You should read this Prospectus and
any supplements carefully before you invest in the securities.
----------------------------------------------------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
BEAR, STEARNS & CO. INC.
THE DATE OF THIS PROSPECTUS IS MARCH , 2000.
<PAGE>
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. YOU SHOULD ONLY RELY ON THE INFORMATION INCORPORATED BY REFERENCE OR
PROVIDED IN THIS PROSPECTUS OR ANY SUPPLEMENT TO THIS PROSPECTUS. WE HAVE NOT
AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. THESE
SECURITIES ARE NOT BEING OFFERED IN ANY STATE WHERE THE OFFER IS NOT PERMITTED.
YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY SUPPLEMENT
TO THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT
OF THOSE DOCUMENTS.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Where You Can Find More Information......................... 3
Certain Definitions......................................... 4
The Bear Stearns Companies Inc.............................. 4
Use of Proceeds............................................. 5
Ratio Information........................................... 5
Description of Debt Securities.............................. 6
Description of Warrants..................................... 13
Limitations on Issuance of Bearer Debt Securities and Bearer
Warrants.................................................. 16
Description of Preferred Stock.............................. 17
Description of Depositary Shares............................ 20
Book-Entry Procedures and Settlement........................ 24
Plan of Distribution........................................ 25
ERISA Considerations........................................ 27
Experts..................................................... 28
Validity of the Securities.................................. 28
</TABLE>
2
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual and quarterly reports, proxy statements and other information
required by the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), with the Securities and Exchange Commission (the "SEC"). You may read and
copy any of these filed documents at the SEC's public reference rooms located at
450 Fifth Street, N.W., Washington, D.C. 20549, at Seven World Trade Center,
13th Floor, New York, New York 10048 and at Northwest Atrium Center, 5000 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public from the SEC's web site at
http://www.sec.gov. Copies of these reports, proxy statements and other
information can also be inspected at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York 10005.
We have filed with the SEC a registration statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the securities. This Prospectus, which
constitutes a part of that Registration Statement, does not include all the
information contained in that Registration Statement and its exhibits. For
further information with respect to the securities, you should consult the
Registration Statement and its exhibits.
Statements contained in this Prospectus concerning the provisions of any
documents are necessarily summaries of those documents, and each statement is
qualified in its entirety by reference to the copy of the document filed with
the SEC. The Registration Statement and any of its amendments, including
exhibits filed as a part of the Registration Statement or an amendment to the
Registration Statement, are available for inspection and copying through the
entities listed above.
The SEC allows us to "incorporate by reference" the information that we file
with them, which means that we can disclose important information to you by
referring you to the other information we have filed with the SEC. The
information that we incorporate by reference is considered to be part of this
Prospectus, and information that we file later with the SEC will automatically
update and supersede this information.
The following documents filed by us with the SEC pursuant to Section 13 of
the Exchange Act (File No. 1-8989) and any future filings under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act made before the termination of the
offering are incorporated by reference:
(1) the Annual Report on Form 10-K (including the portions of our Annual
Report to Stockholders and Proxy Statement incorporated by reference
therein) for the fiscal year ended June 30, 1999;
(2) the Quarterly Reports on Form 10-Q for the quarters ended
September 24, 1999 and December 31, 1999 and for the five-month period ended
November 26, 1999 and the Quarterly Report on Form 10-Q/A for the quarter
ended December 31, 1999; and
(3) 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,
December 1, 1999, January 19, 2000 and January 25, 2000.
We will provide to you without charge, a copy of any or all documents
incorporated by reference into this Prospectus except the exhibits to those
documents (unless they are specifically incorporated by reference in those
documents). You may request copies by writing or telephoning us at our Corporate
Communications Department, The Bear Stearns Companies Inc., 245 Park Avenue, New
York, New York 10167; telephone number (212) 272-2000.
3
<PAGE>
CERTAIN DEFINITIONS
Unless otherwise stated in this Prospectus:
- "we," "us" and "our" refer to The Bear Stearns Companies Inc. and its
subsidiaries;
- "AMEX" refers to the American Stock Exchange;
- "Bear Stearns" refers to Bear, Stearns & Co. Inc.;
- "BSSC" refers to Bear, Stearns Securities Corp.;
- "BSIL" refers to Bear, Stearns International Limited;
- "NYSE" refers to the New York Stock Exchange;
- "NASD" refers to the National Association of Securities Dealers, Inc.; and
- "securities" refers to the notes, warrants, preferred stock and depositary
shares described in this prospectus.
Bear Stearns, BSSC and BSIL are subsidiaries of The Bear Stearns
Companies Inc.
THE BEAR STEARNS COMPANIES INC.
We are a holding company that, through our principal subsidiaries, Bear
Stearns, BSSC and BSIL, is a leading US investment banking, securities trading
and brokerage firm serving corporations, governments and institutional and
individual investors worldwide. Our business includes:
- market-making and trading in US government, government agency, corporate
debt and equity, mortgage-related, asset-backed and municipal securities;
- trading in options, futures, foreign currencies, interest rate swaps and
other derivative products;
- securities and futures arbitrage;
- securities, options and futures brokerage;
- underwriting and distributing securities;
- providing securities clearance services;
- financing customer activities;
- securities lending;
- arranging for the private placement of securities;
- advising clients 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 NYSE and the AMEX;
- providing fiduciary and other services, such as real estate brokerage,
investment management and investment advisory; and
- financial market and securities research.
Our business is conducted:
- from our principal offices in New York City;
4
<PAGE>
- from domestic regional offices in Atlanta, Boston, Chicago, Dallas, Los
Angeles and San Francisco;
- from representative offices in Beijing, Hong Kong and Shanghai;
- through international offices in Buenos Aires, Dublin, London, Lugano, Sao
Paulo, Singapore and Tokyo; and
- through joint ventures with other firms in Belgium, Greece and Madrid.
Our international offices provide services and engage in investment activities
involving foreign clients and international transactions. We provide
trust-company services through our subsidiary, Custodial Trust Company, located
in Princeton, New Jersey.
Bear Stearns and BSSC are broker-dealers registered with the SEC.
Additionally, Bear Stearns is registered as an investment advisor with the SEC.
Bear Stearns and BSSC also are members of the NYSE, all other principal US
securities and futures exchanges, the NASD, the Commodity Futures Trading
Commission and the National Futures Association. Bear Stearns is a "primary
dealer" in US government securities, as designated by the Federal Reserve Bank
of New York. BSIL is a full service broker-dealer based in London. BSIL is
supervised by and regulated in accordance with the rules of the Securities and
Futures Authority in the United Kingdom and is a member of Eurex, the
International Petroleum Exchange, the London Commodity Exchange, the London
International Financial Futures and Options Exchange (LIFFE), the London
Securities and Derivatives Exchange (OMLX), Marche a Terme International de
France, SA (MATIF) and the London Clearing House.
We are incorporated in the State of Delaware. Our principal executive office
is located at 245 Park Avenue, New York, New York 10167 and our telephone number
is (212) 272-2000. Our Internet address is http://www.bearstearns.com.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, we
intend to use the net proceeds from the sale of the securities for general
corporate purposes, which may include additions to working capital, the
repayment of short-term debt and investments in, or extensions of credit to,
subsidiaries.
RATIO INFORMATION
The ratio of earnings to fixed charges was calculated by dividing the sum of
the fixed charges into the sum of the earnings before taxes and fixed charges.
The ratio of earnings to combined fixed charges and preferred dividends was
calculated by dividing the sum of fixed charges and preferred dividends into the
sum of earnings before taxes and fixed charges. Fixed charges for purposes of
the ratios consist of interest expense and certain other immaterial expenses.
Preferred dividends represent the pre-tax earnings necessary to cover the
dividends on our preferred stock, assuming such earnings are taxed at our
consolidated effective tax rate.
The table below presents the ratio of earnings to fixed charges and the
ratio of earnings to combined fixed charges and preferred dividends for the
fiscal years ended June 30, 1995, 1996, 1997, 1998 and 1999 and the six months
ended December 31, 1998 and December 31, 1999.
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30, SIX MONTHS ENDED
---------------------------------------------------- ---------------------------
DECEMBER 31, DECEMBER 31,
1995 1996 1997 1998 1999 1998 1999
-------- -------- -------- -------- -------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges...... 1.2 1.4 1.4 1.3 1.3 1.2 1.3
Ratio of earnings to combined fixed
charges and preferred dividends....... 1.2 1.4 1.4 1.3 1.3 1.1 1.3
</TABLE>
5
<PAGE>
DESCRIPTION OF DEBT SECURITIES
This section describes certain general terms and provisions of the debt
securities to which any Prospectus Supplement may relate. The particular terms
of any debt securities offered by a Prospectus Supplement and the extent to
which these general terms and provisions will not apply to the particular series
of debt securities being offered, will be described in the Prospectus Supplement
relating to that particular series of debt securities.
We will issue the debt securities under the Indenture, dated as of May 31,
1991, as amended (the "Indenture"), between us and The Chase Manhattan Bank
(formerly known as Chemical Bank and successor by merger to Manufacturers
Hanover Trust Company), as trustee (the "Trustee").
The terms of the debt securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended. We have filed a copy of the Indenture as an exhibit to the
Registration Statement of which this Prospectus forms a part. A copy of the
Indenture is available as set forth under the section entitled "Where You Can
Find More Information."
This section, along with the description in the applicable Prospectus
Supplement, is a summary of the material provisions of the Indenture and is not
complete. It does not restate the Indenture in its entirety. We urge you to read
the Indenture because it, and not these descriptions, defines your rights as a
holder of debt securities.
GENERAL
We may offer debt securities for an aggregate principal amount of up to
$9,042,683,162 under this Prospectus. As of the date of this Prospectus, we have
issued approximately $52,896,489,650 aggregate principal amount of debt
securities under the Indenture, of which $19,953,953,475 is outstanding. The
Indenture permits us to:
- issue debt securities at various times in one or more series;
- issue an unlimited principal amount of debt securities;
- provide for the issuance of other debt securities under the Indenture
other than those authorized on the date of this Prospectus at various
times and without your consent; and
- "reopen" a previous issue of a series of debt securities and issue
additional debt securities of the series.
Unless we provide otherwise in an applicable Prospectus Supplement, we will
issue debt securities only in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000, and in bearer form with or without
coupons in the denomination of $5,000. If we issue bearer debt securities of a
series, we will describe the federal income tax consequences and other special
considerations applicable to those bearer debt securities in the Prospectus
Supplement relating to that series.
Unless we provide otherwise in the applicable Prospectus Supplement and
subject to any limitations in the Indenture, you may transfer or exchange your
registered securities at the corporate trust office or agency of the Trustee in
the City and State of New York without paying a service charge, other than
applicable tax or governmental charges. Bearer debt securities will be
transferable by delivery. We will describe the provisions relating to the
exchange of bearer debt securities of any series in the Prospectus Supplement
relating to that series.
If the principal, any premium or interest on the debt securities of any
series is payable in a foreign or composite currency, the applicable Prospectus
Supplement will describe any restrictions, elections, federal income tax
consequences, specific terms and other information that apply to those debt
securities and the currency.
6
<PAGE>
We may sell one or more series of debt securities at a substantial discount
below the stated principal amount, bearing either no interest or interest at a
rate that at the time of issuance is below market rate. One or more series of
debt securities may be variable rate debt securities that may be exchanged for
fixed rate debt securities. We will describe the federal income tax consequences
and other special considerations applicable to a series in the Prospectus
Supplement relating to that series.
RANKING
The debt securities will be unsecured and will rank equally with all of our
other unsecured and unsubordinated indebtedness. We extend credit to our
subsidiaries at various times. Any credit we may extend to our subsidiaries may
be subordinated to the claims of unaffiliated creditors of those subsidiaries.
We are a holding company and depend on the earnings and cash flow of our
subsidiaries to meet our obligations under the debt securities. Because the
creditors of our subsidiaries generally would have a right to receive payment
superior to our right to receive payment from the assets of our subsidiaries,
the holders of our debt securities will effectively be subordinated to the
creditors of our subsidiaries. If we were to liquidate or reorganize, your right
to participate in any distribution of our subsidiaries' assets is necessarily
subject to the senior claims of the subsidiaries' creditors. Furthermore, the
Exchange Act and the rules of certain exchanges and other regulatory bodies, as
well as covenants governing certain indebtedness of our subsidiaries, impose net
capital requirements on some of our subsidiaries that limit their ability to pay
dividends or make loans and advances to us.
METHODS OF RECEIVING PAYMENT ON THE DEBT SECURITIES
REGISTERED DEBT SECURITIES. Unless we otherwise provide in the applicable
Prospectus Supplement, if the debt securities are in registered form, then the
principal, any premium and interest will be payable at the corporate trust
office or agency of the Trustee in the City and State of New York.
Interest payments made before maturity or redemption on registered debt
securities may be made:
- at our option, by check mailed to the address of the person entitled to
payment; or
- at your option, if you hold at least $10 million in principal amount of
registered debt securities, by wire transfer to an account you have
designated in writing at least 16 days before the date on which the
payment is due.
BEARER DEBT SECURITIES. Unless we provide otherwise in the applicable
Prospectus Supplement, if the debt securities are in bearer form, then the
principal, any premium and interest will be payable at the Trustee's office
located outside the United States that is maintained for this purpose. No
payment on a bearer debt security will be made by mail to a US address or by
wire transfer to an account maintained in the United States, or will otherwise
be made inside the United States, unless otherwise provided in the applicable
Prospectus Supplement.
NOTICES
REGISTERED DEBT SECURITIES. Unless otherwise provided in the applicable
Prospectus Supplement, any notice given to a holder of a registered debt
security will be mailed to the last address of such holder set forth in the
applicable security register.
BEARER DEBT SECURITIES. Any notice given to a holder of a bearer debt
security will be published in a daily newspaper of general circulation in the
city or cities specified in the Prospectus Supplement relating to such bearer
debt security.
7
<PAGE>
GLOBAL SECURITIES
The debt securities may be issued in whole or in part in the form of one or
more global securities that will be deposited with, or on behalf of, a
depositary identified in the Prospectus Supplement relating to such series.
Global securities may be issued in either registered or bearer form and in
either temporary or definitive form.
Unless and until a global security is exchanged in whole or in part for the
applicable definitive debt securities, a global security may only be transferred
as a whole by:
- the depositary for the global security to a nominee of the depositary;
- a nominee of the depositary to the depositary or another nominee of the
depositary; or
- the depositary or any nominee of the depositary to a successor of the
depositary or a nominee of the successor.
Each Prospectus Supplement relating to a series will describe the specific
terms of the depositary arrangement with respect to the applicable debt
securities of that series. We anticipate that the following provisions will
apply to all depositary arrangements.
Once a global security is issued, the depositary will credit on its
book-entry system the respective principal amounts of the individual debt
securities represented by that global security to the accounts of institutions
that have accounts with the depositary. These institutions are known as
participants. The underwriters for the debt securities will designate the
accounts to be credited. However, if we have offered or sold the debt securities
either directly or through agents, we or the agents will designate the
appropriate accounts to be credited.
Ownership of beneficial interest in a global security will be limited to
participants or persons that may hold beneficial interests through participants.
Ownership of beneficial interest in a global security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the depositary's participants or persons that hold through participants. The
laws of some states require that certain purchasers of securities take physical
delivery of securities. Such limits and such laws may limit the market for
beneficial interests in a global security.
So long as the depositary for a global security, or its nominee, is the
registered owner of a global security, the depositary or nominee, as the case
may be, will be considered the sole owner or holder of the debt securities
represented by the global security for all purposes under the Indenture. Except
as provided below, owners of beneficial interests in a global security:
- will not be entitled to have debt securities represented by global
securities registered in their names;
- will not receive or be entitled to receive physical delivery of debt
securities in definitive form; and
- will not be considered the owners or holders of these securities under the
Indenture.
Subject to the restrictions discussed under the section entitled
"Limitations on Issuance of Bearer Debt Securities and Bearer Warrants,"
payments of principal, any premium and interest on the individual debt
securities registered in the name of the depositary or its nominee will be made
to the depositary or its nominee, as the case may be, as the holder of such
global security. Neither we nor the Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a global security, or for maintaining,
supervising or reviewing any records relating to beneficial ownership interests
and each of us and the Trustee may act or refrain from acting without liability
on any information provided by the depositary.
We expect that the depositary, after receiving any payment of principal, any
premium or interest in respect of a global security, will immediately credit the
accounts of the participants with payment in
8
<PAGE>
amounts proportionate to their respective holdings in principal amount of
beneficial interest in a global security as shown on the records of the
depositary. We also expect that payments by participants to owners of beneficial
interests in a global security will be governed by standing customer
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such participants.
Receipt by owners of beneficial interests in a temporary global security of
payments of principal, any premium or interest relating to their interests will
be subject to the restrictions discussed under the section entitled "Limitations
on Issuance of Bearer Debt Securities and Bearer Warrants."
If interest is paid on a bearer global security, or if no interest has been
paid but the bearer global security remains outstanding beyond a reasonable
period of time after the restricted period (as defined in applicable US Treasury
regulations) has ended, the depositary must provide us with a certificate to the
effect that the owners of the beneficial interests in the bearer global security
are non-US persons or US persons that are permitted to hold bearer debt
securities under applicable US Treasury regulations.
In general, US persons that are permitted to hold bearer debt securities are
US persons who acquire the securities through the foreign branch of certain US
financial institutions and certain US financial institutions that hold the
bearer debt securities for resale to non-US persons or who hold the bearer debt
securities on their own account through a foreign branch. The certificate must
be provided within a reasonable period of time after the end of the restricted
period, but in no event later than the date when interest is paid. The
certificate must be based on statements provided to the depositary by the owners
of the beneficial interests.
If the depositary is at any time unwilling or unable or ineligible to
continue as depositary and we have not appointed a successor depositary within
90 calendar days, we will issue debt securities in certificated form in exchange
for all outstanding global securities.
In addition, we may at any time determine not to have debt securities
represented by a global security. In that event, we will issue debt securities
in definitive form in exchange for all global securities. An owner of a
beneficial interest in the global securities to be exchanged will be entitled to
delivery in definitive form of debt securities equal in principal amount to such
beneficial interest and to have such debt securities registered in its name.
Individual debt securities of the series so issued will be issued as:
(1) registered debt securities in denominations, unless we specify
otherwise, of $1,000 and integral multiples of $1,000 if the debt
securities of that series are issuable as registered debt securities;
(2) bearer debt securities in the denomination or denominations we have
specified if the debt securities of that series are issuable as bearer
debt securities; or
(3) either registered or bearer debt securities, if the debt securities of
that series are issuable in either form.
You should read the section entitled "Limitations on Issuance of Bearer
Securities and Bearer Warrants" for a description of certain restrictions on the
issuance of individual bearer debt securities in exchange for beneficial
interests in a global security.
LIMITATION ON LIENS
We may not, and may not permit any of our Restricted Subsidiaries to, issue,
incur, assume, guarantee or suffer to exist any indebtedness for borrowed money
secured by a pledge of, lien on or security interest in any shares of voting
stock of any Restricted Subsidiary without effectively providing that the
securities issued under the Indenture, including the debt securities, will be
secured equally and ratably with such secured indebtedness.
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The term "Restricted Subsidiary" as defined in the Indenture means Bear
Stearns, Custodial Trust Company, BSSC and any of our other subsidiaries owning,
directly or indirectly, any of the common stock of, or succeeding to a
significant portion of the business, property or assets of, a Restricted
Subsidiary, or with which a Restricted Subsidiary is merged or consolidated.
MERGER AND CONSOLIDATION
We may consolidate or merge with or into any other corporation, and may
sell, lease or convey all or substantially all of our assets to any corporation,
organized and existing under the laws of the United States or any US state, if:
(1) we or any other successor corporation shall not immediately after the
merger or consolidation be in default under the Indenture; and
(2) the continuing corporation (if other than us), or the resulting entity
that receives substantially all of our assets, shall expressly assume:
(a) payment of the principal of, and premium, if any, and interest on,
(and any additional amounts payable in respect of) the debt
securities and
(b) performance and observance of all of the covenants and conditions of
the Indenture to be performed or observed by us.
Unless otherwise provided in the applicable Prospectus Supplement, the
Indenture permits:
- a consolidation, merger, sale of assets or other similar transaction that
may adversely affect our creditworthiness or that of a successor or
combined entity;
- a change in control; or
- a highly leveraged transaction involving us, whether or not involving a
change in control;
and the Indenture, therefore, will not protect holders of the debt securities
from the substantial impact that any of the transactions described above may
have on the value of the debt securities.
MODIFICATION AND WAIVER
With the consent of the holders of 66 2/3% in principal amount of the
outstanding debt securities of each series affected, we and the Trustee may
modify or amend the Indenture, without the consent of each holder of the
outstanding debt security affected, unless the modification or amendment:
- changes the stated maturity or the date of any installment of principal
of, or interest on, any debt security or changes its redemption price or
optional redemption price;
- reduces the principal amount of, or the rate of interest on, or the amount
of any additional amount payable on, any debt security, or reduces the
amount of principal that could be declared due and payable before the
stated maturity of that debt security, or changes our obligation to pay
any additional amounts (except as permitted under the Indenture), or
reduces the amount of principal of a discount security that would be due
and payable if accelerated under the Indenture;
- changes the place or currency of any payment of principal, premium, if
any, or interest on any debt security;
- impairs the right to institute suit for the enforcement of any payment on
or with respect to any debt security;
- reduces the percentage in principal amount of the outstanding debt
securities of any series, the consent of whose holders is required to
modify or amend the Indenture; or
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- modifies the foregoing requirements or reduces the percentage of
outstanding debt securities necessary to waive any past default to less
than a majority.
We may make any of these amendments or modifications, however, with the consent
of the holder of each outstanding debt security affected.
Except with respect to certain fundamental provisions of which a default
would require the consent of the holders of each outstanding security of a
series affected to waive, the holders of at least a majority in principal amount
of outstanding debt securities of any series may, with respect to that series,
waive past defaults under the Indenture and waive compliance with certain
provisions of the Indenture, either in a specific instance or generally.
EVENTS OF DEFAULT
Under the Indenture, an "Event of Default" with respect to any series of
debt securities means:
(1) a failure to pay any interest, or any additional amounts payable, on any
debt securities of that series for 30 days after payment is due;
(2) a failure to pay the principal of, and premium, if any, on any debt
security of that series when due;
(3) a failure to deposit any sinking fund payment when due relating to that
series;
(4) a failure to perform any other covenant contained in the Indenture or
relating to that series that has continued for 60 days after written
notice was provided;
(5) a failure lasting 10 days after notice relating to any of our other
indebtedness for borrowed money or indebtedness of any Restricted
Subsidiary in excess of $10 million, that results in such indebtedness
becoming due and payable before maturity;
(6) certain events of bankruptcy, insolvency or reorganization; and
(7) any other Event of Default with respect to debt securities of that
series.
CONCERNING THE TRUSTEE
Within 90 days after any default, the Trustee will notify you of the
default, unless the default is cured or waived.
The Trustee may withhold notice of a default (except a default relating to
the payment of principal, premium or interest, or any additional amounts related
to any debt security or the payment of any sinking fund installment), if the
Trustee in good faith determines that withholding notice is in your interests.
If a default in the performance or breach of any covenant in the Indenture
or relating to that series occurs and continues for 60 days after written notice
has been given to us or the Trustee by the holders of at least 25% in principal
amount of the outstanding debt securities of a series, the Trustee will not give
notice to the holders for at least an additional 30 days after such default.
If an event of default for any series of debt securities occurs and
continues, the Trustee or the holders of 25% of the aggregate principal amount
(or any lesser amount that the series may provide) of the outstanding debt
securities affected by the default may require us to immediately repay the
entire principal amount (or any lesser amount that the series may provide) of
the outstanding debt securities of such series.
So long as the Trustee has not yet obtained a judgment or decree for payment
of money due, and we have paid all amounts due (other than those due solely as a
result of acceleration) and have remedied all Events of Default, the holders of
a majority in principal amount of the outstanding debt securities of the
affected series may rescind any acceleration or may waive any past default.
However,
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the holders of a majority in principal amount of all outstanding debt securities
of the affected series may not waive any Event of Default with respect to any
series of debt securities in the following two circumstances:
- a failure to pay the principal of, and premium, if any, or interest on, or
any additional amounts payable in respect of, any debt security of that
series for which payment had not been subsequently made; or
- a covenant or provision that cannot be modified or amended without the
consent of each holder of outstanding debt security of that series.
The holders of a majority in principal amount of the outstanding debt
securities of a series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to debt securities of that series,
provided that this direction is not in conflict with any rule of law or the
Indenture. Before proceeding to exercise any right or power under the Indenture
at the direction of those holders, the Trustee will be entitled to receive from
those holders reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in complying with any such direction.
We are required to deliver to the Trustee an annual statement as to our
fulfillment of all of our obligations under the Indenture.
DEFEASANCE
If provided for under the Indenture with respect to debt securities of any
series that are registered debt securities denominated and payable only in US
dollars (except as otherwise provided under the Indenture), we will:
- be discharged from any and all obligations in respect of the debt
securities of that series under the Indenture (except for certain
obligations to register the transfer or exchange of debt securities of
that series, replace stolen, lost or mutilated debt securities of that
series, maintain paying agents and hold moneys for payment in trust) on
the 91st day after the applicable conditions described in this paragraph
have been satisfied; or
- not be subject to provisions of the Indenture described above under the
subsections entitled "--Limitation on Liens" and "--Merger and
Consolidation" with respect to the debt securities of that series;
in each case if we deposit with the Trustee, in trust, money or US government
obligations that, through the payment of interest and principal in accordance
with their terms, will provide money in an amount sufficient to pay all the
principal (including any mandatory sinking fund payments) of, and premium, if
any, and any interest on, the debt securities of that series on the dates such
payments are due in accordance with the terms of those debt securities.
To exercise either option, we are required to deliver to the Trustee an
opinion of counsel to the effect that:
(1) the deposit and related defeasance would not cause the holders of the
debt securities of the series being defeased to recognize income, gain or
loss for US federal income tax purposes; and
(2) if the debt securities of that series are then listed on the NYSE, the
exercise of the option would not result in delisting.
We may specify defeasance provisions with respect to any series of debt
securities.
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DESCRIPTION OF WARRANTS
This section sets forth certain general terms and provisions of the warrants
to which any Prospectus Supplement may relate. The particular terms of the
warrants offered by any Prospectus Supplement and the extent to which such
general terms and provisions will not apply to the warrants so offered will be
described in the Prospectus Supplement relating to those warrants.
We may issue warrants for the purchase of debt securities, warrants to buy
or sell debt securities of or guaranteed by the United States or other sovereign
states ("Government debt securities"), warrants to buy or sell currencies,
currency units or units of a currency index or currency basket, warrants to buy
or sell units of a stock index or stock basket and warrants to buy and sell a
commodity or units of a commodity index or basket. Warrants may be offered
independently of or together with any series of debt securities and may be
attached to or separate from those debt securities. The warrants will be settled
either through physical delivery or through payment of a cash settlement value
as set forth in this Prospectus and in any applicable Prospectus Supplement.
Each series of warrants will be issued under a separate warrant agreement to
be entered into between us and a bank or a trust company, as warrant agent, all
as described in the Prospectus Supplement relating to that series of warrants.
The warrant agent will act solely as our agent under the applicable warrant
agreement and in connection with the certificates for any warrants of that
series, and will not assume any obligation or relationship of agency or trust
for or with any holders of those warrant certificates or beneficial owners of
those warrants.
This section, along with the description in the applicable Prospectus
Supplement, is a summary of certain provisions of the forms of warrant
agreements and warrant certificates and is not complete. We urge you to read the
warrant agreements and the warrant certificates, because those documents, and
not these descriptions, define your rights as a holder of warrants. We have
filed copies of the forms of the warrant agreements and warrant certificates as
exhibits to the Registration Statement of which this Prospectus is a part.
Copies of the forms of warrant agreements and warrant certificates are available
as set forth under the section entitled "Where You Can Find More Information."
GENERAL
The terms of any particular series of warrants will be described in the
Prospectus Supplement relating to that particular series of warrants, including,
where applicable:
(1) whether the warrant is for debt securities, Government debt securities,
currencies, currency units, currency indices or currency baskets, stock
indices, stock baskets, commodities, commodity indices or any other index
or reference as described in the warrant;
(2) the offering price;
(3) the currency, currency unit, currency index or currency basket based on
or relating to currencies for which those warrants may be purchased;
(4) the date on which the right to exercise those warrants will commence and
the date on which that right will expire;
(5) whether those warrants are to be issuable in registered or bearer form;
(6) whether those warrants are extendible and the period or periods of such
extendibility;
(7) the terms upon which bearer warrants of any series may be exchanged for
registered warrants of that series;
(8) whether those warrants will be issued in book-entry form, as a global
warrant certificate, or in certificated form;
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(9) US federal income tax consequences applicable to those warrants; and
(10) any other terms of those warrants not inconsistent with the applicable
warrant agreement.
If the offered warrants are to purchase debt securities, the Prospectus
Supplement will also describe:
(1) the designation, aggregate principal amount, currency, currency unit or
currency basket and other terms of the debt securities purchasable upon
exercise of those warrants;
(2) the designation and terms of the debt securities with which those
warrants are issued and the number of those warrants issued with each
such debt security;
(3) the date or dates on and after which those warrants and the related debt
securities will be separately transferable; and
(4) the principal amount of debt securities purchasable upon exercise of one
offered warrant and the price at which and currency, currency unit or
currency basket in which such principal amount of debt securities may be
purchased upon such exercise.
Before you exercise your warrants, you will not have any of the rights of
holders of the debt securities of the series purchasable upon such exercise,
including the right to receive payments of principal, any premium or interest on
those debt securities, or to enforce any of the covenants in the Indenture.
If the offered warrants are to buy or sell Government debt securities or a
currency, currency unit, currency index or currency basket, the Prospectus
Supplement will describe:
- the amount and designation of the Government debt securities or currency,
currency unit, currency index or currency basket, as the case may be,
subject to each warrant; and
- whether those warrants provide for cash settlement or delivery of the
Government debt securities or currency, currency unit, currency index or
currency basket upon exercise.
If the offered warrants are warrants on a stock index or a stock basket,
they will provide for payment of an amount in cash that will be determined by
reference to increases or decreases in such stock index or stock basket. The
Prospectus Supplement will describe:
- the terms of those warrants;
- the stock index or stock basket covered by those warrants; and
- the market to which the stock index or stock basket relates.
If the offered warrants are warrants on a commodity or commodity index,
those warrants will provide for cash settlement or delivery of the particular
commodity or commodity index. The Prospectus Supplement will describe:
- the terms of those warrants;
- the commodity or commodity index covered by those warrants; and
- any market to which the commodity or commodity index relates.
You may exchange registered warrants of any series for registered warrants
of the same series representing in total the number of warrants that you have
surrendered for exchange. To the extent permitted, you may exchange warrant
certificates and transfer registered warrants at the corporate trust office of
the warrant agent for that series of warrants (or any other office indicated in
the Prospectus Supplement relating to that series of warrants).
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As the applicable Prospectus Supplement permits, a single global warrant
certificate, registered in the name of the nominee of the depository of the
warrants, or definitive certificates that may be exchanged on a fixed date, or
on a date or dates selected by us, for interests in a global warrant certificate
may be issued for:
- warrants to buy or sell Government debt securities or a currency, currency
unit, currency index or currency basket; and
- warrants on stock indices or stock baskets or on commodities or commodity
indices.
Bearer warrants will be transferable by delivery. The applicable Prospectus
Supplement will describe the terms of exchange applicable to any bearer
warrants.
EXERCISE OF WARRANTS
As set forth in, or calculable from, the Prospectus Supplement relating to
each series of warrants, each warrant you purchase will entitle you to:
- buy the equivalent amount of the debt securities;
- buy or sell the equivalent amount of Government debt securities;
- buy or sell the equivalent amount of a currency, currency unit, currency
index or currency basket, commodity or commodities at the exercise price;
- receive a settlement value for the equivalent amount of Government debt
securities; or
- receive a settlement value for the equivalent amount of a currency,
currency unit, currency index or currency basket, stock index or stock
basket, commodity or commodity index.
You may exercise your warrants at the corporate trust office of the warrant
agent (or any other office indicated in the Prospectus Supplement relating to
those warrants) up to 5:00 p.m., New York time, on the date stated in the
Prospectus Supplement relating to those warrants or as may be otherwise stated
in the Prospectus Supplement. If you do not exercise your warrants before the
time on that date (or such later date that we may set), your unexercised
warrants will become void.
Subject to any restrictions and additional requirements that may be set
forth in the Prospectus Supplement, you may exercise your warrants by:
- delivery to the warrant agent of the warrant certificate evidencing such
warrants properly completed and duly executed; and
- payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the debt securities, or (except in the case of
warrants providing for cash settlement) payment for or delivery of the
Government debt securities or currency, currency unit, currency basket,
stock index, stock basket, commodity or commodity index, as the case may
be, purchased or sold upon such exercise.
Only registered debt securities will be issued and delivered upon exercise
of registered warrants. Warrants will be deemed to have been exercised upon
receipt of such warrant certificate and any payment, if applicable, at the
corporate trust office of the warrant agent or any other office indicated in the
applicable Prospectus Supplement and we will, as soon as practicable after such
receipt and payment, issue and deliver the debt securities purchasable upon such
exercise, or buy or sell such Government debt securities or currency, currency
unit, currency basket, commodity or commodities or pay the settlement value in
respect of the warrants.
If fewer than all of the warrants represented by such warrant certificate
are exercised, a new warrant certificate will be issued for the remaining amount
of the warrants. Special provisions relating
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to the exercise of any bearer warrants or automatic exercise of warrants will be
described in the applicable Prospectus Supplement.
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES AND BEARER WARRANTS
In compliance with US federal income tax laws and regulations, we and any
underwriter, agent or dealer participating in the offering of any bearer debt
security will agree that, in connection with the original issuance of the bearer
debt security or during the restricted period (as defined in applicable US
Treasury regulations) of the bearer debt security, we will not offer, sell or
deliver such bearer debt security, directly or indirectly, to a US Person or to
any person within the United States, except to the extent permitted under US
Treasury regulations.
Each bearer debt security, including any bearer global securities that are
not exchangeable for definitive individual securities before their stated
maturity, will bear the following legend on the face of the security and on any
interest coupons that may be detachable:
"Any United States Person who holds this obligation will be subject to
limitations under the United States income tax laws, including the limitations
provided in Sections 165(j) and 1287(a) of the Internal Revenue Code."
The legend also will be evidenced on any book-entry system maintained with
respect to the bearer debt securities.
The sections referred to in this legend prohibit, with certain exceptions, a
US taxpayer who holds bearer debt securities to deduct any loss, and such US
taxpayer will not be eligible for capital gain treatment with respect to any
gain, realized on a sale, exchange, redemption or other disposition of those
bearer debt securities.
As used in this Prospectus, "United States" means the United States of
America and its possessions, and "US Person" means a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States, or an estate or trust the income of
which is subject to US federal income taxation regardless of its source.
Pending the availability of a definitive global security or individual
bearer debt securities, as the case may be, debt securities that are issuable as
bearer debt securities may initially be represented by a single temporary global
security. Subject to any further limitations described in the applicable
Prospectus Supplement, the temporary global security will be exchangeable for
interests in either a definitive global security or for such individual bearer
debt securities only upon receipt of a "Certificate of Non-US Beneficial
Ownership." However, if the certificate has already been provided by the
depositary, because interest has been paid on the global security or because a
reasonable period of time after the end of the restricted period has passed, the
global security will not be exchangeable for interests in either a definitive
global security or individual bearer debt securities.
The Prospectus Supplement relating to bearer warrants will describe any
limitations on the offer, sale, delivery and exercise of bearer warrants
(including a requirement that a Certificate of Non-US Beneficial Ownership be
delivered once a bearer warrant is exercised).
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DESCRIPTION OF PREFERRED STOCK
This section sets forth certain general terms and provisions of the
preferred stock to which any Prospectus Supplement may relate. The particular
terms of the preferred stock offered by any Prospectus Supplement and the
extent, if any, to which such general terms will not apply to the preferred
stock so offered will be described in the Prospectus Supplement relating to such
preferred stock.
This section, along with the description in the applicable Prospectus
Supplement, is a summary of certain provisions of our restated certificate of
incorporation, including the applicable certificate of designations, and is not
complete.
We urge you to read the restated certificate of incorporation and the
certificate of designations for the relevant series of preferred stock in which
you are intending to invest, because those documents, and not these
descriptions, define your rights as a holder of preferred stock. We have filed a
copy of the restated certificate of incorporation and the certificates of
designations for our currently outstanding shares of preferred stock as exhibits
to the Registration Statement of which this Prospectus is a part. Copies of the
restated certificate of incorporation are available as set forth under the
section entitled "Where You Can Find More Information."
GENERAL
Our restated certificate of incorporation authorizes the issuance of
10,000,000 shares of preferred stock, $1.00 par value. We may issue preferred
stock from time to time in one or more series. The exact terms of each series
will be established by our board of directors or a duly authorized committee of
the board.
The terms of any particular series of preferred stock will be described in
the Prospectus Supplement relating to that particular series of preferred stock,
including, where applicable:
(1) the designation, stated value and liquidation preference of such
preferred stock and the number of shares offered;
(2) the offering price;
(3) the dividend rate or rates (or method of calculation), the date or dates
from which dividends shall accrue, and whether such dividends shall be
cumulative or noncumulative and, if cumulative, the dates from which
dividends shall commence to cumulate;
(4) any redemption or sinking fund provisions;
(5) the amount that shares of such series shall be entitled to receive in
the event of our liquidation, dissolution or winding up;
(6) the terms and conditions, if any, on which shares of such series shall
be exchangeable for shares of our stock of any other class or classes, or
other series of the same class;
(7) the voting rights, if any, of shares of such series in addition to those
set forth in "Voting Rights" below;
(8) the status as to reissuance or sale of shares of such series redeemed,
purchased or otherwise reacquired, or surrendered to us on conversion or
exchange;
(9) the conditions and restrictions, if any, on the payment of dividends or
on the making of other distributions on, or the purchase, redemption or
other acquisition by us or any subsidiary, of the common stock or of any
other class of our stock ranking junior to the shares of such series as
to dividends or upon liquidation;
(10) the conditions and restrictions, if any, on the creation of
indebtedness of us or of any subsidiary, or on the issue of any
additional stock ranking on a parity with or prior to the shares of such
series as to dividends or upon liquidation; and
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(11) any additional dividend, liquidation, redemption, sinking or retirement
fund and other rights, preferences, privileges, limitations and
restrictions of such preferred stock.
The preferred stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the applicable Prospectus Supplement, the shares
of each series of preferred stock will upon issuance rank senior to the common
stock and on a parity in all respects with each other outstanding series of
preferred stock. As of December 31, 1999, there were outstanding:
- 479,250 shares of Adjustable Rate Cumulative Preferred Stock, Series A;
- 5,000,000 depositary shares, each representing a one-fourth interest in a
share of 6.15% Cumulative Preferred Stock, Series E;
- 4,000,000 depositary shares, each representing a one-fourth interest in a
share of 5.72% Cumulative Preferred Stock, Series F; and
- 4,000,000 depositary shares, each representing a one-fourth interest in a
share of 5.49% Cumulative Preferred Stock, Series G.
The preferred stock will have no preemptive rights to subscribe for any
additional securities that may be issued by us.
DIVIDENDS
Unless otherwise specified in the applicable Prospectus Supplement, before
any dividends may be declared or paid to the holders of shares of our common
stock, par value $1.00 per share, or of any other of our capital stock ranking
junior to any series of the preferred stock as to the payment of dividends, the
holders of the preferred stock of that series will be entitled to receive, when
and as declared by the board of directors or a duly authorized committee of the
board, out of the our net profits or net assets legally available therefor,
dividends payable quarterly on January 15, April 15, July 15 and October 15, in
each year at such rates as will be specified in the applicable Prospectus
Supplement. Such rates may be fixed or variable or both. If variable, the
formula used for determining the dividend rate for each dividend period will be
specified in the applicable Prospectus Supplement. Dividends will be payable to
the holders of record as they appear on our stock transfer records on such dates
(not less than 15 days nor more than 60 days prior to a dividend payment date)
as will be fixed by the board of directors or a duly authorized committee
thereof. Dividends will be paid in the form of cash.
Dividends on any series of preferred stock may be cumulative or
noncumulative, as specified in the applicable Prospectus Supplement. If the
board of directors fails to declare a dividend payable on a dividend payment
date on any series of preferred stock for which dividends are noncumulative,
then the holders of the preferred stock of that series will have no right to
receive a dividend in respect of the dividend period relating to such dividend
payment date, and we will have no obligation to pay the dividend accrued for
such period, whether or not dividends on that series are declared or paid on any
future dividend payment dates. If dividends on any series of preferred stock are
not paid in full or declared in full and sums set apart for the payment thereof,
then no dividends shall be declared and paid on that series unless declared and
paid ratably on all shares of every series of preferred stock then outstanding,
including dividends accrued or in arrears, if any, in proportion to the
respective amounts that would be payable per share if all such dividends were
declared and paid in full.
The Prospectus Supplement relating to a series of preferred stock will
specify the conditions and restrictions, if any, on the payment of dividends or
on the making of other distributions on, or the purchase, redemption or other
acquisition by us or any of our subsidiaries of, the common stock or of any
other class of our stock ranking junior to the shares of that series as to
dividends or upon liquidation and any other preferences, rights, restrictions
and qualifications that are not inconsistent with the certification of
incorporation.
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LIQUIDATION RIGHTS
Unless otherwise specified in the Prospectus Supplement relating to a series
of preferred stock, upon our liquidation, dissolution or winding up (whether
voluntary or involuntary) the holders of preferred stock of that series will be
entitled to receive out of our assets available for distribution to our
stockholders, whether from capital, surplus or earnings, the amount specified in
the applicable Prospectus Supplement for that series, together with all
dividends accrued and unpaid, before any distribution of the assets will be made
to the holders of common stock or any other class or series of shares ranking
junior to that series of preferred stock upon liquidation, dissolution or
winding up, and will be entitled to no other or further distribution. If, upon
our liquidation, dissolution or winding up the assets distributable among the
holders of a series of preferred stock shall be insufficient to permit the
payment in full to the holders of that series of preferred stock of all amounts
payable to those holders, then the entire amount of our assets thus
distributable will be distributed ratably among the holders of that series of
preferred stock in proportion to the respective amounts that would be payable
per share if those assets were sufficient to permit payment in full.
Neither our consolidation, merger or other business combination with or into
any other individual, firm, corporation or other entity nor the sale, lease,
exchange or conveyance of all or any part of our property, assets or business
will be deemed to be a liquidation, dissolution or winding up.
REDEMPTION
If so specified in the applicable Prospectus Supplement, any series of
preferred stock may be redeemable, in whole or in part, at our option or
pursuant to a retirement or sinking fund or otherwise, on terms and at the times
and the redemption prices specified in that Prospectus Supplement. If less than
all shares of the series at the time outstanding are to be redeemed, the shares
to be redeemed will be selected pro rata or by lot, in such manner as may be
prescribed by resolution of the board of directors.
Notice of any redemption of a series of preferred stock will be given by
publication in a newspaper of general circulation in the Borough of Manhattan,
the City of New York, not less than 30 nor more than 60 days prior to the
redemption date. We will mail a similar notice, postage prepaid, not less than
30 nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of shares of that series at the addresses shown on
our stock transfer records, but the mailing of such notice will not be a
condition of such redemption. In order to facilitate the redemption of shares of
preferred stock, the board of directors may fix a record date for the
determination of the shares to be redeemed. Such record date will be not more
than 60 days nor less than 30 days prior to the redemption date.
Prior to the redemption date, we will deposit money for the payment of the
redemption price with a bank or trust company doing business in the Borough of
Manhattan, the City of New York, and having a capital and surplus of at least
$10,000,000. Unless we fail to make such deposit, on the redemption date, all
dividends on the series of preferred stock called for redemption will cease to
accrue and all rights of the holders of shares of that series as our
stockholders shall cease, except the right to receive the redemption price (but
without interest). Unless otherwise specified in the applicable Prospectus
Supplement, any monies so deposited which remain unclaimed by the holders of the
shares of that series at the end of six years after the redemption date will
become our property, and will be paid by the bank or trust company with which it
has been so deposited to us.
CONVERSION RIGHTS
No series of preferred stock will be convertible into common stock.
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VOTING RIGHTS
Unless otherwise determined by the board of directors and indicated in the
applicable Prospectus Supplement, holders of the preferred stock of that series
will not have any voting rights except as set forth below or as otherwise from
time to time required by law. Whenever dividends on any series of preferred
stock or any other class or series of stock ranking on a parity with that series
with respect to the payment of dividends shall be in arrears for dividend
periods, whether or not consecutive, containing in the aggregate a number of
days equivalent to six calendar quarters, the holders of shares of that series
(voting separately as a class with all other series of preferred stock upon
which like voting rights have been conferred and are exercisable) will be
entitled to vote for the election of two of the authorized number of our
directors at the next annual meeting of stockholders and at each subsequent
meeting until all dividends accumulated on that series have been fully paid or
set apart for payment. The term of office of all directors elected by the
holders of a series of preferred stock shall terminate immediately upon the
termination of the right of the holders of that series to vote for directors.
Whenever the shares of a series are or become entitled to vote, each holder of
shares of that series will have one vote for each share held.
So long as shares of any series of preferred stock remain outstanding, we
shall not, without the consent of the holders of at least two-thirds of the
shares of that series outstanding at the time (voting separately as a class with
all other series of preferred stock upon which like voting rights have been
conferred and are exercisable):
(1) issue or increase the authorized amount of any class or series of stock
ranking senior to the shares of that series as to dividends or upon
liquidation; or
(2) amend, alter or repeal the provisions of our certificate of
incorporation or of the resolutions contained in the certificate of
designation, whether by merger, consolidation or otherwise, so as to
materially and adversely affect any power, preference or special right of
the outstanding shares of that series or the holders thereof. Any
increase in the amount of the authorized common stock or authorized
preferred stock or the creation and issuance of common stock or any other
series of preferred stock ranking on a parity with or junior to a series
of preferred stock as to dividends and upon liquidation shall not be
deemed to materially and adversely affect the powers, preferences or
special rights of the shares of that series.
Unless otherwise indicated in the applicable Prospectus Supplement, the
transfer agent, dividend disbursing agent and registrar for each series of
preferred stock will be Chase Mellon Shareholder Services L.L.C.
DESCRIPTION OF DEPOSITARY SHARES
This section sets forth certain general terms and provisions of the
depositary shares and depositary receipts which we may elect to issue.
This section, along with the description in the applicable Prospectus
Supplement, is a summary of certain provisions of the deposit agreement relating
to the applicable series of Preferred Stock and is not complete. Any such
deposit agreement will be filed as an exhibit to or incorporated by reference in
the Registration Statement of which this Prospectus is a part.
GENERAL
We may, at our option, elect to offer fractional interests in shares of a
series of preferred stock, rather than whole shares. If we exercise our option,
we will provide for the issuance by a depositary of depositary receipts
evidencing depositary shares, each of which will represent a fractional interest
(to be specified in the applicable Prospectus Supplement) in a share of a
particular series of the Preferred Stock as more fully described below.
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If we offer fractional shares of any series of preferred stock, those shares
will be deposited under a separate deposit agreement among us, a depositary bank
or trust company selected by us and having its principal office in the United
States and having a combined capital and surplus of at least $50,000,000 and the
holders from time to time of the depositary receipts issued thereunder by that
depositary. The applicable Prospectus Supplement will set forth the name and
address of the depositary. Subject to the terms of the deposit agreement, each
owner of a depositary share will be entitled, in proportion to the applicable
fractional interest in a share of preferred stock underlying such depositary
share, to all the rights and preferences of the fractional share of preferred
stock underlying such depositary share (including dividend, voting, redemption
and liquidation rights).
Until definitive engraved depositary receipts are prepared, upon our written
order, the depositary may issue temporary depositary receipts substantially
identical to (and entitling the holders thereof to all the rights pertaining to)
the definitive depositary receipts but not in definitive
form. Definitive depositary receipts will be prepared thereafter without
unreasonable delay. Temporary depositary receipts will be exchangeable for
definitive depositary receipts at our expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute to the holders of depositary receipts
evidencing depositary shares all cash dividends or other cash distributions
received in respect of the underlying fractional shares of preferred stock in
proportion to their respective holdings of the depositary shares on the relevant
record date. The depositary will distribute only the amount that can be
distributed without attributing to any holder of depositary shares a fraction of
one cent. Any balance not so distributed will be held by the depositary (without
liability for interest thereon) and will be added to and treated as part of the
next sum received by the depositary for distribution to holders of depositary
receipts then outstanding.
If we distribute property other than cash in respect of shares of preferred
stock deposited under a deposit agreement, the depositary will distribute the
property received by it to the record holders of depositary receipts evidencing
the depositary shares relating to those shares of preferred stock, in
proportion, as nearly as may be practicable, to their respective holdings of the
depositary shares on the relevant record dates. If the depositary determines
that it is not feasible to make such a distribution, the depositary may, with
our approval, adopt such method as it deems equitable and practicable to give
effect to the distribution, including the sale of the property so received and
distribution of the net proceeds from such sale to the holders of the depositary
receipts.
Each deposit agreement will also contain provisions relating to the manner
in which any subscription or similar right offered by us to holders of the
preferred stock deposited under such deposit agreement will be made available to
holders of depositary shares.
REDEMPTION OF DEPOSITARY SHARES
If the shares of preferred stock deposited under a deposit agreement are
subject to redemption, in whole or in part, then, upon any such redemption, the
depositary shares relating to those deposited shares will be redeemed from the
proceeds received by the depositary as a result of the redemption. Whenever we
redeem shares of preferred stock held by a depositary, the depositary will
redeem as of the same redemption date the number of depositary shares
representing the shares of preferred stock so redeemed. The depositary will mail
the notice of redemption not less than 20 and not more than 50 days prior to the
date fixed for redemption to the record holders of the depositary shares to be
so redeemed. The redemption price per depositary share will be equal to the
applicable fraction of the per share redemption price of the preferred stock
underlying such depositary share. If less than all the depositary shares are to
be redeemed, the depositary shares to be redeemed will be selected by lot or pro
rata as may be determined by the depositary.
Once notice of redemption has been given, from and after the redemption
date, the depositary shares called for redemption will no longer be deemed to be
outstanding, unless we fail to redeem the
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<PAGE>
shares of preferred stock so called for redemption. On the redemption date, all
rights of the holders of depositary shares will cease, except for the right to
receive the monies payable upon such redemption and any money or other property
to which the holders of depositary shares were entitled upon such redemption,
upon surrender to the depositary of the depositary receipts evidencing
depositary shares.
VOTING RIGHTS
As soon as practicable after receipt of notice of any meeting at which the
holders of shares of preferred stock deposited under a deposit agreement are
entitled to vote, the depositary will mail the information contained in that
notice of meeting (and any accompanying proxy materials) to the holders of the
depositary shares relating to such preferred stock as of the record date for
such meeting. Each such holder will be entitled, subject to any applicable
restrictions, to instruct the depositary as to the exercise of the voting rights
of the preferred stock represented by such holder's depositary shares. The
depositary will attempt to vote the preferred stock represented by those
depositary shares in accordance with the holder's instructions, and we will
agree to take all action deemed necessary by the depositary to enable the
depositary to do so. The depositary will abstain from voting shares of preferred
stock deposited under a deposit agreement if it has not received specific
instructions from the holders of the depositary shares representing those
shares.
WITHDRAWAL OF STOCK
Upon surrender of depositary receipts at the principal office of the
depositary (unless the depositary shares evidenced by the depositary receipts
have previously been called for redemption), and subject to the terms of the
deposit agreement, the owner of the depositary shares shall be entitled to
delivery of whole shares of preferred stock and all money and other property, if
any, represented by those depositary shares. Fractional shares of preferred
stock will not be delivered. If the depositary receipts surrendered by the
holder evidence depositary shares in excess of those representing the number of
whole shares of preferred stock to be withdrawn, the depositary will deliver to
the holder at the same time a new depositary receipt evidencing the depositary
shares. Holders of shares of preferred stock which are withdrawn will not
thereafter be entitled to deposit such shares under a deposit agreement or to
receive depositary shares. We do not expect that there will be any public
trading market for the preferred stock, except as represented by depositary
shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
We may from time to time amend the form of depositary receipt evidencing any
depositary shares and any provision of a deposit agreement by agreement between
us and the depositary. However, any amendment that materially and adversely
alters the rights of the existing holders of depositary shares will not be
effective unless and until approved by the holders of at least a majority of the
depositary shares then outstanding under that deposit agreement. Each deposit
agreement will provide that each holder of depositary shares who continues to
hold those depositary shares at the time an amendment becomes effective will be
deemed to have consented to the amendment and will be bound by that amendment.
Except as may be necessary to comply with any mandatory provisions of applicable
law, no amendment may impair the right, subject to the terms of the deposit
agreement, of any holder of any depositary shares to surrender the depositary
receipt evidencing those depositary shares to the depositary together with
instructions to deliver to the holder the whole shares of preferred stock
represented by the surrendered depositary shares and all money and other
property, if any, represented thereby. A deposit agreement may be terminated by
us or the depositary only if:
(1) all outstanding depositary shares issued under the deposit agreement
have been redeemed; or
(2) there has been a final distribution in respect of the preferred stock
relating to those depositary shares in connection with any liquidation,
dissolution or winding up of the Company and the amount received by the
depositary as a result of that distribution has been distributed by the
Depositary to the holders of those depositary shares.
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CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay charges of
any depositary in connection with the initial deposit of preferred stock and the
initial issuance of the depositary shares and any redemption of such preferred
stock. Holders of depositary shares will pay any other taxes and charges
incurred for their accounts as are provided in the deposit agreement.
MISCELLANEOUS
Each depositary will forward to the holders of depositary shares issued by
that depositary all reports and communications from us that are delivered to the
depositary and that we are required to furnish to the holders of the preferred
stock held by the depositary. In addition, each depositary will make available
for inspection by the holders of those depositary shares, at the principal
office of such depositary and at such other places as it may from time to time
deem advisable, all reports and communications received from us that are
received by such depositary as the holder of preferred stock.
Neither we nor any depositary will assume any obligation or will be subject
to any liability under a deposit agreement to holders of the depositary shares
other than for its negligence or willful misconduct. Neither we nor any
depositary will be liable if it is prevented or delayed by law or any
circumstance beyond its control in performing its obligations under a deposit
agreement. The obligations of us and any depositary under a deposit agreement
will be limited to performance in good faith of their duties thereunder, and
they will not be obligated to prosecute or defend any legal proceeding in
respect of any depositary shares or preferred stock unless satisfactory
indemnity is furnished. We and any depositary may rely on written advice of
counsel or accountants, on information provided by persons presenting preferred
stock for deposit, holders of depositary shares or other persons believed in
good faith to be competent to give such information and on documents believed to
be genuine and to have been signed or presented by the proper party or parties.
RESIGNATION AND REMOVAL OF DEPOSITARY
A depositary may resign at any time by delivering to us notice of its
election to resign, and we may remove any depositary at any time. Any such
resignation or removal will take effect upon the appointment of a successor
depositary and its acceptance of such appointment. Such successor depositary
must be appointed within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000.
FEDERAL INCOME TAX CONSEQUENCES
Owners of the depositary shares will be treated for federal income tax
purposes as if they were owners of the preferred stock represented by such
depositary shares. Accordingly, the owners will be entitled to take into account
for federal income tax purposes income and deductions to which they would be
entitled if they were holders of the preferred stock. In addition:
- no gain or loss will be recognized for federal income tax purposes upon
the withdrawal of preferred stock in exchange for depositary shares;
- the tax basis of each share of preferred stock to an exchanging owner of
depositary shares will, when exchanged, be the same as the aggregate tax
basis of the depositary shares being exchanged; and
- the holding period for preferred stock in the hands of an exchanging owner
of depositary shares will include the period during which that person
owned the depositary shares.
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BOOK-ENTRY PROCEDURES AND SETTLEMENT
Any series of preferred stock (and the depositary shares relating to such
series) may be issued in certificated or book-entry form, as specified in the
applicable Prospectus Supplement. Book-entry preferred stock or depositary
shares will be issued in the form of a single global stock certificate or a
single global depositary receipt (as the case may be) registered in the name of
the nominee of The Depository Trust Company or any successor or alternate
depositary we select.
The depositary has provided us the following information: The depositary is
a limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934. The depositary holds securities that have been deposited by its
participating organizations, which are called "participants." The depositary
also facilitates the settlement among participants of securities transactions,
such as transfers and pledges, in deposited securities through computerized
records for participants' accounts. This eliminates the need to exchange
certificates. Participants include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. The
depositary is owned by a number of its participants and by the NYSE, the AMEX
and the NASD. The depositary's book-entry system also is used by other
organizations such as securities brokers and dealers, banks, and trust companies
that work through a participant. Persons who are not participants may
beneficially own securities held by the depositary only through participants.
The rules applicable to the depositary and its participants are on file with the
SEC.
Upon our issuance of any preferred stock or depositary shares that will be
represented by a global security, the depositary will immediately credit on its
book-entry system the respective amounts of preferred stock or depositary shares
represented by the global security to participants' accounts. The accounts to be
credited will be designated by our agents, or by us if we directly offer and
sell the preferred stock or depositary shares. Ownership of beneficial interests
in a global security will be limited to participants or persons that hold
interests through the participants. Beneficial ownership interests in a global
security will be shown on, and transfers of those interests will be made only
through, records maintained by the depositary's participants or persons holding
interests through participants. Please note, the laws of some states require
that certain purchasers of securities take physical delivery of these securities
in definitive form. These limits and laws may impair the ability to transfer
beneficial interest in a global security.
Unless the global security is exchanged in whole or in part for the relevant
definitive security representing preferred stock or depositary shares, the
global security cannot be transferred. However, the depositary, its nominees and
their successors may transfer a global security as a whole to one another. This
means we will not issue certificates to you. Until the relevant definitive
security representing preferred stock or depositary shares is issued, the
depositary, not you, will be considered the holder of preferred stock or
depositary shares represented by a global security. We have described below the
only circumstances where preferred stock or depositary shares represented by a
global security will be exchangeable for certificates representing preferred
stock or depositary shares.
We will pay dividends and other distributions on the preferred stock or
depositary shares to the depositary or its nominee. We and the depositary will
treat the nominee as the owner of the global securities for all purposes.
Neither we nor the depositary will have any responsibility or liability for any
aspect of the records relating to or payments made on account of your beneficial
ownership interests in a global security or for maintaining, supervising or
reviewing the records relating to you as the owner of a beneficial interest in
such global securities. We expect that the depositary will credit immediately
the respective accounts of the participants upon receipt of any dividend payment
or other distribution on a global security. We expect that participants'
payments to owners of the beneficial interests in a
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global security will be governed by standing customer instructions and customary
practices, and will be the participants' responsibility.
The depositary nominee is the only person who can exercise a right to
repayment of a global security. If you own a beneficial interest in a global
security and want to exercise a right to repayment, then you must instruct your
participant (for example, your broker) to notify the nominee of your desire to
exercise such right. Different participants have different procedures for
accepting instructions from their customers (for example, cut-off times for
notice), and accordingly, you should consult your participant to inform yourself
about their particular procedures.
Unless otherwise specified in the applicable Prospectus Supplement,
preferred stock or depositary shares will be issued initially as book-entry
preferred stock or depositary shares. Generally, we will issue book-entry
preferred stock or depositary shares only in the form of global securities.
Preferred stock or depositary shares represented by a global security may be
exchanged for the relevant definitive security with the same terms in authorized
denominations if:
- the depositary notified us that it is unwilling or unable to continue as a
depositary and a successor depositary is not appointed by us within 90
days; or
- we determine not to have any preferred stock or depositary shares
represented by a global security.
In these circumstances, you will be entitled to physical delivery of a
definitive certificate or other instrument evidencing such preferred stock or
depositary shares in an amount equal to your beneficial ownership interest and
registered in your name.
PLAN OF DISTRIBUTION
We may sell the securities in any of three ways:
- to underwriters (including Bear Stearns) or dealers, who may act directly
or through a syndicate represented by one or more managing underwriters
(including Bear Stearns);
- through broker-dealers (including Bear Stearns) we have designated to act
on our behalf as agents; or
- directly to one or more purchasers.
Each Prospectus Supplement will set forth the manner and terms of an
offering of securities, including:
- whether that offering is being made to underwriters or through agents or
directly;
- any underwriting discounts, dealer concessions, agency commissions and any
other items that may be deemed to constitute underwriters', dealers' or
agents' compensation;
- the securities' purchase price or initial public offering price; and
- the proceeds we anticipate from the sale of the securities.
When securities are to be sold to underwriters, unless otherwise set forth
in the applicable Prospectus Supplement, the underwriters' obligations to
purchase those securities will be subject to certain conditions precedent. If
the underwriters purchase any of the securities, they will be obligated to
purchase all of the securities. The underwriters will acquire the securities for
their own accounts and may resell them, either directly to the public or to
securities dealers, at various times in one or more transactions, including
negotiated transactions, either at a fixed public offering price or at varying
prices determined at the time of sale.
Any initial public offering price and any concessions allowed or reallowed
to dealers may be changed intermittently.
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To the extent that any securities underwritten by Bear Stearns are not
resold by Bear Stearns for an amount at least equal to their public offering
price, the proceeds from the offering of those securities will be reduced. Until
resold, any such preferred stock and depositary shares will be treated as if
they were not outstanding. Bear Stearns intends to resell any of those
securities at various times after the termination of the offering at varying
prices related to prevailing market prices at the time of sale, subject to
applicable prospectus delivery requirements.
Unless otherwise indicated in the applicable Prospectus Supplement, when
securities are sold through an agent, the designated agent will agree, for the
period of its appointment as agent, to use its best efforts to sell the
securities for our account and will receive commissions from us as will be set
forth in the applicable Prospectus Supplement.
Securities bought in accordance with a redemption or repayment under their
terms also may be offered and sold, if so indicated in the applicable Prospectus
Supplement, in connection with a remarketing by one or more firms acting as
principals for their own accounts or as agents for us. Any remarketing firm will
be identified and the terms of its agreement, if any, with us and its
compensation will be described in the Prospectus Supplement. Remarketing firms
may be deemed to be underwriters in connection with the securities remarketed by
them.
If so indicated in the applicable Prospectus Supplement, we will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase securities at the public offering price set forth in
the Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a future date specified in the Prospectus Supplement.
These contracts will be subject only to those conditions set forth in the
applicable Prospectus Supplement, and the Prospectus Supplement will set forth
the commissions payable for solicitation of these contracts.
Underwriters and agents participating in any distribution of securities may
be deemed "underwriters" within the meaning of the Securities Act and any
discounts or commissions they receive in connection with the distribution may be
deemed to be underwriting compensation. Those underwriters and agents may be
entitled, under their agreements with us, to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act, or to
contribution by us to payments that they may be required to make in respect of
those civil liabilities. Various of those underwriters or agents may be
customers of, engage in transactions with or perform services for us or our
affiliates in the ordinary course of business.
Following the initial distribution of any series of securities (and in the
case of shares of preferred stock, subject to obtaining approval or exemption
from the NYSE), Bear Stearns may offer and sell previously issued securities of
that series at various times in the course of its business as a broker-dealer.
Bear Stearns may act as principal or agent in those transactions. Bear Stearns
will use this Prospectus and the Prospectus Supplement applicable to those
securities in connection with those transactions. Sales will be made at prices
related to prevailing prices at the time of sale.
In order to facilitate the offering of certain securities under this
Registration Statement or an applicable Prospectus Supplement, certain persons
participating in the offering of those securities may engage in transactions
that stabilize, maintain or otherwise affect the price of those securities
during and after the offering of those securities. Specifically, if the
applicable Prospectus Supplement permits, the underwriters of those securities
may over-allot or otherwise create a short position in those securities for
their own account by selling more of those securities than have been sold to
them by us and may elect to cover any such short position by purchasing those
securities in the open market.
In addition, the underwriters may stabilize or maintain the price of those
securities by bidding for or purchasing those securities in the open market and
may impose penalty bids, under which selling concessions allowed to syndicate
members or other broker-dealers participating in the offering are reclaimed if
securities previously distributed in the offering are repurchased in connection
with stabilization transactions or otherwise. The effect of these transactions
may be to stabilize or maintain the market price of the securities at a level
above that which might otherwise prevail in the open market.
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The imposition of a penalty bid may also affect the price of securities to the
extent that it discourages resales of the securities. No representation is made
as to the magnitude or effect of any such stabilization or other transactions.
Such transactions, if commenced, may be discontinued at any time.
Because Bear Stearns is our wholly owned subsidiary, each distribution of
securities will conform to the requirements set forth in Rule 2720 of the NASD
Conduct Rules.
ERISA CONSIDERATIONS
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"),
prohibits the borrowing of money, the sale of property and certain other
transactions involving the assets of plans that are qualified under the Code
("Qualified Plans") or individual retirement accounts ("IRAs") and persons who
have certain specified relationships to them. Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), prohibits similar
transactions involving the assets of employee benefit plans that are subject to
ERISA ("ERISA Plans"). Qualified Plans, IRAs and ERISA Plans and entities
treated for purposes of ERISA and the Code as holding assets thereof are in this
Prospectus collectively referred to as "Plans."
Persons who have such specified relationships are referred to as "parties in
interest" under ERISA and as "disqualified persons" under the Code. "Parties in
interest" and "disqualified persons" encompass a wide range of persons,
including any fiduciary (for example, investment manager, trustee or custodian),
any person providing services (for example, a broker), the Plan sponsor, an
employee organization any of whose members are covered by the Plan, and certain
persons related to or affiliated with any of the foregoing.
Each of us, Bear Stearns and BSSC may be considered a "party in interest" or
"disqualified person" with respect to many Plans, including, for example, IRAs
established with us or them. The purchase and/or holding of securities by a Plan
with respect to which we, Bear Stearns, BSSC and/or certain of our affiliates is
a fiduciary and/or a service provider (or otherwise is a "party in interest" or
"disqualified person") could constitute or result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code, unless such securities
are acquired or held pursuant to and in accordance with an applicable statutory
or administrative exemption.
Applicable exemptions may include certain prohibited transaction class
exemptions ("PTCEs") (for example, PTCE 84-14 relating to qualified professional
asset managers, PTCE 96-23 relating to certain in-house asset managers, PTCE
90-1 relating to insurance company pooled separate accounts, PTCE 91-38 relating
to bank collective trust funds and PTCE 95-60 relating to insurance company
general accounts).
A fiduciary who is responsible for an ERISA Plan engaging in a non-exempt
prohibited transaction may be liable for any losses to the Plan resulting from
such transaction and may be subject to a penalty under ERISA. Also, Code
Section 4975 generally imposes an excise tax on disqualified persons who engage,
directly or indirectly, in similar types of non-exempt transactions with the
assets of Plans subject to such Section.
In accordance with ERISA's general fiduciary requirement, a fiduciary with
respect to any ERISA Plan who is considering the purchase of securities on
behalf of such plan should determine whether such purchase is permitted under
the governing plan document and is prudent and appropriate for the ERISA Plan in
view of its overall investment policy and the composition and diversification of
its portfolio. Plans established with, or for which services are provided by,
us, Bear Stearns, BSSC and/or certain of our affiliates should consult with
counsel before making any acquisition. Each purchaser of any securities, the
assets of which constitute the assets of one or more Plans and each fiduciary
that directs such purchaser with respect to the purchase or holding of such
securities, will be deemed to represent that the purchase and holding of the
securities does not constitute a prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code for which an exemption is not available.
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EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this prospectus by reference from our 1999 Annual
Report on Form 10-K have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are incorporated in this Prospectus
by reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
VALIDITY OF THE SECURITIES
The validity of the debt securities, the warrants, the preferred stock and
the depositary shares will be passed on for us by Cadwalader, Wickersham & Taft,
New York, New York.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses in connection with the issuance
and distribution of the securities being registered. All amounts shown are
estimated, except the SEC registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee........................................ $2,112,000
Trustee's fees and expenses................................. 10,000
Accounting fees............................................. 10,000
Legal fees and expenses..................................... 200,000
Printing and engraving fees................................. 20,000
NASD filing fee............................................. 30,500
Miscellaneous............................................... 1,500
----------
Total..................................................... $2,384,000
</TABLE>
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 the Registration Statement on Form S-3
(No. 333-57083) filed June 17, 1998.
We, as registrant, have in effect reimbursement insurance for our directors'
and officers' liability claims and directors' and officers' liability insurance
indemnifying, respectively, ourselves and our directors and officers within
specific limits for certain liabilities incurred, subject to the conditions and
exclusions and deductible provisions of the policies.
For the undertaking with respect to indemnification, see Item 17 in this
Prospectus.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ------------------------------------------------------------
<S> <C>
1(a) Form of Underwriting Agreement (Debt Securities and
Warrants).(1)
1(b) Form of Distribution Agreement.(1)
1(c) Distribution Agreement, including form of Terms Agreement,
dated November 8, 1991, for Medium-Term Notes ("MTN
Distribution Agreement").(2)
1(d) Amendment No. 1, dated December 4, 1991, to the MTN
Distribution Agreement.(3)
1(e) Form of Amendment No. 2 to the MTN Distribution
Agreement.(3)
1(f) Form of Underwriting Agreement for Offering of Global
Notes.(4)
1(g) Form of Underwriting Agreement (Preferred Stock).*
4(a)(1) Indenture, dated as of May 31, 1991, between The Bear
Stearns Companies Inc. and The Chase Manhattan Bank
(formerly known as Chemical Bank and successor by merger to
Manufacturers Hanover Trust Company).(5)
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ------------------------------------------------------------
<S> <C>
4(a)(2) Supplemental Indenture, dated as of January 29, 1998,
between The Bear Stearns Companies Inc. and The Chase
Manhattan Bank.(6)
4(b)(1) Form of Fixed Rate Senior Note.(7)
4(b)(2) Form of Medium-Term Note, Series B (Fixed Rate).*
4(b)(3) Form of Medium-Term Note, Series B (Floating Rate).*
4(b)(4) Form of Note (Common-Linked Higher Income Participation
Securities).(8)
4(b)(5) Form of Note (S&P 500 Linked Note).(9)
4(b)(6) Form of Global Note.*
4(b)(7) Form of Medium-Term Note, Series B (Fixed Rate; S&P
Linked).(10)
4(c)(1) Form of Warrant Agreement, including form of Warrant
Certificate, for warrants to purchase debt securities.(1)
4(c)(2) Form of Warrant Agreement, including form of Warrant
Certificate (for warrants to be sold separately from debt
securities), for warrants to purchase debt securities.(1)
4(c)(3) Form of Warrant Agreement for warrants to purchase other
securities, currencies or units.(3)
4(c)(4) Form of Warrant Agreement relating to AMEX Hong Kong 30
Index Call Warrants.(11)
4(c)(5) Form of Warrant Agreement relating to AMEX Hong Kong 30
Index Put Warrants.(12)
4(c)(6) Form of Warrant Agreement relating to the Japan Index Call
Warrants.(13)
4(c)(7) Form of Warrant Agreement relating to the Japan Index Put
Warrants.(14)
4(c)(8) Form of Warrant Agreement relating to the Japanese Yen Put
Warrants.(15)
4(c)(9) Form of Warrant Agreement relating to Nikkei 225 Index
Strike Reset Call Warrants.(16)
4(c)(10) Form of Warrant Agreement relating to Vantage Point
Portfolio Call Warrants.(17)
4(d)(1) Restated Certificate of Incorporation of the registrant.(18)
4(d)(2) Certificate of Stock Designations to the Restated
Certificate of Incorporation of the registrant, filed
February 19, 1987.(19)
4(d)(3) Certificate of Stock Designations to the Restated
Certificate of Incorporation of the registrant.(20)
4(d)(4) Certificate of Stock Designations to the Restated
Certificate of Incorporation of the registrant.(21)
4(d)(5) Certificate of Stock Designations to the Restated
Certificate of Incorporation of the registrant.(22)
4(d)(6) Amended and Restated By-laws of the registrant as amended
through July 21, 1999.(23)
4(d)(7) Form of Deposit Agreement.(24)
4(d)(8) Specimen Depositary Receipt (included in
Exhibit 4(d)(1)).(24)
5 Opinion of Cadwalader, Wickersham & Taft.*
12(a) Computation of Ratio of Earnings to Fixed Charges.*
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ------------------------------------------------------------
<S> <C>
12(b) Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Dividends.*
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).*
25 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of The Chase Manhattan Bank
(separately bound).*
</TABLE>
- ------------
* Filed herewith.
(1) Incorporated by reference to similarly numbered exhibits to the
registrant's Registration Statement No. 33-44521 on Form S-3.
(2) Incorporated by reference to Exhibit 1(a) to the registrant's Registration
Statement No. 33-43482 on Form S-3.
(3) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-48829 on Form S-3.
(4) Incorporated by reference to Exhibit 1(a)(2) to the registrant's Current
Report on Form 8-K filed with the Securities Exchange Commission on
April 6, 1998.
(5) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-40933 on Form S-3.
(6) Incorporated by reference to the similarly numbered exhibit to the
registrant's Current Report on Form 8-K filed with the Securities Exchange
Commission on February 2, 1998.
(7) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-57824 on Form S-3.
(8) Incorporated by reference to Exhibit No. 4(b)(7) to the registrant's
Registration Statement No. 33-52701 on Form S-3.
(9) Incorporated by reference to Exhibit 2.3 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
May 15, 1997.
(10) Incorporated by reference to Exhibit No. 4(b)(10) to the registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on December 21, 1998.
(11) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 6, 1993.
(12) Incorporated by reference to Exhibit 1.2 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 6, 1993.
(13) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
July 19, 1994.
(14) Incorporated by reference to Exhibit 1.2 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
July 19, 1994.
(15) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 13, 1994.
(16) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
October 13, 1995.
II-3
<PAGE>
(17) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
February 12, 1996.
(18) Incorporated by reference to Exhibit No. 4(a)(1) to the registrant's
Registration Statement on Form S-3 (File No. 333-57083).
(19) Incorporated by reference to Exhibit No. 4(a)(6) to the registrant's
Registration Statement on Form S-3 (File No. 33-49979).
(20) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on January 14, 1998.
(21) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on April 20, 1998.
(22) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on June 18, 1998.
(23) Incorporated by reference to Exhibit No. 4(b) to Post-Effective Amendment
No. 1 to the registrant's Registration Statement on Form S-8 (File
No. 333-81901).
(24) Incorporated by reference to Exhibit 4(d) to the registrant's Registration
Statement No. 33-59140 on Form S-3.
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;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or its most recent
post-effective amendment) 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) above do not apply if the information required with or furnished to the
SEC 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 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.
II-4
<PAGE>
(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 15 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.
II-5
<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 March 8, 2000.
<TABLE>
<S> <C> <C>
THE BEAR STEARNS COMPANIES INC.
BY: /S/ SAMUEL L. MOLINARO JR.
-----------------------------------------
SAMUEL L. MOLINARO JR.
Senior Vice President--Finance and
Chief Financial Officer
</TABLE>
We, the undersigned officers and directors of The Bear Stearns
Companies Inc., hereby severally constitute Alan C. Greenberg, James E. Cayne
and Samuel L. Molinaro Jr., 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 (including
post-effective 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 indicated on March 8, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
Chairman of the Board and Director
-------------------------------------------
Alan C. Greenberg
/s/ JAMES E. CAYNE President, Chief Executive Officer and
------------------------------------------- Director (Principal Executive Officer)
James E. Cayne
/s/ CARL D. GLICKMAN Director
-------------------------------------------
Carl D. Glickman
/s/ DONALD J. HARRINGTON Director
-------------------------------------------
Donald J. Harrington
Director
-------------------------------------------
William L. Mack
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ FRANK T. NICKELL Director
-------------------------------------------
Frank T. Nickell
Director
-------------------------------------------
Frederic V. Salerno
Director
-------------------------------------------
Alan D. Schwartz
/s/ WARREN J. SPECTOR Director
-------------------------------------------
Warren J. Spector
/s/ VINCENT TESE Director
-------------------------------------------
Vincent Tese
Director
-------------------------------------------
Fred Wilpon
/s/ SAMUEL L. MOLINARO JR. Senior Vice President--Finance and Chief
------------------------------------------- Financial Officer (Principal Financial
Samuel L. Molinaro Jr. Officer)
/s/ MARSHALL J LEVINSON Controller and Assistant Secretary
------------------------------------------- (Principal Accounting Officer)
Marshall J Levinson
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
1(a) Form of Underwriting Agreement (Debt Securities and
Warrants).(1)
1(b) Form of Distribution Agreement.(1)
1(c) Distribution Agreement, including form of Terms Agreement,
dated November 8, 1991, for Medium-Term Notes ("MTN
Distribution Agreement").(2)
1(d) Amendment No. 1, dated December 4, 1991, to the MTN
Distribution Agreement.(3)
1(e) Form of Amendment No. 2 to the MTN Distribution
Agreement.(3)
1(f) Form of Underwriting Agreement for Offering of Global
Notes.(4)
1(g) Form of Underwriting Agreement (Preferred Stock).*
4(a)(1) Indenture, dated as of May 31, 1991, between The Bear
Stearns Companies Inc. and The Chase Manhattan Bank
(formerly known as Chemical Bank and successor by merger to
Manufacturers Hanover Trust Company).(5)
4(a)(2) Supplemental Indenture, dated as of January 29, 1998,
between The Bear Stearns Companies Inc. and The Chase
Manhattan Bank.(6)
4(b)(1) Form of Fixed Rate Senior Note.(7)
4(b)(2) Form of Medium-Term Note, Series B (Fixed Rate).*
4(b)(3) Form of Medium-Term Note, Series B (Floating Rate).*
4(b)(4) Form of Note (Common-Linked Higher Income Participation
Securities).(8)
4(b)(5) Form of Note (S&P 500 Linked Note).(9)
4(b)(6) Form of Global Note.*
4(b)(7) Form of Medium-Term Note, Series B (Fixed Rate; S&P
Linked).(10)
4(c)(1) Form of Warrant Agreement, including form of Warrant
Certificate, for warrants to purchase debt securities.(1)
4(c)(2) Form of Warrant Agreement, including form of Warrant
Certificate (for warrants to be sold separately from debt
securities), for warrants to purchase debt securities.(1)
4(c)(3) Form of Warrant Agreement for warrants to purchase other
securities, currencies or units.(3)
4(c)(4) Form of Warrant Agreement relating to AMEX Hong Kong 30
Index Call Warrants.(11)
4(c)(5) Form of Warrant Agreement relating to AMEX Hong Kong 30
Index Put Warrants.(12)
4(c)(6) Form of Warrant Agreement relating to the Japan Index Call
Warrants.(13)
4(c)(7) Form of Warrant Agreement relating to the Japan Index Put
Warrants.(14)
4(c)(8) Form of Warrant Agreement relating to the Japanese Yen Put
Warrants.(15)
4(c)(9) Form of Warrant Agreement relating to Nikkei 225 Index
Strike Reset Call Warrants.(16)
4(c)(10) Form of Warrant Agreement relating to Vantage Point
Portfolio Call Warrants.(17)
4(d)(1) Restated Certificate of Incorporation of the registrant.(18)
4(d)(2) Certificate of Stock Designations to the Restated
Certificate of Incorporation of the registrant, filed
February 19, 1987.(19)
4(d)(3) Certificate of Stock Designations to the Restated
Certificate of Incorporation of the registrant.(20)
4(d)(4) Certificate of Stock Designations to the Restated
Certificate of Incorporation of the registrant.(21)
4(d)(5) Certificate of Stock Designations to the Restated
Certificate of Incorporation of the registrant.(22)
4(d)(6) Amended and Restated By-laws of the registrant as amended
through July 21, 1999.(23)
4(d)(7) Form of Deposit Agreement.(24)
4(d)(8) Specimen Depositary Receipt (included in Exhibit
4(d)(1)).(24)
5 Opinion of Cadwalader, Wickersham & Taft*
12(a) Computation of Ratio of Earnings to Fixed Charges.*
12(b) Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Dividends.*
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).*
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
25 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of The Chase Manhattan Bank
(separately bound).*
</TABLE>
- ------------
* Filed herewith.
(1) Incorporated by reference to similarly numbered exhibits to the registrant's
Registration Statement No. 33-44521 on Form S-3.
(2) Incorporated by reference to Exhibit 1(a) to the registrant's Registration
Statement No. 33-43482 on Form S-3.
(3) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-48829 on Form S-3.
(4) Incorporated by reference to Exhibit 1(a)(2) to the registrant's Current
Report on Form 8-K filed with the Securities Exchange Commission on
April 6, 1998.
(5) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-40933 on Form S-3.
(6) Incorporated by reference to the similarly numbered exhibit to the
registrant's Current Report on Form 8-K filed with the Securities Exchange
Commission on February 2, 1998.
(7) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-57824 on Form S-3.
(8) Incorporated by reference to Exhibit No. 4(b)(7) to the registrant's
Registration Statement No. 33-52701 on Form S-3.
(9) Incorporated by reference to Exhibit 2.3 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
May 15, 1997.
(10) Incorporated by reference to Exhibit No. 4(b)(10) to the registrant's
Current Report on Form 8-K filed with the Securities and Exchange Commission
on December 21, 1998.
(11) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 6, 1993.
(12) Incorporated by reference to Exhibit 1.2 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 6, 1993.
(13) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
July 19, 1994.
(14) Incorporated by reference to Exhibit 1.2 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
July 19, 1994.
(15) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 13, 1994.
(16) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
October 13, 1995.
(17) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
February 12, 1996.
(18) Incorporated by reference to Exhibit No. 4(a)(1) to the registrant's
Registration Statement on Form S-3 (File No. 333-57083).
(19) Incorporated by reference to Exhibit No. 4(a)(6) to the registrant's
Registration Statement on Form S-8 (File No. 33-49979).
<PAGE>
(20) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on January 14, 1998.
(21) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on April 20, 1998.
(22) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on June 18, 1998.
(23) Incorporated by reference to Exhibit No. 4(b) to Post-Effective Amendment
No. 1 to the registrant's Registration Statement on Form S-8 (File
No. 333-81901).
(24) Incorporated by reference to Exhibit 4(d) to the registrant's Registration
Statement No. 33-59140 on Form S-3.
<PAGE>
Exhibit 1(g)
___________ Shares of Depositary Shares
Each Representing a _______
Interest in a Share of
___% Preferred Stock,
$1.00 par value
THE BEAR STEARNS COMPANIES INC.
UNDERWRITING AGREEMENT
_________, 2000
<PAGE>
THE BEAR STEARNS COMPANIES INC.
____________ Shares of Depositary Shares
Each Representing a _________
Interest in a Share of
_____% Preferred Stock
UNDERWRITING AGREEMENT
________, 2000
To the Several Underwriters named in
Schedule I hereto
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Dear Sirs:
The Bear Stearns Companies Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "Underwriters"), the number of shares of the Company's
____% Preferred Stock (the "Preferred Stock"), referred to in Schedule I hereto.
[The Company also proposes to grant to the Underwriters the option to purchase
up to such additional number of shares of the Preferred Stock as is specified in
Schedule I hereto (the "Option Securities"; together with the Preferred Stock,
the "Securities") to cover over-allotments.] Since "Depositary Receipt
Arrangements" are specified in Schedule II hereto, the Preferred Stock is to be
deposited by you or on your behalf against delivery of the Depositary Receipts
(the "Depositary Receipts") to be issued by the bank or trust company identified
on Schedule II hereto as the Depositary (the "Depositary"), under the deposit
agreement described in Schedule II hereto (the "Deposit Agreement"), among the
Company, the Depositary and the holders from time to time of the Depositary
Receipts issued thereunder. The Depositary Receipts will evidence Depositary
Shares (the "Depositary Shares") and each Depositary Share will represent a
_____ interest in a share of the Preferred Stock as specified in Schedule II
hereto. Except where the context otherwise requires, the term "Securities," as
used herein, shall mean the Preferred Stock and any related Depositary Shares
and associated Depositary Receipts.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the several Underwriters as set
forth below in this Section 1. Certain terms used in this Section 1 are defined
in paragraph (b) hereof.
(a) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933, as amended (the "1933 Act"), and has
prepared and filed with the Securities and Exchange Commission (the
"Commission") pursuant to the 1933 Act and the rules and regulations promulgated
by the Commission thereunder (the "Regulations"), a registration statement (the
file number of which is set forth in Schedule II hereto) on such Form, including
a basic prospectus, for registration under the 1933 Act of the offering and sale
of the
-2-
<PAGE>
Securities. The Company has filed one or more amendments to such registration
statement as may have been required to be filed through the date hereof and may
have used a Preliminary Final Prospectus, each of which, if any, has previously
been furnished to you. Such registration statement, as so amended (if
applicable), has become effective. The offering of the Securities is a Delayed
Offering and, accordingly, it is not necessary that any further information with
respect to the Securities and the offering thereof required by the 1933 Act and
the rules thereunder to be included in the Final Prospectus be included in an
amendment to such registration statement prior to the Effective Date. The
Company will file with the Commission pursuant to Rules 415 and 424(b)(2), (3)
or (5) a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the offering thereof. As
filed, such final prospectus supplement shall include all required information
with respect to the Securities and the offering thereof and, except to the
extent the Underwriters shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that contained in
the Basic Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein.
(b) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term "Effective Date" shall
mean each date that the Registration Statement and any post-effective amendment
or amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus referred to in paragraph
(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus. "Preliminary Final Prospectus" shall
mean any preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior to the
filing of the Final Prospectus. "Final Prospectus" shall mean the prospectus
supplement relating to the Securities that is first filed pursuant to Rule
424(b) after the Execution Time, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred to in
paragraph (a) above, including all exhibits, documents and financial statements
incorporated by reference, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto becomes effective prior
to the Closing Time (as such term is hereinafter defined), shall also mean such
registration statement as so amended. "Rule 415," "Rule 424" and "Regulation
S-K" refer to such rules or regulation under the 1933 Act. Any reference herein
to the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"1934 Act") on or before the effective date of the Registration Statement, or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus, or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment," or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus, or the Final
Prospectus shall be deemed to refer to and include the filing of any document
under the 1934 Act after the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus, or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Delayed Offering" shall mean an offering of securities pursuant to
Rule 415 which
-3-
<PAGE>
does not commence promptly after the effective date of a registration
statement, with the result that only information required pursuant to
Rule 415 need be included in such registration statement at the effective
date thereof with respect to the securities so offered.
(c) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of Delaware
with corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Final Prospectus and any amendment
or supplement thereto; and the Company is duly qualified as a foreign
corporation to transact business, and is in good standing, in each jurisdiction
in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify would not have a material adverse effect on the operations, business or
properties of the Company and its subsidiaries considered as one enterprise (any
such material adverse effect being hereinafter referred to as a "Material
Adverse Effect").
(d) The Company has the corporate power and authority
to enter into this underwriting agreement (this "Agreement"), to perform its
obligations hereunder and to issue, sell and deliver the Securities. This
Agreement has been duly and validly authorized, executed and delivered by the
Company, is a valid and binding agreement of the Company and is enforceable as
to the Company in accordance with its terms. The Deposit Agreement has been duly
and validly authorized, executed and delivered by the Company is a valid and
binding agreement of the Company and is enforceable as to the Company in
accordance with its terms; when the Depositary Receipts are issued in accordance
with the provisions of the Deposit Agreement against the deposit of validly
issued, fully paid and nonassessable shares of the Preferred Stock, such
Depositary Receipts will entitle the holders thereof to the rights specified in
such Depositary Receipts and in the Deposit Agreement.
(e) On the Effective Date, and at all times
subsequent thereto to and including the Closing Time (as such term is defined in
Section 2), and during such longer period as the Final Prospectus may be
required to be delivered in connection with sales by the Underwriters or a
dealer, and during such longer period until any post effective amendment to the
Registration Statement shall become effective, the Registration Statement
(including any post effective amendment) and the Final Prospectus (as amended or
as supplemented if the Company shall have filed with the Commission any
amendment or supplement to the Registration Statement or the Final Prospectus)
will contain all statements which are required to be stated therein in
accordance with the 1933 Act, the 1934 Act and the Regulations, will comply with
the requirements of the 1933 Act, the 1934 Act and the Regulations, and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
in the light of the circumstances in which they were made not misleading, and no
event will have occurred which should have been set forth in an amendment or
supplement to the Registration Statement or the Final Prospectus which has not
then been set forth in such an amendment or supplement; and each Basic
Prospectus and each Preliminary Final Prospectus, as of the date filed with the
Commission, did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made not
misleading; PROVIDED, HOWEVER, that the Company makes no representations and
warranties as to information contained in or omitted from the Registration
Statement, the Basic
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Prospectus, any Preliminary Final Prospectus, or the Final Prospectus made in
reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter expressly for use in the Registration Statement or
such Basic Prospectus, any Preliminary Final Prospectus, or the Final
Prospectus.
(f) Neither the Commission nor the "blue sky" or
securities authority of any jurisdiction has issued an order (a "Stop Order")
suspending the effectiveness of the Registration Statement, preventing or
suspending the use of the Basic Prospectus, any Preliminary Final Prospectus,
the Final Prospectus, the Registration Statement, or any amendment or supplement
thereto, refusing to permit the effectiveness of the Registration Statement, or
suspending the registration or qualification of the Securities, nor has any of
such authorities instituted or, to the knowledge of the Company, threatened to
institute any proceedings with respect to a Stop Order in any jurisdiction in
which the Securities are to be sold, nor, with respect to accuracy at the
Closing Time, has there been any Stop Order issued or proceedings with respect
to a Stop Order instituted or, to the knowledge of the Company, threatened on or
after the effective date of the Registration Statement in any jurisdiction.
(g) The documents incorporated by reference in the
Final Prospectus and any amendment or supplement thereto (the "Incorporated
Documents"), at the time they were or hereafter are filed with the Commission,
complied or when so filed will comply, in all material respects with the
requirements of the 1933 Act or the 1934 Act, as applicable, and the rules and
regulations thereunder and on the Effective Date and through and including the
Closing Time, did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they are made, not misleading.
(h) Since the respective dates as of which
information is given in the Registration Statement and the Final Prospectus,
except as otherwise stated therein or contemplated thereby, there has been no
material adverse change in, or any adverse development which materially affects,
the financial condition, results of operations, business or properties of the
Company and its subsidiaries considered as one enterprise.
(i) Except for Bear, Stearns & Co. Inc. ("Bear
Stearns") and Bear, Stearns Securities Corp. ("BSSC"), no subsidiary of the
Company is a "significant subsidiary" as defined in Rule 405 of Regulation C of
the Regulations; each of Bear Stearns and BSSC has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation has the corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Final Prospectus and any amendment or supplement thereto and is duly qualified
as a foreign corporation to transact business, and is in good standing, in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not have a Material Adverse Effect; and all of the
issued and outstanding capital stock of Bear Stearns and BSSC has been duly
authorized and validly issued and is fully paid and nonassessable and was not
issued in violation of or subject to preemptive rights, and, except for
directors' qualifying shares, is owned directly or indirectly by the Company
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or other defect of title whatsoever.
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<PAGE>
(j) The Company's authorized preferred stock is as
set forth in the Final Prospectus; the Certificate of Designations, the
provisions of the Certificate of Incorporation relating to the Securities, the
Securities, the Depositary Shares, the Depositary Receipts and the Deposit
Agreement conform (or prior to each issuance of the Securities will conform)
in all material respects to the description thereof contained in the Final
Prospectus; the Securities have been (or prior to each issuance will be) duly
and validly authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and nonassessable;
and the holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the Securities or such
Depositary Shares.
(k) The execution, delivery and performance of this
Agreement and the Deposit Agreement, the issuance and sale of the Securities and
the consummation by the Company of the transactions contemplated hereby and
thereby do not, as of the date hereof, and will not, as of the Closing Time, (A)
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default) or require consent under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries considered as one enterprise pursuant to,
the terms of any contract, agreement, indenture, mortgage, loan agreement, note,
lease or other instrument, franchise, license or permit to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective properties or assets may be bound or subject
and that is material to the Company and its subsidiaries considered as one
enterprise, or (B) violate or conflict with any provision of the certificate of
incorporation or by-laws of the Company or any of its subsidiaries, or any law,
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body or any arbitrator having jurisdiction
over the Company or any of its subsidiaries, or any of their respective
properties or assets. No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its subsidiaries, or any of their respective properties or assets, is
required for the execution, delivery and performance of this Agreement or the
Deposit Agreement and the consummation of the transactions contemplated hereby
and thereby, including the issuance, authentication, sale and delivery of the
Securities, except for (1) such as may be required under state and foreign
securities or "blue sky" laws in connection with the purchase and distribution
of the Securities by the Underwriters and (2) such as have been made or obtained
or will be made or obtained before the Closing Time under the 1933 Act.
(l) There are no holders of securities of the Company
or any subsidiary who, pursuant to any agreement, understanding or otherwise,
have any right to have securities of the Company or any subsidiary registered
under the 1933 Act in connection with the offering contemplated by the Final
Prospectus.
(m) Deloitte & Touche LLP, the accountants who
certified the financial statements included or incorporated by reference in the
Company's most recent Annual Report on Form 10-K which is incorporated by
reference in the Final Prospectus, were independent public accountants at the
time such statements were certified and during the periods covered by such
statements as required by the 1933 Act and the Regulations.
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<PAGE>
(n) The financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Registration Statement and the Final Prospectus, and any amendment or supplement
thereto, present fairly the consolidated financial position of the Company and
its consolidated subsidiaries as at the dates indicated and the consolidated
results of their operations for the periods specified; and said financial
statements have been prepared in conformity with generally accepted accounting
principles in the United States (except to the extent that certain footnote
disclosures regarding any stub period may have been omitted in accordance with
the 1934 Act and the Regulations thereunder) applied on a consistent basis.
(o) Except as may be set forth in the Final
Prospectus, there is no action, suit or proceeding before or by any court or
governmental agency or body or arbitrator, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened against or affecting, the Company,
Bear Stearns or BSSC which is required to be disclosed in the Registration
Statement or the Final Prospectus or would have a Material Adverse Effect or
would otherwise be expected to materially and adversely affect the consummation
of the transactions contemplated hereby; and there are no contracts or documents
of the Company, Bear Stearns or BSSC which are required to be filed as exhibits
to the Registration Statement by the 1933 Act or the Regulations which have not
been so filed.
(p) The Company, Bear Stearns and BSSC possess such
certificates, authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure to obtain such certificates,
authorities or permits, individually or in the aggregate, would not have a
Material Adverse Effect. Neither the Company, Bear Stearns nor BSSC has received
any notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, would materially and
adversely affect the financial condition, results of operations, business or
properties of the Company and its subsidiaries considered as one enterprise.
2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. On the basis
of the representations, warranties, covenants, and agreements of the Company
herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to sell to the several Underwriters, and the Underwriters,
severally and not jointly, agree to purchase from the Company, at the purchase
price set forth in Schedule II attached hereto, the amount of Securities set
forth opposite such Underwriters' respective names in Schedule I hereto except
that, if Schedule II hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective number of shares of the Securities
to be purchased by the Underwriters shall be as set forth in Schedule I attached
hereto less the respective number of shares of Contract Securities determined as
provided below. Securities to be purchased by the Underwriters are herein
sometimes referred to as the "Underwriters' Securities" and Securities to be
purchased pursuant to Delayed Delivery Contracts as hereinafter provided are
herein referred to as " Contract Securities."
If so provided in Schedule II hereto, the Underwriters are authorized
to solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts:), substantially in the form of
Schedule V hereto but with such changes
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<PAGE>
therein as the Company may authorize or approve. The Underwriters will endeavor
to make such arrangements and, as compensation therefor, the Company will pay to
the Underwriters, at the Closing Time, the percentage set forth in Schedule II
hereto of the aggregate liquidation preference of the Securities for which
Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less that the minimum number of
shares set forth in Schedule II hereto and the aggregate number of shares of
Contract Securites may not exceed the maximum number of shares set forth in
Schedule II hereto. The Underwriters will not have any responsibility in respect
of the validity or performance of Delayed Delivery Contracts. The number of
shares of Securities to be purchased by each Underwriter as set forth in
Schedule I hereto shall be reduced by an amount which shall bear the same
proportion to the total number of shares of Contract Securities as the number of
shares of Securities set forth opposite the name of such Underwriter bears to
the aggregate number of shares set forth in Schedule I hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; PROVIDED, HOWEVER, that the
total number of shares of Securities to be purchased by all Underwriters shall
be the aggregate number of shares set forth in Schedule I hereto less the
aggregate number of shares of Contract Securities.
[Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, the
Option Securities at the same purchase price per share as the Underwriters shall
pay for the Underwriters' Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwriters' Securities by the Underwriters.
Said option may be exercised in whole or in part at any time (but not more than
once) on or before the 30th day after the date of the Final Prospectus upon
written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities to be purchased by the total
number of shares of the Option Securities to be purchased by the several
Underwriter as such Underwriter is purchasing of the Underwriters' Securities,
subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.]
Except as otherwise provided in this Section 2, payment of the
purchase price for, and delivery of, the Securities to be purchased by the
Underwriters as set forth on Schedule I attached hereto shall be made at the
offices of Bear Stearns or at such other place in the New York City metropolitan
area as you shall determine and advise the Company in writing at least two
business days prior to the Closing Time, on the date and at the time specified
in Schedule II attached hereto (unless postponed in accordance with the
provisions of Section 8), or such other time and date as shall be agreed upon by
you and the Company (such time and date being referred to as the "Closing
Time"). Payment shall be made to the Company by wire transfer of federal funds
payable to the account of the Company specified by it against delivery to you of
the Securities to be purchased by you. Certificates evidencing the Preferred
Stock purchased by the Underwriters shall be registered in the name of the
Depositary or its nominee and delivered for the account and on behalf of the
Underwriters to the Depositary against issuance and delivery by the Depositary
of Depositary Receipts evidencing Depositary Shares representing the
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<PAGE>
deposited Preferred Stock, which Depositary Receipts shall be registered in such
names (including the nominee for any depository which will hold the Depositary
Receipts for "book entry" issuance and transfer) and in such denominations as
you may request in writing at least two business days prior to the Closing Time.
Such Depositary Receipts will be made available for examination and packaging by
you on or before the first business day prior to the Closing Time, unless
represented by a global certificate.
[If the option provided for in this Section 2 hereof is
exercised after the third business day prior to the Closing Date, the Company
will deliver (at the expense of the Company) to the Representatives, at the
offices of Bear Stearns on the date specified by the Representatives (which
shall be within three business days after exercise of said option), certificates
for the Option Securities in such names and denominations as the Representatives
shall have requested against payment of the purchase price thereof to the
Company by wire transfer of federal funds payable to the account of the Company
specified by it. If settlement for the Option Securities occurs after the
Closing Date, the Company will deliver to the Representatives on the settlement
date for the Option Securities, and the obligation of the Underwriters to
purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to
Section 5 hereof.]
Notwithstanding the preceding paragraphs, if "Depositary
Receipt Arrangements" is specified in Schedule II hereto, certificates
representing Securities shall be delivered in the names of the
Representatives. Such certificates shall be delivered to the Representatives
for the Depositary Receipts representing Depositary Shares. Such Depositary
Receipts shall be issued in such denominations and registered in such names
as the Representatives shall request and shall be made available for
inspection, checking and packaging by the Representatives in New York, New
York not later than 1:00 p.m. on the business day prior to the due date for
delivery thereof.
3. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the several Underwriters as follows:
(a) The Company will use its best efforts to cause
the Registration Statement, if not effective at the Execution Time, to become
effective as promptly as possible. The Company will notify you immediately, and
confirm such notice in writing, (i) when the Registration Statement (including
any amendments thereto) becomes effective, (ii) of any request by the Commission
for any amendment of or supplement to the Registration Statement or the Final
Prospectus or for any additional information, (iii) of the issuance by the
Commission of a Stop Order suspending the effectiveness of the Registration
Statement (including any post-effective amendment thereto) or of the initiation,
or the threatening, of any proceedings therefor, (iv) of the receipt of any
comments from the Commission and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation, or threatening, of
any proceeding for that purpose. If the Commission shall propose or enter a Stop
Order at any time, the Company will make every reasonable effort to prevent the
issuance of any such Stop Order and, if issued, to obtain the withdrawal of such
order as soon as possible. The Company will not file any amendment to the
Registration Statement or supplement (including the Final Prospectus or any
Preliminary Final
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<PAGE>
Prospectus) to the Basic Prospectus before or after the Effective Date unless
the Company has furnished you with a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you reasonably
object.
(b) During the time when a prospectus relating to the
Securities is required to be delivered hereunder or under the 1933 Act or the
Regulations, the Company will comply with all requirements imposed upon it by
the 1933 Act as now existing and as hereafter amended, and by the Regulations,
as from time to time in force, so far as necessary to permit the continuance of
sales of or dealing in the Securities in accordance with the provisions thereof
and the Final Prospectus. If at any time when a prospectus relating to the
Securities is required to be delivered under the 1933 Act, any event shall have
occurred as a result of which, in the judgment of the Company, you or your
counsel, the Final Prospectus as then amended or supplemented includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary at any time to amend or supplement the Final Prospectus or
Registration Statement to comply with the 1933 Act or the Regulations, the
Company will notify you promptly and prepare and file with the Commission an
appropriate amendment or supplement (in form and substance satisfactory to you)
which will correct such statement or omission and will use its best efforts to
have any amendment to the Registration Statement declared effective as soon as
possible and will deliver to the several Underwriters, without charge, such
number of copies thereof as may be reasonably requested by the Underwriters;
PROVIDED that the Company will promptly notify you if such judgment has been
reached by it.
(c) The Company will promptly deliver to you a copy
of the Registration Statement, including exhibits and all amendments thereto,
and the Company will promptly deliver without charge to you such number of
copies of the Basic Prospectus, any Preliminary Final Prospectus, the Final
Prospectus, the Registration Statement, and all amendments of and supplements to
such documents, if any, as may be reasonably requested by the Underwriters.
(d) The Company will endeavor in good faith, in
cooperation with you, to timely qualify the Securities for offering and sale
under the securities laws of such jurisdictions as you may designate and to
maintain such qualification in effect for so long as required for the
distribution thereof; PROVIDED that in no event shall the Company be obligated
to qualify to do business in any jurisdiction where it is not now so qualified
or to take action which would subject it to general service of process in any
jurisdiction where it is not now so subject or to conduct its business in a
manner in which it is not currently so conducting its business.
(e) The Company will make generally available (within
the meaning of Section 11 (a) of the 1933 Act and Rule 158 of the Regulations)
to its security holders and to you as soon as practicable an earnings statement
which need not be audited but which shall satisfy the provisions of Section
11(a) of the 1933 Act and Rule 158 of the Regulations.
(f) The Company, during the period when the Final
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Section 13 or
14 of the 1934 Act.
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<PAGE>
(g) During the period of one year after the date
hereof, the Company will furnish to you (i) as soon as publicly available, a
copy of each Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current
Report on Form 8-K, annual report to stockholders and definitive proxy statement
of the Company filed with the Commission under the 1934 Act or mailed to
stockholders and (ii) from time to time, such other information concerning the
Company as you may reasonably request.
(h) The Company will apply the proceeds from the sale
of the Securities as set forth under the caption "Use of Proceeds" in the Final
Prospectus.
(i) Prior to the Closing Time, the Company shall
furnish to you, as soon as they have been prepared, copies of any unaudited
interim consolidated financial statements of the Company and its subsidiaries,
for any periods subsequent to the periods covered by the financial statements
appearing or incorporated by reference in the Registration Statement and the
Final Prospectus.
(j) The Company will use its best efforts to complete
listing for trading of the Depositary Shares on the New York Stock Exchange,
Inc. (the "NYSE") within 30 days from the date hereof.
(k) The Company will comply with all provisions of
all undertakings contained in the Registration Statement.
(l) The Company consents to the use of the Final
Prospectus or any amendment or supplement thereto by you and by all dealers to
whom the Securities may be sold, both in connection with the offering or sale of
the Securities and for such period of time thereafter as the Final Prospectus is
required by law to be delivered in connection therewith.
(m) Prior to the Closing Time, the Company will not,
without the consent of the Underwriters offer, sell or contract to sell, or
announce the offering of, shares of any class of capital stock of the Company
(other than the Securities) which is ranked prior as to the payment of
dividends, or as to the distribution of assets upon any liquidation, dissolution
or winding up of the Company, over shares of any other class of capital stock of
the Company.
(n) The Company will file no amendment or supplement
to the Registration Statement or the Final Prospectus at any time, whether
before or after the effective date of the Registration Statement, unless such
filing shall comply with the 1933 Act and the Regulations and unless you shall
previously have been advised of such filing and furnished with a copy thereof,
and you and your counsel shall have approved such filing.
(o) The Company consents to the use of the Final
Prospectus or any amendment or supplement thereto by you and by all dealers to
whom the Securities may be sold, both in connection with the offering or sale of
the Securities and for such period of time thereafter as the Final Prospectus is
required by law to be delivered in connection therewith.
4. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company hereby covenants and agrees with the several Underwriters that the
Company will pay or cause to be
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paid the following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Securities
under the 1933 Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus, the Final Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) all costs and expenses related to the issuance,
transfer and delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon; (iii) the cost of printing or producing
this Agreement, the Deposit Agreement, if any, any Blue Sky and legal investment
memoranda and any other documents in connection with the offering, purchase,
sale and delivery of the Securities; (iv) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 3(d) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment memoranda; (v) any fees
charged by securities rating agencies for rating the Securities, if the
Securities are so rated; (vi) any filing fees incident to any required reviews
by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Securities; (vii) the costs and expenses of any
qualified independent underwriter which may be required by the rules and
regulations of the NASD; (viii) all costs and expenses incident to listing the
Securities on the NYSE or other national securities exchange; (ix) the cost of
preparing certificates for the Securities and the cost and charges of The
Depository Trust Company, Inc. and its nominee for acting as a depository for
the Securities and otherwise effecting any book entry ownership system for the
Securities; (x) the cost and charges of the Depositary, any transfer agent,
calculation agent, registrar or disbursing agent; and (xi) all other costs and
expenses incident to the performance of the Company's obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section and Sections 6 and
7 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them and any advertising expenses connected with any offers they
may make.
If this Agreement is entered into and the purchase of
Securities by the Underwriters pursuant to this Agreement is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied, because of any termination pursuant to
Section 10(b) hereof or because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters to purchase and pay for the Securities, as provided
herein, shall be subject to the continuing accuracy of the representations and
warranties of the Company, herein contained, as of the date hereof and, at the
Closing Time, to the absence from any certificates, opinions, written statements
or letters furnished to you pursuant to this Section 5 or to Kramer Levin
Naftalis & Frankel LLP ("Underwriters' Counsel") pursuant to this Section 5 of
any misstatement or omission, to the performance by the Company of its
obligations hereunder in all material respects and to the following additional
conditions:
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(a) If the Registration Statement has not become
effective prior to the Execution Time, the Registration Statement shall have
become effective not later than 6:00 p.m., New York City time, on the date of
this Agreement or such later date and time as shall be consented to in writing
by you, and, if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b).
(b) At the Closing Time (i) no Stop Order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued under the 1933 Act, and no proceeding under the 1933 Act or the 1934
Act therefor shall have been initiated or threatened by the Commission, or, with
respect to the filing of any Form 8-A under the 1934 Act, by any national
securities exchange; and all requests for additional information on the part of
the Commission shall have been complied with or such requests shall have been
otherwise satisfied; (ii) the rating assigned by any nationally recognized
securities rating agency to any debt securities, preferred stock or other
obligations of the Company as of the date of this Agreement shall not have been
lowered since the execution of this Agreement and no such agency shall have
publicly announced since the execution of this Agreement that it has under
surveillance or review, with possible negative implications, its rating of any
of the debt securities or preferred stock of the Company; and (iii) since the
respective dates as of which information is given in the Registration Statement
and the Final Prospectus, except as otherwise stated therein or contemplated
thereby, there shall not have been any material adverse change in, or any
adverse development which materially affects, the financial condition, results
of operations, business or properties of the Company and its subsidiaries
considered as one enterprise, the effect of which is in your reasonable judgment
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the terms and in
the manner contemplated in the Final Prospectus.
(c) At the Closing Time, you shall have received the
opinion of Cadwalader, Wickersham & Taft, counsel for the Company, dated the
date of delivery and substantially in the form set forth in Schedule III hereto,
addressed to the Underwriters and in form and scope reasonably satisfactory to
Underwriters' Counsel.
(d) At the Closing Time, you shall have received the
opinion of Mark E. Lehman, Esq., Senior Managing Director of the Company's
Legal & Compliance Department, dated the date of delivery and substantially in
the form set forth in Schedule IV, addressed to the Underwriters and in form
and scope reasonably satisfactory to Underwriters' Counsel.
(e) At the Closing Time, you shall have received a
certificate of the Chief Financial Officer or the Controller of the Company,
dated the date of delivery, to the effect that the conditions set forth in
subsections (a) and (b) of this Section 5 have been satisfied, that as of the
date hereof and at the date of delivery, the representations and warranties of
the Company set forth in Section 1 hereof are accurate, and that at the date of
delivery, the obligations of the Company to be performed hereunder on or prior
thereto have been duly performed in all material respects.
(f) At each of the Execution Time and the Closing
Time, you shall have received a letter (which may be an update or "bringdown"
letter) from Deloitte & Touche
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LLP, independent public accountants for the Company and its subsidiaries, dated
the date of delivery, substantially in the form set forth in Schedule VI hereto,
addressed to the Underwriters and in form and scope reasonably satisfactory to
you.
(g) The Underwriters shall have received from the
Underwriters' Counsel an opinion, dated the Closing Time, with respect to the
issuance and sale of the Securities, the Registration Statement, the Final
Prospectus, and any amendments or supplements to the Registration Statement or
Final Prospectus and such other related matters, as you may reasonably require,
and the Company shall have furnished to Underwriters' Counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(h) At the Closing Time, you shall have received the
opinion of counsel for the Depositary, dated the Closing Time and substantially
to the effect set forth in Schedule VII, addressed to the Underwriters and in
form and scope reasonably satisfactory to Underwriters' Counsel.
(i) At the Closing Time, the Deposit Agreement shall
have been duly authorized, executed and delivered by the Company and the
Depositary, and copies thereof shall have been delivered to the Underwriters'
Counsel
(j) All proceedings taken in connection with the sale
of the Securities as contemplated herein shall be satisfactory in form and scope
to you and to Underwriters' Counsel, and, prior to the Closing Time, the Company
shall have furnished to you such further information, certificates and documents
as you may reasonably request.
(k) The NASD, upon review of the terms of the public
offering of the Securities, shall have no objections to the fairness of the
underwriting terms and arrangements of the offering.
(l) At the Closing Time, Form 8-A under the 1934 Act
(the "Form 8-A"), as amended to include the Preferred Stock and the Depositary
Shares therein, shall have become effective.
(m) The Board of Directors of the Company or an
authorized committee thereof shall have authorized the amendment to Form 8-A
contemplated by clause (l) above, the issuance and designation of the Preferred
Stock, the filing of a Certificate of Designations with the Secretary of State
of the State of Delaware, pertaining to the Preferred Stock, the offering of the
Securities and the other transactions contemplated hereby or the Deposit
Agreement.
(n) The Company shall have filed with the Secretary
of State of the State of Delaware a Certificate of Designations with respect to
the Preferred Stock.
(o) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
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If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel, pursuant to this Section 5 shall not be in all material
respects reasonably satisfactory in form and scope to you and to Underwriters'
Counsel, all your obligations hereunder may be cancelled by you at, or at any
time prior to, the Closing Time. Notice of such cancellation shall be given to
the Company in writing, or by telephone, telex or telecopy, confirmed in
writing.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all losses, liabilities, claims, damages and out-of-pocket
expenses whatsoever (including but not limited to attorneys' fees and any and
all expenses whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), to which you or any such person may become subject under the 1933
Act, the 1934 Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any related Basic
Prospectus, Preliminary Final Prospectus, or Final Prospectus, or in any
supplement thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, in
light of the circumstances under which they were made) not misleading or (ii)
any breach of any representation, warranty, covenant or agreement of the Company
contained in this Agreement; PROVIDED, HOWEVER, that the Company will not be
liable to any Underwriter or any person so controlling such Underwriter in any
such case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon (x) any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through you expressly for use
therein such written information being as set forth in penultimate sentence of
subsection (b) below, or (y) any failure of such Underwriter to deliver the
Final Prospectus to a purchaser of Securities as required by applicable law.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have including under this Agreement.
(b) Each Underwriter severally, and not jointly,
agrees to indemnify and hold harmless the Company, each of its directors, each
of its officers who shall have signed the Registration Statement, and each other
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20(a) of the 1934 Act against any losses, liabilities,
claims, damages and expenses whatsoever (including but not limited to attorneys'
fees and any and all out-of-pocket expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever and any and all amounts paid in settlement
of any claim or litigation), joint and several, to which they or any of them may
become subject under the 1933 Act, the 1934 Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of
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or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any related Basic Prospectus,
Preliminary Final Prospectus or Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a Basic Prospectus,
Preliminary Final Prospectus or Final Prospectus, in light of the circumstances
under which they were made) not misleading, in each case to the extent, but only
to the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Underwriter through you expressly for use therein. For all purposes of this
Agreement, the amounts of the selling concession and reallowance set forth under
the heading "Underwriting" in the Final Prospectus constitute the only
information furnished in writing by or on behalf of any Underwriter expressly
for inclusion in any Basic Prospectus or Preliminary Final Prospectus, the Final
Prospectus, or the Registration Statement (as from time to time amended or
supplemented), or any amendment or supplement thereto. This indemnity will be in
addition to any liability which any Underwriter may otherwise have, including
under this Agreement; PROVIDED, HOWEVER, that in no case shall any Underwriter
be liable or responsible for any amount in excess of the underwriting discounts
and commissions received by such Underwriter.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party against
whom indemnification is to be sought in writing of the commencement thereof (but
the failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent that it
has been prejudiced in any material respect by such failure or from any
liability which it may have otherwise). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties, it being understood,
however, that the indemnifying party shall not, in connection with any one such
claim, action or proceeding or separate but substantially similar or related
claims, actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm (together with appropriate local counsel) at any
time for the indemnified party or parties, which firm shall be designated in
writing by the indemnified party or parties, unless such indemnified
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party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to one or all of the other indemnified party or parties (in which case
the indemnifying party shall be liable for the fees and expenses of only one
additional separate firm (together with appropriate local counsel) for such
indemnified party or parties at any time)), in any of which events such fees and
expenses shall be borne by the indemnifying parties. Anything in this Section 6
to the contrary notwithstanding, an indemnifying party shall not be liable for
any settlement of any claim or action effected without its written consent;
PROVIDED, HOWEVER, that such consent was not unreasonably withheld.
7. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 hereof is
for any reason held to be unavailable from the Company or is insufficient to
hold harmless a party indemnified thereunder, the Company and the Underwriters
shall contribute to the aggregate losses, claims, damages, liabilities and
out-of-pocket expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company, any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act, officers of the Company who signed the Registration Statement and
directors of the Company) to which the Company and one or more of the
Underwriters may be subject, in such proportions as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities or, if such
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 6 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company bear to the underwriting
discounts and commissions received by the Underwriters, respectively, in each
case as set forth in the table on the cover page of the Final Prospectus. The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discount applicable to the
Securities purchased by such Underwriter hereunder, and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to
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contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of the preceding sentence
of this Section 7. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 7 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; PROVIDED, HOWEVER, that such consent was not unreasonably
withheld.
8. DEFAULT BY AN UNDERWRITER.
(a) If any Underwriter or Underwriters shall default
at the Closing Time in its or their obligation to purchase Preferred Stock
hereunder and if the number of shares of Preferred Stock to which such default
relates does not (after giving effect to arrangements, if any, made by you
pursuant to subsection (b) below) exceed in the aggregate 10% of the total
number of shares of Preferred Stock that all Underwriters have agreed to
purchase hereunder, then such shares of Preferred Stock to which the default
relates shall be purchased by the non-defaulting Underwriters in proportion to
their respective commitments hereunder.
(b) If such default relates to more than 10% of the
total number of shares of Preferred Stock that all the Underwriters have agreed
to purchase, you may in your discretion arrange for yourself or for another
party or parties (including any other non-defaulting Underwriter or Underwriters
who so agree) to purchase the shares of Preferred Stock to which such default
relates on the terms contained herein. If within five calendar days after such a
default you do not arrange for the purchase of the shares of Preferred Stock to
which such default relates as provided in this Section 8, this Agreement shall
thereupon terminate, without liability on the part of the Company with respect
thereto (except in each case as provided in Sections 4, 6 and 7 hereof) or the
several Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
several Underwriters and the Company for damages occasioned by its or their
default hereunder.
(c) If the shares of Preferred Stock to which the
default relates are to be purchased by the non-defaulting Underwriters, or is to
be purchased by another party or parties as aforesaid, you or the Company shall
have the right to postpone the Closing Time for a period, not exceeding five
business days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Final Prospectus or in any other documents
and arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Final Prospectus which, in the
opinion of Underwriters' Counsel, may thereby be made necessary or advisable.
The term "Underwriter" as used in this
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Agreement shall include any party substituted under this Section 8 with like
effect as if it had originally been a party to this Agreement with respect to
such Securities.
9. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All
representations warranties, covenants and agreements of the Underwriters and the
Company contained in this Agreement, including the representations and
warranties contained in Section 1, the agreements contained in Section 4, the
indemnity agreements contained in Section 6 and the contribution agreements
contained in Section 7, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of and payment for the Securities to and by the several Underwriters.
The representations contained in Section 1 and the agreements contained in
Sections 4, 6, 7, 9 and 12 hereof shall survive the termination of this
Agreement including pursuant to Section 10 hereof.
10. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective as of the
time, after the Registration Statement becomes effective, of the release by you
for publication of the first newspaper advertisement which is subsequently
published relating to the Securities or the time, after the Registration
Statement becomes effective, when the Securities are first released by you for
offering by you or dealers by letter or telegram, whichever shall first occur.
You or the Company may prevent this Agreement from becoming effective without
liability of any party to any other party, except as noted below in this Section
10, by giving the notice indicated in Section 10(c) before the time this
Agreement becomes effective.
(b) You shall have the right to terminate this
Agreement at any time prior to the Closing Time if, after the date hereof:
(i) any domestic or international event or act or occurrence has materially
disrupted, or in your opinion will in the immediate future materially disrupt,
the securities markets; (ii) a general suspension of, or a general limitation on
prices for, trading in securities on the NYSE or the American Stock Exchange or
in the over-the-counter market; (iii) a banking moratorium shall have been
declared either by Federal or New York State authorities; (iv) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States or on
the United States is such as to make it, in the judgment of the Underwriters,
impracticable to market the Securities; (v) any restriction materially adversely
affecting the distribution of the Securities which was not in effect on the date
hereof shall have become effective; or (vi) there shall have been such change in
the market for the securities of the Company or securities in general or in
political, financial or economic conditions as in your judgment makes it
inadvisable to proceed with the offering, sale and delivery of the Securities on
the terms contemplated by the Final Prospectus.
(c) Any notice of termination pursuant to this
Section 10 shall be by telephone, telex, or telegraph, confirmed in writing by
letter.
11. NOTICE. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and, if sent to you
shall be mailed, delivered, or
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telexed or telecopied and confirmed in writing, to such Underwriter c/o Bear,
Stearns & Co. Inc., 245 Park Avenue, New York, New York 10167, Attention:
Corporate Finance Department; if sent to the Company, shall be mailed,
delivered, or telexed or telecopied and confirmed in writing to the Company, 245
Park Avenue, New York, NY 10167, Attention: Chief Financial Officer.
12. PARTIES. This Agreement shall inure solely to the benefit
of, and shall be binding upon, the several Underwriters, the Company and the
controlling persons, directors, officers, employees and agents referred to in
Sections 6 and 7, and their respective successors and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provision
herein contained. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Securities from any of the Underwriters.
Notwithstanding anything contained in this Agreement to the contrary, all of the
obligations of the Underwriters hereunder are several and not joint.
13. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. CONSTRUCTION. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to principles
of conflict of law.
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If the foregoing correctly sets forth the understanding
between you and the Company please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement
between us.
Very truly yours,
THE BEAR STEARNS COMPANIES INC.
By:
----------------------------
Name:
Title:
Accepted as of the date first above written.
[BEAR, STEARNS & CO. INC.]
By: BEAR, STEARNS & CO. INC.
By:
----------------------------
Name:
Title:
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SCHEDULE I
Number of shares of
Preferred Stock (and
number of Depositary
Shares representing the
same) to be purchased
Underwriters
_______________
Total _______________
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SCHEDULE II
Underwriting Agreement dated:
Registration Statement No.
Title and Description of Preferred Stock:
Designation:
Number of Shares:
Number of Shares of Preferred Stock:
Liquidation Preference:
Dividend Rate:
Payable:
Conversion Feature:
Redemption Provisions:
Other provisions: As described in the Final Prospectus
Over-allotment Option:
Depositary Receipt Arrangements: /Yes/ /No/
Name of Depositary:
Date of Deposit Agreement:
Fraction of a share of Preferred Stock
equal to one Depositary Share:
Number of Depositary Shares:
Purchase price per Depositary Share: $ _____
Initial public offering price per Depositary Share: $ _____
Closing Date, Time and Location:
Date: ________
Time: ________
Location:
Delayed Delivery Contracts:
Delivery Date:
Minimum Number of Shares:
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Maximum Aggregate Number of Shares:
Fee:
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SCHEDULE III
1. Each of the Company, Bear, Stearns & Co. Inc. ("Bear
Stearns") and Bear, Stearns Securities Corp. ("BSSC") is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as described in the Final
Prospectus. Each of the Company, Bear Stearns and BSSC is duly qualified to
transact business and is in good standing as a foreign corporation in the State
of New York. All of the outstanding shares of capital stock of Bear Stearns and
BSSC is owned of record and, to the best of our knowledge, beneficially by the
Company and by Bear Stearns, respectively, in each case free and clear, to the
best of our knowledge, of any lien, security interest or other encumbrance.
2. The authorized preferred stock of the Company is as set
forth in the Final Prospectus; the Certificate of Designations relating to the
Preferred Stock, the provisions of the Certificate of Incorporation relating to
the Preferred Stock; the Depositary Shares, the Depositary Receipts and the
Deposit Agreement conform in all material respects to the respective
descriptions thereof contained in the Final Prospectus; the Preferred Stock has
been duly authorized and, when issued and delivered for the account of and paid
for by the Underwriters pursuant to the Underwriting Agreement, will be validly
issued, fully paid and nonassessable; and the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other rights to
subscribe for the Preferred Stock or Depositary Shares representing the same.
3. The Company has all requisite corporate power and authority
to execute and deliver the Underwriting Agreement and to perform its obligations
thereunder. The execution, delivery and performance by the Company of the
Underwriting Agreement and the consummation by the Company of the transactions
contemplated thereby have been duly authorized by all necessary corporate action
on the part of the Company. The Underwriting Agreement has been duly and validly
executed and delivered by the Company and, assuming the due authorization,
execution and delivery thereof by the other parties thereto, constitutes the
legal, valid and binding obligation of the Company, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
4. The Deposit Agreement has been duly authorized, executed
and delivered by the Company and, assuming the due authorization, execution and
delivery of the same by the Depositary, constitutes the legal, valid and binding
obligation of the Company, enforceable against it in accordance with its terms,
subject to the applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity); when the Depositary Receipts are issued in accordance with the
provisions of the Deposit Agreement against the deposit of validly
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issued, fully paid and nonassessable shares of the Preferred Stock, such
Depositary Receipts will entitle the holders thereof to the rights specified in
such Depositary Receipts and in the Deposit Agreement, subject to the applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
5. The execution and delivery by the Company of the
Underwriting Agreement and the Deposit Agreement, and the consummation of the
transactions contemplated thereby and compliance by the Company with any of the
provisions thereof will not (i) conflict with or violate any of the terms,
conditions or provisions of the Certificate of Incorporation or By-Laws of the
Company, (ii) conflict with, or result in a breach of any of the terms of, or
constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default) or require consent under, or result in imposition
of, any lien or encumbrance upon any property or assets of the Company pursuant
to the terms of, any material document, agreement or other instrument of which
we are aware to which the Company is a party or by which it is bound, (iii)
conflict with or violate any New York, Delaware corporate or federal law or
regulation (other than federal and state securities or blue sky laws, as to
which we express no opinion in this sentence), or (iv) conflict with or violate
any judgment, writ, injunction, decree, order or ruling of any court or
governmental authority binding on the Company of which we are aware. No consent,
approval, waiver, license or authorization or other action by or filing with any
New York, Delaware corporate or federal governmental authority is required in
connection with the execution and delivery by the Company of the Underwriting
Agreement and the Deposit Agreement or the consummation by the Company of the
transactions contemplated thereby except for those that (i) may be required by
Rule 424(b) promulgated under the 1933 Act or (ii) may be required under state
securities or blue sky laws, as to which we express no opinion; and a
Certificate of Designations covering the Securities has been duly executed on
behalf of the Company and filed with the Secretary of State of the State of
Delaware.
6. The Registration Statement, as of its effective date, and
the Final Prospectus, as of its issue date and as of the date hereof, complied
and comply, as to form in all material respects with the requirements of the
1933 Act and the rules and regulations thereunder (except that no opinion is
expressed herein with respect to the financial statements and notes thereto, the
financial statement schedules and the other financial, statistical and
accounting data included or incorporated by reference therein or that should
have been included therein).
7. To the best of our knowledge, based upon telephonic
confirmation from the Commission, the Registration Statement was declared
effective under the 1933 Act and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
therefor have been initiated or threatened by the Commission. Any required
filing of the Basic Prospectus, any Preliminary Final Prospectus, and the Final
Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b).
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We have participated in conferences with directors, officers
and other representatives of the Company, representatives of the Underwriters
and representatives of Kramer Levin Naftalis & Frankel LLP, counsel for the
Underwriters, at which conferences the contents of the Registration Statement,
the Final Prospectus, and related matters were discussed, and, although we have
not independently verified and are not passing upon and assume no responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Final Prospectus or the Incorporated Documents, no
facts have come to our attention that lead us to believe that the Registration
Statement, on the effective date thereof, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements contained therein not misleading, or that
the Final Prospectus, on the date thereof or on the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading (it being understood that we express no view with respect to the
financial statements and notes thereto, the financial statement schedules and
the other financial, statistical and accounting data included or incorporated by
reference in the Registration Statement or the Final Prospectus).
-27-
<PAGE>
SCHEDULE IV
To the best of my knowledge, there are no legal or
governmental proceedings pending or threatened that are required to be disclosed
in the Registration Statement, other than those disclosed therein, and there is
no pending legal or governmental proceeding to which the Company or any
subsidiary of the Company is a party or of which any of their property is the
subject that is not described in the Registration Statement, including ordinary
routine litigation incidental to the business, which, if adversely decided, will
have a material adverse effect upon the operations, business or assets of the
Company and its subsidiaries considered as one enterprise.
-28-
<PAGE>
SCHEDULE V
Preferred Stock
$1.00 par value
DELAYED DELIVERY CONTRACT
The Bear Stearns Companies Inc.
245 Park Avenue
New York, New York 10167
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from The
Bear Stearns Companies Inc. (the "Company"), and the Company agrees to sell to
the undersigned on _________, 2000 (the "Delivery Date: ), ________ shares of
the Company's [insert title of security] (the "Securities"), offered by the
Company's Prospectus dated ______ , 2000, as supplemented by its Prospectus
Supplement dated _____ , 2000, receipt of which is hereby acknowledged, at a
purchase price of ______ and on the further terms and conditions set forth in
this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by wire
transfer of federal funds, at the offices of Bear, Stearns & Co. Inc., 245 Park
Avenue, New York, New York 10167, on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned in definitive
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligations of the Company
to sell and deliver Securities on the Delivery Date, shall be subject only to
the conditions (and neither party shall incur any liability by reason of the
failure thereof) that (i) the purchase of Securities to be made by the
undersigned shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned to which the undersigned is subject and
(2) the Company, on or before _____ , 2000, shall have sold to the Underwriters
of the Securities (the "Underwriters") such number of shares of the Securities
as is to be sold to them pursuant to the Underwriting Agreement dated ____ ,
2000, between the Company and Underwriters. The obligation of the undersigned to
take delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payment for Securities
pursuant to other contracts similar to this contract. The undersigned represents
and warrants to you that its investment in the Securities is not, as of the date
hereof, prohibited under the laws of any jurisdiction to which the undersigned
is subject and which govern such investment.
-29-
<PAGE>
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and
warrants to the Company that all necessary corporate action for the due
execution and delivery of this contract and the payment for and purchase of the
securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the Company
and mailing or delivery of a copy as provided below, this contract will
constitute a valid and binding agreement of the undersigned in accordance with
its terms.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed
Delivery Contracts for an aggregate number of shares of Securities in excess of
_____ and that the acceptance of any Delayed Delivery Contracts is in the
Company's sole discretion and, without limiting the foregoing, need not be
acceptable to the Company, it requested that the Company sign the form of
acceptance on a copy hereof and mail or deliver a signed copy hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned when such copy is so mailed or
delivered.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State, without giving effect to conflicts of laws
principles.
Yours very truly,
_________________________
(Name of Purchaser)
By: _________________________
Name:
Title:
_________________________
_________________________
_________________________
(Address of Purchaser)
-30-
<PAGE>
Accepted as of the date first above written
THE BEAR STEARNS COMPANIES INC.
By: ________________________________
Name:
Title:
-31-
<PAGE>
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print)
Telephone No.
Name (including area code)
- ---- ---------------------
-32-
<PAGE>
SCHEDULE VI
1. They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the 1934 Act
(collectively, the "Acts") and the applicable published rules and regulations
thereunder.
2. In their opinion, the consolidated financial statements and
supporting schedules of the Company, audited by them and incorporated by
reference in the Registration Statement and the Final Prospectus, comply as to
form in all material respects with the applicable accounting requirements of the
1933 Act and the 1934 Act and the related published rules and regulations.
3. They have performed certain specified procedures, not
constituting an audit, including a reading of the unaudited interim consolidated
financial statements of the Company incorporated by reference in the
Registration Statement and of the latest available unaudited interim
consolidated financial data of the Company; a reading of the minutes of the
meetings and consents of the stockholders, the Board of Directors and the
Executive Committee of the Board of Directors of the Company and of each of the
Significant Subsidiaries (as such term is defined in Rule 405 of Regulation C of
the Regulations) of the Company since the end of the most recent fiscal year
with respect to which an audit report has been issued; inquiries of certain
officials of the Company and such Significant Subsidiaries who have
responsibility for financial and accounting matters with respect to the
unaudited consolidated financial statements incorporated by reference in the
Registration Statement and Final Prospectus and the latest available unaudited
interim consolidated financial data of the Company.
4. Nothing came to their attention as a result of the
foregoing procedures that caused them to believe that:
(a)(i) The unaudited consolidated financial
statements described in paragraph 3 above incorporated by
reference in the Registration Statement and the Final
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Acts and
with the related published rules and regulations and (ii) the
unaudited consolidated financial statements are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited consolidated financial statements; or
(b)(i) The unaudited consolidated financial
statements described in paragraph 3 are not stated on a basis
substantially consistent with that of the audited consolidated
financial statements, or (ii) as of a specified date not more
than five days prior to the date of such letter and as of the
date of the latest available unaudited consolidated monthly
financial data of the Company, there was any change in the
capital stock or long-term indebtedness of the Company and its
subsidiaries or any decrease in the stockholders' equity of
the Company, in each case as compared with the amounts shown
on the most recent unaudited
-33-
<PAGE>
consolidated statement of financial condition of the Company
included and incorporated by reference in the Registration
Statement and Final Prospectus, or (iii) during the period
from the date of such statement of financial condition to the
date of the latest available unaudited consolidated financial
data of the Company, there were any decreases, as compared
with the corresponding period in the preceding year, in
consolidated revenues, income before extraordinary item, if
any, and net income of the Company and its subsidiaries,
except in each such case for changes or decreases set forth in
or contemplated by the Registration Statement and Final
Prospectus or except for such changes or decreases set forth
in such letter.
5. They have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration Statement and the
Final Prospectus and in Exhibit 12 to the Registration Statement, including the
information included or incorporated in certain specified Items of the Company's
Annual Report on Form 10-K, incorporated in the Registration Statement and the
Final Prospectus, and the information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q, incorporated in
the Registration Statement and the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of legal
interpretation.
6. In addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement and the
Final Prospectus, and the limited procedures referred to in paragraph 3 above,
they have provided such additional information as the Underwriters reasonably
request with respect to certain amounts, percentages and financial information
which are included or incorporated by reference in the Registration Statement
and Final Prospectus, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting records or
computations therefrom.
-34-
<PAGE>
SCHEDULE VII
The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes the legal, valid and binding
obligation of the Depositary, enforceable against the Depositary in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
-35-
<PAGE>
Exhibit 4(b)(2)
Form of Medium-Term Note, Series B (Fixed Rate)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED $
No. FX - CUSIP #
THE BEAR STEARNS COMPANIES INC.
MEDIUM-TERM NOTE, SERIES B
(FIXED RATE)
Interest Rate:
Interest Payment Dates:
Original Issue Date: Redeemable On and After:
Maturity Date: Optional Repayment Date(s):
<PAGE>
THE BEAR STEARNS COMPANIES INC., a Delaware corporation (the
"Company"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal amount stated above on the Maturity Date shown
above and to pay interest thereon at the rate per annum equal to the Interest
Rate shown above until the principal hereof is fully paid or duly made available
for payment. The Company will pay interest (computed on the basis of a 360-day
year of twelve 30-day months) in arrears on __________ of each year (each an
"Interest Payment Date") commencing with the Interest Payment Date next
following the Original Issue Date specified above (the "Original Issue Date")
provided that, if the Original Issue Date is later than the Regular Record Date
and prior to the next succeeding Interest Payment Date, interest shall be so
payable commencing with the second Interest Payment Date following the Original
Issue Date, and on the Maturity Date shown above, the date of redemption (the
"Redemption Date"), if any, or the date of optional repayment (the "Optional
Repayment Date"), if any, on said principal amount at the Interest Rate per
annum specified above. Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly provided for or,
if no interest has been paid, from the Original Issue Date shown above until the
principal hereof has been paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on the Interest Payment Date
referred to above, will, as provided in the Indenture referred to below, be paid
to the Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the date, whether or not a Business Day, 15 calendar
days immediately preceding such Interest Payment Date; PROVIDED,
HOWEVER, that interest payable on the Maturity Date shown above or, if
applicable, upon redemption or optional repayment, will be payable to the Person
to whom the principal hereof shall be payable; and PROVIDED, FURTHER, HOWEVER,
that if such Interest Payment Date would fall on a day that is not a Business
Day, such Interest Payment Date shall be the following day that is a Business
Day. Any such interest which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Note not less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture.
Payment of the principal of and interest on this Note shall be made at
the office or agency of the Trustee maintained for that purpose in the Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debt; PROVIDED, HOWEVER, that payment of interest on any
Interest Payment Date (other than the Maturity Date or Redemption Date or
Optional Repayment Date, if any) may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register, or by wire transfer of immediately available
funds, if the registered holder of at least $10,000,000 in principal amount of
Notes entitled to such interest has so requested by a notice in writing
delivered to the Trustee not less than 16 days prior to the Interest Payment
Date on which such payment is due, which notice shall provide appropriate
instructions for such transfer.
The principal hereof and interest due at maturity will be paid upon
maturity in immediately available funds against presentation of this Note at the
office or agency of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
This Note is one of the series of Medium-Term Notes, Series B, of the
Company.
<PAGE>
Unless the certificate of authentication hereon has been executed by
The Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder by the manual signature of one of its authorized signatories, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
THE BEAR STEARNS COMPANIES INC.
By: __________________________________
ATTEST:
_________________________________
Secretary
[Corporate Seal]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:_____________________________
Authorized Signature
<PAGE>
[REVERSE OF NOTE]
THE BEAR STEARNS COMPANIES INC.
MEDIUM-TERM NOTE, SERIES B
(FIXED RATE)
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness (hereinafter called the "Securities") of the
Company of the series hereinafter specified, all such Securities issued and to
be issued under the Indenture dated as of May 31, 1991, as amended (herein
called the "Indenture") between the Company and The Chase Manhattan Bank, as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
limitations of rights thereunder of the Company, the Trustee and the Holders of
the Securities, and the terms upon which the Securities are, and are to be,
authenticated and delivered. As provided in the Indenture, Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest,
if any, at different rates, may be subject to different redemption provisions,
if any, may be subject to different repayment provisions, if any, may be subject
to different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided or permitted. This Note is one of the series of the
Securities designated as Medium-Term Notes, Series B (the "Notes"). The Notes of
this series may be issued at various times with different maturity dates,
redemption dates and different principal repayment provisions, may bear interest
at different rates and may otherwise vary, all as provided in the Indenture.
If so specified on the face of this Note, this Note may be redeemed by
the Company on and after the date so indicated on the face hereof. If no such
date is set forth on the face hereof, this Note may not be redeemed prior to
maturity. On and after such date, if any, from which this Note may be redeemed,
this Note may be redeemed in whole or in part in increments of $1,000 (provided
that any remaining principal amount of this Note shall be at least $25,000), at
the option of the Company, at a redemption price equal to 100% of the principal
amount to be redeemed, together with interest thereon payable to the Redemption
Date, on notice given not more than 60 nor less than 30 days prior to the
Redemption Date. If less than all the Outstanding Notes having such terms as
specified by the Company are to be redeemed, the particular Notes to be redeemed
shall be selected by the Trustee not more than 60 days prior to the Redemption
Date from the Outstanding Notes having such terms as specified by the Company
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate. The notice of such redemption shall specify which Notes
are to be redeemed. In the event of redemption of this Note, in part only, a new
Note or Notes in authorized denominations for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the surrender hereof.
If so specified on the face of this Note, this Note will be subject to
repayment at the option of the Holder hereof on the Optional Repayment Date(s).
If no Optional Repayment Date is set forth on the face hereof, this Note may not
be repaid at the option of the Holder prior to maturity. On and after the
Optional Repayment Date, if any, from which this Note may be repaid at the
option of the Holder, this Note shall be repayable in whole or in part in
increments of $1,000 (provided that any remaining principal amount of this Note
shall be at least $25,000) at a repayment price equal to 100% of the principal
amount to be repaid, together with interest thereon payable to the Optional
Repayment Date. For this Note to be repaid in whole or in part at the option of
the Holder hereof, the Trustee must receive not less than 30 nor more than 60
days prior to the Optional Repayment Date (i) this Note with the form entitled
"Option to Elect Repayment," which appears below, duly completed or (ii) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States of America setting forth
the name of the Holder of this Note, the principal amount of this Note, the
certificate number of this Note or a description of this Note's tenor or terms,
the principal amount of this Note to be repaid, a statement that the option to
elect repayment is being exercised thereby and a guarantee that this Note with
the form entitled "Option to Elect Repayment," which appears below, duly
completed, will be received by the Trustee no later than five Business Days
after the date of such telegram, telex, facsimile transmission or letter and
this Note
<PAGE>
and such form duly completed are received by the Trustee by such fifth Business
Day. Exercise of the repayment option shall be irrevocable.
If any Event of Default with respect to the Notes shall occur and be
continuing, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Notes may declare the principal of all the Notes due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of each series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company, and this Note duly executed by, the Holder
hereof or by his attorney duly authorized in writing and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $25,000 or any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denomination as requested by
the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice of the contrary.
The interest rate payable with respect to this Note shall in no event
be higher than the maximum rate, if any, permitted by applicable law.
All capitalized terms used in this Note and not otherwise defined
herein shall have the meanings assigned to them in the Indenture.
<PAGE>
------------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ___________________ Custodian ___________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
____________________________________________(State)
Additional abbreviations may also be used though not in the above list.
------------------------------------
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion thereof specified below) pursuant to its
terms on ____________, 19___ (the "Optional Repayment Date") at a price equal to
the principal amount thereof, together with interest to the Optional Repayment
Date, to the undersigned at
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned.)
For this Note to be repaid the Trustee must receive at 450 West 33rd
Street, New York, New York 10001, Attention: Debt Operations -- 8th Floor, or at
such other place or places of which the Company shall from time to time notify
the Holder of this Note, not more than 60 days nor less than 30 days prior to
the Optional Repayment Date, this Note with this "Option to Elect Repayment"
form duly completed.
<PAGE>
If less than the entire principal amount of this Note is to be repaid,
specify the portion thereof (which shall be increments of $1,000) which the
Holder elects to have repaid: $_________________; and specify the denomination
or denominations (which shall be $25,000 or an integral multiple of $1,000 in
excess of $25,000) of the Notes to be issued to the Holder for the portion of
this Note that will be issued for the portion not being repaid):
Date:_________________ ________________________________
Note: The signature to this
Option to Elect Repayment must
correspond with the same as
written upon the face of this
Note in every particular without
alteration or enlargement.
------------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned
hereby sell(s), assign(s) and transfer(s) unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
- --------------------------------------------------------------------------------
- ------------------------------------
(Signature Guarantee)
<PAGE>
Exhibit 4(b)(3)
Form of Medium-Term Note, Series B (Floating Rate)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED $
No. FL- CUSIP #
THE BEAR STEARNS COMPANIES INC.
MEDIUM-TERM NOTE, SERIES B
(FLOATING RATE)
Original Issue Date: Interest Reset Date(s):
Maturity Date:
Interest Rate Basis: Interest Reset Period:
Initial Interest Rate: Interest Payment Date(s):
Index Maturity: Interest Payment Period:
Spread (plus or minus): Redeemable On and After:
Maximum Interest Rate: Optional Repayment Date(s):
Minimum Interest Rate:
<PAGE>
THE BEAR STEARNS COMPANIES INC., a Delaware corporation (the
"Company"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal amount stated above on the Maturity Date shown
above and to pay interest thereon at the rate per annum equal to the Initial
Interest Rate shown above until the first Interest Reset Date shown above
following the Original Issue Date shown above and thereafter at a rate
determined in accordance with the provisions on the reverse hereof under the
heading "Determination of Commercial Paper Rate," "Determination of LIBOR,"
"Determination of Federal Funds Rate," "Determination of Treasury Rate,"
"Determination of Prime Rate" or "Determination of CMT Rate" depending upon
whether the Interest Rate Basis is Commercial Paper Rate, LIBOR, Federal Funds
Rate, Treasury Rate, Prime Rate or CMT Rate, as indicated above, until the
principal hereof is fully paid or duly made available for payment. The Company
will pay interest monthly, quarterly, semiannually or annually as indicated
above on each Interest Payment Date shown above commencing with the first
Interest Payment Date shown above immediately following the Original Issue Date
shown above, and on the Maturity Date shown above, or, if applicable, upon
redemption or optional repayment; PROVIDED, HOWEVER, that if the Original Issue
Date shown above is between a Regular Record Date (as defined below) and an
Interest Payment Date, interest payments will commence on the Interest Payment
Date following the next succeeding Regular Record Date; and PROVIDED, FURTHER,
HOWEVER, that if an Interest Payment Date would fall on a day that is not a
Business Day (as defined on the reverse hereof), such Interest Payment Date
shall be the following day that is a Business Day, except that in case the
Interest Rate Basis is LIBOR, as indicated above, if such next Business Day
falls in the next calendar month, such Interest Payment Date will be the
preceding day that is a Business Day with respect to such LIBOR Note. Except as
provided above and in the Indenture referred to on the reverse hereof, interest
payments will be made on the Interest Payment Dates shown above. The "Regular
Record Date" shall be the date whether or not a Business Day 15 calendar days
immediately preceding such Interest Payment Date.
The interest so payable, and punctually paid or duly provided for, on
the Interest Payment Dates referred to above, will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, PROVIDED, HOWEVER, that interest payable on the
Maturity Date shown above, or if applicable, the date of redemption (the
"Redemption Date") or the date of optional repayment (the "Optional Repayment
Date"), will be paid to the Person to whom the principal of this Note is
payable. Any such interest which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Note not less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture.
Payments of principal and interest shall be made at the office or
agency of the Trustee maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debt; PROVIDED, HOWEVER, that payment of interest on any Interest Payment Date
(other than the Maturity Date or Redemption Date or Optional Repayment Date, if
any) may be made at the option of the Company by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register, or by wire transfer of immediately available funds, if the registered
holder of at least $10,000,000 in principal amount of Notes entitled to such
interest has so requested by a notice in writing delivered to the Trustee not
less than 16 days prior to the Interest Payment Date on which such payment is
due, which notice shall provide appropriate instructions for such transfer.
The principal hereof and interest due at maturity will be paid upon
maturity in immediately available funds against presentation of this Note at the
office or agency of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
<PAGE>
This Note shall be governed by and construed in accordance with the law
of the State of New York.
This Note is one of the series of Medium-Term Notes, Series B, of the
Company.
Unless the certificate of authentication hereon has been executed by
The Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder by the manual signature of one of its authorized signatories, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
THE BEAR STEARNS COMPANIES INC.
By:________________________
ATTEST:
_________________________
Secretary
[Corporate Seal]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:___________________________
Authorized Signature
<PAGE>
[REVERSE OF NOTE]
THE BEAR STEARNS COMPANIES INC.
MEDIUM-TERM NOTE, SERIES B
(FLOATING RATE)
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness (hereinafter called the "Securities") of the
Company of the series hereinafter specified, all such Securities issued and to
be issued under the Indenture dated as of May 31, 1991, as amended (herein
called the "Indenture"), between the Company and The Chase Manhattan Bank, as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
limitations of rights thereunder of the Company, the Trustee and the Holders of
the Securities, and the terms upon which the Securities are, and are to be,
authenticated and delivered. As provided in the Indenture, Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest,
if any, at different rates, may be subject to different redemption provisions,
if any, may be subject to different repayment provisions, if any, may be subject
to different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided or permitted. This Note is one of a series of the Securities
designated as Medium-Term Notes, Series B (the "Notes"). The Notes of this
series may be issued at various times with different maturity dates, redemption
dates and different principal repayment provisions, may bear interest at
different rates and may otherwise vary, all as provided in the Indenture.
The interest payable on this Note on each Interest Payment Date will
include accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid, as the case
may be, to, but excluding, such Interest Payment Date; PROVIDED, HOWEVER, that
if the Interest Reset Dates are daily or weekly, interest payments shall include
interest accrued from and including the next preceding Record Date in respect of
which interest has been paid (or from and including the Original Issue Date, if
no interest has been paid) to but excluding the Regular Record Date next
preceding the applicable Interest Payment Date, except that the interest payment
at the Maturity Date will include interest accrued to but excluding such date.
Accrued interest from the Original Issue Date or from the last date to which
interest has been paid is calculated by multiplying the principal amount hereof
by an accrued interest factor. Such accrued interest factor is computed by
adding the interest factors calculated for each day from the Original Issue
Date, or from the last date to which interest has been paid, to the date for
which accrued interest is being calculated. The interest factor (expressed as a
decimal calculated to seven decimal places without rounding) for each such day
is computed by dividing the interest rate applicable to such day by 360, in the
case of Commercial Paper Rate Notes, Federal Funds Rate Notes, LIBOR Notes,
Prime Rate Notes and CMT Rate Notes, or by the actual number of days in the
year, in the case of Treasury Rate Notes. The interest rate in effect on each
day will be (a) if such day is an Interest Reset Date, the interest rate with
respect to the Interest Determination Date pertaining to such Interest Reset
Date or (b) if such day is not an Interest Reset Date, the interest rate with
respect to the Interest Determination Date pertaining to the next preceding
Interest Reset Date; PROVIDED, HOWEVER, that (i) the interest rate in effect
from the Original Issue Date to the first Interest Reset Date will be the
Initial Interest Rate as specified on the face hereof and (ii) the interest
rate in effect for the ten calendar days immediately prior to maturity will
be that in effect on the tenth calendar day preceding maturity.
Notwithstanding the foregoing, if the rate at which interest is payable is
adjusted daily or weekly, such rate of interest shall be adjusted until the
Interest Reset Date immediately preceding the Maturity Date. Notwithstanding
the foregoing, the interest rate hereon shall not be greater than the Maximum
Interest Rate, if any, or less than the Minimum Interest Rate, if any, shown
on the face hereof. All percentages resulting from any calculations will be
rounded, if necessary, to the nearest one-hundredth of a percent, with five
one-thousandths of a percent being rounded upwards. In addition, the interest
rate hereon shall in no event be higher than the maximum rate, if any,
permitted by applicable law.
Commencing with the first Interest Reset Date shown on the face hereof
following the Original Issue Date, and thereafter on each succeeding Interest
Reset Date specified on the face hereof, the rate at which interest on this Note
is payable shall be adjusted daily, weekly, monthly, quarterly, semiannually or
annually as specified on the face hereof under "Interest Reset Date(s)." Each
such adjusted rate shall be applicable on and after the Interest Reset Date to
which it relates to but not including the next succeeding
<PAGE>
Interest Reset Date or until the Maturity Date or, if applicable, the Redemption
Date or Optional Repayment Date, as the case may be. The Interest Reset Date
will be, if this Note resets daily, each Business Day; if this Note resets
weekly, the Wednesday of each week (with the exception of weekly reset Treasury
Rate Notes which will reset the Tuesday of each week, except as specified
below); if this Note resets monthly, the third Wednesday of each month; if this
Note resets quarterly, the third Wednesday of March, June, September and
December; if this Note resets semiannually, the third Wednesday of the two
months specified on the face hereof; and if this Note resets annually, the third
Wednesday of the month specified on the face hereof. Subject to applicable law
and except as specified herein, on each Interest Reset Date, the rate of
interest on this Note shall be the rate determined in accordance with the
provisions applicable below, plus or minus the Spread (as specified on the face
hereof), if any. If any Interest Reset Date would otherwise be a day that is not
a Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that in the case of a LIBOR Note,
if such Business Day is in the next succeeding calendar month, such Interest
Reset Date shall be the next preceding Business Day. "Business Day" means (i)
with respect to any Note, any day that is not a Saturday or Sunday, and that, in
The City of New York, is neither a legal holiday nor a day on which banking
institutions or trust companies are authorized or obligated by law to close, and
(ii) with respect to LIBOR Notes only, a London Banking Day. A "London Banking
Day" means any day on which dealings in deposits in U.S. dollars are transacted
in the London interbank market.
The Interest Determination Date pertaining to an Interest Reset Date
will be, if the Interest Rate Basis is Commercial Paper Rate or Federal Funds
Rate, the Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date will be, if the Interest
Rate Basis is LIBOR, the second London Banking Day preceding such Interest Reset
Date. The Interest Determination Date pertaining to an Interest Reset Date will
be, if the Interest Rate Basis is Treasury Rate, the day of the week in which
such Interest Reset Date falls on which Treasury bills (as defined below) of the
Index Maturity specified on the face hereof are auctioned. Treasury bills
normally are auctioned on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday. If, as a result of
a legal holiday, an auction is so held on the preceding Friday, such Friday will
be the Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. Interest payable hereon will be payable
monthly, quarterly, semiannually or annually (the "Interest Payment Period") as
specified on the face hereof. The Interest Determination Date pertaining to an
Interest Reset Date will be, if the Interest Rate Basis is Prime Rate, the same
day as such Interest Reset Date; PROVIDED, HOWEVER, that the rate in effect two
days prior to an Interest Payment Date will be the rate in effect for the
remainder of such Interest Payment Period. The Interest Determination Date
pertaining to an Interest Reset Date will be, if the Interest Rate Basis is CMT
Rate, the tenth Business Day prior to each Interest Reset Date. Unless otherwise
shown on the face hereof, interest will be payable, if this Note resets daily,
weekly or monthly, on the third Wednesday of each month or on the third
Wednesday of March, June, September and December, of each year; if this Note
resets quarterly, on the third Wednesday of March, June, September and December,
of each year; if this Note resets semiannually, on the third Wednesday of the
two months of each year specified on the face hereof; and if this Note resets
annually, on the third Wednesday of the month specified on the face hereof (each
such date being an "Interest Payment Date") and in each case, at maturity or, if
applicable, upon redemption or optional repayment.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis
specified on the face hereof is "Commercial Paper Rate," the interest rate
shall equal (a) the Money Market Yield (as defined below) on the applicable
Interest Determination Date of the rate for commercial paper having the Index
Maturity specified on the face hereof (i) as published by the Board of
Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" ("H.l5(519)"), or any successor publication, under
the heading "Commercial Paper--Nonfinancial" or (ii) in the event that such
rate is not published on the Calculation Date (as defined below) pertaining
to such Interest Determination Date, then as published by the Federal Reserve
Bank of New York in its daily statistical release, "Composite 3:30 P.M.
Quotations for U.S. Government Securities" ("Composite Quotations") under the
heading "Commercial Paper" or (b) if neither of such yields is published by
3:00 P.M., New York City time, on such Calculation Date, the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00 A.M., New York
City time, of three leading dealers of commercial paper in The City of New
York selected by The Chase Manhattan Bank, as Calculation Agent (or any
successor calculation agent, the "Calculation Agent"), on that Interest
<PAGE>
Determination Date, for commercial paper of the Index Maturity specified on the
face hereof placed for an industrial issuer whose bond rating is "AA," or the
equivalent, from a nationally recognized rating agency, in each of the above
cases, adjusted by the addition or subtraction of the Spread, if any, specified
on the face hereof; PROVIDED, HOWEVER, that if such dealers are not quoting as
mentioned above, the interest rate in effect hereon until the Interest Reset
Date next succeeding the Interest Reset Date to which such Interest
Determination Date relates shall be the rate in effect on the Interest
Determination Date next preceding such Interest Reset Date.
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
Money Market Yield = D X 360 x 100
----------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
DETERMINATION OF LIBOR. If the Interest Rate Basis specified on the
face hereof is "LIBOR," the interest rate shall equal, as specified on the face
hereof, either (a) the offered rates for deposits in U.S. dollars having the
Index Maturity specified on the face hereof, commencing on the second London
Banking Day immediately following the applicable Interest Determination Date
which appears on Telerate Page 3750 (or such other page as may replace Telerate
Page 3750 for the purpose of displaying London interbank rates of major banks),
as of 11:00 A.M., London time, on such Interest Determination Date adjusted by
the addition or subtraction of the Spread, if any, specified on the face hereof
("LIBOR Telerate") or (b) the arithmetic mean, as determined by the Calculation
Agent, of the offered rates for deposits in U.S. dollars having the Index
Maturity specified on the face hereof, commencing on the second London Banking
Day immediately following the applicable Interest Determination Date which
appears on the Reuters Screen LIBO Page (or such other page as may replace such
Reuters Screen LIBO Page for the purpose of displaying London interbank rates of
major banks), as of 11:00 A.M., London time, on such Interest Determination
Date, if at least two such offered rates appear on the Reuters Screen LIBO Page
(or such other page as may replace such page) ("LIBOR Reuters"); PROVIDED,
HOWEVER, that if no such rate appears on Telerate Page 3750 (or such other page
as may replace such page) or if fewer than two offered rates appear on the
Reuters Screen LIBO Page (or such other page as may replace such page), the
Calculation Agent shall request the principal London office of each of four
major banks in the London interbank market selected by the Calculation Agent to
provide a quotation of the rate at which such bank offered to prime banks in the
London interbank market at approximately 11:00 A.M., London time, on such
Interest Determination Date, deposits in U.S. dollars having the Index Maturity
specified on the face hereof commencing on the second London Banking Day
immediately following such Interest Determination Date and in a principal amount
equal to an amount not less than U.S. $1,000,000 that is representative of a
single transaction in such market at such time, and such rate of interest hereon
shall equal the arithmetic mean of (a) such quotations, if at least two
quotations are provided, or (b) if less than two quotations are provided, the
rates quoted at approximately 11:00 A.M., New York City time, on such Interest
Determination Date by three major banks in The City of New York, selected by the
Calculation Agent for loans in U.S. dollars to leading European banks, having
the Index Maturity specified on the face hereof commencing on the second London
Banking Day immediately following such Interest Determination Date and in a
principal amount as aforesaid, in either case, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof; PROVIDED,
HOWEVER, that if the three banks selected as aforesaid by the Calculation Agent
are not quoting as mentioned above, the interest rate in effect hereon until the
Interest Reset Date next succeeding the Interest Reset Date to which such
Interest Determination Date relates shall be the rate in effect on the Interest
Determination Date next preceding such Interest Reset Date.
DETERMINATION OF FEDERAL FUNDS RATE. If the Interest Rate Basis
specified on the face hereof is "Federal Funds Rate," the interest rate shall
equal (a) the rate on the applicable Interest Determination Date specified on
the face hereof for Federal Funds (i) as published in the H.15(519), under the
heading "Federal funds (effective)" or (ii) if such rate is not so published on
the Calculation Date pertaining to such Interest Determination Date, then as
published in the Composite Quotations under the heading "Federal Funds/Effective
Rate" or (b) if neither of such rates is published by 3:00 P.M., New York City
time, on such Calculation Date, the arithmetic mean (as calculated by the
Calculation Agent) of the rates
<PAGE>
for the last transaction in overnight Federal Funds arranged by three leading
brokers of Federal Funds transactions in The City of New York selected by the
Calculation Agent as of 11:00 A.M., New York City time, on such Interest
Determination Date, in each of the above cases, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof; provided,
HOWEVER, that if such brokers are not quoting as mentioned above, the interest
rate in effect hereon until the Interest Reset Date next succeeding the Interest
Reset Date to which such Interest Determination Date relates shall be the rate
in effect on the Interest Determination Date next preceding such Interest Reset
Date.
DETERMINATION OF TREASURY RATE. If the Interest Rate Basis specified
on the face hereof is "Treasury Rate," the interest rate shall equal the rate
for the auction held on the applicable Interest Determination Date of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified on the face hereof as published under the column designated "Invest
Rate" on Telerate page 56 under the heading "US Treasury 3 MO T-Bill Auction
Results" or Telerate page 57 under the heading "US Treasury 6 MO T-Bill Auction
Results," as applicable, or any successor publication, or, if not so published
on the Calculation Date pertaining to such Interest Determination Date, the
auction average rate (expressed as a bond equivalent on the basis of a year
of 365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury, in either case,
adjusted by the addition or subtraction of the Spread, if any, specified on
the face hereof. In the event that the results are not published or reported
as provided above by 3:00 P.M., New York City time, on such Calculation Date,
or if no such auction is held in a particular week, then the rate of interest
herein shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of
the secondary market bid rates as of approximately 3:30 P.M., New York City
time, on such Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation Agent for
the issue of Treasury bills with a remaining maturity closest to the Index
Maturity specified on the face hereof, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof; PROVIDED,
HOWEVER, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned above, the interest rate in effect hereon until
the Interest Reset Date next succeeding the Interest Reset Date to which such
Interest Determination Date relates shall be the rate in effect on the
Interest Determination Date next preceding such Interest Reset Date.
DETERMINATION OF PRIME RATE. If the Interest Rate Basis specified on
the face hereof is "Prime Rate," the interest rate shall equal the rate on the
applicable Interest Determination Date (a) as published in the H.15(519), or any
successor publication, under the caption "Bank Prime Loan", (b) if such rate is
not published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, then the arithmetic mean (as
calculated by the Calculation Agent) of the rates of interest publicly announced
by each bank named on the Reuters Screen NYMF Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such Interest
Determination Date as quoted on the Reuters Screen NYMF Page for such Interest
Determination Date, or, if fewer than four such rates appear on the Reuters
Screen NYMF Page for such Interest Determination Date, the rate shall be the
arithmetic mean (as calculated by the Calculation Agent) of the prime rates
quoted on the basis of the actual number of days in the year divided by 360 as
of the close of business on such Interest Determination Date by at least two of
the three major money center banks in The City of New York selected by the
Calculation Agent (after consultation with the Company) from which quotations
are requested, or (c) if fewer than two quotations are provided, the Prime Rate
shall be calculated by the Calculation Agent and shall be determined as the
arithmetic mean on the basis of the prime rates in The City of New York by the
appropriate number of substitute banks or trust companies organized and doing
business under the laws of the United States, or any State thereof, in each case
having total equity capital of at least U.S. $500 million and being subject to
supervision or examination by Federal or State authority, selected by the
Calculation Agent (after consultation with the Company) to quote such rate or
rates, in each case adjusted by the addition or subtraction of the Spread, if
any, specified on the face hereof; PROVIDED, HOWEVER, that if such quotations
are not available, the interest rate in effect hereon until the Interest Reset
Date next succeeding the Interest Reset Date to which such Interest
Determination Date relates shall be the rate in effect on the Interest
Determination Date next preceding such Interest Reset Date in each case.
"Reuters Screen NYMF Page" means the display designated as Page "NYMF"
on the Reuters Monitor Money Rates Service (or such other page as may replace
the NYMF Page on that service for the purpose of displaying prime rates or base
lending rates of major United States banks).
<PAGE>
DETERMINATION OF CMT RATE. If the Interest Rate Basis specified on the
face hereof is "CMT Rate", the interest rate will be determined by the
Calculation Agent on each Interest Determination Date in accordance with the
following provisions, in each case, adjusted by the addition or subtraction of
the Spread, if any, specified on the face hereof:
(a) the CMT Rate will be determined on the basis of the latest rate
displayed at the close of business on the Interest Determination Date on (x)
Telerate page 7055 for "Yields on Treasury Constant Maturities...Federal Reserve
Board Release H.15 Mondays approx. 3:45 P.M. EST" (or "EDT" as the case may be)
for U.S. Treasury Securities with a maturity that is the same as the Index
Maturity specified on the face hereof, or (y) such other page as may replace
page 7055, as provided by the Telerate News Service, for the purpose of
displaying rates or prices that are comparable, as determined by the Calculation
Agent (after consultation with the Company);
(b) if the information specified in subparagraph (a) above is not
available at that Interest Determination Date, then the CMT Rate for the
applicable Interest Period shall be determined on the basis of the Treasury
Constant Maturity rate with a maturity that is the same as the Index Maturity
specified on the face hereof (or other United States Treasury rate, with a
maturity that is the same as the Index Maturity specified on the face hereof)
published as of that Interest Determination Date by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent (after consultation with the Company)
determines to be comparable to the rate formerly displayed on Telerate page 7055
and published in the Federal Reserve Board Statistical Release H.15(519);
(c) if the information specified in subparagraphs (a) and (b) is not
available at that Interest Determination Date, then the CMT Rate for the
applicable Interest Period shall be the yield to maturity of the then most
recently issued direct non-callable fixed rate United States Treasury Note with
an original maturity that is the same as the Index Maturity specified on the
face hereof (the "Reference Treasury Note"), such yield to maturity to be
calculated by the Calculation Agent on the basis of the arithmetic mean of the
secondary market bid side prices for such Reference Treasury Note quoted as of
3:00 P.M., New York City time (or the closing of the market, if earlier), on
that Interest Determination Date, by (and appearing in the written records of)
three leading primary United States government securities dealers in New York
City selected by the Calculation Agent;
(d) if the information specified in subparagraphs (a) and (b) above is
not available at that Interest Determination Date and at least three price
quotations for the Reference Treasury Note are not available at that Interest
Determination Date from leading primary dealers in New York City as provided in
subparagraph (c) above, then the CMT Rate for the applicable Interest Period
shall be the yield to maturity of the Reference Treasury Note, as calculated by
the Calculation Agent on the basis of the arithmetic mean of the secondary
market bid side prices for such Reference Treasury Note quoted as of 3:00 P.M.,
New York City time (or the closing of the market, if earlier), on that Interest
Determination Date, by (and appearing in the written records of) any three
primary United States government securities dealers selected by the Calculation
Agent (irrespective of where such dealers may be located);
(e) if the information specified in subparagraphs (a) and (b) above is
not available at that Interest Determination Date and the Calculation Agent is
unable to obtain the requisite quotations specified in either subparagraph (c)
above or subparagraph (d) above, then the interest rate on the applicable CMT
Rate Note for the applicable Interest Period shall be the same as the interest
rate on such CMT Rate Note in effect at the opening of business on that Interest
Determination Date.
The Calculation Date pertaining to an Interest Determination Date shall
be the tenth calendar day after such Interest Determination Date or if any such
day is not a Business Day, the next succeeding Business Day. The Calculation
Agent shall calculate the interest rate hereon in accordance with the foregoing
and will confirm in writing such calculation to the Trustee and any Paying Agent
immediately after each determination. Neither the Trustee nor any Paying Agent
shall be responsible for any such calculation. All determinations made by the
Calculation Agent shall be, in the absence of manifest error, conclusive for all
purposes and binding on the Company and holders of the Note. At the request of
the Holder hereof, the Calculation Agent will provide to the Holder hereof the
interest rate hereon then in effect and, if determined, the interest rate which
will become effective as of the next Interest Reset Date.
<PAGE>
If so specified on the face of this Note, this Note may be redeemed by
the Company on and after the date so indicated on the face hereof. If no such
date is set forth on the face hereof, this Note may not be redeemed prior to
maturity. On and after such date, if any, from which this Note may be redeemed,
this Note may be redeemed in whole or in part in increments of $1,000 (provided
that any remaining principal amount of this Note shall be at least $25,000), at
the option of the Company, at a redemption price equal to 100% of the principal
amount to be redeemed, together with interest thereon payable to the Redemption
Date, on notice given not more than 60 nor less than 30 days prior to the
Redemption Date. If less than all the Outstanding Notes having such terms as
specified by the Company are to be redeemed, the particular Notes to be redeemed
shall be selected by the Trustee not more than 60 days prior to the Redemption
Date from the Outstanding Notes having such terms as specified by the Company
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate. The notice of such redemption shall specify which Notes
are to be redeemed. In the event of redemption of this Note, in part only, a new
Note or Notes in authorized denominations for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the surrender hereof.
If so specified on the face of this Note, this Note will be subject to
repayment at the option of the Holder hereof on the Optional Repayment Date(s).
Except as set forth in the next paragraph, if no Optional Repayment Date is set
forth on the face hereof, this Note may not be repaid at the option of the
Holder prior to maturity. On and after the Optional Repayment Date, if any, from
which this Note may be repaid at the option of the Holder, this Note shall be
repayable in whole or in part in increments of $1,000 (provided that any
remaining principal amount of this Note shall be at least $25,000) at a
repayment price equal to 100% of the principal amount to be repaid, together
with interest thereon payable to the Optional Repayment Date. For this Note to
be repaid in whole or in part at the option of the Holder hereof, the Trustee
must receive not less than 30 nor more than 60 days prior to the Optional
Repayment Date (i) this Note with the form entitled "Option to Elect Repayment,"
which appears below, duly completed or (ii) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States of America setting forth the name of the Holder of
this Note, the principal amount of this Note, the certificate number of this
Note or a description of this Note's tenor or terms, the principal amount of
this Note to be repaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note with the form entitled "Option
to Elect Repayment," which appears below, duly completed, will be received by
the Trustee no later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter and this Note and such form duly
completed are received by the Trustee by such fifth Business Day. Except as set
forth in the next paragraph, exercise of the repayment option shall be
irrevocable.
If an Event of Default with respect to the Notes shall occur and be
continuing, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Notes may declare the principal of all the Notes due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of each series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed.
<PAGE>
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company, and this Note duly executed by, the Holder
hereof or by his attorney duly authorized in writing and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $25,000 or any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denomination as requested by
the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All capitalized terms used in this Note and not otherwise defined
herein shall have the meanings assigned to them in the Indenture.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - ________________________ Custodian ________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
__________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
---------------------------
OPTION TO ELECT REPAYMENT
The undersigned hereby request(s) and instruct(s) the Company to repay
this Note (or portion thereof specified below) pursuant to its terms on
_____________, 19__ (the "Optional Repayment Date") at a price equal to the
principal amount thereof, together with interest to the Optional Repayment Date,
to the undersigned at
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned.)
For this Note to be repaid the Trustee must receive at 450 West 33rd
Street, New York, New York 10001, Attention: Debt Operations -- 8th Floor, or at
such other place or places of which the Company shall from time to time notify
the Holder of this Note, not more than 60 days nor less than 30 days prior to
the Optional Repayment Date, this Note with this "Option to Elect Repayment"
form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion thereof (which shall be increments of $1,000) which the
holder elects to have repaid: $______________; and specify the denomination or
denominations (which shall be $25,000 or an integral multiple of $1,000 in
excess of $25,000) of the Notes to be issued to the Holder for the portion of
this Note not being repaid (in the absence of any such specification, one such
Note will be issued for the portion not being repaid): $________________.
Date:____________________ ______________________________________
Note: The signature to this Option to
Elect Repayment must correspond with
the same as written upon the face of
this Note in every particular without
alteration or enlargement.
---------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned
hereby sell(s), assign(s) and transfer(s) unto
<PAGE>
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
DATED: __________________________
_________________________
_________________________________________________
(Signature Guarantee)
<PAGE>
Exhibit 4(b)(6)
Form of Global Note
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
THE NOMINEE OF THE DEPOSITARY, TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED $
No. FXR- CUSIP #
THE BEAR STEARNS COMPANIES INC.
_____% GLOBAL NOTE DUE ____
THE BEAR STEARNS COMPANIES INC., a Delaware corporation (the
"Company"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal amount stated above on __________ (the
"Maturity Date") and to pay interest thereon at the rate per annum equal to
_____% (the "Interest Rate") until the principal hereof is fully paid or duly
made available for payment. The Company will pay interest (computed on the basis
of a 360-day year of twelve 30-day months) _________ in arrears on ________ and
_________ of each year (each an "Interest Payment Date") commencing with the
Interest Payment Date next following the date hereof (the "Original Issue Date")
provided that, if the Original Issue Date is later than the Regular Record Date
and prior to the next succeeding Interest Payment Date, interest shall be so
payable commencing with the second Interest Payment Date following the Original
Issue Date, and on the Maturity Date on said principal amount at the Interest
Rate per annum specified above. Interest on this Note will accrue from the most
recent Interest Payment Date to which interest has been paid or duly provided
for or, if no interest has been paid, from __________ until the principal hereof
has been paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on the Interest Payment Dates, will, as
provided in the Indenture referred to below, be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be _________,
whether or not a Business Day, as the case may be, next preceding such Interest
Payment Date; provided, however, that interest payable on the Maturity Date or,
if applicable, the date of optional redemption (the "Redemption Date") will be
payable to the Person to whom the principal hereof shall be payable; and
provided, further, however, that if such Interest Payment Date would fall on a
day that is not a Business Day, such Interest Payment Date shall be the
following day that is a Business Day and no additional interest shall be payable
for the delay. Any such interest which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Note not less than ten days prior to such Special Record Date, or may be
paid at any time in any
<PAGE>
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note shall be made at
the office or agency of the Trustee maintained for that purpose in the Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debt; provided, however, that payment of interest on any
Interest Payment Date (other than the Maturity Date or Redemption Date, if any)
may be made at the option of the Company by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register,
or by wire transfer of immediately available funds, if the registered holder of
at least $10,000,000 in principal amount of Notes entitled to such interest has
so requested by a notice in writing delivered to the Trustee not less than 16
days prior to the Interest Payment Date on which such payment is due, which
notice shall provide appropriate instructions for such transfer; and provided,
further, however, that if Notes are issued in certificated form upon Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear system ("Euroclear") or Cedelbank being closed for a continuous period
of 14 days and/or as provided in the Indenture, payments of principal and
interest shall be made to the registered holder thereof against presentation and
surrender by such holder of its Note at the specified office of any Paying
Agent, by check drawn on a bank in New York City mailed on the Business Day
immediately preceding the due date therefor.
The principal hereof and interest due at maturity will be paid upon
maturity in immediately available funds against presentation of this Note at the
office or agency of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
Unless the certificate of authentication hereon has been executed by
The Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder by the manual signature of one of its authorized signatories, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATE:
THE BEAR STEARNS COMPANIES INC.
By:_______________________________
ATTEST:
_______________________________
Secretary
[CORPORATE SEAL]
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:_______________________________________
Authorized Signature
<PAGE>
[REVERSE OF NOTE]
THE BEAR STEARNS COMPANIES INC.
______% GLOBAL NOTE DUE _____
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness (hereinafter called the "Securities") of the
Company of the series hereinafter specified, all such Securities issued and to
be issued under the Indenture, dated as of May 31, 1991, as supplemented by the
First Supplemental Indenture, dated as of January 29, 1998 (as supplemented,
herein called the "Indenture") between the Company and The Chase Manhattan Bank
(formerly known as Chemical Bank and successor by merger to Manufacturers
Hanover Trust Company), as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and limitations of rights thereunder of the Company, the
Trustee and the Holders of the Securities, and the terms upon which the
Securities are, and are to be, authenticated and delivered. As provided in the
Indenture, Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest, if any, at different rates, may be subject
to different redemption provisions, if any, may be subject to different
repayment provisions, if any, may be subject to different sinking, purchase or
analogous funds, if any, may be subject to different covenants and Events of
Default and may otherwise vary as in the Indenture provided or permitted. This
Note is one of a series of the Securities designated as _____% Global Notes due
_____ (the "Notes"). The Notes are unsecured and rank pari passu with all other
unsecured and unsubordinated indebtedness of the Company. The Notes are not
subject to a sinking fund, are not redeemable prior to maturity except in
certain limited circumstances at the option of the Company (described below),
and are not subject to repayment at the option of the Holder.
If (a) as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States (or any
political subdivision or taxing authority thereof or therein), or any change in,
or amendments to, the official position regarding the application or
interpretation of such laws, regulations or rulings, which is announced or
becomes effective on or after _________, the Company determines it will be or
will become obligated to pay Additional Amounts as described below, or (b) any
act is taken by a taxing authority of the United States on or after __________,
whether such act is taken with respect to the Company or any affiliate, that
results in a substantial probability that the Company will or may be required to
pay such Additional Amounts, then the Company may, at its option, redeem, as a
whole, but not in part, the Notes on any Interest Payment Date on not less than
30 nor more than 60 days' prior notice at a redemption price equal to 100% of
the principal amount to be redeemed, together with interest accrued thereon to
the Redemption Date; provided that the Company determines, in its business
judgment, that the obligation to pay such Additional Amounts cannot be avoided
by the use of reasonable measures available to it, not including substitution of
the obligor under the Notes. No redemption pursuant to clause (b) above may be
made unless the Company has delivered to the Trustee a written opinion of
independent legal counsel of recognized legal standing to the effect that an act
taken by a taxing authority of the United States has resulted or will result in
a substantial probability that it will or may be required to pay the Additional
Amounts as described below and that the Company is therefore entitled to redeem
the Notes pursuant to their terms.
Subject to the exceptions and limitations set forth below, the Company
will pay as additional interest or principal, as the case may be, on the Notes,
all such Additional Amounts that are necessary in order that the net payment by
the Company or a Paying Agent of the principal of and interest on the Notes to a
person that is not a U.S. Holder, after deduction for any present or future tax,
assessment or governmental charge of the United States or a political
subdivision or taxing authority thereof or therein, imposed by withholding with
respect to the payment, will not be less than the amount provided in the Notes
to be then due and payable; provided, however, that the foregoing obligation to
pay Additional Amounts shall not apply:
(1)______to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the holder, or a fiduciary, settlor, beneficiary,
member or shareholder of the holder, if the holder is an
<PAGE>
estate, trust, partnership or corporation for federal income tax purposes, or a
person holding a power over such an estate trust, partnership or corporation, or
a person holding a power over such an estate or trust administered by a
fiduciary holder, being considered as:
(a) being or having been present or engaged in a trade or
business in the United States or having or having had a permanent
establishment in the United States;
(b) having a current or former connection with the United
States, including a connection as a citizen or resident thereof;
(c) being or having been a foreign or domestic personal
holding company, a passive foreign investment company or a controlled
foreign corporation with respect to the United States or a corporation
that has accumulated earnings to avoid United States federal income
tax;
(d) being or having been a private foundation or other
tax-exempt organization; (e) being or having been a "10-percent
shareholder" of the Company as defined in Section 871(h)(3)of the
United States Internal Revenue Code or any successor provision; or
(f) being a bank receiving payments on an extension of credit
made pursuant to a loan agreement entered into in the ordinary course
of its trade or business;
(2) to any holder that is not the sole beneficial owner of the
Notes, or a portion thereof, or that is a fiduciary or partnership, but only to
the extent that a beneficiary or settlor with respect to the fiduciary, a
beneficial owner or member of the partnership would not have been entitled to
the payment of an Additional Amount had the beneficiary, settlor, beneficial
owner or member received directly its beneficial or distributive share of the
payment;
(3) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the failure of the holder or any other person to
comply with certification, identification or information reporting requirements
concerning the nationality, residence, identity or connection with the United
States of the holder or beneficial owner of such Note, if compliance is required
by statute or regulation of the United States or of any political subdivision or
taxing authority thereof or therein, or by an applicable income tax treaty to
which the United States is a party as a precondition to exemption from such tax,
assessment or other governmental charge;
(4) to a tax, assessment or governmental charge that is imposed
otherwise than by withholding by the Company or a Paying Agent from the payments
on or in respect of a Note;
(5) to a tax, assessment or governmental charge that is imposed or
withheld by reason of the presentation by or on behalf of the beneficial owner
of any Note for payment on a date more than 15 days after the payment becomes
due or is duly provided for, whichever occurs later;
(6) to an estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or a similar tax, assessment or governmental
charge;
(7) to any tax, assessment or other governmental charge required
to be withheld by any Paying Agent from any payment of principal of or interest
on any Note, if such payment can be made without such withholding by any other
Paying Agent; or
(8) in the case of any combination of items (1), (2), (3), (4),
(5), (6) and (7);
nor shall Additional Amounts be paid with respect to any payment on a Note to a
holder who is a fiduciary or partnership or other than the sole beneficial owner
of such payment to the extent such payment would be required by the laws of the
United States (or any political subdivision thereof) to be included in the
income, for tax purposes, of a beneficiary or settlor with respect to such
fiduciary or a member of such partnership or a beneficial owner who would not
have been entitled to the Additional Amounts had such beneficiary, settlor,
member or beneficial owner held its interest in the Note directly. For purposes
hereof, a "U.S. Holder" means a Holder that is (i) a citizen or resident of the
United States;
<PAGE>
(ii) a corporation, partnership or other business entity created or organized in
or under the laws of the United States or any State or political subdivision
thereof (including the District of Columbia); (iii) an estate the income of
which is subject to U.S. federal income taxation regardless of its source; or
(iv) a trust with respect to which a court within the United States is able to
exercise primary supervision over its administration, and one or more United
States persons have the authority to control all of its substantial decisions.
This Note is a registered global note which has been deposited with a
custodian for, or on behalf of, DTC and registered in the name of Cede & Co.,
DTC's nominee. Beneficial interests in this Note may be held through either DTC
(in the United States) or Cedelbank or Euroclear outside the United States.
If any Event of Default (as defined in the Indenture) with respect to
the Notes shall occur and be continuing, the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Notes may declare the principal
of all the Notes due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of each series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company, and this Note duly executed by, the Holder
hereof or by his attorney duly authorized in writing and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, this Note is
exchangeable for a like aggregate principal amount of Notes of different
authorized denominations as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice of the contrary.
All notices regarding the Notes shall be published (i) in a leading
English language daily newspaper of general circulation in London and (ii) in a
leading English language daily newspaper of
<PAGE>
general circulation in New York. It is expected that such publication will be
made in (i) the FINANCIAL TIMES or another daily newspaper in London approved by
the Trustee or, if this is not possible, in one other English language daily
newspaper approved by the Trustee with general circulation in Europe and (ii)
THE WALL STREET JOURNAL (Eastern Edition) in New York. Any such notice will be
deemed to have been given on the date of the first publication in all the
relevant newspapers.
Until such time as any definitive Notes are issued, so long as the
Notes are held in its or their entirety on behalf of Euroclear and/or Cedelbank
and DTC, publication in such newspapers may be replaced with the delivery of the
relevant notice to Euroclear and/or Cedelbank and DTC for communication by them
to the holders of the Notes. Any such notice shall be deemed to have been given
to the holders of the Notes on the seventh day after the day on which the said
notice was given to Euroclear and/or Cedelbank or DTC.
All capitalized terms used in this Note and not otherwise defined
herein shall have the meanings assigned to them in the Indenture.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT-- ___________________ Custodian ____________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_____________________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
---------------------------
(PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
- ------------------------------------------------------------------------------
Attorney to transfer said Notes on the books of the Company, with full power of
substitution in the premises.
DATE:_______________________________
____________________________________
____________________________________
(Signature Guarantee)
<PAGE>
Exhibit 5
[Letterhead of Cadwalader, Wickersham & Taft]
March 8, 2000
The Board of Directors
The Bear Stearns Companies Inc.
245 Park Avenue
New York, New York 10167
Gentlemen:
We have acted as special 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-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to an
indeterminate principal amount of debt securities (the "Debt Securities") and an
indeterminate number of warrants (the "Warrants"), shares of the Company's
preferred stock, $1.00 par value (the "Preferred Stock") and depositary shares
evidencing fractional interests in a share of Preferred Stock (the "Depositary
Shares"), with an aggregate initial public offering price of up to
$9,042,683,162. The Debt Securities will be issued by the Company, substantially
in the forms of the drafts incorporated by reference as Exhibits 4(b)(1) through
4(b)(7) to the Registration Statement, pursuant to the terms of the Indenture,
dated as of May 31, 1991, as amended (the "Indenture"), between the Company and
The Chase Manhattan Bank (formerly known as Chemical Bank and the successor by
merger to the Manufacturers Hanover Trust Company), as trustee (the "Trustee"),
incorporated by reference as Exhibits 4(a)(1) and 4(a)(2) to the Registration
Statement. The Warrants will be issued by the Company under Warrant Agreements
substantially in the forms of the drafts incorporated by reference as Exhibits
4(c)(1) through 4(c)(10) to the Registration Statement (collectively, the
"Warrant Agreements"). The Preferred Stock will be issued in one or more series,
the designations, preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions of which shall be
fixed by resolutions to be adopted prior to such issuance by the Company's Board
of Directors or a duly authorized committee thereof. The Depositary Shares will
be issued by the Company under Deposit Agreements substantially in the form of
the draft incorporated by reference as Exhibit 4(d)(7) to the Registration
Statement (each, a "Deposit Agreement"). The Debt Securities, the Warrants, the
Preferred Stock and the Depositary Shares will be sold by the Company either (i)
directly on its own behalf, (ii) pursuant to one or more Underwriting Agreements
substantially in the forms of the drafts incorporated by reference as Exhibits
1(a), 1(f) and 1(g) to the Registration Statement (each, an "Underwriting
Agreement") or (iii) pursuant to one or more Distribution Agreements
substantially in the forms of the drafts incorporated by
<PAGE>
The Board of Directors
The Bear Stearns Companies Inc. -2- March 8, 2000
reference as Exhibits 1(b) and 1(c) (as amended by Exhibits 1(d) and 1(e)) to
the Registration Statement (each, a "Distribution Agreement").
In rendering the opinions set forth below, we have examined
and relied upon the originals, copies or specimens, certified or otherwise
identified to our satisfaction, of the Transaction Documents (as defined below)
and such certificates, corporate and public records, agreements and instruments
and other documents as we have deemed appropriate as a basis for the opinions
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. We have also assumed that all documents, agreements and instruments
examined by us in the form of drafts will, when executed by the requisite
signatories thereto, conform in substance and form in all material respects to
the drafts that we have examined. As to any facts material to such opinions 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 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 opinions, and no inference as to our knowledge concerning such
facts should be drawn from our reliance on the representations of the Company
and others in connection with the preparation and delivery of this letter.
In particular, we have examined and relied upon: (a) the
Registration Statement, (b) the Prospectus that is a part of the Registration
Statement (the "Prospectus"), (c) the forms of Debt Securities constituting
Exhibits 4(b)(1) through 4(b)(7) to the Registration Statement, (d) the forms of
Warrant Agreements, (e) the form of Warrant Certificate attached as Exhibit A to
the Warrant Agreements, (f) the forms of Underwriting Agreements, (g) the forms
of Distribution Agreements, and (h) the form of Deposit Agreement. Items (a)
through (h) above are referred to in this letter as the "Transaction Documents".
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 opinions
expressed herein. Except as described, we have neither examined nor do we
express any opinion with respect to Delaware law.
Based upon and subject to the qualifications set forth herein,
we are of the opinion that:
1. The Debt Securities, when duly authorized and executed by the
Company, authenticated by the Trustee pursuant to the terms of
the Indenture and sold and delivered by the Company as
contemplated by the Prospectus, as the same may be
<PAGE>
The Board of Directors
The Bear Stearns Companies Inc. -3- March 8, 2000
supplemented from time to time, will be legally issued and will
constitute binding agreements of the Company entitled to the
benefits of the Indenture in accordance with their terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, receivership or other
laws relating to or affecting creditors' rights generally, and
to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity);
2. The Warrants, when duly authorized and executed by the Company,
authenticated by the applicable warrant agent pursuant to the
terms of the Warrant Agreements and sold and delivered by the
Company as contemplated by the Prospectus, as the same may be
supplemented from time to time, will be legally issued and will
constitute binding agreements of the Company entitled to the
benefits of the Warrant Agreements in accordance with their
terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, receivership or other
laws relating to or affecting creditors' rights generally, and
to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity);
3. Subject to the taking of the additional proceedings
contemplated by the Prospectus, as the same may be supplemented
from time to time, and provided that any issuance of Preferred
Stock by the Company is duly authorized by the Company's
directors and that the number of shares of Preferred Stock
issued by the Company at no time exceeds the maximum amount of
shares of Preferred Stock authorized to be issued by the
Company's certificate of incorporation, the shares of Preferred
Stock, when issued, paid for and delivered, as contemplated by
the Prospectus, as the same may be supplemented from time to
time, will be legally issued, fully paid and non-assessable;
and
4. Subject to the taking of the additional proceedings
contemplated by the Prospectus, as the same may be supplemented
from time to time, and provided that any issuance of Depositary
Shares is duly authorized by the Company's directors and that
the number of Depositary Shares issued by the Company at no
time exceeds the maximum amount of shares of Preferred Stock
authorized to be issued by the Company's certificate of
incorporation, the Depositary Shares, when issued, paid for and
delivered pursuant to the terms of the Deposit Agreements as
contemplated by the Prospectus, as the same may be supplemented
from time to time, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement and to the reference to this Firm in the
Prospectus constituting a part of the Registration Statement under the caption
"Validity of the Securities," 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.
<PAGE>
The Board of Directors
The Bear Stearns Companies Inc. -4- March 8, 2000
We further consent to the use of this letter as an exhibit to
applications to the securities commissioners of various states of the United
States for registration or qualification of the Debt Securities, the Warrants,
the Preferred Stock and the Depositary Shares under the securities laws of such
states.
Very truly yours,
/s/ Cadwalader, Wickersham & Taft
<PAGE>
EXHIBIT 12 (a)
THE BEAR STEARNS COMPANIES INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In thousands, except for ratio)
<TABLE>
<CAPTION>
(Unaudited) (Unaudited)
Six-Months Six-Months Fiscal Year Fiscal Year Fiscal Year
Ended Ended Ended Ended Ended
December 31, 1999 December 31, 1998 June 30, 1999 June 30, 1998 June 30, 1997
----------------- ------------------ ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Earnings before taxes
on income $ 639,609 $ 300,787 $1,064,108 $1,063,492 $1,013,690
----------------- ------------------ ------------- ------------- -------------
Add: Fixed Charges
Interest 1,957,794 1,851,638(1) 3,379,914 3,638,513 2,551,364
Interest factor
in rents 15,350 15,336 31,363 30,130 26,516
----------------- ------------------ ------------- ------------- -------------
Total fixed charges 1,973,144 1,866,974 3,411,277 3,668,643 2,577,880
----------------- ------------------ ------------- ------------- -------------
Earnings before fixed
charges and taxes on
income $2,612,753 $2,167,761 $4,475,385 $4,732,135 $3,591,570
----------------- ------------------ ------------- ------------- -------------
----------------- ------------------ ------------- ------------- -------------
Ratio of earnings to
fixed charges 1.3 1.2 1.3 1.3 1.4
----------------- ------------------ ------------- ------------- -------------
----------------- ------------------ ------------- ------------- -------------
<CAPTION>
Fiscal Year Fiscal Year
Ended Ended
June 30, 1996 June 30, 1995
------------- -------------
<S> <C> <C>
Earnings before taxes
on income $ 834,926 $ 388,082
------------- -------------
Add: Fixed Charges 1,981,171 1,678,515
Interest
Interest factor
in rents 25,672 24,594
------------- -------------
Total fixed charges 2,006,843 1,703,109
------------- -------------
Earnings before fixed
charges and taxes on
income $2,841,769 $2,091,191
------------- -------------
------------- -------------
Ratio of earnings to
fixed charges 1.4 1.2
------------- -------------
------------- -------------
</TABLE>
(1) This amount has been changed to conform to the current period's
presentation.
<PAGE>
Exhibit 12 (b)
THE BEAR STEARNS COMPANIES INC.
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED DIVIDENDS
(In thousands, except for ratio)
<TABLE>
<CAPTION>
(Unaudited) (Unaudited)
Six-Months Six-Months Fiscal Year Fiscal Year Fiscal Year
Ended Ended Ended Ended Ended
December 31, 1999 December 31, 1998 June 30, 1999 June 30, 1998 June 30, 1997
----------------- ------------------ ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Earnings before taxes
on income $ 639,609 $ 300,787 $1,064,108 $1,063,492 $1,013,690
----------------- ------------------ ------------- ------------- -------------
Add: Fixed Charges
Interest 1,957,794 1,851,638(1) 3,379,914 3,638,513 2,551,364
Interest factor
in rents 15,350 15,336 31,363 30,130 26,516
----------------- ------------------ ------------- ------------- -------------
Total fixed charges 1,973,144 1,866,974 3,411,277 3,668,643 2,577,880
----------------- ------------------ ------------- ------------- -------------
Earnings before fixed
charges and taxes on
income $2,612,753 $2,167,761 $4,475,385 $4,732,135 $3,591,570
----------------- ------------------ ------------- ------------- -------------
----------------- ------------------ ------------- ------------- -------------
Preferred stock dividends $ 19,556 $ 19,873 $ 39,430 $ 31,012 $ 23,833
Ratio of income before provision
for income taxes to net income* 159% 150% 158% 161% 165%
----------------- ------------------ ------------- ------------- -------------
Preferred dividend factor on
pretax basis 31,041 29,884 62,340 49,939 39,390
Total fixed charges and
preferred dividends $1,992,700 $1,886,847 $3,450,707 $3,699,655 $2,601,713
----------------- ------------------ ------------- ------------- -------------
----------------- ------------------ ------------- ------------- -------------
Ratio of earnings to fixed charges
and preferred stock dividends 1.3 1.1 1.3 1.3 1.4
----------------- ------------------ ------------- ------------- -------------
----------------- ------------------ ------------- ------------- -------------
<CAPTION>
Fiscal Year Fiscal Year
Ended Ended
June 30, 1996 June 30, 1995
------------- -------------
<S> <C> <C>
Earnings before taxes
on income $ 834,926 $ 388,082
------------- -------------
Add: Fixed Charges
Interest 1,981,171 1,678,515
Interest factor
in rents 25,672 24,594
------------- -------------
Total fixed charges 2,006,843 1,703,109
------------- -------------
Earnings before fixed
charges and taxes on
income $2,841,769 $2,091,191
------------- -------------
------------- -------------
Preferred stock dividends $ 24,493 $ 25,137
Ratio of income before provision
for income taxes to net income* 170% 161%
------------- -------------
Preferred dividend factor on
pretax basis 41,680 40,544
Total fixed charges and
preferred dividends $2,031,336 $1,728,246
------------- -------------
------------- -------------
Ratio of earnings to fixed charges
and preferred stock dividends 1.4 1.2
------------- -------------
------------- -------------
</TABLE>
(1) This amount has been changed to conform to the current period's
presentation.
* Represents income before provision for income taxes divided by net income,
which adjusts dividends on preferred stock to a pre-tax basis.
<PAGE>
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 reports dated August
23, 1999, appearing 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, and to the reference to us under the heading "Experts" in the
Prospectus, which is part of such Registration Statement.
DELOITTE & TOUCHE LLP
March 7, 2000
New York, New York
<PAGE>
Exhibit 25
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
THE BEAR STEARNS COMPANIES INC.
(Exact name of obligor as specified in its charter)
DELAWARE 13-3286161
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
245 PARK AVENUE
NEW YORK, NEW YORK 10167
(Address of principal executive offices) (Zip Code)
------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
-----------------------------------------------------
<PAGE>
Exhibit 25
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State Plaza,
Albany, New York 12223. Board of Governors of the Federal Reserve
System, 20th and C Street, NW, Washington, D.C., 20551. Federal
Reserve Bank of New York, District No. 2, 33 Liberty Street, New
York, N.Y. 10045 Federal Deposit Insurance Corporation, 550
Seventeenth Street NW, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the [ ] day of March, 2000.
THE CHASE MANHATTAN BANK
By /s/Natalia Rodriguez
---------------------------
Natalia Rodriguez
Trust Officer
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business
December 31, 1999, in accordance
with a call made by the Federal
Reserve Bank of this District
pursuant to the provisions of the
Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................................ $ 13,271
Interest-bearing balances ................................................ 30,165
Securities:
Held to maturity securities .................................................... 724
Available for sale securities .................................................. 54,770
Federal funds sold and securities purchased under
agreements to resell ..................................................... 26,694
Loans and lease financing receivables:
Loans and leases, net of unearned income $ 132,814
Less: Allowance for loan and lease losses 2,254
Less: Allocated transfer risk reserve.... 0
---------
Loans and leases, net of unearned income,
allowance, and reserve ................................................... 130,560
Trading Assets ................................................................. 53,619
Premises and fixed assets (including capitalized
leases) .................................................................. 3,359
Other real estate owned ........................................................ 29
Investments in unconsolidated subsidiaries and
associated companies ..................................................... 186
Customers' liability to this bank on acceptances
outstanding .............................................................. 608
Intangible assets .............................................................. 3,659
Other assets ................................................................... 14,554
---------
TOTAL ASSETS ................................................................... $ 332,198
=========
-4-
<PAGE>
LIABILITIES
Deposits
In domestic offices ...................................................... $ 102,421
Noninterest-bearing ...................................................... $ 41,580
Interest-bearing ......................................................... 60,841
In foreign offices, Edge and Agreement
subsidiaries and IBF's ................................................... 108,233
Noninterest-bearing ............................................................ 6,061
Interest-bearing ......................................................... 102,172
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................................ 47,425
Demand notes issued to the U.S. Treasury ....................................... 100
Trading liabilities ............................................................ 33,626
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............................ 3,964
With a remaining maturity of more than one year
through three years ............................................... 14
With a remaining maturity of more than three years ....................... 99
Bank's liability on acceptances executed and outstanding ....................... 608
Subordinated notes and debentures .............................................. 5,430
Other liabilities .............................................................. 11,886
TOTAL LIABILITIES .............................................................. 313,806
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................................. 0
Common stock ................................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ...................... 11,066
Undivided profits and capital reserves ......................................... 7,376
Net unrealized holding gains (losses)
on available-for-sale securities ............................................... (1,277)
Accumulated net gains (losses) on cash flow hedges ............................. 0
Cumulative foreign currency translation adjustments ............................ 16
TOTAL EQUITY CAPITAL ........................................................... 18,392
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................................... $ 332,198
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
HELENE L. KAPLAN ) DIRECTORS
HENRY B. SCHACHT )
-5-
