As filed with the Securities and Exchange Commission on August 20, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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U.S. TRUST CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK 13-3818952
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
114 WEST 47TH STREET
NEW YORK, NEW YORK 10036
(212) 852-1000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
RICHARD B. GROSS
MANAGING DIRECTOR AND GENERAL COUNSEL
U.S. TRUST CORPORATION
114 WEST 47TH STREET
NEW YORK, NEW YORK 10036
(212) 852-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At such time
or times as may be determined by the Selling Shareholders 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.|_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.|_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.|_|
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SHARES TO AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
BE REGISTERED (1) REGISTERED (2) PER UNIT (3) PRICE (3) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Shares, par value $1.00
per share (and associated Rights
to Purchase Series A
Participating Cumulative
Preferred Shares)............. 168,000 $73.50 $12,348,000 $3,643
=========================================================================================================================
<FN>
(1) The associated Rights are presently attached to, and transferable only with, the Common Shares. The value
attributable to the Rights (if any) is included in the proposed maximum offering price of the Common Shares.
(2) Represents an estimate of the maximum number of Common Shares that the Selling Shareholders may receive in
connection with the acquisition described in this Registration Statement.
(3) Estimated in accordance with Rule 457(c) under the Securities Act of 1933 solely for purposes of calculating the
registration fee (based on the average of the high and low prices per U.S. Trust Corporation Common Share as
reported on the Nasdaq National Market on August 19, 1998).
</FN>
</TABLE>
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
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<PAGE>
RED HERRING
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 is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
<PAGE>
PROSPECTUS (Subject to Completion)
Dated August 20, 1998
U.S. TRUST CORPORATION
168,000 COMMON SHARES
(and associated Rights)
----------------------
This prospectus relates to an offering by certain shareholders of up to
168,000 Common Shares, par value $1.00 per share, of U.S. Trust Corporation (a
New York corporation). Part of these shares have already been acquired by the
selling shareholders in connection with the July 31, 1998 acquisition of Wood
Island Associates, Inc. by a subsidiary of U.S. Trust Corporation. The remaining
shares may be acquired by the selling shareholders over time, if certain
conditions relating to the acquisition of Wood Island are met. U.S. Trust
Corporation will not receive any of the proceeds from the sale of the shares.
U.S. Trust Corporation's Common Shares trade in the over-the-counter
market and are quoted on the Nasdaq National Market under the symbol "USTC." On
August 19, 1998, the closing price reported on the Nasdaq National Market was
$73 1/4 per share.
The selling shareholders have advised us that they propose to offer the
shares from time to time and in any of several different ways. These include (1)
through brokers in ordinary brokerage transactions, (2) to underwriters or
dealers in negotiated transactions or (3) by a combination of these methods of
sale. The shares may be offered at fixed prices (which may be changed), at
market prices at the time of sale, at prices related to prevailing market prices
or at negotiated prices.
Brokers, dealers and underwriters that participate in the distribution of
the shares may be deemed to be underwriters under the Securities Act of 1933,
and any discounts or commissions received by them from the selling shareholders
(and any profit on the resale of shares by them) may be deemed to be
underwriting discounts and commissions under the Securities Act. The selling
shareholders may be deemed to be underwriters under the Securities Act.
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| NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE |
| SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE |
| SECURITIES TO BE OFFERED UNDER THIS PROSPECTUS OR DETERMINED |
| IF THIS PROSPECTUS IS ADEQUATE OR ACCURATE. ANY |
| REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. |
| |
| THE SECURITIES TO BE OFFERED UNDER THIS PROSPECTUS ARE NOT |
| SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK |
| OR SAVINGS ASSOCIATION AND THEY ARE NOT INSURED BY THE |
| FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER |
| GOVERNMENTAL AGENCY. |
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THE DATE OF THIS PROSPECTUS IS AUGUST , 1998.
<PAGE>
TABLE OF CONTENTS
PAGE
----
The Corporation................................................................2
Where You Can Find More Information............................................2
Selling Shareholders...........................................................4
Description of the Rights......................................................5
Plan of Distribution...........................................................6
Use of Proceeds................................................................6
Forward-looking Statements.....................................................7
Validity of Common Shares......................................................7
Experts........................................................................7
THE CORPORATION
U.S. Trust Corporation (the "CORPORATION", "WE" or "OUR") is a bank holding
company subject to the federal Bank Holding Company Act of 1956, as amended.
Through our subsidiaries, we provide investment and asset management, corporate
fiduciary and private banking services to individuals and institutional
investors. At June 30, 1998, the Corporation had assets under management of $68
billion. Our principal executive office is located at 114 West 47th Street, New
York, New York 10036. Our telephone number is (212) 852-1000, and our Internet
address is www.ustrust.com.
The Corporation's principal subsidiary is United States Trust Company of
New York, a state chartered bank and trust company (the "TRUST COMPANY"). The
Trust Company provides trust and banking services to individuals and
institutions, including investment management, estate and trust administration,
financial planning and corporate trust and agency. The Trust Company is a member
bank of the Federal Reserve System and an insured bank of the Federal Deposit
Insurance Corporation.
The Corporation's other banking subsidiaries have offices located in
California, Connecticut, Florida, New Jersey, Oregon and Texas.
WHERE YOU CAN FIND MORE INFORMATION
The Corporation has filed a Registration Statement under the Securities Act
of 1933 (the "SECURITIES ACT") that registers the Corporation's Common Shares
(and associated preferred stock purchase Rights) offered by this prospectus. (We
sometimes refer to these Common Shares and associated Rights collectively as the
"SHARES".)
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<PAGE>
The Registration Statement (including the attached exhibits and schedules)
that we filed with the Securities and Exchange Commission (the "COMMISSION")
contains additional relevant information about the Corporation and the Shares.
The rules and regulations of the Commission allow us to omit certain information
included in the Registration Statement from this prospectus.
In addition, we file reports, proxy statements and other information with
the Commission under the Securities Exchange Act of 1934 (the "EXCHANGE ACT").
You may read and copy this information at the following locations of the
Commission:
<TABLE>
<S> <C> <C>
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2511
</TABLE>
You may also obtain copies of this information by mail from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, at prescribed rates. Further information on the
operation of the Commission's Public Reference Room in Washington, D.C. can be
obtained by calling the Commission at 1-800-SEC-0330.
The Commission also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers, such as the
Corporation, who file electronically with the Commission. The address of that
site is http://www.sec.gov.
THE COMMISSION ALLOWS US TO "INCORPORATE BY REFERENCE" INFORMATION INTO
THIS PROSPECTUS. THIS MEANS THAT WE CAN DISCLOSE IMPORTANT INFORMATION TO YOU BY
REFERRING YOU TO ANOTHER DOCUMENT FILED SEPARATELY WITH THE COMMISSION. The
information incorporated by reference is considered to be a part of this
prospectus, except for any information that is superseded by other information
included directly in this document.
This prospectus incorporates by reference the documents listed below that
we have previously filed with the Commission. They contain important information
about the Corporation and our financial condition.
o Annual Report on Form 10-K for the year ended December 31, 1997.
o Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998 and
June 30, 1998.
o The description of our Common Shares set forth in our registration
statement on Form 10, dated February 9, 1995 (filed pursuant to Section
12 of the Exchange Act), including any amendment or report filed with
the Commission for the purpose of updating the description.
o The description of the Rights associated with our Common Shares set
forth in our registration statement on Form 8-A, dated September 5, 1995
(filed pursuant to Section 12 of the Exchange Act), including any
amendment or report filed with the Commission for the purpose of
updating the description.
This prospectus also incorporates by reference additional documents that we
may file with the Commission between the date of this prospectus and the date
that the offering of the Shares is terminated. These documents include periodic
reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K, as well as proxy statements.
-3-
<PAGE>
You can obtain any of the documents incorporated by reference in this
document from us or from the Commission through the Commission's web site at the
address described above. Documents incorporated by reference are available from
us without charge, excluding any exhibits to those documents unless the exhibit
is specifically incorporated by reference as an exhibit in this prospectus. You
can obtain these documents from us by requesting them in writing or by telephone
at the following address:
Corporate Communications Department
U.S. Trust Corporation
114 West 47th Street
New York, New York 10036
Telephone: (212) 852-1000
We have not authorized anyone to give any information or make any
representation about us or this offering that is different from, or in addition
to, that contained in this prospectus or in any of the materials that we have
incorporated into this document. Therefore, if anyone does give you information
of this sort, you should not rely on it. If you are in a jurisdiction where
offers to sell, or solicitations of offers to buy, the securities offered by
this document are unlawful, or if you are a person to whom it is unlawful to
direct these types of activities, then the offer presented in this document does
not extend to you. The information contained in this document speaks only as of
the date of this document unless the information specifically indicates that
another date applies.
SELLING SHAREHOLDERS
The Shares are being offered by the selling shareholders named below (the
"SELLING SHAREHOLDERS"). A portion of the Shares have already been acquired by
the Selling Shareholders in connection with the July 31, 1998 acquisition by a
subsidiary of the Corporation of Wood Island Associates, Inc., which is a
California corporation ("WOOD ISLAND"). As a result of that acquisition, Wood
Island became a wholly owned, indirect subsidiary of the Corporation. The rest
of the Shares may be acquired by the Selling Shareholders over time, if certain
conditions relating to the acquisition of Wood Island are met. Whether the
Selling Shareholders actually will acquire any additional Shares (and the timing
of those acquisitions) is not certain.
The Selling Shareholders are listed below, together with the number of the
Corporation's Common Shares he or she owns as of August 19, 1998. All of these
Common Shares were received by the Selling Shareholders in connection with the
acquisition of Wood Island and are being offered by this prospectus. Each of the
Selling Shareholders may also receive additional Common Shares in connection
with the acquisition of Wood Island. These Shares are also being offered by this
prospectus.
<TABLE>
<CAPTION>
SHAREHOLDER COMMON SHARES
BENEFICIALLY OWNED ON AUGUST 19, 1998
<S> <C>
Frank P. Greene and Barbro S. Greene as 13,265
Trustees of the Frank Perry Greene and Barbro
Swedenborg Greene Revocable Inter-vivos
Trust (dated October 5, 1978)
Gary V. Kirk and Cynthia M. Kirk as Trustees 12,062
for the Gary V. Kirk Trust (dated February 1,
1973)
Peter K. Maier as Trustee for the Maier Family 13,265
1993 Trust (dated April 5, 1993)
-4-
<PAGE>
SHAREHOLDER COMMON SHARES
BENEFICIALLY OWNED ON AUGUST 19, 1998
Lawrence A. Mitchell 21,706
Kenneth F. Siebel 31,760
Kent B. Williams 7,235
TOTAL 99,293
</TABLE>
Frank Greene, Gary Kirk, Peter Maier, Lawrence Mitchell, Kenneth Siebel and
Kent Williams were officers of Wood Island at the time of its acquisition by the
Corporation. Messrs. Kirk, Maier, Mitchell and Siebel were also directors. Each
of Messrs. Greene, Kirk, Maier, Mitchell, Siebel and Kent Williams have entered
into a five-year employment agreement with Wood Island that started on the day
the acquisition was completed. In addition, Messrs. Maier and Siebel are
directors of Fernhill Holding, Inc., an affiliate of the Corporation
("FERNHILL"). Mr. Siebel is also an officer of Fernhill.
Because the Selling Shareholders may receive additional Shares after the
date of this prospectus and because they may not sell all (or even any) of the
Shares by means of this prospectus, the number of Shares each will own after
this offering is complete is unknown.
DESCRIPTION OF THE RIGHTS
On August 29, 1995, our Board of Directors declared a dividend granting
shareholders one "RIGHT" for each outstanding Common Share of the Corporation
they owned. We made this distribution to the holders of record of each Common
Share outstanding on September 1, 1995. In addition, we issued and will issue
one Right with each Common Share issued after that date and before the
"DISTRIBUTION DATE" (which is defined below) and with some Common Shares issued
after the Distribution Date.
Each Right is essentially an option that, if it becomes exercisable, gives
the owner (as registered on the Corporation's books) the ability to purchase
from the Corporation one-hundredth (1/100th) of a Series A Participating
Cumulative Preferred Share of the Corporation (a "PREFERRED SHARE") at an
initial price of $150. However, until the Distribution Date, the Rights (1)
cannot be exercised, (2) will be evidenced by the certificates for Common Shares
and not by separate Right Certificates, and (3) will be transferable only with
Common Shares. Unless they are earlier redeemed by the Corporation, the Rights
will expire on September 1, 2005.
The "DISTRIBUTION DATE" is defined as the earliest date on which one of the
following occurs:
o Any person (other than the 401(k) Plan and ESOP of the Corporation and
certain affiliated companies) or group (including any affiliate or
associate of such person or group) acquires, or obtains the rights to
acquire, beneficial ownership of 20% or more of the Common Shares that
are then outstanding; or
o With respect to the potential acquisition by any person (other than
the 401(k) Plan and ESOP of the Corporation and certain affiliated
companies) of beneficial ownership of 25% or more of the outstanding
Common Shares, the tenth day after the date of the earlier to occur of
(1) notice of approval under the Bank Holding Company Act of 1956, (2)
notice of nondisapproval under the Change in Bank Control Act or (3)
the expiration, without a notice of disapproval having been issued, of
the prior notification period under the Change in Bank Control Act
with respect to a notification thereunder.
-5-
<PAGE>
The Rights may have the effect of inhibiting or deterring a takeover of the
Corporation by another entity. You can find a description of the Rights and the
Preferred Shares in our Registration Statement on Form 8-A (the "8-A
REGISTRATION STATEMENT") dated September 5, 1995, for the registration of the
Rights pursuant to Section 12(g) of the Exchange Act. This prospectus
incorporates by reference the information contained in the 8-A Registration
Statement.
PLAN OF DISTRIBUTION
The Selling Shareholders have advised us that they propose to offer the
Shares for sale from time to time and in several different ways. For example,
they may make sales on the Nasdaq Stock Market or on another interdealer
quotation system or stock exchange on which the Common Shares are listed at the
time, through negotiated transactions or otherwise at prices related to
prevailing market prices or at negotiated prices. Alternatively, from time to
time one or more of the Selling Shareholders may offer the Shares through
brokers, dealers or agents, who may receive compensation in the form of
concessions or commissions from any such Selling Shareholders, agents and/or the
purchasers for whom they may act as agent. If necessary, another prospectus will
be prepared to describe the method of sale in greater detail. We do not know of
any arrangements that the Selling Shareholders have entered into to sell the
Shares as of the date of this prospectus, nor do we know which brokerage firms
the Selling Shareholders may select to sell their Shares. In addition, any of
the Shares that qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than by this prospectus.
The Selling Shareholders and any brokers, dealers or agents that
participate in the distribution of the Shares may be considered "underwriters"
within the meaning of the Securities Act. If the Selling Shareholders are
considered underwriters, any profits on the sale of Shares by them and any
associated discounts or commissions may be considered underwriting compensation
under the Securities Act. In addition, if a Selling Shareholder is considered an
underwriter, such Selling Shareholder may be subject to certain statutory
liabilities under the Securities Act, including Sections 11 and 12 of the
Securities Act.
The Selling Shareholders and any other person participating in a sale or
distribution of Shares will be subject to applicable provisions of the Exchange
Act and the rules and regulations thereunder. Certain rules and regulations
issued by the Commission under the Exchange Act (including Regulation M and Rule
10b-5) may limit when the Selling Shareholders (or any other person) may sell or
purchase the Shares.
In some jurisdictions, the securities laws require that the Shares must be
offered or sold only through registered or licensed brokers or dealers. In
addition, in certain jurisdictions the Shares may not be offered or sold unless
they have been registered or qualified for sale in such jurisdictions or an
exemption from registration or qualification is available and is complied with.
We will not receive any part of the proceeds from the sale of Shares. We
will bear all expenses incurred by us in connection with the registration of the
Shares under the Securities Act. Each of the Selling Shareholders will pay his
or her own expenses (including brokerage commissions, personal legal fees or
similar expenses) in connection with the offering and sale of the Shares.
USE OF PROCEEDS
We will not receive any proceeds from the sales of the Shares, but we will
bear certain of the expenses. See "Plan of Distribution."
-6-
<PAGE>
FORWARD-LOOKING STATEMENTS
In this prospectus we made certain forward-looking statements with respect
to the financial condition, results of operations and business of the
Corporation. These statements may be made directly in this document or may be
"incorporated by reference" to other documents. You can find many of these
statements by looking for words such as "believes," "expects," "anticipates,"
"estimates" or similar expressions.
We caution you that these statements are not guarantees of future
performance. They involve a number of risks and uncertainties that are difficult
to predict. Among the factors that may cause our actual results to differ from
those expressed or implied in the forward-looking statements are the following:
o General economic or business conditions may be less favorable than
expected, resulting in, among other things, a reduced demand for asset
management or other financial services, a resulting decrease in the
assets under management and a corresponding decrease in fees.
o Competitive pressures in the investment or asset management, corporate
fiduciary or private banking industries may increase significantly.
o Legislative or regulatory changes may adversely affect the business in
which we are engaged.
o Necessary technological changes (including changes to address "Year
2000" data systems issues) may be more difficult or expensive to
implement than anticipated.
VALIDITY OF COMMON SHARES
The validity of the Shares being offered hereby has been passed upon for
the Corporation by our General Counsel, Richard B. Gross, Esq. Mr. Gross
beneficially owns less than 1% of the outstanding Common Shares of the
Corporation.
EXPERTS
The consolidated balance sheets of the Corporation as of December 31, 1997
and 1996, and the related consolidated statements of income, changes in
stockholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1997, included in the Corporation's 1997 Annual Report
on Form 10-K are incorporated by reference herein in reliance upon the report of
PricewaterhouseCoopers LLP (formerly Coopers & Lybrand L.L.P.), independent
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
-7-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth an itemization of all estimated expenses in
connection with the issuance and distribution of the securities being
registered, none of which are payable by the Selling Shareholders (other than
$1,000 of legal fees and expenses which are being paid by the Selling
Shareholders):
Registration Statement Filing Fee................ $ 3,773
Legal Fees and Expenses.......................... 10,000
Accounting Fees and Expenses..................... 10,000
Printing Costs................................... N/A
Miscellaneous Fees and Expenses.................. 1,000
------------
Total............................................ $ 24,773
============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article V of the By-Laws of the Registrant provides as follows:
"The Corporation shall indemnify any person made or threatened to be made a
party to any action or proceeding, whether civil or criminal, and whether
or not by or in the right of the Corporation or of any other corporation of
any type or kind, domestic or foreign, or any partnership, joint venture,
trust, employee benefit plan or other enterprise, by reason of the fact
that such person, his testator or intestate, is or was a director or
officer of the Corporation or served any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity at the request of
the Corporation, against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys' fees, actually and necessarily
incurred as a result of such action or proceeding, or any appeal therein,
provided that (a) no indemnification may be made to or on behalf of any
person if a judgment or other final adjudication adverse to such person
establishes that his acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the cause of action
so adjudicated, or that he personally gained in fact a financial profit or
other advantage to which he was not legally entitled, (b) no
indemnification shall be required in connection with the settlement of any
pending or threatened action or proceeding, or any other disposition
thereof except a final adjudication, unless the Corporation has consented
to such settlement or other disposition and (c) the Corporation shall not
be obligated to indemnify any person by reason of the adoption of this
Article V if and to the extent such person is entitled to be indemnified
under a policy of insurance as such policy would apply in the absence of
the adoption of this Article V.
Reasonable expenses, including attorneys' fees, incurred in defending any
action or proceeding, whether threatened or pending, shall be paid or
reimbursed by the Corporation in advance of the final disposition thereof
upon receipt of any undertaking by or on behalf of the person seeking
indemnification to repay such amount to the Corporation to the extent, if
any, such person is ultimately found not to be entitled to indemnification.
Notwithstanding any other provision hereof, no repeal of this Article V, or
amendment hereof or any other corporate action or agreement which prohibits
or otherwise limits the right of any person to indemnification or
advancement or reimbursement of expenses hereunder, shall be effective as
to any person until the 60th day following notice to such person of such
action, and no such repeal or amendment or other corporate action or
agreement shall deprive any person of any right hereunder arising out of
any alleged or actual act or omission occurring prior to such 60th day.
II-1
<PAGE>
The Corporation is hereby authorized, but shall not be required, to enter
into agreements with any of its directors, officers or employees providing
for rights to indemnification and advancement and reimbursement of
reasonable expenses, including attorneys' fees, to the extent permitted by
law, but the Corporation's failure to do so shall not in any manner affect
or limit the rights provided for by this Article V or otherwise.
For purposes of this Article V, the term 'Corporation' shall include any
legal successor to the Corporation, including any corporation which
acquires all or substantially all of the assets of the Corporation in one
or more transactions. For purposes of this Article V, the Corporation shall
be deemed to have requested a person to serve an employee benefit plan
where the performance by such person of his duties to the Corporation or
any subsidiary thereof also imposes duties on, or otherwise involves
services by such person to the plan or participants or beneficiaries of the
plan, and excise taxes assessed on a person with respect to an employee
benefit plan pursuant to applicable law shall be considered fines.
The rights granted pursuant to or provided by the foregoing provisions of
this Article V shall be in addition to and shall not be exclusive of any
other rights to indemnification and expenses to which any person may
otherwise be entitled under any statute, rule, regulation, certificate of
incorporation, bylaw, agreement or otherwise."
The Registrant, as a New York corporation, is subject to the New York
Business Law (the "B.C.L."). Section 721 of the B.C.L. provides that no
indemnification may be made to or on behalf of any director or officer of a
corporation if "a judgment or other final adjudication adverse to the director
or officer establishes that his acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or that he personally gained in fact a financial profit
or other advantage to which he was not legally entitled." Article V of the
Registrant's By-Laws includes the foregoing statutory language.
The rights granted under Article V of the By-Laws are in addition to, and
are not exclusive of, any other rights to indemnification and expense to which
any director or officer may otherwise be entitled. Under the B.C.L., a New York
corporation may indemnify any director or officer who is made or threatened to
be made a party to an action by or in the right of such corporation against
"amounts paid in settlement and reasonable expenses, including attorneys' fees,"
actually and necessarily incurred by him in connection with the defense or
settlement of such action, or in connection with an appeal therein, if such
director or officer acted, in good faith, for a purpose which he reasonably
believed to be in the best interests of the corporation, except that no
indemnification shall be made in respect of (1) a threatened action, or a
pending action which is settled or otherwise disposed of, or (2) any claim,
issue or matter as to which such director or officer shall have been adjudged
liable to the corporation, unless and only to the extent that a court determines
that the director or officer is fairly and reasonably entitled to indemnity
(B.C.L. Section 722(c)). A corporation may also indemnify directors and officers
who are parties to their actions or proceedings (including actions or
proceedings by or in the right of any other corporation or other enterprise
which the director or officer served at the request of the corporation) against
"judgments, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees," actually or necessarily incurred as a result of such action or
proceedings, or any appeal therein, provided the director or officer acted, in
good faith, for a purpose which he reasonably believed to be in the best
interests of the corporation (or in the case of service to another corporation
or other enterprise at the request of such corporation, not opposed to the best
interests of such corporation) and, in criminal cases, that he also had no
reasonable cause to believe that his conduct was unlawful (B.C.L. Section
722(a)). Any indemnification under Section 722 may be made only if authorized in
the specific case by disinterested directors, or by the board of directors upon
the opinion in writing of independent legal counsel that indemnification is
proper, or by the shareholders (B.C.L. Section 723(b)), but even without such
authorization, a court may order indemnification in certain circumstances
(B.C.L. Section 724). Further, any director or officer who is "successful, on
the merits or otherwise," in the defense of an action or proceeding is entitled
to indemnification as a matter of right (B.C.L. Section 723(a)).
A New York corporation may generally purchase insurance, consistent with
the limitations of New York insurance law and regulatory supervision, to
indemnify the corporation for any obligation which it incurs as a result of the
indemnification of directors and officers under the provisions of the B.C.L., so
long as no final adjudication has established that the directors' or officers'
acts of active and deliberate dishonesty were material to the cause of action
II-2
<PAGE>
so adjudicated or that the directors or officers personally gained in fact a
financial profit or other advantage to which they were not legally entitled
(B.C.L. Section 726). The Registrant has purchased insurance covering
expenditures by it and its subsidiaries which might arise in connection with the
lawful indemnification of directors and officers for certain liabilities and
expenses, and insurance insuring directors and officers of the Registrant and
its subsidiaries against certain other liabilities and expenses.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT NO. DESCRIPTION
- ---------- -----------
4.1 Rights Agreement, dated as of September 1, 1995, between the
Corporation and First Chicago Trust Company of New York, as
Rights Agent. (Incorporated by reference to Exhibit 1 to the
Corporation's Registration Statement on Form 8-A filed on
September 5, 1995 for the registration under Section 12(g) of
the Securities Exchange Act of 1934 of Rights to Purchase the
Corporation's Series A Participating Cumulative Preferred
Shares (the "8-A").)
4.2 Specimen certificate representing Rights to Purchase the
Corporation's Series A Participating Cumulative Preferred
Shares. (Incorporated by reference to Exhibit A to Exhibit 1 to
the 8-A, filed on September 5, 1995.)
5 Opinion of Richard B. Gross, Esq.
23.1 Consent of PricewaterhouseCoopers LLP (formerly Coopers &
Lybrand L.L.P.).
23.2 Consent of Richard B. Gross, Esq. (Included in Exhibit 5.)
24 Powers of Attorney. (Included in the signature pages of this
Registration Statement.)
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (as amended, and together with the rules and
regulations thereunder, the "SECURITIES ACT");
(b) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total 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 Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement.
(c) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs
II-3
<PAGE>
is contained in periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (as amended, and together with the rules and regulations
thereunder, the "SECURITIES EXCHANGE ACT") that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each 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.
(3) 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.
(4) 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 Section 15(d) of the Securities Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act) that is
incorporated by reference in the 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.
(5) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of the registration statement as of the time it was declared
effective.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus 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.
(7) 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 foregoing provisions, or
otherwise (other than pursuant to insurance), the Registrant has been
advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and may,
therefore, be 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
and other than insurance payments) 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-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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 on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on August 17, 1998.
U.S. TRUST CORPORATION
By: /s/ Richard E. Brinkmann
-----------------------------------------
Richard E. Brinkmann
Comptroller and Chief Planning Officer
POWERS OF ATTORNEY
The undersigned do hereby make, constitute and appoint H. Marshall Schwarz,
Jeffrey S. Maurer and Richard E. Brinkmann, and each of them acting
individually, his true and lawful attorneys-in-fact with full power to act
without the other, to execute, deliver and file, for and on his behalf, and in
his name and in his capacity as aforesaid, a Registration Statement on Form S-3
and any and all amendments (including post-effective amendments) to such
registration statement for filing with the Securities and Exchange Commission
(the "SEC") under the United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), and any other documents in support thereof, with respect to
the Common Shares of the Corporation, hereby granting to said attorneys-in-fact
and each of them full power and authority to do and perform each and every act
and thing whatsoever as said attorney-in-fact or attorneys-in-fact may deem
necessary or advisable to carry out fully the intent of the foregoing as the
undersigned might or could do personally or in the capacity or capacities as
aforesaid, hereby ratifying and confirming all acts and things which said
attorney or attorneys may do or cause to be done by virtue of these presents.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-3 has been signed by the following persons in the capacities
and on the date indicated.
SIGNATURE TITLE
--------- -----
/s/ H. Marshall Schwarz
- ------------------------------------
H. Marshall Schwarz Chairman of the Board and Director
(Principal Executive Officer)
/s/ John L. Kirby
- ------------------------------------
John L. Kirby Treasurer and Chief Financial Officer
/s/ Richard E. Brinkmann
- ------------------------------------
Richard E. Brinkmann Comptroller and Chief Planning Officer
/s/ Eleanor Baum
- ------------------------------------
Eleanor Baum Director
II-5
<PAGE>
SIGNATURE TITLE
--------- -----
/s/ Samuel C. Butler
- ------------------------------------
Samuel C. Butler Director
- ------------------------------------
Peter O. Crisp Director
/s/ Philippe de Montebello
- ------------------------------------
Philippe de Montebello Director
/s/ Paul W. Douglas
- ------------------------------------
Paul W. Douglas Director
/s/ Antonia M. Grumbach
- ------------------------------------
Antonia M. Grumbach Director
- ------------------------------------
Frederic C. Hamilton Director
/s/ Peter L. Malkin
- ------------------------------------
Peter L. Malkin Director
/s/ Jeffrey S. Maurer
- ------------------------------------ President, Chief Operating Officer and
Jeffrey S. Maurer Director
/s/ David A. Olsen
- ------------------------------------
David A. Olsen Director
/s/ Maribeth S. Rahe
- ------------------------------------
Maribeth S. Rahe Vice Chairman of the Board and Director
/s/ Philip L. Smith
- ------------------------------------
Philip L. Smith Director
/s/ John Hoht Stookey
- ------------------------------------
John Hoyt Stookey Director
II-6
<PAGE>
SIGNATURE TITLE
--------- -----
/s/ Frederick B. Taylor
- ------------------------------------ Vice Chairman of the Board, Chief
Frederick B. Taylor Investment Officer and Director
/s/ Richard F. Tucker
- ------------------------------------
Richard F. Tucker Director
/s/ Robert N. Wilson
- ------------------------------------
Robert N. Wilson Director
- ------------------------------------
Ruth A. Wooden Director
Dated: August 17, 1998
II-7
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION LOCATION
- ---------- ---------- --------
<S> <C> <C>
4.1 Rights Agreement, dated as of September 1, 1995, Incorporated by reference to Exhibit 1 to
between the Corporation and First Chicago Trust the Corporation's Registration Statement on
Company of New York, as Rights Agent. Form 8-A filed on September 5, 1995 for the
registration under Section 12(g) of the
Securities Exchange Act of 1934 of Rights to
Purchase the Corporation's Series A
Participating Cumulative Preferred Shares.
4.2 Form of Right Certificate. Incorporated by reference to Exhibit A to
Exhibit 1 to the Corporation's Registration
Statement on Form 8-A filed on September 5,
1995 for the registration under Section
12(g) of the Securities Exchange Act of 1934
of Right to Purchase the Corporation's
Series A Participating Cumulative Preferred
Shares.
5 Opinion of Richard B. Gross, Esq. Filed herewith.
23.1 Consent of PricewaterhouseCoopers LLP Filed herewith.
(formerly Coopers and Lybrand L.L.P.).
23.2 Consent of Richard B. Gross, Esq. Included in Exhibit 5.
24 Powers of Attorney. Included in signature pages of this
Registration Statement.
</TABLE>
II-8
EXHIBIT (5)
[LETTERHEAD OF U.S. TRUST CORPORAITON]
August 20, 1998
The Board of Directors
U.S. Trust Corporation
114 West 47th Street
New York, New York 10036
Ladies and Gentlemen:
I am the duly elected General Counsel of U.S. Trust Corporation (the
"Corporation") and I have acted as its counsel in connection with the
preparation of a registration statement (the "Registration Statement") to be
filed by the Corporation with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), relating
to the registration of 168,000 Common Shares (the "Securities"), par value $1.00
per share, of the Corporation, and related share purchase rights (the "Rights"),
which were or will be acquired by certain former stockholders of Wood Island
Associates, Inc. (the "Selling Shareholders") pursuant to the Stock Purchase
Agreement, dated as of June 5, 1998 (the "Agreement"), by and among U.S. Trust
Company, National Association, the Corporation, Wood Island Associates, Inc. and
the Stockholders of Wood Island Associates, Inc.
For the purposes of this opinion, I have examined such corporate records,
certificates and other documents, and such questions of law, as I have
considered necessary or appropriate. I have relied as to certain matters on oral
or written statements and representations of other officers of the Corporation
and its affiliates, and other sources believed by me to be responsible.
Based on and subject to the foregoing, and to the other qualifications and
limitations set forth herein, I am of the opinion that:
(1) The Securities that have been issued and transferred to the Selling
Shareholders as of the date hereof are, and the Securities to be issued
and transferred to the Selling Shareholders (when issued and
transferred as contemplated by the Agreement and the Registration
Statement) will be, validly issued, fully paid and nonassessable.
(2) Assuming that the rights agreement relating to the Rights has been duly
authorized, executed and delivered by the rights agent thereunder, the
Rights attributable to the Securities have been or will be (as the case
may be) validly issued, fully paid and nonassessable.
In connection with the opinion set forth in paragraph (2) above, I note that the
question of whether the Board of Directors of the Corporation might be required
to redeem the Rights at some future time will depend upon the facts and
circumstances existing at that time and, accordingly, is beyond the scope of my
opinion.
The foregoing opinions are limited to the law of the State of New York and the
federal law of the United States.
I hereby consent to the use of my name under the heading "Validity of Common
Shares" in the prospectus included in the Registration Statement and to the
filing of this opinion as an Exhibit to the Registration Statement. In giving
such consent, I do not thereby admit that I am in the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations of
the Commission promulgated thereunder.
<PAGE>
U.S. Trust Corporation -2-
This opinion is expressed as of the date hereof, and I disclaim any undertaking
to advise you of any subsequent changes in the facts stated or assumed herein or
of any subsequent changes in applicable laws.
Very truly yours,
/s/ Richard B. Gross
- ----------------------
Richard B. Gross
EXHIBIT (23.1)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
on Form S-3 of U.S. Trust Corporation pertaining to the resale of 168,000 shares
by certain selling shareholders, of our report dated January 21, 1998, on our
audits of the consolidated financial statements of U.S. Trust Corporation and
Subsidiaries as of December 31, 1997 and 1996 and, for each of the three years
in the period ended December 31, 1997, which report is included in the Annual
Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
-------------------------------
PricewaterhouseCoopers LLP
New York, New York
August 17, 1998
