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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) November 10, 1995
BANKERS TRUST NEW YORK CORPORATION
(Exact Name of Registrant as Specified in Charter)
New York 1-5920 13-6180473
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
280 Park Avenue, New York, New York 10017
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 250-2500
N/A
(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events
On October 19, 1995, Banker Trust New York Corporation (the
"Corporation") amended its By-Laws, a copy of which is being filed herewith.
On November 10, 1995, the Corporation entered into an underwriting
agreement covering the issuance and sale of $150,000,000 aggregate principal
amount of 7-1/2% Subordinated Notes due November 15, 2015 (the "Notes"). Said
Notes were registered under the Securities Act of 1933 pursuant to the
Corporation's shelf registration statement on Form S-3 (File No. 33-51615).
Item 7. Financial Statement, Pro Forma Financial Information and Exhibits
(c) Exhibits.
(1) Underwriting Agreement, dated November 10, 1995, among Bankers Trust
New York Corporation and the underwriters named therein.
(3)(ii) By-Laws of Bankers Trust New York Corporation.
(4)(a) Copy of the resolutions of the Price Committee of Bankers Trust New
York Corporation authorizing the issuance of the Notes (without
exhibits).
(4)(b) Specimen of the Notes.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: November 15, 1995
BANKERS TRUST NEW YORK CORPORATION
By: /s/ GORDON S. CALDER, JR.
Name: Gordon S. Calder, Jr.
Title: Assistant Secretary
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INDEX TO EXHIBITS
(1) Underwriting Agreement, dated November 10, 1995, between Bankers Trust
New York Corporation and the underwriters named therein.
(3)(ii) By-Laws of Bankers Trust New York Corporation.
(4)(a) Copy of the resolutions of the Price Committee of Bankers Trust New
York Corporation authorizing the issuance of the Notes (without
exhibits).
(4)(b) Specimen of the Notes.
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EXHIBIT 1
UNDERWRITING AGREEMENT
November 10, 1995
Bankers Trust New York Corporation
280 Park Avenue
New York, New York 10017
Dear Sirs:
We, as representatives of the several Underwriters (the "Managers"),
understand that Bankers Trust New York Corporation, a New York corporation (the
"Corporation"), proposes to issue and sell $150,000,000 aggregate principal
amount of its 7 1/2% Subordinated Notes due November 15, 2015 (the "Securities")
to the Underwriters named in Schedule I hereto (the "Underwriters"). The terms
of the Securities are set forth in the Registration Statement and Basic
Prospectus referred to in the provisions incorporated herein by reference, as
supplemented by a Prospectus Supplement dated November 10, 1995. The Securities
will be issued pursuant to an Indenture, dated as of April 1, 1992, as
supplemented by the First Supplemental Indenture thereto, dated as of January
15, 1993 (the "Indenture"), between the Corporation and Marine Midland Bank, as
Trustee (the "Trustee").
All the provisions contained in the document entitled Bankers Trust New
York Corporation Debt Securities Underwriting Agreement Standard Provisions
(December 1993), a copy of which you have previously received, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein; provided that White & Case shall act as counsel for the
Underwriters pursuant to Section V(c) therein.
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Corporation hereby agrees to sell and each of the
Underwriters hereby agrees, severally and not jointly, to purchase the aggregate
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule I hereto at 98.694% of their principal amount, plus accrued
interest, if any, from November 15, 1995 to the date of payment and delivery.
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We will pay for such Securities upon delivery thereof at the offices of
the Corporation, 130 Liberty Street, New York, New York, at 10:00 A.M. (New York
City time) on November 15, 1995 or at such other time, as shall be designated by
us, such time being referred to herein as the "Closing Date".
Please confirm your agreement by having an authorized officer sign five
copies of this Agreement in the space set forth below and by returning the
signed copies to us.
Very truly yours,
GOLDMAN, SACHS & CO.
As representatives of the
Several Underwriters named
in Schedule I hereto
By: /s/ Goldman, Sachs & Co.
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Accepted:
BANKERS TRUST NEW YORK CORPORATION
By: /s/ Duncan P. Hennes
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Title Senior Vice President
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Schedule I
Aggregate Principal
Name of Underwriter Amount of Securities
------------------- --------------------
Goldman, Sachs & Co. $37,500,000
BT Securities Corporation $37,500,000
Lehman Brothers Inc. $37,500,000
UBS Securities Inc. $37,500,000
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EXHIBIT 3(ii)
BY-LAWS
AMENDED OCTOBER 19,1995
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[LOGO]
BANKERS TRUST NEW YORK CORPORATION
(INCORPORATED UNDER THE NEW YORK BUSINESS CORPORATION LAW)
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[LOGO]
BANKERS TRUST NEW YORK
CORPORATION
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BY-LAWS
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ARTICLE I
SHAREHOLDERS
SECTION 1.01 Annual Meetings. The annual meetings of shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday in April of
each year, if not a legal holiday, and if a legal holiday then on the next
succeeding business day, at such hour as shall be designated by the Board of
Directors. If no other hour shall be so designated such meeting shall be held at
3 P.M.
SECTION 1.02 Special Meetings. Special meetings of the shareholders, except
those regulated otherwise by statute, may be called at any time by the Board of
Directors, or by any person or committee expressly so authorized by the Board of
Directors and by no other person or persons.
SECTION 1.03 Place of Meetings. Meetings of shareholders shall be held at such
place within or without the State of New York as shall be determined from time
to time by the Board of Directors or, in the case of special meetings, by such
person or persons as may be authorized to call a meeting. The place in which
each meeting is to be held shall be specified in the notice of such meeting.
SECTION 1.04 Notice of Meetings. A copy of the written notice of the place, date
and hour of each meeting of shareholders shall be given personally or by mail,
not less than ten nor more than fifty days before the date of the meeting, to
each shareholder entitled to vote at such meeting. Notice of a special meeting
shall indicate that it is being issued by or at the direction of the person or
persons calling the meeting and shall also state the purpose or purposes for
which the meeting is called. Notice of any meeting at which is proposed to take
action which would entitle shareholders to receive payment for their shares
pursuant to statutory provisions must include a statement of that purpose and to
that effect. If mailed, such notices of the annual and each special meeting are
given when deposited in the United States mail, postage prepaid, directed to the
shareholder at his address as it appears in the record of shareholders unless he
shall have filed with the Secretary of the corporation a
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written request that notices intended for him shall be mailed to some other
address, in which case it shall be directed to him at such other address.
SECTION 1.05 Record Date. For the purpose of determining the shareholders
entitled to notice of or to vote any meeting of shareholders or any adjournment
thereof, or to express consent to or dissent from any proposal without a
meeting, or for the purpose of determining shareholders entitled to receive
payment of any dividend or the allotment of any rights, or for the purpose of
any other action, the Board of Directors may fix, in advance, a date as the
record date for any such determination of shareholders. Such date shall not be
more than fifty nor less than ten days before the date of such meeting, nor more
than fifty days prior to any other action.
SECTION 1.06 Quorum. The presence, in person or by proxy, of the holders of a
majority of the shares entitled to vote thereat shall constitute a quorum at a
meeting of shareholders for the transaction of business, except as otherwise
provided by statute, by the Certificate of Incorporation or by the By-Laws. The
shareholders present in person or by proxy and entitled to vote at any meeting,
despite the absence of a quorum, shall have power to adjourn the meeting from
time to time, to a designated time and place, without notice other than by
announcement at the meeting, and at any adjourned meeting any business may be
transacted that might have been transacted on the original date of the meeting.
However, if after the adjournment the Board of Directors fixes a new record date
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each shareholder of record on the new record date entitled to notice.
SECTION 1.07 Notice of Shareholder Business at Annual Meeting. At an annual
meeting of shareholders, only such business shall be conducted as shall have
been brought before the meeting (a) by or at the direction of the Board of
Directors or (b) by any shareholder of the corporation who complies with the
notice procedures set forth in this Section 1.07. For business to be properly
brought before an annual meeting by a shareholder, the shareholder must have
given timely notice thereof in writing to the Secretary of the corporation. To
be timely, a shareholder's notice must be delivered to or mailed and received at
the principal executive offices of the corporation not less than thirty days nor
more than fifty days prior to the meeting; provided, however, that in the event
that less than forty days' notice or prior public disclosure of the date of the
meeting is given or made to shareholders, notice by the shareholder to be timely
must be received not later than the close of business on the tenth day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made. A shareholder's notice to the Secretary shall
set forth as to each matter the shareholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the corporation's books, of
the shareholder proposing such business, (c) the class and number of shares of
the
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corporation which are beneficially owned by the shareholder and (d) any material
interest of the shareholder in such business. Notwithstanding anything in these
By-Laws to the contrary, no business shall be conducted at an annual meeting
except in accordance with the procedures set forth in this Section 1.07 and
Section 2.03. The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this Section 1.07
and Section 2.03, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.01 Number and Qualifications. The business of the corporation shall be
managed by its Board of Directors. The number of directors constituting the
entire Board of Directors shall be not less than five nor more than twenty-five,
as shall be fixed from time to time by vote of a majority of the entire Board of
Directors. Unless and until otherwise so fixed, the number of directors
constituting the entire Board shall be five. Each director shall be at least 21
years of age. No person who shall have attained age 70 shall be eligible to be
elected or re-elected as a director. Directors need not be shareholders. No
Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2.02 Election. At each annual meeting of shareholders, directors shall
be elected by a plurality of the votes to hold office until the next annual
meeting. Subject to the provisions of the statute, of the Certificate of
Incorporation and of the By-Laws, each director shall hold office until the
expiration of the term for which elected, and until his successor has been
elected and qualified.
SECTION 2.03 Nomination and Notification of Nomination. Subject to the rights of
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, nominations for the election of
directors may be made by the Board of Directors or to any committee appointed by
the Board of Directors or by any shareholder entitled to vote in the election of
directors generally. However, any shareholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such shareholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the corporation
not later than (i) with respect to an election to be held at an annual meeting
of shareholders ninety days in advance of such meeting, and (ii) with respect to
an election to be held at a special meeting of shareholders for the
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election of directors, the close of business on the seventh day following the
date on which notice of such meeting is first given to shareholders. Each such
notice shall set forth: (a) the name and address of the shareholder who intends
to make the nomination and of the person or persons to be nominated; (b) a
representation that the shareholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the shareholder; (d) such other information regarding each nominee proposed by
such shareholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors;
and (e) the consent of each nominee to serve as a director of the corporation if
so elected. At the request of the Board of Directors, any person nominated by
the Board of Directors for election as a director shall furnish to the Secretary
of the corporation that information required to be set forth in a shareholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a director of the corporation unless nominated in accordance
with the procedures set forth in the By-Laws. The Chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that a nomination
was not made in accordance with the procedures prescribed by these By-Laws, and
if he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
SECTION 2.04 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such places and times as may be fixed from time to time
by resolution of the Board and a regular meeting for the purpose of organization
and transaction of other business shall be held each year after the adjournment
of the annual meeting of shareholders.
SECTION 2.05 Special Meetings. The Chairman of the Board, the chief executive
officer. The President, the Senior Vice Chairman or any Vice Chairman may, and
at the request of three directors shall, call a special meeting of the Board of
Directors, two days' notice of which shall be given in person or by mail,
telegraph, radio, telephone or cable. Notice of a special meeting need not be
given to any director who submits a signed waiver of notice whether before or
after the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to him.
SECTION 2.06 Place of Meeting. The directors may hold their meetings, have one
or more offices, and keep the books of the corporation (except as may be
provided by law) at any place, either within or without the State of New York,
as they may from time to time determine.
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SECTION 2.07 Quorum and Vote. At all meetings of the Board of Directors the
presence of one-third of the entire Board, but not less than two directors,
shall constitute a quorum for the transaction of business. Any one or more
members of the Board of Directors or of any committee thereof may participate in
a meeting of the Board of Directors or a committee thereof by means of a
conference telephone or similar communications equipment which allows all
persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at such a
meeting. The vote of a majority of the directors present at the time of the
vote, if a quorum is present at such time, shall be the act of the Board of
Directors, except as may be otherwise provided by statute or the By-Laws.
SECTION 2.08 Vacancies. Newly created directorships resulting from increase in
the number of directors and vacancies in the Board of Directors, whether caused
by resignation, death, removal or otherwise, may be filled by vote of a majority
of the directors then in office, although less than a quorum exists.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 3.01 Designation and Authority. The Board of Directors, by resolution
adopted by a majority of the entire Board, may designate from among its members
an Executive Committee and other committees, each consisting of three or more
directors. Each such committee, to the extent provided in the resolution or the
By-Laws, shall have all the authority of the Board, except that no such
committee shall have authority as to:
(i) the submission to shareholders of any action as to which
shareholders' authorization is required by law.
(ii) the filling of vacancies in the Board of Directors or any
committee.
(iii) the fixing of compensation of directors for serving on the Board
or on any committee.
(iv) the amendment or appeal of the By-Laws, or the adoption of new
By-Laws.
(v) the amendment or repeal of any resolution of the Board which by its
terms shall not be so amendable or repealable.
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The Board may designate one or more directors as alternate members of any such
committee, who may replace any absent member or members at any meeting of such
committee. Each such committee shall serve at the pleasure of the Board of
Directors.
SECTION 3.02 Procedure. Except as may be otherwise provided by statute, by the
By-Laws or by resolution of the Board of Directors, each committee may make
rules for the call and conduct of its meetings. Each committee shall keep a
record of its acts and proceedings and shall report the same from time to time
to the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 4.01 Titles and General. The Board of Directors shall elect from among
their number a Chairman of the Board and a chief executive officer, and shall
also elect a President, a Senior Vice Chairman, one or more Vice Chairmen, one
or more Executive Vice Presidents, one or more Senior Vice Presidents, one or
more Vice Presidents, a Secretary, a Controller, a Treasurer, a General Counsel,
a General Auditor, and a General Credit Auditor, who need not be directors. The
officers of the corporation may also include such other officers or assistant
officers as shall from time to time be elected or appointed by the Board. The
Chairman of the Board or the chief executive officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman, may from time to time
appoint assistant officers. All officers elected or appointed by the Board of
Directors shall hold their respective offices during the pleasure of the Board
of Directors, and all assistant officers shall hold office at the pleasure of
the Board or the Chairman of the Board or the chief executive officer or, in
their absence, the President, the Senior Vice Chairman or any Vice Chairman. The
Board of Directors may require any and all officers and employees to give
security for the faithful performance of their duties.
SECTION 4.02 Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the shareholders and of the Board of Directors. Subject to the
board of directors, he shall exercise all the powers and perform all the duties
usual to such office and shall have such other powers as may be prescribed by
the Board of Directors or the Executive Committee or vested in him by the By-
Laws.
Section 4.03 Chief Executive Officer. The Board of Directors shall designate the
chief executive officer of the corporation, which person may also hold the
additional title of Chairman of the Board, President, Senior Vice Chairman or
Vice Chairman. Subject to the Board of Directors, he shall exercise all the
powers and perform all the duties usual to such office and shall have such other
powers as may be prescribed by the board of directors or the Executive Committee
or vested in him by the By-Laws.
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SECTION 4.04 Chairman of the Board, President, Senior Vice Chairman, Vice
Chairmen and Vice Presidents. The Chairman of the Board or, in his absence or
incapacity the President or, in his absence or incapacity, the Senior Vice
Chairman, the Vice Chairmen, the Executive Vice Presidents, or in their absence,
the Senior Vice Presidents, in the order established by the Board of Directors
shall, in the absence or incapacity of the Chief Executive Officer perform the
duties of the Chief Executive Officer. The President, the Senior Vice Chairman,
the Vice Chairmen, the Executive Vice Presidents, the Senior Vice Presidents,
and the Vice Presidents shall also perform such other duties and have such other
powers as may be prescribed or assigned to them, respectively, from time to time
by the Board of Directors, the Executive Committee, the Chief Executive Officer,
or the By-Laws.
SECTION 4.05 Controller. The Controller shall perform all the duties customary
to that office and except as may be otherwise provided by the Board of Directors
shall have the general supervision of the books of account of the corporation
and shall also perform such other duties and have such powers as may be
prescribed or assigned to him from time to time by the Board of Directors, the
Executive Committee, the Chief Executive Officer, or the By-Laws.
SECTION 4.06 Secretary. The Secretary shall keep the minutes of the meetings of
the Board of Directors and of the shareholders and shall have the custody of the
seal of the corporation. He shall perform all other duties usual to that office,
and shall also perform such other duties and have such powers as may be
prescribed or assigned to him from time to time by the Board of Directors, the
Executive Committee, the Chairman of the Board, the Chief Executive Officer, or
the By-Laws.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 5.01 The corporation shall, to the fullest extent permitted by Section
721 of the New York Business Corporation Law, indemnify any person who is or was
made, or threatened to be made, a party to an action or proceeding, whether
civil or criminal, whether involving any actual or alleged breach of duty,
neglect or error, any accountability, or any actual or alleged misstatement,
misleading statement or other act or omission and whether brought or threatened
in any court or administrative or legislative body or agency, including an
action by or in the right of the corporation to procure a judgment in its favor
and an action by or in the right of any other corporation of any type or kind,
domestic or foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise, which any director or officer of the corporation is
serving or served in any capacity at the request of the corporation by reason of
the fact that he, his testator or intestate, is or was a director or officer of
the corporation, or is serving or served such other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise in any
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capacity, against judgments, fines, amounts paid in settlement, and costs,
charges and expenses, including attorneys' fees, or any appeal therein;
provided, however, that no indemnification shall be provided to any such person
if a judgment or other final adjudication adverse to the director or officer
establishes that (i) his acts were committed in bad faith or were the result of
active and deliberate dishonesty and, in either case, were material to the cause
of action so adjudicated, or (ii) he personally gained in fact a financial
profit or other advantage to which he was not legally entitled.
SECTION 5.02 The corporation may indemnify any other person to whom the
corporation is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to, or
provided by, the New York Business Corporation Law or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these By-Laws authorize the creation of other rights in any such manner.
SECTION 5.03 The corporation shall, from time to time, reimburse or advance to
any person referred to in Section 5.01 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action or
proceeding referred to in Section 5.01, upon receipt of a written undertaking by
or on behalf of such person to repay such amount(s) if a judgment or other final
adjudication adverse to the director or officer establishes that (i) his acts
were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 5.04 Any director or officer of the corporation serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the corporation, or (ii) any employee benefit plan
of the corporation or any corporation referred to in clause (i), in any capacity
shall be deemed to be doing so at the request of the corporation. In all other
cases, the provisions of this Article V will apply (i) only if the person
serving another corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise so served at the specific request of the
corporation, evidenced by a written communication signed by the Chairman of the
Board, the Chief Executive Officer, the President, the Senior Vice Chairman or
any Vice Chairman, and (ii) only if and to the extent that, after making such
efforts as the Chairman of the Board, the Chief Executive Officer, or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5.05 Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the
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basis of the applicable law in effect at the time of the occurrence of the event
or events giving rise to the action or proceeding, to the extent permitted by
law, or on the basis of the applicable law in effect at the time indemnification
is sought.
SECTION 5.06 The right to be indemnified or to the reimbursement or advancement
of expenses pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the corporation and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 5.07 If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the corporation
within thirty days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the corporation (including its Board of Directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel, or its shareholders) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses, shall be a defense to the action or create a
presumption that the claimant is not so entitled.
SECTION 5.08 A person who has been successful, on the merits or otherwise, in
the defense of a civil or criminal action or proceeding of the character
described in Section 5.01 shall be entitled to indemnification only as provided
in Sections 5.01 and 5.03, notwithstanding any provision of the New York
Business Corporation Law to the contrary.
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ARTICLE VI
SEAL
SECTION 6.01 Corporate Seal. The corporate seal shall contain the name of the
corporation and the year and state of its incorporation. The seal may be altered
from time to time at the discretion of the Board of Directors.
ARTICLE VII
SHARE CERTIFICATES
SECTION 7.01 Form. The certificates for shares of the corporation shall be in
such form as shall be approved by the Board of Directors and shall be signed by
the Chairman of the Board, the Chief Executive Officer, the President, the
Senior Vice Chairman or any Vice Chairman and the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the corporation or a facsimile
thereof. The signatures of the officers upon the certificate may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a
registrar other than the corporation itself or its employees.
ARTICLE VIII
CHECKS
SECTION 8.01 Signatures. All checks, drafts and other orders for the payment of
money shall be signed by such officer or officers or agent or agents as the
Board of Directors may designate from time to time.
ARTICLE IX
AMENDMENT
SECTION 9.01 Amendment of By-Laws. The By-Laws may be amended, repealed or added
to by vote of the holders of the shares at the time entitled to vote in the
election of any directors. The Board of Directors may also amend, repeal or add
to the By-Laws, but any By-Laws adopted by the Board of Directors may be amended
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or repealed by the shareholders entitled to vote thereon as provided herein. If
any By-Law regulating an impending election of directors is adopted, amended or
repealed by the Board, there shall be set forth in the notice of the next
meeting of shareholders for the election of directors the By-Laws so adopted,
amended or repealed, together with concise statement of the changes made.
ARTICLE X
SECTION 10.01 Construction. The masculine gender, when appearing in these
By-Laws, shall be deemed to include the feminine gender.
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EXHIBIT 4(a)
RESOLVED, that the Company issue $150,000,000 aggregate principal amount of its
7-1/2% Subordinated Notes due November 15, 2015 (the "Subordinated Notes"), that
Goldman, Sachs & Co., BT Securities Corporation, Lehman Brothers Inc. and UBS
Securities Inc. are selected to serve as the underwriters (the "Underwriters")
of the Subordinated Notes, that the price to be paid by the Underwriters shall
be 98.694% of the principal amount of the Subordinated Notes and that the
officers of the Company are hereby authorized to execute and deliver to the
Underwriters the Subordinated Notes pursuant to the Underwriting Agreement,
dated November 10, 1995 (the "Underwriting Agreement"), and that the
Underwriting Agreement be and it hereby is approved in all respects in the form
attached hereto as Exhibit 1; and further
RESOLVED, that the Subordinated Notes shall have the terms, and be in
substantially the form, set forth in the form of Subordinated Notes attached
hereto as Exhibit 2, which is hereby approved and adopted with such changes as
the officer executing the same shall deem necessary or appropriate; and further
RESOLVED, that the Subordinated Notes shall be issued pursuant to and shall be
entitled to the benefits of an Indenture, dated as of April 1, 1992, as amended
by the First Supplemental Indenture, dated as of January 15, 1993 (the Indenture
together with the First Supplemental Indenture hereinafter the "Indenture"),
between the Company and Marine Midland Bank (formerly Marine Midland Bank,
N.A.), which Indenture is hereby adopted and approved in all respects and that
the provisions of Article Fourteen of the Indenture shall apply to the
Subordinated Notes; and further
RESOLVED, that all actions heretofore taken by any officer of the Company within
the terms of the foregoing resolutions, are ratified and confirmed as the act of
the Company; and further
RESOLVED, that the officers of the Company be, and they hereby are, authorized
and empowered to do or cause to be done any and all such further acts and
things, and to execute and deliver any and all such documents, papers and
instruments as they or any of them deem necessary or desirable in order to carry
into effect the purpose and intent of the foregoing resolutions.
<PAGE>
EXHIBIT 4(b)
CUSIP # 066 365 BX4
NOTE No. R-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO BANKERS TRUST NEW
YORK CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
BANKERS TRUST NEW YORK CORPORATION
7-1/2% SUBORDINATED NOTES DUE NOVEMBER 15, 2015
Bankers Trust New York Corporation, a corporation duly organized and existing
under the laws of the State of New York (the "Company"), for value received,
hereby promises to pay to Cede & Co., as the nominee of The Depository Trust
Company, or registered assigns, the principal amount of $150,000,000 on November
15, 2015, and to pay interest on the outstanding principal amount hereof from
time to time from the date of issue or from the most recent Interest Payment
Date (as defined below) to which
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interest has been paid or duly provided for, semi-annually on May 15 and
November 15 in each year (each, an "Interest Payment Date"), commencing May 15,
1996, at the rate of 7-1/2% per annum, until the principal hereof is paid or
made available for payment. Subject to certain exceptions provided in the
Indenture referred to below, the interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date shall, as provided in the
Indenture, be paid to the Person in whose name this Subordinated Note (or one or
more predecessor Subordinated Notes) is registered at the close of business on
the May 1 and November 1 next preceding such Interest Payment Date commencing on
May 1, 1996 (the "Regular Record Date"). Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Subordinated Note (or one or more predecessor
Subordinated Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Subordinated Notes (as
defined below) may be listed and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. Notice of a Special
Record Date shall be given to Holders of Subordinated Notes not less than 10
days prior to such Special Record Date. Payment of the principal of and interest
on this Subordinated Note shall be made at the Corporate Trust Office of the
Trustee, or at such other office or agency of the Company as may be designated
by it for such purpose in the Borough of Manhattan, The City of New York, in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts; provided,
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however, that, at the option of the Company, payments of interest may be made by
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check or wire transfer mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
The Subordinated Notes may not be redeemed prior to maturity.
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<PAGE>
This Subordinated Note is one of a duly authorized issue of Securities of the
Company (the "Securities") not limited in aggregate principal amount. All the
Securities are issued or to be issued under an indenture, dated as of April 1,
1992, as amended by a Supplemental Indenture dated as of January 15, 1993
(collectively, the "Indenture"), duly executed and delivered by the Company to
Marine Midland Bank, as Trustee, to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company, the holders of Senior Indebtedness (as defined in the
Indenture) and the holders of the Securities. The Securities may be for various
principal amounts and are issuable in series, which different series may mature
at different times, may bear interest at different rates and may otherwise vary
as provided in the Indenture. This Subordinated Note is one of the Securities
described in the Indenture, and is one of the series designated as the Company's
7-1/2% Subordinated Notes due November 15, 2015 (herein the "Subordinated
Notes"), limited to an aggregate principal amount of $150,000,000. For the
purposes of this Subordinated Note, Existing Subordinated Indebtedness also
includes, in addition to those listed in the Indenture, the following: the
Company's 7-1/2% Subordinated Notes due 2010, 8-1/4% Subordinated Notes due
2005, 8-1/8% Subordinated Notes due 2002, 6.00% Subordinated Notes due October
15, 2008, 6-1/8% Convertible Capital Securities due 2033, 6.00% Convertible
Capital Securities due 2033, Subordinated LIBOR/CMT Floating Rate Debentures due
2003, Subordinated Floating Rate Notes due 2004, Subordinated Floating Rate
Notes due 2005, Subordinated Constant Rate Maturity Treasury Floating Rate
Debentures due 2003, 7.25% Subordinated Notes due January 15, 2003 and
Subordinated Yen Loan due 2005. Unless otherwise defined herein, terms used
herein shall have the meanings assigned in the Indenture.
The following provisions, provided for or contemplated by the Indenture, are
applicable to the Subordinated Notes:
1. PAYING AGENT AND REGISTRAR. Initially, Bankers Trust Company will act as
Paying Agent and
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Registrar. The Company may change any Paying Agent, Registrar or co-registrar
without notice. The Company may act in either such capacity.
2. SUBORDINATION. The indebtedness evidenced by this Subordinated Note is, to
the extent provided in Article Fourteen of the Indenture, subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness, and this Subordinated Note is issued subject to the provisions of
the Indenture with respect thereto. Each Holder of this Subordinated Note, by
accepting the same, agrees that each holder of Senior Indebtedness, whether
created or acquired before or after the issuance of the Subordinated Notes of
this series, shall be deemed conclusively to have relied on such provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior
Indebtedness. The Indenture also provides that if, upon the occurrence of
certain events of bankruptcy or insolvency relating to the Company, there
remains, after giving effect to such subordination provisions, any amount of
cash, property or securities available for payment or distribution in respect of
Subordinated Notes of this series (as defined in the Indenture, "Excess
Proceeds"), and if, at such time, any Entitled Person (as defined in the
Indenture) has not received payment in full of all amounts due or to become due
on or in respect of Other Financial Obligations (as defined in the Indenture),
then such Excess Proceeds shall first be applied to pay or provide for the
payment in full of such Other Financial Obligations before any payment or
distribution may be made in respect of Subordinated Notes of this series. This
Subordinated Note is also issued subject to the provisions of the Indenture
regarding payments to Entitled Persons in respect of Other Financial
Obligations. Each Holder of this Security, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination of this Security and payment of Excess Proceeds as provided in
the Indenture and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
3. DENOMINATIONS, TRANSFER, EXCHANGE. The Subordinated Notes are issuable in
registered form without
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<PAGE>
coupons in denominations of $1,000 and integral multiples of $1,000 in excess
thereof. The transfer of Subordinated Notes will be registered and Subordinated
Notes may be exchanged as provided in the Indenture. The Registrar may require
holders of Subordinated Notes, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
4. PERSONS DEEMED OWNERS. The Company, the Trustee for the Subordinated Notes
and any agent of the Company or such Trustee may treat the Person in whose name
this Subordinated Note is registered as the owner hereof for the purpose of
receiving payment as herein provided and for all other purposes whatsoever,
whether or not this Subordinated Note be overdue, and neither the Company, such
Trustee nor any such agent shall be affected by notice to the contrary.
5. AMENDMENTS AND WAIVERS. The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of at least 66-2/3% in principal
amount of the Securities at the time outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
outstanding, on behalf of Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Subordinated Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Subordinated Note and of
any Subordinated Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such waiver is
made upon this Subordinated Note.
6. DEFAULTS AND REMEDIES. An Event of Default is any of certain events
involving a bankruptcy, insolvency
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<PAGE>
or reorganization of the Company. If an Event of Default occurs and is
continuing, the Trustee or the holders of at least 25% in principal amount of
the Subordinated Notes may declare all the Subordinated Notes to be due and
payable immediately. Holders of Subordinated Notes may not enforce the Indenture
or the Subordinated Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Subordinated Notes. Subject to certain limitations, holders of a majority in
principal amount of the Subordinated Notes may waive an Event of Default and
rescind any related declaration and also may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from holders of Subordinated
Notes notice of any continuing Event of Default if it determines that
withholding notice is in their interest. The Company must furnish an annual
compliance certificate to the Trustee.
7. TRUSTEE DEALINGS WITH COMPANY. Subject to Sections 608 and 613 of the
Indenture, the Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Company or its affiliates, and may otherwise deal with the Company or its
affiliates, as if it were not Trustee.
8. NO RECOURSE AGAINST OTHERS. A director, officer, employee or stockholder,
as such, of the Company shall not have any liability for any obligations of the
Company under the Subordinated Notes or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. Each holder of
Subordinated Notes by accepting the Subordinated Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Subordinated Notes.
THIS SUBORDINATED NOTE SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
THIS SUBORDINATED NOTE IS NOT A DEPOSIT OR OTHER OBLIGATION OF A BANK AND IS
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR OTHER GOVERNMENTAL
AGENCY.
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<PAGE>
This Subordinated Note shall not be valid or obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee
under the Indenture.
IN WITNESS WHEREOF, Bankers Trust New York Corporation has caused this
instrument to be signed in its corporate name, manually or by facsimile, by its
Chairman of the Board or one of its Senior Vice Presidents and a facsimile of
its corporate seal to be affixed hereunto or imprinted hereon, attested by the
manual or facsimile signature of its Secretary or one of its Assistant
Secretaries.
BANKERS TRUST NEW YORK
CORPORATION
Attest: By:
------------------------- ------------------------------
Assistant Secretary Senior Vice President
Dated: November 15, 1995
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes of the series designated herein referred
to in the within-mentioned Indenture.
MARINE MIDLAND BANK,
as Trustee
By:
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Authorized Signer
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