<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1996
REG. NO. 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
BNY CAPITAL I
BNY CAPITAL II
BNY CAPITAL III
BNY CAPITAL IV
BNY CAPITAL V
THE BANK OF NEW YORK COMPANY, INC. (EXACT NAME OF EACH REGISTRANT AS
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS TRUST AGREEMENTS)
SPECIFIED IN ITS CHARTER)
NEW YORK DELAWARE
(STATE OR OTHER JURISDICTION (STATE OR OTHER JURISDICTION OF
OFINCORPORATION OR ORGANIZATION) INCORPORATION OR ORGANIZATION OF
EACH REGISTRANT)
13-2614959 EACH TO BE APPLIED FOR
(I.R.S. EMPLOYER IDENTIFICATION NO.) (I.R.S. EMPLOYER IDENTIFICATION NO.)
C/O THE BANK OF NEW YORK COMPANY,
48 WALL STREET INC.
NEW YORK, NEW YORK 10286 48 WALL STREET
(212) 495-1784 NEW YORK, NEW YORK 10286
(ADDRESS, INCLUDING ZIP CODE, AND (212) 495-1784
TELEPHONE NUMBER, INCLUDING AREA (ADDRESS, INCLUDING ZIP CODE, AND
CODE, OF REGISTRANT'S PRINCIPAL TELEPHONE NUMBER, INCLUDING AREA
EXECUTIVE OFFICES) CODE, OF EACH REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES)
----------------
PHEBE C. MILLER, SECRETARY
THE BANK OF NEW YORK COMPANY, INC.
ONE WALL STREET
NEW YORK, NEW YORK 10286
TEL: (212) 635-1643 FAX: (212) 635-1698
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE OF EACH REGISTRANT)
WITH COPIES TO:
MARK J. WELSHIMER, ESQ. JONATHAN ROD, ESQ.
SULLIVAN & CROMWELL MILBANK, TWEED, HADLEY & MCCLOY
125 BROAD STREET ONE CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10004 NEW YORK, NEW YORK 10005
TEL: (212) 558-4000 TEL: (212) 530-5000
FAX: (212) 558-3588 FAX: (212) 530-5219
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: from time
to time after the 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 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. [_]
----------------
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 SAID SECTION 8(a), MAY DETERMINE.
(table and footnotes continued on next page)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
(continued from previous page)
---------------
CALCULATION OF REGISTRATION FEE
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- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Junior Subordinated
Deferrable Interest
Debentures of The Bank
of New York Company,
Inc.(2)............... $500,000,000 $25 $500,000,000 N/A
- ----------------------------------------------------------------------------------------------
Preferred Securities of
BNY Capital I,
BNY Capital II, BNY
Capital III, BNY
Capital IV and BNY
Capital V............. 20,000,000 shs. $25 $500,000,000 $151,515.15
- ----------------------------------------------------------------------------------------------
The Bank of New York
Company, Inc.
Guarantees with respect
to Preferred
Securities(3)(4)...... N/A N/A N/A N/A
- ----------------------------------------------------------------------------------------------
Total.................. $500,000,000(5) 100% $500,000,000(5) $151,515.15
- ----------------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the registration fee.
(2) The Junior Subordinated Deferrable Interest Debentures will be purchased
by BNY Capital I, BNY Capital II, BNY Capital III, BNY Capital IV and BNY
Capital V with the proceeds of the sale of the Preferred Securities.
(3) No separate consideration will be received for The Bank of New York
Company, Inc. Guarantees.
(4) This Registration Statement is deemed to cover the Junior Subordinated
Deferrable Interest Debentures of The Bank of New York Company, Inc., the
rights of holders of Junior Subordinated Deferrable Interest Debentures of
The Bank of New York Company, Inc., under the Indenture, the rights of
holders of Preferred Securities of BNY Capital I, BNY Capital II, BNY
Capital III, BNY Capital IV and BNY Capital V under each Trust Agreement,
the rights of holders of the Preferred Securities under the Guarantees,
the Expense Agreements entered into by The Bank of New York Company, Inc.
and certain backup undertakings as described herein.
(5) Such amount represents the principal amount of Junior Subordinated
Deferrable Interest Debentures issued at their principal amount and the
issue price rather than the principal amount of Junior Subordinated
Deferrable Interest Debentures issued at an original issue discount. Such
amount represents the initial public offering price of the BNY Capital I,
BNY Capital II, BNY Capital III, BNY Capital IV and BNY Capital V
Preferred Securities.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. NEITHER THIS PROSPECTUS SUPPLEMENT NOR THE PROSPECTUS TO +
+WHICH IT RELATES SHALL CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN +
+OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN +
+WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO +
+REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED , 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 1996
PREFERRED SECURITIES
BNY CAPITAL I
% PREFERRED SECURITIES,
SERIES A PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
THE BANK OF NEW YORK COMPANY, INC.
-----------
The % Preferred Securities, Series A (the "Series A Preferred Securities"),
offered hereby represent beneficial interests in BNY Capital I, a trust formed
under the laws of the State of Delaware (the "Series A Issuer"). The Bank of
New York Company, Inc., a New York corporation (the "Corporation"), will be the
owner of all of the beneficial interests represented by common securities of
the Series A Issuer ("Series A Common Securities" and,
(Continued on next page)
-----------
SEE "RISK FACTORS" BEGINNING ON PAGE S-4 HEREOF FOR CERTAIN INFORMATION
RELEVANT TO AN INVESTMENT IN THE SERIES A PREFERRED SECURITIES.
-----------
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR
THE PROSPECTUS TO WHICH IT RELATES. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-----------
<TABLE>
<CAPTION>
PROCEEDS TO
INITIAL PUBLIC UNDERWRITING THE SERIES A
OFFERING PRICE COMMISSION(1) ISSUER(2)(3)
-------------- ------------- ------------
<S> <C> <C> <C>
Per Preferred Security............... $ (2) $
Total................................ $ (2) $
</TABLE>
- -----
(1) The Series A Issuer and the Corporation have each agreed to indemnify the
several Underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, as amended. See "Underwriting."
(2) In view of the fact that the proceeds of the sale of the Series A Preferred
Securities will be invested in the Series A Subordinated Debentures, the
Corporation has agreed to pay to the Underwriters as compensation
("Underwriters' Compensation") for their arranging the investment therein
of such proceeds $. per Series A Preferred Securities (or $ in the
aggregate). See "Underwriting."
(3) Expenses of the offering which are payable by the Corporation are estimated
to be $ .
(4) The Series A Issuer has granted the Underwriters an option exercisable for
10 days to purchase up to an additional Series A Preferred Securities at
the initial public offering price per Series A Preferred Securities solely
to cover over-allotments, if any. If such option is exercised in full, the
total initial public offering price and proceeds to the Series A Issuer
will be $ and $ , respectively, and the total Underwriters'
Compensation paid by the Corporation for arranging the investment will be
$ . See "Underwriting".
-----------
The Series A Preferred Securities offered hereby are offered severally by the
Underwriters, as specified herein, subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that the Series A Preferred Securities will be ready for delivery in
book-entry form only through the facilities of The Depository Trust Company in
New York, New York, on or about , 1996, against payment therefor in
immediately available funds.
-----------
The date of this Prospectus Supplement is , 1996.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SERIES A
PREFERRED SECURITIES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT
ANY TIME.
----------------
(cover page continued)
collectively with the Series A Preferred Securities, the "Series A
Securities"). The First National Bank of Chicago is the Property Trustee of
the Series A Issuer. The Series A Issuer exists for the sole purpose of
issuing the Series A Securities and investing the proceeds thereof in %
Junior Subordinated Deferrable Interest Debentures, Series A (the "Series A
Subordinated Debentures"), to be issued by the Corporation. The Series A
Subordinated Debentures will mature on , 2026, which date may be (i)
shortened to a date not earlier than , 2001 or (ii) extended to a date
not later than , 2045, in each case if certain conditions are met
(including, in the case of a shortening of the Stated Maturity (as defined
herein), the Corporation having received prior approval of the Board of
Governors of the Federal Reserve System (the "Federal Reserve") to do so if
such approval is then required under applicable capital guidelines or policies
of the Federal Reserve). The Series A Preferred Securities will have a
preference under certain circumstances with respect to cash distributions and
amounts payable on liquidation, redemption or otherwise over the Series A
Common Securities. See "Description of Preferred Securities--Subordination of
Common Securities" in the accompanying Prospectus.
Holders of the Series A Preferred Securities will be entitled to receive
preferential cumulative cash distributions accruing from the date of original
issuance and payable quarterly in arrears on the last day of March, June,
September and December of each year, commencing , 199 , at the annual
rate of % of the Liquidation Amount of $25 per Series A Preferred Securities
("Distributions"). The Corporation has the right to defer payment of interest
on the Series A Subordinated Debentures at any time or from time to time for a
period not exceeding 20 consecutive quarters with respect to each deferral
period (each, an "Extension Period"), provided that no Extension Period may
extend beyond the Stated Maturity of the Series A Subordinated Debentures.
Upon the termination of any such Extension Period and the payment of all
amounts then due, the Corporation may elect to begin a new Extension Period
subject to the requirements set forth herein. If interest payments on the
Series A Subordinated Debentures are so deferred, Distributions on the Series
A Preferred Securities will also be deferred and the Corporation will not be
permitted, subject to certain exceptions described herein, to declare or pay
any cash distributions with respect to the Corporation's capital stock or debt
securities of the Corporation that rank pari passu with or junior to the
Series A Subordinated Debentures. During an Extension Period, interest on the
Series A Subordinated Debentures will continue to accrue (and the amount of
Distributions to which holders of the Series A Preferred Securities are
entitled will accumulate) at the rate of % per annum, compounded quarterly,
and holders of Series A Preferred Securities will be required to accrue
interest income for United States federal income tax purposes. See "Certain
Terms of Series A Subordinated Debentures--Option to Extend Interest Payment
Period" and "Certain Federal Income Tax Consequences--Interest Income and
Original Issue Discount."
The Corporation has, through the Series A Guarantee, the Trust Agreement,
the Series A Subordinated Debentures, the Indenture and the Expense Agreement
(each as defined herein), taken together, fully, irrevocably and
unconditionally guaranteed all of the Series A Issuer's obligations under the
Series A Preferred Securities. See "Relationship Among the Preferred
Securities, the Corresponding Junior Subordinated Debentures and the
Guarantees--Full and Unconditional Guarantee" in the accompanying Prospectus.
The Series A Guarantee of the Corporation guarantees the payment of
Distributions and payments on liquidation or redemption of the Series A
Preferred Securities, but only in each case to the extent of funds held by the
Series A Issuer, as described herein
S-2
<PAGE>
(the "Series A Guarantee"). See "Description of Guarantees" in the
accompanying Prospectus. If the Corporation does not make interest payments on
the Series A Subordinated Debentures held by the Series A Issuer, the Series A
Issuer will have insufficient funds to pay Distributions on the Series A
Preferred Securities. The Series A Guarantee does not cover payment of
Distributions when the Series A Issuer does not have sufficient funds to pay
such Distributions. In such event, a holder of Series A Preferred Securities
may institute a legal proceeding directly against the Corporation to enforce
payment of such Distributions to such holder. See "Description of Junior
Subordinated Debentures--Enforcement of Certain Rights By Holders of Preferred
Securities" in the accompanying Prospectus. The obligations of the Corporation
under the Series A Guarantee and the Series A Preferred Securities are
subordinate and junior in right of payment to all Senior Debt (as defined in
"Description of Junior Subordinated Debentures--Subordination" in the
accompanying Prospectus) of the Corporation.
The Series A Preferred Securities are subject to mandatory redemption, in
whole or in part, upon repayment of the Series A Subordinated Debentures at
maturity or their earlier redemption. Subject to the Corporation having
received prior approval of the Federal Reserve to do so if such approval is
then required under applicable capital guidelines or policies of the Federal
Reserve, the Series A Subordinated Debentures are redeemable prior to maturity
at the option of the Corporation (i) on or after , 2001, in whole at any
time or in part from time to time, or (ii) at any time, in whole (but not in
part), upon the occurrence and continuation of a Tax Event (as defined
herein), in each case at a redemption price equal to the accrued and unpaid
interest on the Series A Subordinated Debentures so redeemed to the date fixed
for redemption, plus 100% of the principal amount thereof. See "Certain Terms
of Series A Preferred Securities--Redemption."
The Corporation will have the right at any time to terminate the Series A
Issuer and cause the Series A Subordinated Debentures to be distributed to the
holders of the Series A Preferred Securities in liquidation of the Series A
Issuer, subject to the Corporation having received prior approval of the
Federal Reserve to do so if such approval is then required under applicable
capital guidelines or policies of the Federal Reserve. See "Certain Terms of
Series A Preferred Securities--Liquidation of Series A Issuer and Distribution
of Series A Subordinated Debentures to Holders."
The Series A Subordinated Debentures are unsecured and subordinated to all
Senior Debt of the Corporation (which, as defined herein, includes both senior
and subordinated indebtedness for money borrowed).
In the event of the termination of the Series A Issuer, after satisfaction
of liabilities to creditors of the Series A Issuer as required by applicable
law, the holders of the Series A Preferred Securities will be entitled to
receive a Liquidation Amount of $25 per Series A Preferred Securities plus
accumulated and unpaid Distributions thereon to the date of payment, which may
be in the form of a distribution of such amount in Series A Subordinated
Debentures, subject to certain exceptions. See "Description of Preferred
Securities--Liquidation Distribution Upon Termination" in the accompanying
Prospectus.
Application will be made to list the Series A Preferred Securities on the
New York Stock Exchange under the symbol " ". If the Series A Subordinated
Debentures are distributed to the holders of Series A Preferred Securities
upon the liquidation of the Series A Issuer, the Corporation will use its best
efforts to list the Series A Subordinated Debentures on the New York Stock
Exchange or such other stock exchanges or other automated quotation systems,
if any, on which the Series A Preferred Securities are then listed or traded.
The Series A Preferred Securities will be represented by global certificates
registered in the name of The Depository Trust Company ("DTC") or its nominee.
Beneficial interests in the Series A Preferred Securities will be shown on,
and transfers thereof will be effected only through, records maintained by
participants in DTC. Except as described in the accompanying Prospectus,
Series A Preferred Securities in certificated form will not be issued in
exchange for the global certificates. See "Book-Entry Issuance" in the
accompanying Prospectus.
S-3
<PAGE>
The information in this Prospectus Supplement supplements and should be read
in conjunction with the information contained in the accompanying Prospectus.
As used herein, (i) the "Indenture" means the Junior Subordinated Indenture,
as amended and supplemented from time to time, between the Corporation and The
First National Bank of Chicago, as trustee (the "Debenture Trustee"), and (ii)
the "Trust Agreement" means the Amended and Restated Trust Agreement relating
to the Series A Issuer among the Corporation, as Depositor, The First National
Bank of Chicago as Property Trustee (the "Property Trustee"), First Chicago
Delaware Inc. as Delaware Trustee (the "Delaware Trustee"), and the
Administrative Trustees named therein (collectively, with the Property Trustee
and Delaware Trustee, the "Issuer Trustees"). Each of the other capitalized
terms used in this Prospectus Supplement and not otherwise defined in this
Prospectus Supplement has the meaning set forth in the accompanying
Prospectus.
RISK FACTORS
Prospective purchasers of the Series A Preferred Securities should carefully
review the information contained elsewhere in this Prospectus Supplement and
in the accompanying Prospectus and should particularly consider the following
matters.
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE SERIES A GUARANTEE AND THE
SERIES A SUBORDINATED DEBENTURES
The obligations of the Corporation under the Series A Guarantee issued by
the Corporation for the benefit of the holders of Series A Preferred
Securities are unsecured and rank subordinate and junior in right of payment
to all Senior Debt of the Corporation. The obligations of the Corporation
under the Series A Subordinated Debentures are subordinate and junior in right
of payment to all such Senior Debt of the Corporation. "Senior Debt" is
defined for this purpose to include, generally described, all indebtedness for
money borrowed, including junior or subordinated indebtedness, that is not
expressly by its terms pari passu with or junior in interest to the Series A
Subordinated Debentures. At September 30, 1996, the aggregate outstanding
Senior Debt of the Corporation was approximately $2.5 billion. Because the
Corporation is a holding company, the right of the Corporation to participate
in any distribution of assets of any subsidiary, including The Bank of New
York, The Bank of New York (Delaware) and The Bank of New York (NJ), upon such
subsidiary's liquidation or reorganization or otherwise (and thus the ability
of holders of the Series A Preferred Securities to benefit indirectly from
such distribution), is subject to the prior claims of creditors of that
subsidiary, except to the extent that the Corporation may itself be recognized
as a creditor of that subsidiary. Accordingly, the Series A Subordinated
Debentures will be effectively subordinated to all existing and future
liabilities of the Corporation's subsidiaries, and holders of Series A
Subordinated Debentures should look only to the assets of the Corporation for
payments on the Series A Subordinated Debentures. See "The Corporation." None
of the Indenture, the Series A Guarantee or the Trust Agreement places any
limitation on the amount of secured or unsecured debt, including Senior Debt,
that may be incurred by the Corporation. See "Description of Guarantees--
Status of the Guarantees" and "Description of Junior Subordinated Debentures--
Subordination" in the accompanying Prospectus.
The ability of the Series A Issuer to pay amounts due on the Series A
Preferred Securities is solely dependent upon the Corporation making payments
on the Series A Subordinated Debentures as and when required.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES
So long as no Event of Default under the Indenture has occurred or is
continuing, the Corporation has the right under the Indenture to defer the
payment of interest on the Series A Subordinated Debentures at any time or
from time to time for a period not exceeding 20 consecutive quarters with
respect to each Extension Period, provided that no Extension Period may extend
beyond the Stated
S-4
<PAGE>
Maturity of the Series A Subordinated Debentures. As a consequence of any such
deferral, quarterly Distributions on the Series A Preferred Securities by the
Series A Issuer will be deferred (and the amount of Distributions to which
holders of the Series A Preferred Securities are entitled will accumulate
additional Distributions thereon at the rate of % per annum, compounded
quarterly from the relevant payment date for such Distributions) during any
such Extension Period. During any such Extension Period, the Corporation may
not, and may not permit any subsidiary of the Corporation to (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Corporation's capital stock or
(ii) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Corporation (including other
Junior Subordinated Debentures) that rank pari passu with or junior in
interest to the Series A Subordinated Debentures or make any guarantee
payments with respect to any guarantee by the Corporation of the debt
securities of any subsidiary of the Corporation if such guarantee ranks pari
passu with or junior in interest to the Series A Subordinated Debentures
(other than (a) dividends or distributions in common stock of the Corporation,
(b) any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under any Guarantee and (d) purchases of common stock related to
the issuance of common stock or rights under any of the Corporation's benefit
plans for its directors, officers or employees). Prior to the termination of
any such Extension Period, the Corporation may further defer the payment of
interest, provided that no Extension Period may exceed 20 consecutive quarters
or extend beyond the Stated Maturity of the Series A Subordinated Debentures.
Upon the termination of any Extension Period and the payment of all interest
then accrued and unpaid (together with interest thereon at the annual rate of
%, compounded quarterly, to the extent permitted by applicable law), the
Corporation may elect to begin a new Extension Period subject to the above
requirements. There is no limitation on the number of times that the
Corporation may elect to begin an Extension Period. See "Certain Terms of
Series A Preferred Securities--Distributions" and "Certain Terms of Series A
Subordinated Debentures--Option to Extend Interest Payment Period."
Should an Extension Period occur, a holder of Series A Preferred Securities
will accrue income (in the form of original issue discount) in respect of its
pro rata share of the Series A Subordinated Debentures held by the Series A
Issuer for United States federal income tax purposes. As a result, a holder of
Series A Preferred Securities will include such income in gross income for
United States federal income tax purposes in advance of the receipt of cash,
and will not receive the cash related to such income from the Series A Issuer
if the holder disposes of the Series A Preferred Securities prior to the
record date for the payment of Distributions. See "Certain Federal Income Tax
Consequences--Interest Income and Original Issue Discount" and "--Sale or
Redemption of Series A Preferred Securities."
The Corporation has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the Series A
Subordinated Debentures. However, should the Corporation elect to exercise
such right in the future, the market price of the Series A Preferred
Securities is likely to be affected. A holder that disposes of its Series A
Preferred Securities during an Extension Period, therefore, might not receive
the same return on its investment as a holder that continues to hold its
Series A Preferred Securities.
TAX EVENT--REDEMPTION
Upon the occurrence and continuation of a Tax Event, the Corporation has the
right to redeem the Series A Subordinated Debentures in whole (but not in
part) within 90 days following the occurrence of such Tax Event and therefore
cause a mandatory redemption of the Series A Preferred
S-5
<PAGE>
Securities before, as well as after, , 2001. The exercise of such right
is subject to the Corporation having received prior approval of the Federal
Reserve to do so if such approval is then required under applicable guidelines
or policies of the Federal Reserve.
A "Tax Event" means the receipt by the Series A Issuer of an opinion of
counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of issuance
of the Series A Preferred Securities under the Trust Agreement, there is more
than an insubstantial risk that (i) the Series A Issuer is, or will be within
90 days of the date of such opinion, subject to United States Federal income
tax with respect to income received or accrued on the Series A Subordinated
Debentures, (ii) interest payable by the Corporation on the Series A
Subordinated Debentures is not, or within 90 days of such opinion, will not
be, deductible by the Corporation, in whole or in part, for United States
Federal income tax purposes, or (iii) the Series A Issuer is, or will be
within 90 days of the date of the opinion, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
See "Risk Factors--Possible Tax Law Changes Affecting the Series A Preferred
Securities" for a discussion of certain legislative proposals that, if
adopted, could give rise to a Tax Event, which may permit the Corporation to
cause a redemption of the Series A Preferred Securities prior to , 2001.
EXCHANGE OF SERIES A PREFERRED SECURITIES FOR SERIES A SUBORDINATED DEBENTURES
The Corporation will have the right at any time to terminate the Series A
Issuer and cause the Series A Subordinated Debentures to be distributed to the
holders of the Series A Preferred Securities in liquidation of the Series A
Issuer. The exercise of such right is subject to the Corporation having
received prior approval of the Federal Reserve if such approval is then
required under applicable capital guidelines or policies of the Federal
Reserve. See "Certain Terms of Series A Preferred Securities--Liquidation of
Series A Issuer and Distribution of Series A Subordinated Debentures to
Holders."
SHORTENING OF STATED MATURITY OF SERIES A SUBORDINATED DEBENTURES
The Corporation will have the right at any time to shorten the maturity of
the Series A Subordinated Debentures to a date not earlier than , 2001.
The exercise of such right is subject to the Corporation having received prior
approval of the Federal Reserve if such approval is then required under
applicable capital guidelines or policies of the Federal Reserve.
EXTENSION OF STATED MATURITY OF SERIES A SUBORDINATED DEBENTURES
The Corporation will also have the right to extend the maturity of the
Series A Subordinated Debentures whether or not the Series A Issuer is
terminated and the Series A Subordinated Debentures are distributed to holders
of the Series A Preferred Securities to a date no later than the 49th
anniversary of the initial issuance of the Series A Preferred Securities,
provided that the Corporation can extend the maturity only if at the time such
election is made and at the time of such extension (i) the Corporation is not
in bankruptcy, otherwise insolvent or in liquidation, (ii) the Corporation is
not in default in the payment of any interest or principal on the Series A
Subordinated Debentures, (iii) the Series A Issuer is not in arrears on
payments of Distributions on the Series A Preferred Securities and no deferred
Distributions are accumulated and (iv) the Series A Subordinated Debentures
are rated not less than BBB- by Standard & Poor's Ratings Services or Baa3 by
Moody's Investor Service, Inc. or the equivalent by any other nationally
recognized statistical rating organization.
S-6
<PAGE>
MARKET PRICES
There can be no assurance as to the market prices for Series A Preferred
Securities or Series A Subordinated Debentures that may be distributed in
exchange for Series A Preferred Securities if a liquidation of the Series A
Issuer occurs. Accordingly, the Series A Preferred Securities that an investor
may purchase, whether pursuant to the offer made hereby or in the secondary
market, or the Series A Subordinated Debentures that a holder of Series A
Preferred Securities may receive on liquidation of the Series A Issuer, may
trade at a discount to the price that the investor paid to purchase the Series
A Preferred Securities offered hereby. As a result of the existence of the
Corporation's right to defer interest payments, the market price of the Series
A Preferred Securities (which represent preferred beneficial interests in the
Series A Issuer) may be more volatile than the market prices of other
securities on which original issue discount accrues that are not subject to
such deferrals. In addition, because the Corporation has the right (i) to
shorten the Stated Maturity of the Series A Subordinated Debentures (subject
to prior approval of the Federal Reserve if such approval is then required
under applicable guidelines or policies of the Federal Reserve) or (ii) to
extend the maturity of the Series A Subordinated Debentures (subject to the
conditions described above), there can be no assurance that the Corporation
will not exercise its option to change the maturity of the Series A
Subordinated Debentures as permitted by the terms thereof and of the
Indenture. If the Corporation does exercise such option, there can be no
assurance that the shortening or extending of the maturity of the Series A
Subordinated Debentures will not have an effect on the market price of the
Series A Preferred Securities. Because holders of Series A Preferred
Securities may receive Series A Subordinated Debentures on termination of the
Series A Issuer, prospective purchasers of Series A Preferred Securities are
also making an investment decision with regard to the Series A Subordinated
Debentures and should carefully review all the information regarding the
Series A Subordinated Debentures contained herein. See "Certain Terms of the
Series A Subordinated Debentures" and "Description of Junior Subordinated
Debentures--Corresponding Junior Subordinated Debentures" in the accompanying
Prospectus.
RIGHTS UNDER THE SERIES A GUARANTEE; DIRECT ACTION
The Series A Guarantee will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The First
National Bank of Chicago will act as the indenture trustee under the Series A
Guarantee (the "Guarantee Trustee") for the purposes of compliance with the
Trust Indenture Act and will hold the Series A Guarantee for the benefit of
the holders of the Series A Preferred Securities. The First National Bank of
Chicago will also act as Debenture Trustee for the Series A Subordinated
Debentures and as Property Trustee under the Trust Agreement and First Chicago
Delaware Inc. will act as Delaware Trustee under the Trust Agreement. The
Series A Guarantee guarantees to the holders of the Series A Preferred
Securities the following payments, to the extent not paid by the Series A
Issuer: (i) any accumulated and unpaid Distributions required to be paid on
the Series A Preferred Securities, to the extent that the Series A Issuer has
funds on hand available therefor at such time, (ii) the redemption price with
respect to any Series A Preferred Securities called for redemption, to the
extent that the Series A Issuer has funds on hand available therefor at such
time, and (iii) upon a voluntary or involuntary dissolution, winding-up or
liquidation of the Series A Issuer (unless the Series A Subordinated
Debentures are distributed to holders of the Series A Preferred Securities),
the lesser of (a) the aggregate of the Liquidation Amount and all accumulated
and unpaid Distributions to the date of payment to the extent that the Series
A Issuer has funds on hand available therefor at such time and (b) the amount
of assets of the Series A Issuer remaining available for distribution to
holders of the Series A Preferred Securities. The holders of not less than a
majority in aggregate liquidation amount of the Series A Preferred Securities
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of the
Series A Guarantee or to direct the exercise of any trust power conferred upon
the Guarantee Trustee under the Series A Guarantee. Any holder of the Series A
Preferred Securities may institute a legal proceeding directly against the
Corporation to enforce its rights under the Series A Guarantee without first
instituting a legal proceeding against the Series A
S-7
<PAGE>
Issuer, the Guarantee Trustee or any other person or entity. If the
Corporation were to default on its obligation to pay amounts payable under the
Series A Subordinated Debentures, the Series A Issuer would lack funds for the
payment of Distributions or amounts payable on redemption of the Series A
Preferred Securities or otherwise, and, in such event, holders of the Series A
Preferred Securities would not be able to rely upon the Series A Guarantee for
payment of such amounts. Instead, in the event a Debenture Event of Default
shall have occurred and be continuing and such event is attributable to the
failure of the Corporation to pay interest on or principal of the Series A
Subordinated Debentures on the payment date on which such payment is due and
payable, then a holder of Series A Preferred Securities may institute a legal
proceeding directly against the Corporation for enforcement of payment to such
holder of the principal of or interest on such Series A Subordinated
Debentures having a principal amount equal to the aggregate Liquidation Amount
of the Series A Preferred Securities of such holder (a "Direct Action"). In
connection with such Direct Action, the Corporation will have a right of set-
off under the Indenture to the extent of any payment made by the Corporation
to such holder of Series A Preferred Securities in the Direct Action. Except
as described herein, holders of Series A Preferred Securities will not be able
to exercise directly any other remedy available to the holders of the Series A
Subordinated Debentures or assert directly any other rights in respect of the
Series A Subordinated Debentures. See "Description of Junior Subordinated
Debentures--Enforcement of Certain Rights by Holders of Preferred Securities"
and "--Debenture Events of Default" and "Description of Guarantees" in the
accompanying Prospectus. The Trust Agreement provides that each holder of
Series A Preferred Securities by acceptance thereof agrees to the provisions
of the Series A Guarantee and the Indenture.
LIMITED VOTING RIGHTS
Holders of Series A Preferred Securities will generally have limited voting
rights relating only to the modification of the Series A Preferred Securities
and the exercise of the Series A Issuer's rights as holder of Series A
Subordinated Debentures and the Guarantees. Holders of Series A Preferred
Securities will not be entitled to vote to appoint, remove or replace the
Property Trustee or the Delaware Trustee, and such voting rights are vested
exclusively in the holder of the Series A Common Securities except upon the
occurrence of certain events described herein. The Property Trustee, the
Administrative Trustees and the Corporation may amend the Trust Agreement
without the consent of holders of Series A Preferred Securities to ensure that
the Series A Issuer will be classified for United States federal income tax
purposes as a grantor trust even if such action adversely affects the
interests of such holders. See "Description of Preferred Securities--Voting
Rights; Amendment of Each Trust Agreement" and "--Removal of Issuer Trustees"
in the accompanying Prospectus.
TRADING CHARACTERISTICS OF SERIES A PREFERRED SECURITIES
Application will be made to list the Series A Preferred Securities on the
New York Stock Exchange. The Series A Preferred Securities may trade at prices
that do not fully reflect the value of accrued but unpaid interest with
respect to the underlying Series A Subordinated Debentures. A holder of Series
A Preferred Securities that disposes of its Series A Preferred Securities
between record dates for payments of Distributions (and consequently does not
receive a Distribution from the Series A Issuer for the period prior to such
disposition) will nevertheless be required to include accrued but unpaid
interest on the Series A Subordinated Debentures through the date of
disposition in income as ordinary income and to add such amount to its
adjusted tax basis in the Series A Preferred Securities disposed of. Such
holder will recognize a capital loss to the extent the selling price (which
may not fully reflect the value of accrued but unpaid interest) is less than
its adjusted tax basis (which will include accrued but unpaid interest).
Subject to certain limited exceptions, capital losses cannot be applied to
offset ordinary income for United States federal income tax purposes. See
"Certain Federal Income Tax Consequences--Sale or Redemption of Series A
Preferred Securities."
As indicated above, application will be made to list the Series A Preferred
Securities on the New York Stock Exchange. If the Series A Preferred
Securities are not listed on a national securities exchange or the NASDAQ
National Market and the underwriters do not make a market for the securities,
the liquidity of the Series A Preferred Securities could be adversely
affected.
S-8
<PAGE>
POSSIBLE TAX LAW CHANGES AFFECTING THE SERIES A PREFERRED SECURITIES
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill") was
released which would, among other things, generally deny interest deductions
for interest on an instrument issued by a corporation that has a maximum
weighted average maturity of more than 40 years. The Bill would also generally
deny interest deductions for interest on an instrument issued by a corporation
that has a maximum term of more than 20 years and that is not shown as
indebtedness on the separate balance sheet of the issuer or, where the
instrument is issued to a related party (other than a corporation), where the
holder or some other related party issues a related instrument that is not
shown as indebtedness on the issuer's consolidated balance sheet. If either
provision were to apply to the Series A Subordinated Debentures, the
Corporation would be unable to deduct interest on the Series A Subordinated
Debentures. However, on March 29, 1996, the Chairmen of the Senate Finance and
House Ways and Means Committees issued a joint statement to the effect that it
was their intention that the effective date of the President's legislative
proposals, if adopted, will be no earlier than the date of appropriate
Congressional action. Under current law, the Corporation will be able to
deduct interest on the Series A Subordinated Debentures. There can be no
assurance, however, that current or future legislative proposals or final
legislation will not affect the ability of the Corporation to deduct interest
on the Series A Subordinated Debentures. Such a change could give rise to a
Tax Event, which may permit the Corporation, upon approval of the Federal
Reserve if such approval is then required under applicable capital guidelines
or policies of the Federal Reserve, to cause a redemption of the Series A
Preferred Securities before, , 2001. See "Certain Terms of Series A
Subordinated Debentures--Redemption" in this Prospectus Supplement and
"Description of Preferred Securities--Redemption or Exchange--Tax Event
Redemption" in the accompanying Prospectus. See also "Certain Federal Income
Tax Consequences--Possible Tax Law Changes."
BNY CAPITAL I
BNY Capital I is a statutory business trust formed under Delaware law
pursuant to (i) the Trust Agreement executed by the Corporation, as Depositor,
The First National Bank of Chicago, as Property Trustee, First Chicago
Delaware Inc., as Delaware Trustee, and the Administrative Trustees named
therein, and (ii) the filing of a certificate of trust with the Delaware
Secretary of State on November 12, 1996. The Series A Issuer's business and
affairs are conducted by the Issuer Trustees: The First National Bank of
Chicago, as Property Trustee, and First Chicago Delaware Inc., as Delaware
Trustee, and two individual Administrative Trustees who are employees or
officers of or affiliated with the Corporation. The Series A Issuer exists for
the exclusive purposes of (i) issuing and selling the Series A Securities,
(ii) using the proceeds from the sale of Series A Securities to acquire Series
A Subordinated Debentures issued by the Corporation and (iii) engaging in only
those other activities necessary, advisable or incidental thereto (such as
registering the transfer of the Series A Securities). Accordingly, the Series
A Subordinated Debentures will be the sole assets of the Series A Issuer, and
payments under the Series A Subordinated Debentures will be the sole revenue
of the Series A Issuer. All of the Series A Common Securities will be owned by
the Corporation. The Series A Common Securities will rank pari passu, and
payments will be made thereon pro rata, with the Series A Preferred
Securities, except that upon the occurrence and continuance of an event of
default under the Trust Agreement resulting from an Event of Default under the
Indenture, the rights of the Corporation as holder of the Series A Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of the Series A Preferred Securities. See "Description of Preferred
Securities--Subordination of Common Securities" in the accompanying
Prospectus. The Corporation will acquire Series A Common Securities in an
aggregate liquidation amount equal to 3% of the total capital of the Series A
Issuer. The Series A Issuer has a term of 55 years, but may terminate earlier
as provided in the Trust Agreement. The principal executive office of the
Series A Issuer is 48 Wall Street, New York, New York 10286, Attention:
Secretary, and its telephone number is (212) 495-1784. See "The Issuers" in
the accompanying Prospectus.
S-9
<PAGE>
THE CORPORATION
The Corporation is a bank holding company subject to the regulation and
supervision of the Federal Reserve Board under the Bank Holding Company Act of
1956, as amended ("BHC Act"). The Corporation is also subject to regulation by
the New York State Banking Department. Its principal wholly-owned banking
subsidiaries are The Bank of New York (the "Bank"), The Bank of New York
(Delaware) and The Bank of New York (NJ) ("BNYNJ"). The Corporation provides a
complete range of banking and other financial services to corporations and
individuals worldwide through its core businesses: Corporate Banking, Retail
Banking, Credit Cards, Securities and Other Processing, Trust, Investment
Management and Private Banking and Financial Market Services. At September 30,
1996, the Corporation had consolidated total assets of approximately $52.4
billion, consolidated total deposits of approximately $36.6 billion and
consolidated shareholders' equity of approximately $5.1 billion. On the basis
of consolidated total assets at September 30, 1996, the Corporation was the
sixteenth largest bank holding company in the United States.
The Bank, which was founded in 1784, was New York's first bank and is the
oldest in the country still operating under its original name. The Bank is a
state-chartered New York banking corporation and a member of the Federal
Reserve System. The Bank conducts a national and international wholesale
banking business and a retail banking business in the metropolitan New York
City area, and provides a comprehensive range of corporate and personal trust,
securities processing and investment services. The Bank expects to acquire a
significant amount of BNYNJ's assets and assume a significant amount of its
liabilities in the fourth quarter of 1996.
The Bank of New York (Delaware) is a Delaware chartered, FDIC insured non-
member bank. As of September 30, 1996, it was the fifteenth largest issuer of
bank credit cards in the United States. It also provides selected banking
services to corporations, primarily in the mid-Atlantic states.
BNYNJ is a New Jersey state-chartered bank and a member of the Federal
Reserve System. It conducts a full service commercial banking business in New
Jersey focusing on consumers and small to mid-sized businesses with annual
sales of $1 million to $25 million.
The Corporation has its principal executive offices at 48 Wall Street, New
York, New York 10286, telephone number (212) 495-1784.
S-10
<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Corporation's ratios of earnings to fixed
charges and ratios of earnings to combined fixed charges and preferred stock
dividend requirements for the years and periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, ------------------------
1996 1995 1994 1993 1992 1991
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits....... 4.48 3.61 3.75 3.61 2.70 1.55
Including Interest on Deposits....... 2.02 1.81 1.94 1.85 1.44 1.10
Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements:
Excluding Interest on Deposits....... 4.33 3.51 3.58 3.23 2.36 1.37
Including Interest on Deposits....... 2.00 1.79 1.91 1.78 1.38 1.07
</TABLE>
For purposes of computing both the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividend requirements,
earnings represent net income (loss) before extraordinary items plus
applicable income taxes and fixed charges. Fixed charges, excluding interest
on deposits, include interest expense (other than on deposits) and the
proportion deemed representative of the interest factor of rent expense, net
of income from subleases. Fixed charges, including interest on deposits,
include all interest expense and the proportion deemed representative of the
interest factor of rent expense, net of income from subleases. Pretax earnings
required for preferred stock dividends were computed using tax rates for the
applicable year.
USE OF PROCEEDS
All of the proceeds from the sale of Series A Preferred Securities will be
invested by the Series A Issuer in Series A Subordinated Debentures. The
Corporation intends that the proceeds from the sale of such Series A
Subordinated Debentures will be added to its general corporate funds and will
be used for general corporate purposes.
S-11
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Corporation and its subsidiaries as of September 30, 1996 and as adjusted to
give effect to the consummation of the offering of the Series A Preferred
Securities. The following data should be read in conjunction with the
consolidated financial statements and notes thereto of the Corporation and its
subsidiaries incorporated herein by reference.
<TABLE>
<CAPTION>
SEPTEMBER 30,
1996
----------------
AS
ACTUAL ADJUSTED
------ --------
(IN MILLIONS)
<S> <C> <C>
Total Long-term debt.......................................... $1,816
------ ---
Corporation Obligated Mandatorily Redeemable Preferred Securi-
ties of Subsidiary Trust Holding Solely Junior Subordinated
Deferrable Interest Debentures of the Corporation(a) ........
Shareholders' Equity
Preferred Stock............................................. 113
Common Stock................................................ 3,235
Capital Surplus............................................. 237
Retained Earnings........................................... 2,637
Securities Valuation Allowance.............................. 39
Treasury Stock, at Cost..................................... (1,126)
Loan to ESOP, at Cost....................................... (18)
------ ---
Total Stockholders' Equity................................ $5,117
------ ---
Total Capitalization.................................... $6,933
====== ===
</TABLE>
(a) As described herein, the sole assets of the Series A Issuer will be $
of Series A Subordinated Debentures, issued by the Corporation to the Series A
Issuer. The Series A Subordinated Debentures will mature on , 2026 which
date may be shortened to a date not earlier than , 2001 or extended to a
date not later than , 2045 if certain conditions are met. The Corporation
owns all of the Series A Common Securities of the Series A Issuer. It is
anticipated that the Series A Issuer will not be subject to the reporting
requirements under the Securities Exchange Act of 1934.
S-12
<PAGE>
ACCOUNTING TREATMENT
For financial reporting purposes, the Series A Issuer will be treated as a
subsidiary of the Corporation and, accordingly, the accounts of the Series A
Issuer will be included in the consolidated financial statements of the
Corporation. The Series A Preferred Securities will be presented as a separate
line item in the consolidated balance sheets of the Corporation, entitled
"Corporation Obligated Mandatorily Redeemable Preferred Securities of
Subsidiary Trust Holding Solely Junior Subordinated Deferrable Interest
Debentures of the Corporation" and appropriate disclosures about the Series A
Preferred Securities, the Series A Guarantee and the Series A Subordinated
Debentures will be included in the notes to the consolidated financial
statements. For financial reporting purposes, the Corporation will record
Distributions payable on the Series A Preferred Securities as an expense in
the consolidated statements of income.
CERTAIN TERMS OF SERIES A PREFERRED SECURITIES
GENERAL
The following summary of certain terms and provisions of the Series A
Preferred Securities supplements the description of the terms and provisions
of the Preferred Securities set forth in the accompanying Prospectus under the
heading "Description of Preferred Securities," to which description reference
is hereby made. This summary of certain terms and provisions of the Series A
Preferred Securities does not purport to be complete and is subject to, and
qualified in its entirety by reference to, the Trust Agreement. The form of
the Trust Agreement has been filed as an exhibit to the Registration Statement
of which this Prospectus Supplement and accompanying Prospectus form a part.
DISTRIBUTIONS
The Series A Preferred Securities represent beneficial interests in the
Series A Issuer, and Distributions on each Series A Preferred Securities will
be payable at the annual rate of % of the stated Liquidation Amount of $25,
payable quarterly in arrears on March 31, June 30, September 30 and December
31 of each year, to the holders of the Series A Preferred Securities on the
relevant record dates. The record dates will be, for so long as the Series A
Preferred Securities remain in book-entry form, one Business Day prior to the
relevant Distribution payment date and, in the event certificates representing
the Series A Preferred Securities are ever issued in definitive form, the 15th
day of the month in which the relevant Distribution payment date occurs.
Distributions will accumulate from the date of original issuance. The first
Distribution payment date for the Series A Preferred Securities will be ,
199 . The amount of Distributions payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any
date on which Distributions are payable on the Series A Preferred Securities
is not a Business Day, then payment of the Distributions payable on such date
will be made on the next succeeding day that is a Business Day (and without
any additional Distributions or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on the date such payment was
originally payable. See "Description of Preferred Securities--Distributions"
in the accompanying Prospectus.
So long as no Event of Default under the Indenture has occurred and is
continuing, the Corporation has the right under the Indenture to defer the
payment of interest on the Series A Subordinated Debentures at any time or
from time to time for a period not exceeding 20 consecutive quarters with
respect to each Extension Period, provided that no Extension Period may extend
beyond the Stated Maturity of the Series A Subordinated Debentures. As a
consequence of any such election, quarterly Distributions on the Series A
Preferred Securities will be deferred by the Series A Issuer during any such
Extension Period. Distributions to which holders of the Series A Preferred
Securities are entitled will accumulate additional Distributions thereon at
the rate per annum of % thereof,
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<PAGE>
compounded quarterly from the relevant payment date for such Distributions.
The term "Distributions" as used herein shall include any such additional
Distributions. During any such Extension Period, the Corporation may not, and
may not permit any subsidiary of the Corporation to (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Corporation's capital stock or
(ii) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Corporation (including other
Junior Subordinated Debentures) that rank pari passu with or junior in
interest to the Series A Subordinated Debentures or make any guarantee
payments with respect to any guarantee by the Corporation of the debt
securities of any subsidiary of the Corporation if such guarantee ranks pari
passu with or junior in interest to the Series A Subordinated Debentures
(other than (a) dividends or distributions in common stock of the Corporation,
(b) any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under any Guarantee and (d) purchases of common stock related to
the issuance of common stock or rights under any of the Corporation's benefit
plans for its directors, officers or employees). Prior to the termination of
any such Extension Period, the Corporation may further defer the payment of
interest, provided that no Extension Period may exceed 20 consecutive quarters
or extend beyond the Stated Maturity of the Series A Subordinated Debentures.
Upon the termination of any such Extension Period and the payment of all
amounts then due, the Corporation may elect to begin a new Extension Period.
There is no limitation on the number of times that the Corporation may elect
to begin an Extension Period. See "Certain Terms of Series A Subordinated
Debentures--Option to Extend Interest Payment Period" and "Certain Federal
Income Tax Consequences--Interest Income and Original Issue Discount."
The Corporation has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the Series A
Subordinated Debentures.
REDEMPTION
Upon the repayment or redemption, in whole or in part, of the Series A
Subordinated Debentures, whether at Stated Maturity or upon earlier redemption
as provided in the Indenture, the proceeds from such repayment or redemption
shall be applied by the Property Trustee to redeem a Like Amount (as defined
in the accompanying Prospectus) of the Series A Securities, upon not less than
30 nor more than 60 days notice prior to the date fixed for repayment or
redemption, at a redemption price, with respect to the Series A Preferred
Securities (the "Redemption Price"), equal to the aggregate Liquidation Amount
of such Series A Preferred Securities plus accumulated and unpaid
Distributions thereon to the date of redemption (the "Redemption Date"). See
"Description of Preferred Securities--Redemption or Exchange" in the
accompanying Prospectus. For a description of the Stated Maturity and
redemption provisions of the Series A Subordinated Debentures, see "Certain
Terms of Series A Subordinated Debentures--General" and "--Redemption."
LIQUIDATION OF SERIES A ISSUER AND DISTRIBUTION OF SERIES A SUBORDINATED
DEBENTURES TO HOLDERS
The Corporation will have the right at any time to terminate the Series A
Issuer and cause the Series A Subordinated Debentures to be distributed to the
holders of the Series A Preferred Securities in liquidation of the Series A
Issuer. Such right is subject to the Corporation having received prior
approval of the Federal Reserve if such approval is then required under
applicable capital guidelines or policies of the Federal Reserve.
Under current United States Federal income tax law and interpretations, a
distribution of the Series A Subordinated Debentures should not be a taxable
event to holders of the Series A Preferred Securities. Should there be a
change in law, a change in legal interpretation, a Tax Event or other
circumstances, however, the distribution of the Series A Subordinated
Debentures could be a taxable
S-14
<PAGE>
event to holders of the Series A Preferred Securities. See "Certain Federal
Income Tax Consequences--Distribution of Series A Subordinated Debentures to
Holders of Series A Preferred Securities." If the Corporation elects neither
to redeem the Series A Subordinated Debentures prior to maturity nor to
liquidate the Series A Issuer and distribute the Series A Subordinated
Debentures to holders of the Series A Preferred Securities, the Series A
Preferred Securities will remain outstanding until the repayment of the Series
A Subordinated Debentures.
If the Corporation elects to liquidate the Series A Issuer and thereby
causes the Series A Subordinated Debentures to be distributed to holders of
the Series A Preferred Securities in liquidation of the Series A Issuer, the
Corporation shall continue to have the right to shorten or extend the maturity
of such Series A Subordinated Debentures, subject to certain conditions as
described under "Certain Terms of Series A Subordinated Debentures--General."
LIQUIDATION VALUE
The amount payable on the Series A Preferred Securities in the event of any
liquidation of the Series A Issuer is $25 per Series A Preferred Securities
plus accumulated and unpaid Distributions, which may be in the form of a
distribution of such amount in Series A Subordinated Debentures, subject to
certain exceptions. See "Description of Preferred Securities--Liquidation
Distribution Upon Termination" in the accompanying Prospectus.
REGISTRATION OF SERIES A PREFERRED SECURITIES
The Series A Preferred Securities will be represented by global certificates
registered in the name of DTC or its nominee. Beneficial interests in the
Series A Preferred Securities will be shown on, and transfers thereof will be
effected only through, records maintained by Participants in DTC (as defined
in the accompanying Prospectus). Except as described below and in the
accompanying Prospectus, Series A Preferred Securities in certificated form
will not be issued in exchange for the global certificates. See "Book-Entry
Issuance" in the accompanying Prospectus.
A global security shall be exchangeable for Series A Preferred Securities
registered in the names of persons other than DTC or its nominee only if (i)
DTC notifies the Corporation that it is unwilling or unable to continue as a
depository for such global security and no successor depository shall have
been appointed, or if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, at a time
when DTC is required to be so registered to act as such depository, (ii) the
Corporation in its sole discretion determines that such global security shall
be so exchangeable, or (iii) there shall have occurred and be continuing an
Event of Default under the Indenture with respect to the Series A Subordinated
Debentures. Any global security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for definitive certificates registered in such
names as DTC shall direct. It is expected that such instructions will be based
upon directions received by DTC from its Participants with respect to
ownership of beneficial interests in such global security. In the event that
Series A Preferred Securities are issued in definitive form, such Series A
Preferred Securities will be in denominations of $25 and integral multiples
thereof and may be transferred or exchanged at the offices described below.
Payments on Series A Preferred Securities represented by a global security
will be made to DTC, as the depositary for the Series A Preferred Securities.
In the event Series A Preferred Securities are issued in definitive form, the
Redemption Price and Distributions will be payable, the transfer of the Series
A Preferred Securities will be registrable, and Series A Preferred Securities
will be exchangeable for Series A Preferred Securities of other denominations
of a like aggregate principal amount, at the corporate office of the Property
Trustee in New York, New York, or at the offices of any paying agent or
transfer agent appointed by the Administrative Trustees, provided that payment
of any Distribution may be made at the option of the Administrative Trustees
by check mailed to the address of the persons entitled thereto or by wire
transfer. In addition, if the Series A Preferred Securities are
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issued in certificated form, the record dates for payment of Distributions
will be the 15th day of the last month of each calendar quarter. For a
description of DTC and the terms of the depositary arrangements relating to
payments, transfers, voting rights, redemptions and other notices and other
matters, see "Book-Entry Issuance" in the accompanying Prospectus.
CERTAIN TERMS OF SERIES A SUBORDINATED DEBENTURES
GENERAL
The following summary of certain terms and provisions of the Series A
Subordinated Debentures supplements the description of the terms and
provisions of the Corresponding Junior Subordinated Debentures set forth in
the accompanying Prospectus under the headings "Description of Junior
Subordinated Debentures" and "Description of Junior Subordinated Debentures--
Corresponding Junior Subordinated Debentures", to which description reference
is hereby made. The summary of certain terms and provisions of the Series A
Subordinated Debentures set forth below does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the Indenture. The
Indenture has been filed as an exhibit to the Registration Statement of which
this Prospectus Supplement and accompanying Prospectus form a part.
Concurrently with the issuance of the Series A Preferred Securities, the
Series A Issuer will invest the proceeds thereof, together with the
consideration paid by the Corporation for the Series A Common Securities, in
the Series A Subordinated Debentures issued by the Corporation. The Series A
Subordinated Debentures will bear interest at the annual rate of % of the
principal amount thereof, payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year (each, an "Interest Payment Date"),
commencing , 199 , to the person in whose name each Series A Subordinated
Debenture is registered, subject to certain exceptions, at the close of
business on the Business Day next preceding such Interest Payment Date. It is
anticipated that, until the liquidation, if any, of the Series A Issuer, the
Series A Subordinated Debentures will be held in the name of the Property
Trustee in trust for the benefit of the holders of the Series A Securities.
The amount of interest payable for any period will be computed on the basis of
a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series A Subordinated Debentures is not a Business
Day, then payment of the interest payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on the date such payment was originally payable. Accrued
interest that is not paid on the applicable Interest Payment Date will bear
additional interest on the amount thereof (to the extent permitted by law) at
the rate per annum of % thereof, compounded quarterly. The term "interest" as
used herein shall include quarterly interest payments, interest on quarterly
interest payments not paid on the applicable Interest Payment Date and
Additional Sums (as defined below), as applicable.
The Series A Subordinated Debentures will be issued as a series of junior
subordinated debentures under the Indenture. The Series A Subordinated
Debentures will mature on , 2026 (such date, as it may be shortened or
extended as hereinafter described, the "Stated Maturity"). Such date may be
shortened at any time by the Corporation to any date not earlier than ,
2001, subject to the Corporation having received prior approval of the Federal
Reserve if such approval is then required under applicable capital guidelines
or policies of the Federal Reserve. Such date may also be extended at any time
at the election of the Corporation for one or more periods, but in no event to
a date later than , 2045, provided that at the time such election is made
and at the time of extension (i) the Corporation is not in bankruptcy,
otherwise insolvent or in liquidation, (ii) the Corporation is not in default
in the payment of any interest or principal on the Series A Subordinated
Debentures, (iii) the Series A Issuer is not in arrears on payments of
Distributions on the Series A Preferred Securities and no deferred
Distributions are accumulated and (iv) the Series A
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Subordinated Debentures are rated not less than BBB- by Standard & Poor's
Ratings Services or Baa3 by Moody's Investors Service, Inc. or the equivalent
by any other nationally recognized statistical rating organization. In the
event the Corporation elects to shorten or extend the Stated Maturity of the
Series A Subordinated Debentures, it shall give notice to the Debenture
Trustee, and the Debenture Trustee shall give notice of such shortening or
extension to the holders of the Series A Subordinated Debentures no more than
30 and no less than 60 days prior to the effectiveness thereof.
The Series A Subordinated Debentures will be unsecured and will rank junior
and be subordinate in right of payment to all Senior Debt of the Corporation.
"Senior Debt" is defined for this purpose to include all indebtedness for
money borrowed, including junior or subordinated indebtedness, that is not
expressly by its terms pari passu with or junior in interest to the Series A
Subordinated Debentures. Because the Corporation is a holding company, the
right of the Corporation to participate in any distribution of assets of any
subsidiary, including The Bank, The Bank of New York (Delaware) and BNYNJ,
upon such subsidiary's liquidation or reorganization or otherwise (and thus
the ability of holders of the Series A Preferred Securities to benefit
indirectly from such distribution), is subject to the prior claims of
creditors of that subsidiary, except to the extent that the Corporation may
itself be recognized as a creditor of that subsidiary. Accordingly, the Series
A Subordinated Debentures will be effectively subordinated to all existing and
future liabilities of the Corporation's subsidiaries, and holders of Series A
Subordinated Debentures should look only to the assets of the Corporation for
payments on the Series A Subordinated Debentures. The Indenture does not limit
the incurrence or issuance of other secured or unsecured debt of the
Corporation, including Senior Debt, whether under the Indenture or any
existing or other indenture that the Corporation may enter into in the future
or otherwise. See "Description of Junior Subordinated Debentures--
Subordination" in the accompanying Prospectus.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as no Event of Default under the Indenture has occurred or is
continuing, the Corporation has the right under the Indenture at any time
during the term of the Series A Subordinated Debentures to defer the payment
of interest at any time or from time to time for a period not exceeding 20
consecutive quarters with respect to each Extension Period, provided that no
Extension Period may extend beyond the Stated Maturity of the Series A
Subordinated Debentures. At the end of such Extension Period, the Corporation
must pay all interest then accrued and unpaid (together with interest thereon
at the annual rate of %, compounded quarterly, to the extent permitted by
applicable law). During an Extension Period, interest will continue to accrue
and holders of Series A Subordinated Debentures (or holders of Series A
Preferred Securities while such series is outstanding) will be required to
accrue interest income for United States federal income tax purposes. See
"Certain Federal Income Tax Consequences--Interest Income and Original Issue
Discount."
During any such Extension Period, the Corporation may not, and may not
permit any subsidiary of the Corporation to (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire, or make a liquidation
payment with respect to, any of the Corporation's capital stock or (ii) make
any payment of principal, interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Corporation (including other Junior
Subordinated Debentures) that rank pari passu with or junior in interest to
the Series A Subordinated Debentures or make any guarantee payments with
respect to any guarantee by the Corporation of the debt securities of any
subsidiary of the Corporation if such guarantee ranks pari passu with or
junior in interest to the Series A Subordinated Debentures (other than (a)
dividends or distributions in common stock of the Corporation, (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under any Guarantee and (d) purchases of common stock related to
the issuance of common stock or rights under any of the Corporation's benefit
plans for its directors, officers or employees). Prior to the termination of
any such Extension Period, the Corporation may
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further defer the payment of interest, provided that no Extension Period may
exceed 20 consecutive quarters or extend beyond the Stated Maturity of the
Series A Subordinated Debentures. Upon the termination of any such Extension
Period and the payment of all amounts then due on any Interest Payment Date,
the Corporation may elect to begin a new Extension Period subject to the above
requirements. No interest shall be due and payable during an Extension Period,
except at the end thereof. The Corporation must give the Property Trustee, the
Administrative Trustees and the Debenture Trustee notice of its election of
such Extension Period at least one Business Day prior to the earlier of (i)
the date the Distributions on the Series A Preferred Securities would have
been payable except for the election to begin such Extension Period or (ii)
the date the Administrative Trustees are required to give notice to the New
York Stock Exchange, the Nasdaq National Market or other applicable self-
regulatory organization or to holders of such Series A Preferred Securities of
the record date or the date such Distributions are payable, but in any event
not less than one Business Day prior to such record date. The Debenture
Trustee shall give notice of the Corporation's election to begin a new
Extension Period to the holders of the Series A Preferred Securities. There is
no limitation on the number of times that the Corporation may elect to begin
an Extension Period. See "Description of Junior Subordinated Debentures--
Option to Extend Interest Payment Date" in the accompanying Prospectus.
ADDITIONAL SUMS
If the Series A Issuer is required to pay any additional taxes, duties or
other governmental charges as a result of a Tax Event, the Corporation will
pay as additional amounts on the Series A Subordinated Debentures such amounts
as shall be required so that the Distributions payable by the Series A Issuer
shall not be reduced as a result of any such additional taxes, duties or other
governmental charges.
REDEMPTION
Subject to the Corporation having received prior approval of the Federal
Reserve if such approval is then required under applicable capital guidelines
or policies of the Federal Reserve, the Series A Subordinated Debentures are
redeemable prior to maturity at the option of the Corporation (i) on or after
, 2001, in whole at any time or in part from time to time, or (ii) at any
time in whole (but not in part), upon the occurrence and continuation of a Tax
Event, in each case at a redemption price equal to the accrued and unpaid
interest on the Series A Subordinated Debentures so redeemed to the date fixed
for redemption, plus 100% of the principal amount thereof. See "Description of
Junior Subordinated Debentures--Redemption" in the accompanying Prospectus.
DISTRIBUTION OF SERIES A SUBORDINATED DEBENTURES
As described under "Certain Terms of Series A Preferred Securities--
Liquidation of Series A Issuer and Distribution of Series A Subordinated
Debentures to Holders", under certain circumstances involving the termination
of the Series A Issuer, Series A Subordinated Debentures may be distributed to
the holders of the Series A Preferred Securities in liquidation of the Series
A Issuer after satisfaction of liabilities to creditors of the Series A Issuer
as provided by applicable law. If distributed to holders of Series A Preferred
Securities in liquidation, the Series A Subordinated Debentures will initially
be issued in the form of one or more global securities and DTC, or any
successor depositary for the Series A Preferred Securities, will act as
depositary for the Series A Subordinated Debentures. It is anticipated that
the depositary arrangements for the Series A Subordinated Debentures would be
substantially identical to those in effect for the Series A Preferred
Securities. If the Series A Subordinated Debentures are distributed to the
holders of Series A Preferred Securities upon the liquidation of the Series A
Issuer, the Corporation will use its best efforts to list the Series A
Subordinated Debentures on the New York Stock Exchange or such other stock
exchanges, if any, on which the Series A Preferred Securities are then listed.
There can be no assurance as to the market price of any Series A Subordinated
Debentures that may be distributed to the holders of Series A Preferred
Securities.
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REGISTRATION OF SERIES A SUBORDINATED DEBENTURES
The Series A Subordinated Debentures will be represented by global
certificates registered in the name of DTC or its nominee. Beneficial
interests in the Series A Subordinated Debentures will be shown on, and
transfers thereof will be effected only through, records maintained by
Participants in DTC. Except as described below and in the accompanying
Prospectus, Series A Subordinated Debentures in certificated form will not be
issued in exchange for the global certificates. See "Book-Entry Issuance" in
the accompanying Prospectus.
A global security shall be exchangeable for Series A Subordinated Debentures
registered in the names of persons other than DTC or its nominee only if (i)
DTC notifies the Corporation that it is unwilling or unable to continue as a
depository for such global security and no successor depository shall have
been appointed, or if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, at a time
when DTC is required to be so registered to act as such depository, (ii) the
Corporation in its sole discretion determines that such global security shall
be so exchangeable, or (iii) there shall have occurred and be continuing an
Event of Default under the Indenture with respect to such global security. Any
global security that is exchangeable pursuant to the preceding sentence shall
be exchangeable for definitive certificates registered in such names as DTC
shall direct. It is expected that such instructions will be based upon
directions received by DTC from its Participants with respect to ownership of
beneficial interests in such global security. In the event that Series A
Subordinated Debentures are issued in definitive form, such Series A
Subordinated Debentures will be in denominations of $25 and integral multiples
thereof and may be transferred or exchanged at the offices described below.
Payments on Series A Subordinated Debentures represented by a global
security will be made to DTC, as the depositary for the Series A Subordinated
Debentures. In the event Series A Subordinated Debentures are issued in
definitive form, principal and interest will be payable, the transfer of the
Series A Subordinated Debentures will be registrable, and Series A
Subordinated Debentures will be exchangeable for Series A Subordinated
Debentures of other denominations of a like aggregate principal amount, at the
corporate office of the Debenture Trustee in New York, New York, or at the
offices of any paying agent or transfer agent appointed by the Corporation,
provided that payment of interest may be made at the option of the Corporation
by check mailed to the address of the persons entitled thereto or by wire
transfer. In addition, if the Series A Subordinated Debentures are issued in
certificated form, the record dates for payment of interest will be the 15th
day of the last month of each calendar quarter. For a description of DTC and
the terms of the depositary arrangements relating to payments, transfers,
voting rights, redemptions and other notices and other matters, see "Book-
Entry Issuance" in the accompanying Prospectus.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the principal United States federal income tax
consequences of the purchase, ownership and disposition of Series A Preferred
Securities. This summary only addresses the tax consequences to a person that
acquires Series A Preferred Securities on their original issue at their
original offering price and that is (i) an individual citizen or resident of
the United States, (ii) a corporation or partnership organized in or under the
laws of the United States or any state thereof or the District of Columbia or
(iii) an estate or trust the income of which is subject to United States
federal income tax regardless of source (a "United States Person"). This
summary does not address all tax consequences that may be applicable to a
United States Person that is a beneficial owner of Series A Preferred
Securities, nor does it address the tax consequences to (i) persons that are
not United States Persons, (ii) persons that may be subject to special
treatment under United States federal income tax law, such as banks, insurance
companies, thrift institutions, regulated investment companies, real estate
investment trusts, tax-exempt organizations and dealers in securities or
currencies, (iii) persons that will hold Series A Preferred Securities as part
of a position in a "straddle"
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or as part of a "hedging," "conversion" or other integrated investment
transaction for federal income tax purposes, (iv) persons whose functional
currency is not the United States dollar or (v) persons that do not hold
Series A Preferred Securities as capital assets.
The statements of law or legal conclusion set forth in this summary
constitute the opinion of Sullivan & Cromwell, counsel to the Corporation and
the Series A Issuer. This summary is based upon the Internal Revenue Code of
1986, as amended (the "Code"), Treasury Regulations, Internal Revenue Service
rulings and pronouncements and judicial decisions now in effect, all of which
are subject to change at any time. Such changes may be applied retroactively
in a manner that could cause the tax consequences to vary substantially from
the consequences described below, possibly adversely affecting a beneficial
owner of Series A Preferred Securities. In particular, legislation has been
proposed that could adversely affect the Corporation's ability to deduct
interest on the Series A Subordinated Debentures, which may in turn permit the
Corporation to cause a redemption of the Series A Preferred Securities. See
"--Possible Tax Law Changes." The authorities on which this summary is based
are subject to various interpretations, and it is therefore possible that the
federal income tax treatment of the purchase, ownership and disposition of
Series A Preferred Securities may differ from the treatment described below.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS IN
LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE FEDERAL TAX CONSEQUENCES
OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF SERIES A PREFERRED SECURITIES,
AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
CLASSIFICATION OF THE SERIES A ISSUER
In the opinion of Sullivan & Cromwell, under current law the Series A Issuer
will not be classified as an association taxable as a corporation for United
States federal income tax purposes. As a result, each beneficial owner of
Series A Preferred Securities (a "Securityholder") will be required to include
in its gross income its pro rata share of the interest income, including
original issue discount, paid or accrued with respect to the Series A
Subordinated Debentures whether or not cash is actually distributed to the
Securityholders. See "--Interest Income and Original Issue Discount." No
amount included in income with respect to the Series A Preferred Securities
will be eligible for the dividends-received deduction.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under recently issued Treasury regulations applicable to debt instruments
issued on or after August 13, 1996 (the "Regulations"), a contingency that
stated interest will not be timely paid that is "remote" because of the terms
of the relevant debt instrument will be ignored in determining whether such
debt instrument is issued with original issue discount ("OID"). As a result of
terms and conditions of the Series A Subordinated Debentures that prohibit
certain payments with respect to the Corporation's Capital Stock and
indebtedness if the Corporation elects to extent interest payment periods, the
Corporation believes that the likelihood of its exercising its option to defer
payments is remote. Based on the foregoing, the Corporation believes that the
Series A Subordinated Debentures will not be considered to be issued with OID
at the time of their original issuance and, accordingly, a Securityholder
should include in gross income such holder's allocable share of interest on
the Series A Subordinated Debentures.
Under the Regulations, if the Corporation exercises its option to defer any
payment of interest, the Series A Subordinated Debentures would at that time
be treated as issued with OID, and all stated interest on the Series A
Subordinated Debentures would thereafter be treated as OID as long as the
Series A Subordinated Debentures remained outstanding. In such event, all of a
Securityholder's
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taxable interest income with respect to the Series A Subordinated Debentures
would be accounted for as OID on an economic-accrual basis regardless of such
holder's method of tax accounting, and actual distributions of stated interest
would not be reported as taxable income. Consequently, a Securityholder would
be required to include in gross income OID even though the Corporation would
not make any actual cash payments during an Extension Period.
The Regulations have not been addressed in any rulings or other
interpretations by the Internal Revenue Service (the "IRS"), and it is
possible that the IRS could take a position contrary to the interpretation
herein.
Because income on the Series A Preferred Securities will constitute interest
or OID, corporate Securityholders will not be entitled to a dividends-received
deduction with respect to any income recognized with respect to the Series A
Preferred Securities.
DISTRIBUTION OF SERIES A SUBORDINATED DEBENTURES TO HOLDERS OF SERIES A
PREFERRED SECURITIES
Under current law, a distribution by the Series A Issuer of the Series A
Subordinated Debentures as described under the caption "Certain Terms of
Series A Preferred Securities--Liquidation of Series A Issuer and Distribution
of Series A Subordinated Debentures to Holders" will be non-taxable and will
result in the Securityholder receiving directly its pro rata share of the
Series A Subordinated Debentures previously held indirectly through the Series
A Issuer, with a holding period and aggregate-tax basis equal to the holding
period and aggregate-tax basis such Securityholder had in its Series A
Preferred Securities before such distribution. A Securityholder will include
interest in income in respect of Series A Subordinated Debentures received
from the Series A Issuer in the manner described above under "--Interest
Income and Original Issue Discount."
SALE OR REDEMPTION OF SERIES A PREFERRED SECURITIES
A Securityholder that sells Series A Preferred Securities will recognize
gain or loss equal to the difference between its adjusted-tax basis in the
Series A Preferred Securities and the amount realized on the sale of such
Series A Preferred Securities. Assuming that the Corporation does not exercise
its option to defer payment of interest on the Series A Subordinated
Debentures and the Series A Subordinated Debentures are not considered issued
with OID, a Securityholder's adjusted-tax basis in the Series A Preferred
Securities generally will be its initial purchase price. If the Series A
Subordinated Debentures are deemed to be issued with OID as a result of the
Corporation's deferral of any interest payment, a Securityholder's tax basis
in the Series A Preferred Securities generally will be its initial purchase
price, increased by OID previously includible in such holder's gross income to
the date of disposition and decreased by distributions or other payments
received on the Series A Preferred Securities since and including the date of
the first Extension Period. Such gain or loss generally will be a capital gain
or loss (except to the extent of any accrued interest with respect to such
Securityholder's pro rata share of the Series A Subordinated Debentures
required to be included in income) and generally will be a long-term capital
gain or loss if the Series A Preferred Securities have been held for more than
one year.
Should the Corporation exercise its option to defer any payment of interest
on the Series A Subordinated Debentures, the Series A Preferred Securities may
trade at a price that does not accurately reflect the value of accrued but
unpaid interest with respect to the underlying Series A Subordinated
Debentures. In the event of such a deferral, a Securityholder who disposes of
its Series A Preferred Securities between record dates for payments of
distributions thereon will be required to include in income as ordinary income
accrued but unpaid interest on the Series A Subordinated Debentures to the
date of disposition and to add such amount to its adjusted-tax basis in its
Series A Preferred Securities. To the extent the selling price is less than
the Securityholder's adjusted-tax basis, such holder will recognize a capital
loss. Subject to certain limited exceptions, capital losses cannot be applied
to offset ordinary income for United States federal income tax purposes.
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BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest paid and OID accrued on the Series A Preferred
Securities held of record by United States Persons (other than corporations
and other exempt Securityholders) will be reported to the IRS. "Backup"
withholding at a rate of 31% will apply to payments of interest to nonexempt
United States Persons unless the Securityholder furnishes its taxpayer
identification number in the manner prescribed in applicable Treasury
Regulations, certifies that such number is correct, certifies as to no loss of
exemption from backup withholding and meets certain other conditions.
Payment of the proceeds from the disposition of Series A Preferred
Securities to or through the United States office of a broker is subject to
information reporting and backup withholding unless the holder or beneficial
owner establishes an exemption from information reporting and backup
withholding.
Any amounts withheld from a Securityholder under the backup withholding
rules will be allowed as a refund or a credit against such Securityholder's
United States federal income tax liability, provided the required information
is furnished to the IRS.
It is anticipated that income on the Series A Preferred Securities will be
reported to holders on Form 1099 and mailed to holders of the Series A
Preferred Securities by January 31 following each calendar year.
POSSIBLE TAX LAW CHANGES
On March 19, 1996, President Clinton proposed legislation (the "Proposed
Legislation") that would, among other things, generally deny corporate issuers
a deduction for interest in respect of certain debt obligations, such as the
Series A Subordinated Debentures, issued on or after December 7, 1995. On
March 29, 1996, Senate Finance Committee Chairman William V. Roth, Jr. and
House Ways and Means Committee Chairman Bill Archer issued a statement (the
"Joint Statement") indicating their intent that the Proposed Legislation, if
adopted by either of the tax-writing committees of Congress, would have an
effective date that is no earlier than the date of "appropriate Congressional
action". Under current law, the Corporation will be able to deduct interest on
the Series A Subordinated Debentures. There can be no assurances, however,
that the effective-date guidance contained in the Joint Statement will be
incorporated into the Proposed Legislation, if enacted, or that other
legislation enacted after the date hereof will not otherwise adversely affect
the ability of the Corporation to deduct the interest payable on the Series A
Subordinated Debentures. Accordingly, there can be no assurance that a Tax
Event will not occur. See "Description of Preferred Securities--Redemption or
Exchange--Tax Event Redemption" in the accompanying Prospectus.
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UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
the Corporation and the Series A Issuer have agreed that the Series A Issuer
will sell to (the "Underwriters"), and the Underwriters have
agreed to purchase from the Series A Issuer, the respective number of Series A
QUIPS set forth opposite their names below. In the Underwriting Agreement, the
several Underwriters have agreed, subject to the terms and conditions set
forth therein, to purchase all the Series A QUIPS offered hereby if any of the
Series A QUIPS are purchased. In the event of default by an Underwriter, the
Underwriting Agreement provides that, in certain circumstances, the purchase
commitments of the nondefaulting Underwriters may be increased or the
Underwriting Agreement may be terminated.
<TABLE>
<CAPTION>
NUMBER
OF SERIES
UNDERWRITER A QUIPS
----------- ---------
<S> <C>
----
Total............................................................
====
</TABLE>
The Underwriters propose initially to offer the Series A Preferred
Securities to the public at the public offering price set forth on the cover
page of this Prospectus Supplement and to certain dealers at such price less a
concession not in excess of $. per Series A Preferred Securities. The
Underwriters may allow, and such dealers may reallow, a discount not in excess
of $. per Series A Preferred Securities to certain other dealers. After the
initial public offering, the public offering price, concession and discount
may be changed.
The Series A Issuer has granted the Underwriters an option exercisable for
10 days after the date of this Prospectus Supplement to purchase up to an
aggregate of additional Series A Preferred Securities solely to cover
over-allotments, if any. If the Underwriters exercise their over-allotment
option, the Underwriters have severally agreed, subject to certain conditions,
to purchase approximately the same percentage thereof that the number of
Series A Preferred Securities to be purchased by each of them, as shown in the
foregoing table, bears to the Series A Preferred Securities offered.
In view of the fact that the proceeds from the sale of the Series A
Preferred Securities will be used to purchase the Series A Subordinated
Debentures issued by the Corporation, the Underwriting Agreement provides that
the Corporation will pay as Underwriters' Compensation for the Underwriters'
arranging the investment therein of such proceeds an amount of $. per
Series A Preferred Securities for the accounts of the several Underwriters.
The Corporation and the Series A Issuer have agreed that, during the period
beginning from the date of the Underwriting Agreement and continuing to and
including the earlier of (i) the termination of trading restrictions on the
Series A Preferred Securities, as determined by the Underwriters, and (ii) 30
days after the closing date, they will not offer, sell, contract to sell or
otherwise dispose of any Preferred Securities, any other beneficial interests
in the assets of the Series A Issuer, or any preferred securities or any other
securities of the Series A Issuer or the Corporation which are substantially
similar to the Series A Preferred Securities, including any guarantee of such
securities, or any securities convertible into or exchangeable for or
representing the right to receive securities, preferred securities or any such
substantially similar securities of either the Series A Issuer or the
Corporation, without the prior written consent of the Underwriters, except for
the Series A Preferred Securities offered in connection with the offering.
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Prior to this offering, there has been no public market for the Series A
Preferred Securities. Application will be made to list the Series A Preferred
Securities on the New York Stock Exchange. Trading of the Series A Preferred
Securities on the New York Stock Exchange is expected to commence within a 30-
day period after the initial delivery of the Series A Preferred Securities.
The Underwriters have advised the Corporation that they intend to make a
market in the Series A Preferred Securities prior to commencement of trading
on the New York Stock Exchange, but are not obligated to do so and may
discontinue market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for the Series A Preferred
Securities.
In order to meet one of the requirements for listing the Series A Preferred
Securities on the New York Stock Exchange, the Underwriters will undertake to
sell lots of 100 or more Series A Preferred Securities to a minimum of 400
beneficial holders.
The Corporation and the Series A Issuer have agreed to indemnify the several
Underwriters against, or contribute to payments that the Underwriters may be
required to make in respect of, certain liabilities, including liabilities
under the Securities Act of 1933, as amended.
Certain of the Underwriters or their affiliates have provided from time to
time, and expect to provide in the future, investment or commercial banking
services to the Corporation and its affiliates, for which such Underwriters or
their affiliates have received or will receive customary fees and commissions.
VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the Series A
Preferred Securities, the enforceability of the Trust Agreement and the
formation of the Series A Issuer will be passed upon by Richards, Layton &
Finger, special Delaware Counsel to the Corporation and the Series A Issuer.
The validity of the Series A Guarantee and the Series A Subordinated
Debentures will be passed upon for the Corporation by Sullivan & Cromwell, New
York, New York and for the Underwriters by Milbank, Tweed, Hadley & McCloy,
New York, New York. Sullivan & Cromwell and Milbank, Tweed, Hadley & McCloy
will rely on the opinion of Richards, Layton & Finger as to matters of
Delaware law. Milbank, Tweed, Hadley & McCloy from time to time performs legal
services for the Corporation. Certain matters relating to United States
federal income tax considerations will be passed upon for the Corporation by
Sullivan & Cromwell.
S-24
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED , 1996
$
THE BANK OF NEW YORK COMPANY, INC.
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
BNY CAPITAL I
BNY CAPITAL II
BNY CAPITAL III
BNY CAPITAL IV
BNY CAPITAL V
PREFERRED SECURITIES FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN,
BY
THE BANK OF NEW YORK COMPANY, INC.
The Bank of New York, Company, Inc., a New York corporation (the
"Corporation"), may from time to time offer in one or more series or issuances
its junior subordinated deferrable interest debentures (the "Junior
Subordinated Debentures"). The Junior Subordinated Debentures will be unsecured
and subordinate and junior in right of payment to all Senior Debt (as defined
in "Description of Junior Subordinated Debentures--Subordination") of the
Corporation. If provided in an accompanying Prospectus Supplement, the
Corporation will have the right to defer payments of interest on any series of
Junior Subordinated Debentures by extending the interest payment period thereon
at any time or from time to time for such number of consecutive interest
payment periods (which shall not extend beyond the Stated Maturity (as defined
herein) of the Junior Subordinated Debentures) with respect to each deferral
period as may be specified in such Prospectus Supplement (each, an "Extension
Period"). See "Description of Junior Subordinated Debentures--Option to Extend
Interest Payment Date".
BNY Capital I, BNY Capital II, BNY Capital III, BNY Capital IV and BNY
Capital V, each a trust formed under the laws of the State of Delaware (each,
an "Issuer," and collectively, the "Issuers"), may severally offer, from time
to time, preferred securities (the "Preferred Securities") representing
preferred beneficial interests in such Issuer. The Corporation will be the
owner of all of the beneficial interests represented by common securities (the
"Common Securities" and, together with the Preferred Securities, the "Trust
Securities") of each Issuer. The payment of periodic cash distributions
("Distributions") with respect to the Preferred Securities of each Issuer and
payments on liquidation or redemption with respect to such Preferred
Securities, in each case out of funds held by such Issuer, are each irrevocably
guaranteed by the Corporation to the extent described herein (each, a
"Guarantee"). See "Description of Guarantees". The obligations of the
Corporation under each Guarantee will be subordinate and junior in right of
payment to all Senior Debt of the Corporation.
(continued on next page)
-----------
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is , 1996.
<PAGE>
(cover page continued)
Concurrently with the issuance by an Issuer of its Preferred Securities, such
Issuer will invest the proceeds thereof and any contributions made in respect
of the Common Securities in a corresponding series of the Corporation's Junior
Subordinated Debentures (the "Corresponding Junior Subordinated Debentures")
with terms corresponding to the terms of that Issuer's Preferred Securities
(the "Related Preferred Securities"). The Corresponding Junior Subordinated
Debentures and the right to reimbursement of expenses under the related
Expense Agreement will be the sole assets of each Issuer, and payments under
the Corresponding Junior Subordinated Debentures and the related Expense
Agreement (as defined herein) will be the only revenue of each Issuer. If
provided in an accompanying Prospectus Supplement, the Corporation may, upon
receipt of approval of the Federal Reserve (if such approval is then
required), redeem the Corresponding Junior Subordinated Debentures (and cause
the redemption of the related Trust Securities) or may terminate each Issuer
and cause the Corresponding Junior Subordinated Debentures to be distributed
to the holders of the Related Preferred Securities in liquidation of their
interests in such Issuer. See "Description of Preferred Securities--
Liquidation Distribution Upon Termination".
Holders of the Preferred Securities will be entitled to receive preferential
cumulative cash Distributions accumulating from the date of original issuance
and payable periodically as specified in an accompanying Prospectus
Supplement. If provided in an accompanying Prospectus Supplement, the
Corporation will have the right to defer payments of interest on any series of
Corresponding Junior Subordinated Debentures by extending the interest payment
period thereon at any time or from time to time for one or more Extension
Periods (which shall not extend beyond the Stated Maturity of the
Corresponding Junior Subordinated Debentures). If interest payments are so
deferred, Distributions on the Related Preferred Securities will also be
deferred and the Corporation will not be permitted, subject to certain
exceptions set forth herein, to declare or pay any cash distributions with
respect to the Corporation's capital stock or debt securities that rank pari
passu with or junior to the Corresponding Junior Subordinated Debentures.
During an Extension Period, Distributions will continue to accumulate (and the
Preferred Securities will accumulate additional Distributions thereon at the
rate per annum set forth in the related Prospectus Supplement). See
"Description of Preferred Securities--Distributions".
Taken together, the Corporation's obligations under each series of Junior
Subordinated Debentures, the Indenture, the related Trust Agreement, the
related Expense Agreement and the related Guarantee (each, as defined herein),
in the aggregate, provide a full, irrevocable and unconditional guarantee of
payments of distributions and other amounts due on the related series of
Preferred Securities. See "Relationship Among the Preferred Securities, the
Corresponding Junior Subordinated Debentures and the Guarantees--Full and
Unconditional Guarantee".
The Junior Subordinated Debentures and Preferred Securities may be offered
in amounts, at prices and on terms to be determined at the time of offering;
provided, however, the aggregate initial public offering price of all Junior
Subordinated Debentures (other than Corresponding Junior Subordinated
Debentures) and Preferred Securities (including the Corresponding Junior
Subordinated Debentures) issued pursuant to the Registration Statement of
which this Prospectus forms a part shall not exceed $500,000,000. Certain
specific terms of the Junior Subordinated Debentures or Preferred Securities
in respect of which this Prospectus is being delivered will be described in an
accompanying Prospectus Supplement, including without limitation and where
applicable and to the extent not set forth herein, (a) in the case of Junior
Subordinated Debentures, the specific designation, aggregate principal amount,
denominations, Stated Maturity (including any provisions for the shortening or
extension thereof), interest payment dates, interest rate (which may be fixed
or variable) or method of calculating interest, if any, applicable Extension
Period or interest deferral terms, if any, place or places where principal,
premium, if any, and interest, if any, will be payable, any terms of
redemption, any sinking fund provisions, terms for any conversion or exchange
into other securities, initial offering or purchase price, methods of
distribution and any other special terms, and (b) in the case of Preferred
2
<PAGE>
(cover page continued)
Securities, the identity of the Issuer, specific title, aggregate amount,
stated liquidation preference, number of securities, Distribution rate or
method of calculating such rate, applicable Extension Period or Distribution
deferral terms, if any, place or places where Distributions will be payable,
any terms of redemption, exchange, initial offering or purchase price, methods
of distribution and any other special terms.
The Prospectus Supplement also will contain information, as applicable,
about certain United States Federal income tax consequences relating to the
Junior Subordinated Debentures or Preferred Securities.
The Junior Subordinated Debentures and Preferred Securities may be sold to
or through underwriters, through dealers, remarketing firms or agents or
directly to purchasers. See "Plan of Distribution". The names of any
underwriters, dealers, remarketing firms or agents involved in the sale of
Junior Subordinated Debentures or Preferred Securities in respect of which
this Prospectus is being delivered and any applicable fee, commission or
discount arrangements with them will be set forth in a Prospectus Supplement.
The Prospectus Supplement will state whether the Junior Subordinated
Debentures or Preferred Securities will be listed on any national securities
exchange or automated quotation system. If the Junior Subordinated Debentures
or Preferred Securities are not listed on any national securities exchange or
automated quotation system, there can be no assurance that there will be a
secondary market for the Junior Subordinated Debentures or Preferred
Securities.
This Prospectus may not be used to consummate sales of Junior Subordinated
Debentures or Preferred Securities unless accompanied by a Prospectus
Supplement.
No dealer, salesperson or other person has been authorized to give any
information or make any representations, other than those contained in this
Prospectus and the applicable Prospectus Supplement, and if given or made such
information or representations must not be relied upon as having been
authorized by the Corporation or any agent, underwriter or dealer. This
Prospectus and the applicable Prospectus Supplement do not constitute an offer
of any securities other than those to which they relate, or an offer to sell
or a solicitation of an offer to buy those to which they relate, in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. The delivery of this Prospectus and/or the
applicable Prospectus Supplement at any time does not imply that the
information herein or therein is correct as of any time subsequent to its
date.
3
<PAGE>
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information can be inspected and copied at the
public reference facilities of the Commission at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the regional offices of the Commission
located at 7 World Trade Center, 13th Floor, Suite 1300, New York, New York
10048 and Suite 1400, Citicorp Center, 14th Floor, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material can also be obtained at
prescribed rates by writing to the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549. Such material may also be
accessed electronically by means of the Commission's home page on the Internet
at http://www.sec.gov. In addition, such reports, proxy statements and other
information concerning the Corporation can be inspected at the offices of the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Corporation and the Issuers have filed with the Commission a
Registration Statement on Form S-3 (together with all amendments and exhibits
thereto, the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities offered hereby.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as
permitted by the rules and regulations of the Commission. For further
information with respect to the Corporation and the securities offered hereby,
reference is made to the Registration Statement and the exhibits and the
financial statements, notes and schedules filed as a part thereof or
incorporated by reference therein, which may be inspected at the public
reference facilities of the Commission, at the addresses set forth above.
Statements made in this Prospectus concerning the contents of any documents
referred to herein are not necessarily complete, and in each instance are
qualified in all respects by reference to the copy of such document filed as
an exhibit to the Registration Statement.
No separate financial statements of any Issuer have been included herein.
The Corporation and the Issuers do not consider that such financial statements
would be material to holders of the Preferred Securities because each Issuer
is a newly formed special purpose entity, has no operating history or
independent operations and is not engaged in and does not propose to engage in
any activity other than holding as trust assets the Corresponding Junior
Subordinated Debentures of the Corporation and issuing the Trust Securities.
See "The Issuers", "Description of Preferred Securities", "Description of
Junior Subordinated Debentures--Corresponding Junior Subordinated Debentures"
and "Description of Guarantees". In addition, the Corporation does not expect
that any of the Issuers will be filing reports under the Exchange Act with the
Commission.
4
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Commission are
incorporated into this Prospectus by reference:
1. the Corporation's Annual Report on Form 10-K for the year ended
December 31, 1995;
2. the Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996 and September 30, 1996; and
3. the Corporation's Current Reports on Form 8-K dated January 16, 1996,
March 12, 1996, April 11, 1996, June 17, 1996, July 17, 1996 and October
15, 1996.
Each document or report filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of any offering of securities made by this Prospectus shall be
deemed to be incorporated by reference into this Prospectus and to be a part
of this Prospectus from the date of filing of such document. Any statement
contained herein, or in a document all or a portion of which is incorporated
or deemed to be incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of the Registration Statement and this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Corporation will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference herein
(other than exhibits not specifically incorporated by reference into the texts
of such documents). Requests for such documents should be directed to The Bank
of New York Company, Inc., 48 Wall Street, New York, New York 10286, Attention
Jacqueline R. McSwiggan, Assistant Secretary, telephone number (212) 495-1784.
5
<PAGE>
THE CORPORATION
The Corporation is a bank holding company subject to the regulation and
supervision of the Federal Reserve Board under the Bank Holding Company Act of
1956, as amended ("BHC Act"). The Corporation is also subject to regulation by
the New York State Banking Department. Its principal wholly-owned banking
subsidiaries are The Bank of New York (the "Bank"), The Bank of New York
(Delaware) and The Bank of New York (NJ) ("BNYNJ"). The Corporation provides a
complete range of banking and other financial services to corporations and
individuals worldwide through its core businesses: Corporate Banking, Retail
Banking, Credit Cards, Securities and Other Processing, Trust, Investment
Management and Private Banking and Financial Market Services.
The Corporation has its principal executive offices at 48 Wall Street, New
York, New York 10286, telephone number (212) 495-1784.
CERTAIN REGULATORY CONSIDERATIONS
The Corporation's principal assets and sources of income are its investments
in its bank subsidiaries, and it is a legal entity separate and distinct from
its banks and other subsidiaries. There are various legal limitations on the
extent to which these banks and other subsidiaries can finance or otherwise
supply funds to the Corporation and certain of its affiliates.
DIVIDENDS
The Bank is subject to dividend limitations under the Federal Reserve Act
and the New York Banking Law. BNYNJ is subject to dividend limitations under
the Federal Reserve Act and applicable New Jersey banking law. Under these
statutes, prior regulatory approval is required for dividends in any year that
would exceed the net profits of the bank declaring the dividend for such year
combined with retained net profits for the prior two years. Also, both banks
are prohibited from paying a dividend in an amount greater than "undivided
profits then on hand" less "bad debts" (generally loans six months or more
past due).
Under the first of these two standards, as of June 30, 1996 the Bank could
declare dividends of approximately $781 million and BNYNJ could declare
dividends of approximately $92 million. As of June 30, 1996, neither bank was
restrained from paying dividends under the second of the two standards
discussed above.
In addition to these statutory tests, each bank's primary federal regulator
(the Federal Reserve Board), could prohibit a dividend if it determined that
the payment would constitute an unsafe or unsound banking practice. The
Federal Reserve Board has indicated that, generally, dividends should be paid
by banks only to the extent of earnings from continuing operations.
The dividend policy of The Bank of New York (Delaware) is to declare
dividends that, at a minimum, would not impair its ability to meet capital
guidelines established by the Federal Deposit Insurance Corporation ("FDIC").
Consistent with its policy regarding bank holding companies serving as a
source of financial strength for their subsidiary banks, the Federal Reserve
Board has stated that, as a matter of prudent banking, a bank holding company
generally should not maintain a rate of cash dividends unless its net income
available to common stockholders has been sufficient to fully fund the
dividends, and the prospective rate of earnings retention appears consistent
with the bank holding company's capital needs, asset quality and overall
financial condition. In the first nine months of 1996, the Corporation's net
income available to common stockholders was $762 million and it declared
common stock dividends totaling $242 million.
6
<PAGE>
CAPITAL ADEQUACY
The Federal bank regulators have adopted risk-based capital guidelines for
bank holding companies and banks. The minimum ratio of qualifying total
capital ("Total Capital") to risk-weighted assets (including certain off-
balance sheet items) is 8%. At least half of the Total Capital is to be
comprised of common stock, retained earnings, noncumulative perpetual
preferred stock, minority interests, and for bank holding companies, a limited
amount of qualifying cumulative perpetual preferred stock, less certain
intangibles including goodwill ("Tier 1 capital"). The remainder may consist
of other preferred stock, certain other instruments, and limited amounts of
subordinated debt and the loan and lease loss allowance.
In addition, the Federal Reserve Board has established minimum Leverage
Ratio (Tier 1 capital to average total assets) guidelines for bank holding
companies and banks and the FDIC has established substantially identical
minimum leverage requirements for state chartered, FDIC-insured, non-member
banks. The Federal Reserve Board's guidelines provide for a minimum Leverage
Ratio of 3% for bank holding companies and banks that meet certain specified
criteria, including having the highest regulatory rating. All other banking
organizations will be required to maintain a Leverage Ratio of at least 3%
plus an additional cushion of 100 to 200 basis points. The guidelines also
provide that banking organizations experiencing internal growth or making
acquisitions will be expected to maintain strong capital positions
substantially above the minimum supervisory levels, without significant
reliance on intangible assets. Furthermore, the guidelines indicate that the
Federal Reserve Board will continue to consider a "Tangible Tier 1 Leverage
Ratio" in evaluating proposals for expansion or new activities. The Tangible
Tier 1 Leverage Ratio is the ratio of Tier 1 capital, less intangibles not
deducted from Tier 1 capital, to average total assets. As of September 30,
1996, the Federal Reserve Board had not advised the Corporation of any
specific minimum Leverage Ratio applicable to it.
Federal bank regulators continue to indicate their desire to raise capital
requirements applicable to banking organizations. The Federal Reserve Board
has recently added an interest rate risk component to risk-based capital
requirements.
Certain consolidated ratios of the Corporation are included in the
Corporation's Current Report on Form 8-K for the report date October 15, 1996.
FDICIA
In addition to the effects of the provisions described above, the Federal
Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA") substantially
revised the depository institution regulatory and funding provisions of the
Federal Deposit Insurance Act ("FDIA") and made revisions to several other
federal banking statutes.
Among other things, FDICIA requires the federal banking regulators to take
prompt corrective action in respect of FDIC-insured depository institutions
that do not meet minimum capital requirements. FDICIA establishes five capital
tiers: "well capitalized," "adequately capitalized," "undercapitalized,"
"significantly undercapitalized" and "critically undercapitalized." A
depository institution's capital tier will depend upon how its capital levels
compare to various relevant capital measures and certain other factors, as
established by regulation. Under applicable regulations, an FDIC-insured bank
is defined to be well capitalized if it maintains a Leverage Ratio of at least
5%, a Tier 1 capital ratio of at least 6% and a Total Capital ratio of at
least 10% and is not otherwise in a "troubled condition" as specified by its
appropriate federal regulatory agency. A bank is generally considered to be
adequately capitalized if it is not defined to be well capitalized but meets
all of its minimum capital requirements, i.e., if it has a Total Capital ratio
of 8% or greater, a Tier 1 capital ratio of 4% or greater and a Leverage Ratio
of 4% or greater (or a Leverage Ratio of 3% or greater if the institution is
rated composite 1 in its most recent report of examination, subject to
appropriate federal banking agency guidelines). A bank will be considered
undercapitalized if it fails to meet any minimum
7
<PAGE>
required measure, significantly undercapitalized if it is significantly below
such measure and critically undercapitalized if it maintains a level of
tangible equity capital equal to or less than 2% of total assets. A bank may
be deemed to be in a capitalization category that is lower than is indicated
by its actual capital position if it receives an unsatisfactory examination
rating.
FDICIA generally prohibits an FDIC-insured depository institution from
making any capital distribution (including payment of dividends) or paying any
management fee to its holding company if the depository institution would
thereafter be undercapitalized. Undercapitalized depository institutions are
subject to growth limitations and are required to submit a capital restoration
plan. The federal banking agencies may not accept a capital plan without
determining, among other things, that the plan is based on realistic
assumptions and is likely to succeed in restoring the depository institution's
capital. In addition, for an undercapitalized depository institution's capital
restoration plan to be acceptable, its holding company must guarantee the
capital plan up to an amount equal to the lesser of 5% of the depository
institution's assets at the time it became undercapitalized or the amount of
the capital deficiency when the institution fails to comply with the plan. In
the event of the parent holding company's bankruptcy, such guarantee would
take priority over the parent's general unsecured creditors. If a depository
institution fails to submit an acceptable plan, it is treated as if it is
significantly undercapitalized.
Significantly undercapitalized depository institutions may be subject to a
number of requirements and restrictions, including orders to sell sufficient
voting stock to become adequately capitalized, requirements to reduce total
assets and cessation of receipt of deposits from correspondent banks.
Critically undercapitalized depository institutions are subject to appointment
of a receiver or conservator.
At September 30, 1996, the Bank, The Bank of New York (Delaware) and BNYNJ
were well capitalized. At September 30, 1996, the Bank had estimated leverage,
risk-based total capital and risk-based Tier 1 capital ratios of 7.34%, 10.52%
and 7.05% , respectively. The Bank of New York (Delaware) had estimated
leverage, risk-based total capital and risk-based Tier 1 capital ratios of
8.17%, 13.68% and 8.51%, respectively. BNYNJ had estimated leverage, risk-
based total capital and risk-based Tier 1 capital ratios of 14.93%, 16.20% and
7.75%, respectively.
FDIA
Under the FDIA, a depository institution insured by the FDIC can be held
liable for any loss incurred by, or reasonably expected to be incurred by, the
FDIC after August 9, 1989 in connection with (i) the default of a commonly
controlled FDIC-insured depository institution or (ii) any assistance provided
by the FDIC to a commonly controlled FDIC-insured depository institution in
danger of default. "Default" is defined generally as the appointment of a
conservator or receiver, and "in danger of default" is defined generally as
the existence of certain conditions indicating that a "default" is likely to
occur in the absence of regulatory assistance.
RECENT BANKING LEGISLATION
The Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994
("IBBEA") permits bank holding companies, with Federal Reserve Board approval,
to acquire banks located in states other than the bank holding company's home
state without regard to whether the transaction is prohibited under state law.
In addition, commencing June 1, 1997, national banks and state banks with
different home states will be permitted to merge across state lines, with the
approval of the appropriate federal banking agency, unless the home state of a
participating bank passes legislation between the date of enactment of IBBEA
and May 31, 1997 expressly prohibiting interstate mergers. IBBEA further
provides that states may enact laws permitting interstate bank merger
transactions prior to June 1, 1997. A bank may establish and operate a de novo
branch in a state in which the bank does not
8
<PAGE>
maintain a branch if that state expressly permits de novo branching. Once a
bank has established branches in a state through an interstate merger
transaction, the bank may establish and acquire additional branches at any
location in the state where any bank involved in the interstate merger
transaction could have established or acquired branches under applicable
federal or state law. A bank that has established a branch in a state through
de novo branching may establish and acquire additional branches in such state
in the same manner and to the same extent as a bank having a branch in such
state as a result of an interstate merger. If a state opts out of interstate
branching within the specified time period, no bank in any other state may
establish a branch in the state which has opted out, whether through an
acquisition or de novo.
OTHER
The Federal Reserve Act limits amounts of, and requires collateral on,
extensions of credit by the Corporation's insured bank subsidiaries to the
Corporation and, with certain exceptions, its nonbank affiliates; also, there
are restrictions on the amounts of investment by such banks in stock and other
securities of the Corporation and such affiliates, and restrictions on the
acceptance of their securities as collateral for loans by such banks.
Extensions of credit by insured bank subsidiaries to each of the Corporation
and such affiliates are limited to 10% of such bank subsidiary's capital and
surplus, and in the aggregate for the Corporation and all such affiliates to
20%.
PROPOSED LEGISLATION
Various bills have been introduced into the United States Congress that
would repeal, in some respects, the provisions of the Glass-Steagall Act which
prohibit certain banking organizations from engaging in certain securities
activities and the provisions of the BHC Act, which prohibit affiliations
between banking organizations and nonbanking organizations. The Corporation
cannot determine the ultimate effect that potential legislation, if enacted,
or implementing regulations, would have upon its financial condition or
results of operations.
Other proposals to change the laws and regulations governing the banking
industry are frequently introduced in Congress, in the state legislatures and
before the various bank regulatory agencies. The likelihood and timing of any
such changes and the impact such changes might have on the Corporation and its
subsidiaries, however, cannot be determined at this time.
9
<PAGE>
THE ISSUERS
Each Issuer is a statutory business trust formed under Delaware law pursuant
to (i) a trust agreement executed by the Corporation, as sponsor of the
Issuer, and the Delaware Trustee (as defined herein) of such Issuer and (ii)
the filing of a certificate of trust with the Delaware Secretary of State.
Each trust agreement will be amended and restated in its entirety (each, as so
amended and restated, a "Trust Agreement") substantially in the form filed as
an exhibit to the Registration Statement of which this Prospectus forms a
part. Each Trust Agreement will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). Each Issuer
exists for the exclusive purposes of (i) issuing and selling its Trust
Securities, (ii) using the proceeds from the sale of such Trust Securities to
acquire a corresponding series of Corresponding Junior Subordinated Debentures
issued by the Corporation, and (iii) engaging in only those other activities
necessary, convenient or incidental thereto. Accordingly, the Corresponding
Junior Subordinated Debentures and the right to reimbursement of expenses
under the related Expense Agreement will be the sole assets of each Issuer,
and payments under the Corresponding Junior Subordinated Debentures and the
related Expense Agreement will be the sole revenue of each Issuer.
All of the Common Securities of each Issuer will be owned by the
Corporation. The Common Securities of an Issuer will rank pari passu, and
payments will be made thereon pro rata, with the Preferred Securities of such
Issuer, except that upon the occurrence and continuance of an event of default
under a Trust Agreement resulting from a Debenture Event of Default (as
defined herein), the rights of the Corporation as holder of the Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of the Preferred Securities of such Issuer. See "Description of
Preferred Securities--Subordination of Common Securities". The Corporation
will acquire Common Securities in an aggregate liquidation amount equal to not
less than 3% of the total capital of each Issuer.
Unless otherwise specified in the applicable Prospectus Supplement, each
Issuer has a term of approximately 55 years, but may terminate earlier as
provided in the applicable Trust Agreement. Each Issuer's business and affairs
are conducted by its trustees, each appointed by the Corporation as holder of
the Common Securities. The trustees for each Issuer will be The First National
Bank of Chicago, as the Property Trustee (the "Property Trustee"), First
Chicago Delaware Inc., as the Delaware Trustee (the "Delaware Trustee"), and
two individual trustees (the "Administrative Trustees") who are employees or
officers of or affiliated with the Corporation (collectively, the "Issuer
Trustees"). The First National Bank of Chicago, as Property Trustee, will act
as sole indenture trustee under each Trust Agreement for purposes of
compliance with the Trust Indenture Act. The First National Bank of Chicago
will also act as trustee under the Guarantees and the Indenture (each as
defined herein). See "Description of Guarantees" and "Description of Junior
Subordinated Debentures". The holder of the Common Securities of an Issuer, or
the holders of a majority in liquidation preference of the Related Preferred
Securities if a Debenture Event of Default under the Trust Agreement for such
Issuer has occurred and is continuing, will be entitled to appoint, remove or
replace the Property Trustee and/or the Delaware Trustee for such Issuer. In
no event will the holders of the Preferred Securities have the right to vote
to appoint, remove or replace the Administrative Trustees; such voting rights
are vested exclusively in the holder of the Common Securities. The duties and
obligations of each Issuer Trustee are governed by the applicable Trust
Agreement. The Corporation will pay all fees and expenses related to each
Issuer and the offering of the Preferred Securities and will pay, directly or
indirectly, all ongoing costs, expenses and liabilities of each Issuer.
The principal executive office of each issuer is 48 Wall Street, New York,
New York 10286 and its telephone number is (212) 495-1784.
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USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus Supplement, the
Corporation intends to use the proceeds from the sale of its Junior
Subordinated Debentures (including Corresponding Junior Subordinated
Debentures issued to the Issuers in connection with the investment by the
Issuers of all of the proceeds from the sale of Preferred Securities) for
general corporate purposes, including working capital, capital expenditures,
investments in or loans to subsidiaries, refinancing of debt, including
outstanding commercial paper and other short-term bank indebtedness,
redemption or repurchase of shares of its outstanding common and preferred
stock, the satisfaction of other obligations or for such other purposes as may
be specified in the applicable Prospectus Supplement. A more detailed
description of the use of proceeds of any specific offering will be set forth
in the Prospectus Supplement pertaining to such offering.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued in one or more series
under a Junior Subordinated Indenture, as supplemented from time to time (as
so supplemented, the "Indenture"), between the Corporation and The First
National Bank of Chicago, as trustee (the "Debenture Trustee"). This summary
of certain terms and provisions of the Junior Subordinated Debentures,
Corresponding Junior Subordinated Debentures and the Indenture does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, the Indenture, the form of which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part, and to the Trust
Indenture Act. The Indenture is qualified under the Trust Indenture Act.
Whenever particular defined terms of the Indenture (as supplemented or amended
from time to time) are referred to herein or in a Prospectus Supplement, such
defined terms are incorporated herein or therein by reference.
GENERAL
Each series of Junior Subordinated Debentures will rank pari passu with all
other series of Junior Subordinated Debentures and will be unsecured and
subordinate and junior in right of payment to the extent and in the manner set
forth in the Indenture to all Senior Debt of the Corporation. See "--
Subordination". The Corporation is a non-operating holding company and almost
all of the operating assets of the Corporation and its consolidated
subsidiaries are owned by such subsidiaries. The Corporation relies primarily
on dividends from such subsidiaries to meet its obligations. See "Certain
Regulatory Considerations--Dividends". Because the Corporation is a holding
company, the right of the Corporation to participate in any distribution of
assets of any subsidiary upon such subsidiary's liquidation or reorganization
or otherwise, is subject to the prior claims of creditors of the subsidiary,
except to the extent the Corporation may itself be recognized as a creditor of
that subsidiary. Accordingly, the Junior Subordinated Debentures will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and holders of Junior Subordinated Debentures
should look only to the assets of the Corporation for payments on the Junior
Subordinated Debentures. Except as otherwise provided in the applicable
Prospectus Supplement, the Indenture does not limit the incurrence or issuance
of other secured or unsecured debt of the Corporation, including Senior Debt,
whether under the Indenture, any other indenture that the Corporation may
enter into in the future or otherwise. See "--Subordination" and the
Prospectus Supplement relating to any offering of Preferred Securities.
The Junior Subordinated Debentures will be issuable in one or more series
pursuant to an indenture supplemental to the Indenture or a resolution of the
Corporation's Board of Directors or a committee thereof.
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The applicable Prospectus Supplement or Prospectus Supplements will describe
the following terms of the Junior Subordinated Debentures: (1) the title of
the Junior Subordinated Debentures; (2) any limit upon the aggregate principal
amount of the Junior Subordinated Debentures; (3) the date or dates on which
the principal of the Junior Subordinated Debentures is payable (the "Stated
Maturity") or the method of determination thereof; (4) the rate or rates, if
any, at which the Junior Subordinated Debentures shall bear interest, the
Interest Payment Dates on which any such interest shall be payable, the right,
if any, of the Corporation to defer or extend an Interest Payment Date, and
the Regular Record Date for any interest payable on any Interest Payment Date
or the method by which any of the foregoing shall be determined; (5) the place
or places where, subject to the terms of the Indenture as described below
under "--Payment and Paying Agents", the principal of and premium, if any, and
interest on the Junior Subordinated Debentures will be payable and where,
subject to the terms of the Indenture as described below under "--
Denominations, Registration and Transfer," the Junior Subordinated Debentures
may be presented for registration of transfer or exchange and the place or
places where notices and demands to or upon the Corporation in respect of the
Junior Subordinated Debentures and the Indentures may be made ("Place of
Payment"); (6) any period or periods within or date or dates on which, the
price or prices at which and the terms and conditions upon which Junior
Subordinated Debentures may be redeemed, in whole or in part, at the option of
the Corporation or a holder thereof; (7) the obligation or the right, if any,
of the Corporation or a holder thereof to redeem, purchase or repay the Junior
Subordinated Debentures and the period or periods within which, the price or
prices at which, the currency or currencies (including currency unit or units)
in which and the other terms and conditions upon which the Junior Subordinated
Debentures shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation; (8) the denominations in which any Junior
Subordinated Debentures shall be issuable if other than denominations of $25
and any integral multiple thereof; (9) if other than in U.S. Dollars, the
currency or currencies (including currency unit or units) in which the
principal of (and premium, if any) and interest, if any, on the Junior
Subordinated Debentures shall be payable, or in which the Junior Subordinated
Debentures shall be denominated; (10) any additions, modifications or
deletions in the Events of Default or covenants of the Corporation specified
in the Indenture with respect to the Junior Subordinated Debentures; (11) if
other than the principal amount thereof, the portion of the principal amount
of Junior Subordinated Debentures that shall be payable upon declaration of
acceleration of the maturity thereof; (12) any additions or changes to the
Indenture with respect to a series of Junior Subordinated Debentures as shall
be necessary to permit or facilitate the issuance of such series in bearer
form, registrable or not registrable as to principal, and with or without
interest coupons; (13) any index or indices used to determine the amount of
payments of principal of and premium, if any, on the Junior Subordinated
Debentures and the manner in which such amounts will be determined; (14) the
terms and conditions relating to the issuance of a temporary Global Security
representing all of the Junior Subordinated Debentures of such series and the
exchange of such temporary Global Security for definitive Junior Subordinated
Debentures of such series; (15) subject to the terms described under "--Global
Junior Subordinated Debentures", whether the Junior Subordinated Debentures of
the series shall be issued in whole or in part in the form of one or more
Global Securities and, in such case, the Depositary for such Global
Securities, which Depositary shall be a clearing agency registered under the
Exchange Act; (16) the appointment of any Paying Agent or Agents; (17) the
terms and conditions of any obligation or right of the Corporation or a holder
to convert or exchange the Junior Subordinated Debentures into Preferred
Securities; (18) the form of Trust Agreement and Guarantee Agreement, if
applicable; (19) the relative degree, if any, to which such Junior
Subordinated Debentures of the series shall be senior to or be subordinated to
other series of such Junior Subordinated Debentures or other indebtedness of
the Corporation in right of payment, whether such other series of Junior
Subordinated Debentures or other indebtedness are outstanding or not; and (20)
any other terms of the Junior Subordinated Debentures not inconsistent with
the provisions of the Indenture.
Junior Subordinated Debentures may be sold at a substantial discount below
their stated principal amount, bearing no interest or interest at a rate which
at the time of issuance is below market rates.
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Certain United States Federal income tax consequences and special
considerations applicable to any such Junior Subordinated Debentures will be
described in the applicable Prospectus Supplement.
If the purchase price of any of the Junior Subordinated Debentures is
payable in one or more foreign currencies or currency units or if any Junior
Subordinated Debentures are denominated in one or more foreign currencies or
currency units or if the principal of, premium, if any, or interest, if any,
on any Junior Subordinated Debentures is payable in one or more foreign
currencies or currency units, the restrictions, elections, certain United
States Federal income tax consequences, specific terms and other information
with respect to such issue of Junior Subordinated Debentures and such foreign
currency or currency units will be set forth in the applicable Prospectus
Supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest on any series of Junior Subordinated Debentures,
special United States Federal income tax, accounting and other considerations
applicable thereto will be described in the applicable Prospectus Supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable Prospectus Supplement, the
Junior Subordinated Debentures will be issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.
Junior Subordinated Debentures of any series will be exchangeable for other
Junior Subordinated Debentures of the same issue and series, of any authorized
denominations, of a like aggregate principal amount, of the same Original
Issue Date and Stated Maturity and bearing the same interest rate.
Junior Subordinated Debentures may be presented for exchange as provided
above, and may be presented for registration of transfer (with the form of
transfer endorsed thereon, or a satisfactory written instrument of transfer,
duly executed), at the office of the appropriate Securities Registrar or at
the office of any transfer agent designated by the Corporation for such
purpose with respect to any series of Junior Subordinated Debentures and
referred to in the applicable Prospectus Supplement, without service charge
and upon payment of any taxes and other governmental charges as described in
the Indenture. The Corporation will appoint the Trustee as Securities
Registrar under the Indenture. If the applicable Prospectus Supplement refers
to any transfer agents (in addition to the Securities Registrar) initially
designated by the Corporation with respect to any series of Junior
Subordinated Debentures, the Corporation may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, provided that the Corporation
maintains a transfer agent in each Place of Payment for such series. The
Corporation may at any time designate additional transfer agents with respect
to any series of Junior Subordinated Debentures.
In the event of any redemption, neither the Corporation nor the Debenture
Trustee shall be required to (i) issue, register the transfer of or exchange
Junior Subordinated Debentures of any series during the period beginning at
the opening of business 15 days before the day of selection for redemption of
Junior Subordinated Debentures of that series and ending at the close of
business on the day of mailing of the relevant notice of redemption or (ii)
transfer or exchange any Junior Subordinated Debentures so selected for
redemption, except, in the case of any Junior Subordinated Debentures being
redeemed in part, any portion thereof not to be redeemed.
GLOBAL JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures of a series may be issued in whole or in
part in the form of one or more Global Junior Subordinated Debentures that
will be deposited with, or on behalf of, a depositary (the "Depositary")
identified in the Prospectus Supplement relating to such series. Global
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Junior Subordinated Debentures may be issued only in fully registered form and
in either temporary or permanent form. Unless and until it is exchanged in
whole or in part for the individual Junior Subordinated Debentures represented
thereby, a Global Junior Subordinated Debenture may not be transferred except
as a whole by the Depositary for such Global Junior Subordinated Debenture to
a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by the Depositary or any
nominee to a successor Depositary or any nominee of such successor.
The specific terms of the depositary arrangement with respect to a series of
Junior Subordinated Debentures will be described in the Prospectus Supplement
relating to such series. The Corporation anticipates that the following
provisions will generally apply to depositary arrangements.
Upon the issuance of a Global Junior Subordinated Debenture, and the deposit
of such Global Junior Subordinated Debenture with or on behalf of the
Depositary, the Depositary for such Global Junior Subordinated Debenture or
its nominee will credit, on its book-entry registration and transfer system,
the respective principal amounts of the individual Junior Subordinated
Debentures represented by such Global Junior Subordinated Debenture to the
accounts of persons that have accounts with such Depositary ("Participants").
Such accounts shall be designated by the dealers, underwriters or agents with
respect to such Junior Subordinated Debentures or by the Corporation if such
Junior Subordinated Debentures are offered and sold directly by the
Corporation. Ownership of beneficial interests in a Global Junior Subordinated
Debenture will be limited to Participants or persons that may hold interests
through Participants. Ownership of beneficial interests in such Global Junior
Subordinated Debenture will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the applicable Depositary
or its nominee (with respect to interests of Participants) and the records of
Participants (with respect to interests of persons who hold through
Participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests
in a Global Junior Subordinated Debenture.
So long as the Depositary for a Global Junior Subordinated Debenture, or its
nominee, is the registered owner of such Global Junior Subordinated Debenture,
such Depositary or such nominee, as the case may be, will be considered the
sole owner or holder of the Junior Subordinated Debentures represented by such
Global Junior Subordinated Debenture for all purposes under the Indenture
governing such Junior Subordinated Debentures. Except as provided below,
owners of beneficial interests in a Global Junior Subordinated Debenture will
not be entitled to have any of the individual Junior Subordinated Debentures
of the series represented by such Global Junior Subordinated Debenture
registered in their names, will not receive or be entitled to receive physical
delivery of any such Junior Subordinated Debentures of such series in
definitive form and will not be considered the owners or holders thereof under
the Indenture.
Payments of principal of (and premium, if any) and interest on individual
Junior Subordinated Debentures represented by a Global Junior Subordinated
Debenture registered in the name of a Depositary or its nominee will be made
to the Depositary or its nominee, as the case may be, as the registered owner
of the Global Junior Subordinated Debenture representing such Junior
Subordinated Debentures. None of the Corporation, the Debenture Trustee, any
Paying Agent, or the Securities Registrar for such Junior Subordinated
Debentures will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Global Junior Subordinated Debenture representing such Junior
Subordinated Debentures or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Corporation expects that the Depositary for a series of Junior
Subordinated Debentures or its nominee, upon receipt of any payment of
principal, premium or interest in respect of a permanent Global Junior
Subordinated Debenture representing any of such Junior Subordinated
Debentures,
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immediately will credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interest in the principal amount
of such Global Junior Subordinated Debenture for such Junior Subordinated
Debentures as shown on the records of such Depositary or its nominee. The
Corporation also expects that payments by Participants to owners of beneficial
interests in such Global Junior Subordinated Debenture held through such
Participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name." Such payments will be
the responsibility of such Participants.
Unless otherwise specified in the applicable Prospectus Supplement, if a
Depositary for a series of Junior Subordinated Debentures is at any time
unwilling, unable or ineligible to continue as depositary and a successor
depositary is not appointed by the Corporation within 90 days, the Corporation
will issue individual Junior Subordinated Debentures of such series in
exchange for the Global Junior Subordinated Debenture representing such series
of Junior Subordinated Debentures. In addition, the Corporation may at any
time and in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Junior Subordinated Debentures,
determine not to have any Junior Subordinated Debentures of such series
represented by one or more Global Junior Subordinated Debentures and, in such
event, will issue individual Junior Subordinated Debentures of such series in
exchange for the Global Junior Subordinated Debenture or Securities
representing such series of Junior Subordinated Debentures. Further, if the
Corporation so specifies with respect to the Junior Subordinated Debentures of
a series, an owner of a beneficial interest in a Global Junior Subordinated
Debenture representing Junior Subordinated Debentures of such series may, on
terms acceptable to the Corporation, the Debenture Trustee and the Depositary
for such Global Junior Subordinated Debenture, receive individual Junior
Subordinated Debentures of such series in exchange for such beneficial
interests, subject to any limitations described in the Prospectus Supplement
relating to such Junior Subordinated Debentures. In any such instance, an
owner of a beneficial interest in a Global Junior Subordinated Debenture will
be entitled to physical delivery of individual Junior Subordinated Debentures
of the series represented by such Global Junior Subordinated Debenture equal
in principal amount to such beneficial interest and to have such Junior
Subordinated Debentures registered in its name. Individual Junior Subordinated
Debentures of such series so issued will be issued in denominations, unless
otherwise specified by the Corporation, of $25 and integral multiples thereof.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of (and premium, if any) and any interest on Junior Subordinated
Debentures will be made at the office of the Debenture Trustee in the City of
New York or at the office of such Paying Agent or Paying Agents as the
Corporation may designate from time to time, except that at the option of the
Corporation payment of any interest may be made (i) except in the case of
Global Junior Subordinated Debentures, by check mailed to the address of the
Person entitled thereto as such address shall appear in the Securities
Register or (ii) by transfer to an account maintained by the Person entitled
thereto as specified in the Securities Register, provided that proper transfer
instructions have been received by the Regular Record Date. Unless otherwise
indicated in the applicable Prospectus Supplement, payment of any interest on
Junior Subordinated Debentures will be made to the Person in whose name such
Junior Subordinated Debenture is registered at the close of business on the
Regular Record Date for such interest, except in the case of Defaulted
Interest. The Corporation may at any time designate additional Paying Agents
or rescind the designation of any Paying Agent; however the Corporation will
at all times be required to maintain a Paying Agent in each Place of Payment
for each series of Junior Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or then
held by the Corporation in trust, for the payment of the principal of (and
premium, if any) or interest on any Junior
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Subordinated Debenture and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall,
at the request of the Corporation, be repaid to the Corporation and the holder
of such Junior Subordinated Debenture shall thereafter look, as a general
unsecured creditor, only to the Corporation for payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
If provided in the applicable Prospectus Supplement, the Corporation shall
have the right at any time and from time to time during the term of any series
of Junior Subordinated Debentures to defer payment of interest for such number
of consecutive interest payment periods as may be specified in the applicable
Prospectus Supplement (each, an "Extension Period"), subject to the terms,
conditions and covenants, if any, specified in such Prospectus Supplement,
provided that such Extension Period may not extend beyond the Stated Maturity
of such series of Junior Subordinated Debentures. Certain United States
Federal income tax consequences and special considerations applicable to any
such Junior Subordinated Debentures will be described in the applicable
Prospectus Supplement.
REDEMPTION
Unless otherwise indicated in the applicable Prospectus Supplement, Junior
Subordinated Debentures will not be subject to any sinking fund.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporation may, at its option and subject to receipt of prior approval by the
Board of Governors of the Federal Reserve System (the "Federal Reserve") if
such approval is then required under applicable capital guidelines or
policies, redeem the Junior Subordinated Debentures of any series in whole at
any time or in part from time to time. If the Junior Subordinated Debentures
of any series are so redeemable only on or after a specified date or upon the
satisfaction of additional conditions, the applicable Prospectus Supplement
will specify such date or describe such conditions. Junior Subordinated
Debentures in denominations larger than $25 may be redeemed in part but only
in integral multiples of $25. Except as otherwise specified in the applicable
Prospectus Supplement, the redemption price for any Junior Subordinated
Debenture so redeemed shall equal any accrued and unpaid interest thereon to
the redemption date, plus the principal amount thereof.
Except as otherwise specified in the applicable Prospectus Supplement, if a
Tax Event (as defined below) in respect of a series of Junior Subordinated
Debentures shall occur and be continuing, the Corporation may, at its option
and subject to receipt of prior approval by the Federal Reserve if such
approval is then required under applicable capital guidelines or policies,
redeem such series of Junior Subordinated Debentures in whole (but not in
part) at any time within 90 days of the occurrence of such Tax Event, at a
redemption price equal to 100% of the principal amount of such Junior
Subordinated Debentures then outstanding plus accrued and unpaid interest to
the date fixed for redemption.
"Tax Event" means the receipt by the Corporation of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or
any regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of issuance of the
applicable series of Junior Subordinated Debentures under the Indenture, there
is more than an insubstantial risk that interest payable by the Corporation on
such series of Junior Subordinated Debentures is not, or within 90 days of the
date of such opinion will not be, deductible by the Corporation, in whole or
in part, for United States Federal income tax purposes.
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Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Junior Subordinated
Debentures to be redeemed at its registered address. Unless the Corporation
defaults in payment of the redemption price, on and after the redemption date
interest shall cease to accrue on such Junior Subordinated Debentures or
portions thereof called for redemption.
RESTRICTIONS ON CERTAIN PAYMENTS
The Corporation will also covenant, as to each series of Junior Subordinated
Debentures, that it will not, and will not permit any subsidiary of the
Corporation to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Corporation's capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any debt
securities of the Corporation (including other Junior Subordinated Debentures)
that rank pari passu with or junior in interest to the Junior Subordinated
Debentures or make any guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any subsidiary of the Corporation if
such guarantee ranks pari passu with or junior in interest to the Junior
Subordinated Debentures (other than (a) dividends or distributions in common
stock of the Corporation, (b) any declaration of a dividend in connection with
the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) payments under any Guarantee and (d) purchases of
common stock related to the issuance of common stock or rights under any of
the Corporation's benefit plans for its directors, officers or employees), if
at such time (i) there shall have occurred any event of which the Corporation
has actual knowledge that (a) with the giving of notice or the lapse of time,
or both, would constitute an "Event of Default" under the Indenture with
respect to the Junior Subordinated Debentures of such series and (b) in
respect of which the Corporation shall not have taken reasonable steps to
cure, (ii) if such Junior Subordinated Debentures are held by an Issuer of a
series of Related Preferred Securities, the Corporation shall be in default
with respect to its payment of any obligations under the Guarantee relating to
such Related Preferred Securities or (iii) the Corporation shall have given
notice of its selection of an Extension Period as provided in the Indenture
with respect to the Junior Subordinated Debentures of such series and shall
not have rescinded such notice, or such Extension Period, or any extension
thereof, shall be continuing.
MODIFICATION OF INDENTURE
From time to time the Corporation and the Debenture Trustee may, without the
consent of the holders of any series of Junior Subordinated Debentures, amend,
waive or supplement the Indenture for specified purposes, including, among
other things, curing ambiguities, defects or inconsistencies (provided that
any such action does not materially adversely affect the interest of the
holders of any series of Junior Subordinated Debentures or, in the case of
Corresponding Junior Subordinated Debentures, the holders of the Related
Preferred Securities so long as they remain outstanding) and qualifying, or
maintaining the qualification of, the Indenture under the Trust Indenture Act.
The Indenture contains provisions permitting the Corporation and the Debenture
Trustee, with the consent of the holders of not less than a majority in
principal amount of each outstanding series of Junior Subordinated Debentures
affected, to modify the Indenture in a manner affecting the rights of the
holders of such series of the Junior Subordinated Debentures; provided, that
no such modification may, without the consent of the holder of each
outstanding Junior Subordinated Debenture so affected, (i) change the Stated
Maturity of any series of Junior Subordinated Debentures (except as otherwise
specified in the applicable Prospectus Supplement), or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon or (ii) reduce the percentage of principal amount of Junior
Subordinated Debentures of any series, the holders of which are required to
consent to any such modification of the Indenture, provided that, in the case
of Corresponding Junior Subordinated Debentures, so long as any of the Related
Preferred Securities remain outstanding, no such modification may be made that
adversely affects the holders of such Preferred Securities in any
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material respect, and no termination of the Indenture may occur, and no waiver
of any Debenture Event of Default or compliance with any covenant under the
Indenture may be effective, without the prior consent of the holders of at
least a majority of the aggregate liquidation preference of such Related
Preferred Securities unless and until the principal of the Corresponding
Junior Subordinated Debentures and all accrued and unpaid interest thereon
have been paid in full and certain other conditions are satisfied.
In addition, the Corporation and the Debenture Trustee may execute, without
the consent of any holder of Junior Subordinated Debentures, any supplemental
Indenture for the purpose of creating any new series of Junior Subordinated
Debentures.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to a series of Junior Subordinated Debentures that has
occurred and is continuing constitutes a "Debenture Event of Default" with
respect to such series of Junior Subordinated Debentures:
(i) failure for 30 days to pay any interest on such series of the Junior
Subordinated Debentures, when due (subject to the deferral of any due date
in the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on such series of
Junior Subordinated Debentures when due whether at maturity, upon
redemption by declaration or otherwise; or
(iii) failure to observe or perform in any material respect certain other
covenants contained in the indenture for 90 days after written notice to
the Corporation from the Debenture Trustee or the holders of at least 25%
in aggregate outstanding principal amount of such series of outstanding
Junior Subordinated Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Corporation.
The holders of a majority in aggregate outstanding principal amount of such
series of Junior Subordinated Debentures have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Debenture Trustee. The Debenture Trustee or the holders of not less than 25%
in aggregate outstanding principal amount of such series of Junior
Subordinated Debentures may declare the principal due and payable immediately
upon a Debenture Event of Default, and, in the case of Corresponding Junior
Subordinated Debentures, should the Debenture Trustee or such holders of such
Corresponding Junior Subordinated Debentures fail to make such declaration,
the holders of at least 25% in aggregate liquidation preference of the Related
Preferred Securities shall have such right. The holders of a majority in
aggregate outstanding principal amount of such series of Junior Subordinated
Debentures may annul such declaration and waive the default if the default
(other than the non-payment of the principal of such series of Junior
Subordinated Debentures which has become due solely by such acceleration) has
been cured and a sum sufficient to pay all matured installments of interest
and principal due otherwise than by acceleration has been deposited with the
Debenture Trustee. In the case of Corresponding Junior Subordinated
Debentures, should the holders of such Corresponding Junior Subordinated
Debentures fail to annul such declaration and waive such default, the holders
of a majority in aggregate liquidation preference of the Related Preferred
Securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures affected thereby may, on behalf of the holders
of all the Junior Subordinated Debentures, waive any past default, except a
default in the payment of principal or interest (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default in respect of a
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covenant or provision which under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding Junior Subordinated
Debenture. In the case of Corresponding Junior Subordinated Debentures, should
the holders of such Corresponding Junior Subordinated Debentures fail to annul
such declaration and waive such default, the holders of a majority in
aggregate liquidation preference of the Related Preferred Securities shall
have such right. The Corporation is required to file annually with the
Debenture Trustee a certificate as to whether or not the Corporation is in
compliance with all the conditions and covenants applicable to it under the
Indenture.
In case a Debenture Event of Default shall occur and be continuing as to a
series of Corresponding Junior Subordinated Debentures, the Property Trustee
will have the right to declare the principal of and the interest on such
Corresponding Junior Subordinated Debentures, and any other amounts payable
under the Indenture, to be forthwith due and payable and to enforce its other
rights as a creditor with respect to such Corresponding Junior Subordinated
Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Corporation to pay interest or
principal on the related Junior Subordinated Debentures on the date such
interest or principal is otherwise payable, a holder of Preferred Securities
may institute a legal proceeding directly against the Corporation for
enforcement of payment to such holder of the principal of or interest on such
related Junior Subordinated Debentures having a principal amount equal to the
aggregate Liquidation Amount of the related Preferred Securities of such
holder (a "Direct Action"). The Corporation may not amend the Indenture to
remove the foregoing right to bring a Direct Action without the prior written
consent of the holders of all of the Preferred Securities. If the right to
bring a Direct Action is removed, the applicable Issuer may become subject to
the reporting obligations under the Securities Exchange Act of 1934, as
amended. The Corporation shall have the right under the Indenture to set-off
any payment made to such holder of Preferred Securities by the Corporation in
connection with a Direct Action.
The holders of the Preferred Securities will not be able to exercise
directly any remedies other than those set forth in the preceding paragraph
available to the holders of the Junior Subordinated Debentures unless there
shall have been an Event of Default under the Trust Agreement. See
"Description of Preferred Securities--Events of Default; Notice".
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Corporation shall not consolidate with or
merge into any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Corporation or convey, transfer or lease
its properties and assets substantially as an entirety to the Corporation,
unless (i) in case the Corporation consolidates with or merges into another
Person or conveys or transfers its properties and assets substantially as an
entirety to any Person, the successor Person is organized under the laws of
the United States or any state or the District of Columbia, and such successor
Person expressly assumes the Corporation's obligations on the Junior
Subordinated Debentures issued under the Indenture; (ii) immediately after
giving effect thereto, no Debenture Event of Default, and no event which,
after notice or lapse of time or both, would become a Debenture Event of
Default, shall have happened and be continuing; (iii) in the case of
Corresponding Junior Subordinated Debentures, such transaction is permitted
under the related Trust Agreement and Guarantee and does not give rise to any
breach or violation of the related Trust Agreement or Guarantee, and (iv)
certain other conditions as prescribed in the Indenture are met.
The general provisions of the Indenture do not afford holders of the Junior
Subordinated Debentures protection in the event of a highly leveraged or other
transaction involving the Corporation that may adversely affect holders of the
Junior Subordinated Debentures.
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SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation (i) have become due and payable or (ii) will become due and
payable at their Stated Maturity within one year, and the Corporation deposits
or causes to be deposited with the Debenture Trustee trust funds, in trust,
for the purpose and in an amount in the currency or currencies in which the
Junior Subordinated Debentures are payable sufficient to pay and discharge the
entire indebtedness on the Junior Subordinated Debentures not previously
delivered to the Debenture Trustee for cancellation, for the principal (and
premium, if any) and interest to the date of the deposit or to the Stated
Maturity, as the case may be, then the Indenture will cease to be of further
effect (except as to the Corporation's obligations to pay all other sums due
pursuant to the Indenture and to provide the officers' certificates and
opinions of counsel described therein), and the Corporation will be deemed to
have satisfied and discharged the Indenture.
CONVERSION OR EXCHANGE
If and to the extent indicated in the applicable Prospectus Supplement, the
Junior Subordinated Debentures of any series may be convertible or
exchangeable into Preferred Securities or other securities. The specific terms
on which Junior Subordinated Debentures of any series may be so converted or
exchanged will be set forth in the applicable Prospectus Supplement. Such
terms may include provisions for conversion or exchange, either mandatory, at
the option of the holder, or at the option of the Corporation, in which case
the number of shares of Preferred Securities or other securities to be
received by the holders of Junior Subordinated Debentures would be calculated
as of a time and in the manner stated in the applicable Prospectus Supplement.
SUBORDINATION
In the Indenture, the Corporation has covenanted and agreed that any Junior
Subordinated Debentures issued thereunder will be subordinate and junior in
right of payment to all Senior Debt to the extent provided in the Indenture.
Upon any payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Corporation, the holders of Senior Debt will
first be entitled to receive payment in full of principal of (and premium, if
any) and interest, if any, on such Senior Debt before the holders of Junior
Subordinated Debentures or, in the case of Corresponding Junior Subordinated
Debentures, the Property Trustee on behalf of the holders of Related Preferred
Securities, will be entitled to receive or retain any payment in respect of
the principal of (and premium, if any) or interest, if any, on the Junior
Subordinated Debentures.
In the event of the acceleration of the maturity of any Junior Subordinated
Debentures, the holders of all Senior Debt outstanding at the time of such
acceleration will first be entitled to receive payment in full of all amounts
due thereon (including any amounts due upon acceleration) before the holders
of Junior Subordinated Debentures will be entitled to receive or retain any
payment in respect of the principal of (or premium, if any) or interest, if
any, on the Junior Subordinated Debentures.
No payments on account of principal (or premium, if any) or interest, if
any, in respect of the Junior Subordinated Debentures may be made if there
shall have occurred and be continuing a default in any payment with respect to
Senior Debt or an event of default with respect to any Senior Debt resulting
in the acceleration of the maturity thereof or if any judicial proceeding
shall be pending with respect to any such default.
"Debt" means with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar
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instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses; (iii) every reimbursement obligation of
such Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person; (iv) every obligation of
such Person issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable or accrued liabilities arising
in the ordinary course of business); (v) every capital lease obligation of
such Person; (vi) all indebtedness of the Corporation whether incurred on or
prior to the date of the Indenture or thereafter incurred, for claims in
respect of derivative products, including interest rate, foreign exchange rate
and commodity forward contracts, options and swaps and similar arrangements;
and (vii) every obligation of the type referred to in clauses (i) through (vi)
of another Person and all dividends of another Person the payment of which, in
either case, such Person has guaranteed or is responsible or liable, directly
or indirectly, as obligor or otherwise.
"Senior Debt" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Corporation whether or not
such claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of the Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Junior Subordinated
Debentures or to other Debt which is pari passu with, or subordinated to, the
Junior Subordinated Debentures; provided, however, that Senior Debt shall not
be deemed to include (i) any Debt of the Corporation which when incurred and
without respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, as amended, was without recourse to the Corporation,
(ii) any Debt of the Corporation to any of its subsidiaries, (iii) Debt to any
employee of the Corporation, and (iv) any other debt securities issued
pursuant to the Indenture.
The Indenture places no limitation on the amount of additional Senior Debt
that may be incurred by the Corporation. The Corporation expects from time to
time to incur additional indebtedness constituting Senior Debt.
The Indenture provides that the foregoing subordination provisions, insofar
as they relate to any particular issue of Junior Subordinated Debentures, may
be changed prior to such issuance. Any such change would be described in the
applicable Prospectus Supplement.
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by and
construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the
Trust Indenture Act. Subject to such provisions, the Debenture Trustee is
under no obligation to exercise any of the powers vested in it by the
Indenture at the request of any holder of Junior Subordinated Debentures,
unless offered reasonable indemnity by such holder against the costs, expenses
and liabilities which might be incurred thereby. The Debenture Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if the Debenture Trustee reasonably
believes that repayment or adequate indemnity is not reasonably assured to it.
CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
The Corresponding Junior Subordinated Debentures may be issued in one or
more series of Junior Subordinated Debentures under the Indenture with terms
corresponding to the terms of a series of Related Preferred Securities. In
that event, concurrently with the issuance of each Issuer's Preferred
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Securities, such Issuer will invest the proceeds thereof and the consideration
paid by the Corporation for the Common Securities in a series of Corresponding
Junior Subordinated Debentures issued by the Corporation to such Issuer. Each
series of Corresponding Junior Subordinated Debentures will be in the
principal amount equal to the aggregate stated Liquidation Amount of the
Related Preferred Securities and the Common Securities of such Issuer and will
rank pari passu with all other series of Junior Subordinated Debentures.
Holders of the Related Preferred Securities for a series of Corresponding
Junior Subordinated Debentures will have the rights in connection with
modifications to the Indenture or upon occurrence of Debenture Events of
Default described under "--Modification of Indenture" and "--Debenture Events
of Default", unless provided otherwise in the Prospectus Supplement for such
Related Preferred Securities.
Unless otherwise specified in the applicable Prospectus Supplement, if a Tax
Event in respect of an Issuer of Related Preferred Securities shall occur and
be continuing, the Corporation may, at its option and subject to prior
approval of the Federal Reserve (if then so required under applicable capital
guidelines or policies), redeem the Corresponding Junior Subordinated
Debentures at any time within 90 days of the occurrence of such Tax Event, in
whole but not in part, subject to the provisions of the Indenture and whether
or not such Corresponding Junior Subordinated Debentures are then otherwise
redeemable at the option of the Corporation. The redemption price for any
Corresponding Junior Subordinated Debentures shall be equal to 100% of the
principal amount of such Corresponding Junior Subordinated Debentures then
outstanding plus accrued and unpaid interest to the date fixed for redemption.
For so long as the applicable Issuer is the holder of all the outstanding
series of Corresponding Junior Subordinated Debentures, the proceeds of any
such redemption will be used by the Issuer to redeem the corresponding Trust
Securities in accordance with their terms. The Corporation may not redeem a
series of Corresponding Junior Subordinated Debentures in part unless all
accrued and unpaid interest has been paid in full on all outstanding
Corresponding Junior Subordinated Debentures of such series for all interest
periods terminating on or prior to the Redemption Date.
The Corporation will covenant in the Indenture as to each series of
Corresponding Junior Subordinated Debentures, that if and so long as (i) the
Issuer of the related series of Trust Securities is the holder of all such
Corresponding Junior Subordinated Debentures, (ii) a Tax Event in respect of
such Issuer has occurred and is continuing and (iii) the Corporation has
elected, and has not revoked such election, to pay Additional Sums (as defined
under "Description of Preferred Securities--Redemption or Exchange") in
respect of such Trust Securities, the Corporation will pay to such Issuer such
Additional Sums. The Corporation will also covenant, as to each series of
Corresponding Junior Subordinated Debentures, (i) to maintain directly or
indirectly 100% ownership of the Common Securities of the Issuer to which
Corresponding Junior Subordinated Debentures have been issued, provided that
certain successors which are permitted pursuant to the Indenture may succeed
to the Corporation's ownership of the Common Securities, (ii) not to
voluntarily terminate, wind-up or liquidate any Issuer, except upon prior
approval of the Federal Reserve if such approval is then so required under
applicable capital guidelines or policies of the Federal Reserve, and (a) in
connection with a distribution of Corresponding Junior Subordinated Debentures
to the holders of the Preferred Securities in liquidation of such Issuer or
(b) in connection with certain mergers, consolidations or amalgamations
permitted by the related Trust Agreement and (iii) to use its reasonable
efforts, consistent with the terms and provisions of the related Trust
Agreement, to cause such Issuer to remain classified as a grantor trust and
not as an association taxable as a corporation for United States Federal
income tax purposes.
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DESCRIPTION OF PREFERRED SECURITIES
Pursuant to the terms of the Trust Agreement for each Issuer, the Issuer
Trustees on behalf of such Issuer will issue the Preferred Securities and the
Common Securities. The Preferred Securities of a particular Issuer will
represent preferred beneficial interests in the Issuer and the holders thereof
will be entitled to a preference in certain circumstances with respect to
Distributions and amounts payable on redemption or liquidation over the Common
Securities of such Issuer, as well as other benefits as described in the
corresponding Trust Agreement. This summary of certain provisions of the
Preferred Securities and each Trust Agreement does not purport to be complete
and is subject to, and is qualified in its entirety by reference to, all the
provisions of each Trust Agreement, including the definitions therein of
certain terms, and the Trust Indenture Act. Wherever particular defined terms
of a Trust Agreement (as amended or supplemented from time to time) are
referred to herein or in a Prospectus Supplement, such defined terms are
incorporated herein or therein by reference. The form of the Trust Agreement
has been filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. Each of the Issuers is a legally separate entity and
the assets of one are not available to satisfy the obligations of any of the
others.
GENERAL
The Preferred Securities of an Issuer will rank pari passu, and payments
will be made thereon pro rata, with the Common Securities of that Issuer
except as described under "--Subordination of Common Securities". Legal title
to the Corresponding Junior Subordinated Debentures will be held by the
Property Trustee in trust for the benefit of the holders of the related
Preferred Securities and Common Securities. Each Guarantee Agreement executed
by the Corporation for the benefit of the holders of an Issuer's Preferred
Securities (the "Guarantee" for such Preferred Securities) will be a guarantee
on a subordinated basis with respect to the related Preferred Securities but
will not guarantee payment of Distributions or amounts payable on redemption
or liquidation of such Preferred Securities when the related Issuer does not
have funds on hand available to make such payments. See "Description of
Guarantees."
DISTRIBUTIONS
Distributions on the Preferred Securities will be cumulative, will
accumulate from the date of original issuance and will be payable on such
dates as specified in the applicable Prospectus Supplement. In the event that
any date on which Distributions are payable on the Preferred Securities is not
a Business Day (as defined below), payment of the Distribution payable on such
date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect to any such delay) except
that, if such Business Day is in the next succeeding calendar year, payment of
such Distribution shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date (each date on
which Distributions are payable in accordance with the foregoing, a
"Distribution Date"). A "Business Day" shall mean any day other than a
Saturday or a Sunday, or a day on which banking institutions in The City of
New York are authorized or required by law or executive order to remain closed
or a day on which the corporate trust office of the Property Trustee or the
Debenture Trustee is closed for business.
Each Issuer's Preferred Securities represent preferred beneficial interests
in the applicable Issuer, and the Distributions on each Preferred Security
will be payable at a rate specified in the Prospectus Supplement for such
Preferred Securities. The amount of Distributions payable for any period will
be computed on the basis of a 360-day year of twelve 30-day months unless
otherwise specified in the applicable Prospectus Supplement. Distributions to
which holders of Preferred Securities are entitled will accumulate additional
Distributions at the rate per annum if and as specified in the applicable
Prospectus Supplement. The term "Distributions" as used herein includes any
such additional Distributions unless otherwise stated.
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If provided in the applicable Prospectus Supplement, the Corporation has the
right under the Indenture, pursuant to which it will issue the Corresponding
Junior Subordinated Debentures, to defer the payment of interest at any time
or from time to time on any series of the Corresponding Junior Subordinated
Debentures for a period which will be specified in such Prospectus Supplement
relating to such series (each, an "Extension Period"), provided that no
Extension Period may extend beyond the Stated Maturity of the Corresponding
Junior Subordinated Debentures. As a consequence of any such extension,
Distributions on the corresponding Preferred Securities would be deferred (but
would continue to accumulate additional Distributions thereon at the rate per
annum set forth in the Prospectus Supplement for such Preferred Securities) by
the Issuer of such Preferred Securities during any such Extension Period.
During any such Extension Period, the Corporation may not, and may not permit
any subsidiary of the Corporation to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Corporation's capital stock or (ii) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Corporation that rank pari passu with or
junior in interest to the Corresponding Junior Subordinated Debentures or make
any guarantee payments with respect to any guarantee by the Corporation of
debt securities of any subsidiary of the Corporation if such guarantee ranks
pari passu with or junior in interest to the Corresponding Junior Subordinated
Debentures (other than (a) dividends or distributions in common stock of the
Corporation, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) payments under any Guarantee and (d) purchases of
common stock related to the issuance of common stock or rights under any of
the Corporation's benefit plans for its directors, officers or employees).
The revenue of each Issuer available for distribution to holders of its
Preferred Securities will be limited to payments under the Corresponding
Junior Subordinated Debentures in which the Issuer will invest the proceeds
from the issuance and sale of its Trust Securities. See "Description of Junior
Subordinated Debentures--Corresponding Junior Subordinated Debentures." If the
Corporation does not make interest payments on such Corresponding Junior
Subordinated Debentures, the Property Trustee will not have funds available to
pay Distributions on the Related Preferred Securities. The payment of
Distributions (if and to the extent the Issuer has funds legally available for
the payment of such Distributions and cash sufficient to make such payments)
is guaranteed by the Corporation on a limited basis as set forth herein under
"Description of Guarantees".
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the register of such Issuer on the relevant record
dates, which, as long as the Preferred Securities remain in book-entry form,
will be one Business Day prior to the relevant Distribution Date. Subject to
any applicable laws and regulations and the provisions of the applicable Trust
Agreement, each such payment will be made as described under "Book-Entry
Issuance." In the event any Preferred Securities are not in book-entry form,
the relevant record date for such Preferred Securities shall be the date at
least 15 days prior to the relevant Distribution Date, as specified in the
applicable Prospectus Supplement.
REDEMPTION OR EXCHANGE
MANDATORY REDEMPTION. Upon the repayment or redemption, in whole or in part,
of any Corresponding Junior Subordinated Debentures, whether at maturity or
upon earlier redemption as provided in the Indenture, the proceeds from such
repayment or redemption shall be applied by the Property Trustee to redeem a
Like Amount (as defined below) of the Trust Securities, upon not less than 30
nor more than 60 days notice, at a redemption price (the "Redemption Price")
equal to the aggregate Liquidation Amount of such Trust Securities plus
accumulated but unpaid Distributions thereon to the date of redemption (the
"Redemption Date") and the related amount of the premium, if
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any, paid by the Corporation upon the concurrent redemption of such
Corresponding Junior Subordinated Debentures. See "Description of Junior
Subordinated Debentures--Redemption". If less than all of any series of
Corresponding Junior Subordinated Debentures are to be repaid or redeemed on a
Redemption Date, then the proceeds from such repayment or redemption shall be
allocated to the redemption pro rata of the Related Preferred Securities and
the Common Securities. The amount of premium, if any, paid by the Corporation
upon the redemption of all or any part of any series of any Corresponding
Junior Subordinated Debentures to be repaid or redeemed on a Redemption Date
shall be allocated to the redemption pro rata of the Related Preferred
Securities and the Common Securities.
The Corporation will have the right to redeem any series of Corresponding
Junior Subordinated Debentures (i) on or after such date as may be specified
in the applicable Prospectus Supplement, in whole at any time or in part from
time to time, (ii) at any time, in whole (but not in part), upon the
occurrence of a Tax Event (as defined below) or (iii) as may be otherwise
specified in the applicable Prospectus Supplement, in each case subject to
receipt of prior approval by the Federal Reserve if such approval is then
required under applicable capital guidelines or policies of the Federal
Reserve.
DISTRIBUTION OF CORRESPONDING JUNIOR SUBORDINATED DEBENTURES. Subject to the
Corporation having received prior approval of the Federal Reserve to do so if
such approval is then required under applicable capital guidelines or policies
of the Federal Reserve, the Corporation has the right at any time to terminate
any Issuer and, after satisfaction of the liabilities of creditors of such
Issuer as provided by applicable law, cause such Corresponding Junior
Subordinated Debentures in respect of the Preferred Securities and Common
Securities issued by such Issuer to be distributed to the holders of such
Preferred Securities and Common Securities in liquidation of the Issuer.
TAX EVENT REDEMPTION. If a Tax Event in respect of a series of Preferred
Securities and Common Securities shall occur and be continuing, the
Corporation has the right to redeem the Corresponding Junior Subordinated
Debentures in whole (but not in part) and thereby cause a mandatory redemption
of such Preferred Securities and Common Securities in whole (but not in part)
at the Redemption Price within 90 days following the occurrence of such Tax
Event. In the event a Tax Event in respect of a series of Preferred Securities
and Common Securities has occurred and is continuing and the Corporation does
not elect to redeem the Corresponding Junior Subordinated Debentures and
thereby cause a mandatory redemption of such Preferred Securities or to
terminate the related Issuer and cause the Corresponding Junior Subordinated
Debentures to be distributed to holders of such Preferred Securities and
Common Securities in liquidation of the Issuer as described above, such
Preferred Securities will remain outstanding and Additional Sums (as defined
below) may be payable on the Corresponding Junior Subordinated Debentures.
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then due and payable by an Issuer on the
outstanding Preferred Securities and Common Securities of the Issuer shall not
be reduced as a result of any additional taxes, duties and other governmental
charges to which such Issuer has become subject as a result of a Tax Event.
"Like Amount" means (i) with respect to a redemption of any series of Trust
Securities, Trust Securities of such series having a Liquidation Amount (as
defined below) equal to that portion of the principal amount of Corresponding
Junior Subordinated Debentures to be contemporaneously redeemed in accordance
with the Indenture, allocated to the Common Securities and to the Preferred
Securities based upon the relative Liquidation Amounts of such classes and the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (ii) with respect to a distribution of Corresponding Junior
Subordinated Debentures to holders of any series of Trust Securities in
connection with a dissolution or liquidation of the related Issuer,
Corresponding Junior Subordinated Debentures having a principal amount equal
to the Liquidation Amount of the Trust Securities of the holder to whom such
Corresponding Junior Subordinated Debentures are distributed.
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"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Tax Event" means the receipt by the Issuer of a series of Preferred
Securities of an opinion of counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change
is effective or which pronouncement or decision is announced on or after the
date of issuance of such Preferred Securities under the Trust Agreement, there
is more than an insubstantial risk that (i) such Issuer is, or will be within
90 days of the date of such opinion, subject to United States Federal income
tax with respect to income received or accrued on the corresponding series of
Corresponding Junior Subordinated Debentures, (ii) interest payable by the
Corporation on such series of Corresponding Junior Subordinated Debentures is
not, or within 90 days of the date of such opinion, will not be, deductible by
the Corporation, in whole or in part, for United States Federal income tax
purposes, or (iii) such Issuer is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
After the liquidation date fixed for any distribution of Corresponding
Junior Subordinated Debentures for any series of Preferred Securities (i) such
series of Preferred Securities will no longer be deemed to be outstanding,
(ii) The Depository Trust Company ("DTC") or its nominee, as the record holder
of such series of Preferred Securities, will receive a registered global
certificate or certificates representing the Corresponding Junior Subordinated
Debentures to be delivered upon such distribution and (iii) any certificates
representing such series of Preferred Securities not held by DTC or its
nominee will be deemed to represent the Corresponding Junior Subordinated
Debentures having a principal amount equal to the stated liquidation
preference of such series of Preferred Securities, and bearing accrued and
unpaid interest in an amount equal to the accrued and unpaid Distributions on
such series of Preferred Securities until such certificates are presented to
the Administrative Trustees or their agent for transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Corresponding Junior Subordinated Debentures that may be
distributed in exchange for Preferred Securities if a dissolution and
liquidation of an Issuer were to occur. Accordingly, the Preferred Securities
that an investor may purchase, or the Corresponding Junior Subordinated
Debentures that the investor may receive on dissolution and liquidation of an
Issuer, may trade at a discount to the price that the investor paid to
purchase the Preferred Securities offered hereby.
REDEMPTION PROCEDURES
Preferred Securities redeemed on each Redemption Date shall be redeemed at
the Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Corresponding Junior Subordinated Debentures. Redemptions of
the Preferred Securities shall be made and the Redemption Price shall be
payable on each Redemption Date only to the extent that the related Issuer has
funds on hand available for the payment of such Redemption Price. See also "--
Subordination of Common Securities".
If an Issuer gives a notice of redemption in respect of its Preferred
Securities, then, by 12:00 noon, New York City time, on the Redemption Date,
to the extent funds are available, the Property Trustee will deposit
irrevocably with DTC funds sufficient to pay the applicable Redemption Price
and will give DTC irrevocable instructions and authority to pay the Redemption
Price to the holders of such Preferred Securities. See "Book-Entry Issuance".
If such Preferred Securities are no longer in book-entry form, the Property
Trustee, to the extent funds are available, will irrevocably deposit with the
paying agent for such Preferred Securities funds sufficient to pay the
applicable Redemption Price and
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will give such paying agent irrevocable instructions and authority to pay the
Redemption Price to the holders thereof upon surrender of their certificates
evidencing such Preferred Securities. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Preferred
Securities called for redemption shall be payable to the holders of such
Preferred Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds deposited as
required, then upon the date of such deposit, all rights of the holders of
such Preferred Securities so called for redemption will cease, except the
right of the holders of such Preferred Securities to receive the Redemption
Price, but without interest on such Redemption Price, and such Preferred
Securities will cease to be outstanding. In the event that any date fixed for
redemption of Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect
of any such delay), except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding Business
Day. In the event that payment of the Redemption Price in respect of Preferred
Securities called for redemption is improperly withheld or refused and not
paid either by the Issuer or by the Corporation pursuant to the Guarantee as
described under "Description of Guarantees", Distributions on such Preferred
Securities will continue to accrue at the then applicable rate from the
Redemption Date originally established by the Issuer for such Preferred
Securities to the date such Redemption Price is actually paid, in which case
the actual payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
Subject to applicable law (including, without limitation, United States
Federal securities law), the Corporation or its subsidiaries may at any time
and from time to time purchase outstanding Preferred Securities by tender, in
the open market or by private agreement.
Payment of the Redemption Price on the Preferred Securities and any
distribution of Corresponding Junior Subordinated Debentures to holders of
Preferred Securities shall be made to the applicable recordholders thereof as
they appear on the register for such Preferred Securities on the relevant
record date, which shall be one Business Day prior to the relevant Redemption
Date or liquidation date, as applicable; provided, however, that in the event
that any Preferred Securities are not in book-entry form, the relevant record
date for such Preferred Securities shall be a date at least 15 days prior to
the Redemption Date or liquidation date, as applicable, as specified in the
applicable Prospectus Supplement.
If less than all of the Preferred Securities and Common Securities issued by
an issuer are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Preferred Securities and Common Securities to be
redeemed shall be allocated pro rata to the Preferred Securities and the
Common Securities based upon the relative Liquidation Amounts of such classes.
The particular Preferred Securities to be redeemed shall be selected on a pro
rata basis not more than 60 days prior to the Redemption Date by the Property
Trustee from the outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or an integral multiple of $25 in excess thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than $25.
The Property Trustee shall promptly notify the Securities registrar in writing
of the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of each Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of Trust Securities to be
redeemed at its registered address. Unless
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the Corporation defaults in payment of the Redemption Price on the
Corresponding Junior Subordinated Debentures, on and after the Redemption Date
interest will cease to accrue on such Junior Subordinated Debentures or
portions thereof (and Distributions will cease to accrue on the Related
Preferred Securities or portions thereof) called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, each Issuer's
Preferred Securities and Common Securities, as applicable, shall be made pro
rata based on the Liquidation Amount of such Preferred Securities and Common
Securities; provided, however, that if on any Distribution Date or Redemption
Date a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution on, or Redemption Price of, any of the Issuer's
Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions on
all of the Issuer's outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all of the
Issuer's outstanding Preferred Securities then called for redemption, shall
have been made or provided for, and all funds available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions on, or Redemption Price of, the Issuer's Preferred Securities
then due and payable.
In the case of any Event of Default resulting from a Debenture Event of
Default, the Corporation as holder of such Issuer's Common Securities will be
deemed to have waived any right to act with respect to any such Event of
Default under the applicable Trust Agreement until the effect of all such
Events of Default with respect to such Preferred Securities have been cured,
waived or otherwise eliminated. Until any such Events of Default under the
applicable Trust Agreement with respect to the Preferred Securities have been
so cured, waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the holders of such Preferred Securities and not on behalf
of the Corporation as holder of the Issuer's Common Securities, and only the
holders of such Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
Pursuant to each Trust Agreement, each Issuer shall automatically terminate
upon expiration of its term and shall terminate on the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Corporation;
(ii) the distribution of a Like Amount of the Corresponding Junior
Subordinated Debentures to the holders of its Trust Securities, if the
Corporation, as Depositor, has given written direction to the Property Trustee
to terminate such Issuer (which direction is optional and wholly within the
discretion of the Corporation, as Depositor); (iii) redemption of all of the
Issuer's Preferred Securities as described under "Description of Preferred
Securities--Redemption or Exchange--Mandatory Redemption"; and (iv) the entry
of an order for the dissolution of the Issuer by a court of competent
jurisdiction.
If an early termination occurs as described in clause (i), (ii) or (iv)
above, the Issuer shall be liquidated by the Issuer Trustees as expeditiously
as the Issuer Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of such Issuer as provided by
applicable law, to the holders of such Trust Securities a Like Amount of the
Corresponding Junior Subordinated Debentures, unless such distribution is
determined by the Property Trustee not to be practical, in which event such
holders will be entitled to receive out of the assets of the Issuer available
for distribution to holders, after satisfaction of liabilities to creditors of
such Issuer as provided by applicable law, an amount equal to, in the case of
holders of Preferred Securities, the aggregate of the Liquidation Amount plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If such Liquidation Distribution can be
paid only in part because such Issuer
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has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by such Issuer on its
Preferred Securities shall be paid on a pro rata basis. The holder(s) of such
Issuer's Common Securities will be entitled to receive distributions upon any
such liquidation pro rata with the holders of its Preferred Securities, except
that if a Debenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a priority over the Common Securities. A
supplemental Indenture may provide that if an early termination occurs as
described in clause (iv) above, the Corresponding Junior Subordinated
Debentures may be subject to optional redemption in whole (but not in part).
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default" under each
Trust Agreement (an "Event of Default") with respect to the Preferred
Securities issued thereunder (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default under the Indenture
(see "Description of Junior Subordinated Debentures--Debenture Events of
Default"); or
(ii) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(iii) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in such Trust Agreement
(other than a covenant or warranty a default in the performance of which or
the breach of which is dealt with in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the defaulting Issuer
Trustee or Trustees by the holders of at least 25% in aggregate liquidation
preference of the outstanding Preferred Securities of the applicable
Issuer, a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" under
such Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Corporation to
appoint a successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of such Issuer's Preferred
Securities, the Administrative Trustees and the Corporation, as Depositor,
unless such Event of Default shall have been cured or waived. The Corporation,
as Depositor, and the Administrative Trustees are required to file annually
with the Property Trustee a certificate as to whether or not they are in
compliance with all the conditions and covenants applicable to them under each
Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a preference over the Common Securities upon
termination of each Issuer as described above. See "--Liquidation Distribution
Upon Termination". The existence of an Event of Default does not entitle the
holders of Preferred Securities to accelerate the maturity thereof.
REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee may be removed at any time by the holder of the Common
Securities. If a Debenture Event of Default
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has occurred and is continuing, the Property Trustee and the Delaware Trustee
may be removed at such time by the holders of a majority in Liquidation Amount
of the outstanding Preferred Securities. In no event will the holders of the
Preferred Securities have the right to vote to appoint, remove or replace the
Administrative Trustees, which voting rights are vested exclusively in the
Corporation as the holder of the Common Securities. No resignation or removal
of an Issuer Trustee and no appointment of a successor trustee shall be
effective until the acceptance of appointment by the successor trustee in
accordance with the provisions of the applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property
may at the time be located, the Corporation, as the holder of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such person or persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of the applicable Trust Agreement. In case a
Debenture Event of Default has occurred and is continuing, the Property
Trustee alone shall have power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any corporation into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of such Trustee, shall be the successor of such Trustee under each
Trust Agreement, provided such corporation shall be otherwise qualified and
eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE ISSUERS
An Issuer may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except as
described below. An Issuer may, at the request of the Corporation, with the
consent of the Administrative Trustees and without the consent of the holders
of the Preferred Securities, merge with or into, consolidate, amalgamate, or
be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of
any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of such Issuer with respect to the Preferred
Securities or (b) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the same as
the Preferred Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the Corporation
expressly appoints a trustee of such successor entity possessing the same
powers and duties as the Property Trustee as the holder of the Corresponding
Junior Subordinated Debentures, (iii) the Successor Securities are listed, or
any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the holders of
the Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose identical to that of the
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Issuer, (vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Corporation has received an opinion from
independent counsel to the Issuer experienced in such matters to the effect
that (a) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Preferred Securities (including any Successor
Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease,
neither the Issuer nor such successor entity will be required to register as
an investment company under the Investment Company Act of 1940, as amended
(the "Investment Company Act"), and (viii) the Corporation or any permitted
successor or assignee owns all of the Common Securities of such successor
entity and guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, an Issuer shall not, except with the consent of
holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to
any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Issuer or the
successor entity to be classified as other than a grantor trust for United
States Federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
Except as provided below and under "Description of Guarantees--Amendments
and Assignment" and as otherwise required by law and the applicable Trust
Agreement, the holders of the Preferred Securities will have no voting rights.
Each Trust Agreement may be amended from time to time by the Corporation,
the Property Trustee and the Administrative Trustees, without the consent of
the holders of the Preferred Securities (i) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent
with any other provision, or to make any other provisions with respect to
matters or questions arising under such Trust Agreement, which shall not be
inconsistent with the other provisions of such Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of such Trust Agreement to such
extent as shall be necessary to ensure that the Issuer will be classified for
United States Federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Issuer will not be
required to register as an "investment company" under the Investment Company
Act; provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any holder of Trust
Securities, and any amendments of such Trust Agreement shall become effective
when notice thereof is given to the holders of Trust Securities. Each Trust
Agreement may be amended by the Issuer Trustees and the Corporation with (i)
the consent of holders representing not less than a majority (based upon
Liquidation Amounts) of the outstanding Trust Securities, and (ii) receipt by
the Issuer Trustees of an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Issuer Trustees in accordance with
such amendment will not affect the Issuer's status as a grantor trust for
United States Federal income tax purposes or the Issuer's exemption from
status as an "investment company" under the Investment Company Act, provided
that without the consent of each holder of Trust Securities, such Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as
of a specified date or (ii) restrict the right of a holder of Trust Securities
to institute suit for the enforcement of any such payment on or after such
date.
So long as any Corresponding Junior Subordinated Debentures are held by the
Property Trustee, the Issuer Trustees shall not (i) direct the time, method
and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or executing any trust or power conferred on the Property
Trustee with respect to such Corresponding Junior Subordinated Debentures,
(ii) waive any
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past default that is waivable under Section 513 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Junior Subordinated Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or such
Corresponding Junior Subordinated Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the holders
of a majority in aggregate Liquidation Amount of all outstanding Preferred
Securities; provided, however, that where a consent under the Indenture would
require the consent of each holder of Corresponding Junior Subordinated
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior consent of each holder of the corresponding
Preferred Securities. The Issuer Trustees shall not revoke any action
previously authorized or approved by a vote of the holders of the Preferred
Securities except by subsequent vote of the holders of the Preferred
Securities. The Property Trustee shall notify each holder of Preferred
Securities of any notice of default with respect to the Corresponding Junior
Subordinated Debentures. In addition to obtaining the foregoing approvals of
the holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Issuer Trustees shall obtain an opinion of counsel experienced in
such matters to the effect that the Issuer will not be classified as an
association taxable as a corporation for United States Federal income tax
purposes on account of such action.
Any required approval of holders of Preferred Securities may be given at a
meeting of holders of Preferred Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such holders is to be
taken, to be given to each holder of record of Preferred Securities in the
manner set forth in each Trust Agreement.
No vote or consent of the holders of Preferred Securities will be required
for an Issuer to redeem and cancel its Preferred Securities in accordance with
the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned by the Corporation, the Issuer Trustees or any
affiliate of the Corporation or any Issuer Trustees, shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
GLOBAL PREFERRED SECURITIES
The Preferred Securities of a series may be issued in whole or in part in
the form of one or more Global Preferred Securities that will be deposited
with, or on behalf of, the Depositary identified in the Prospectus Supplement
relating to such series. Unless otherwise indicated in the applicable
Prospectus Supplement for such series, the Depositary will be DTC. Global
Preferred Securities may be issued only in fully registered form and in either
temporary or permanent form. Unless and until it is exchanged in whole or in
part for the individual Preferred Securities represented thereby, a Global
Preferred Security may not be transferred except as a whole by the Depositary
for such Global Preferred Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any nominee to a successor Depositary or
any nominee of such successor.
The specific terms of the depositary arrangement with respect to a series of
Preferred Securities will be described in the Prospectus Supplement relating
to such series. The Corporation anticipates that the following provisions will
generally apply to depositary arrangements.
Upon the issuance of a Global Preferred Security, and the deposit of such
Global Preferred Security with or on behalf of the Depositary, the Depositary
for such Global Preferred Security or its nominee will credit, on its book-
entry registration and transfer system, the respective aggregate Liquidation
Amounts of the individual Preferred Securities represented by such Global
Preferred
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Securities to the accounts of Participants. Such accounts shall be designated
by the dealers, underwriters or agents with respect to such Preferred
Securities or by the Corporation if such Preferred Securities are offered and
sold directly by the Corporation. Ownership of beneficial interests in a
Global Preferred Security will be limited to Participants or persons that may
hold interests through Participants. Ownership of beneficial interests in such
Global Preferred Security will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the applicable Depositary
or its nominee (with respect to interests of Participants) and the records of
Participants (with respect to interests of persons who hold through
Participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests
in a Global Preferred Security.
So long as the Depositary for a Global Preferred Security, or its nominee,
is the registered owner of such Global Preferred Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder
of the Preferred Securities represented by such Global Preferred Security for
all purposes under the Indenture governing such Preferred Securities. Except
as provided below, owners of beneficial interests in a Global Preferred
Security will not be entitled to have any of the individual Preferred
Securities of the series represented by such Global Preferred Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Preferred Securities of such series in definitive form
and will not be considered the owners or holders thereof under the Indenture.
Payments of principal of (and premium, if any) and interest on individual
Preferred Securities represented by a Global Preferred Security registered in
the name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Preferred
Security representing such Preferred Securities. None of the Corporation, the
Property Trustee, any Paying Agent, or the Securities Registrar for such
Preferred Securities will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests of the Global Preferred Security representing such Preferred
Securities or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
The Corporation expects that the Depositary for a series of Preferred
Securities or its nominee, upon receipt of any payment of Liquidation Amount,
premium or Distributions in respect of a permanent Global Preferred Security
representing any of such Preferred Securities, immediately will credit
Participants' accounts with payments in amounts proportionate to their
respective beneficial interest in the aggregate Liquidation Amount of such
Global Preferred Security for such Preferred Securities as shown on the
records of such Depositary or its nominee. The Corporation also expects that
payments by Participants to owners of beneficial interests in such Global
Preferred Security held through such Participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name."
Such payments will be the responsibility of such Participants.
Unless otherwise specified in the applicable Prospectus Supplement, if a
Depositary for a series of Preferred Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is
not appointed by the Corporation within 90 days, the Corporation will issue
individual Preferred Securities of such series in exchange for the Global
Preferred Security representing such series of Preferred Securities. In
addition, the Corporation may at any time and in its sole discretion, subject
to any limitations described in the Prospectus Supplement relating to such
Preferred Securities, determine not to have any Preferred Securities of such
series represented by one or more Global Preferred Securities and, in such
event, will issue individual Preferred Securities of such series in exchange
for the Global Preferred Security or Securities representing such series of
Preferred Securities. Further, if the Corporation so specifies with respect to
the Preferred Securities of a series, an owner of a beneficial interest in a
Global Preferred Security representing Preferred Securities of such series
may, on terms acceptable to the Corporation, the Property Trustee and the
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Depositary for such Global Preferred Security, receive individual Preferred
Securities of such series in exchange for such beneficial interests, subject
to any limitations described in the Prospectus Supplement relating to such
Preferred Securities. In any such instance, an owner of a beneficial interest
in a Global Preferred Security will be entitled to physical delivery of
individual Preferred Securities of the series represented by such Global
Preferred Security equal in principal amount to such beneficial interest and
to have such Preferred Securities registered in its name. Individual Preferred
Securities of such series so issued will be issued in denominations, unless
otherwise specified by the Corporation, of $25 and integral multiples thereof.
PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities shall be made to the
Depositary, which shall credit the relevant accounts at the Depositary on the
applicable Distribution Dates or, if any Issuer's Preferred Securities are not
held by the Depositary, such payments shall be made by check mailed to the
address of the holder entitled thereto as such address shall appear on the
Register. Unless otherwise specified in the applicable Prospectus Supplement,
the paying agent (the "Paying Agent") shall initially be the Property Trustee
and any co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Corporation. The Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and the Corporation. In the event that the Property Trustee
shall no longer be the Paying Agent, the Administrative Trustees shall appoint
a successor (which shall be a bank or trust company acceptable to the
Administrative Trustees and the Corporation) to act as Paying Agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable Prospectus Supplement, the
Property Trustee will act as registrar and transfer agent for the Preferred
Securities.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of each Issuer, but upon payment of any tax or other
governmental charges that may be imposed in connection with any transfer or
exchange. The Issuers will not be required to register or cause to be
registered the transfer of their Preferred Securities after such Preferred
Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of an
Event of Default, undertakes to perform only such duties as are specifically
set forth in each Trust Agreement and, after such Event of Default, must
exercise the same degree of care and skill as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this provision,
the Property Trustee is under no obligation to exercise any of the powers
vested in it by the applicable Trust Agreement at the request of any holder of
Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby. If no Event of
Default has occurred and is continuing and the Property Trustee is required to
decide between alternative causes of action, construe ambiguous provisions in
the applicable Trust Agreement or is unsure of the application of any
provision of the applicable Trust Agreement, and the matter is not one on
which holders of Preferred Securities are entitled under such Trust Agreement
to vote, then the Property Trustee shall take such action as is directed by
the Corporation and if not so directed, shall take such action as it deems
advisable and in the best interests of the holders of the Trust Securities and
will have no liability except for its own bad faith, negligence or willful
misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Issuers in such a way that no Issuer will be
deemed to be an "investment company" required to
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be registered under the Investment Company Act or classified as an association
taxable as a corporation for United States Federal income tax purposes and so
that the Corresponding Junior Subordinated Debentures will be treated as
indebtedness of the Corporation for United States Federal income tax purposes.
In this connection, the Corporation and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the
certificate of trust of each Issuer or each Trust Agreement, that the
Corporation and the Administrative Trustees determine in their discretion to
be necessary or desirable for such purposes, as long as such action does not
materially adversely affect the interests of the holders of the related
Preferred Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
No Issuer may borrow money or issue debt or mortgage or pledge any of its
assets.
BOOK-ENTRY ISSUANCE
DTC will act as securities depositary for all of the Preferred Securities
and the Junior Subordinated Debentures, unless otherwise referred to in the
Prospectus Supplement relating to an offering of Preferred Securities or
Junior Subordinated Debentures. The Preferred Securities and the Junior
Subordinated Debentures will be issued only as fully-registered securities
registered in the name of Cede & Co. (DTC's nominee). One or more fully-
registered global certificates will be issued for the Preferred Securities of
each Issuer and the Junior Subordinated Debentures, representing in the
aggregate the total number of such Issuer's Preferred Securities or aggregate
principal balance of Junior Subordinated Debentures, respectively, and will be
deposited with DTC.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its Participants deposit with DTC. DTC also facilitates
the settlement among Participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. "Direct Participants" include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. DTC is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain custodial
relationships with Direct Participants, either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its Participants
are on file with the Commission.
Purchases of Preferred Securities or Junior Subordinated Debentures within
the DTC system must be made by or through Direct Participants, which will
receive a credit for the Preferred Securities or Junior Subordinated
Debentures on DTC's records. The ownership interest of each actual purchaser
of each Preferred Security and each Junior Subordinated Debenture ("Beneficial
Owner") is in turn to be recorded on the Direct and Indirect Participants'
records. Beneficial Owners will not receive written confirmation from DTC of
their purchases, but Beneficial Owners are expected to receive written
confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the Direct or Indirect Participants through
which the Beneficial Owners purchased Preferred Securities or Junior
Subordinated Debentures. Transfers of ownership interests in the Preferred
Securities or Junior Subordinated Debentures are to be accomplished by entries
made on the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Preferred Securities or Junior Subordinated Debentures,
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except in the event that use of the book-entry system for the Preferred
Securities of such Issuer or Junior Subordinated Debentures is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities or Junior Subordinated Debentures; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Preferred
Securities or Junior Subordinated Debentures are credited, which may or may
not be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners and the voting
rights of Direct Participants, Indirect Participants and Beneficial Owners
will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder of
the Preferred Securities or Junior Subordinated Debentures. If less than all
of an Issuer's Preferred Securities or the Junior Subordinated Debentures are
being redeemed, DTC's current practice is to determine by lot the amount of
the interest of each Direct Participant to be redeemed.
Although voting with respect to the Preferred Securities or the Junior
Subordinated Debentures is limited to the holders of record of the Preferred
Securities or Junior Subordinated Debentures, in those instances in which a
vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to Preferred Securities or Junior Subordinated Debentures. Under its
usual procedures, DTC would mail an omnibus proxy (the "Omnibus Proxy") to the
relevant Trustee as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants
to whose accounts such Preferred Securities or Junior Subordinated Debentures
are credited on the record date (identified in a listing attached to the
Omnibus Proxy).
Distribution payments on the Preferred Securities or the Junior Subordinated
Debentures will be made by the relevant Trustee to DTC. DTC's practice is to
credit Direct Participants' accounts on the relevant payment date in
accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payments on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participant and not of DTC, the relevant Trustee, the Issuer thereof or the
Corporation, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of Distributions to DTC is the
responsibility of the relevant Trustee, disbursement of such payments to
Direct Participants is the responsibility of DTC, and disbursements of such
payments to the Beneficial Owners is the responsibility of Direct and Indirect
Participants.
DTC may discontinue providing its services as securities depositary with
respect to any of the Preferred Securities or the Junior Subordinated
Debentures at any time by giving reasonable notice to the relevant Trustee and
the Corporation. In the event that a successor securities depositary is not
obtained, definitive Preferred Security or Junior Subordinated Debenture
certificates representing such Preferred Securities or Junior Subordinated
Debentures are required to be printed and delivered. The Corporation, at its
option, may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor depositary). After a Debenture Event of Default,
the holders of a majority in liquidation preference of Preferred Securities or
aggregate principal amount of Junior Subordinated Debentures may determine to
discontinue the system of book-entry transfers through DTC. In any such event,
definitive certificates for such Preferred Securities or Junior Subordinated
Debentures will be printed and delivered.
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The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Issuers and the Corporation believe to
be accurate, but the Issuers and the Corporation assume no responsibility for
the accuracy thereof. Neither the Issuers nor the Corporation has any
responsibility for the performance by DTC or its Participants of their
respective obligations as described herein or under the rules and procedures
governing their respective operations.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Corporation concurrently
with the issuance by each Issuer of its Preferred Securities for the benefit
of the holders from time to time of such Preferred Securities. The First
National Bank of Chicago will act as indenture trustee ("Guarantee Trustee")
under each Guarantee for the purposes of compliance with the Trust Indenture
Act and each Guarantee will be qualified as an Indenture under the Trust
Indenture Act. This summary of certain provisions of the Guarantees does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of each Guarantee Agreement, including the
definitions therein of certain terms, and the Trust Indenture Act. The form of
the Guarantee has been filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. Reference in this summary to Preferred
Securities means that Issuer's Preferred Securities to which a Guarantee
relates. The Guarantee Trustee will hold each Guarantee for the benefit of the
holders of the related Issuer's Preferred Securities.
GENERAL
The Corporation will irrevocably agree to pay in full on a subordinated
basis, to the extent set forth herein, the Guarantee Payments (as defined
below) to the holders of the Preferred Securities, as and when due, regardless
of any defense, right of set-off or counterclaim that such Issuer may have or
assert other than the defense of payment. The following payments with respect
to the Preferred Securities, to the extent not paid by or on behalf of the
related Issuer (the "Guarantee Payments"), will be subject to the Guarantee:
(i) any accumulated and unpaid Distributions required to be paid on such
Preferred Securities, to the extent that such Issuer has funds on hand
available therefor at such time, (ii) the Redemption Price with respect to any
Preferred Securities called for redemption to the extent that such Issuer has
funds on hand available therefor at such time, or (iii) upon a voluntary or
involuntary dissolution, winding up or liquidation of such Issuer (unless the
Corresponding Junior Subordinated Debentures are distributed to holders of
such Preferred Securities), the lesser of (a) the Liquidation Distribution and
(b) the amount of assets of such Issuer remaining available for distribution
to holders of Preferred Securities. The Corporation's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts
by the Corporation to the holders of the applicable Preferred Securities or by
causing the Issuer to pay such amounts to such holders.
Each Guarantee will be an irrevocable guarantee on a subordinated basis of
the related Issuer's obligations under the Preferred Securities, but will
apply only to the extent that such related Issuer has funds sufficient to make
such payments, and is not a guarantee of collection.
If the Corporation does not make interest payments on the Corresponding
Junior Subordinated Debentures held by the Issuer, the Issuer will not be able
to pay Distributions on the Preferred Securities and will not have funds
legally available therefor. Each Guarantee will rank subordinate and junior in
right of payment to all Senior Debt of the Corporation. See "--Status of the
Guarantees". Because the Corporation is a holding company, the right of the
Corporation to participate in any distribution of assets of any subsidiary
upon such subsidiary's liquidation or reorganization or otherwise, is subject
to the prior claims of creditors of that subsidiary, except to the extent the
Corporation may itself be recognized as a creditor of that subsidiary.
Accordingly, the Corporation's obligations under the Guarantees will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and claimants should look only to the assets of
the Corporation for
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payments thereunder. See "The Corporation." Except as otherwise provided in
the applicable Prospectus Supplement, the Guarantees do not limit the
incurrence or issuance of other secured or unsecured debt of the Corporation,
including Senior Debt, whether under the Indenture, any other indenture that
the Corporation may enter into in the future or otherwise. See the Prospectus
Supplement relating to any offering of Preferred Securities.
The Corporation has, through the applicable Guarantee, the applicable Trust
Agreement, the Junior Subordinated Debentures, the Indenture and the Expense
Agreement, taken together, fully, irrevocably and unconditionally guaranteed
all of the Issuer's obligations under the Preferred Securities. No single
document standing alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the combined operation
of these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Issuer's obligations under the Preferred
Securities. See "Relationship Among the Preferred Securities, the
Corresponding Junior Subordinated Debentures and the Guarantee".
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the Corporation
and will rank subordinate and junior in right of payment to all Senior Debt of
the Corporation in the same manner as Junior Subordinated Debentures.
Each Guarantee will rank pari passu with all other Guarantees issued by the
Corporation. Each Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding
directly against the Corporation to enforce its rights under the Guarantee
without first instituting a legal proceeding against any other person or
entity). Each Guarantee will be held for the benefit of the holders of the
related Preferred Securities. Each Guarantee will not be discharged except by
payment of the Guarantee Payments in full to the extent not paid by the Issuer
or upon distribution to the holders of the Preferred Securities of the
Corresponding Junior Subordinated Debentures. None of the Guarantees places a
limitation on the amount of additional Senior Debt that may be incurred by the
Corporation. The Corporation expects from time to time to incur additional
indebtedness constituting Senior Debt.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the related Preferred Securities (in which case no
vote will be required), no Guarantee may be amended without the prior approval
of the holders of not less than a majority of the aggregate Liquidation Amount
of such outstanding Preferred Securities. The manner of obtaining any such
approval will be as set forth under "Description of the Preferred Securities--
Voting Rights; Amendment of Each Trust Agreement". All guarantees and
agreements contained in each Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Corporation and shall inure to
the benefit of the holders of the related Preferred Securities then
outstanding.
EVENTS OF DEFAULT
An event of default under each Guarantee will occur upon the failure of the
Corporation to perform any of its payment or other obligations thereunder. The
holders of not less than a majority in aggregate Liquidation Amount of the
related Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of such Guarantee or to direct the exercise of any trust or
power conferred upon the Guarantee Trustee under such Guarantee.
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Any holder of the Preferred Securities may institute a legal proceeding
directly against the Corporation to enforce its rights under such Guarantee
without first instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other person or entity.
The Corporation, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Corporation is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of a
default by the Corporation in performance of any Guarantee, undertakes to
perform only such duties as are specifically set forth in each Guarantee and,
after default with respect to any Guarantee, must exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the Guarantee Trustee is under
no obligation to exercise any of the powers vested in it by any Guarantee at
the request of any holder of any Preferred Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of the related Preferred Securities, upon
full payment of the amounts payable upon liquidation of the related Issuer or
upon distribution of Corresponding Junior Subordinated Debentures to the
holders of the related Preferred Securities. Each Guarantee will continue to
be effective or will be reinstated, as the case may be, if at any time any
holder of the related Preferred Securities must restore payment of any sums
paid under such Preferred Securities or such Guarantee.
GOVERNING LAW
Each Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
THE EXPENSE AGREEMENT
Pursuant to the Expense Agreement entered into by the Corporation under each
Trust Agreement (the "Expense Agreement"), the Corporation will irrevocably
and unconditionally guarantee to each person or entity to whom the Issuer
becomes indebted or liable, the full payment of any costs, expenses or
liabilities of the Issuer, other than obligations of the Issuer to pay to the
holders of any Preferred Securities or other similar interests in the Issuer
of the amounts due such holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be.
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RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE CORRESPONDING JUNIOR
SUBORDINATED DEBENTURES AND THE GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Preferred Securities
(to the extent the Issuer has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Corporation as and to the
extent set forth under "Description of Guarantees." Taken together, the
Corporation's obligations under each series of Junior Subordinated Debentures,
the Indenture, the related Trust Agreement, the related Expense Agreement, and
the related Guarantee provide, in the aggregate, a full, irrevocable and
unconditional guarantee of payments of Distributions and other amounts due on
the Related Preferred Securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Issuer's obligations under the Preferred
Securities. If and to the extent that the Corporation does not make payments
on any series of Corresponding Junior Subordinated Debentures, such Issuer
will not pay Distributions or other amounts due on its Preferred Securities.
The Guarantees do not cover payment of Distributions when the related Issuer
does not have sufficient funds to pay such Distributions. In such event, the
remedy of a holder of a series of Preferred Securities is to institute a legal
proceeding directly against the Corporation for enforcement of payment of such
Distributions to such holder. The obligations of the Corporation under each
Guarantee are subordinate and junior in right of payment to all Senior Debt.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on each
series of Corresponding Junior Subordinated Debentures, such payments will be
sufficient to cover Distributions and other payments due on the related
Preferred Securities, primarily because (i) the aggregate principal amount of
each series of Corresponding Junior Subordinated Debentures will be equal to
the sum of the aggregate stated Liquidation Amount of the Related Preferred
Securities and related Common Securities; (ii) the interest rate and interest
and other payment dates on each series of Corresponding Junior Subordinated
Debentures will match the Distribution rate and Distribution and other payment
dates for the related Preferred Securities; (iii) the Corporation shall pay
for all and any costs, expenses and liabilities of such Issuer except the
Issuer's obligations to holders of its Preferred Securities under such
Preferred Securities; and (iv) each Trust Agreement provides that the Issuer
will not engage in any activity that is not consistent with the limited
purposes of such Issuer.
Notwithstanding anything to the contrary in the Indenture, the Corporation
has the right to set-off any payment it is otherwise required to make
thereunder with and to the extent the Corporation has theretofore made, or is
concurrently on the date of such payment making, a payment under the related
Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any related Preferred Security may institute a legal proceeding
directly against the Corporation to enforce its rights under the related
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the related Issuer or any other person or entity.
A default or event of default under any Senior Debt of the Corporation would
not constitute a default or Event of Default. However, in the event of payment
defaults under, or acceleration of, Senior Debt of the Corporation, the
subordination provisions of the Indenture provide that no payments may be made
in respect of the Corresponding Junior Subordinated Debentures until such
Senior Debt has been paid in full or any payment default thereunder has been
cured or waived. Failure to make required payments on any series of
Corresponding Junior Subordinated Debentures would constitute an Event of
Default.
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LIMITED PURPOSE OF ISSUERS
Each Issuer's Preferred Securities evidence a beneficial interest in such
Issuer, and each Issuer exists for the sole purpose of issuing its Preferred
Securities and Common Securities and investing the proceeds thereof in
Corresponding Junior Subordinated Debentures. A principal difference between
the rights of a holder of a Preferred Security and a holder of a Corresponding
Junior Subordinated Debenture is that a holder of a Corresponding Junior
Subordinated Debenture is entitled to receive from the Corporation the
principal amount of and interest accrued on Corresponding Junior Subordinated
Debentures held, while a holder of Preferred Securities is entitled to receive
Distributions from such Issuer (or from the Corporation under the applicable
Guarantee) if and to the extent such Issuer has funds available for the
payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
any Issuer involving the liquidation of the Corresponding Junior Subordinated
Debentures, the holders of the related Preferred Securities will be entitled
to receive, out of assets held by such Issuer, the Liquidation Distribution in
cash. See "Description of Preferred Securities--Liquidation Distribution Upon
Termination." Upon any voluntary or involuntary liquidation or bankruptcy of
the Corporation, the Property Trustee, as holder of the Corresponding Junior
Subordinated Debentures, would be a subordinated creditor of the Corporation,
subordinated in right of payment to all Senior Debt as set forth in the
Indenture, but entitled to receive payment in full of principal and interest,
before any stockholders of the Corporation receive payments or distributions.
Since the Corporation is the guarantor under each Guarantee and has agreed to
pay for all costs, expenses and liabilities of each Issuer (other than the
Issuer's obligations to the holders of its Preferred Securities), the
positions of a holder of such Preferred Securities and a holder of such
Corresponding Junior Subordinated Debentures relative to other creditors and
to stockholders of the Corporation in the event of liquidation or bankruptcy
of the Corporation are expected to be substantially the same.
PLAN OF DISTRIBUTION
The Junior Subordinated Debentures or the Preferred Securities may be sold
in a public offering to or through underwriters or dealers designated from
time to time. The Corporation and each Issuer may sell its Junior Subordinated
Debentures or Preferred Securities as soon as practicable after effectiveness
of the Registration Statement of which this Prospectus is a part. The names of
any underwriters or dealers involved in the sale of the Junior Subordinated
Debentures or Preferred Securities in respect of which this Prospectus is
delivered, the amount or number of Junior Subordinated Debentures and
Preferred Securities to be purchased by any such underwriters and any
applicable commissions or discounts will be set forth in the Prospectus
Supplement.
Underwriters may offer and sell Junior Subordinated Debentures or Preferred
Securities at a fixed price or prices, which may be changed, or from time to
time at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. In connection with the
sale of Preferred Securities, underwriters may be deemed to have received
compensation from the Corporation and/or the applicable Issuer in the form of
underwriting discounts or commissions and may also receive commissions.
Underwriters may sell Junior Subordinated Debentures or Preferred Securities
to or through dealers, and such dealers may receive compensation in the form
of discounts, concessions or commissions from the underwriters.
Any underwriting compensation paid by the Corporation and/or the applicable
Issuer to underwriters in connection with the offering of Junior Subordinated
Debentures or Preferred Securities, and any discounts, concessions or
commissions allowed by such underwriters to participating dealers, will be
described in a Prospectus Supplement. Underwriters and dealers participating
in the distribution
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of Junior Subordinated Debentures or Preferred Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of such Junior Subordinated Debentures or
Preferred Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. Underwriters and dealers may be
entitled, under agreement with the Corporation and the applicable Issuer, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act, and to reimbursement by the
Corporation for certain expenses.
In connection with the offering of the Preferred Securities of any Issuer,
such Issuer may grant to the underwriters an option to purchase additional
Preferred Securities to cover over-allotments, if any, at the initial public
offering price (with an additional underwriting commission), as may be set
forth in the accompanying Prospectus Supplement. If such Issuer grants any
over-allotment option, the terms of such over-allotment option will be set
forth in the Prospectus Supplement for such Preferred Securities.
Underwriters and dealers may engage in transactions with, or perform
services for, the Corporation and/or the applicable Issuer and/or any of their
affiliates in the ordinary course of business.
The Junior Subordinated Debentures and the Preferred Securities will be new
issues of securities and will have no established trading market. Any
underwriters to whom Junior Subordinated Debentures or Preferred Securities
are sold for public offering and sale may make a market in such Junior
Subordinated Debentures and Preferred Securities, but such underwriters will
not be obligated to do so and may discontinue any market making at any time
without notice. Such Junior Subordinated Debentures or Preferred Securities
may or may not be listed on a national securities exchange or the Nasdaq
National Market. No assurance can be given as to the liquidity of or the
existence of trading markets for any Junior Subordinated Debentures or
Preferred Securities.
VALIDITY OF SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement, certain
legal matters will be passed upon for the Corporation and the Issuers by
Sullivan & Cromwell, New York, New York, counsel to the Corporation, and for
the Issuers by Richards, Layton & Finger, special Delaware counsel to the
Issuers. The validity of the Guarantees and the Junior Subordinated Debentures
will be passed upon for the Underwriters by Milbank, Tweed, Hadley & McCloy,
New York, New York. Sullivan & Cromwell and Milbank, Tweed, Hadley & McCloy
will rely on the opinion of Richards, Layton & Finger as to matters of
Delaware law.
EXPERTS
The consolidated financial statements and schedules of the Corporation and
subsidiaries incorporated in this Prospectus by reference from the
Corporation's Annual Report on Form 10-K have been audited by Deloitte &
Touche LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements and schedules are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY IN-
FORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPO-
RATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN CONNEC-
TION WITH THE OFFER MADE BY THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE CORPORATION, THE ISSUERS OR BY THE UNDERWRIT-
ERS. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS NOR
ANY SALE MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY CIRCUMSTANCE CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION OR
THE ISSUERS SINCE THE DATE HEREOF. THIS PROSPECTUS SUPPLEMENT AND THE PROSPEC-
TUS DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN
WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAK-
ING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
---------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Risk Factors............................................................. S- 4
BNY Capital I............................................................ S- 9
The Corporation.......................................................... S-10
Consolidated Ratios of Earnings to Fixed Charges......................... S-11
Use of Proceeds.......................................................... S-11
Capitalization........................................................... S-12
Accounting Treatment..................................................... S-13
Certain Terms of Series A Preferred Securities........................... S-13
Certain Terms of Series A Subordinated Debentures........................ S-16
Certain Federal Income Tax Consequences.................................. S-19
Underwriting............................................................. S-23
Validity of Securities................................................... S-24
PROSPECTUS
Available Information.................................................... 4
Incorporation of Certain Documents by Reference.......................... 5
The Corporation.......................................................... 6
Certain Regulatory Considerations........................................ 6
The Issuers.............................................................. 10
Use of Proceeds.......................................................... 11
Description of Junior Subordinated Debentures............................ 11
Description of Preferred Securities...................................... 23
Book-Entry Issuance...................................................... 35
Description of Guarantees................................................ 37
Relationship Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees.............................. 40
Plan of Distribution..................................................... 41
Validity of Securities................................................... 42
Experts.................................................................. 42
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PREFERRED SECURITIES
BNY CAPITAL I
%
PREFERRED SECURITIES,
SERIES A
FULLY AND UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN, BY
THE BANK OF NEW YORK COMPANY, INC.
-----------
PROSPECTUS SUPPLEMENT
-----------
REPRESENTATIVES OF THE UNDERWRITERS
, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fee under the Securities Act of 1933, as
amended...................................................... $151,515.15
Blue Sky fees and expenses (including counsel fees)........... *
Fees of rating agencies....................................... *
Trustees' fee and expenses.................................... *
Printing and engraving........................................ *
Accounting services........................................... *
Legal fees of Registrant's counsel............................ *
Miscellaneous................................................. *
-----------
Total....................................................... $ *
===========
</TABLE>
- --------
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-laws of the Corporation (Section 7.1) provide the following:
Except to the extent expressly prohibited by the New York Business
Corporation Law, the Company shall indemnify any person made or threatened to
be made a party to any action or proceeding, whether civil or criminal, by
reason of the fact that such person or such person's testator or intestate is
or was a director or officer of the Company or serves or served at the request
of the Company, any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, penalties, amounts paid in settlement and reasonable expenses,
including attorneys' fees, incurred in connection with such action or
proceeding, or any appeal therein; provided that no such indemnification shall
be made if a judgment or other final adjudication adverse to such person
established that his or her 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 or she personally gained in fact a financial
profit or other advantage to which he or she was not legally entitled; and
provided further that no such indemnification shall be required with respect
to any settlement or other nonadjudicated disposition of any threatened or
pending action or proceeding unless the Company has given its prior consent to
such settlement or other disposition.
The Company may advance or promptly reimburse upon request any person
entitled to indemnification hereunder for all expenses, including attorney's
fees, reasonably incurred in defending any action or proceeding in advance of
the final disposition thereof upon receipt of an undertaking by or on behalf
of such person to repay such amount if such person is ultimately found not to
be entitled to indemnification or, where indemnification is granted, to the
extent the expenses so advanced or reimbursed exceed the amount to which such
person is entitled; provided, however, that such person shall cooperate in
good faith with any request by the Company that common counsel be utilized by
the parties to an action or proceeding who are similarly situated unless to do
so would be inappropriate due to actual or potential differing interests
between or among such parties.
Nothing herein shall limit or affect any right of any person otherwise than
hereunder to indemnification or expenses, including attorney's fees, under any
statute, rule, regulation, certificate of incorporation, by-law, insurance
policy, contract or otherwise.
II-1
<PAGE>
Anything in these By-laws to the contrary notwithstanding, no elimination of
this By-law, and no amendment to this By-law adversely affecting the right of
any person to indemnification or advancement of expenses hereunder, shall be
effective until the 60th day following notice to such person of such action,
and no elimination of or amendment to this By-law shall deprive any person of
his or her rights hereunder arising out of alleged or actual occurrences, acts
or failures to act prior to such 60th day.
The Company shall not, except by elimination of or amendment to this By-law
in a manner consistent with the preceding paragraph, take any corporate action
or enter into any agreement which prohibits, or otherwise limits the rights of
any person to, indemnification in accordance with the provisions of this By-
law. The indemnification of any person provided by this By-law shall continue
after such person has ceased to be a director or officer of the Company and
shall inure to the benefit of such person's heirs, executors, administrators
and legal representatives.
The Company is authorized to enter into agreements with any of its directors
or officers extending rights to indemnification and advancement of expenses to
such person to the fullest extent permitted by applicable law, but the failure
to enter into any such agreement shall not affect or limit the rights of such
person pursuant to this By-law, it being expressly recognized hereby that all
directors or officers of the Company by serving as such after the adoption
hereof, are acting in reliance hereon and that the Company is estopped to
contend otherwise.
In case any provision in this By-law shall be determined at any time to be
unenforceable in any respect, the other provisions shall not in any way be
affected or impaired thereby, and the affected provision shall be given the
fullest possible enforcement in the circumstances, it being the intention of
the Company to afford indemnification and advancement of expenses to its
directors and officers, acting in such capacities or in the other capacities
mentioned herein, to the fullest extent permitted by law.
For purposes of this By-law, the Company shall be deemed to have requested a
person to serve an employee benefit plan where the performance by such person
of his or her duties to the Company 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 any
employee benefit plan pursuant to applicable law shall be considered
indemnifiable expenses. For purposes of this By-law, the term "Company" shall
include any legal successor to the Company, including any corporation which
acquires all or substantially all of the assets of the Company in one or more
transactions.
A person who has been successful, on the merits or otherwise, in the defense
of a civil or criminal action or proceeding of the character described in the
first paragraph of this By-law shall be indemnified as authorized in such
paragraph. Except as provided in the preceding sentence and unless ordered by
a court, indemnification under this By-law shall be made by the Company if,
and only if, authorized in the specific case:
(1) By the Board of Directors acting by a quorum consisting of directors
who are not parties to such action or proceeding upon a finding that the
director or officer has met the standard of conduct set forth in the first
paragraph of this By-law, or,
(2) If such a quorum is not obtainable or, even if obtainable, a quorum
of disinterested directors so directs:
(a) by the Board of Directors upon the opinion in writing of
independent legal counsel that indemnification is proper in the
circumstances because the standard of conduct set forth in the first
paragraph of this By-law has been met by such director or officer; or
(b) by the shareholders upon a finding that the director or officer
has met the applicable standard of conduct set forth in such paragraph.
II-2
<PAGE>
If any action with respect to indemnification of directors and officers is
taken by way of amendment of these By-laws, resolution of directors, or by
agreement, the Company shall, not later than the next annual meeting of
shareholders, unless such meeting is held within three months from the date of
such action and, in any event, within fifteen months from the date of such
action, mail to its shareholders of record at the time entitled to vote for
the election of directors a statement specifying the action taken.
With certain limitations, Sections 721 through 726 of the New York Business
Corporation Law permit a corporation to indemnify a director or officer made a
party to an action (i) by a corporation or in its right in order to procure a
judgment in its favor unless he shall have breached his duties, or (ii) other
than an action by or in the right of the corporation in order to procure a
judgment in its favor if such director or officer acted in good faith and in a
manner he reasonably believed to be in or, in certain cases, not opposed to
such corporation's best interests, and additionally, in criminal actions, has
no reasonable cause to believe his conduct was unlawful.
In addition, the Corporation maintains a directors' and officers' liability
insurance policy.
Reference is made to the indemnity provisions in the Underwriting Agreement
which is filed as Exhibit 1 to this Registration Statement.
Under each Trust Agreement, the Corporation will agree to indemnify each of
the Trustees of the Issuer with respect thereto or any predecessor Trustee for
the Issuer, and to hold such Trustees harmless against any loss, damage,
claims, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the Trust Agreements, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties under the Trust Agreements.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
1 Form of Underwriting Agreement*
3(a) Restated Certificate of Incorporation of the Corporation, incorporated
by reference to Exhibit 4 to the Corporation's Quarterly Report on
Form 10-Q, filed November 10, 1994 (File No. 1-6152).
3(b) Certificate of Amendment of the Certificate of Incorporation of the
Corporation, incorporated by reference to Exhibit 4 to the
Corporation's Quarterly Report on Form 10-Q, filed August 15, 1996
(File No. 1-6152).
3(c) By-laws of the registrant, incorporated by reference to Exhibit 3(a)
to the registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1987 (File No. 1-6152).
4(a) Form of Junior Subordinated Indenture, dated as of November , 1996,
between The Company and The First National Bank of Chicago, as
Debenture Trustee*
4(b) Certificate of Trust of BNY Capital I
4(c) Trust Agreement of BNY Capital I
4(d) Certificate of Trust of BNY Capital II
4(e) Trust Agreement of BNY Capital II
4(f) Certificate of Trust of BNY Capital III
4(g) Trust Agreement of BNY III
4(h) Certificate of Trust of BNY Capital IV
4(i) Trust Agreement of BNY Capital IV
4(j) Certificate of Trust of BNY Capital V
4(k) Trust Agreement of BNY Capital V
4(l) Form of Amended and Restated Trust Agreement of BNY Capital I*
4(m) Form of Amended and Restated Trust Agreement of BNY Capital II*
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
4(n) Form of Amended and Restated Trust Agreement of BNY Capital III*
4(o) Form of Amended and Restated Trust Agreement of BNY Capital IV*
4(p) Form of Amended and Restated Trust Agreement of BNY Capital V*
4(q) Form of Preferred Security Certificate for BNY Capital I (included as
Exhibit D of Exhibit 4(l))*
4(q) Form of Preferred Security Certificate for BNY Capital II (included as
Exhibit D of Exhibit 4(m))*
4(q) Form of Preferred Security Certificate for BNY Capital III (included
as Exhibit D of Exhibit 4(n))*
4(q) Form of Preferred Security Certificate for BNY Capital IV (included as
Exhibit D of Exhibit 4(o))*
4(q) Form of Preferred Security Certificate for BNY Capital V (included as
Exhibit D of Exhibit 4(p))*
4(r) Form of Guarantee Agreement for BNY Capital I*
4(s) Form of Guarantee Agreement for BNY Capital II*
4(t) Form of Guarantee Agreement of BNY Capital III*
4(u) Form of Guarantee Agreement for BNY Capital IV*
4(v) Form of Guarantee Agreement for BNY Capital V*
5(a) Opinion of counsel as to legality of the Junior Subordinated
Debentures and the Guarantees to be issued by The Company*
5(b) Opinion of special Delaware counsel as to legality of the Preferred
Securities to be issued by BNY Capital I, BNY Capital II, BNY Capital
III, BNY Capital IV and BNY Capital V*
8 Opinion of counsel as to certain federal income tax matters*
12 Computation of ratio of earnings to fixed charges*
23(a) Consents of auditors
23(b) Consent of Counsel to the Corporation*
23(c) Consent of Special Delaware Council*
24 Power of Attorney
25(a) Form T-1 Statement of Eligibility of to act as trustee under the
Junior Subordinated Indenture*
25(b) Form T-1 Statement of Eligibility of to act as trustee under the
Amended and Restated Trust Agreement of BNY Capital I*
25(c) Form T-1 Statement of Eligibility of to act as trustee under the
Amended and Restated Trust Agreement of BNY Capital II*
25(d) Form T-1 Statement of Eligibility of to act as trustee under the
Amended and Restated Trust Agreement of BNY Capital III*
25(e) Form T-1 Statement of Eligibility of to act as trustee under the
Amended and Restated Trust Agreement of BNY Capital IV*
25(f) Form T-1 Statement of Eligibility of to act as trustee under the
Amended and Restated Trust Agreement of BNY Capital V*
25(g) Form T-1 Statement of Eligibility of under the Guarantee for the
benefit of the holders of Preferred Securities of BNY Capital I*
25(h) Form T-1 Statement of Eligibility of under the Guarantee for the
benefit of the holders of Preferred Securities of BNY Capital II*
25(i) Form T-1 Statement of Eligibility of under the Guarantee for the
benefit of the holders of Preferred Securities of BNY Capital III*
25(j) Form T-1 Statement of Eligibility of under the Guarantee for the
benefit of the holders of Preferred Securities of BNY Capital IV*
25(k) Form T-1 Statement of Eligibility of under the Guarantee for the
benefit of the holders of Preferred Securities of BNY Capital V*
</TABLE>
- --------
* To be filed by amendment.
II-4
<PAGE>
ITEM 17. UNDERTAKINGS.
Each of the undersigned Registrants, hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
each Registrant pursuant to the provisions described under Item 15 above, or
otherwise, each Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by each Registrant of expenses incurred or paid by a director, officer
or controlling person of each Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, each
Registrant will, unless in the opinion of its counsel the matter has been
settled by the controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
Each of the undersigned Registrants hereby also undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-
effective amendment thereto) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar 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% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in post-effective amendment by those
paragraphs is contained in periodic reports filed by a Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such 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-5
<PAGE>
(4) to provide to the underwriter at the closing specified in the
underwriting agreement certificates in such denominations and registered in
such names as required by the underwriter to permit prompt delivery to each
purchaser.
(5) That, for the purposes of determining any liability under the Securities
Act of 1933:
(i) The information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the Registration pursuant to Rule 424(b)(1) or
(4) or 487(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(ii) 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.
II-6
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
BANK OF NEW YORK COMPANY, INC. 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 TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW
YORK, ON THE 12TH DAY OF NOVEMBER, 1996.
The Bank of New York Company, Inc.
(Registrant)
/s/ Deno D. Papageorge
By: _________________________________
(Deno D. Papageorge,
Senior Executive Vice President)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE 12TH DAY OF NOVEMBER, 1996.
SIGNATURE TITLE
* Chairman, Chief Executive Officer
- ------------------------------------- (Principal Executive Officer) &
(J. CARTER BACOT) Director
/s/ Deno D. Papageorge Senior Executive Vice President
- ------------------------------------- (Principal Financial Officer)
(DENO D. PAPAGEORGE)
/s/ Robert E. Keilman Comptroller (Principal Accounting
- ------------------------------------- Officer)
(ROBERT E. KEILMAN)
* Director
- -------------------------------------
(RICHARD BARTH)
Director
- -------------------------------------
(FRANK J. BIONDI, JR.)
* Director
- -------------------------------------
(WILLIAM R. CHANEY)
II-7
<PAGE>
SIGNATURE TITLE
Vice Chairman and Director
- -------------------------------------
(SAMUEL F. CHEVALIER)
Director
- -------------------------------------
(RALPH E. GOMORY)
* Vice Chairman and Director
- -------------------------------------
(ALAN R. GRIFFITH)
Director
- -------------------------------------
(RICHARD J. KOGAN)
* Director
- -------------------------------------
(JOHN A. LUKE, JR.)
* Director
- -------------------------------------
(EDWARD L. HENNESSY, JR.)
* Director
- -------------------------------------
(JOHN C. MALONE)
* Director
- -------------------------------------
(DONALD L. MILLER)
* Director
- -------------------------------------
(H. BARCLAY MORLEY)
* Director
- -------------------------------------
(MARTHA T. MUSE)
II-8
<PAGE>
SIGNATURE TITLE
* Director
- -------------------------------------
(CATHERINE A. REIN)
* President and Director
- -------------------------------------
(THOMAS A. RENYI)
* Director
- -------------------------------------
(HOWARD E. SELLS)
* Director
- -------------------------------------
(W. S. WHITE, JR.)
- --------
* Deno D. Papageorge hereby signs this Registration Statement on Form S-3 on
November 12, 1996 on behalf of each of the indicated persons for whom he is
attorney-in-fact pursuant to a power of attorney filed herein.
/s/ Deno D. Papageorge
- -------------------------------------
(DENO D. PAPAGEORGE, ATTORNEY-IN-
FACT)
II-9
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, BNY CAPITAL I
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW YORK, AND STATE OF NEW YORK ON THE 12TH DAY OF
NOVEMBER, 1996.
BNY Capital I
By: The Bank of New York Company,
Inc., as Depositor
/s/ Robert E. Keilman
By: _________________________________
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, BNY CAPITAL II
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW YORK, AND STATE OF NEW YORK ON THE 12TH DAY OF
NOVEMBER, 1996.
BNY Capital II
By: The Bank of New York Company,
Inc., as Depositor
/s/ Robert E. Keilman
By: _________________________________
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, BNY CAPITAL III
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW YORK, AND STATE OF NEW YORK ON THE 12TH DAY OF
NOVEMBER, 1996.
BNY Capital III
By: The Bank of New York Company,
Inc.,as Depositor
/s/ Robert E. Keilman
By: _________________________________
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, BNY CAPITAL IV
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW YORK, AND STATE OF NEW YORK ON THE 12TH DAY OF
NOVEMBER, 1996.
BNY Capital IV
By: The Bank of New York Company,
Inc.,as Depositor
/s/ Robert E. Keilman
By: _________________________________
II-10
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, BNY CAPITAL V
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW YORK, AND STATE OF NEW YORK ON THE 12TH DAY OF
NOVEMBER, 1996.
BNY Capital V
By: The Bank of New York Company,
Inc.,as Depositor
/s/ Robert E. Keilman
By: _________________________________
II-11
<PAGE>
EXHIBIT 4(b)
CERTIFICATE OF TRUST
OF
BNY CAPITAL I
This Certificate of Trust of BNY Capital I (the "Trust"), dated November 6,
1996, is being duly executed and filed by the undersigned, as trustees, to form
a business trust under the Delaware Business Trust Act (12 Del. C. (S) 3801 et
seq.).
1. Name. The name of the business trust being formed
hereby is BNY Capital I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
is First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be
effective as of November 12, 1996.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Steven M. Wagner
------------------------
Name: Steven M. Wagner
Title: Vice President
/s/ Robert E. Keilman
------------------------
as Regular Trustee
/s/ John Park
------------------------
as Regular Trustee
<PAGE>
EXHIBIT 4(c)
TRUST AGREEMENT
OF
BNY CAPITAL I
This TRUST AGREEMENT, dated as of November 6, 1996, between The Bank
of New York Company, Inc., a New York corporation, as "Depositor" and John A.
Park, III and Robert E. Keilman as "Regular Trustees" and First Chicago Delaware
Inc. as "Trustee" (the Trustee and the Regular Trustees together, the
"Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BNY Capital I, in which
name the Trustees, or the Depositor to the extent provided herein, may conduct
the business of the Trust, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and
------ -- ---
that this document constitutes the governing instrument of the Trust. The
Trustee is hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form to be included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
<PAGE>
4. The Depositor and the Regular Trustees hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to file with the Securities and
-
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust (a) the Registration Statement on Form S-3 (the "1933 Act Registration
-
Statement"), including any pre-effective or post-effective amendments to such
1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities of the Trust and certain other
securities and any other necessary documents relating thereto and (b) a
-
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12 of
the Securities Exchange Act of 1934, as amended; (ii) to file with one or more
--
national securities exchange (each, an "Exchange") or the National Association
of Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
---
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws; (iv) to execute on behalf of the Trust such Underwriting Agreements
--
with one or more underwriters relating to the offering of the Preferred
Securities as the Depositor, on behalf of the Trust, may deem necessary or
desirable. In the event that any filing referred to in clauses (i), (ii) and
(iii) above is required by the rules and regulations of the Commission, any
Exchange, the NASD or state securities or Blue Sky laws, to be executed on
behalf of the Trust by one of the Trustees, the Depositor and any of the
Trustees appointed pursuant to Section 6 hereof are hereby authorized to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or
-2-
<PAGE>
decrease the number of Trustees; provided, however, that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor provided, however, such notice shall not be required if it is waived
-------- -------
by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall not
have any of the powers or duties of the Regular Trustees set forth herein and
shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807 of the Business Trust Act.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[Remainder of Page Intentionally Blank]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly executed as of the day and year first above written.
THE BANK OF NEW YORK
COMPANY, INC.,
as Depositor
By: /s/ Robert E. Keilman
--------------------------
Name: Robert E. Keilman
Title: Comptroller
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Steven M. Wagner
--------------------------
Name: Steven M. Wagner
Title: Vice President
/s/ Robert E. Keilman
----------------------------
as Regular Trustee
/s/ John Park
----------------------------
as Regular Trustee
-4-
<PAGE>
EXHIBIT 4(d)
CERTIFICATE OF TRUST
OF
BNY CAPITAL II
This Certificate of Trust of BNY Capital II (the "Trust"), dated November
6, 1996, is being duly executed and filed by the undersigned, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C. (S) 3801
et seq.).
1. Name. The name of the business trust being formed hereby is BNY
Capital II.
2. Delaware Trustee. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware is
First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as
of November 12, 1996.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Steven M. Wagner
------------------------
Name: Steven M. Wagner
Title: Vice President
/s/ Robert E. Keilman
------------------------
as Regular Trustee
/s/ John Park
------------------------
as Regular Trustee
-2-
<PAGE>
EXHIBIT 4(e)
TRUST AGREEMENT
OF
BNY CAPITAL II
This TRUST AGREEMENT, dated as of November 6, 1996, between The Bank
of New York Company, Inc., a New York corporation, as "Depositor" and John A.
Park, III and Robert E. Keilman as "Regular Trustees" and First Chicago Delaware
Inc. as "Trustee" (the Trustee and the Regular Trustees together, the
"Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BNY Capital II, in
which name the Trustees, or the Depositor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and sue and be
sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and
------ -- ---
that this document constitutes the governing instrument of the Trust. The
Trustee is hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form to be included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
<PAGE>
4. The Depositor and the Regular Trustees hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to file with the Securities and
-
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust (a) the Registration Statement on Form S-3 (the "1933 Act Registration
-
Statement"), including any pre-effective or post-effective amendments to such
1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities of the Trust and certain other
securities and any other necessary documents relating thereto and (b) a
-
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12 of
the Securities Exchange Act of 1934, as amended; (ii) to file with one or more
--
national securities exchange (each, an "Exchange") or the National Association
of Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
---
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws; (iv) to execute on behalf of the Trust such Underwriting Agreements
--
with one or more underwriters relating to the offering of the Preferred
Securities as the Depositor, on behalf of the Trust, may deem necessary or
desirable. In the event that any filing referred to in clauses (i), (ii) and
(iii) above is required by the rules and regulations of the Commission, any
Exchange, the NASD or state securities or Blue Sky laws, to be executed on
behalf of the Trust by one of the Trustees, the Depositor and any of the
Trustees appointed pursuant to Section 6 hereof are hereby authorized to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or
-2-
<PAGE>
decrease the number of Trustees; provided, however, that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor provided, however, such notice shall not be required if it is waived
-------- -------
by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall
not have any of the powers or duties of the Regular Trustees set forth herein
and shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807 of the Business Trust Act.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[Remainder of Page Intentionally Blank]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
THE BANK OF NEW YORK
COMPANY, INC.,
as Depositor
By: /s/ Robert E. Keilman
------------------------
Name: Robert E. Keilman
Title: Comptroller
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Steven M. Wagner
------------------------
Name: Steven M. Wagner
Title: Vice President
/s/ Robert E. Keilman
----------------------------
as Regular Trustee
/s/ John Park
----------------------------
as Regular Trustee
-4-
<PAGE>
EXHIBIT 4(f)
CERTIFICATE OF TRUST
OF
BNY CAPITAL III
This Certificate of Trust of BNY Capital III (the "Trust"), dated November
6, 1996, is being duly executed and filed by the undersigned, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C. (S) 3801
et seq.).
1. Name. The name of the business trust being formed hereby is BNY
Capital III.
2. Delaware Trustee. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware is
First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as
of November 12, 1996.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Steven M. Wagner
------------------------
Name: Steven M. Wagner
Title: Vice President
/s/ Robert E. Keilman
------------------------
as Regular Trustee
/s/ John Park
------------------------
as Regular Trustee
<PAGE>
EXHIBIT 4(g)
TRUST AGREEMENT
OF
BNY CAPITAL III
This TRUST AGREEMENT, dated as of November 6, 1996, between The Bank
of New York Company, Inc., a New York corporation, as "Depositor" and John A.
Park, III and Robert E. Keilman as "Regular Trustees" and First Chicago Delaware
Inc. as "Trustee" (the Trustee and the Regular Trustees together, the
"Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BNY Capital III, in
which name the Trustees, or the Depositor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and sue and be
sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and
------ -- ---
that this document constitutes the governing instrument of the Trust. The
Trustee is hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form to be included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
<PAGE>
4. The Depositor and the Regular Trustees hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to file with the Securities and
-
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust (a) the Registration Statement on Form S-3 (the "1933 Act Registration
-
Statement"), including any pre-effective or post-effective amendments to such
1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities of the Trust and certain other
securities and any other necessary documents relating thereto and (b) a
-
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12 of
the Securities Exchange Act of 1934, as amended; (ii) to file with one or more
--
national securities exchange (each, an "Exchange") or the National Association
of Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
---
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws; (iv) to execute on behalf of the Trust such Underwriting Agreements
--
with one or more underwriters relating to the offering of the Preferred
Securities as the Depositor, on behalf of the Trust, may deem necessary or
desirable. In the event that any filing referred to in clauses (i), (ii) and
(iii) above is required by the rules and regulations of the Commission, any
Exchange, the NASD or state securities or Blue Sky laws, to be executed on
behalf of the Trust by one of the Trustees, the Depositor and any of the
Trustees appointed pursuant to Section 6 hereof are hereby authorized to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or
-2-
<PAGE>
decrease the number of Trustees; provided, however, that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor provided, however, such notice shall not be required if it is waived
-------- -------
by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall
not have any of the powers or duties of the Regular Trustees set forth herein
and shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807 of the Business Trust Act.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[Remainder of Page Intentionally Blank]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly executed as of the day and year first above written.
THE BANK OF NEW YORK
COMPANY, INC.,
as Depositor
By: /s/ Robert E. Keilman
------------------------
Name: Robert E. Keilman
Title: Comptroller
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Steven M. Wagner
------------------------
Name: Steven M. Wagner
Title: Vice President
/s/ Robert E. Keilman
----------------------------
as Regular Trustee
/s/ John Park
----------------------------
as Regular Trustee
-4-
<PAGE>
EXHIBIT 4(h)
CERTIFICATE OF TRUST
OF
BNY CAPITAL IV
This Certificate of Trust of BNY Capital IV (the "Trust"), dated November
6, 1996, is being duly executed and filed by the undersigned, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C. (S) 3801
et seq.).
1. Name. The name of the business trust being formed hereby is BNY
Capital IV.
2. Delaware Trustee. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware is
First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as
of November 12, 1996.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Steven M. Wagner
------------------------
Name: Steven M. Wagner
Title: Vice President
/s/ Robert E. Keilman
------------------------
as Regular Trustee
/s/ John Park
------------------------
as Regular Trustee
<PAGE>
EXHIBIT 4(i)
TRUST AGREEMENT
OF
BNY CAPITAL IV
This TRUST AGREEMENT, dated as of November 6, 1996, between The Bank
of New York Company, Inc., a New York corporation, as "Depositor" and John A.
Park, III and Robert E. Keilman as "Regular Trustees" and First Chicago Delaware
Inc. as "Trustee" (the Trustee and the Regular Trustees together, the
"Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BNY Capital IV, in
which name the Trustees, or the Depositor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and sue and be
sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and
------ -- ---
that this document constitutes the governing instrument of the Trust. The
Trustee is hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form to be included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
<PAGE>
4. The Depositor and the Regular Trustees hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to file with the Securities and
-
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust (a) the Registration Statement on Form S-3 (the "1933 Act Registration
-
Statement"), including any pre-effective or post-effective amendments to such
1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities of the Trust and certain other
securities and any other necessary documents relating thereto and (b) a
-
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12 of
the Securities Exchange Act of 1934, as amended; (ii) to file with one or more
--
national securities exchange (each, an "Exchange") or the National Association
of Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
---
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws; (iv) to execute on behalf of the Trust such Underwriting Agreements
--
with one or more underwriters relating to the offering of the Preferred
Securities as the Depositor, on behalf of the Trust, may deem necessary or
desirable. In the event that any filing referred to in clauses (i), (ii) and
(iii) above is required by the rules and regulations of the Commission, any
Exchange, the NASD or state securities or Blue Sky laws, to be executed on
behalf of the Trust by one of the Trustees, the Depositor and any of the
Trustees appointed pursuant to Section 6 hereof are hereby authorized to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or
-2-
<PAGE>
decrease the number of Trustees; provided, however, that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor provided, however, such notice shall not be required if it is waived
-------- -------
by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall
not have any of the powers or duties of the Regular Trustees set forth herein
and shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807 of the Business Trust Act.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[Remainder of Page Intentionally Blank]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
THE BANK OF NEW YORK
COMPANY, INC.,
as Depositor
By: /s/ Robert E. Keilman
------------------------
Name: Robert E. Keilman
Title: Comptroller
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Steven M. Wagner
------------------------
Name: Steven M. Wagner
Title: Vice President
/s/ Robert E. Keilman
----------------------------
as Regular Trustee
/s/ John Park
----------------------------
as Regular Trustee
-4-
<PAGE>
EXHIBIT 4(j)
CERTIFICATE OF TRUST
OF
BNY CAPITAL V
This Certificate of Trust of BNY Capital V (the "Trust"), dated November
6, 1996, is being duly executed and filed by the undersigned, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C. (S) 3801
et seq.).
1. Name. The name of the business trust being formed hereby is BNY
Capital V.
2. Delaware Trustee. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware is
First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as
of November 12, 1996.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Steven M. Wagner
------------------------
Name: Steven M. Wagner
Title: Vice President
/s/ Robert E. Keilman
------------------------
as Regular Trustee
/s/ John Park
------------------------
as Regular Trustee
<PAGE>
EXHIBIT 4(k)
TRUST AGREEMENT
OF
BNY CAPITAL V
This TRUST AGREEMENT, dated as of November 6, 1996, between The Bank
of New York Company, Inc., a New York corporation, as "Depositor" and John A.
Park, III and Robert E. Keilman as "Regular Trustees" and First Chicago Delaware
Inc. as "Trustee" (the Trustee and the Regular Trustees together, the
"Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BNY Capital V, in
which name the Trustees, or the Depositor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and sue and be
sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and
------ -- ---
that this document constitutes the governing instrument of the Trust. The
Trustee is hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form to be included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
-1-
<PAGE>
4. The Depositor and the Regular Trustees hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to file with the Securities and
-
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust (a) the Registration Statement on Form S-3 (the "1933 Act Registration
-
Statement"), including any pre-effective or post-effective amendments to such
1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities of the Trust and certain other
securities and any other necessary documents relating thereto and (b) a
-
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12 of
the Securities Exchange Act of 1934, as amended; (ii) to file with one or more
--
national securities exchange (each, an "Exchange") or the National Association
of Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
---
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws; (iv) to execute on behalf of the Trust such Underwriting Agreements
--
with one or more underwriters relating to the offering of the Preferred
Securities as the Depositor, on behalf of the Trust, may deem necessary or
desirable. In the event that any filing referred to in clauses (i), (ii) and
(iii) above is required by the rules and regulations of the Commission, any
Exchange, the NASD or state securities or Blue Sky laws, to be executed on
behalf of the Trust by one of the Trustees, the Depositor and any of the
Trustees appointed pursuant to Section 6 hereof are hereby authorized to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or
-2-
<PAGE>
decrease the number of Trustees; provided, however, that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor provided, however, such notice shall not be required if it is waived
-------- -------
by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall
not have any of the powers or duties of the Regular Trustees set forth herein
and shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807 of the Business Trust Act.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[Remainder of Page Intentionally Blank]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly executed as of the day and year first above written.
THE BANK OF NEW YORK
By: /s/ Robert E. Keilman
------------------------
Name: Robert E. Keilman
Title: Comptroller
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Steven M. Wagner
------------------------
Name: Steven M. Wagner
Title: Vice President
/s/ Robert E. Keilman
----------------------------
as Regular Trustee
/s/ John Park
----------------------------
as Regular Trustee
-4-
<PAGE>
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of The Bank of New York Company, Inc. on Form S-3 of our report dated February
26, 1996, incorporated by reference in the Annual Report on Form 10-K of The
Bank of New York Company, Inc. for the year ended December 31, 1995 and to the
reference to us under the heading "Experts" in the Prospectus, which is part
of this Registration Statement.
Deloitte & Touche LLP
New York, New York
November 11, 1996
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation (the "Company"), does hereby
make, constitute and appoint J. Carter Bacot, Thomas A Renyi, Alan R.
Griffith, Deno D. Papageorge, Phebe C. Miller and Jacqueline R. McSwiggan and
each of them individually as the true and lawful attorney of the undersigned
with power to act with or without the other and with power of substitution,
and in his name, place and stead and his capacity as an officer or director or
both to execute, deliver and file a registration statement on Form S-3 or such
other appropriate form on his behalf, in any and all capacities stated
therein, and to file such Registration Statement or Statements with the
Securities and Exchange Commission under the Securities Act of 1933 and to
sign and file with the Securities and Exchange Commission any and all
amendments to such registration statement including post effective amendments
and any other documents in support thereof or supplemental thereto with
respect to the shelf registration of up to $1,000,000,000 aggregate amount of
debt securities ("Debt Securities") of the Company to be issued either
directly by the Company or in the form of preferred securities ("Preferred
Securities") to be issued by trusts for which the Company will be the
depositor and the principal asset of which is a Debt Security and a guarantee
of the Company with respect to the Preferred Securities, hereby granting to
said attorneys and each of them full power and authority to do and perform, in
the name and on behalf of the undersigned, every act whatsoever as any of said
attorneys individually may deem necessary or advisable to fully carry out the
intent of the foregoing as the undersigned might or could do in person. The
undersigned hereby ratifies, confirms and approves the actions of said
attorneys and each of them which they may do or cause to be done by virtue of
these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
12th day of November, 1996.
SIGNATURE
/s/ J. Carter Bacot
-------------------------------------
(J. CARTER BACOT)
/s/ Deno D. Papageorge
-------------------------------------
(DENO D. PAPAGEORGE)
-------------------------------------
(ROBERT E. KEILMAN)
/s/ Richard Barth
-------------------------------------
(RICHARD BARTH)
-------------------------------------
(FRANK J. BIONDI, JR.)
/s/ William R. Chaney
-------------------------------------
(WILLIAM R. CHANEY)
<PAGE>
SIGNATURE
-------------------------------------
(SAMUEL F. CHEVALIER)
-------------------------------------
(RALPH E. GOMORY)
/s/ Alan R. Griffith
-------------------------------------
(ALAN R. GRIFFITH)
-------------------------------------
(RICHARD J. KOGAN)
/s/ John A. Luke, Jr.
-------------------------------------
(JOHN A. LUKE, JR.)
/s/ Edward L. Hennessy, Jr.
-------------------------------------
(EDWARD L. HENNESSY, JR.)
/s/ John C. Malone
-------------------------------------
(JOHN C. MALONE)
/s/ Donald L. Miller
-------------------------------------
(DONALD L. MILLER)
/s/ H. Barclay morley
-------------------------------------
(H. BARCLAY MORLEY)
/s/ Martha T. Muse
-------------------------------------
(MARTHA T. MUSE)
/s/ Catherine A. Rein
-------------------------------------
(CATHERINE A. REIN)
/s/ Thomas A. Renyi
-------------------------------------
(THOMAS A. RENYI)
/s/ Howard E. Sells
-------------------------------------
(HOWARD E. SELLS)
/s/ W. S. White, Jr.
-------------------------------------
(W. S. WHITE, JR.)
