As filed with the Securities and Exchange Commission on October 5, 1999
Registration No. 333-
================================================================================
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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<PAGE>
<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)............. 161,485 $77.53125 $12,520,133.91 $3,480.60
========================================================================================================================
<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 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 New York Stock Exchange on September 29, 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.
================================================================================
<PAGE>
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)
October 5, 1999
U.S. TRUST CORPORATION
161,485 COMMON SHARES
(and associated Rights)
This document relates to an offering by the selling shareholders of up to
161,485 common shares of U.S. Trust Corporation.
The selling shareholders acquired the shares offered by this document in
connection with our acquisition of NCT Holdings, Inc. U.S. Trust will not
receive any of the proceeds from the sale of the shares offered by this
document.
The selling shareholders have informed us that they propose to offer the
shares offered by this document from time to time and in any of several
different ways. The selling shareholders may offer shares:
o through brokers in ordinary brokerage transactions,
o to underwriters or dealers in negotiated transactions or
o by a combination of these methods of sale.
The selling shareholders may offer their shares at various prices,
including:
o at fixed prices,
o at market prices at the time of sale,
o at prices related to prevailing market prices or
o at negotiated prices.
U.S. Trust's New York Stock Exchange symbol is "UTC." On October 4, 1999,
the closing price reported on the New York Stock Exchange was $80 5/16 per
share.
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NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED
OF THE SECURITIES TO BE OFFERED UNDER THIS DOCUMENT OR DETERMINED IF THIS
DOCUMENT IS ADEQUATE OR ACCURATE. IT IS ILLEGAL FOR ANYONE TO TELL YOU
OTHERWISE.
THE SECURITIES TO BE OFFERED UNDER THIS DOCUMENT 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 , 1999.
<PAGE>
TABLE OF CONTENTS
PAGE
----
U.S. Trust Corporation .................................................... 2
Where You Can Find More Information ....................................... 3
The Selling Shareholders .................................................. 5
Description of the Rights ................................................. 7
Plan of Distribution ...................................................... 8
Use of Proceeds ........................................................... 9
Cautionary Statement Regarding Forward-Looking Statements ................. 9
Validity of Common Shares ................................................. 10
Experts ................................................................... 10
U.S. TRUST CORPORATION
U.S. Trust is a bank holding company registered under federal law and
incorporated in New York. Through its subsidiaries, U.S. Trust engages in two
principal businesses:
1. Personal Wealth Management Services. U.S. Trust provides a complete
array of financial services for affluent individuals and families.
These services, which we refer to as "personal wealth management
services," include:
o investment management, including domestic and international
equities, fixed income securities and alternative investments,
like venture capital and real estate,
o investment consulting,
o trust and estate administration,
o financial and estate planning and
o private banking.
U.S. Trust has been engaged in the personal wealth management business
since 1853. In 1982, U.S. Trust began expanding its presence beyond its New York
City headquarters. Today, U.S. Trust has offices in nine states and the District
of Columbia. U.S. Trust anticipates that its national expansion will continue
over the next several years.
The cornerstone of U.S. Trust's services to individuals and families is
investment management. At June 30, 1999, personal assets under management were
about $53 billion.
2. Institutional Services. The "institutional services" that U.S. Trust
provides include:
o investment management,
o corporate trust,
o special fiduciary services and
o brokerage services.
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<PAGE>
These services are provided to:
o endowments,
o foundations,
o pension plans and
o other institutional clients.
U.S. Trust's institutional investment management business offers a wide
range of investment options for clients, including balanced portfolios,
specialized domestic and international equity investment styles, structured
investments, real estate, fixed-income vehicles and short-term cash management.
Institutional clients can also utilize U.S. Trust's Excelsior mutual fund
family, which offers all major asset classes. At June 30, 1999, U.S.
Trust managed about $25 billion for its institutional clients.
U.S. Trust's principal competitors are other investment management
companies, brokerage firms, mutual fund companies and banking institutions. No
one competitor or industry dominates the markets in which U.S.
Trust operates.
U.S. Trust's principal subsidiary is United States Trust Company of New
York, a state-chartered bank and trust company. U.S. Trust has other banking and
non-banking subsidiaries with offices located in California, Connecticut,
Florida, New Jersey, North Carolina, Oregon, Pennsylvania, Texas and Washington,
D.C.
U.S. Trust often looks at acquiring other companies. Any future acquisition
could be material, in terms of assets acquired or liabilities assumed, to U.S.
Trust's financial condition. It is possible that an acquisition may result in
dilution of book value and net income per U.S. Trust common share.
U.S. Trust's principal executive offices are located at 114 West 47th
Street, New York, New York 10036 and its telephone number is (212) 852-1000.
WHERE YOU CAN FIND MORE INFORMATION
THE REGISTRATION STATEMENT
We have filed a registration statement with the SEC under the Securities
Act of 1933 that registers the shares of common stock and the associated
preferred stock purchase rights offered by this document. We sometimes refer to
these common shares and associated rights collectively as the "shares offered by
this document." For more information concerning the preferred stock purchase
rights, see "Description of the Rights" on page 7.
The registration statement that we filed with the SEC, including the
attached exhibits and schedules, contains additional relevant information about
U.S. Trust and the shares offered by this document. The SEC allows us to omit
some information included in the registration statement from this document. You
should read the entire registration statement in order to obtain this additional
information.
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<PAGE>
FILINGS WITH THE SEC
In addition, we file reports, proxy statements and other information with
the SEC under the Securities Exchange Act of 1934 on a regular basis. You may
read and copy this information at the following locations of the SEC:
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 SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates. You can obtain more information on the
operation of the SEC's Public Reference Room in Washington, D.C. by calling the
SEC at 1-800-SEC-0330.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers, like U.S. Trust,
who file electronically with the SEC. The address of that site is
http://www.sec.gov.
You can also inspect reports, proxy statements and other information about
U.S. Trust at the offices of the NYSE, 20 Broad Street, New York, New York
10005.
DOCUMENTS INCORPORATED BY REFERENCE
THE SEC ALLOWS US TO "INCORPORATE BY REFERENCE" INFORMATION INTO THIS
DOCUMENT. THIS MEANS THAT WE CAN DISCLOSE IMPORTANT INFORMATION TO YOU BY
REFERRING YOU TO ANOTHER DOCUMENT FILED SEPARATELY WITH THE SEC. This
information incorporated by reference is a part of this document, unless we
provide you with different information in this document.
This document incorporates by reference the documents listed below that we
have previously filed with the SEC. They contain important information about
U.S. Trust and its financial condition.
U.S. TRUST COMMISSION FILINGS
(FILE NO. 0-20469) PERIOD COVERED OR DATE FILED
- ----------------------------- ----------------------------
Annual Report on Form 10-K Year ended December 31, 1998
Quarterly Reports on Form 10-Q Quarters ended March 31, 1999 and
June 30, 1999
The description of common shares set Filed pursuant to Section 12 of the
forth in the Registration Statement Securities Exchange Act of 1934 on
on Form 10 September 5, 1995, including any
amendment or report filed with the
SEC for the purpose of updating the
description
The description of the Rights Filed pursuant to Section 12 of the
associated with U.S. Trust common Securities Exchange Act of 1934 on
shares set forth in the Registration April 13, 1999, including any
Statement on Form 8-A amendment or report filed with the
SEC for the purpose of updating the
description
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<PAGE>
U.S. Trust also incorporates by reference additional documents that we may
file with the SEC between the date of this document and the date that the
offering of the common shares is terminated. These documents include periodic
reports, like Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, other
Current Reports on Form 8-K and proxy statements.
You can obtain any of the documents incorporated by reference in this
document from us or from the SEC through the SEC's web site at the address
above. Documents incorporated by reference are available from us without charge,
excluding any exhibits to those documents unless we specifically incorporated by
reference the exhibit in this document. You can obtain these documents from us
by requesting them in writing or by telephone at the following address or
number:
Corporate Communications Department
U.S. Trust Corporation
114 West 47th Street
New York, New York 10036
Telephone: (212) 852-1000
OTHER INFORMATION
We have not authorized anyone to give you any information about us or this
offering that is different from what we tell you in this document or in any of
the materials that we have incorporated into this document. If anyone gives you
any other information about us, you should not rely on it. If you are in a
jurisdiction where offers to sell, or solicitations of offers to buy, the common
shares 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.
THE SELLING SHAREHOLDERS
The shares offered by this document are being offered by the selling
shareholders named below. The selling shareholders acquired their common shares
as a result of our acquisition of NCT on August 31, 1999. Each of the selling
shareholders is listed below, together with the number of common shares he or
she beneficially owns as of October 4, 1999 and the number of common shares
offered by this document. Because the selling shareholders may not sell all, or
any, of the common shares by means of this document, we do not know the number
each will own after this offering.
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<PAGE>
<TABLE>
<CAPTION>
COMMON SHARES COMMON SHARES
BENEFICIALLY OWNED ON OFFERED BY THIS
SELLING SHAREHOLDERS OCTOBER 4, 1999* DOCUMENT
<S> <C> <C>
Sue W. Cole ...................................... 33,804 30,786
Sue W. Cole, as Custodian
for Suzanne Marie Cole (NCUTMA) ................ 2,016 2,016
Donaldson, Lufkin & Jenrette, as Custodian
for the Sue W. Cole IRA ........................ 4,245 4,245
Donaldson, Lufkin & Jenrette, as Custodian
for W. Gordon Cole ............................. 4,223 4,223
Pamela H. Hassenfelt ............................. 17,791 17,791
Pamela H. Hassenfelt, as Custodian
for Louisa H. Hassenfelt (NCUTA) ............... 4,536 4,536
Pamela H. Hassenfelt, as Custodian
for Molly Fortune Hassenfelt (NCUTA) ........... 4,536 4,536
Pamela H. Hassenfelt, as Custodian
for Alexandra H. Hassenfelt (NCUTA) ............ 4,536 4,536
Pamela H. Hassenfelt, as Custodian
for Adelaide Craig Hassenfelt (NCUTA) .......... 4,536 4,536
Stephen C. Hassenfelt ............................ 88,770 84,260
Stephen C. Hassenfelt, as Custodian
for Stephen Payne Clark (NCUTA) ................ 20 20
TOTAL: ...................................... 169,013 161,485
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<FN>
* Includes common shares beneficially owned through The Employee Stock Ownership Plan
of NCT Holdings, Inc. and U.S. Trust Company of North Carolina. These common
shares are not being offered by this document.
</FN>
</TABLE>
As a result of our acquisition of NCT, NCT is now our subsidiary and North
Carolina Trust Company, which has been renamed U.S. Trust Company of North
Carolina, is now a wholly owned subsidiary of NCT. Each of Ms. Cole and Mr.
Hassenfelt is an officer and director of U.S. Trust Company of North Carolina.
In connection with the acquisition, each of Ms. Cole and Mr. Hassenfelt signed
employment agreements with U.S. Trust and U.S. Trust Company of North Carolina
for five-year terms.
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<PAGE>
DESCRIPTION OF THE RIGHTS
On August 29, 1995, U.S. Trust's board of directors declared a dividend
granting shareholders one "right" for each outstanding U.S. Trust common share
they owned. U.S. Trust gave these rights to shareholders who owned shares on
September 1, 1995. In addition, U.S. Trust issued and will issue one right with
each common share issued after September 1, 1995 and before the distribution
date and with some common shares issued after the distribution date. The
"distribution date" is defined below.
ATTRIBUTES OF THE RIGHTS
If a right becomes exercisable, the owner has the option to purchase from
U.S. Trust 1/200th of a U.S. Trust preferred share, at an initial price of
$75.00. However, until the distribution date:
o the rights cannot be exercised,
o U.S. Trust shareholders will not receive a separate certificate for
the rights and
o the rights will be transferable only with U.S. Trust common shares.
In addition, each right will entitle its holder to purchase for $75.00
common shares with a market value of $150.00 of any company that:
o owns or is controlled by any person who owns more that 20% of the
common shares of U.S. Trust and
o merges with U.S. Trust or purchases more than 50% of the assets of
U.S. Trust.
The rights will expire on September 1, 2005, and U.S. Trust can redeem them
before that time.
THE DISTRIBUTION DATE
The "distribution date" is the earliest date on which either of the
following occurs:
o any person, other than persons related to U.S. Trust, or group
acquires, or obtains the rights to acquire, beneficial ownership of
20% or more of U.S. Trust's common shares that are then outstanding,
or
o in the case of a potential acquisition by any person, other than some
persons related to U.S. Trust, of beneficial ownership of 25% or more
of U.S. Trust's outstanding common shares, the tenth day after the
earliest to occur of particular filings with U.S. Trust's regulators
that indicate a possible change in control.
EFFECT OF THE RIGHTS
The rights will not prevent a takeover of U.S. Trust. They may, however,
make a takeover of U.S. Trust by another entity less likely. You can find a
complete description of the rights and the related preferred shares in U.S.
Trust's Registration Statement on Form 8-A, dated April 13, 1999, for the
registration of the rights. This document incorporates by reference the
information contained in the 8-A Registration Statement. We have only summarized
the rights in this document, therefore you should read the full description of
the rights to gain a complete understanding of their effect on U.S. Trust and
its shareholders.
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<PAGE>
PLAN OF DISTRIBUTION
METHODS OF DISTRIBUTION BY SELLING SHAREHOLDERS
The selling shareholders have informed us that they propose to offer for
sale the shares offered by this document from time to time and in several
different ways. For example, they may make sales:
o on the New York Stock Exchange,
o on another stock exchange or interdealer quotation system on which our
common shares are quoted or listed at the time,
o through negotiated transactions or
o otherwise at prices related to prevailing market prices or at
negotiated prices.
From time to time, one or more of the selling shareholders may offer the
shares offered by this document through brokers, dealers or agents, who may
receive compensation in the form of concessions or commissions from the selling
shareholders, agents and/or the purchasers for whom they may act as agent.
PREPARATION OF AN ADDITIONAL PROSPECTUS
If necessary, we will prepare another document to describe the method of
sale in greater detail. As of the date of this document, we do not know of any
arrangements by the selling shareholders to sell their shares, nor do we know
which brokerage firms the selling shareholders may select to sell their shares.
In addition, the selling shareholders may sell their shares without the aid of a
registration statement if they follow SEC rules.
PARTIES THAT MAY BE DEEMED UNDERWRITERS
The selling shareholders and any brokers, dealers or agents that
participate in the distribution of the shares offered by this document may be
considered "underwriters." If the selling shareholders are considered
underwriters, any profits on the sale of common shares by them and any
associated discounts or commissions may be considered underwriting compensation.
In addition, if a selling shareholder is considered an underwriter, that selling
shareholder may be subject to liability for misstatements and omissions in the
registration statement relating to this document.
REGULATION OF SALES BY SELLING SHAREHOLDERS
The selling shareholders and any other person participating in a sale or
distribution of the shares offered by this document will be subject to
applicable provisions of the Securities Exchange Act of 1934, which is the
federal statute regulating sales of securities. Some SEC rules and regulations,
including some limitations on activities during securities offerings and
anti-fraud provisions, may limit when the selling shareholders, or any other
person, may sell or purchase the common shares.
In some jurisdictions, the securities laws require that the shares offered
by this document be offered or sold only through registered or licensed brokers
or dealers. In addition, in some 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.
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<PAGE>
EXPENSES
We will not receive any part of the proceeds from the sale of the shares
offered by this document. We will bear all expenses we incur in registering the
shares with the SEC. Each of the selling shareholders will pay his or her own
expenses, including brokerage commissions, personal legal fees or similar
expenses, in offering and selling his or her shares.
USE OF PROCEEDS
We will not receive any proceeds from the sales of the shares offered by
this document, but we will bear some of the expenses. See "Plan of Distribution
- - Expenses" above for a description of the payment of expenses.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This document contains statements that anticipate or plan for the future.
These forward-looking statements include statements about our future business
plans and strategies, financial condition and results of operations, and other
statements that are not historical. These statements may be:
o made directly in this document or
o "incorporated by reference" to other documents U.S. Trust files with
the SEC.
You can find many of these statements by looking for words like "believes,"
"expects," "anticipates" and "estimates" and for similar expressions.
Because forward-looking statements involve assumptions and future risks and
uncertainties, there are factors that could cause the actual results to differ
materially from those expressed or implied. For example, a few uncertainties
that could affect the accuracy of forward-looking statements include:
o competitive pressures in the investment or asset management, corporate
fiduciary or private banking industries may increase significantly,
o general economic or business conditions, both domestic and foreign,
may be less favorable than expected, resulting in lower than expected
revenues, among other things,
o financial market performance, both domestic and foreign, may be less
favorable or more volatile than expected, resulting in lower than
expected revenues, among other things,
o legislative or regulatory changes may adversely affect the businesses
in which U.S. Trust engages,
o necessary technological changes, including changes to address "Year
2000" data systems issues, may be more difficult or expensive to make
than anticipated or Year 2000 issues at other companies may adversely
affect operations and
o adverse changes may occur in the securities markets.
You should not unduly rely on these forward-looking statements, which are
correct only as of the date of this document or the date of any document
incorporated by reference.
If either U.S. Trust or NCT, or any person acting on our behalf, makes any
subsequent written or oral forward-looking statements, these statements are
qualified in total by the cautionary statements contained or referred to in this
section. U.S. Trust undertakes no obligation to release publicly any revisions
to these
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<PAGE>
forward-looking statements to reflect events or circumstances after the date of
this document or to reflect the occurrence of unanticipated events.
VALIDITY OF COMMON SHARES
The validity of the shares being offered by this document has been passed
upon for U.S. Trust by our General Counsel, Richard B. Gross, Esq. Mr. Gross
beneficially owns less than 1% of the outstanding common shares of U.S. Trust.
EXPERTS
The consolidated balance sheets of U.S. Trust as of December 31, 1998 and
1997, 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, 1998, included in U.S. Trust's 1998 Annual Report on
Form 10-K are incorporated by reference in this document in reliance upon the
report of PricewaterhouseCoopers LLP, independent auditors, incorporated by
reference in this document upon the authority of said firm as experts in
accounting and auditing.
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<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:
Registration Statement Filing Fee............... $ 3,480.60
Legal Fees and Expenses......................... 10,000.00
Accounting Fees and Expenses.................... 10,000.00
Printing Costs.................................. N/A
Miscellaneous Fees and Expenses................. 0
Total........................................... $23,480.60
-----------
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
II-1
<PAGE>
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.
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
II-2
<PAGE>
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.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT NO. DESCRIPTION
- ---------- -----------
4.1 Rights Agreement, dated as of September 1, 1995, between U.S.
Trust and First Chicago Trust Company of New York, as Rights
Agent. (Incorporated by reference to Exhibit 1 to U.S. Trust'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 U.S. Trust's Series
A Participating Cumulative Preferred Shares (the "8-A").)
4.2 Specimen certificate representing Rights to Purchase U.S.
Trust'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.)
5.1 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 5.1.)
24.1 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
II-3
<PAGE>
(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.
(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
II-4
<PAGE>
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-5
<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 October 4, 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 or her behalf,
and in his or her name and in his or her 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 U.S. Trust, 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
II-6
<PAGE>
SIGNATURE TITLE
--------- --------
/s/ Eleanor Baum
- -------------------------------
Eleanor Baum Director
/s/ Samuel C. Butler
- -------------------------------
Samuel C. Butler Director
/s/ Peter O. Crisp
- -------------------------------
Peter O. Crisp Director
/s/ Philippe de Montebello
- -------------------------------
Philippe de Montebello Director
/s/ Robert E. Denham
- -------------------------------
Robert E. Denham Director
/s/ Antonia M. Grumbach
- -------------------------------
Antonia M. Grumbach Director
/s/ Peter L. Malkin
- -------------------------------
Peter L. Malkin Director
/s/ Jeffrey S. Maurer
- ------------------------------- President, Chief Operating
Jeffrey S. Maurer Officer and Director
/s/ David A. Olsen
- -------------------------------
David A. Olsen Director
/s/ Carl H. P Pforzheimer, III
- -------------------------------
Carl H. P Pforzheimer, III Director
II-7
<PAGE>
SIGNATURE TITLE
--------- --------
/s/ Maribeth S. Rahe
- -------------------------------
Maribeth S. Rahe Vice Chairman of the Board and Director
/s/ Philip L. Smith
- -------------------------------
Philip L. Smith Director
/s/ John Hoyt Stookey
- -------------------------------
John Hoyt Stookey Director
/s/ Frederick B. Taylor
- -------------------------------
Frederick B. Taylor Vice Chairman of the Board, Chief Investment
Officer and Director
/s/ Robert N. Wilson
- -------------------------------
Robert N. Wilson Director
/s/ Ruth A. Wooden
- -------------------------------
Ruth A. Wooden Director
Dated: October 4, 1999
II-8
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION LOCATION
- ---------- ---------- --------
<S> <C> <C>
4.1 Rights Agreement, dated as of September 1, Incorporated by reference to Exhibit 1 to
1995, between U.S. Trust and First Chicago U.S. Trust's Registration Statement on
Trust Company of New York, as Rights Form 8-A filed on September 5, 1995 for
Agent. the registration under Section 12(g) of the
Securities Exchange Act of 1934 of Rights
to Purchase U.S. Trust's Series A
Participating Cumulative Preferred Shares.
4.2 Form of Right Certificate. Incorporated by reference to Exhibit A to
Exhibit 1 to U.S. Trust'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 U.S. Trust's
Series A Participating Cumulative
Preferred Shares.
5.1 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 5.1.
24.1 Powers of Attorney. Included in signature pages of this
Registration Statement.
</TABLE>
II-9
EXHIBIT (5.1)
[LETTERHEAD OF U.S. TRUST CORPORATION]
October 5, 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 Managing Director and General Counsel of U.S. Trust
Corporation, a New York corporation (the "Corporation"). I am delivering this
opinion to you in connection with a registration statement (the "Registration
Statement") to be filed by the Corporation with the Securities and Exchange
Commission (the "Commission") on or about October 5, 1999, under the Securities
Act of 1933, as amended (the "Act"). The Registration Statement relates to the
registration of 161,485 common shares of the Corporation, par value $1.00 per
share (the "Securities"), and related share purchase rights (the "Rights"),
which were acquired by former shareholders (the "Selling Shareholders") of NCT
Holdings, Inc., a North Carolina corporation ("NCT"), pursuant to the Agreement
and Plan of Merger, dated as of May 14, 1999, among the Corporation, NCT and NCT
Holdings Acquisition Company (the "Agreement").
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 officers and other representatives
of the Corporation and others whom I believe 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 have been 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
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 express no opinion as to the effect of the
laws of any other jurisdiction.
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
Managing Director and 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 161,485 shares by
certain selling shareholders, of our report dated January 20, 1999, on our
audits of the consolidated financial statements of U.S. Trust Corporation and
Subsidiaries as of December 31, 1998 and 1997, and for each of the three years
in the period ended December 31, 1998, which report is included in U.S. Trust's
Annual Report on Form 10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
New York, New York
October 4, 1999
