As filed with the Securities and Exchange Commission on February 10, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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)
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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
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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
<S> <C> <C> <C> <C>
Common Shares, par value $1.00
per share (and associated Rights
to Purchase Series A
Participating Cumulative
Preferred Shares)............. 226,476 $73.4375 $16,631,831.25 $4,700
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<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 purchase of assets
and merger 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 February 9, 1999).
</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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RED HERRING TEXT
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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 February 10, 1999
U.S. TRUST CORPORATION
226,476 COMMON SHARES
(and associated Rights)
This prospectus relates to an offering by certain shareholders of up to 226,476
Common Shares, par value $1.00 per share, of U.S. Trust Corporation (a New York
corporation).
The shares offered by this prospectus are being acquired by the selling
shareholders in connection with our acquisitions of Strategic Trading
Corporation and Radnor Capital Management, Inc. The selling shareholders have
already acquired a part of these shares. Some of the selling shareholders may
acquire the remaining shares over time, if conditions relating to the
acquisition of Radnor Capital Management are met. U.S. Trust Corporation will
not receive any of the proceeds from the sale of the shares.
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.
U.S. Trust Corporation's Nasdaq National Market symbol is "USTC". On February 9,
1999, the closing price reported on the Nasdaq National Market was $72.9375 per
share.
Brokers, dealers and underwriters that participate in the distribution of the
shares may be deemed to be underwriters under the Securities Act of 1933. 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 FEBRUARY 10, 1999.
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TABLE OF CONTENTS
PAGE
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The Corporation ............................................................ 2
Where You Can Find More Information ........................................ 2
Selling Shareholders ....................................................... 4
Description of the Rights .................................................. 6
Plan of Distribution ....................................................... 6
Use of Proceeds ............................................................ 7
Forward-looking Statements ................................................. 8
Validity of Common Shares .................................................. 9
Experts .................................................................... 9
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 September 30, 1998, the Corporation had assets under management of
approximately $65 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 http://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".)
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.
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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:
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
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, June
30, 1998 and September 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.
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
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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").
Some of the Selling Shareholders have acquired their Shares as the result of our
acquisition, on December 31, 1998, of the assets of Strategic Trading
Corporation ("STC"). Each of these Selling Shareholders (the "STC SHAREHOLDERS")
is listed below, together with the number of the Corporation's Common Shares he
or she owns as of February 10, 1999. All of these shares were acquired in the
STC acquisition. Because the STC Shareholders may not sell all (or even any) of
their Shares by means of this prospectus, the number each will own after this
offering is unknown.
COMMON SHARES
STC SELLING SHAREHOLDERS BENEFICIALLY OWNED ON
FEBRUARY 10, 1999
Mark Caccavo .................................................. 2,658
Robert Garrett, IV ............................................ 30,309
Jay Luby ...................................................... 20,206
TOTAL: ................................................... 53,173
Mark Caccavo, Robert Garrett and Jay Luby are now officers of a subsidiary of
the Corporation. In connection with the STC acquisition, each of Mr. Garrett and
Mr. Luby entered into employment agreements (both of which have five-year terms)
with this subsidiary.
The other Selling Shareholders are acquiring their Shares as a result of our
acquisition, on January 29, 1999, of Radnor Capital Management, Inc. ("RCM").
Each of these Selling Shareholders (the "RCM SHAREHOLDERS") is listed below,
together with the number of the Corporation's Common Shares he or she owns as of
February 10, 1999. All of these shares were acquired in the RCM acquisition.
Each of the RCM Selling Shareholders may also receive additional Common Shares
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in connection with the RCM acquisition. These Shares are also being offered by
this prospectus, but their total amount (as well as the amount to be offered by
each RCM Selling Shareholder) is not certain at this time. Because the RCM
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 each will own after this offering is
unknown.
COMMON SHARES
RCM SELLING SHAREHOLDERS BENEFICIALLY OWNED ON
FEBRUARY 10, 1999
Pierce Archer ........................................... 6,975
Wheat, First Securities, Inc.
as Custodian for the Pierce Archer IRA .................. 3,371
Robert C. Bodine, Jr .................................... 24,240
Jennifer Byrne .......................................... 2,850
Wheat, First Securities, Inc. ........................... 1,095
as Custodian for the Jennifer Byrne IRA
Jeffrey Dillman ......................................... 1,844
Wheat, First Securities, Inc. ........................... 842
as Custodian for the Jeffrey Dillman IRA
Maris A. Ogg ............................................ 32,629
Wheat, First Securities, Inc.
as Custodian for the Maris A. Ogg IRA ................... 2,528
Douglas Pyle ............................................ 1,836
Berkeley T. Rulon-Miller ................................ 2,334
Sam Sparhawk, III ....................................... 11,211
Susan Treffeisen ........................................ 1,685
Gerhard T. Van Arkel .................................... 3,330
Wheat, First Securities, Inc.
as Custodian for the Gerhard T. Van Arkel IRA ........... 1,685
Dale Weigand ............................................ 2,517
Wheat, First Securities, Inc.
as Custodian for the Dale Weigand IRA ................... 632
TOTAL: ............................................. 101,604
As a result of the RCM acquisition, RCM is now our subsidiary. Mr. Archer, Mr.
Bodine and Ms. Ogg are officers, and Ms. Ogg is a director of, RCM. In
connection with the RCM transaction, each of Mr. Archer, Mr. Bodine, Ms. Byrne,
Mr. Dillman, Ms. Ogg, Mr. Pyle, Mr. Sparhawk, Mr. Van Arkel and Mr. Weigand
entered into employment agreements (the majority of which have five-year terms)
with RCM.
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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. The
Rights will expire on September 1, 2005, and we can redeem them before that
time.
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 earliest 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.
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:
o on the Nasdaq Stock Market,
o on another interdealer quotation system or stock exchange on which the
Common Shares are quoted or listed at the time,
o through negotiated transactions or
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o 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, we will prepare another prospectus 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."
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.
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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.
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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:
Registration Statement Filing Fee .......................... $ 4,700
Legal Fees and Expenses .................................... 10,000
Accounting Fees and Expenses ............................... 10,000
Printing Costs ............................................. N/A
Miscellaneous Fees and Expenses ............................ 0
Total ...................................................... $24,700
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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.
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.
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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 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.
II-2
<PAGE>
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 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.
II-3
<PAGE>
(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 February 10,
1999.
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
- ------------------------------- Chairman of the Board and Director
H. Marshall Schwarz (Principal Executive Officer)
/s/ John L. Kirby
- ------------------------------- Treasurer and Chief Financial Officer
John L. Kirby
/s/ Richard E. Brinkmann
- ------------------------------- Comptroller and Chief Planning Officer
Richard E. Brinkmann
II-5
<PAGE>
SIGNATURE TITLE
--------- --------
/s/ Eleanor Baum
- ------------------------------- Director
Eleanor Baum
/s/ Samuel C. Butler
- ------------------------------- Director
Samuel C. Butler
/s/ Peter O. Crisp
- ------------------------------- Director
Peter O. Crisp
/s/ Philippe de Montebello
- ------------------------------- Director
Philippe de Montebello
/s/ Robert E. Denham
- ------------------------------- Director
Robert E. Denham
/s/ Antonia M. Grumbach
- ------------------------------- Director
Antonia M. Grumbach
/s/ Frederic C. Hamilton
- ------------------------------- Director
Frederic C. Hamilton
/s/ Peter L. Malkin
- ------------------------------- Director
Peter L. Malkin
/s/ Jeffrey S. Maurer
- ------------------------------- President, Chief Operating Officer
Jeffrey S. Maurer and Director
/s/ David A. Olsen
- ------------------------------- Director
David A. Olsen
II-6
<PAGE>
SIGNATURE TITLE
--------- --------
/s/ Carl H. Pforzheimer, III
- ------------------------------- Director
Carl H. Pforzheimer, III
/s/ Maribeth S. Rahe
- ------------------------------- Vice Chairman of the Board
Maribeth S. Rahe and Director
/s/ Philip L. Smith
- ------------------------------- Director
Philip L. Smith
- ------------------------------- Director
John Hoyt Stookey
/s/ Frederick B. Taylor
- ------------------------------- Vice Chairman of the Board, Chief
Frederick B. Taylor Investment Officer and Director
/s/ Robert N. Wilson
- ------------------------------- Director
Robert N. Wilson
/s/ Ruth A. Wooden
- ------------------------------- Director
Ruth A. Wooden
Dated: February 10, 1999
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 the
between the Corporation and First Chicago Trust 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 CORPORATION]
February 8, 1999
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 226,476 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 (1) former shareholders (the "STC
Shareholders") of Strategic Trading Corporation, a New York corporation ("STC"),
pursuant to the Agreement and Plan of Reorganization, dated as of December 31,
1998, among STC, United States Trust Company of New York, the Corporation,
Robert Garrett, IV and Jay Luby (the "STC Agreement") and (2) certain former
shareholders (the "Radnor Shareholders") of Radnor Capital Management, Inc., a
Pennsylvania corporation ("Radnor"), pursuant to the Agreement and Plan of
Merger, dated as of November 25, 1998, and as amended as of January 28, 1999,
among the Corporation, Radnor and the Radnor Shareholders (the "Radnor
Agreement"). The Radnor Agreement, together with the STC Agreement, shall be
referred to herein as the "Agreements." The Radnor Shareholders, together with
the STC Shareholders, shall be referred to herein as the "Selling Shareholders".
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 Agreements 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 law.
Very truly yours,
/s/ Richard B. Gross
Richard B. Gross
General Counsel
U.S. Trust Corporation
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 226,476 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
Corporation's Annual Report on Form 10-K for the year ended December 31, 1997.
/s/PricewaterhouseCoopers LLP
------------------------------
PricewaterhouseCoopers LLP
New York, New York
February 10, 1999
