<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
BANKERS TRUST NEW YORK CORPORATION
- --------------------------------------------------------------------------------
(exact name of registrant as specified in its charter)
NEW YORK 13-6180473
- --------------------------------------------- ---------------------------------
(State of incorporation or organization) (I.R.S. employer
identification no.)
280 Park Avenue
New York, New York 10017
- --------------------------------------------- ---------------------------------
(Address of principal executive offices) (Zip code)
Securities to be registered
pursuant to Section 12(b) of
the Act:
Title of each class to Name of each Exchange on which
be so registered each class is to be registered
- ---------------------- ------------------------------
7-3/4% Cumulative Preferred
Stock, Series S (without
par value) of Registrant New York Stock Exchange, Inc.
Depositary Shares, each
representing a one-hundredth
interest in a share of the
7-3/4% Cumulative Preferred
Stock, Series S (without par
value) of the Registrant New York Stock Exchange, Inc.
________________________
Securities to be registered pursuant to Section 12(g) of the Act:
None
- --------------------------------------------------------------------------------
(Title of class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The description of the Registrant's (i) 7-3/4% Cumulative Preferred
Stock, Series S, without par value ("Series S Preferred Stock") and (ii)
Depositary Shares, each representing a one-hundredth interest in a share of
Series S Preferred Stock (the "Depositary Shares") to be registered hereunder is
incorporated by reference from the description of such Series S Preferred Stock
and Depositary Shares contained under the captions "Certain Terms of the Series
S Preferred Stock" and "Certain Terms of the Depositary Shares", in the
Registrant's Prospectus Supplement, dated June 27, 1994 and "Description of
Series Preferred Stock" and "Depositary Shares" in the Prospectus dated October
15, 1993, as filed with the Securities and Exchange Commission (the
"Commission") on June 28, 1995, a copy of which is attached hereto in the
submission to the New York Stock Exchange, Inc.
ITEM 2. EXHIBITS
The following exhibits are numbered in accordance with Item 601 of
Regulation S-K under the Securities Exchange Act of 1934.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- -----------
<S> <C>
4.1 Certificate of Amendment to the Registrant's
Restated Certificate of Incorporation, as
amended, relating to the Series S Preferred
Stock.
4.2 Registrant's Restated Certificate of
Incorporation, as amended, is incorporated
herein by reference to Exhibit 4(d) of the
Registrant's Current Report on Form 8-K, dated
August 6, 1993, to Exhibits (3)(i)(1) -
(3)(i)(7) to Registrant's Current Report on
Form 8-K, dated September 24, 1993, to
Exhibit (4)(c) of the Registrant's Current
Report on Form 8-K dated March 21, 1994 and to
Exhibit (4)(c) of the Registrant's Current Report
on Form 8-K dated August 12, 1994.
4.3 Registrant's By-laws are incorporated herein
by reference to Exhibit 3(ii)(1) of
Registrant's Current Report on Form 8-K, dated
September 24, 1993.
4.4 Form of Series S Preferred Stock certificate.
4.5 Form of Deposit Agreement between Bankers
Trust New York Corporation and Harris Trust
Company of New York, as Depositary, including
the form of Depositary Receipt.
</TABLE>
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
BANKERS TRUST NEW YORK CORPORATION
Date: June 29, 1994
By: /s/ Gordon S. Calder, Jr.
----------------------------
Name: Gordon S. Calder, Jr.
Title: Senior Vice President
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- --------- ------- ------------
<S> <C> <C>
4.1 Certificate of Amendment to the
Registrant's Restated Certificate of
Incorporation, as amended, relating
to the Series S Preferred Stock.
4.2 Registrant's Restated Certificate of
Incorporation, as amended, is
incorporated herein by reference to
Exhibit 4(d) of the Registrant's
Current Report on Form 8-K, dated
August 6, 1993, to
Exhibits (3)(i)(1) - (3)(i)(7) to
Registrant's Current Report on
Form 8-K, dated September 24, 1993,
to Exhibit (4)(c) of the Registrant's
Current Report on Form 8-K dated
March 21, 1994 and to Exhibit (4)(c)
of the Registrant's Current Report on
Form 8-K dated August 12, 1994.
4.3 Registrant's By-laws are incorporated
herein by reference to
Exhibit 3(ii)(1) of Registrant's
Current Report on Form 8-K, dated
September 24, 1993.
4.4 Form of Series S Preferred Stock
certificate.
4.5 Form of Deposit Agreement between
Bankers Trust New York Corporation
and Harris Trust Company of New York,
as Depositary, and a form of
Depositary Receipt.
</TABLE>
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<PAGE>
EXHIBIT 4.1
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF INCORPORATION
OF
BANKERS TRUST NEW YORK CORPORATION
_______________
Under Section 805 of the Business Corporation Law
_______________
STATE OF NEW YORK
DEPARTMENT OF STATE
Filed June __, 1995
_______________
Bankers Trust New York Corporation
280 Park Avenue
New York, New York 10017
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CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF INCORPORATION
OF
BANKERS TRUST NEW YORK CORPORATION
_______________
Under Section 805 of the Business Corporation Law
_______________
We, Duncan P. Hennes and Gordon S. Calder, Jr., being respectively a Senior
Vice President and Assistant Secretary of Bankers Trust New York Corporation,
hereby certify pursuant to the provisions of Section 8.05 of the Business
Corporation Law that:
FIRST: The name of the corporation is Bankers Trust New York Corporation
and the name under which it was formed was BT New York Corporation.
SECOND: The certificate of incorporation of the corporation was filed by
the Department of State of New York on the 12th day of May, 1965.
THIRD: The certificate of incorporation, as amended and supplemented by
certificates filed pursuant to law, is hereby amended, pursuant to authority
thereby vested in the Board of Directors, by the addition to Article FOURTH of
the certificate of incorporation of the following provisions stating the
designation, number, relative rights, preferences and limitations, to the extent
not heretofore set forth in Article FOURTH, of a series of the
<PAGE>
corporation's authorized Series Preferred Stock, without par value, such series
being hereby designated as the "7-3/4% Cumulative Preferred Stock, Series S",
all as fixed by the Board of Directors of the corporation before issuance of any
shares of such series:
(n) Provisions relating to the Series S Preferred Stock.
1. Designation. The distinctive serial designation of the series
-----------
established hereby shall be "7-3/4% Cumulative Preferred Stock, Series S"
(hereinafter called the "Series S Preferred Stock").
2. Number. The number of shares of Series S Preferred Stock without
------
par value shall initially be 50,000, which number may not be increased, but may
from time to time be decreased (but not below the sum of the number of shares of
Series S Preferred Stock then outstanding) by a resolution duly adopted by the
Board of Directors of the corporation. Shares of Series S Preferred Stock
redeemed, purchased or otherwise acquired by the corporation shall be cancelled
and shall revert to authorized but unissued Series Preferred Stock undesignated
as to series.
3. Dividends. (a) Holders of shares of Series S Preferred Stock
---------
shall be entitled to receive cumulative cash dividends when, as and if declared
by the Board of Directors of the corporation, out of funds legally available
therefor, from the date of original issuance of such shares to (but excluding)
the March 1, June 1, September 1 or December 1 next succeeding such date of
original issuance of such shares (the "Initial Dividend Period"), and for each
dividend period commencing on each March 1, June 1,
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September 1 or December 1 thereafter, and ending on and including the day next
preceding the first day of the next dividend period (such Initial Dividend
Period and each of such other periods being hereinafter referred to as a
"Dividend Period") at a rate of 7-3/4% per annum (the "Dividend Rate"). The
amount of dividends per share of Series S Preferred Stock payable for any
portion of any Dividend Period less than a full quarter shall be computed on the
basis of a 360-day year consisting of twelve 30-day months and the actual number
of days elapsed in the Dividend Period for which the dividends are payable, and
by multiplying the Dividend Rate by $2,500.00.
Dividends as provided for in this Paragraph 3 will accrue from the
date of original issuance of a share of Series S Preferred Stock and will be
payable when, as and if declared by the Board of Directors of the corporation,
out of funds legally available therefor, quarterly on March 1, June 1, September
1 and December 1 in each year (each, a "Dividend Payment Date"), commencing on
the Dividend Payment Date next succeeding the date of original issuance of such
share, to the holder of record at the close of business on the fifteenth day of
the month next preceding the month in which such Dividend Payment Date occurs.
Dividends as provided for in this Paragraph 3, to the extent not declared and
paid for any past Dividend Periods, may be declared and paid at any time,
without reference to any regular Dividend Payment Date, to holders of record on
such date, not exceeding 30 days preceding the payment date therefor, as may be
fixed by the Board of Directors of the
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corporation, or a duly authorized committee of the Board of Directors. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend that is not paid when it accrues.
(b) No dividend shall be declared and paid or set apart for payment
on any share of Series S Preferred Stock or any share of any other series of
Series Preferred Stock or any share of any class of stock, or series thereof,
ranking on a parity with the Series S Preferred Stock as to dividends, for any
Dividend Period unless at the same time a like proportionate dividend for the
same Dividend Period, ratably in proportion to the respective dividends
applicable thereto, shall be declared and paid or set apart for payment on all
shares of Series S Preferred Stock and all shares of all other series of Series
Preferred Stock and all shares of any class of stock, or series thereof, ranking
on a parity with the Series S Preferred Stock as to dividends, then issued and
outstanding and entitled to receive dividends. Holders of shares of Series S
Preferred Stock shall not be entitled to any dividend, whether payable in cash,
property or stock, in excess of full cumulative dividends, as herein provided,
on the Series S Preferred Stock.
(c) So long as any shares of Series S Preferred Stock shall be
outstanding, unless the full cumulative dividends on all outstanding shares of
Series S Preferred Stock shall have been declared and paid or set apart for
payment for all past Dividend Periods and except as provided in Paragraph 3(b),
(i) no dividend
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(other than a dividend in Common Stock or in any other stock of the corporation
ranking junior to the Series S Preferred Stock as to dividends and distribution
of assets upon liquidation, dissolution or winding up) shall be declared and
paid or set aside for payment, or other distribution declared or made, on the
Common Stock or on any other stock ranking junior to or on a parity with the
Series S Preferred Stock as to dividends or distribution of assets upon
liquidation, dissolution or winding up, and (ii) no shares of Common Stock or
shares of any other stock of the corporation ranking junior to or on a parity
with the Series S Preferred Stock as to dividends or distribution of assets upon
liquidation, dissolution or winding up shall be redeemed, purchased or otherwise
acquired for any consideration by the corporation or any subsidiary of the
corporation (nor shall any moneys be paid to or made available for a sinking or
other fund for the redemption, purchase or other acquisition of any shares of
any such stock), other than by conversion into or exchange for Common Stock or
any other stock of the corporation ranking junior to the Series S Preferred
Stock as to dividends and distribution of assets upon liquidation, dissolution
or winding up.
4. Liquidation. (a) Upon any liquidation, dissolution or winding up
-----------
of the corporation, whether voluntary or involuntary, the holders of the shares
of Series S Preferred Stock shall be entitled to receive in full out of the net
assets of the corporation or the proceeds thereof, whether from capital or
surplus, before any payment or distribution shall be made or set
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<PAGE>
aside for payment on the Common Stock or on any other class or series of stock
ranking junior to the Series S Preferred Stock as to distribution of assets upon
such liquidation, dissolution or winding up, the amount of $2,500.00 per share,
plus in each case an amount equal to accrued and unpaid dividends (whether or
not declared) to the date of final distribution (the "Liquidation Preference").
(b) In the event that the assets of the corporation, or the proceeds
thereof, available for distribution to the holders of shares of Series S
Preferred Stock upon any liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, shall be insufficient to pay the
full Liquidation Preference to which such holders are entitled pursuant to
Paragraph 4(a), no such distribution shall be made on account of any shares of
any other series of Series S Preferred Stock or any other class of stock, or
series thereof, ranking on a parity with the shares of Series S Preferred Stock
as to distribution of assets upon liquidation, dissolution or winding up, unless
proportionate distributive amounts shall be paid on account of the shares of
Series S Preferred Stock, ratably in proportion to the preferential sums which
would be payable in such distribution if all sums payable in respect of the
shares of all series of Series Preferred Stock and any such other class or
series as aforesaid were paid in full.
(c) After the payment to the holders of the shares of Series S
Preferred Stock of the full Liquidation Preference, the
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<PAGE>
holders of shares of Series S Preferred Stock, as such, shall have no right or
claim to any of the remaining assets of the corporation, or the proceeds
thereof.
(d) A consolidation or merger of the corporation with or into another
corporation or corporations, or a sale, lease or conveyance, whether for cash,
shares of stock, securities or properties, of all or substantially all or any
part of the assets of the corporation, shall not be deemed or construed to be a
liquidation, dissolution or winding up of the corporation within the meaning of
this Paragraph 4.
5. Redemption. (a) Issued and outstanding shares of Series S
----------
Preferred Stock shall be redeemable, at the option of the corporation, as a
whole or from time to time in part, at any time on or after June 1, 2000 at a
redemption price of $2,500.00 per share, plus in each case an amount equal to
accrued and unpaid dividends (whether or not declared) to the date fixed for
redemption.
(b)(i) In the event the corporation shall redeem shares of Series S
Preferred Stock, notice of such redemption shall be given by first-class mail,
postage prepaid, mailed not more than 60 nor less than 30 days prior to the date
fixed for redemption, to each holder of record of the shares to be redeemed, at
such holder's address as the same appears on the books of the corporation. Each
such notice shall state: (A) the date fixed for redemption; (B) the number of
shares of Series S Preferred Stock to be redeemed and, if less than all of the
shares of Series S
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<PAGE>
Preferred Stock held by such holder are to be redeemed, the number of such
shares (and the certificate numbers of such shares) to be redeemed from such
holder; (C) the redemption price (specifying the amount of accrued and unpaid
dividends to be included therein) and the manner in which such redemption price
is to be paid and delivered; (D) the place or places (which shall include a
place in the Borough of Manhattan, The City of New York) where certificates for
such shares are to be surrendered for payment of the redemption price; and (E)
that dividends on the shares to be redeemed will cease to accrue on such date
fixed for redemption. No defect in the notice of redemption or in the mailing
thereof shall affect the validity of the redemption proceedings, and the failure
to give notice to any holder of shares of Series S Preferred Stock to be so
redeemed shall not affect the validity of the notice given to the other holders
of shares of Series S Preferred Stock to be so redeemed.
(ii) Notice having been mailed as aforesaid, from and after the date
fixed for redemption (unless default shall be made by the corporation in
providing funds for the payment of the redemption price), dividends on the
shares of Series S Preferred Stock so called for redemption shall cease to
accrue, and such shares shall no longer be deemed to be outstanding, and all
rights of the holders thereof as holders of Series S Preferred Stock (except the
right to receive from the corporation the redemption price, but without
interest) shall cease. The corporation's obligation to provide funds in
accordance with the preceding
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<PAGE>
sentence shall be deemed fulfilled if, on or before 12:00 noon, New York City
time on the date fixed for redemption, the corporation shall deposit with a
paying agent (which may be an affiliate of the corporation) (a "Paying Agent"),
which shall be a bank or trust company organized and in good standing under the
laws of the United States or the State of New York having an office or agency in
the Borough of Manhattan, The City of New York, and having (together with its
immediate parent) capital, surplus and undivided profits aggregating at least
$50,000,000, funds necessary for such redemption, in trust, with irrevocable
instructions and authorization that such funds be applied to the redemption of
the shares of Series S Preferred Stock so called for redemption upon surrender
of certificates for such shares (properly endorsed or assigned for transfer).
(iii) If such notice of redemption shall have been duly mailed or if
the corporation shall have given to a Paying Agent irrevocable authorization
promptly to mail such notice, and if on or before the redemption date specified
therein the funds necessary for such redemption shall have been deposited by the
corporation with such Paying Agent in trust for the pro rata benefit of the
holders of the shares of Series S Preferred Stock called for redemption,
together with irrevocable instructions that such funds be applied to such
redemption, then, notwithstanding that any certificate for shares of Series S
Preferred Stock so called for redemption shall not have been surrendered for
cancellation, from and after the time of such deposit, all shares of Series S
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<PAGE>
Preferred Stock so called for redemption shall no longer be deemed to be
outstanding and all rights with respect to such shares of Series S Preferred
Stock shall forthwith cease and terminate, except only the right of the holders
thereof to receive from such Paying Agent at any time after the time of such
deposit the funds so deposited, without any interest thereon.
(iv) Any interest accrued on funds deposited with a Paying Agent in
connection with any redemption of shares of Series S Preferred Stock shall be
paid to the corporation from time to time and the holders of any such shares to
be redeemed with such money shall have no claim to any such interest. Any funds
deposited and unclaimed at the end of two years from any redemption date shall
be repaid or released to the corporation, after which the holder or holders of
shares of Series S Preferred Stock so called for redemption shall look only to
the corporation for payment of the redemption price, without any interest
thereon.
(c) Upon surrender in accordance with such notice of the certificates
for any shares to be redeemed (properly endorsed or assigned for transfer), such
shares shall be redeemed by the corporation at the applicable redemption price.
If less than all the outstanding shares of Series S Preferred Stock are to be
redeemed, the shares to be redeemed shall be determined by lot or pro rata as
may be determined by the Board of Directors of the corporation.
(d) In no event shall the corporation redeem less than all the
outstanding shares of Series S Preferred Stock unless full
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<PAGE>
cumulative dividends shall have been declared and paid or set apart for payment
on all outstanding shares of Series S Preferred Stock for all prior Dividend
Periods; provided, however, that the foregoing shall not prevent, if otherwise
-------- -------
permitted, the purchase or acquisition of shares of Series S Preferred Stock
pursuant to a tender or exchange offer made on the same terms to holders of all
the outstanding shares of Series S Preferred Stock and mailed to the holders of
record of all such outstanding shares at such holders' addresses as the same
appear on the books of the corporation; and provided, further, however, that if
-------- ------- -------
some, but less than all, of the shares of Series S Preferred are to be purchased
or otherwise acquired pursuant to such tender or exchange offer and the number
of shares so tendered exceeds the number of shares so to be purchased or
otherwise acquired by the corporation, the shares of Series S Preferred Stock so
tendered shall be purchased or otherwise acquired by the corporation on a pro
rata basis (with adjustments to eliminate fractions) according to the number of
such shares duly tendered by each holder so tendering shares of Series S
Preferred Stock for such purchase or exchange.
6. Conversion and Exchange. The holders of shares of Series S
-----------------------
Preferred Stock shall not have any rights to convert such shares into or to
exchange such shares for shares of Common Stock or any other stock of the
corporation.
7. Voting Rights. (a) Except as hereinafter in this Paragraph 7
-------------
expressly provided and as otherwise from time to time required by the laws of
the State of New York, the Series S
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Preferred Stock shall not have any voting rights.
(b) Whenever, at any time or times, dividends payable on shares of
Series S Preferred Stock shall be in arrears in an amount equivalent to
dividends for six full Dividend Periods, then, immediately upon the happening of
such event, the number of directors of the corporations shall be increased by
two and the holders of outstanding shares of Series S Preferred Stock shall have
the right, voting together as a single class with holders of shares of any other
series of Series Preferred Stock then outstanding upon which like voting rights
have been conferred and are then exercisable, to the exclusion of the holders of
the Common Stock, the holders of any other series of Series Preferred Stock upon
which such voting rights have not been conferred or are not then exercisable,
and the holders of any other stock of the corporation having general voting
rights, to vote for the election of two members of the Board of Directors of the
corporation to fill such newly created directorships, until all dividends in
arrears on the Series S Preferred Stock have been declared and paid or set apart
for payment in full. The right of the holders of Series S Preferred Stock to
elect members of the Board of Directors of the corporation as aforesaid shall
continue until such time as all dividends in arrears on the Series S Preferred
Stock shall have been declared and paid or set apart for payment in full, at
which time such right shall terminate, except as herein or by law expressly
provided, subject to revesting in the event of each and every subsequent
arrearage in the amount above mentioned. Upon any
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termination of the right of such holders to elect directors as herein provided,
the term of office of all directors then in office elected thereby, and the
vacancies created pursuant to this Paragraph 7(b), shall terminate immediately.
Any director who shall have been so elected pursuant to this Paragraph 7(b) may
be removed at any time, with or without cause, and any vacancy thereby created
may be filled, only by the affirmative vote of the holders of Series S Preferred
Stock voting together as a single class with the holders of shares of any other
series of Series Preferred Stock upon which like voting rights have been
conferred and are then exercisable. If the office of any director so elected
pursuant to this Paragraph 7(b) becomes vacant for any reason other than removal
from office as aforesaid, the remaining director may choose a successor who
shall hold office for the unexpired term in respect of which such vacancy
occurred.
(c) So long as any shares of Series S Preferred Stock shall be
outstanding, unless the vote or consent of the holders of a greater number of
shares shall then be required by law and subject to any other voting rights that
may be conferred on other series of Series Preferred Stock or greater percentage
that may be required under the terms of such series of Series Preferred Stock,
the affirmative vote or consent of (a) the holders of at least 66-2/3% of the
shares of Series S Preferred Stock and (b) the holders of at least a majority of
the shares of Series S Preferred Stock and of any other series of Series
Preferred Stock then outstanding upon which like voting rights have been
conferred and are then
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<PAGE>
exercisable, voting together as a single class, in each case given in person or
by proxy either in writing or by resolution at any special or annual meeting
called for the purpose, shall be necessary to authorize, permit, effect or
validate any one or more of the following: (i) the authorization or any
increase in the authorized amount of any class of stock, or the establishment or
designation of any series of stock (unless the class of which such series is a
part has been authorized previously pursuant to this Paragraph 7(c)(i)), or the
issuance or sale of any obligation, security or instrument convertible into,
exchangeable for, or evidencing the right to purchase, acquire or subscribe for
shares of a class or series of stock, if such class or series of stock ranks
prior to the Series S Preferred Stock as to dividends or distribution of assets
upon liquidation, dissolution or winding up (unless the class or series has been
authorized previously pursuant to this Paragraph 7(c)(i)), and (ii) the
amendment, alteration or repeal, whether by merger, consolidation or otherwise,
of any of the provisions of the certificate of incorporation, as amended hereby,
which would materially and adversely affect any right, preference, privilege or
voting rights of the Series Preferred Stock then outstanding; provided, however,
-------- -------
that in the event that any such amendment, alteration or repeal would materially
and adversely affect the rights of only the Series S Preferred Stock, then such
amendment, alteration or repeal may be effected only with the affirmative vote
or consent of the holders of at least 66-2/3% of the shares of Series S
Preferred Stock then outstanding;
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provided further, however, that the authorization, establishment, designation,
- -------- ------- -------
issuance or sale of other Series Preferred Stock shall not have, or be deemed to
have, such material adverse effect; and provided further, however, that an
-------- ------- -------
increase in the authorized amount of Series Preferred Stock, or the amount of
authorization, establishment, designation, issuance or sale of any shares of
stock that do not rank prior to the Series Preferred Stock as to dividends or
distribution of assets upon liquidation, dissolution or winding up, shall not
have, or be deemed to have, such material adverse effect.
In addition, unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the affirmative vote or consent
of the holders of at least a majority of the shares of Series S Preferred Stock
and any other series of Series Preferred Stock then outstanding upon which like
voting rights have been conferred and are then exercisable, voting together as a
single class, given in person or by proxy either in writing or by resolution at
any special or annual meeting called for the purpose, shall be necessary to
authorize an increase in the authorized amount of the Series Preferred Stock or
the new class of serial preferred stock of the corporation authorized by the
stockholders of the corporation prior to the creation of the Series S Preferred
Stock (the "Serial Preferred Stock"), or the creation of a class of stock that
would rank pari passu with the Series Preferred Stock or the Serial Preferred
---- -----
Stock as to dividends or distribution of assets upon liquidation, dissolution or
winding up,
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<PAGE>
or to authorize, permit, effect or validate the voluntary liquidation,
dissolution or winding up of the corporation; provided, however, that a
-------- -------
consolidation or merger of the corporation with or into another corporation or
corporations, or a sale, lease or conveyance, whether for cash, shares of stock,
securities or properties, of all or substantially all or any part of the assets
of the corporation, shall not be deemed or construed to be a liquidation,
dissolution or winding up of the corporation within the meaning of this
Paragraph.
(d) The foregoing provisions regarding voting rights shall not apply
if, at or prior to the time when the act with respect to which such provisions
would otherwise apply to a vote required to effect such act, (i) all shares of
Series S Preferred Stock then outstanding shall have been redeemed or called for
redemption and sufficient funds, together with irrevocable instructions to the
Paying Agent to apply such funds, shall have been deposited in trust to effect
such redemption in accordance with Paragraph 5(b)(ii) or 5(b)(iii), or (ii) all
shares of Series S Preferred Stock have been purchased or otherwise acquired and
cancelled.
(e) Holders of Series S Preferred Stock, and the holders of shares of
any other series of Series Preferred Stock upon which like voting rights have
been conferred and are then exercisable (other than the Series C Junior
Participating Preferred Stock), shall be entitled to one vote for each share of
such stock held on matters as to which such holders shall be entitled to vote.
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8. Definitions. For purposes hereof, any class or series of stock of
-----------
the corporation shall be deemed to rank:
(i) prior to the Series S Preferred Stock as to dividends or
distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class or series shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the holders of
Series S Preferred Stock;
(ii) on a parity or pari passu with the Series S Preferred Stock
---- -----
as to dividends or distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment dates,
redemption prices or liquidation preferences per share thereof are
different from those of the Series S Preferred Stock, if the holders of
such class or series of stock and of the Series S Preferred Stock shall be
entitled to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in proportion
to their respective dividend amounts or liquidation preferences, without
preference or priority to the holders of Series S Preferred Stock; and
(iii) junior to the Series S Preferred Stock as to dividends or
distribution of assets upon liquidation, dissolution or winding up, if such
stock shall be Common
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<PAGE>
Stock or if the holders of the Series S Preferred Stock shall be entitled
to the receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to
the holders of shares of such class or series.
FOURTH: The manner in which the foregoing amendment of the
certificate of incorporation was authorized was by the affirmative vote of at
least a majority of the Board of Directors of the corporation at a meeting duly
convened and held on June 20, 1995, and by the affirmative vote of at least a
majority of the members of the Executive Committee of the Board of Directors of
the corporation at a meeting of such committee duly convened and held on June
27, 1995, at each of which a quorum was present throughout.
-18-
<PAGE>
IN WITNESS WHEREOF, we, the undersigned, have subscribed this
Certificate on the 27th day of June, 1995 and affirm the statements contained
herein as true under penalties or perjury.
/s/ Duncan P. Hennes
------------------------------
Duncan P. Hennes
Senior Vice President
/s/ Gordon S. Calder, Jr.
------------------------------
Gordon S. Calder, Jr.
Assistant Secretary
-19-
<PAGE>
EXHIBIT 4.4
CERTIFICATE NUMBER OF
NUMBER SHARES
BANKERS TRUST NEW YORK CORPORATION
Incorporated Under the Laws of the State of New York
7-3/4% CUMULATIVE PREFERRED STOCK, SERIES S
$2,500 LIQUIDATION PREFERENCE
CUSIP NO. 066 365 677
-----------------
(See Reverse for Certain
Definitions)
This Certifies that ________________________ is the owner of
_______________________ (___) fully paid and nonassessable shares without par
value of 7-3/4% Cumulative Preferred Stock, Series S ($2,500 Liquidation
Preference), of Bankers Trust New York Corporation (the "Corporation")
transferable only on the books of the Corporation by the holder hereof in person
or by duly authorized Attorney upon surrender of this Certificate properly
endorsed. This Certificate is not valid unless countersigned by the registrar
and transfer agent.
WITNESS the seal of the Corporation and the signatures of its duly authorized
officers.
HARRIS TRUST COMPANY OF NEW YORK BANKERS TRUST NEW YORK CORPORATION
as Registrar and Transfer Agent
By_____________________________ By________________________________
Authorized Signature
Attest________________________
<PAGE>
The Corporation will furnish to any shareholder upon request and without
charge, a full statement of the designation, relative rights, preferences and
limitations of the shares of the Series S Preferred Stock and of each class of
shares authorized to be issued, and the designation, relative rights,
preferences and limitations of each series of preferred stock, so far as the
same have been fixed, and the authority of the Board of Directors to designate
and fix the relative rights, preferences and limitations of other series. Any
such request is to be addressed to the transfer agent named on the face of the
certificate.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN
ACT-____ Custodian_____
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act____________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, _________________________ hereby sell, assign
and transfer unto _____________________________________________________
Shares of the preferred stock represented by the within Certificate, and do
hereby irrevocably constitute and appoint ________________________ Attorney to
transfer the said stock on the books of the within-named Corporation with full
power of substitution in the premises.
Dated _________________, _____ ___________________
In presence of ___________________________________
_________________________________
NOTICE: The signature to the assignment must
correspond with name as written upon the face of
this certificate in every particular, without
alteration or enlargement or any change whatever.
<PAGE>
EXHIBIT 4.5
================================================================================
BANKERS TRUST NEW YORK CORPORATION,
Harris Trust Company of New York, As Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
Deposit Agreement
_________________
Dated as of June 30, 1995
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES................................................. 1
RECITALS................................................ 1
ARTICLE I
Definitions
Certificate............................................. 2
Certificate of Incorporation............................ 2
Corporation............................................. 2
Deposit Agreement....................................... 2
Depositary.............................................. 2
Depositary Shares....................................... 2
Depositary's Agent...................................... 2
Depositary's Office..................................... 2
Paying Agent............................................ 3
Receipt................................................. 3
record holder........................................... 3
Redemption Date......................................... 3
Registrar............................................... 3
Securities Act.......................................... 3
Series S Preferred Stock................................ 3
Stock................................................... 3
</TABLE>
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
<TABLE>
<S> <C> <C>
SECTION 2.01. Form and Transfer of Receipts.......... 4
SECTION 2.02. Deposit of Stock; Execution and
Delivery of Receipts in Respect
Thereof................................ 6
SECTION 2.03. Redemption of Stock.................... 8
SECTION 2.04. Registration of Transfer of Receipts... 12
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 2.05. Split-Ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Stock............................... 12
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange
of Receipts............................ 15
SECTION 2.07. Lost Receipts, Etc..................... 16
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts................... 16
<CAPTION>
ARTICLE III
Certain Obligations of Holders
of Receipts and the Corporation
<S> <C> <C>
SECTION 3.01. Filing Proofs, Certificates and
Other Information...................... 17
SECTION 3.02. Payment of Taxes or Other
Governmental Charges................... 17
SECTION 3.03. Warranty as to Stock................... 18
<CAPTION>
ARTICLE IV
The Deposited Securities; Notices
<S> <C> <C>
SECTION 4.01. Cash Distributions..................... 18
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges.............. 19
SECTION 4.03. Subscription Rights, Preferences
or Privileges.......................... 21
SECTION 4.04. Notice of Dividends, Etc.; Fixing of
Record Date for Holders of
Receipts............................... 23
SECTION 4.05. Voting Rights.......................... 24
SECTION 4.06. Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, Etc................. 25
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 4.07. Inspection of Reports.................. 27
SECTION 4.08. Lists of Receipt Holders............... 27
<CAPTION>
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Corporation
<S> <C> <C>
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar.............................. 27
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the
Corporation............................ 29
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Corporation.................... 30
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of
Successor Depositary................... 32
SECTION 5.05. Corporate Notices and Reports.......... 34
SECTION 5.06. Indemnification by the Corporation..... 34
SECTION 5.07. Charges and Expenses................... 35
SECTION 5.08 Tax Compliance......................... 36
<CAPTION>
ARTICLE VI
Amendment and Termination
<S> <C> <C>
SECTION 6.01. Amendment............................. 37
SECTION 6.02. Termination........................... 37
</TABLE>
-iii-
<PAGE>
ARTICLE VII
Miscellaneous
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 7.01. Counterparts.......................... 38
SECTION 7.02. Exclusive Benefit of Parties.......... 38
SECTION 7.03. Invalidity of Provisions.............. 38
SECTION 7.04. Notices............................... 39
SECTION 7.05. Depositary's Agents................... 40
SECTION 7.06. Holders of Receipts Are Parties....... 41
SECTION 7.07. Governing Law.......................... 41
SECTION 7.08. Inspection of Deposit Agreement........ 41
SECTION 7.09. Headings............................... 41
TESTIMONIUM............................................. 42
SIGNATURES.............................................. 42
EXHIBIT A: Form of Depositary Receipt
</TABLE>
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<PAGE>
DEPOSIT AGREEMENT dated as of June 30, 1995, among BANKERS TRUST NEW
YORK CORPORATION, a New York corporation (the "Corporation"), HARRIS TRUST
COMPANY OF NEW YORK, a New York corporation, as depositary (the "Depositary")
and the holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of 7 3/4% Cumulative Preferred
Stock, Series S ($2,500 Liquidation Preference), of the Corporation with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary Shares in respect of the
Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the certificate of amendment to the
Certificate of Incorporation filed with the
<PAGE>
Secretary of State of New York establishing the Stock as a series of series
preferred stock, without par value, of the Corporation.
"Certificate of Incorporation" shall mean the Restated Certificate of
Incorporation of the Corporation (including the Certificate), as amended or
supplemented from time to time.
"Corporation" shall mean Bankers Trust New York Corporation, a New
York corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean Harris Trust Company of New York, a New York
corporation, and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
one-hundredth (1/100th) of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05 hereof.
"Depositary's Office" shall mean the principal office of the
Depositary in New York City, at which at any particular time its depositary
receipt business shall be administered.
"Paying Agent" shall have the meaning specified in the Certificate.
-2-
<PAGE>
"Receipt" shall mean one of the Depositary Receipts issued hereunder,
whether in definitive or temporary form.
"record holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Redemption Date" shall have the meaning specified in Section 2.03
hereof.
"Registrar" shall mean any bank or trust company that shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933 and the rules
and regulations promulgated thereunder, in each case as amended or supplemented
from time to time.
"Series S Preferred Stock" shall mean shares of the Corporation's 7-
3/4% Cumulative Preferred Stock, Series S ($2,500 Liquidation Preference).
"Stock" shall mean shares of the Series S Preferred Stock.
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders and shall
be substantially in the form set forth in Exhibit A annexed to
-3-
<PAGE>
this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Corporation delivered in
compliance with Section 2.02 hereof, shall execute and deliver temporary
Receipts, which shall be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by such persons' execution of such Receipts. If temporary Receipts
are issued, the Corporation and the Depositary shall cause definitive Receipts
to be prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive Receipts
upon surrender of the temporary Receipts at an office described in the last
paragraph of Section 2.02 hereof, without charge to the holder. Upon surrender
for cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Corporation's expense
and without any charge therefor. Until so exchanged, the temporary Receipts
-4-
<PAGE>
shall in all respects be entitled to the same benefits under this Agreement, and
with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary, provided that such signature may
be a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are countersigned by manual signature of
a duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by manual or facsimile signature of a duly authorized
officer of the Depositary and countersigned manually by a duly authorized
officer of such Registrar. The Depositary shall record on its books each
Receipt so signed and delivered as hereinafter provided.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may
-5-
<PAGE>
be listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are
subject.
Title to Depositary Shares evidenced by a Receipt that is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04 hereof,
the Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Corporation may from time to time deposit shares of the Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or certificates
for the Stock to be deposited, properly endorsed or accompanied, if required by
the Depositary, by a duly executed instrument of transfer or endorsement, in
form satisfactory to the Depositary, together with all such certifications as
may be required by
-6-
<PAGE>
the Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Corporation directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock and registered in the name of the person or
persons stated in such order.
Upon receipt by the Depositary of a certificate or certificates for
shares of Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Stock on the books of the Corporation in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver a Receipt or Receipts for
the number of Depositary Shares representing the Stock so deposited registered
in the name or names of the person or persons specified in the written order
delivered to the Depositary referred to in the first paragraph of this Section.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate to the person or persons specified in such order. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
-7-
<PAGE>
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, or unless the Corporation provides written
notice to the Depositary as to a different number of shares of Stock, there
shall be deposited hereunder not more than 50,000 shares of Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine. The
Depositary shall not lend any Stock deposited hereunder.
SECTION 2.03. Redemption of Stock. Whenever the Corporation shall
elect to redeem shares of Stock in accordance with the provisions of the
Certificate, it shall (unless otherwise agreed to in writing with the
Depositary) give the Depositary not less than 40 nor more than 70 days' notice
of the date of such proposed redemption of Stock, which notice shall be
accompanied by a certificate from the Corporation stating that such redemption
of Stock is in accordance with the provisions of the Certificate. Such notice,
if given more than 60 days prior to the redemption date, shall be in addition to
the notice required to be given for redemption pursuant to the Certificate. On
the date of such redemption, provided that the Corporation shall then have paid
in full to the Depositary the redemption price of the Stock to be redeemed,
including any accrued and
-8-
<PAGE>
unpaid dividends thereon, the Depositary shall redeem the number of Depositary
Shares representing such Stock. The Depositary shall mail notice of such
redemption and the proposed simultaneous redemption of the number of Depositary
Shares representing the Stock to be redeemed, first-class postage prepaid, not
less than 30 nor more than 60 days prior to the date fixed for redemption of
such Stock and Depositary Shares (the "Redemption Date"), to the record holders
of the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as they appear on the records of the Depositary;
provided that neither any failure to mail any such notice to one or more such
holders nor any defect in any notice to one or more such holders shall affect
the sufficiency of the proceedings for redemption as to any other holders. Each
such notice shall state: (i) the Redemption Date; (ii) the number of Depositary
Shares to be redeemed and, if less than all the Depositary Shares held by any
such holder are to be redeemed, the number of such Depositary Shares held by
such holder to be so redeemed; (iii) the redemption price; (iv) the place or
places where Receipts evidencing Depositary Shares are to be surrendered for
payment of the redemption price; and (v) that dividends in respect of the Stock
represented by the Depositary Shares to be redeemed will cease to accumulate on
such Redemption Date. In case less than all the outstanding Depositary Shares
are to be
-9-
<PAGE>
redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata as may be determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid, from and
after the earlier of (i) the time of deposit of funds, pursuant to Paragraph 5
of the Certificate, necessary for such redemption with the Paying Agent in trust
for the pro rata benefit of the holders of Stock represented by the Depositary
Shares called for redemption or (ii) the Redemption Date (unless the Corporation
shall have failed to redeem the shares of Stock to be redeemed by it as set
forth in the Corporation's notice provided for in the preceding paragraph), all
dividends in respect of each share of Stock so called for redemption shall cease
to accumulate, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the redemption
price) shall, to the extent of such Depositary Shares, cease and terminate and,
upon surrender in accordance with such notice of the Receipts evidencing any
such Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be redeemed by the
Depositary at a redemption price per Depositary Share equal to one-hundredth
(1/100th) of the redemption price per share paid in respect
-10-
<PAGE>
of each share of Stock plus all money and other property, if any, represented by
such Depositary Shares, including all amounts paid by the Corporation in respect
of dividends that on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid.
If fewer than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption. Notwithstanding anything to the contrary herein, the
Corporation may purchase or acquire shares of Stock represented by the
Depositary Shares pursuant to a tender or exchange offer as set forth in
Paragraph 5(d) of the Certificate; provided, however, that if some, but less
than all, of the shares of Stock represented by the Depositary Shares are to be
purchased or otherwise acquired pursuant to such tender or exchange offer and
the number of shares of Stock represented by the Depositary Shares so tendered
exceeds the number of shares of Stock represented by the Depositary Shares so to
be purchased or otherwise acquired by the Corporation, the Depositary Shares
representing Stock so tendered shall be purchased or otherwise acquired by the
Depositary, on behalf and upon the instructions of the Corporation, on a pro
rata basis (with adjustments to
-11-
<PAGE>
eliminate fractions) according to the number of such Depositary Shares duly
tendered by each holder so tendering Depositary Shares for such purchase or
exchange.
SECTION 2.04. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Receipts upon any surrender thereof by
the holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts, in any authorized
denomination or denominations requested, evidencing the same aggregate number of
Depositary Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the person entitled
thereto.
SECTION 2.05. Split-Ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute and deliver a new Receipt or Receipts, in any authorized
denomination or denominations requested, evidencing the
-12-
<PAGE>
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may (unless the related Depositary Shares have previously been
called for redemption) withdraw the Stock and all money and other property, if
any, represented by such Receipt or Receipts by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares of Stock and
all money and other property, if any, represented by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole shares of Stock will not
thereafter be entitled to deposit such Stock hereunder or to receive Depositary
Shares therefor. If a Receipt delivered by the holder to the Depositary in
connection with such withdrawal shall evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Section 2.03 hereof) upon such
-13-
<PAGE>
holder's order, a new Receipt evidencing such excess number of Depositary
Shares. Delivery of the Stock and money and other property being withdrawn may
be made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the record holder of the Receipt
or Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of such holder, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery,
-14-
<PAGE>
registration or registration of transfer, split-up, combination, redemption,
surrender or exchange of any Receipt, the Depositary, any of the Depositary's
Agents or the Corporation may require payment to it of a sum sufficient for the
payment (or, in the event that the Depositary or the Corporation shall have made
such payment, the reimbursement to it) of any charges or expenses payable by the
holder of a Receipt pursuant to Section 5.07 hereof, may require the production
of evidence satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with such regulations, if any, as the
Depositary or the Corporation may establish consistent with the provisions of
this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of Receipts may be refused and the
registration of transfer, split-up, combination, redemption, surrender or
exchange of outstanding Receipts may be suspended (i) during any period when the
register of stockholders of the Corporation is closed or (ii) if any such action
is deemed necessary or advisable by the Depositary, any of the Depositary's
Agents or the Corporation at any time or from time to time because of any
requirement of law or of any government or governmental body or commission or
under any provision of this Deposit Agreement.
-15-
<PAGE>
SECTION 2.07. Lost Receipts, Etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
Certain Obligations of Holders
of Receipts and the Corporation
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence or other matters or information, to execute such certificates and to
make such representations and warranties as the Depositary
-16-
<PAGE>
or the Corporation may reasonably deem necessary or proper. The Depositary or
the Corporation may withhold the delivery, or delay the registration or
registration of transfer, split-up, combination, redemption, surrender or
exchange of any Receipt or the withdrawal of the Stock and all money and other
property, if any, represented by the Depositary Shares evidenced by any Receipt
or the distribution of any dividend or other distribution or the sale of any
rights or of the proceeds thereof until such proof or other information is
filed, such certificates are executed and such representations and warranties
are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07 hereof. Any
registration or registration of transfer, split-up, combination, redemption,
surrender or exchange of any Receipt or any withdrawal of the Stock and all
money and other property, if any, represented by the Depositary Shares evidenced
by any Receipt may be refused until any such payment due is made, and the
distribution of any dividend, interest payment or other distribution may be
delayed or withheld or any part of or all the Stock or money or other property
represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by
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reasonable means to notify such holder prior to such sale), and any such
dividend, interest payment or other distribution or the proceeds of any such
sale may be applied to any payment of such charges or expenses, provided that
the holder of such Receipt shall remain liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Corporation hereby
represents and warrants that the Stock, when issued, will be validly issued,
fully paid and nonassessable. Such representation and warranty shall survive
the deposit of the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.01 and 3.02 hereof, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 hereof such dividend
or distribution in such amounts as are, as nearly as practicable, in proportion
to the respective numbers of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that in case the Corporation or the Depositary
shall be required to withhold and shall withhold from any cash dividend or other
cash distribution in respect of the Stock an amount on
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account of taxes, the amount made available for distribution or distributed in
respect of Depositary Shares shall be reduced accordingly; and provided further,
however, that the Depositary shall distribute or make available for
distribution, as the case may be, only such amount as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part of the next
sum received by the Depositary for distribution to record holders of Receipts
then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02 hereof, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 hereof such
securities or property received by it in such amounts as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such record holders, or if for any
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other reason (including any requirement that the Corporation or the Depositary
withhold an amount on account of taxes) the Depositary, after consultation with
the Corporation, deems such distribution not to be feasible, the Depositary may,
with the approval of the Corporation, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus received, or
any part thereof, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Sections 3.01 and
3.02 hereof, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided by Section 4.01
hereof in the case of a distribution received in cash. The Corporation shall
not make any distribution of such securities unless the Corporation shall have
provided an opinion of counsel stating that such securities have been registered
under the Securities Act or are not required to be so registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Corporation shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Corporation any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges
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shall in each such instance be made available by the Depositary to the record
holders of Receipts in such manner as the Depositary may determine, either by
the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Corporation; provided,
however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Corporation) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with the approval of the Corporation, in
any case where the Depositary has determined that it is not feasible to make
such rights, preferences or privileges available), may, if applicable laws or
the terms of such rights, preferences or privileges permit such transfer, sell
such rights, preferences or privileges at public or private sale, at such place
or places and upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Sections 3.01 and 3.02 hereof, be distributed by the
Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.01 hereof in the case of a
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distribution received in cash. The Corporation shall not make any distribution
of any such rights, preferences or privileges unless the Corporation shall have
provided an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or are not required to
be registered.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Corporation shall promptly file a registration
statement pursuant to the Securities Act with respect to such rights,
preferences or privileges and securities and use its best efforts and take all
steps available to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall have become
effective, or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of the Securities Act.
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If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Corporation shall use its best efforts to take such action or
obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Etc.; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered with respect to
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depositary and the Corporation shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Corporation with respect
to the Stock) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such
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meeting, or who shall be entitled to notice of such meeting or for any other
appropriate reason.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
at which the holders of Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the record holders of Receipts a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement that the holders of the Receipts may, subject to
any applicable restrictions, instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Stock represented by their respective
Depositary Shares (including an express indication that instructions may be
given to the Depositary to give a discretionary proxy to a person designated by
the Corporation) and a brief statement as to the manner in which such
instructions may be given. Upon the written request of the holders of Receipts
on the relevant record date, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted, in accordance with the instructions
set forth in such requests, the maximum number of whole shares of Stock
represented by the Depositary Shares evidenced by all Receipts as to which any
particular voting instructions are received. The Corporation shall take all
action that the Depositary may deem necessary in order to enable the Depositary
to vote such Stock or cause such Stock to be voted. In the absence
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of specific instructions from the holder of a Receipt, the Depositary shall
abstain from voting (but, at its discretion, not from appearing at any meeting
with respect to such Stock unless directed to the contrary by the holders of all
the Receipts) to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, Etc. Upon any change in par or stated
value or liquidation preference, split-up, combination or any other
reclassification of the Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Corporation or to which it
is a party, the Depositary may in its discretion with the approval of, and shall
upon the instructions of, the Corporation, and (in either case) in such manner
as the Depositary may deem equitable, (i) make such adjustments as are certified
by the Corporation in (x) the fraction of an interest represented by one
Depositary Share in one share of Stock and (y) the ratio of the redemption price
per Depositary Share to the redemption price of a share of Stock, in each case
as may be necessary fully to reflect the effects of such change in par or stated
value or liquidation preference, split-up, combination or other reclassification
of Stock, or of such recapitalization, reorganization, merger, amalgamation or
consolidation and (ii) treat any securities that shall be
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received by the Depositary in exchange for or upon conversion of or in respect
of the Stock as new deposited securities so received in exchange for or upon
conversion or in respect of such Stock. In any such case the Depositary may in
its discretion, with the approval of the Corporation, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in par or stated value or liquidation preference, split-up, combination
or other reclassification of the Stock or any such recapitalization,
reorganization, merger, amalgamation or consolidation to surrender such Receipts
to the Depositary with instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which the Stock
represented by such Receipts might have been converted or for which such Stock
might have been exchanged or surrendered immediately prior to the effective date
of such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall transmit
to the record holders of Receipts, at the addresses of such record holders as
set forth on the
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books of the Depositary, and shall make available for inspection by holders of
Receipts at the Depositary's Office, and at such other places as it may from
time to time deem advisable, any reports and communications received from the
Corporation which are received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
time to time by the Corporation, the Depositary shall furnish to it a list, as
of a recent date, of the names, addresses and holdings of Depositary Shares of
all persons in whose names Receipts are registered on the books of the
Depositary.
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Corporation
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall establish, and thereafter it shall maintain, at the
Depositary's Office, facilities for the execution and delivery, registration or
registration of transfer, split-up, combination, redemption, surrender or
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration or registration of transfer, split-up,
combination, redemption,
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surrender or exchange of Receipts, all in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration or registration of transfer, split-up, combination, redemption,
surrender or exchange of Receipts, which books at all reasonable times shall be
open for inspection by the record holders of Receipts; provided that any such
holder requesting to exercise such right shall certify to the Depositary that
such inspection shall be for a proper purpose reasonably related to such
person's interest as an owner of Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Corporation, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, the Depositary will appoint a Registrar (acceptable to the
Corporation) for registration of such receipts or Depositary Shares in
accordance with any requirements of such Exchange. Such Registrar (which may be
the Depositary if so permitted by the requirements of such Exchange) may be
removed and a substitute registrar
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appointed by the Depositary upon the request or with the approval of the
Corporation. If the Receipts, such Depositary Shares or such Stock are listed
on one or more other stock exchanges, the Depositary will, at the request of the
Corporation, arrange such facilities for the delivery, registration or
registration of transfer, split-up, combination, redemption, surrender or
exchange of such Receipts, such Depositary Shares or such Stock as may be
required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Corporation. Neither
the Depositary nor any Depositary's Agent nor any Registrar nor the Corporation
shall incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or any present or future regulation
thereunder, of the United States of America or of any other governmental
authority or, in the case of the Depositary, the Depositary's Agent or the
Registrar, by reason of any provision, present or future, of the Certificate of
Incorporation or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Corporation shall be prevented or forbidden from, or subjected
to any penalty on account of, doing or performing any act or thing that the
terms of this Deposit Agreement provide shall be done or performed; nor shall
the
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Depositary, any Depositary's Agent, any Registrar or the Corporation incur any
liability to any holder of a Receipt (i) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that the
terms of this Deposit Agreement provide shall or may be done or performed, or
(ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in case of any such exercise or
failure to exercise discretion not caused as aforesaid, if caused by the
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Corporation. Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Corporation assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Receipts
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Corporation shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts which in its opinion may involve it in expense
or liability unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
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Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Corporation shall be liable for any action or any failure to act by it
in reliance upon the written advice of legal counsel or accountants, any holder
of a Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, any Registrar
and the Corporation may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Deposit Agreement against the Depositary or any Registrar.
The Depositary will be liable to the Corporation for any liability that may
arise out of acts performed or omitted by the Depositary or any Depositary's
Agent due to its or their gross negligence or wilful misconduct. The
Depositary, the Depositary's Agents, and any Registrar may own and deal in any
class of securities of
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the Corporation and its affiliates and in Receipts. The Depositary may also act
as transfer agent or registrar of any of the securities of the Corporation and
its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Corporation. Such
resignation shall be effective upon the appointment of a successor Depositary
and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Corporation by notice
of such removal delivered to the Depositary. Such removal shall be effective
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Corporation shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
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appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Corporation an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Corporation, shall execute
and deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder, shall duly assign, transfer and deliver all
right, title and interest in the Stock and any moneys or property held hereunder
to such successor, and shall deliver to such successor a list of the record
holders of all outstanding Receipts. Any successor Depositary shall promptly
mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
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SECTION 5.05. Corporate Notices and Reports. The Corporation agrees
that it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08 hereof, all notices and
reports (including without limitation financial statements) required by law, by
the rules of any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed or by the Certificate of
Incorporation to be furnished by the Corporation to holders of Stock. Such
transmission will be at the Corporation's expense.
SECTION 5.06. Indemnification by the Corporation. The Corporation
shall indemnify the Depositary, any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any loss, liability or expense
(including the costs and expenses of defending itself and reasonable counsel
fees) which may arise out of acts performed or omitted in connection with this
Deposit Agreement and the Receipts (a) by the Depositary, any Registrar or any
of their respective agents (including any Depositary's Agent), except for any
liability or expense arising out of negligence or bad faith on the respective
parts of any such person or persons, or (b) by the Corporation or any of its
agents. The obligations of the
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Corporation set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Corporation shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements hereunder. The Corporation shall pay
all charges of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Depositary Shares, redemption of the Stock
at the option of the Corporation and all withdrawals of shares of the Stock by
owners of Depositary Shares. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar (including,
in each case, reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Corporation as to the
amount and nature of such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Corporation once every three
months or at
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such other intervals as the Corporation and the Depositary may agree.
SECTION 5.08. Tax Compliance. (a) The Depositary, on its own behalf
and on behalf of the Corporation will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Depositary
Shares or (ii) the issuance, delivery, holding, transfer, redemption or exercise
of rights under the Depositary Receipts or the Depositary Shares. Such
compliance shall include, without limitation, the preparation and timely filing
of required returns and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent.
(b) The Depositary shall comply with any direction received from the
Corporation with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 5.03 hereof.
(c) The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Corporation or to its authorized representatives.
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ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any provision
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Corporation and the Depositary in any respect which they
may deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of
Receipts evidencing at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective, or any transferee of such holder, shall be deemed,
by continuing to hold such Receipt or by reason of the acquisition thereof, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the
Corporation or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03 hereof or (ii) there shall
have been made a final distribution in respect of the Stock in connection with
any liquidation, dissolution or winding up of the Corporation and such
distribution shall have been distributed to the holders of Receipts evidencing
the
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Depositary Shares pursuant to Section 4.01 or 4.02 hereof, as applicable.
Upon the termination of this Deposit Agreement, the Corporation shall
be discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07 hereof.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions
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contained herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Corporation hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail or
telegram, telex or telecopier confirmed by letter, addressed to the Corporation
at 130 Liberty Street, New York, New York 10006, to the attention of the Office
of the Secretary, or at any other address of which the Corporation shall have
notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram, telex or telecopier
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
77 Water Street, New York, New York 10005, or at any other address of which the
Depositary shall have notified the Corporation and the record holders of the
Receipts in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram, telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on
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the books of the Depositary, or if such holder shall have filed with the
Depositary a written request that notices intended for such holder be mailed to
some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram, telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram, telex
or telecopier message) is deposited, postage prepaid, in a post office letter
box. The Depositary or the Corporation may, however, act upon any telegram,
telex or telecopier message received by it from the other or from any holder of
a Receipt, notwithstanding that such telegram, telex or telecopier message shall
not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary shall notify the Corporation of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by and
upon
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<PAGE>
acceptance by them of delivery of Receipts issued in accordance with the terms
of this Deposit Agreement.
SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents, if any, and shall be open to inspection during business hours at the
Depositary's Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
SECTION 7.09. Headings. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
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<PAGE>
IN WITNESS WHEREOF, the Corporation and the Depositary have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all holders of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
BANKERS TRUST NEW YORK
CORPORATION
Attested by by
- -------------------------------- -------------------------------------
Name:
Title:
[SEAL]
HARRIS TRUST COMPANY OF NEW YORK, as
Depositary,
Attested by by
- -------------------------------- -------------------------------------
Name:
Title:
[SEAL]
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<PAGE>
Exhibit A
[FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN 5,000,000 DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING
7-3/4% CUMULATIVE PREFERRED STOCK, SERIES S
($2,500 LIQUIDATION PREFERENCE) OF
BANKERS TRUST NEW YORK CORPORATION
CUSIP 066 365 669
SEE REVERSE FOR CERTAIN DEFINITIONS
INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK
CERTIFICATE TRANSFERABLE IN CHICAGO, IL OR NEW YORK, NY
HARRIS TRUST COMPANY OF NEW YORK, as Depositary (the "Depositary"), hereby
certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each representing one-hundredth (1/100th) of one share of
7-3/4% Cumulative Preferred Stock, Series S ($2,500 Liquidation Preference) (the
"Stock"), of Bankers Trust New York Corporation, a New York corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of June 30, 1995 (the
"Deposit Agreement"), among the Corporation, the Depositary and the holders from
time to time of the Depositary Receipts described therein. By accepting this
Depositary Receipt the holder hereof becomes a party to and agrees to be bound
by all the terms and conditions of the Deposit Agreement. This Depositary
Receipt shall not be valid or obligatory for any purpose or entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if executed
in facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorized officer
thereof.
Dated:
Harris Trust Company of New York
Depositary, Registrar and Transfer Agent
By
Authorized Officer
<PAGE>
[FORM OF REVERSE OF RECEIPT]
BANKERS TRUST NEW YORK CORPORATION
BANKERS TRUST NEW YORK CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR
SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF THE SERIES S PREFERRED STOCK AND OF EACH
CLASS OF STOCK OR SERIES THEREOF WHICH THE CORPORATION IS AUTHORIZED TO ISSUE
AND OF THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES
AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE TRANSFER AGENT NAMED
ON THE FACE OF THIS RECEIPT.
----------
The following abbreviations when used in the inscription on the face of
this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______Custodian_______
(Cust) (Minor)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
----------------------------------
(State)
Additional abbreviations may also be used though not in the above list
For value received, _______________________________ hereby sells, assigns
and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
______________________________________________________________ Depositary Shares
represented by the within Receipt, and do hereby irrevocably constitute and
appoint ________________________________________________________________________
_______________________________________________________________________ Attorney
to transfer the said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises
Dated___________________________________
_______________________________________________________
NOTICE: The signature to the assignment must correspond
with the name as written upon the face of this Receipt
in every particular, without alteration or enlargement
or any change whatever.
