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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or 12(g) of the
Securities and Exchange Act of 1934
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Bear Stearns Finance LLC
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(Exact Name of Registrant as Specified in its Charter)
Cayman Islands Applied for
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(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
c/o William J. Montgoris
Chief Operating Officer
and Chief Financial Officer
The Bear Stearns Companies Inc.
245 Park Avenue
New York, New York 10167
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(Address of Principal Executive Offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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8% Exchangeable Preferred New York Stock Exchange, Inc.
Income Cumulative Shares,
Series A
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The registrant hereby incorporates by reference the
descriptions of the securities registered hereby (the "Securities")
set forth under the caption "Description of Preferred Shares" on pages
5 to 9 of the registrant's Prospectus dated February 7, 1994 (the
"Prospectus") contained in the Registration Statement on Form S-3
(File No. 33-52053-01), as amended, under the Securities Act of 1933,
as amended, which was declared effective on February 7, 1994, as
supplemented by the information set forth under the caption "Certain
Terms of the Series A Shares" on pages S-3 to S-8 of the Prospectus
Supplement, dated February 17, 1994, to the Prospectus, as filed with
the Securities and Exchange Commission pursuant to Rule 424(b)(2) on
February 22, 1994.
ITEM 2. EXHIBITS.
4.1 - Memorandum of Association of the registrant (incorporated
by reference to Exhibit 3.1 to the Form S-3 Registration Statement).
4.2 - Articles of Association of the registrant (incorporated by
reference to Exhibit 3.2 to the Form S-3 Registration Statement).
4.3 - Certificate of the registrant setting forth the terms of
the Securities.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto
duly authorized.
BEAR STEARNS FINANCE LLC
By: THE BEAR STEARNS COMPANIES INC.,
as Common Shareholder
By: /s/ Samuel L. Molinaro, Jr.
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Samuel L. Molinaro, Jr.
Senior Vice President -- Finance
Dated: February 23, 1994
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INDEX TO EXHIBITS
Exhibit No. Description
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4.1 Memorandum of Association of the registrant
(incorporated by reference to Exhibit 3.1 to the
Form S-3 Registration Statement).
4.2 Articles of Association of the registrant
(incorporated by reference to Exhibit 3.2 to the
Form S-3 Registration Statement).
4.3 Certificate of the registrant setting forth the
terms of the Securities.
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EXHIBIT 4.3
TERMS OF THE 8%
EXCHANGEABLE PREFERRED INCOME CUMULATIVE SHARES, SERIES A OF
BEAR STEARNS FINANCE LLC
Bear Stearns Finance LLC, an exempted company with limited
duration incorporated under the laws of the Cayman Islands (the
Company ), HEREBY CERTIFIES:
1. That the Memorandum of Association of the Company provides
that the share capital of the Company is divided into 5,000 ordinary
shares, par value $1.00 each (the Common Shares ) and 20,000,000
preferred shares, par value $.01 each (the Preferred Shares ); and
2. That by duly adopted resolution of The Bear Stearns
Companies Inc., a Delaware corporation (the Parent ), in its capacity
as owner, directly and indirectly, of all of the Common Shares,
pursuant to authority granted in the Articles of Association of the
Company (the Articles of Association ), the Parent, as Common
Shareholder has authorized the issuance and sale of a Series of
Preferred Shares having the designation, stated value, rights,
privileges, restrictions, preferences and other terms and provisions
set forth below:
DECLARED, that pursuant to the Articles of Association, the
Company is hereby authorized to issue a series of Preferred Shares of
which the designation, number, liquidation preference, ranking, rights
to dividends and other participating, optional or other special rights
and the qualifications, limitations or restrictions thereof, and other
matters relating thereto, shall be:
1. Designation and Number of Shares of Series. The Preferred
Shares of the series hereby authorized are designated the Exchangeable
Preferred Income Cumulative Shares, Series A (hereafter, the Series A
Shares ). The total number of shares constituting such series shall
be 6,000,000.
2. Liquidation Preference and Ranking. The liquidation
preference of the Series A Shares shall be US$25 per share. The
Series A Shares shall, with respect to rights on any voluntary or
involuntary liquidation, dissolution or winding up of the Company,
rank (i) pari passu with any other series of Preferred Shares issued
by the Company and (ii) prior to any other equity securities of the
Company, including the Common Shares. So long as any Series A Shares
are outstanding, the Company will not issue any share capital ranking,
as to participation in the profits or assets of the Company, senior to
the Series A Shares. The issuance of any share capital ranking senior
to the Series A
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Shares shall constitute a variation or abrogation of the rights
attached to the Series A Shares under the Articles of Association.
3. Dividends. (a) The holders of the Series A Shares shall be
entitled to receive, when, as and if declared out of funds held by the
Company and legally available therefor, cumulative cash dividends on
Series A Shares at the annual rate of 8% of the liquidation preference
of US$25 per Series A Share, and no more, computed on the basis of
twelve 30-day months and a 360-day year, and for any dividend period
shorter than a full monthly calendar month, dividends will be computed
on the basis of the actual number of days elapsed in such period, and
payable in United States dollars monthly in arrears on the last day of
each calendar month of each year, except that accrued dividends from
the date of issuance of the Series A Shares through February 28, 1994
shall be paid on March 4, 1994 to holders of record on February 25,
1994. Such dividends will accrue and be cumulative whether or not
they have been declared and whether or not there are profits, surplus
or other funds of the Company legally available for the payment of
dividends. Dividends on the Series A Shares shall be cumulative from
the date of original issuance thereof. In the event that any date on
which dividends are payable on the Series A Shares is not a Business
Day, then payment of the dividend payable on such date will be made on
the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. A
Business Day shall mean any day on which banks in The City of New
York are open for business and on which foreign exchange dealings may
be conducted in The City of New York.
(b) Dividends on the Series A Shares must be declared by
the Common Shareholder in any calendar year or portion thereof to the
extent that the Common Shareholder reasonably anticipates that at the
time of payment the Company will have, and will be paid by the Company
to the extent that at the time of proposed payment it has, funds
legally available for the payment of such dividends and sufficient to
permit such payments. Dividends declared on the Series A Shares will
be payable to the record holders thereof as they appear on the Share
register on the relevant record date, which will be five Business Days
prior to the relevant payment date. If dividends can be paid only in
part on the Series A Shares in any calendar year or portion thereof as
a result of the lack of sufficient funds legally available for the
payment of dividends, then such partial dividends shall be paid on the
respective dividend payment dates on a pro rata basis to holders of
such Series A Shares. If at any time dividends on
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Series A Shares are in arrears for any monthly dividend period, any
dividend payments in respect thereof must be applied in respect of all
dividend periods in arrears, pro rata in accordance with the
respective amounts in arrears for each such period in equal amounts
for each such period.
(c) If dividends have not been paid in full on the Series A
Shares, the Company shall not:
i) pay, or declare and set aside for payment, any
dividends on any other preferred shares of the Company ranking
pari passu with the Series A Shares as regards participation in
profits of the Company ( Company Dividend Parity Shares ), unless
the amount of any dividends declared on any Company Dividend
Parity Shares is paid on the Company Dividend Parity Shares and
the Series A Shares on a pro rata basis on the date such
dividends are paid on such Company Dividend Parity Shares, so
that
(x) (A) the aggregate amount of dividends paid on the
Series A Shares bears to (B) the aggregate amount of
dividends paid on such Company Dividend Parity Shares the
same ratio as
(y) (A) the aggregate of all accumulated and unpaid
dividends in respect of the Series A Shares bears to (B) the
aggregate of all accumulated and unpaid dividends in respect
of such Company Dividend Parity Shares;
ii) pay, or declare and set aside for payment, any
dividends on any shares of the Company ranking junior to the
Series A Shares as to dividends ( Company Dividend Junior
Shares ); or
iii) redeem, purchase or otherwise acquire any Company
Dividend Parity Shares or Company Dividend Junior Shares;
until, in each case, such time as all accumulated arrears of unpaid
dividends (whether or not declared) on the Series A Shares shall have
been paid in full for all dividend periods terminating on or prior to,
in the case of clauses (i) and (ii), such payment, and in the case of
clause (iii), the date of such redemption, purchase or acquisition.
(d) The Company shall be treated as a partnership for
United States federal income tax purposes and the Memorandum and
Articles of Association of the Company and all resolutions of the
members thereof shall, to the fullest extent permitted by the
Companies Law, be interpreted and construed accordingly. Consistent
with such treatment, income of the Company equal to
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the amount of dividends accrued on the Series A Shares will be
allocated to the holders of the Series A Shares on the date of
declaration of dividends, if any, on such Series A Shares; income in
excess of such amount will be allocated to the holders of the Common
Shares.
4. Redemption. (a) The Series A Series shall be redeemable
for cash, at the option of the Company, with the prior consent of the
Parent, in whole or in part at any time and from time to time, after
February 28, 1999, upon not less than 30 nor more than 60 days'
notice, at the redemption price of US$25 per Series A Share plus
accumulated and unpaid dividends to the date fixed for redemption (the
Redemption Price ).
(b) Upon any prepayment or repayment in cash of the
principal of the loan to the Parent of the proceeds from the issuance
and sale of the Series A Shares and the Common Shares (the Loan ),
the proceeds from such prepayment or repayment shall be applied to
redeem the Series A Shares at the Redemption Price; provided that all
or any portion the principal amount so prepaid (provided that such
prepayment related to the entire principal amount of the Loan) or
repaid by the Parent may be reloaned by the Company to the Parent, and
not used for redemption, if at the time of such new loan, and as
determined in the judgment of the Parent, as Common Shareholder, and
the Parent's financial advisor (which may be an affiliate of the
Parent), (a) the Parent is not the subject of a pending case under the
United States Bankruptcy Code, (b) the Parent is not in default on any
loan pertaining to Preferred Shares of any series ranking pari passu
with the Series A Shares, (c) the Parent has timely made all required
monthly payments of interest on the loan for the immediately prior
nine months, (d) the Company is not in arrearage on payments of
dividends on the Series A Shares, (e) the Parent is expected to be
able to make timely payment of principal and interest on such new
loan, (f) such new loan is being made on terms, and under
circumstances, that are no less favorable to the Company than those
that a lender would require for a loan to an unrelated party, (g) such
new loan is being made at a rate of interest sufficient to provide
monthly payments of interest equal to or greater than the amount of
monthly dividend payments required under the Series A Shares, (h) such
new loan is being made for a fixed term that is consistent with market
circumstances and the Parent's financial condition and (i) in any
event, no new loan shall have a final maturity that is later than
ninetieth anniversary of issuance of the Series A Shares.
(c) Notwithstanding subparagraph (a) above, if at any time
after the issuance of the Series A Shares, the Company or the Parent
is or would be required to pay any Additional Amounts (as defined in
Section 8 hereof) or would be required to withhold or deduct certain
amounts as described in Section 8 hereof, then,
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subject to the prior consent of the Parent, the Company may, at its
option, upon not less than 30 nor more than 60 days' notice to the
holders of the Series A Shares (which notice shall be irrevocable),
redeem the Series A Shares in whole or, if such requirement relates
only to certain of the Series A Shares, the Series A Shares subject to
such requirement, in each case at the Redemption Price.
5. Redemption Procedure. (a) Notice of any redemption (a
Notice of Redemption ) of the Series A Shares will be given by the
Company by mail to each record holder of Series A Shares to be
redeemed not fewer than 30 nor more than 60 days prior to the date
fixed for redemption thereof. For purposes of the calculation of the
date of redemption and the dates on which notices are given pursuant
to this paragraph 5(a), a Notice of Redemption shall be deemed to be
given on the day such notice is first mailed by first class mail,
postage prepaid, to holders of record of the Series A Shares. Each
Notice of Redemption shall be addressed to the holder of record at the
address of the holder appearing in the stock register of the Company.
No defect in the Notice of Redemption or in the mailing thereof or
publication of its contents shall affect the validity of the
redemption proceedings.
(b) In the event that fewer than all the outstanding Series
A Shares are to be redeemed, the Series A Shares to redeemed (i) in
the case of a redemption pursuant to paragraph 4(a) of 4(b) hereof,
will be selected in accordance with paragraph 9 hereof and (ii) in the
case of optional redemption pursuant to paragraph 4(c) hereof, will be
those of the Series A Shares as are subject to the payment of
Additional Amounts, or the withholding or deduction of certain amounts
as described in Section 8 hereof. The Company may not redeem fewer
than all the outstanding Series A Shares unless all accumulated and
unpaid dividends have been paid on all Series A Shares for all monthly
dividend periods terminating on or prior to the date of redemption.
(c) If the Company gives a Notice of Redemption in respect
of Series A Shares, then, by 12:00 noon, New York time, on the
redemption date, the Company will irrevocably deposit with The
Depository Trust Company ( DTC ), which term includes any successor or
alternate depository selected by the Company or the Parent) funds
sufficient to pay the applicable Redemption Price and will give DTC
irrevocable instructions and authority to pay the Redemption Price to
the holders thereof. If Notice of Redemption shall have been given
and funds deposited as required, then upon the date of such deposit,
all rights of holders of such Series A Shares so called for redemption
will cease, except the right of the holders of such Series A Shares to
receive the Redemption Price, but without interest, and such Series A
Shares
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will cease to be outstanding. In the event that any date fixed for
redemption of Series A Shares is not a Business Day, then payment of
the Redemption Price payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day. In the event that
payment of the Redemption Price in respect of Series A Shares is
improperly withheld or refused and not paid either by the Company or
by the Parent pursuant to the Guarantee Agreement, dividends on such
shares will continue to accrue at the then applicable rate, from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption
for purposes of calculating the Redemption Price.
6. Liquidation Distribution. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company, the
holders of the Series A Shares at the time outstanding will be
entitled to receive out of the assets of the Company available for
distribution to members, before any distribution of assets is made to
holders of Common Shares or any other class of shares of the Company
ranking junior to the Series A Shares as regards participation in
assets of the Company, but together with the holders of every other
series of preferred shares of the Company outstanding, if any, ranking
pari passu with the Series A Shares as regards participation in the
assets of the Company ( Company Liquidation Parity Shares ), an amount
equal, in the case of the holders of the Series A Shares, to the
aggregate of the stated liquidation preference of US$25 per Series A
Share and all accumulated and unpaid dividends (whether or not
declared) to the date of payment (the Liquidation Distribution ).
Pursuant to its Articles of Association, the Company shall
automatically dissolve and be liquidated: (i) on the termination of
the period commencing on the date of incorporation of the Company and
terminating on the one hundred and fiftieth anniversary of the date of
incorporation of the Company; (ii) if the Common Shareholders pass a
special resolution requiring the Company to be wound up and dissolved;
(iii) upon any Common Shareholder ceasing to be a Member pursuant to
the Articles of Association; or (iv) upon any breach of the
requirement in the Articles of Association that the Common
Shareholders will at all times own Common Shares of the Company
representing, in their reasonable judgment, at least 21% of the total
value of the Company. If, upon any such liquidation, the Liquidation
Distribution can be paid only in part because the Company has
insufficient assets available to pay in full the aggregate Liquidation
Distributions and the aggregate maximum Liquidation Distribution on
the Company Liquidation Parity Shares, then the amounts payable
directly by the Company on the
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Series A Shares and on such Company Liquidation Parity Shares shall be
paid on a pro rata basis, so that
i) (x) the aggregate amount paid as the Liquidation
Distribution on the Series A Shares bears to (y) the aggregate
amount paid as the Liquidation Distribution on the Company
Liquidation Parity Shares the same ratio as
ii) (x) the aggregate Liquidation Distribution bears to
(y) the aggregate maximum Liquidation Distribution on the Company
Liquidation Parity Shares.
Notwithstanding anything in this Section 6 to the contrary, no
holder of the Series A Shares shall be entitled to receive any assets
or distributions from the Company upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company if (but only if)
upon or prior to such liquidation, dissolution or winding up, the
Parent shall have exercised its right under the Loan to issue and
deliver to the Company, in exchange for the note evidencing the Loan,
depositary shares representing shares of a series of preferred stock
of the Parent, par value $1.00 per share (the Parent Preferred
Stock ) having an aggregate fair value, as determined by the Parent's
financial advisor (which may be an affiliate of the Parent) equal to
the unpaid principal amount of the note evidencing the Loan, and all
accrued and unpaid interest thereon and the Company shall have
distributed such depositary shares to the holders of Series A Shares
in redemption of all of the Series A Shares as an entity, provided,
however, that such issuance and delivery may only take place on a
dividend payment date on or after August 31, 1994, and provided
further, that if, on the date that notice of the exchange is mailed to
holders of Series A Shares, the ratings assigned to any outstanding
publicly-held long term senior unsecured debt obligation of the Parent
by either Standard & Poor's Ratings Group or Moody's Investors
Services, Inc. is not at least BBB- and Baa3 (or the equivalent
ratings), respectively, then each holder of Series A Shares will be
entitled to receive 1.2 Depositary Shares for each Series A Share that
is exchanged. Notice of any exchange of the Preferred Shares of any
series will be given by the Company by mail to each record holder of
Series A Shares for not fewer than 30 nor more than 60 days prior to
the date fixed for exchange. Pursuant to the terms of the Loan, such
exchange may be made only if, on the date that notice of the exchange
is mailed to holders of Preferred Shares, (i) the Parent is not in
default on any loan made by the Company to the Parent, (ii) the Parent
is not in default under any mortgage, indenture or other instrument in
respect of indebtedness for borrowed money in excess of US$10,000,000
that has been or could be declared due and payable prior to maturity,
(iii) the Parent is not the subject of a pending case under the United
States Bankruptcy
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Code, or in insolvency or reorganization proceedings and (iv) the
total consolidated equity of the Parent, as shown on the most recent
publicly available consolidated balance sheet of the Parent, is at
least US$500,000,000.
7. Voting Rights. The Series A Shares shall not carry the
right for a holder thereof to receive notice of, attend or vote at a
general meeting of the shareholders of the Company, but shall have the
rights set forth in this paragraph 7. If (i) the Company fails to pay
dividends in full on the Series A Shares for nine consecutive monthly
dividend periods or (ii) the Parent breaches any of its obligations
under the Loan or obligations under the Guarantee Agreement, then the
holders of a majority in liquidation preference of the outstanding
Series A Shares, together with the holders of any other preferred
shares of the Company having the right to vote for the appointment of
a trustee in such event, acting as a single class, will be entitled,
by ordinary resolution passed by the holders of a majority in
liquidation preference (plus all accumulated and unpaid dividends per
share) of such shares present in person or by proxy at a separate
general meeting of such holders convened for such purpose, to appoint
and authorize a trustee to enforce, for and on behalf of the Company,
the Company's rights as a creditor under the Loan against the Parent,
enforce the obligations undertaken by the Parent under the Guarantee
Agreement and declare and pay dividends. For purposes of determining
whether the Company has failed to pay dividends in full for nine
consecutive monthly dividend periods, dividends shall be deemed to
remain in arrears, notwithstanding any payments in respect thereof,
until full cumulative dividends have been or contemporaneously are
declared and paid with respect to all monthly dividend periods
terminating on or prior to the date of payment of such full cumulative
dividends. Not later than 30 days after such right to appoint a
trustee arises, the Common Shareholder will convene a separate general
meeting for the above purpose. If the Common Shareholder fails to
convene such meeting within such 30-day period, the holders of 10% in
liquidation preference (plus all accumulated and unpaid dividends per
share) of the outstanding Series A Shares and such other preferred
shares will be entitled to convene such separate general meeting. The
provisions of the Articles of Association relating to the convening
and conduct of the general meetings of the Company will apply with
respect to any such separate general meeting. Any trustee so
appointed shall vacate office, subject to the terms of such other
preferred shares, immediately if the Company (or the Parent pursuant
to the Guarantee Agreement) shall have paid in full all accumulated
and unpaid dividends on the Series A Shares or such default or breach
by the Parent, shall have been cured.
If any resolution is proposed for adoption by the shareholders of
the Company providing for, or the Common
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Shareholder otherwise proposes to take any action that will, (x)
amend, alter or repeal the provisions of the Memorandum, the Articles
of Association or these resolutions so as to materially and adversely
affect any power, preference or privilege of the Series A Shares or
the holders thereof or result in the authorization or issuance of any
shares of the Company ranking, as to participation in the profits or
assets of the Company, senior to the Series A Shares, (y) result in
the liquidation, dissolution or winding up of the Company or (z)
modify Regulation 16 of the Articles of Association, which absolutely
prohibits transfers of Common Shares, then the holders of outstanding
Preferred Shares of all series (and, in the case of a resolution
described in clause (x) above which would, to a like extent,
materially and adversely affect the rights, preferences or privileges
of any Company Dividend Parity Shares or any Company Liquidation
Parity Shares, such Company Dividend Parity Shares or such Company
Liquidation Parity Shares, as the case may be, or, in the case of any
resolution described in clause (y) or (z) above, all Company
Liquidation Parity Shares) will be entitled to vote together as a
class on such resolution (but not on any other resolution), (i) at a
separate meeting of such holders, (ii) at the general meeting of
shareholders of the Company called for the purpose of adopting such
resolution or (iii) without a meeting but in writing, and such
resolution shall not be effective except with the approval, in the
case of clauses (i) and (ii), of the holders of 66-2/3% in liquidation
preference (plus all accumulated arrears and accruals of dividends) of
such outstanding shares present in person or by proxy at a meeting at
which 66-2/3 in liquidation preference (plus all accumulated arrears
and accruals of dividends) of such shares are so present or, in the
case of clause (iii), by the holders of 66-2/3 in liquidation
preference (plus all accumulated arrears and accruals of dividends) of
such shares; provided, however, that no such approval or ratification
shall be required under clauses (x) and (y) if the liquidation,
dissolution and winding up of the Company is proposed or initiated
upon the initiation of proceedings, or after proceedings have been
initiated, for the liquidation, dissolution, or winding up of the
Parent.
No vote or consent of the holders of the Series A Shares will be
required for the Company to redeem and cancel Series A Shares in
accordance with the Articles of Association.
The rights attached to the Series A Shares will be deemed not to
be varied by the creation or issue of, and no vote will be required
for the creation of, any further series of preferred shares or any
further shares of the Company ranking pari passu with or junior to the
Series A Shares with regard to participation in the profits or assets
of the Company. Holders of Series A Shares have no preemptive rights.
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Any required approval of holders of Series A Shares may be given
at a separate meeting of such holders convened for such purpose, at a
general meeting of shareholders of the Company pursuant to written
consent. The Company will cause a notice of any meeting at which
holders of the Series A Shares are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken,
to be mailed to each holder of record of Series A Shares. Each such
notice will include a statement setting forth (i) the date of such
meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on
which such holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of
proxies or written consents.
Notwithstanding that holders of Series A Shares are entitled to
vote or consent under any of the circumstances described above, any of
the Series A Shares and any such other preferred shares entitled to
vote with such Series A Shares as a single class outstanding at such
time that are owned by the Parent or any entity owned more than 20% by
the Parent, either directly or indirectly, shall not be entitled to
vote or consent and shall, for the purposes of such vote or consent,
be treated as if they were not outstanding.
8. Additional Amounts. All payments in respect of the Series A
Shares by the Company will be made without withholding or deduction
for or on account of any present or future taxes, duties, assessments
or governmental charges of whatever nature imposed or levied upon or
as a result of such payment by or on behalf of the Cayman Islands or
any authority therein or thereof having power to tax, unless the
withholding or deduction of such taxes, duties, assessments or
governmental charges is required by law. In that event, the Company
will pay as a dividend such additional amounts as may be necessary in
order that the net amounts received by the holders of the Series A
Shares after such withholding or deduction will equal the amount which
would have been receivable in respect of such Series A Shares in the
absence of such withholding or deduction ( Additional Amounts ),
except that no such Additional Amounts will be payable to a holder of
Series A Shares (or a third party on such holder's behalf) with
respect to Series A Shares:
(a) if such holder is liable for such taxes, duties,
assessments or governmental charges for which the withholding or
deduction was imposed in respect of such Series A Shares by reason of
such holder's having some connection with the Cayman Islands other
than being a holder of such Series A Shares, or
(b) if the Company has notified such holder of the
obligation to withhold taxes and requested but not received from
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such holder a declaration of non-residence or other claim of
redemption, and such withholdings or deduction would not have been
required had such declaration or claim been received.
9. Book-Entry-Only Issuance; The Depository Trust Company. DTC
will act as securities depository for the Series A Shares. The Series
A Shares will be issued only in the form of one or more fully-
registered global securities representing in the aggregate the total
number of Series A Shares and registered in the name of Cede & Co.
(DTC's nominee).
Redemption notices shall be sent to Cede & Co. If less than all
of the Series A Shares are being redeemed, shares to be redeemed shall
be determined in accordance with DTC's practice.
DTC may discontinue providing its services as securities
depository with respect to the Series A Shares at any time by giving
notice to the Company as provided in the agreement between the Company
and DTC. Under such circumstances, in the event that the successor
securities depository is not obtained, Series A Shares certificates
are required to be printed and delivered. Additionally, in the event
that the Company or the Parent is or would be required to withhold or
deduct Additional Amounts in regard to only certain of the Series A
Shares, the Company may cause all of the Series A Shares to be issued
in definitive form. Thereafter, upon surrender of the global
certificate or certificates, Series A Shares will be issued in
definitive form, and the Series A Shares to which the Additional
Amounts relate will be redeemed.
10. Transfer Restrictions. The Company will not register Series
A Shares in the name of, or record the transfer of Series A Shares to,
or pay any dividend or distribution on or with respect to the Series A
Shares to, any holder, if such holder, or any person for whom such
holder is acting as a nominee, (a) has an address of record outside
the United States or (b) is known by the Company or its transfer agent
to be other than (i) a citizen or resident of the United States, (ii)
a corporation, partnership or other entity organized under the laws of
the United States or any of its states or the District of Columbia or
(iii) an estate or trust that is subject to United States federal
income tax on its worldwide income without regard to source. The
foregoing transfer restrictions shall not preclude the settlement of
any transaction in the Series A Shares entered into through the
facilities of the New York Stock Exchange.
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IN WITNESS WHEREOF, this certificate has been signed on behalf of
Bear Stearns Finance LLC by a designated officer of its Common
Shareholder pursuant to authority conferred by the Articles of
Association, and has been attested by the Secretary of the Common
Shareholder, as of the ____ day of February, 1994.
BEAR STEARNS FINANCE LLC
By: THE BEAR STEARNS COMPANIES INC.
as Common Shareholder
By:
-----------------------------------
Name:
Title:
Attest:
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Name:
Title:
