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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_______________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) March 8, 1994
The Bank of New York Company, Inc.
(Exact name of registrant as specified in charter)
New York 1-6152 13-2614959
(State or other (Commission (IRS employer
jurisdiction file number) identification no.)
of incorporation)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (212) 495-1784
N/A
(Former name or former address, if changed since last report)
Exhibit Index is on Page 12.
Page 1 of 19 Pages
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ITEM 5. OTHER EVENTS
On December 10, 1985, the Board of Directors of The Bank of
New York Company, Inc., a New York corporation (the "Company"), declared a
dividend distribution of one right (a "Right") for each outstanding share
of Common Stock, par value $7.50 per share (the "Common Stock"), of the
Company held of record on December 24, 1985 or issued thereafter and prior
to the Separation Date (as hereinafter defined). Each Right was or will be
issued pursuant to a Rights Agreement, dated as of December 10, 1985 (the
"Rights Agreement"), entered into between the Company and The Bank of New
York, as Rights Agent (the "Rights Agent"). On June 13, 1989, the Company
and the Rights Agent entered into a First Amendment, dated as of June 13,
1989 (the "Amendment"), to the Rights Agreement. On April 30, 1993, the
Company and the Rights Agent entered into a Second Amendment, dated as of
April 30, 1993 (the "Second Amendment"), to the Rights Agreement. On
March 8, 1994, the Company and the Rights Agent entered into a Third
Amendment, dated as of March 8, 1994 (the "Third Amendment"), to the Rights
Agreement. The terms of the Rights, as so amended, are summarized herein.
Each Right entitles the registered holder to purchase from the
Company, after the Separation Date (as defined below), one one-thousandth
of a share of a new series of preferred stock designated as Participating
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Preferred Stock, without par value (the "Preferred Stock"), for a price of
$200 (the "Exercise Price"), subject to adjustment. Each share of
Preferred Stock will bear dividends equal to one thousand times the
dividends paid on each share of Common Stock of the Company (subject to
certain anti-dilution adjustments), is entitled to a liquidation preference
of $200,000 plus accrued dividends and has the other terms provided in the
form of Certificate of Amendment attached as Exhibit A to the Rights
Agreement.
The Rights will be evidenced by the Common Stock certificates
until the earlier of (i) the tenth day after the first date of public
announcement that a Person (as defined in the Rights Agreement) has become
the Beneficial Owner (as defined in the Rights Agreement) of 20% or more of
the outstanding shares of Common Stock (such person being called an
"Acquiring Person" and such first date being called a "Stock Acquisition
Date") and (ii) the earlier of the tenth day (or such later date as the
Board of Directors of the Company may fix by resolution adopted prior to
the close of business on the Separation Date that would otherwise have
occurred) after (x) the date of approval under the Bank Holding Company Act
of 1956, or the date of the notice of nondisapproval under the Change in
Bank Control Act, for any Person to acquire (when added to any shares as to
which such Person is the Beneficial Owner immediately prior to such
acquisition) Beneficial Ownership
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of 25% or more of the outstanding shares of Common Stock and (y) the date
of commencement of, or first public announcement of the intent of any
Person (other than the Company, any wholly-owned subsidiary of the Company,
or any employee stock ownership or other employee benefit plan of the
Company or any wholly-owned subsidiary of the Company) to commence, a
tender or exchange offer to acquire (when added to any shares as to which
such Person is the Beneficial Owner immediately prior to such tender or
exchange offer) Beneficial Ownership of 20% or more of the outstanding
shares of Common Stock (the earliest of such dates being called the
"Separation Date"). The Rights Agreement provides that, until the
Separation Date, the Rights will be transferred with and only with the
Common Stock. As soon as practicable following the Separation Date,
separate certificates evidencing the Rights ("Rights Certificates") will be
mailed to holders of record of Common Stock on the Separation Date.
The Rights will not be exercisable until the Separation Date.
The Rights will expire on the earliest of (i) the time at which the Rights
are exchanged for Common Stock or Preferred Stock as described below,
(ii) the time at which the Rights are redeemed as described below, and
(iii) the close of business on March 7, 2004.
The Exercise Price and number of Rights are subject to
adjustment prior to the Separation Date, in order
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to retain the relationship of one Right per associated share of Common
Stock, in the event of a dividend, subdivision, combination or
reclassification of the Common Stock.
Prior to expiration of the Rights, the Company may not
(a) consolidate with or merge with or into or engage in any binding share
exchange with any other person or have any other person consolidate with or
merge with or into or engage in any binding share exchange with the Company
if, in connection therewith, all or part of the Common Stock of the Company
is changed in any way or is converted into or exchanged for stock or other
securities or cash or other property, (b) sell or otherwise transfer (or
allow one or more of its subsidiaries to sell or otherwise transfer) assets
(i) aggregating more than 50% of the assets (measured by book value),
(ii) aggregating more than 50% of the assets (measured by fair market
value) or (iii) generating more than 50% of the operating income or cash
flow, of the Company and its subsidiaries (taken as a whole) to any other
Person (other than the Company or a wholly-owned subsidiary of the Company)
or to two or more such Persons which are affiliated, (c) engage in certain
transactions with Acquiring Persons, or (d) permit certain events to occur
at such time as there shall be an Acquiring Person (all as specified in
Section 1.1(j) of the Rights Agreement) (any such transaction or event
specified in clauses (a) through (d) above being called a "Flip-over
Transaction or Event"),
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unless in any such case provision is made so that each holder of a Right
shall thereafter have the right to receive, upon the exercise thereof at
one-half of the then current Exercise Price of the Right, a number of
shares of publicly traded common stock of the Acquiring Person or the
person engaging in the transaction (or an affiliate or associate thereof)
which at the time of such transaction would have a market value equal to
the Exercise Price of the Right.
The Rights Agreement also provides that if any Person becomes
the Beneficial Owner of 20% or more of the outstanding shares of Common
Stock, then proper provision shall be made so that, on and after the tenth
day after a Stock Acquisition Date that is not the result of a Flip-over
Transaction or Event (a "Flip-in Date"), each holder of Rights (other than
Rights Beneficially Owned by an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined in the Rights
Agreement), which Rights become void) will thereafter have the right to
receive upon exercise of each Right that number of shares of Common Stock
having a market value of twice the Exercise Price (as defined in the Rights
Agreement). The Exercise Price is currently $200, subject to adjustment as
provided in the Rights Agreement. In addition, the Board of Directors of
the Company may, at its option, at any time after a Flip-in Date and prior
to the time that an Acquiring
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Person becomes the Beneficial Owner of more than 50% of the outstanding
shares of Common Stock, elect to exchange all (but not less than all) the
then outstanding Rights (other than the Rights Beneficially Owned by the
Acquiring Person or any Affiliate or Associate thereof) for shares of
Common Stock at an exchange ratio (the "Exchange Ratio") of one share of
Common Stock per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the Separation Date.
Immediately upon such action by the Board of Directors, the right to
exercise the Rights will terminate and each Right will thereafter represent
only the right to receive a number of shares of Common Stock equal to the
Exchange Ratio.
Whenever the Company shall become obligated under the preceding
paragraph to issue shares of Common Stock upon exercise of or in exchange
for Rights, the Company, at its option, may substitute therefor shares of
Preferred Stock, at a ratio of one one-thousandth of a share of Preferred
Stock for each share of Common Stock so issuable.
The Company may, at its election, issue depositary receipts in
lieu of fractional shares.
The Board of Directors of the Company may, at its option, at
any time prior to the close of business on a Flip-in Date, elect to redeem
the then outstanding Rights at a price, subject to adjustment, of $.05 in
cash per Right. Immediately upon the action of the Board of Directors
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electing to redeem the Rights (or, if the resolution of the Board of
Directors electing to redeem the Rights states that the redemption will
not be effective until the occurrence of a specified future time or
event, upon the occurrence of such future time or event), without any
further action and without notice, the right to exercise the Rights will
terminate and each Right will thereafter represent only the right to
receive the redemption price in cash.
The holders of the Rights will, solely by reason of their
ownership of Rights, have no rights as shareholders of the Company,
including, without limitation, the right to vote or to receive dividends.
The Rights will not prevent a takeover of the Company. The
Rights, however, may have certain anti-takeover effects. The Rights may
cause substantial dilution to a person or group that acquires 20% or more
of the Common Stock unless the Rights are first redeemed by the Board of
Directors of the Company. Accordingly, the Rights should encourage a
potential acquiror to seek to negotiate with the Board of Directors of the
Company, which would then be in a better position to protect the interests
of the Company and its shareholders. The Rights should not interfere with
a transaction that is in the best interests of the Company and its
shareholders on or prior to the close of business on the Flip-in Date,
because the Rights can be redeemed before the consummation of such
transaction.
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The Rights Agreement, the First Amendment, the Second Amendment
and the Third Amendment have been filed as exhibits hereto and are
incorporated herein by reference. The foregoing summary description of the
Rights and the terms of the Preferred Stock is qualified in its entirety by
reference to such exhibits.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
(21)(a) Third Amendment, dated as of March 8, 1994, to the Rights
Agreement, dated as of December 10, 1985, between the Company
and The Bank of New York, as Rights Agent.
(21)(b) Second Amendment, which includes a Certificate of Amendment to
the Certificate of Incorporation as Exhibit 1 and an amended
Form of Rights Certificate as Exhibit 2, dated as of April 30,
1993, to the Rights Agreement, dated as of December 10, 1985,
as amended by the First Amendment to the Rights Agreement,
dated as of June 13, 1989, between the Company and The Bank of
New York, as Rights Agent (incorporated by reference to the
amendment on Form 8-A/A dated April 30, 1993, amending the
registration statement on Form 8-A dated December 18, 1985 of
the Company).
(21)(c) First Amendment, dated as of June 13, 1989, to the Rights
Agreement, dated as of December 10, 1985, between the Company
and The Bank of New York, as Rights Agent (incorporated by
reference to the amendment on Form 8 dated June 14, 1985
amending the registration statement on Form 8-A dated
December 18, 1985 of the Company).
(21)(d) Rights Agreement, dated as of December 10, 1985, between the
Company and The Bank of New York, as Rights
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Agent (incorporated by reference to the registration statement
on Form 8-A dated December 18, 1985 of the Company).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
The Bank of New York Company, Inc.
Date: March 22, 1994 By /s/ Charles E. Rappold, II
Name: Charles E. Rappold, II
Title: Secretary
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EXHIBIT INDEX
Sequential
Exhibit No. Description Page No.
(4)(a) Third Amendment, dated as of March 8,
1994, to the Rights Agreement, dated as
of December 10, 1985, between the
Company and The Bank of New York, as
Rights Agent.
(4)(b) Second Amendment, dated as of April 30,
1993, to the Rights Agreement, dated as
of December 10, 1985, as amended by the
First Amendment to the Rights
Agreement, dated as of June 13, 1989,
between the Company and The Bank of New
York, as Rights Agent (incorporated by
reference to the amendment on
Form 8-A/A dated April 30, 1993,
amending the registration statement on
Form 8-A dated December 18, 1985 of the
Company).
(4)(c) First Amendment, dated as of June 13,
1989, to the Rights Agreement, dated as
of December 10, 1985, between the
Company and The Bank of New York, as
Rights Agent (incorporated by reference
to the amendment on Form 8 dated
June 14, 1989 amending the registration
statement on Form 8-A dated
December 18, 1985 of the Company).
(4)(d) Rights Agreement, dated as of
December 10, 1985, between the Company
and The Bank of New York, as Rights
Agent (incorporated by reference to the
registration statement on Form 8-A
dated December 18, 1985 of the
Company).
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Exhibit 4(a)
THIRD AMENDMENT
THIRD AMENDMENT (this "Amendment"), dated as of March 1994,
to the Rights Amendment, dated as of December 10, 1985 and as previously
amended on June 13, 1989 and April 30, 1993 (the "Rights Amendment"),
between The Bank of New York Company, Inc., a New York corporation (the
"Company"), and The Bank of New York, a New York banking corporation, as
Rights Agent (the "Rights Agent", which term shall include any successor
Rights Agent under the Rights Agreement).
W I T N E S S E T H:
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement; and
WHEREAS, pursuant to Section 5.5 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement or amend the
Rights Agreement in accordance with the provisions of such Section 5.5; and
WHEREAS, all actions necessary to make this Amendment a valid
agreement, enforceable according to its terms have been taken, and the
execution and delivery of this Amendment by the Company and the Rights
Agent have been in all respects duly authorized by the Company and the
Rights Agent.
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NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements set forth herein, the Company and the Rights Agent agree
as follows:
1. Section 1.1(h) of the Rights Agreement is amended to read
in its entirety as follows:
"(h) 'Expiration Time' shall mean the earliest of
(i) the time at which the right to exercise Rights
shall terminate pursuant to Section 3.2(c);
(ii) the Redemption Time; and (iii) the close of
business on March 7, 2004."
2. The Summary of Terms of the Rights Agreement is replaced
and superseded for all purposes by Exhibit 1 hereto.
3. Governing Law. This Amendment shall be deemed to be a
contract made under the laws of the State of New York and for all purposes
shall be governed by and construed in accordance with the laws of such
state applicable to contracts to be made and performed entirely within such
state.
4. continuing Effect. Except as herein above expressly
provided, all provisions of the Rights Agreement, as previously amended,
shall continue in full force and effect.
5. Counterparts. This Amendment may be executed in one or
more counterparts all of which shall be considered one and the same
instrument and shall become effective as of the date hereof when one or
more counterparts have been signed by each of the parties and delivered to
each of the other parties.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
Attest: THE BANK OF NEW YORK
COMPANY, INC.
/s/ Charles Rappold By: /s/ Alan R. Griffith
THE BANK OF NEW YORK
By: /s/ Jacqueline R. McSwiggan
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AMENDED PREFERRED STOCK PURCHASE RIGHTS PLAN
Exhibit 1 to Third Amendment
EXHIBIT C
The following summary is not
complete and is qualified in its
entirety by the Rights Agreement and the
First, Second and Third Amendments thereto, copies
of which can be obtained from the Rights Agent,
The Bank of New York.
Summary of Terms
Dividend: The Board of Directors of the Company
originally declared a dividend of one
preferred stock purchase Right for each
outstanding share of Common Stock, which
was payable to shareholders of record on
December 24, 1985. The Rights Agreement
governing the terms of the Rights has been
amended as of June 13, 1989, as of April
30, 1993 and as of March 8, 1994. The
Rights will not be separable from the
Common Stock prior to the Separation Date
(discussed below) and until then
certificates for shares of Common Stock
will also represent a similar number of
Rights.
Separation Date: Rights initially separate from the Common
Stock and become exercisable on the tenth
day after the earliest of: (a) the date a
person (a broadly defined term) acquires
beneficial ownership (a broadly defined
term) of 20% or more of the Common Stock,
(b) the date of approval (or such later
date as the Board may fix) under the Bank
Holding Company Act or the date of notice
of nondisapproval under the Change in Bank
Control Act for any person to acquire
beneficial ownership of 25% or more of the
Common Stock, or (c) the date a person
commences or makes a public announcement
of an intent to commence a tender or
exchange offer to acquire beneficial
ownership of 20% or more of the Common
Stock (or such later date as the Board of
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Directors may fix). Upon the occurrence
of the Separation Date, the Company will
mail certificates evidencing the Rights to
the Company's shareholders.
Preferred Stock Each Right entitles the holder after the
Purchasable Pursuant Separation Date to purchase, for $200 (the
to the Rights: "Exercise Price"), 1/1000th of a share of
a new issue of participating preferred
stock ("Preferred Stock"). The Preferred
Stock will have a liquidation value of
$200,000 per share and will bear dividends
equal to the dividends on 1000 share of
Common Stock.
"Flip-in" Trigger: If any person acquires 20% of more of the
outstanding Common Stock, then:
(i) Rights owned by the person acquiring
such stock or transferees thereof
will automatically be void; and
(ii) each other Right will automatically
become a right to buy, for the
Exercise Price, that number of
shares of Common Stock or Preferred
Stock having a market value of twice
the Exercise Price.
Exchange Feature: If any person acquires between 20% and 50%
of the outstanding Common Stock, the Board
may, in lieu of allowing Rights to be
exercised, require each outstanding Right
to be exchanged for one share of Common
Stock or 1/1000 of a share of Preferred
Stock.
"Flip-over" Trigger: After any person has acquired 20% of more
of the outstanding Common Stock, the
Company may not consolidate or merge with,
or sell 50% or more of its assets or
earning power to, any person, or be a
party to certain "self-dealing" trans-
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actions, unless proper provision is made
so that each Right would thereafter become
a right to buy, for one-half the Exercise
Price, that number of shares of Common
Stock of such other person having a market
value equal to the Exercise Price.
Transferability Until the Separation Date, Rights are
of the Rights: transferable only with the transfer of
Common Stock. After the initial exercise
date, Rights will be separately
transferable, but only on the registry
books of the Rights Agent.
Redemption of Rights are redeemable at the Company's
the Rights: option for $0.05 per Right; provided that
the Board may not redeem the rights
following the tenth day after any person
acquires beneficial ownership of 20% or
more of the Company's Common Stock.
Expiration of The Rights will expire on the earliest of
the Rights: (i) the time at which the right to
exercise Rights shall terminate pursuant
to Section 3.2(c); (ii) the Redemption
Time and (iii) the close of business on
March 7, 2004.
Amendment of Terms The terms of the Rights may be amended
of Rights: without consent of the holders, provided
the amendment does not adversely affect
the interests of those holders.
Voting Rights: Rights have no voting rights.
Antidilution Rights have the benefit of certain
Provisions: customary antidilution provisions.
