<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER , 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
BANKERS TRUST NEW YORK CORPORATION BT PREFERRED CAPITAL TRUST I
(EXACT NAME OF REGISTRANT AS BT PREFERRED CAPITAL TRUST II
SPECIFIED IN ITS CHARTER) BT PREFERRED CAPITAL TRUST III
BT PREFERRED CAPITAL TRUST IV
(EXACT NAME OF REGISTRANT AS
SPECIFIED IN ITS CHARTER)
NEW YORK DELAWARE
(STATE OR OTHER JURISDICTION OF (STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION) INCORPORATION OR ORGANIZATION)
13-6180473 EACH TO BE APPLIED FOR
(I.R.S. EMPLOYER IDENTIFICATION (I.R.S. EMPLOYER IDENTIFICATION
NUMBER) NUMBER)
C/O BANKERS TRUST NEW YORK
130 LIBERTY STREET CORPORATION
NEW YORK, NEW YORK 10006 130 LIBERTY STREET
(212) 250-2500 NEW YORK, NEW YORK 10006
(ADDRESS, INCLUDING ZIP CODE, AND (212) 250-2500
TELEPHONE NUMBER, INCLUDING AREA (ADDRESS, INCLUDING ZIP CODE, AND
CODE, OF REGISTRANT'S PRINCIPAL TELEPHONE NUMBER, INCLUDING AREA
EXECUTIVE OFFICES) CODE, OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES)
GORDON S. CALDER, JR., ESQ.
MELVIN A. YELLIN, ESQ.
BANKERS TRUST NEW YORK CORPORATION
130 LIBERTY STREET
NEW YORK, NEW YORK 10006
(212) 250-2500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,INCLUDING AREA CODE,
OF AGENT FOR SERVICE OF EACH REGISTRANT)
WITH COPIES TO:
MICHAEL M. WISEMAN, ESQ. KEVIN KEOGH, ESQ.
SULLIVAN & CROMWELL WHITE & CASE
125 BROAD STREET 1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10004 NEW YORK, NEW YORK 10036
(212) 558-4000 (212) 819-8200
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
---------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
(Continued on following page)
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<PAGE>
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(Continued from previous page)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Junior Subordinated
Deferrable Interest
Debentures of Bankers
Trust New York
Corporation(2)......... N/A
- ------------------------------------------------------------------------------------------
Preferred Securities of
BT Preferred Capital
Trust I, Preferred
Capital Trust II,
Preferred Capital Trust
III, Preferred Capital
Trust IV............... N/A
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Bankers Trust New York
Corporation Guarantee
with respect to
Preferred
Securities(3)(4)....... N/A
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Total................. . $500,000,000(5) 100% $500,000,000(5) $151,516
</TABLE>
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(1) Estimated solely for the purpose of computing the registration fee.
(2) The Junior Subordinated Deferrable Interest Debentures will be purchased
by BT Preferred Capital Trust I, BT Preferred Capital Trust II, BT
Preferred Capital Trust III and BT Preferred Capital Trust IV with the
proceeds of the sale of the Preferred Securities.
(3) No separate consideration will be received for the Bankers Trust New York
Corporation Guarantee.
(4) This Registration Statement is deemed to cover the Junior Subordinated
Deferrable Interest Debentures of Bankers Trust New York Corporation, the
rights of holders of Junior Subordinated Deferrable Interest Debentures of
Bankers Trust New York Corporation under the Indenture, the rights of
holders of Preferred Securities of BT Preferred Capital Trust I, BT
Preferred Capital Trust II, BT Preferred Capital Trust III and BT
Preferred Capital Trust IV under each Trust Agreement, the rights of
holders of the Preferred Securities under the Guarantees, and certain
backup undertakings as described herein.
(5) Such amount represents the principal amount of Junior Subordinated
Deferrable Interest Debentures issued at their principal amount and the
issue price rather than the principal amount of Junior Subordinated
Deferrable Interest Debentures issued and an original issue discount. Such
amount also represents the initial public offering price of the Preferred
Securities of BT Preferred Capital Trust I, BT Preferred Capital Trust II,
BT Preferred Capital Trust III and BT Preferred Capital Trust IV.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. NEITHER THIS PROSPECTUS SUPPLEMENT NOR THE PROSPECTUS TO WHICH IT
RELATES SHALL CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED OCTOBER 29, 1996
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1996)
,000,000 TRUST PREFERRED SECURITIES
BT PREFERRED CAPITAL TRUST I
% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER TRUST PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
BANKERS TRUST NEW YORK CORPORATION
[LOGO]
--------
The % Trust Preferred Securities (the "Preferred Securities") offered hereby
represent preferred undivided beneficial interests in the assets of BT
Preferred Capital Trust I, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"). Bankers Trust New York Corporation, a New
York corporation (the "Corporation"), will directly or indirectly own all the
common securities (the "Common Securities" and, together with the Preferred
Securities, the "Trust Securities") representing undivided beneficial interests
in the assets of the Trust. The Trust exists for the sole purpose of issuing
the Preferred Securities and Common Securities and investing the proceeds
thereof in an equivalent amount of the Corporation's % Junior Subordinated
Deferrable Interest Debentures due , 2036, which date may be shortened to
a date not earlier than , 2001 if certain conditions are met (including the
receipt of Federal Reserve approval, if then required) (the "Junior
Subordinated Debt Securities").
(continued on next page)
SEE "RISK FACTORS RELATING TO THE PREFERRED SECURITIES" BEGINNING ON PAGE S-9
FOR A DISCUSSION OF FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE
PURCHASERS, INCLUDING THE PERIOD AND CIRCUMSTANCES DURING AND UNDER WHICH
PAYMENTS OF DISTRIBUTIONS ON THE PREFERRED SECURITIES MAY BE DEFERRED AND THE
RELATED UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF SUCH DEFERRAL.
Application will be made to list the Preferred Securities on the New York
Stock Exchange under the symbol " ". Trading of the Preferred Securities on
the New York Stock Exchange is expected to commence within a 30-day period
after the initial delivery of the Preferred Securities. See "Underwriting."
--------
THESE SECURITIES WILL NOT BE DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND WILL
NOT BE INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH
IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
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<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO THE
OFFERING PRICE(1) COMMISSIONS(2) TRUST(3)(4)
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<S> <C> <C> <C>
Per Preferred Security $25.00 (3) $25.00
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Total $ ,000,000 (3) $ ,000,000
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</TABLE>
(1) Plus accrued distributions, if any, from , 1996.
(2) For information regarding indemnification of the Underwriters, see
"Underwriting."
(3) Because the proceeds of the sale of the Preferred Securities will be
invested in the Junior Subordinated Debt Securities, the Corporation has
agreed to pay to the Underwriters, as compensation ("Underwriters'
Compensation") for their arranging the investment therein of such proceeds,
$. per Preferred Security ($ in the aggregate); provided that such
compensation for sales of 10,000 or more Preferred Securities to a single
purchaser will be $. per Preferred Security. Therefore, to the extent of
such sales, the actual amount of Underwriters' Compensation will be less
than the aggregate amount specified in the preceding sentence. See
"Underwriting."
(4) Expenses of the offering, which are payable by the Corporation, are
estimated to be $ .
--------
The Preferred Securities offered hereby are being offered by the several
Underwriters named herein, subject to prior sale, when, as and if accepted by
them and subject to certain conditions. It is expected that delivery of the
Preferred Securities will be made only in book-entry form through the
facilities of The Depository Trust Company, on or about , 1996.
--------
, 1996
<PAGE>
(continued from previous page)
Upon the event of a default under the Declaration (as defined herein), the
holders of Preferred Securities will have a preference over the holders of the
Common Securities with respect to payments in respect of distributions and
payments upon redemption, liquidation and otherwise.
Holders of the Preferred Securities are entitled to receive cumulative cash
distributions at an annual rate of % of the liquidation amount of $25 per
Preferred Security, accruing from, and including, , 1996 and payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of
each year, commencing December 31, 1996 ("distributions"). The payment of
distributions out of monies held by the Trust and payments on liquidation of
the Trust or the redemption of Preferred Securities out of monies held by the
Trust, as set forth below, are guaranteed by the Corporation (the "Guarantee")
on a subordinated basis to the extent described under "Description of
Guarantee." The Guarantee covers payments of distributions and other payments
on the Preferred Securities only if and to the extent that the Corporation has
made a payment of interest or principal or other payments on the Junior
Subordinated Debt Securities held by the Trust as its sole asset. The
Guarantee, when taken together with the Corporation's obligations under the
Junior Subordinated Debt Securities, the Indenture (as defined herein)
pursuant to which the Junior Subordinated Debt Securities are issued and its
obligations under the Declaration, including its liabilities to pay costs,
expenses, debts and liabilities of the Trust (other than with respect to the
Trust Securities), provides a full and unconditional guarantee of amounts due
on the Preferred Securities. The obligations of the Corporation under the
Guarantee rank (i) subordinate and junior in right of payment to all other
liabilities of the Corporation, (ii) pari passu with the most senior preferred
or preference stock now or hereafter issued by the Corporation and with any
guarantee now or hereafter entered into by the Corporation in respect of any
preferred or preference stock of any subsidiary of the Corporation and (iii)
senior to the Corporation's common stock. The obligations of the Corporation
under the Junior Subordinated Debt Securities are subordinate and junior in
right of payment to all present and future Senior Indebtedness (as defined
herein) of the Corporation.
The distribution rate and the distribution payment date and other payment
dates for the Preferred Securities will correspond to the interest rate and
interest payment dates and other payment dates on the Junior Subordinated Debt
Securities, which will be the sole assets of the Trust. As a result, if
principal or interest is not paid on the Junior Subordinated Debt Securities
by the Corporation, no amounts will be paid on the Preferred Securities
because the Trust will not have sufficient funds to make distributions on the
Preferred Securities. In such event, the Guarantee will not apply to such
distributions until the Trust has sufficient funds available therefor.
The Corporation has the right to defer payments of interest on the Junior
Subordinated Debt Securities by extending the interest payment period on the
Junior Subordinated Debt Securities at any time for up to 20 consecutive
quarters (each, an "Extension Period"), provided that no Extension Period may
extend beyond the maturity of the Junior Subordinated Debt Securities. If
interest payments are so deferred, distributions on the Preferred Securities
will also be deferred and the Corporation will not be permitted, subject to
certain exceptions described herein, to declare or pay any cash distributions
with respect to the Corporation's capital stock or debt securities of the
Corporation that rank pari passu with or junior to the Junior Subordinated
Debt Securities. During any Extension Period, interest on the Junior
Subordinated Debt Securities will continue to accrue with interest thereon (to
the extent permitted by applicable law) at an annual rate of % per annum
compounded quarterly. Additionally, during any Extension Period, holders of
Preferred Securities will be required to include deferred interest income in
the form of original issue discount ("OID") in their gross income for United
States federal income tax purposes in advance of receipt of the cash
distributions with respect to such deferred interest payments. There could be
multiple Extension Periods of varying lengths throughout the term of the
Junior Subordinated Debt Securities. See "Description of the Junior
Subordinated Debt Securities--Option to Extend Interest Payment Period," "Risk
Factors Relating to the Preferred Securities--Option to Extend Interest
Payment Period" and "United States Federal Income Taxation--Interest Income
and Original Issue Discount."
Subject to the Corporation having received prior approval of the Federal
Reserve to do so if then required, the Junior Subordinated Debt Securities are
redeemable by the Corporation, in whole or in part, from time to time, on or
after , 2001, or at any time, in whole or in part, in certain
circumstances upon the
S-2
<PAGE>
(continued from previous page)
occurrence of a Tax Event or Capital Treatment Event (each as defined herein).
If the Corporation redeems Junior Subordinated Debt Securities, the Trust must
redeem Trust Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Junior Subordinated Debt Securities so
redeemed at $25 per Trust Security plus accrued and unpaid distributions
thereon (the "Redemption Price") to the date fixed for redemption. See
"Description of Preferred Securities--Mandatory Redemption of Trust
Securities."
The Preferred Securities will be redeemed upon maturity of the Junior
Subordinated Debt Securities. The Junior Subordinated Debt Securities mature
on , 2036; provided, however, that the Corporation may shorten the
maturity to a date not earlier than , 2001 if the Corporation has received
prior approval of the Federal Reserve to do so if then required. In addition,
upon the occurrence of a Special Event arising from a change in law or a
change in legal interpretation regarding tax or investment company matters,
unless the Junior Subordinated Debt Securities are redeemed in the limited
circumstances described herein, the Trust will be dissolved, with the result
that the Junior Subordinated Debt Securities will be distributed to the
holders of the Trust Securities, on a pro rata basis, in lieu of any cash
distribution, subject to the Corporation having received prior approval of the
Federal Reserve if then required. See "Description of Preferred Securities--
Special Event Redemption or Distribution." In certain circumstances, the
Corporation will have the right to redeem the Junior Subordinated Debt
Securities prior to , 2001, which would result in the redemption by the
Trust of Trust Securities in the same amount on a pro rata basis. If the
Junior Subordinated Debt Securities are distributed to the holders of the
Preferred Securities, the Corporation will use its best efforts to have the
Junior Subordinated Debt Securities listed on the New York Stock Exchange or
on such other exchange as the Preferred Securities are then listed. See
"Description of Preferred Securities--Special Event Redemption or
Distribution" and "Description of Junior Subordinated Debt Securities."
In the event of the involuntary or voluntary dissolution, winding up or
termination of the Trust, the holders of the Preferred Securities will be
entitled to receive for each Preferred Security a liquidation amount of $25
plus accrued and unpaid distributions thereon (including interest thereon) to
the date of payment, unless, in connection with such dissolution, the Junior
Subordinated Debt Securities are distributed to the holders of the Preferred
Securities. See "Description of Preferred Securities--Liquidation Distribution
Upon Dissolution."
----------------
FOR NORTH CAROLINA INVESTORS: THE COMMISSIONER OF INSURANCE OF THE STATE OF
NORTH CAROLINA HAS NOT APPROVED OR DISAPPROVED THIS OFFERING NOR HAS SUCH
COMMISSIONER RULED UPON THE ACCURACY OR THE ADEQUACY OF THIS PROSPECTUS
SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS THAT STABILIZE OR MAINTAIN THE MARKET PRICE OF THE PREFERRED
SECURITIES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING TRANSACTIONS, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
S-3
<PAGE>
SUMMARY
The following information is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus Supplement and the
accompanying Prospectus.
BANKERS TRUST NEW YORK CORPORATION
Bankers Trust New York Corporation (the "Corporation") is a bank holding
company, incorporated under the laws of the State of New York in 1965. At
September 30, 1996, the Corporation had consolidated total assets of $120.8
billion. The Corporation's principal banking subsidiary is Bankers Trust
Company ("Bankers"). Bankers, founded in 1903, is among the largest commercial
banks in New York City and the United States, based on consolidated total
assets. The Corporation concentrates its financial and managerial resources on
selected markets and services its clients by meeting their needs for financing,
advisory, processing and sophisticated risk management solutions. The core
organizational units of the Corporation are Investment Banking, Risk Management
Services, Trading & Sales, Investment Management, Client Processing Services,
Australia/New Zealand, Asia, Latin America and Corporate. Among the
institutional market segments served are corporations, banks, other financial
institutions, governments and agencies, retirement plans, not-for-profit
organizations, wealthy individuals, foundations and private companies. Bankers
originates loans and other forms of credit, accepts deposits, arranges
financings and provides numerous other commercial banking and financial
services. Bankers provides a broad range of financial advisory services to its
clients. It also engages in the proprietary trading of currencies, securities,
derivatives and commodities.
The Corporation is a legal entity separate and distinct from its
subsidiaries, including Bankers. There are various legal limitations governing
the extent to which certain of the Corporation's subsidiaries may extend
credit, pay dividends or otherwise supply funds to, or engage in transactions
with, the Corporation or certain of its other subsidiaries. The rights of the
Corporation to participate in any distribution of assets of any subsidiary upon
its dissolution, winding-up, liquidation or reorganization or otherwise are
subject to the prior claims of creditors of that subsidiary, except to the
extent that the Corporation may itself be a creditor of that subsidiary and its
claims are recognized. Claims on the Corporation's subsidiaries by creditors
other than the Corporation include long-term debt and substantial obligations
with respect to deposit liabilities, trading liabilities, federal funds
purchased, securities sold under repurchase agreements and commercial paper, as
well as short-term borrowings and accounts payable.
The Corporation's principal executive offices are located at 130 Liberty
Street, New York, New York 10006 and its telephone number is (212) 250-2500.
THE TRUST
The Trust is a statutory business trust formed under Delaware law pursuant to
(i) a declaration of trust, dated as of October 29, 1996, executed by the
Corporation, as sponsor (the "Sponsor"), and the trustees of the Trust (as
described below) and (ii) the filing of a certificate of trust with the
Secretary of State of the State of Delaware on October 29, 1996. Such
declaration will be amended and restated in its entirety (as so amended and
restated, the "Declaration") substantially in the form filed as an exhibit to
the Registration Statement of which this Prospectus Supplement and the
accompanying Prospectus form a part. The Declaration will be qualified as an
indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Upon issuance of the Preferred Securities, the purchasers
thereof will own all of the Preferred Securities. See "Description of the
Preferred Securities--Book-Entry Only Issuance--The Depository Trust Company."
The Corporation will directly or indirectly acquire Common Securities in an
aggregate liquidation amount equal to 3% or more of the total capital of the
Trust. The Trust exists for the exclusive purposes of (i) issuing the Trust
Securities representing undivided beneficial interests in the assets of the
Trust, (ii) investing the gross proceeds of the Trust Securities in the Junior
Subordinated Debt Securities and (iii) engaging in only those other activities
necessary or incidental thereto.
S-4
<PAGE>
The Trust's business and affairs are conducted by its trustees, each
appointed by the Corporation as holder of the Common Securities. Pursuant to
the Declaration, the number of trustees of the Trust will be three: Wilmington
Trust Company, a Delaware trust company with its principal place of business in
the State of Delaware that is unaffiliated with the Corporation, as the
institutional trustee (the "Institutional Trustee"), and as the Delaware
trustee (the "Delaware Trustee"), and two individual trustees (the "Regular
Trustees" and, together with the Institutional Trustee and the Delaware
Trustee, the "Trustees") who will be persons who are employees or officers of,
or who are affiliated with the Corporation. Initially, the Regular Trustees
will be John P. Hardt and Manuel J. Schnaidman, each of whom is an officer of
the Corporation. The Institutional Trustee will act as the sole indenture
trustee under the Declaration for purposes of compliance with the Trust
Indenture Act until removed or replaced by the holder of the Common Securities.
Wilmington Trust Company will also act as indenture trustee (the "Guarantee
Trustee") under the Guarantee. See "Description of Guarantee" and "Description
of Junior Subordinated Debt Securities."
The Institutional Trustee will hold title to the Junior Subordinated Debt
Securities for the benefit of the holders of the Trust Securities and, in its
capacity as the holder, the Institutional Trustee will have the power to
exercise all rights, powers and privileges under the indenture pursuant to
which the Junior Subordinated Debt Securities are issued. In addition, the
Institutional Trustee will maintain exclusive control of a segregated non-
interest bearing bank account (the "Property Account") to hold all payments
made in respect of the Junior Subordinated Debt Securities for the benefit of
the holders of the Trust Securities. The Institutional Trustee will make
payments of distributions and payments on liquidation, redemption and otherwise
to the holders of the Trust Securities out of funds from the Property Account.
The Guarantee Trustee will hold the Guarantee for the benefit of the holders of
the Preferred Securities. The Corporation, as the direct or indirect holder of
all the Common Securities, will have the right, subject to certain restrictions
contained in the Declaration, to appoint, remove or replace any Trustee and to
increase or decrease the number of Trustees. The Corporation will pay all fees
and expenses related to the Trust and the offering of the Trust Securities. See
"Description of Junior Subordinated Debt Securities--Miscellaneous."
The rights of the holders of the Preferred Securities, including economic
rights, rights to information and voting rights, are set forth in the
Declaration, the Delaware Business Trust Act and the Trust Indenture Act. See
"Description of Preferred Securities."
PREFERRED SECURITIES OFFERING
General................. The Preferred Securities represent undivided
beneficial interests in the Trust's assets, which
will consist solely of the Junior Subordinated Debt
Securities. The Junior Subordinated Debt Securities,
in which the proceeds of the Preferred Securities
offered hereby will be invested, mature on
, 2036, unless the Junior Subordinated Debt
Securities are redeemed by the Corporation prior to
such maturity or the maturity date is shortened to a
date not earlier than , 2001 as described
under "Description of Preferred Securities--Mandatory
Redemption of Trust Securities" and "--Special Event
Redemption or Distribution."
Distributions........... The distributions payable on each Preferred Security
will be fixed at a rate per annum of % of the
stated liquidation amount of $25 per Preferred
Security, will be cumulative, will accrue from
, 1996, the date of issuance of the Preferred
Securities, and will be payable quarterly in arrears,
on March 31, June 30, September 30 and December 31 of
each year, commencing December 31, 1996. See
"Description of Preferred Securities--Distributions."
S-5
<PAGE>
Option to Extend
Interest Payment The Corporation has the right, at any time, to defer
Period.................. payments of interest on the Junior Subordinated Debt
Securities for a period not exceeding 20 consecutive
quarters; provided that no Extension Period may
extend beyond the maturity date of the Junior
Subordinated Debt Securities. As a consequence of the
Corporation's extension of the interest payment
period, quarterly distributions on the Preferred
Securities would be deferred (though such
distributions would continue to accrue with interest
thereon compounded quarterly, since interest would
continue to accrue on the Junior Subordinated Debt
Securities) during any such extended interest payment
period. If the Corporation exercises its right to
extend an interest payment period, then (a) the
Corporation may not declare or pay any dividend on,
make any distributions with respect to, or redeem,
purchase, acquire or make a liquidation payment with
respect to, any of its capital stock or make any
guarantee payment with respect thereto, and (b) the
Corporation may not make any payment of interest on
or principal of (or premium, if any, on), or repay,
repurchase or redeem, any debt securities issued by
the Corporation that rank pari passu with or junior
to the Junior Subordinated Debt Securities. The
foregoing, however, will not apply (i) to any stock
dividends paid by the Corporation where the dividend
stock is the same stock as that on which the dividend
is being paid or ranks pari passu with or junior to
such stock or (ii) in certain other limited events.
Prior to the termination of any Extension Period, the
Corporation may further extend such Extension Period,
provided that such Extension Period together with all
such previous and further extensions thereof may not
exceed 20 consecutive quarters. Upon the termination
of any Extension Period and the payment of all
amounts then due, the Corporation may commence a new
Extension Period, subject to the foregoing
requirements. See "Description of Junior Subordinated
Debt Securities--Interest Income and Option to Extend
Interest Payment Period."
Should an Extension Period occur, Preferred Security
holders will continue to recognize interest income
for United States federal income tax purposes. As a
result, such holders will be required to include such
interest in gross income for United States federal
income tax purposes in advance of the receipt of
cash, and such holders will not receive the cash from
the Trust related to such income if such holders
dispose of Preferred Securities prior to the record
date for payment of distributions. See "United States
Federal Income Taxation--Interest Income and Original
Issue Discount."
Mandatory Redemption.... Upon the repayment of the Junior Subordinated Debt
Securities, whether at maturity or upon earlier
redemption as provided in the Indenture, the proceeds
from such repayment will be applied by the
Institutional Trustee to redeem a like amount of
Trust Securities, upon the terms and conditions
described herein. See "Description of Preferred
Securities--Mandatory Redemption of Trust
Securities."
Optional Redemption..... The Corporation has the right to redeem the Junior
Subordinated Debt Securities (a) on or after
, 2001, in whole at any time or in part from time
to time, subject to the conditions described in
S-6
<PAGE>
"Description of Junior Subordinated Debt Securities--
Optional Redemption" or (b) at any time, in whole or
in part, in certain circumstances upon the occurrence
of a Tax Event or Capital Treatment Event (each as
defined herein) as described under "Description of
Preferred Securities--Special Event Redemption or
Distribution," in each case at a redemption price
equal to 100% of the principal amount of Junior
Subordinated Debt Securities being redeemed, together
with any accrued but unpaid interest, to but not
including the redemption date. See "Description of
Junior Subordinated Debt Securities--Optional
Redemption." If the Corporation redeems any Junior
Subordinated Debt Securities, the proceeds from such
redemption will be applied by the Institutional
Trustee to redeem a like amount of Trust Securities.
Any redemption by the Corporation of the Junior
Subordinated Debt Securities shall be subject to the
Corporation having received prior approval of the
Federal Reserve to do so if then required.
Special Event Subject to certain conditions (including prior
Distribution............ approval of the Federal Reserve if then required) and
except in limited circumstances, if at any time a
Special Event (as defined herein) shall occur and be
continuing, the Trust will be dissolved with the
result that Junior Subordinated Debt Securities with
an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate
identical to the distribution rate of, and with
accrued and unpaid interest thereon equal to accrued
and unpaid distributions on, the Trust Securities
outstanding at such time, would be distributed to the
holders of the Trust Securities in liquidation of
such holders' interests in the Trust on a pro rata
basis within 90 days following the occurrence of such
Special Event. See "Description of Preferred
Securities--Special Event Redemption or
Distribution."
Voting Rights........... Generally, the holders of the Preferred Securities
will not have any voting rights. See "Description of
Preferred Securities--Voting Rights."
Subject to certain conditions, including that the
Institutional Trustee obtain the opinion of counsel
described under "Description of Preferred
Securities--Voting Rights" prior to taking certain
actions, the holders of a majority in aggregate
liquidation amount of the Preferred Securities have
the right to direct the time, method and place of
conducting any proceeding for any remedy available to
the Institutional Trustee, or direct the exercise of
any trust or power conferred upon the Institutional
Trustee under the Declaration including the right to
direct the Institutional Trustee, as holder of the
Junior Subordinated Debt Securities, to (i) exercise
the remedies available under the Indenture (as
defined herein) with respect to the Junior
Subordinated Debt Securities, (ii) waive any past
Indenture Event of Default that is waivable under the
Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the
Junior Subordinated Debt Securities shall be due and
payable, or (iv) consent to any amendment,
modification or termination of the Indenture or the
Junior Subordinated Debt Securities where such
consent is required; provided, however, that where a
consent or action under the Indenture would require
the consent or act of a Super Majority (as defined
herein) of holders of the Junior Subordinated Debt
Securities affected thereby, only the holders
S-7
<PAGE>
of at least such Super Majority in aggregate
liquidation amount of the Preferred Securities may
direct the Institutional Trustee to give such consent
or take such action. See "Description of Preferred
Securities--Voting Rights."
Use of Proceeds.........
The proceeds from the sale of the Preferred
Securities offered hereby will be used by the Trust
to purchase the Junior Subordinated Debt Securities
issued by the Corporation. The Corporation expects to
use such proceeds for general corporate purposes. See
"Use of Proceeds."
Listing................. The Corporation intends to apply for listing of the
Preferred Securities on the New York Stock Exchange.
Trading of the Preferred Securities on the New York
Stock Exchange is expected to commence within a 30-
day period after the initial delivery of the
Preferred Securities.
RISK FACTORS
Prospective investors should consider carefully, in addition to the other
information contained in this Prospectus Supplement and the accompanying
Prospectus, the matters set forth under the caption "Risk Factors" in this
Prospectus Supplement before purchasing the Preferred Securities offered
hereby.
S-8
<PAGE>
RISK FACTORS
Prospective investors should consider carefully, in addition to the other
information contained in this Prospectus Supplement and the accompanying
Prospectus, the following risk factors before purchasing the Preferred
Securities offered hereby.
RANKING OF SUBORDINATE OBLIGATIONS UNDER THE JUNIOR SUBORDINATED DEBT
SECURITIES AND THE GUARANTEE
The obligations of the Corporation under the Junior Subordinated Debt
Securities are subordinate and junior in right of payment to all present and
future Senior Indebtedness of the Corporation. No payment of principal
(including redemption payments, if any), premium, if any, or interest on the
Junior Subordinated Debt Securities may be made if (i) any Senior Indebtedness
of the Corporation is not paid when due and any applicable grace period with
respect to such default has ended with such default not having been cured or
waived or ceasing to exist, or (ii) the maturity of any Senior Indebtedness of
the Corporation has been accelerated because of a default. The Corporation's
obligations under the Guarantee rank (i) subordinate and junior in right of
payment to all other liabilities of the Corporation, (ii) pari passu with the
most senior preferred or preference stock now or hereafter issued by the
Corporation and with any guarantee now or hereafter entered into by the
Corporation in respect of any preferred or preference stock of any subsidiary
of the Corporation and (iii) senior to the Corporation's Common Stock. There
are no terms in the Preferred Securities, the Junior Subordinated Debt
Securities or the Guarantee that limit the Corporation's ability to incur
additional indebtedness (including guarantees), including indebtedness that
ranks senior to the Junior Subordinated Debt Securities and the Guarantee. See
"Description of Guarantee--Status of the Guarantee" and "Description of Junior
Subordinated Debt Securities--Subordination."
RIGHTS UNDER THE GUARANTEE
The Guarantee will be qualified as an indenture under the Trust Indenture
Act. Wilmington Trust Company will act as indenture trustee under the
Guarantee for the purposes of compliance with the provisions of the Trust
Indenture Act. The Guarantee Trustee will hold the Guarantee for the benefit
of the holders of the Preferred Securities.
The Guarantee guarantees to the holders of the Preferred Securities the
payment of (i) any accrued and unpaid distributions that are required to be
paid on the Preferred Securities, to the extent the Trust has funds available
therefor, (ii) the Redemption Price with respect to Preferred Securities
called for redemption by the Trust, to the extent the Trust has funds
available therefor, and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Trust (other than in connection with the
distribution of Junior Subordinated Debt Securities to the holders of
Preferred Securities or a redemption of all the Preferred Securities), the
lesser of (a) the aggregate of the liquidation amount and all accrued and
unpaid distributions on the Preferred Securities to the date of the payment
and (b) the amount of assets of the Trust remaining available for distribution
to holders of the Preferred Securities in liquidation of the Trust. The
holders of a majority in liquidation amount of the Preferred Securities have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee or to direct the exercise of
any trust or power conferred upon the Guarantee Trustee under the Guarantee.
If the Guarantee Trustee fails to enforce the Guarantee, any holder of
Preferred Securities may directly institute a legal proceeding against the
Corporation to enforce the Guarantee Trustee's rights under the Guarantee
without first instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity. A holder of Preferred Securities may
also directly institute a legal proceeding against the Corporation to enforce
such holder's right to receive payment under the Guarantee without first (i)
directing the Guarantee Trustee to enforce the terms of the Guarantee or (ii)
instituting a legal proceeding against the Trust or any other person or
entity. If the Corporation were to default on its obligation to pay amounts
payable on the Junior Subordinated Debt Securities, the Trust would lack
available funds for the payment of distributions or amounts payable on
redemption of the Preferred Securities or otherwise, and, in such event,
holders of the Preferred Securities would not be able to rely upon the
Guarantee for payment of such amounts. Instead, a holder of the Preferred
Securities would rely on the enforcement (1) by the Institutional Trustee of
its rights as registered holder of the Junior Subordinated Debt Securities
against the Corporation pursuant to the terms of the Junior Subordinated Debt
Securities or (2) by such holder of Preferred Securities of its right against
the Corporation to enforce payments on the Junior Subordinated Debt
Securities. See
S-9
<PAGE>
"Description of Guarantees" and "Description of Junior Subordinated Debt
Securities" in the accompanying Prospectus. The Declaration provides that each
holder of Preferred Securities, by acceptance thereof, agrees to the
provisions of the Guarantee, including the subordination provisions thereof,
and the Indenture.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Declaration Event of Default (as defined herein) occurs and is
continuing, then the holders of Preferred Securities would rely on the
enforcement by the Institutional Trustee of its rights as a holder of the
Junior Subordinated Debt Securities against the Corporation. In addition, the
holders of a majority in liquidation amount of the Preferred Securities will
have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee or to direct
the exercise of any trust or power conferred upon the Institutional Trustee
under the Declaration, including the right to direct the Institutional Trustee
to exercise the remedies available to it as a holder of the Junior
Subordinated Debt Securities. If the Institutional Trustee fails to enforce
its rights under the Junior Subordinated Debt Securities, any holder of
Preferred Securities may directly institute a legal proceeding against the
Corporation to enforce the Institutional Trustee's rights under the Junior
Subordinated Debt Securities without first instituting any legal proceeding
against the Institutional Trustee or any other person or entity. If a
Declaration Event of Default has occurred and is continuing and such event is
attributable to the failure of the Corporation to pay interest or principal on
the Junior Subordinated Debt Securities on the date such interest or principal
is otherwise payable (or in the case of redemption, on the redemption date),
then a holder of Preferred Securities may also directly institute a proceeding
for enforcement of payment to such holder of the principal of or interest on
the Junior Subordinated Debt Securities having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such holder (a
"Direct Action") on or after the respective due date specified in the Junior
Subordinated Debt Securities without first (i) directing the Institutional
Trustee to enforce the terms of the Junior Subordinated Debt Securities or
(ii) instituting a legal proceeding against the Corporation to enforce the
Institutional Trustee's rights under the Junior Subordinated Debt Securities.
In connection with such Direct Action, the Corporation will be subrogated to
the rights of such holder of Preferred Securities under the Declaration to the
extent of any payment made by the Corporation to such holder of Preferred
Securities in such Direct Action. Consequently, the Corporation will be
entitled to payment of amounts that a holder of Preferred Securities receives
in respect of an unpaid distribution that resulted in the bringing of a Direct
Action to the extent that such holder receives or has already received full
payment with respect to such unpaid distribution from the Trust. The holders
of Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Junior Subordinated Debt Securities.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
The Corporation has the right under the Indenture to defer payments of
interest on the Junior Subordinated Debt Securities by extending the interest
payment period from time to time on the Junior Subordinated Debt Securities
for an Extension Period not exceeding 20 consecutive quarterly interest
periods during which no interest shall be due and payable, provided that no
Extension Period may extend beyond the maturity of the Junior Subordinated
Debt Securities. As a consequence of such an extension, quarterly
distributions on the Preferred Securities would be deferred (but despite such
deferral would continue to accrue with interest thereon compounded quarterly)
by the Trust during any such extended interest payment period. If the
Corporation exercises this right to defer interest payments, then (a) the
Corporation may not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock or make any guarantee payment with
respect thereto (other than (i) repurchases, redemptions or other acquisitions
of shares of capital stock of the Corporation in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of employees, officers, directors or consultants, (ii) as a result of
an exchange or conversion of any class or series of the Corporation's capital
stock for any other class or series of the Corporation's capital stock, (iii)
the purchase of fractional interests in shares of the Corporation's capital
stock pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged or (iv) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption
or repurchase of such rights pursuant thereto), and (b) the Corporation shall
not make any
S-10
<PAGE>
payment of interest on or principal of (or premium, if any, on), or repay,
repurchase or redeem, any debt securities issued by the Corporation that rank
pari passu with or junior to such Junior Subordinated Debt Securities. The
foregoing, however, will not apply to any stock dividends paid by the
Corporation where the dividend stock is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock. Prior
to the termination of any Extension Period, the Corporation may further extend
such Extension Period; provided that such Extension Period, together with all
such previous and further extensions thereof, may not exceed 20 consecutive
quarterly interest periods; and provided further that no Extension Period may
extend beyond the maturity of the Junior Subordinated Debt Securities. Upon
the termination of any Extension Period and the payment of all amounts then
due, the Corporation may commence a new Extension Period, subject to the above
requirements. See "Description of Preferred Securities--Distributions" and
"Description of Junior Subordinated Debt Securities--Option to Extend Interest
Payment Period."
The junior subordinated debt securities issued from time to time in
connection with the issuance of trust preferred securities by Trusts described
in the accompanying Prospectus will contain the same restrictive covenants
described in the preceding paragraph. The effect of such restrictive covenants
will be to limit the rights of holders of Preferred Securities to receive
payments with respect thereto if there has been a deferral of interest under
any such junior subordinated debt securities.
Should the Corporation exercise its right to defer any payment of interest
on the Junior Subordinated Debt Securities by extending the interest payment
period, under recently issued Treasury regulations, each holder of Preferred
Securities will accrue income in the form of OID in respect of the deferred
interest allocable to its Preferred Securities for United States federal
income tax purposes, which will be allocated but not distributed to holders of
record of Preferred Securities. As a result, during any Extension Period, each
such holder of Preferred Securities will recognize income for United States
federal income tax purposes in advance of the receipt of cash and will not
receive the cash from the Trust related to such income if such holder disposes
of its Preferred Securities prior to the record date for the date on which
distributions of such amounts are made. The Corporation has no current
intention of exercising its right to defer payments of interest by extending
the interest payment period on the Junior Subordinated Debt Securities.
However, should the Corporation exercise such right in the future, the market
price of the Preferred Securities is likely to be affected. A holder that
disposes of its Preferred Securities during an Extension Period, therefore,
might not receive the same return on its investment as a holder that continues
to hold its Preferred Securities. In addition, as a result of the existence of
the Corporation's right to defer interest payments, the market price of the
Preferred Securities (which represent an undivided beneficial interest in the
Junior Subordinated Debt Securities) may be more volatile than other similar
securities where the issuer does not have such rights to defer interest
payments. See "United States Federal Income Taxation--Interest Income and
Original Issue Discount" and "--Sales of Preferred Securities."
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
Upon the occurrence of a Special Event (as defined herein), subject to the
prior approval of the Board of Governors of the Federal Reserve System (the
"Federal Reserve"), if then required the Trust will be dissolved, except in
the limited circumstance described below, with the result that the Junior
Subordinated Debt Securities will be distributed to the holders of the Trust
Securities in connection with the liquidation of the Trust. In certain
circumstances in connection with a Tax Event or Capital Treatment Event,
subject to certain conditions, the Corporation has the right to redeem the
Junior Subordinated Debt Securities, in whole or in part, in lieu of a
distribution of the Junior Subordinated Debt Securities to holders of Trust
Securities by the Trust, in which event the Trust will redeem the Trust
Securities on a pro rata basis to the same extent as the Junior Subordinated
Debt Securities are redeemed by the Corporation. See "Description of Preferred
Securities--Special Event Redemption or Distribution."
Under current United States federal income tax law, a distribution of Junior
Subordinated Debt Securities upon the dissolution of the Trust would not be a
taxable event to holders of the Preferred Securities. Upon the occurrence of a
Tax Event, however, a dissolution of the Trust in which holders of the
Preferred Securities receive cash would be a taxable event to such holders.
See "United States Federal Income Taxation--Receipt of Junior Subordinated
Debt Securities or Cash Upon Liquidation of the Trust."
There can be no assurance as to the market prices for the Preferred
Securities or the Junior Subordinated Debt Securities that may be distributed
in exchange for Preferred Securities if a dissolution or liquidation of the
S-11
<PAGE>
Trust were to occur. Accordingly, the Preferred Securities that an investor
may purchase, whether pursuant to the offer made hereby or in the secondary
market, or the Junior Subordinated Debt Securities that a holder of Preferred
Securities may receive on dissolution and liquidation of the Trust, may trade
at a discount to the price that the investor paid to purchase the Preferred
Securities offered hereby. Because holders of Preferred Securities may receive
Junior Subordinated Debt Securities upon the occurrence of a Special Event and
because the Preferred Securities constitute the sole assets of the Trust,
prospective purchasers of Preferred Securities are also making an investment
decision with regard to the Junior Subordinated Debt Securities and should
carefully review all the information regarding the Junior Subordinated Debt
Securities contained herein and in the accompanying Prospectus. See
"Description of Preferred Securities--Special Event Redemption or
Distribution" and "Description of Junior Subordinated Debt Securities--
General."
SHORTENING OF MATURITY DATE
The Corporation shall have the right, subject to prior approval of the
Federal Reserve if then required, to shorten the maturity date of the Junior
Subordinated Debt Securities to a date not earlier than , 2001.
PROPOSED TAX LEGISLATION
On March 19, 1996, President Clinton proposed certain tax law changes (the
"Proposed Legislation") that would, among other things, generally deny
corporate issuers a deduction for interest in respect of certain debt
obligations, such as the Junior Subordinated Debt Securities, issued on or
after December 7, 1995. On March 29, 1996, Senate Finance Committee Chairman
William V. Roth, Jr. and House Ways and Means Committee Chairman Bill Archer
issued a joint statement (the "Joint Statement") indicating their intent that
the Proposed Legislation, if adopted by either of the tax-writing committees
of Congress, would have an effective date that is no earlier than the date of
"appropriate Congressional action." Based upon the Joint Statement, it is
expected that if the Proposed Legislation were to be enacted, such legislation
would not apply to the Junior Subordinated Debt Securities. There can be no
assurance, however, that the effective date guidance contained in the Joint
Statement will be incorporated into the Proposed Legislation, if enacted, or
that other legislation enacted after the date hereof will not otherwise
adversely affect the ability of the Corporation to deduct the interest payable
on the Junior Subordinated Debt Securities. Accordingly, there can be no
assurance that a Tax Event will not occur. The occurrence of a Tax Event may,
among other things, result in a dissolution of the Trust in which holders of
the Preferred Securities may receive cash, which would be a taxable event to
such holders. See "--Special Event Redemption or Distribution" and
"Description of Preferred Securities--Special Event Redemption or
Distribution."
LIMITED VOTING RIGHTS
Except in limited circumstances, holders of Preferred Securities will have
limited voting rights and will not be entitled to vote to appoint, remove or
replace, or to increase or decrease the number of, Trustees, which voting
rights are, except in such circumstances, vested exclusively in the holder of
the Common Securities, which is expected to be the Corporation or one of its
subsidiaries. See "Description of Preferred Securities--Voting Rights."
TRADING PRICE
Should the Corporation exercise its option to defer any payment of interest
on the Junior Subordinated Debt Securities, the Preferred Securities may trade
at a price that does not fully reflect the value of accrued but unpaid
interest with respect to the underlying Junior Subordinated Debt Securities.
In the event of such a deferral, a holder of Preferred Securities who disposes
of its Preferred Securities between record dates for payments of distributions
thereon will be required to include in income as ordinary income accrued but
unpaid interest on the Junior Subordinated Debt Securities to the date of
disposition, and to add such amount to its adjusted tax basis in its pro rata
share of the underlying Junior Subordinated Debt Securities deemed disposed
of. To the extent the selling price is less than such holder's adjusted tax
basis (which will include, in the form of OID, all accrued but unpaid
interest), such holder will recognize a capital loss. Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes. See "United States Federal
Income Taxation--Interest Income and Original Issue Discount" and "--Sales of
Preferred Securities."
S-12
<PAGE>
BANKERS TRUST NEW YORK CORPORATION
GENERAL
Bankers Trust New York Corporation (the "Corporation") is a bank holding
company, incorporated under the laws of the State of New York in 1965. At
September 30, 1996, the Corporation had consolidated total assets of $120.8
billion. The Corporation's principal banking subsidiary is Bankers Trust
Company ("Bankers"). Bankers, founded in 1903, is among the largest commercial
banks in New York City and the United States, based on consolidated total
assets. The Corporation concentrates its financial and managerial resources on
selected markets and services its clients by meeting their needs for
financing, advisory, processing and sophisticated risk management solutions.
The core organizational units of the Corporation are Investment Banking, Risk
Management Services, Trading & Sales, Investment Management, Client Processing
Services, Australia/New Zealand, Asia, Latin America and Corporate. Among the
institutional market segments served are corporations, banks, other financial
institutions, governments and agencies, retirement plans, not-for-profit
organizations, wealthy individuals, foundations and private companies. Bankers
originates loans and other forms of credit, accepts deposits, arranges
financings and provides numerous other commercial banking and financial
services. Bankers provides a broad range of financial advisory services to its
clients. It also engages in the proprietary trading of currencies, securities,
derivatives and commodities.
The Corporation is a legal entity separate and distinct from its
subsidiaries, including Bankers. There are various legal limitations governing
the extent to which certain of the Corporation's subsidiaries may extend
credit, pay dividends or otherwise supply funds to, or engage in transactions
with, the Corporation or certain of its other subsidiaries. The rights of the
Corporation to participate in any distribution of assets of any subsidiary
upon its dissolution, winding-up, liquidation or reorganization or otherwise
are subject to the prior claims of creditors of that subsidiary, except to the
extent that the Corporation may itself be a creditor of that subsidiary and
its claims are recognized. Claims on the Corporation's subsidiaries by
creditors other than the Corporation include long-term debt and substantial
obligations with respect to deposit liabilities, trading liabilities, federal
funds purchased, securities sold under repurchase agreements and commercial
paper, as well as short-term borrowings and accounts payable.
The Corporation's principal executive offices are located at 130 Liberty
Street, New York, New York 10006 and its telephone number is (212) 250-2500.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ -------------
1991 1992 1993 1994 1995 1995 1996
---- ---- ---- ---- ---- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Excluding Interest on Deposits.... 1.40 1.44 1.71 1.28 1.05 1.02 1.21
Including Interest on Deposits.... 1.22 1.28 1.48 1.21 1.03 1.02 1.16
</TABLE>
For purposes of computing these consolidated ratios, earnings represent
income before income taxes, cumulative effects of accounting changes and
equity in undistributed income of unconsolidated subsidiaries and affiliates,
plus fixed charges excluding capitalized interest. Fixed charges represent all
interest expense (ratios are presented both excluding and including interest
on deposits), the portion of net rental expense which is deemed representative
of the interest factor, the amortization of debt issuance expense and
capitalized interest.
S-13
<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ -------------
1991 1992 1993 1994 1995 1995 1996
---- ---- ---- ---- ---- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Excluding Interest on Deposits.... 1.37 1.41 1.69 1.27 1.03 1.00 1.19
Including Interest on Deposits.... 1.21 1.26 1.47 1.20 1.02 1.00 1.14
</TABLE>
For purposes of computing these consolidated ratios, earnings represent
income before income taxes, cumulative effects of accounting changes and
equity in undistributed income of unconsolidated subsidiaries and affiliates,
plus fixed charges excluding capitalized interest. Fixed charges represent all
interest expense (ratios are presented both excluding and including interest
on deposits), the portion of net rental expense which is deemed representative
of the interest factor, the amortization of debt issuance expense and
capitalized interest. Fixed charges are then combined with preferred stock
dividend requirements, adjusted to a pretax basis, on the outstanding
preferred stock.
CONSOLIDATED RESULTS OF OPERATIONS
The Corporation earned $176 million, or $1.99 primary earnings per share, in
the third quarter of 1996. The third quarter earnings improved from both the
second quarter 1996 results of $151 million, or $1.67 primary earnings per
share, and from the third quarter 1995 results of $155 million, or $1.72
primary earnings per share.
Details with respect to the foregoing are set forth in the Corporation's
Current Report on Form 8-K dated October 17, 1996, which is incorporated
herein by reference.
S-14
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA AND OTHER INFORMATION
The following selected consolidated financial data at and for each of the
three years ended December 31, 1995, have been derived from and are qualified
in their entirety by the detailed financial information and consolidated
financial statements of the Corporation included in its Annual Report on Form
10-K for the year ended December 31, 1995 ("Form 10-K") which is incorporated
herein by reference.
The consolidated financial data at and for the nine months ended September
30, 1995 and 1996 are unaudited but, in the opinion of management, all
material adjustments necessary for a fair presentation of the Corporation's
results of operations for such periods have been made. All such adjustments
were of a normal recurring nature. The results for the nine months ended
September 30, 1996, are not necessarily indicative of the results for the full
year or any other interim period.
<TABLE>
<CAPTION>
AT OR FOR THE AT OR FOR THE
YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
-------------------------- ------------------
1993 1994 1995 1995 1996
------- ------- -------- -------- --------
($ IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Condensed Consolidated State-
ment of Income:
Interest revenue.............. $ 4,436 $ 5,030 $ 5,886 $ 4,429 $ 4,718
Interest expense.............. 3,122 3,858 5,069 3,821 4,014
------- ------- -------- -------- --------
Net interest revenue.......... 1,314 1,172 817 608 704
Provision for credit losses... 93 25 31 21 5
------- ------- -------- -------- --------
Net interest revenue after
provision for credit loss-
es........................... 1,221 1,147 786 587 699
Noninterest revenue........... 3,364 2,473 2,423 1,684 2,359
Noninterest expenses.......... 3,035 2,751 2,898 2,140 2,395
------- ------- -------- -------- --------
Income before income taxes
and cumulative effects of
accounting changes........... 1,550 869 311 131 663
Income taxes.................. 480 254 96 42 198
------- ------- -------- -------- --------
Income before cumulative ef-
fects of accounting
changes...................... 1,070 615 215 89 465
Cumulative effects of ac-
counting changes(1).......... (75) -- -- -- --
------- ------- -------- -------- --------
Net income.................... $ 995 $ 615 $ 215 $ 89 $ 465
======= ======= ======== ======== ========
Net income applicable to com-
mon stock.................... $ 972 $ 587 $ 164 $ 53 $ 428
======= ======= ======== ======== ========
Per Common Share Data:
Primary earnings per share
Income before cumulative ef-
fects of accounting
changes..................... $ 12.40 $ 7.17 $ 2.03 $ .66 $ 5.19
Net income................... 11.51 7.17 2.03 .66 5.19
Fully diluted earnings per
share
Income before cumulative ef-
fects of accounting
changes..................... 12.29 7.17 2.02 .65 5.16
Net income................... 11.41 7.17 2.02 .65 5.16
Cash dividends declared....... 3.24 3.70 4.00 3.00 3.00
--as a percentage of net in-
come(2)..................... 26% 52% 198% 462% 58%
Book value(3)................. $ 51.90 $ 53.67 $ 50.58 $ 51.72 $ 53.11
Profitability Ratios:
Return on average common
stockholders' equity(2)...... 26.33% 13.48% 3.98% 1.72% 13.33%
Return on average total as-
sets(2)...................... 1.25 .59 .20 .11 .53
Consolidated Balances, End of
Period:
Trading assets................ $48,276 $47,514 $ 47,893 $ 50,364 $ 47,757
Loans......................... 15,200 12,501 12,633 12,786 15,264
Total assets.................. 92,082 97,016 104,002 103,949 120,847
Deposits...................... 22,776 24,939 25,708 24,157 28,672
Securities sold under repur-
chase agreements............. 23,834 15,617 15,247 17,899 23,989
Other short-term borrowings... 18,992 18,222 15,761 16,573 18,799
Long-term debt................ 5,597 6,455 9,294 8,354 10,507
Common stockholders' equity... 4,284 4,309 4,119 4,196 4,508
Total stockholders' equity.... 4,534 4,704 4,984 5,061 5,324
Consolidated Capital Ratios,
End of Period:
Common stockholders' equity
to total assets.............. 4.7% 4.4% 4.0% 4.0% 3.7%
Total stockholders' equity to
total assets................. 4.9 4.8 4.8 4.9 4.4
Risk-based capital ratios(4)
Tier 1 Capital.............. 8.5 9.1 8.5 8.1 8.1
Total Capital............... 14.5 14.8 13.9 13.0 12.8
Leverage Ratio................ 6.3 5.3 5.1 5.5 5.3
EMPLOYEES...................... 13,571 14,529 14,069 13,808 14,863
</TABLE>
- -------
(1) The Corporation adopted the accounting standards for postretirement
benefits other than pensions (SFAS 106) and postemployment benefits (SFAS
112) effective January 1, 1993.
(2) These figures exclude the cumulative effects of accounting changes
recorded in 1993.
(3) This calculation includes the effect of the vested portion of common
shares issuable under deferred stock awards.
(4) At December 31, 1995, December 31, 1994 and December 31, 1993, all three
regulatory capital ratios excluded any benefit from the adoption of SFAS
115. Regulatory capital ratios at September 30, 1996 are preliminary.
S-15
<PAGE>
USE OF PROCEEDS
The proceeds from the sale of the Preferred Securities offered hereby will
be invested by the Trust in Junior Subordinated Debt Securities of the
Corporation. The Corporation will use the net proceeds from the sale of the
Junior Subordinated Debt Securities to the Trust for general corporate
purposes, which may include capital contributions to subsidiaries of the
Corporation, the repurchase and/or redemption of shares of preferred stock of
the Corporation, and/or the reduction or refinancing of borrowings of the
Corporation or its subsidiaries. See "Capitalization."
ACCOUNTING TREATMENT
The financial statements of the Trust will be reflected in the Corporation's
consolidated financial statements with the Preferred Securities shown as
"Corporation-Obligated Mandatorily Redeemable Preferred Securities of
Subsidiary Trusts holding solely Junior Subordinated Debt Securities."
S-16
<PAGE>
CAPITALIZATION
The following table sets forth the capitalization of the Corporation at
September 30, 1996, and as adjusted to give effect to (i) the issuance of the
Preferred Securities, and (ii) the application of the net proceeds from the
issuance of such Preferred Securities, as if such transactions had occurred on
September 30, 1996.
<TABLE>
<CAPTION>
AT SEPTEMBER 30, 1996
-----------------------
OUTSTANDING AS ADJUSTED
----------- -----------
(DOLLARS IN MILLIONS)
<S> <C> <C>
Debt:
Short-term borrowings................................ $42,788 $42,788
Long-term debt....................................... 10,507 10,507
------- -------
Total debt......................................... $53,295 $53,295
Corporation-Obligated Mandatorily Redeemable Preferred
Securities of Subsidiary Trust holding solely Junior
Subordinated Debt Securities (1)......................
Preferred stock of subsidiary.......................... 250 250
Stockholders' equity:
Preferred stock...................................... 816 816
Common stock ($1 par value; authorized shares:
300,000,000; issued shares: 83,678,973; outstanding:
81,485,880)......................................... 84 84
Capital surplus...................................... 1,319 1,319
Retained earnings.................................... 3,450 3,450
Common stock in treasury, at cost (2,193,093
shares)............................................. (173) (173)
Other stockholders' equity........................... (172) (172)
------- -------
Total stockholders' equity......................... 5,324 5,324
------- -------
Total capitalization............................... $58,869 $
======= =======
</TABLE>
- --------
(1) The sole asset of the Trust will be $ aggregate principal amount of %
Junior Subordinated Debt Securities.
S-17
<PAGE>
DESCRIPTION OF PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the
Declaration. The Declaration will be qualified as an indenture under the Trust
Indenture Act. The Institutional Trustee will act as indenture trustee under
the Declaration for purposes of compliance with the provisions of the Trust
Indenture Act. The terms of the Preferred Securities will include those stated
in the Declaration and those made part of the Declaration by the Trust
Indenture Act. This description supplements the description of the general
terms and provisions of the Preferred Securities set forth in the accompanying
Prospectus under the caption "Description of Preferred Securities." The
following summary of the material terms and provisions of the Preferred
Securities does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the Declaration (a copy of which is filed as an
exhibit to the Registration Statement of which this Prospectus Supplement is a
part), the Delaware Business Trust Act and the Trust Indenture Act.
GENERAL
The Declaration authorizes the Regular Trustees to issue on behalf of the
Trust the Trust Securities, which represent undivided beneficial interests in
the assets of the Trust. All of the Common Securities will be owned, directly
or indirectly, by the Corporation. The Common Securities rank pari passu, and
payments will be made thereon on a pro rata basis, with the Preferred
Securities, except that upon the occurrence and during the continuance of a
Declaration Event of Default, the rights of the holders of the Common
Securities to receive payment of periodic distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the rights of
the holders of the Preferred Securities. The Declaration does not permit the
issuance by the Trust of any securities other than the Trust Securities or the
incurrence of any indebtedness by the Trust.
Pursuant to the Declaration, the Institutional Trustee will hold title to
the Junior Subordinated Debt Securities purchased by the Trust for the benefit
of the holders of the Trust Securities and, in its capacity as the holder, the
Institutional Trustee will have the power to exercise all rights, powers and
privileges under the Indenture pursuant to which the Junior Subordinated Debt
Securities are issued. In addition, the Institutional Trustee will maintain
exclusive control of a segregated non-interest bearing bank account (the
"Property Account") to hold all payments made in respect of the Junior
Subordinated Debt Securities for the benefit of the holders of the Trust
Securities. The Institutional Trustee will make payments of distributions and
payments on liquidation, redemption and otherwise to the holders of the Trust
Securities out of funds from the Property Account.
The payment of distributions out of money held by the Trust, and payments
upon redemption of the Preferred Securities or liquidation of the Trust out of
money held by the Trust, are guaranteed by the Corporation to the extent
described under "Description of Guarantee." The Guarantee will be held by the
Guarantee Trustee, for the benefit of the holders of the Preferred Securities.
The Guarantee does not cover payment of distributions when the Trust does not
have sufficient available funds to pay such distributions. In such event, the
remedy of a holder of Preferred Securities is to (i) vote to direct the
Institutional Trustee to enforce the Institutional Trustee's rights under the
Junior Subordinated Debt Securities or (ii) if the failure of the Trust to pay
distributions is attributable to the failure of the Corporation to pay
interest or principal on the Junior Subordinated Debt Securities, institute a
proceeding directly against the Corporation for enforcement of payment to such
holder of the principal or interest on the Junior Subordinated Debt Securities
having a principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such holder on or after the respective due date
specified in the Junior Subordinated Debt Securities. See "--Declaration
Events of Default" and "--Voting Rights."
DISTRIBUTIONS
Distributions on the Preferred Securities will be fixed at a rate per annum
of % of the stated liquidation amount of $25 per Preferred Security.
Distributions in arrears beyond the first date such distributions are payable
(or would be payable, if not for any Extension Period or default by the
Corporation on the Junior Subordinated
S-18
<PAGE>
Debt Securities) will bear interest at the rate per annum of % compounded
quarterly. The term "distribution" as used herein includes any such interest
payable unless otherwise stated. The amount of distributions payable for any
period will be computed on the basis of a 360-day year of twelve 30-day
months.
Distributions on the Preferred Securities will be cumulative, will accrue
from and including , 1996, and will be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year, commencing
December 31, 1996. When, as and if available for payment, distributions will
be made by the Institutional Trustee, except as otherwise described below.
The distribution rate and the distribution payment dates and other payment
dates for the Preferred Securities will correspond to the interest rate and
interest payment dates and other payment dates on the Junior Subordinated Debt
Securities.
The Corporation has the right under the Indenture to defer payments of
interest on the Junior Subordinated Debt Securities by extending the interest
payment period from time to time on the Junior Subordinated Debt Securities
for an Extension Period not exceeding 20 consecutive quarterly interest
periods during which no interest shall be due and payable, provided that no
Extension Period may extend beyond the maturity of the Junior Subordinated
Debt Securities. See "Description of Junior Subordinated Debt Securities--
Option to Extend Interest Payment Period." As a consequence of the
Corporation's extension of the interest payment period, quarterly
distributions on the Preferred Securities would be deferred (though such
distributions would continue to accrue with interest thereon compounded
quarterly, since interest would continue to accrue on the Junior Subordinated
Debt Securities) during any such extended interest payment period. If the
Corporation exercises its right to extend the interest payment period, then
(a) the Corporation may not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock or make any
guarantee payment with respect thereto (other than (i) repurchases,
redemptions or other acquisitions of shares of capital stock of the
Corporation in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of employees, officers, directors
or consultants, (ii) as a result of an exchange or conversion of any class or
series of the Corporation's capital stock for any other class or series of the
Corporation's capital stock, (iii) the purchase of fractional interests in
shares of the Corporation's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, or (iv) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto), and (b) the Corporation may not make any payment of
interest on or principal of (or premium, if any, on), or repay, repurchase or
redeem, any debt securities issued by the Corporation that rank pari passu
with or junior to the Junior Subordinated Debt Securities. The foregoing,
however, will not apply to any stock dividends paid by the Corporation where
the dividend stock is the same stock as that on which the dividend is being
paid or that ranks pari passu with or junior to such stock. Prior to the
termination of any Extension Period, the Corporation may further extend such
Extension Period; provided that such Extension Period, together with all
previous and further extensions thereof, may not exceed 20 consecutive
quarterly interest periods; and provided further that no Extension Period may
extend beyond the maturity of the Junior Subordinated Debt Securities. Upon
the termination of any Extension Period and the payment of all amounts then
due, the Corporation may commence a new Extension Period, subject to the above
requirements. See "Description of Junior Subordinated Debt Securities--
Interest" and "--Option to Extend Interest Payment Period." The Regular
Trustees will give the holders of the Preferred Securities notice of any
Extension Period upon their receipt of notice thereof from the Corporation.
See "Description of Junior Subordinated Debt Securities--Option To Extend
Interest Payment Period." If distributions are deferred, the deferred
distributions and accrued interest thereon will be paid to holders of record
of the Preferred Securities as they appear on the books and records of the
Trust on the record date next following the termination of such deferral
period.
Distributions on the Preferred Securities will be made on the dates on which
they are payable to the extent that the Trust has funds available for the
payment of such distributions in the Property Account. The Trust's
S-19
<PAGE>
funds available for distribution to the holders of the Preferred Securities
will be limited to payments received from the Corporation on the Junior
Subordinated Debt Securities. See "Description of Junior Subordinated Debt
Securities." The payment of distributions out of monies held by the Trust is
guaranteed by the Corporation to the extent set forth under "Description of
Guarantee."
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the books and records of the Trust at the close of
business on the relevant record dates, which, as long as the Preferred
Securities remain in book-entry only form, will be one Business Day prior to
the relevant payment dates. Such distributions will be paid through the
Institutional Trustee who will hold amounts received in respect of the Junior
Subordinated Debt Securities in the Property Account for the benefit of the
holders of the Trust Securities. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such payment will be
made as described under "--Book-Entry Only Issuance--The Depository Trust
Company" below. If the Preferred Securities do not continue to remain in book-
entry only form, the relevant record dates will conform to the rules of any
securities exchange on which the Preferred Securities are listed and, if none,
the Regular Trustees will have the right to select the relevant record dates,
which shall be more than 14 days but less than 60 days prior to the relevant
payment dates. If any date on which distributions are to be made on the
Preferred Securities is not a Business Day, then payment of the distributions
payable on such date will be made on the next succeeding day which is a
Business Day (without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next calendar year,
such payment shall be made on the immediately preceding Business Day. A
"Business Day" means any day other than a Saturday, a Sunday or any other day
on which banking institutions in New York City (in the State of New York) are
permitted or required by any applicable law to close.
MANDATORY REDEMPTION OF TRUST SECURITIES
The Preferred Securities have no stated maturity date but will be redeemed
upon the maturity of the Junior Subordinated Debt Securities or to the extent
the Junior Subordinated Debt Securities are redeemed. The Junior Subordinated
Debt Securities will mature on , 2036, unless the maturity date is
shortened at the sole option of the Corporation to a date not earlier than
, 2001. The Junior Subordinated Debt Securities may also be redeemed, in
whole or in part, at any time on or after , 2001, or at any time, in
whole or in part, in certain circumstances upon the occurrence of a Tax Event
or a Capital Treatment Event (as described under "--Special Event Redemption
or Distribution" below). See "Description of Junior Subordinated Debt
Securities--Optional Redemption." Upon the maturity of the Junior Subordinated
Debt Securities, the proceeds of the repayment thereof shall simultaneously be
applied to redeem all outstanding Trust Securities at a price equal to the
liquidation amount of $25 plus an amount equal to accrued and unpaid
distributions thereon at the date of redemption (the "Redemption Price").
Similarly, upon the redemption of the Junior Subordinated Debt Securities,
whether in whole or in part, the proceeds from such redemption shall
simultaneously be applied to redeem Trust Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Junior
Subordinated Debt Securities so redeemed at the Redemption Price; provided
that holders of Trust Securities shall be given not less than 30 nor more than
60 days' notice of such redemption. If fewer than all of the outstanding
Preferred Securities are to be redeemed, the Preferred Securities to be
redeemed will be selected in accordance with the standard procedures of DTC
(as defined herein) as described under "--Book-Entry Only Issuance--The
Depository Trust Company" below.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
(a "Dissolution Tax Opinion") to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or (b) any amendment to or
change in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination on or after the date of this
Prospectus
S-20
<PAGE>
Supplement), in either case after the date of this Prospectus Supplement,
there is more than an insubstantial risk that (i) the Trust would be subject
to United States federal income tax with respect to income accrued or received
on the Junior Subordinated Debt Securities, (ii) interest payable to the Trust
on the Junior Subordinated Debt Securities would not be deductible, in whole
or in part, by the Corporation for United States federal income tax purposes
or (iii) the Trust would be subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of a nationally recognized independent counsel experienced
in practicing under the 1940 Act (as defined herein) to the effect that, as a
result of the occurrence of a change in law or regulation or a written change
in interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act
Law"), there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" which is required to be registered under
the Investment Company Act of 1940, as amended (the "1940 Act"), which Change
in 1940 Act Law becomes effective on or after the date of this Prospectus
Supplement.
"Capital Treatment Event" means that the Corporation has reasonably
determined that, as a result of the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation
by any legislative body, court, governmental agency or regulatory authority,
there is more than an insubstantial risk that the Corporation will not be
entitled to treat the minority interests in the Trust as "Tier 1 capital" (or
the equivalent) for purposes of the capital adequacy guidelines of the Federal
Reserve, as then in effect and applicable to the Corporation.
If, at any time, a Tax Event or an Investment Company Event (each, together
with a Capital Treatment Event, a "Special Event") shall occur and be
continuing, the Trust will, with the prior approval of the Federal Reserve if
required, unless such Special Event can be remedied described below, be
dissolved with the result that Junior Subordinated Debt Securities with an
aggregate principal amount equal to the aggregate stated liquidation amount
of, with an interest rate identical to the distribution rate of, and with
accrued and unpaid interest equal to accrued and unpaid distributions on, the
Trust Securities outstanding at such time would be distributed to the holders
of the Trust Securities in liquidation of such holders' interests in the Trust
on a pro rata basis within 90 days following the occurrence of such Special
Event; provided, however, that in the case of the occurrence of a Tax Event,
such dissolution and distribution shall be conditioned on the Regular
Trustees' receipt of an opinion of nationally recognized independent tax
counsel experienced in such matters (a "No Recognition Opinion"), which
opinion may rely on, among other things, published revenue rulings of the
Internal Revenue Service, to the effect that the holders of the Trust
Securities will not recognize any gain or loss for United States federal
income tax purposes as a result of such dissolution and distribution of Junior
Subordinated Debt Securities and, provided further that, if at the time there
is available to the Corporation or the Trust the opportunity to eliminate,
within such 90 day period, the Special Event by taking some ministerial
action, such as filing a form or making an election, or pursuing some other
similar reasonable measure, that will have no adverse effect on the Trust, the
Corporation or the holders of the Trust Securities, the Corporation or the
Trust will pursue such measure in lieu of dissolution. The Corporation may
also elect, in its sole discretion, to shorten the maturity of the Junior
Subordinated Debt Securities as described under "Description of Junior
Subordinated Debt Securities--General" in lieu of dissolving the Trust, if
doing so would eliminate the Tax Event. Furthermore, if in the case of the
occurrence of a Tax Event, (i) the Corporation has received an opinion (a
"Redemption Tax Opinion") of nationally recognized independent tax counsel
experienced in such matters that, as a result of such Tax Event, there is more
than an insubstantial risk that the Corporation would be precluded from
deducting the interest on the Junior Subordinated Debt Securities for United
States federal income tax purposes, even after the Junior Subordinated Debt
Securities were distributed to the holders of Trust Securities in liquidation
of such holders' interests in the Trust as described above, or (ii) the
Regular Trustees shall have been informed by such tax counsel that it cannot
deliver a No Recognition Opinion to the Regular Trustees, or in the event of a
Capital Treatment Event, the Corporation shall have the right, upon not less
than 30 nor more than 60 days' notice, to redeem the Junior Subordinated Debt
Securities, in whole or in part, for cash within 90 days following the
occurrence of such Tax Event, and, following such redemption, Trust
S-21
<PAGE>
Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Junior Subordinated Debt Securities so redeemed shall
be redeemed by the Trust at the Redemption Price on a pro rata basis; provided,
however, that if at the time there is available to the Corporation or the Trust
the opportunity to eliminate, within such 90-day period, the Tax Event by
taking some ministerial action, such as filing a form or making an election or
pursuing some other similar reasonable measure that will have no adverse effect
on the Trust, the Corporation or the holders of the Trust Securities, the
Corporation or the Trust will pursue such measure in lieu of redemption.
If the Junior Subordinated Debt Securities are distributed to the holders of
the Preferred Securities, the Corporation will use its best efforts to cause
the Junior Subordinated Debt Securities to be listed on the New York Stock
Exchange or on such other exchange as the Preferred Securities are then listed.
After the date for any distribution of Junior Subordinated Debt Securities
upon dissolution of the Trust, (i) the Preferred Securities will no longer be
deemed to be outstanding, (ii) DTC or its nominee, as the record holder of the
Preferred Securities, will receive a registered global certificate or
certificates representing the Junior Subordinated Debt Securities to be
delivered upon such distribution, and (iii) any certificates representing
Preferred Securities not held by DTC or its nominee will be deemed to represent
Junior Subordinated Debt Securities having an aggregate principal amount equal
to the aggregate stated liquidation amount of, with an interest rate identical
to the distribution rate of, and with accrued and unpaid interest equal to
accrued and unpaid distributions on, such Preferred Securities until such
certificates are presented to the Corporation or its agent for transfer or
reissuance.
There can be no assurance as to the market prices for either the Preferred
Securities or the Junior Subordinated Debt Securities that may be distributed
in exchange for the Preferred Securities if a dissolution and liquidation of
the Trust were to occur. Accordingly, the Preferred Securities that an investor
may purchase, whether pursuant to the offer made hereby or in the secondary
market, or the Junior Subordinated Debt Securities that an investor may receive
if a dissolution and liquidation of the Trust were to occur, may trade at a
discount to the price that the investor paid to purchase the Preferred
Securities offered hereby.
REDEMPTION PROCEDURES
The Trust may not redeem fewer than all of the outstanding Preferred
Securities unless all accrued and unpaid distributions have been paid or will
be concurrently paid on all Preferred Securities for all quarterly distribution
periods terminating on or prior to the date of redemption.
If the Trust gives a notice of redemption in respect of the Preferred
Securities (which notice will be irrevocable), then, by 12:00 noon, New York
City time, on the redemption date, and if the Corporation has paid to the
Institutional Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Junior Subordinated Debt Securities, the
Institutional Trustee will irrevocably deposit with DTC funds sufficient to pay
the applicable Redemption Price and will give DTC irrevocable instructions and
authority to pay the Redemption Price to the holders of the Preferred
Securities. See "--Book-Entry Only Issuance--The Depository Trust Company." If
notice of redemption shall have been given and funds deposited as required,
then, immediately prior to the close of business on the date of such deposit,
distributions will cease to accrue and all rights of holders of Preferred
Securities so called for redemption will cease, except the right of the holders
of such Preferred Securities to receive the Redemption Price but without
interest on such Redemption Price. In the event that any date fixed for
redemption of Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on the date fixed for
redemption. In the event that payment of the Redemption Price in respect of
Preferred Securities is improperly withheld or refused and not paid either by
the Trust, or by the Corporation pursuant to the Guarantee, distributions on
such Preferred Securities will continue to accrue at the then applicable rate
from the original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
S-22
<PAGE>
If fewer than all of the outstanding Preferred Securities are to be redeemed,
the Preferred Securities to be redeemed will be selected in accordance with
DTC's standard procedures. See "--Book-Entry Only Issuance--The Depository
Trust Company."
Subject to applicable law (including, without limitation, United States
federal securities laws), the Corporation or its subsidiaries may at any time,
and from time to time, purchase outstanding Preferred Securities.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation"), the holders of
the Preferred Securities will be entitled to receive out of the assets of the
Trust, after satisfaction of liabilities to creditors, distributions in an
amount equal to the aggregate of the stated liquidation amount of $25 per
Preferred Security plus accrued and unpaid distributions thereon to the date of
payment (the "Liquidation Distribution"), unless, in connection with such
Liquidation, Junior Subordinated Debt Securities in an aggregate stated
principal amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the distribution rate of, and with accrued and
unpaid interest equal to accrued and unpaid distributions on, the Preferred
Securities outstanding at such time have been distributed on a pro rata basis
to the holders of such Preferred Securities.
If, upon any such Liquidation, the Liquidation Distribution can be paid only
in part because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Preferred Securities shall be paid on a pro rata basis. The
holders of the Common Securities will be entitled to receive distributions upon
any such Liquidation pro rata with the holders of the Preferred Securities,
except that if a Declaration Event of Default has occurred and is continuing
the Preferred Securities shall have a preference over the Common Securities
with regard to such distributions.
Pursuant to the Declaration, the Trust will terminate (i) on ,
2051, the expiration of the term of the Trust, (ii) upon the bankruptcy of the
Corporation or the holder of the Common Securities, (iii) upon the filing of a
certificate of dissolution or its equivalent with respect to the holder of the
Common Securities or the Corporation, the filing of a certificate of
cancellation with respect to the Trust, or the revocation of the charter of the
holder of the Common Securities or the Corporation and the expiration of 90
days after the date of revocation without a reinstatement thereof, (iv) upon
the distribution of Junior Subordinated Debt Securities upon the occurrence of
a Special Event, (v) upon the entry of a decree of a judicial dissolution of
the holder of the Common Securities, the Corporation or the Trust, or (vi) upon
the redemption of all the Trust Securities.
Under the terms of the Indenture, the Corporation has covenanted that, for so
long as the Preferred Securities remain outstanding, it will not voluntarily
dissolve, wind-up or terminate the Trust, except in connection with a
distribution of Junior Subordinated Debt Securities upon a Special Event or in
connection with certain mergers, consolidations or amalgamations permitted by
the Declaration.
DECLARATION EVENTS OF DEFAULT
An event of default under the Indenture (an "Indenture Event of Default")
constitutes an event of default under the Declaration with respect to the Trust
Securities (a "Declaration Event of Default"); provided, that pursuant to the
Declaration the holder of the Common Securities will be deemed to have waived
any Declaration Event of Default with respect to the Common Securities until
all Declaration Events of Default with respect to the Preferred Securities have
been cured, waived or otherwise eliminated. Until such Declaration Events of
Default with respect to the Preferred Securities have been so cured, waived, or
otherwise eliminated, the Institutional Trustee will be deemed to be acting
solely on behalf of the holders of the Preferred Securities and only the
holders of the Preferred Securities will have the right to direct the
Institutional Trustee with respect to certain matters under the Declaration,
and therefore the Indenture. In the event that any Declaration Event of Default
with respect to the Preferred Securities is waived by the holders of the
Preferred Securities as provided in the Declaration, the holders of Common
Securities pursuant to the Declaration have agreed that such waiver also
constitutes a waiver of such Declaration Event of Default with respect to the
Common Securities for all purposes under the Declaration without any further
act, vote or consent of the holders of Common Securities. See "--Voting
Rights."
S-23
<PAGE>
If the Institutional Trustee fails to enforce its rights under the Junior
Subordinated Debt Securities after a Declaration Event of Default, any holder
of Preferred Securities may directly institute a legal proceeding against the
Corporation to enforce the Institutional Trustee's rights under the Junior
Subordinated Debt Securities without first instituting any legal proceeding
against the Institutional Trustee or any other person or entity. If a
Declaration Event of Default has occurred and is continuing and such event is
attributable to the failure of the Corporation to pay interest or principal on
the Junior Subordinated Debt Securities on the date such interest or principal
is otherwise payable (or in the case of redemption, the redemption date), then
a holder of Preferred Securities may also directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on
Junior Subordinated Debt Securities having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such holder on or
after the respective due date specified in the Junior Subordinated Debt
Securities without first (i) directing the Institutional Trustee to enforce
the terms of the Junior Subordinated Debt Securities or (ii) instituting a
legal proceeding against the Corporation to enforce the Institutional
Trustee's rights under the Junior Subordinated Debt Securities. In connection
with such Direct Action, the Corporation will be subrogated to the rights of
such holder of Preferred Securities under the Declaration to the extent of any
payment made by the Corporation to such holder of Preferred Securities in such
Direct Action. Consequently, the Corporation will be entitled to payment of
amounts that a holder of Preferred Securities receives in respect of an unpaid
distribution that resulted in the bringing of a Direct Action to the extent
that such holder receives or has already received full payment with respect to
such unpaid distribution from the Trust. The holders of Preferred Securities
will not be able to exercise directly any other remedy available to the
holders of the Junior Subordinated Debt Securities.
Upon the occurrence of an Indenture Event of Default, the Institutional
Trustee as the sole holder of the Junior Subordinated Debt Securities will
have the right under the Indenture to declare the principal of and interest on
the Junior Subordinated Debt Securities to be immediately due and payable. The
Corporation and the Trust are each required to file annually with the
Institutional Trustee an officers' certificate as to its compliance with all
conditions and covenants under the Declaration.
VOTING RIGHTS
Except as described in this Prospectus Supplement and in the accompanying
Prospectus under "Description of Guarantees--Modification of Guarantees;
Assignment," and except as provided under the Delaware Business Trust Act, the
Trust Indenture Act and as otherwise required by law and the Declaration, the
holders of the Preferred Securities will have no voting rights.
Subject to the requirement of the Institutional Trustee obtaining a tax
opinion in certain circumstances set forth in the last sentence of this
paragraph, the holders of a majority in aggregate liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Institutional
Trustee, or direct the exercise of any trust or power conferred upon the
Institutional Trustee under the Declaration including the right to direct the
Institutional Trustee, as holder of the Junior Subordinated Debt Securities,
to (i) direct the time, method and place of conducting any proceeding for any
remedy available to the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee with respect to the Junior Subordinated
Debt Securities, (ii) waive any past Indenture Event of Default that is
waivable under Section 5.13 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior
Subordinated Debt Securities shall be due and payable, or (iv) consent to any
amendment, modification or termination of the Indenture or the Junior
Subordinated Debt Securities where such consent shall be required; provided,
however, that, where a consent or action under the Indenture would require the
consent or act of holders of more than a majority in principal amount of the
Junior Subordinated Debt Securities (a "Super Majority") affected thereby,
only the holders of at least such Super Majority in aggregate liquidation
amount of the Preferred Securities may direct the Institutional Trustee to
give such consent or take such action. If the Institutional Trustee fails to
enforce its rights under the Junior Subordinated Debt Securities, any record
holder of Preferred Securities may directly institute a legal proceeding
against the Corporation to enforce the Institutional Trustee's rights under
the Junior Subordinated Debt Securities without first instituting any legal
proceeding against the Institutional Trustee or any other person or entity.
The Institutional Trustee shall
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notify all holders of the Preferred Securities of any notice of default
received from the Indenture Trustee with respect to the Junior Subordinated
Debt Securities. Such notice shall state that such Indenture Event of Default
also constitutes a Declaration Event of Default. Except with respect to
directing the time, method and place of conducting a proceeding for a remedy
available to the Institutional Trustee, the Institutional Trustee, as holder
of the Junior Subordinated Debentures, shall not take any of the actions
described in clauses (i), (ii), (iii) or (iv) above unless the Institutional
Trustee has obtained an opinion of a nationally recognized independent tax
counsel experienced in such matters to the effect that, as a result of such
action, the Trust will not fail to be classified as a grantor trust for United
States federal income tax purposes.
If the consent of the Institutional Trustee, as the holder of the Junior
Subordinated Debt Securities, is required under the Indenture with respect to
any amendment, modification or termination of the Indenture, the Institutional
Trustee will request the written direction of the holders of the Trust
Securities with respect to such amendment, modification or termination and
will vote with respect to such amendment, modification or termination as
directed by a majority in liquidation amount of the Trust Securities voting
together as a single class; provided, however, that where any amendment,
modification or termination under the Indenture would require the consent of a
Super Majority, the Institutional Trustee may only give such consent at the
direction of the holders of at least the proportion in aggregate liquidation
amount of the Trust Securities that the relevant Super Majority represents of
the aggregate principal amount of the Junior Subordinated Debt Securities
outstanding. The Institutional Trustee shall be under no obligation to take
any such action in accordance with the directions of the holders of the Trust
Securities unless the Institutional Trustee has obtained an opinion of a
nationally recognized independent tax counsel experienced in such matters to
the effect that for United States federal income tax purposes the Trust will
not be classified as other than a grantor trust.
A waiver of an Indenture Event of Default by the Institutional Trustee at
the direction of the holders of the Preferred Securities will constitute a
waiver of the corresponding Declaration Event of Default.
Any required approval or direction of holders of Preferred Securities may be
given at a separate meeting of holders of Preferred Securities convened for
such purpose, at a meeting of all of the holders of Trust Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such holders is to be
taken, to be mailed to each holder of record of Preferred Securities. Each
such notice will include a statement setting forth the following information:
(i) the date of such meeting or the date by which such action is to be taken;
(ii) a description of any resolution proposed for adoption at such meeting on
which such holders are entitled to vote or of such matter upon which written
consent is sought; and (iii) instructions for the delivery of proxies or
consents. No vote or consent of the holders of Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or distribute
Junior Subordinated Debt Securities in accordance with the Declaration.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned at such time by the Corporation or any entity
directly or indirectly controlling or controlled by, or under direct or
indirect common control with, the Corporation, shall not be entitled to vote
or consent and shall, for purposes of such vote or consent, be treated as if
such Preferred Securities were not outstanding.
The procedures by which holders of Preferred Securities may exercise their
voting rights are described below. See "--Book-Entry Only Issuance--The
Depository Trust Company."
Holders of the Preferred Securities will have no rights to appoint or remove
the Trustees, who may be appointed, removed or replaced solely by the
Corporation as the indirect or direct holder of all of the Common Securities.
MODIFICATION OF THE DECLARATION
The Declaration may be modified and amended if approved by the Regular
Trustees (and in certain circumstances the Institutional Trustee and the
Delaware Trustee), provided that, if any proposed amendment
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provides for, or the Regular Trustees otherwise propose to effect, (i) any
action that would adversely affect the powers, preferences or special rights
of the Trust Securities, whether by way of amendment to the Declaration or
otherwise or (ii) the dissolution, winding-up or termination of the Trust
other than pursuant to the terms of the Declaration, then the holders of the
Trust Securities voting together as a single class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of holders of at least a majority in
liquidation amount of the Trust Securities affected thereby; provided, that,
if any amendment or proposal referred to in clause (i) above would adversely
affect only the Preferred Securities or the Common Securities, then only
holders of the affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of holders of a majority in liquidation amount of such class of Trust
Securities.
Notwithstanding the foregoing, no amendment or modification may be made to
the Declaration if such amendment or modification would (i) cause the Trust to
be classified for United States federal income tax purposes as other than a
grantor trust, (ii) reduce or otherwise adversely affect the powers of the
Institutional Trustee or (iii) cause the Trust to be deemed an "investment
company" which is required to be registered under the 1940 Act.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety, to any corporation or other body except as
described below. The Trust may, with the consent of the Regular Trustees and
without the consent of the holders of the Trust Securities, consolidate,
amalgamate, merge with or into, or be replaced by a trust organized as such
under the laws of any State; provided, that (i) such successor entity either
(x) expressly assumes all of the obligations of the Trust under the Trust
Securities or (y) substitutes for the Preferred Securities other securities
having substantially the same terms as the Trust Securities (the "Successor
Securities"), so long as the Successor Securities rank the same as the Trust
Securities rank with respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) the Corporation expressly acknowledges a
trustee of such successor entity possessing the same powers and duties as the
Institutional Trustee, in its capacity as the holder of the Junior
Subordinated Debt Securities, (iii) the Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or with another
organization on which the Preferred Securities are then listed or quoted, (iv)
such merger, consolidation, amalgamation or replacement does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the holders of the Trust Securities
(including any Successor Securities) in any material respect (other than with
respect to any dilution of the holders' interest in the new entity), (vi) such
successor entity has a purpose identical to that of the Trust, (vii) prior to
such merger, consolidation, amalgamation or replacement, the Trust has
received an opinion of a nationally recognized independent counsel to the
Trust experienced in such matters to the effect that, (A) such merger,
consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the holders of the Trust Securities
(including any Successor Securities) in any material respect (other than with
respect to any dilution of the holders' interest in the new entity), and (B)
following such merger, consolidation, amalgamation or replacement, neither the
Trust nor such successor entity will be required to register as an "investment
company" under the 1940 Act, and (viii) the Corporation guarantees the
obligations of such successor entity under the Successor Securities at least
to the extent provided by the Guarantee. Notwithstanding the foregoing, the
Trust will not, except with the consent of holders of 100% in liquidation
amount of the Trust Securities, consolidate, amalgamate, merge with or into,
or be replaced by any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it, if in the opinion of a
nationally recognized independent tax counsel experienced in such matters,
such consolidation, amalgamation, merger or replacement would cause the Trust
or the Successor Entity to be classified as other than a grantor trust for
United States federal income tax purposes. In addition, so long as any
Preferred Securities are outstanding and are not held entirely by the
Corporation, the Trust may not voluntarily liquidate, dissolve, wind-up or
terminate except as described above under "--Special Event Redemption
Distribution."
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BOOK-ENTRY ONLY ISSUANCE--THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as securities depositary for
the Preferred Securities. The Preferred Securities will be issued only as
fully-registered securities registered in the name of Cede & Co. (DTC's
nominee). One or more fully-registered global Preferred Securities
certificates, representing the total aggregate number of Preferred Securities,
will be issued and will be deposited with DTC.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in the global Preferred
Securities as represented by a global certificate.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). DTC holds securities
that its participants ("Participants") deposit with DTC. DTC also facilitates
the settlement among Participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. Direct Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations ("Direct Participants"). DTC is owned by a
number of its Direct Participants and by the New York Stock Exchange, the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. (the "NASD"). Access to the DTC system is also available to
others, such as securities brokers and dealers, banks and trust companies that
clear transactions through or maintain a direct or indirect custodial
relationship with a Direct Participant either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its Participants
are on file with the Securities and Exchange Commission.
Purchases of Preferred Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Preferred
Securities on DTC's records. The ownership interest of each actual purchaser
of each Preferred Security ("Beneficial Owner") is in turn to be recorded on
the Direct and Indirect Participants' records. Beneficial Owners will not
receive written confirmation from DTC of their purchases, but Beneficial
Owners are expected to receive written confirmations providing details of the
transactions, as well as periodic statements of their holdings, from the
Direct or Indirect Participants through which the Beneficial Owners purchased
Preferred Securities. Transfers of ownership interests in the Preferred
Securities are to be accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in the Preferred
Securities, except in the event that use of the book-entry system for the
Preferred Securities is discontinued.
To facilitate subsequent transfers, all the Preferred Securities will be
registered in the name of DTC's nominee, Cede & Co. The registration of the
Preferred Securities in the name of Cede & Co. effects no change in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of the
Preferred Securities. DTC's records reflect only the identity of the Direct
Participants to whose accounts such Preferred Securities are credited, which
may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed
by arrangements among them, subject to any statutory or regulatory
requirements that may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Preferred Securities are being redeemed, DTC will reduce the amount of the
interest of each Direct Participant in such Preferred Securities in accordance
with its procedures.
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Although voting with respect to the Preferred Securities is limited, in
those cases where a vote is required, neither DTC nor Cede & Co. will itself
consent or vote with respect to Preferred Securities. Under its usual
procedures, DTC would mail an Omnibus Proxy to the Trust as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to those Direct Participants to whose accounts the Preferred
Securities are credited on the record date (identified in a listing attached
to the Omnibus Proxy).
Distribution payments on the Preferred Securities will be made to DTC. DTC's
practice is to credit Direct Participants' accounts on the relevant payment
date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payment date. Payments by Participants to Beneficial Owners will be governed
by standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or registered in
"street name," and such payments will be the responsibility of such
Participant and not of DTC, the Trust or the Corporation, subject to any
statutory or regulatory requirements to the contrary that may be in effect
from time to time. Payment of distributions to DTC is the responsibility of
the Trust, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
Except as provided herein, a Beneficial Owner in a global Preferred Security
certificate will not be entitled to receive physical delivery of Preferred
Securities. Accordingly, each Beneficial Owner must rely on the procedures of
DTC to exercise any rights under the Preferred Securities.
DTC may discontinue providing its services as securities depositary with
respect to the Preferred Securities at any time by giving reasonable notice to
the Trust. Under such circumstances, if a successor securities depositary is
not obtained, Preferred Securities certificates are required to be printed and
delivered. Additionally, the Regular Trustees (with the consent of the
Corporation) may decide to discontinue use of the system of book-entry
transfers through DTC (or any successor depositary) with respect to the
Preferred Securities. In that event, certificates for the Preferred Securities
will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Corporation and the Trust believe to
be reliable, but neither the Corporation nor the Trust takes responsibility
for the accuracy thereof.
INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE
The Institutional Trustee, prior to the occurrence of a Declaration Event of
Default, undertakes to perform only such duties as are specifically set forth
in the Declaration and, after such a default, will exercise the same degree of
care as a prudent individual would exercise in the conduct of his or her own
affairs. Subject to such provisions, the Institutional Trustee is under no
obligation to exercise any of the powers vested in it by the Declaration at
the request of any holder of Preferred Securities, unless offered reasonable
indemnity by such holder against the costs, expenses and liabilities which
might be incurred thereby. Notwithstanding the foregoing, the holders of
Preferred Securities will not be required to offer such indemnity if such
holders, by exercising their voting rights, direct the Institutional Trustee
to take any action following a Declaration Event of Default.
PAYING AGENT
If the Preferred Securities do not remain in book-entry only form, the
following provisions will apply:
The Institutional Trustee will act as paying agent and may designate an
additional or substitute paying agent at any time.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of the Trust, but upon payment (with the giving of such
indemnity as the Trust or the Corporation may require) in respect of any tax
or other government charges that may be imposed in relation to it.
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The Trust will not be required to register or cause to be registered the
transfer of Preferred Securities after such Preferred Securities have been
called for redemption.
GOVERNING LAW
The Declaration and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
MISCELLANEOUS
The Regular Trustees are authorized and directed to operate the Trust in
such a way so that the Trust will not be required to register as an
"investment company" under the 1940 Act or be characterized as other than a
grantor trust for United States federal income tax purposes. The Corporation
is authorized and directed to conduct its affairs so that the Junior
Subordinated Debt Securities will be treated as indebtedness of the
Corporation for United States federal income tax purposes. In this connection,
the Corporation and the Regular Trustees are authorized to take any action,
not inconsistent with applicable law, the certificate of trust of the Trust or
the certificate of incorporation of the Corporation, that each of the
Corporation and the Regular Trustees determine in their discretion to be
necessary or desirable to achieve such end, as long as such action does not
adversely affect the interests of the holders of the Preferred Securities or
vary the terms thereof.
Holders of the Preferred Securities have no preemptive rights.
DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
Set forth below is a description of the specific terms of the Junior
Subordinated Debt Securities in which the Trust will invest the proceeds from
the issuance and sale of the Trust Securities. This description supplements
the description of the general terms and provisions of the Junior Subordinated
Debt Securities set forth in the accompanying Prospectus under the caption
"Description of Junior Subordinated Debt Securities." The following
description does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the description of the Junior
Subordinated Debt Securities in the accompanying Prospectus, the Indenture,
dated as of , 1996 (the "Indenture"), between the Corporation and the
Indenture Trustee, as Trustee, the form of which is filed as an exhibit to the
Registration Statement of which this Prospectus Supplement and the
accompanying Prospectus form a part, and the Trust Indenture Act. Certain
capitalized terms used herein are defined in the Indenture.
Under certain circumstances involving the dissolution of the Trust following
the occurrence of a Special Event, Junior Subordinated Debt Securities may be
distributed to the holders of the Trust Securities in liquidation of the
Trust. See "Description of Preferred Securities--Special Event Redemption or
Distribution."
If the Junior Subordinated Debt Securities are distributed to the holders of
the Preferred Securities, the Corporation will use its best efforts to have
the Junior Subordinated Debt Securities listed on the New York Stock Exchange
or on such other national securities exchange or similar organization on which
the Preferred Securities are then listed or quoted.
GENERAL
The Junior Subordinated Debt Securities will be issued as unsecured debt
under the Indenture. The Junior Subordinated Debt Securities will be limited
in aggregate principal amount to approximately $ , such amount being the sum
of the aggregate stated liquidation amount of the Preferred Securities and the
capital contributed by the Corporation to the Trust in exchange for the Common
Securities (the "Trust Payment").
The Junior Subordinated Debt Securities are not subject to a sinking fund
provision. The entire principal amount of the Junior Subordinated Debt
Securities will mature and become due and payable, together with any
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accrued and unpaid interest thereon including Compound Interest (as defined
herein) and Additional Interest (as defined herein), if any, on , 2036;
provided, however, that the Corporation shall have the right to shorten the
final maturity date of the Junior Subordinated Debt Securities to a date not
earlier than , 2001. The Corporation's exercise of such right shall be
subject to the Corporation having received prior approval of the Federal
Reserve to do so if then required under applicable capital guidelines or
policies of the Federal Reserve.
If Junior Subordinated Debt Securities are distributed to holders of
Preferred Securities in liquidation of such holders' interests in the Trust,
such Junior Subordinated Debt Securities will initially be issued in the form
of one or more Global Securities (as defined under "--Book-Entry and
Settlement" below). As described herein, under certain limited circumstances,
Junior Subordinated Debt Securities may be issued in certificated form in
exchange for a Global Security. See "--Book-Entry and Settlement" below. In
the event that Junior Subordinated Debt Securities are issued in certificated
form, such Junior Subordinated Debt Securities will be in denominations of $25
and integral multiples thereof and may be transferred or exchanged at the
offices described below. Payments on Junior Subordinated Debt Securities
issued as a Global Security will be made to DTC, to a successor depositary or,
in the event that no depositary is used, to a Paying Agent for the Junior
Subordinated Debt Securities. In the event Junior Subordinated Debt Securities
are issued in certificated form, principal and interest will be payable, the
transfer of the Junior Subordinated Debt Securities will be registrable and
Junior Subordinated Debt Securities will be exchangeable for Junior
Subordinated Debt Securities of other denominations of a like aggregate
principal amount at the corporate trust office of the Indenture Trustee in New
York, New York; provided that payment of interest may be made at the option of
the Corporation by check mailed to the address of the persons entitled
thereto.
The Corporation does not intend to issue and sell the Junior Subordinated
Debt Securities to any purchasers other than the Trust.
SUBORDINATION
The Indenture provides that the Junior Subordinated Debt Securities are
subordinated and junior in right of payment to all Senior Indebtedness of the
Corporation. No payment of principal (including redemption payments), premium,
if any, or interest on the Junior Subordinated Debt Securities may be made if
(i) any Senior Indebtedness of the Corporation has not been paid when due and
any applicable grace period with respect to such default has ended and such
default has not been cured or waived or ceased to exist, or (ii) the maturity
of any Senior Indebtedness of the Corporation has been accelerated because of
a default. Upon any distribution of assets of the Corporation to creditors
upon any dissolution, winding-up, liquidation or reorganization, whether
voluntary or involuntary, or in bankruptcy, insolvency, receivership or other
proceedings, all principal, premium, if any, and interest due or to become due
on all Senior Indebtedness of the Corporation must be paid in full before the
holders of Junior Subordinated Debt Securities are entitled to receive or
retain any payment. Upon satisfaction of all claims related to all Senior
Indebtedness of the Corporation then outstanding, the rights of the holders of
the Junior Subordinated Debt Securities will be subrogated to the rights of
the holders of Senior Indebtedness of the Corporation to receive payments or
distributions applicable to Senior Indebtedness until all amounts owing on the
Junior Subordinated Debt Securities are paid in full.
The term "Senior Indebtedness" means, with respect to the Corporation, (i)
the principal, premium, if any, and interest in respect of (A) indebtedness of
the Corporation for money borrowed and (B) indebtedness evidenced by
securities, notes, debentures, bonds or other similar instruments issued by
the Corporation, (ii) all capital lease obligations of the Corporation, (iii)
all obligations of the Corporation issued or assumed as the deferred purchase
price of property, all conditional sale obligations of the Corporation and all
obligations of the Corporation under any conditional sale or title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business), (iv) all obligations, contingent or otherwise, of the
Corporation in respect of any letters of credit, banker's acceptance, security
purchase facilities or similar credit transactions, (v) all obligations in
respect of interest rate swap, cap or other agreements, interest rate future
or option contracts, currency swap agreements, currency future or option
contracts and other similar agreements, (vi) all obligations
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of the type referred to in clauses (i) through (v) above of other persons for
the payment of which the Corporation is responsible or liable as obligor,
guarantor or otherwise and (vii) all obligations of the type referred to in
clauses (i) through (vi) above of other persons secured by any lien on any
property or asset of such obligor (whether or not such obligation is assumed
by such obligor), except for (1) any such indebtedness that is by its terms
subordinated to or pari passu with the Junior Subordinated Debt Securities and
(2) any indebtedness between or among the Corporation or its affiliates,
including all other debt securities and guarantees in respect of those debt
securities, issued to (a) any other Trust of the type described in the
accompanying Prospectus or a trustee of such Trust and (b) any other trust, or
a trustee of such trust, partnership or other entity affiliated with the
Corporation that is a financing vehicle of the Corporation (a "financing
entity") in connection with the issuance by such financing entity of preferred
securities or other securities that rank pari passu with, or junior to, the
Preferred Securities. Such Senior Indebtedness shall continue to be Senior
Indebtedness and be entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any term of such
Senior Indebtedness.
The Indenture does not limit the aggregate amount of Senior Indebtedness
that may be issued by the Corporation.
OPTIONAL REDEMPTION
The Corporation will have the right to redeem the Junior Subordinated Debt
Securities, in whole or in part, from time to time, on or after , 2001,
or at any time in certain circumstances upon the occurrence of a Tax Event or
a Capital Treatment Event as described under "Description of the Preferred
Securities--Special Event Redemption or Distribution," upon not less than 30
nor more than 60 days' notice, at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest,
including Additional Interest (as defined herein), if any, to the redemption
date. If a partial redemption of the Preferred Securities resulting from a
partial redemption of the Junior Subordinated Debt Securities would result in
the delisting of the Preferred Securities, the Corporation may only redeem the
Junior Subordinated Debt Securities in whole. The Corporation's exercise of
its right to redeem the Junior Subordinated Debt Securities prior to maturity
is subject to the Corporation having received prior approval of the Federal
Reserve to do so if then required.
PROPOSED TAX LEGISLATION
On March 19, 1996, President Clinton proposed the Proposed Legislation that
would, among other things, generally deny corporate issuers a deduction for
interest in respect of certain debt obligations, such as the Junior
Subordinated Debt Securities, issued on or after December 7, 1995. On March
29, 1996, Senate Finance Committee Chairman William V. Roth, Jr. and House
Ways and Means Committee Chairman Bill Archer issued the Joint Statement
indicating their intent that the Proposed Legislation, if adopted by either of
the tax-writing committees of Congress, would have an effective date that is
no earlier than the date of "appropriate Congressional action." Based upon the
Joint Statement, it is expected that if the Proposed Legislation were to be
enacted, such legislation would not apply to the Junior Subordinated Debt
Securities. There can be no assurances, however, that the effective date
guidance contained in the Joint Statement will be incorporated into the
Proposed Legislation, if enacted, or that other legislation enacted after the
date hereof will not otherwise adversely affect the ability of the Corporation
to deduct the interest payable on the Junior Subordinated Debt Securities.
Accordingly, there can be no assurance that a Tax Event will not occur. See
"Description of the Preferred Securities--Special Event Redemption or
Distribution."
INTEREST
Each Junior Subordinated Debt Security will bear interest at the rate of %
per annum, from and including the original date of issuance, payable quarterly
in arrears on March 31, June 30, September 30 and December 31 of each year
(each an "Interest Payment Date"), commencing December 31, 1996 to the person
in whose name such Junior Subordinated Debt Security is registered, subject to
certain exceptions, at the close of business on the Business Day next
preceding such Interest Payment Date. If the Junior Subordinated Debt
Securities do not
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continue to remain in book-entry only form, the Corporation will have the
right to select record dates, which will be more than 14 days but less than 60
days prior to the Interest Payment Date.
The amount of interest payable for any full quarterly period will be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
interest payable for any period shorter than a full quarterly period for which
interest is computed will be computed on the basis of the actual number of
days elapsed per 30-day month. In the event that any date on which interest is
payable on the Junior Subordinated Debt Securities is not a Business Day, then
payment of the interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, then such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
The Corporation will have the right at any time, and from time to time,
during the term of the Junior Subordinated Debt Securities, to defer payments
of interest by extending the interest payment period for a period not
exceeding 20 consecutive quarters, provided that no Extension Period may
extend beyond the maturity of the Junior Subordinated Debt Securities. At the
end of any Extension Period, the Corporation will pay all interest then
accrued and unpaid together with interest thereon compounded quarterly at the
rate specified for the Junior Subordinated Debt Securities to the extent
permitted by applicable law ("Compound Interest"). During any such Extension
Period, (a) the Corporation may not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock or make any
guarantee payment with respect thereto (other than (i) repurchases,
redemptions or other acquisitions of shares of capital stock of the
Corporation in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of employees, officers, directors
or consultants, (ii) as a result of an exchange or conversion of any class or
series of the Corporation's capital stock for any other class or series of the
Corporation's capital stock, (iii) the purchase of fractional interests in
shares of the Corporation's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged or (iv) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto), and (b) the Corporation may not make any payment of
interest on or principal of (or premium, if any, on), or repay, repurchase or
redeem, any debt securities issued by the Corporation that rank pari passu
with or junior to the Junior Subordinated Debt Securities. The foregoing,
however, will not apply to any stock dividends paid by the Corporation where
the dividend stock is the same stock as that on which the dividend is being
paid or ranks pari passu with or prior to such stock. Prior to the termination
of any Extension Period, the Corporation may further defer payments of
interest by extending such Extension Period; provided, however, that such
Extension Period, including all such previous and further extensions, may not
exceed 20 consecutive quarterly interest periods (including the quarterly
interest period in which notice of such Extension Period (as described below)
is given); provided further, that no Extension Period may extend beyond the
maturity of the Junior Subordinated Debt Securities. Upon the termination of
any Extension Period and the payment of all amounts then due, the Corporation
may commence a new Extension Period, subject to the terms set forth in this
section. No interest during an Extension Period, except at the end thereof,
shall be due and payable. The Corporation has no present intention of
exercising its right to defer payments of interest by extending the interest
payment period on the Junior Subordinated Debt Securities. If the
Institutional Trustee is the sole holder of the Junior Subordinated Debt
Securities, the Corporation will give the Regular Trustees and the
Institutional Trustee notice of its selection of such Extension Period one
Business Day prior to the earlier of (i) the date distributions on the
Preferred Securities would be payable, if not for such Extension Period, or
(ii) the date the Regular Trustees are required to give notice to the New York
Stock Exchange or to holders of the Preferred Securities of the record date or
the date such distribution would be payable, if not for such Extension Period,
but in any event one Business Day prior to the record date for such payment.
The Regular Trustees will give notice of the Corporation's selection of such
Extension Period to the holders of the Preferred Securities. If the
Institutional Trustee is not the sole holder of the Junior Subordinated Debt
Securities, the Corporation will give the holders
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of the Junior Subordinated Debt Securities notice of its selection of such
Extension Period ten Business Days prior to the earlier of (i) the next
succeeding Interest Payment Date or (ii) the date upon which the Corporation
is required to give notice to the New York Stock Exchange (or other applicable
self-regulatory organization) or to holders of the Junior Subordinated Debt
Securities of the record or payment date of such related interest payment.
INDENTURE EVENTS OF DEFAULT
If any Indenture Event of Default shall occur and be continuing, the
Institutional Trustee, as the holder of the Junior Subordinated Debt
Securities, will have the right to declare the principal of and the interest
on the Junior Subordinated Debt Securities (including any Compound Interest)
and any other amounts payable under the Indenture to be forthwith due and
payable and to enforce its other rights as a creditor with respect to the
Junior Subordinated Debt Securities. See "Description of Junior Subordinated
Debt Securities--Events of Default" in the accompanying Prospectus for a
description of the Indenture Events of Default. An Indenture Event of Default
also constitutes a Declaration Event of Default. The holders of Preferred
Securities in certain circumstances have the right to direct the Institutional
Trustee to exercise its rights as the holder of the Junior Subordinated Debt
Securities. See "Description of Preferred Securities--Declaration Events of
Default" and "--Voting Rights."
Notwithstanding the foregoing, if a Declaration Event of Default has
occurred and is continuing and such event is attributable to the failure of
the Corporation to pay interest or principal on the Junior Subordinated Debt
Securities on the date such interest or principal is otherwise payable, a
holder of Preferred Securities may institute a Direct Action for payment on or
after the respective due date specified in the Junior Subordinated Debt
Securities. The Corporation may not amend the Indenture to remove the
foregoing right to bring a Direct Action without the prior written consent of
all of the holders of Preferred Securities. Notwithstanding any payment made
to such holder of Preferred Securities by the Corporation in connection with a
Direct Action, the Corporation will remain obligated to pay the principal of
or interest on the Junior Subordinated Debt Securities held by the Trust or
the Institutional Trustee, and the Corporation will be subrogated to the
rights of the holder of such Preferred Securities with respect to payments on
the Preferred Securities to the extent of any payments made by the Corporation
to such holder in any Direct Action. The holders of Preferred Securities will
not be able to exercise directly any other remedy available to the holders of
the Junior Subordinated Debt Securities.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Preferred Securities in connection with the
involuntary or voluntary dissolution, winding-up or liquidation of the Trust
as a result of the occurrence of a Special Event, the Junior Subordinated Debt
Securities will be issued in the form of one or more global certificates (each
a "Global Security") registered in the name of the depositary or its nominee.
Except under the limited circumstances described below, Junior Subordinated
Debt Securities represented by a Global Security will not be exchangeable for,
and will not otherwise be issuable as, Junior Subordinated Debt Securities in
definitive form. The Global Securities described above may not be transferred
except by the depositary to a nominee of the depositary or by a nominee of the
depositary to the depositary or another nominee of the depositary or to a
successor depositary or its nominee.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such laws may
impair the ability to transfer beneficial interests in such a Global Security.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Junior
Subordinated Debt Securities in definitive form and will not be considered the
Holders (as defined in the Indenture) thereof for any purpose under the
Indenture, and no Global Security representing Junior Subordinated Debt
Securities shall be exchangeable, except for another Global Security of like
denomination and tenor to be registered in the name of the depositary or its
nominee or to a successor depositary or its nominee. Accordingly, each
Beneficial Owner must rely on the procedures of the depositary or
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if such person is not a Participant, on the procedures of the Participant
through which such person owns its interest to exercise any rights of a holder
under the Indenture.
THE DEPOSITARY
If Junior Subordinated Debt Securities are distributed to holders of
Preferred Securities in liquidation of such holders' interests in the Trust,
DTC will act as securities depositary for the Junior Subordinated Debt
Securities. For a description of DTC and the specific terms of the depositary
arrangements, see "Description of the Preferred Securities--Book-Entry Only
Issuance--The Depository Trust Company." As of the date of this Prospectus
Supplement, the description therein of DTC's book-entry system and DTC's
practices as they relate to purchases, transfers, notices and payments with
respect to the Preferred Securities apply in all material respects to any debt
obligations represented by one or more Global Securities held by DTC. The
Corporation may appoint a successor to DTC or any successor depositary in the
event DTC or such successor depositary is unable or unwilling to continue as a
depositary for the Global Securities.
None of the Corporation, the Trust, the Indenture Trustee, any paying agent
and any other agent of the Corporation or the Indenture Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global
Security for such Junior Subordinated Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
DISCONTINUANCE OF THE DEPOSITARY'S SERVICES
A Global Security will be exchangeable for Junior Subordinated Debt
Securities registered in the names of persons other than the depositary or its
nominee only if (i) the depositary notifies the Corporation that it is
unwilling or unable to continue as a depositary for such Global Security and
no successor depositary has been appointed, (ii) the depositary, at any time,
ceases to be a clearing agency registered under the Exchange Act at which time
the depositary is required to be so registered to act as such depositary and
no successor depositary have been appointed, (iii) the Corporation, in its
sole discretion, determines that such Global Security shall be so exchangeable
or (iv) there has occurred an Indenture Event of Default with respect to such
Junior Subordinated Debt Securities. Any Global Security that is exchangeable
pursuant to the preceding sentence will be exchangeable for Junior
Subordinated Debt Securities registered in such names as the depositary may
direct. It is expected that such instructions will be based upon directions
received by the depositary from its Participants with respect to ownership of
beneficial interests in such Global Security.
MISCELLANEOUS
The Indenture will provide that the Corporation will pay all fees and
expenses related to (i) the offering of the Trust Securities and the Junior
Subordinated Debt Securities, (ii) the organization, maintenance and
dissolution of the Trust, (iii) the retention of the Trustees and (iv) the
enforcement by the Institutional Trustee of the rights of the holders of the
Preferred Securities.
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DESCRIPTION OF GUARANTEE
Set forth below is a summary of information concerning the Guarantee that
will be executed and delivered by the Corporation for the benefit of the
holders of Preferred Securities. The Guarantee will be qualified as an
indenture under the Trust Indenture Act. The Guarantee Trustee will act as
indenture trustee under the Guarantee (the "Guarantee Trustee"). The terms of
the Guarantee will be those set forth in the Guarantee and those made part of
the Guarantee by the Trust Indenture Act. This description supplements the
description of the general terms and provisions of the Guarantee set forth in
the accompanying Prospectus under the caption "Description of Guarantees." The
summary does not purport to be complete and is subject in all respects to the
provisions of, and is qualified in its entirety by reference to, the form of
Guarantee, which is filed as an exhibit to the Registration Statement of which
this Prospectus Supplement forms a part, and the Trust Indenture Act. The
Guarantee will be held by the Guarantee Trustee for the benefit of the holders
of the Preferred Securities.
GENERAL
Pursuant to and to the extent set forth in the Guarantee, the Corporation
will irrevocably and unconditionally agree to pay in full to the holders of
the Preferred Securities (except to the extent paid by the Trust), as and when
due, regardless of any defense, right of set-off or counterclaim that the
Trust may have or assert, the following payments (the "Guarantee Payments"),
without duplication: (i) any accrued and unpaid distributions that are
required to be paid on the Preferred Securities, to the extent the Trust has
funds available therefor, and (ii) the redemption price of $25 per Preferred
Security, plus all accrued and unpaid distributions (the "Redemption Price"),
to the extent the Trust has funds available therefor, with respect to any
Preferred Securities called for redemption by the Trust, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Trust
(other than in connection with the distribution of Junior Subordinated Debt
Securities to the holders of Preferred Securities or the redemption of all of
the Preferred Securities) the lesser of (a) the aggregate of the liquidation
amount and all accrued and unpaid distributions on the Preferred Securities to
the date of payment or (b) the amount of assets of the Trust remaining for
distribution to holders of the Preferred Securities in liquidation of the
Trust. The Corporation's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Corporation to the
holders of Preferred Securities or by causing the Trust to pay such amounts to
such holders.
The Guarantee will be a guarantee on a subordinated basis with respect to
the Preferred Securities from the time of issuance of the Preferred Securities
but will not apply to any payment of distributions or Redemption Price, or to
payments upon the dissolution, winding-up or termination of the Trust, except
to the extent the Trust shall have funds available therefor. If the
Corporation does not make payments on the Junior Subordinated Debt Securities,
the Trust will not pay distributions on the Preferred Securities and will not
have funds available for that purpose. See "Description of Junior Subordinated
Debt Securities." The Guarantee, when taken together with the Corporation's
obligations under the Junior Subordinated Debt Securities, the Indenture and
the Declaration, including its obligations to pay costs, expenses, debts and
liabilities of the Trust (other than with respect to Trust Securities), will
provide a full and unconditional guarantee on a subordinated basis by the
Corporation of payments due on the Preferred Securities.
CERTAIN COVENANTS OF THE CORPORATION
In the Guarantee, the Corporation will covenant that, so long as any
Preferred Securities remain outstanding, if there shall have occurred any
event that would constitute an Event of Default under such Guarantee or the
Declaration, then (a) the Corporation may not declare or pay any dividend on,
make any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock or make any
guarantee payment with respect thereto (other than (i) repurchases,
redemptions or other acquisitions of shares of capital stock of the
Corporation in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of employees, officers, directors
or consultants, (ii) as a result of an exchange or conversion of any class or
series of the Corporation's capital stock for any other class or series of the
Corporation's capital stock, (iii) the purchase of fractional interests in
shares of the Corporation's capital
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stock pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged or (iv) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption
or repurchase of any such rights pursuant thereto), and (b) the Corporation
may not make any payment of interest on, or principal of (or premium, if any,
on), or repay, repurchase or redeem, any debt securities issued by the
Corporation that rank pari passu with or junior to the Junior Subordinated
Debt Securities. The Guarantee, however, will except from the foregoing any
stock dividends paid by the Corporation where the dividend stock is the same
stock as that on which the dividend is being paid or ranks pari passu with or
junior to such stock.
MODIFICATION OF THE GUARANTEE; ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required),
the Guarantee may be amended only with the prior approval of the holders of
not less than a majority in aggregate liquidation amount of the outstanding
Preferred Securities. All guarantees and agreements contained in the Guarantee
shall bind the successors, assignees, receivers, trustees and representatives
of the Corporation and shall inure to the benefit of the holders of the
Preferred Securities then outstanding.
EVENTS OF DEFAULT
An Event of Default under the Guarantee will occur upon the failure of the
Corporation to perform any of its payment or other obligations thereunder. The
holders of a majority in aggregate liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee in respect of
the Guarantee or to direct the exercise of any trust or power conferred upon
the Guarantee Trustee under the Guarantee. If the Guarantee Trustee fails to
enforce the Guarantee Trustee's rights under the Guarantee, any holder of
related Preferred Securities may directly institute a legal proceeding against
the Corporation to enforce the Guarantee Trustee's rights under the Guarantee
without first instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity. A holder of Preferred Securities may
also directly institute a legal proceeding against the Corporation to enforce
such holder's right to receive payment under the Guarantee without first (i)
directing the Guarantee Trustee to enforce the terms of the Guarantee or (ii)
instituting a legal proceeding against the Trust or any other person or
entity.
The Corporation will be required to provide annually to the Guarantee
Trustee a statement as to the performance by the Corporation of certain of its
obligations under the Guarantee and as to any default in such performance.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default with respect to
the Guarantee, undertakes to perform only such duties as are specifically set
forth in the Guarantee and, after default with respect to the Guarantee, shall
exercise the same degree of care as a prudent individual would exercise in the
conduct of his or her own affairs. Subject to such provision, the Guarantee
Trustee is under no obligation to exercise any of the powers vested in it by
the Guarantee at the request of any holder of Preferred Securities unless it
is offered reasonable indemnity against the costs, expenses and liabilities
that might be incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate as to the Preferred Securities upon full
payment of the Redemption Price of all Preferred Securities, upon distribution
of the Junior Subordinated Debt Securities to the holders of the Preferred
Securities or upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Trust. The Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any holder
of Preferred Securities must restore payment of any sums paid under the
Preferred Securities or the Guarantee.
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STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of the Corporation and
will rank (i) subordinate and junior in right of payment to all other
liabilities of the Corporation, (ii) pari passu with the most senior preferred
or preference stock now or hereafter issued by the Corporation and with any
guarantee now or hereafter entered into by the Corporation in respect of any
preferred or preference stock of any subsidiary of the Corporation and (iii)
senior to the Corporation's common stock. The terms of the Preferred
Securities provide that each holder of Preferred Securities by acceptance
thereof agrees to the subordination provisions and other terms of the
Guarantee.
The Guarantee will constitute a guarantee of payment and not of collection
(that is, the guaranteed party may institute a legal proceeding directly
against the guarantor to enforce its rights under the Guarantee without
instituting a legal proceeding against any other person or entity).
GOVERNING LAW
The Guarantee will be governed by, and construed in accordance with, the
internal laws of the State of New York.
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EFFECT OF OBLIGATIONS UNDER THE
JUNIOR SUBORDINATED DEBT SECURITIES AND THE GUARANTEE
As set forth in the Declaration, the sole purpose of the Trust is to issue
the Trust Securities evidencing undivided beneficial interests in the assets
of the Trust, and to invest the proceeds from such issuance and sale in the
Junior Subordinated Debt Securities.
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debt Securities, such payments will be sufficient to cover
distributions and payments due on the Trust Securities because of the
following factors: (i) the aggregate principal amount of Junior Subordinated
Debt Securities will be equal to the sum of the aggregate stated liquidation
amount of the Trust Securities; (ii) the interest rate and the interest and
other payment dates on the Junior Subordinated Debt Securities will match the
distribution rate and distribution and other payment dates for the Preferred
Securities; (iii) pursuant to the Indenture, the Corporation will pay, and the
Trust will not be obligated to pay, directly or indirectly, all costs,
expenses, debt and obligations of the Trust other than with respect to the
Trust Securities; and (iv) the Declaration further provides that the Trustees
will not cause or permit the Trust to, among other things, engage in any
activity that is not consistent with the purposes of the Trust.
Payments of distributions (to the extent funds therefor are available) and
other payments due on the Preferred Securities (to the extent funds therefor
are available) are guaranteed by the Corporation as and to the extent set
forth under "Description of Guarantees" in the accompanying Prospectus. If the
Corporation does not make payments on the Junior Subordinated Debt Securities
purchased by the Trust, it is expected that the Trust will not have sufficient
funds to pay distributions on the Preferred Securities. The Guarantee is a
guarantee on a subordinated basis with respect to the Preferred Securities
from the time of its issuance but does not apply to any payment of
distributions unless and until the Trust has sufficient funds for the payment
of such distributions.
The Guarantee covers the payment of distributions and other payments on the
Preferred Securities only if and to the extent that the Corporation has made a
payment of interest or principal on the Junior Subordinated Debt Securities
held by the Trust as its sole asset. The Guarantee, when taken together with
the Corporation's obligations under the Junior Subordinated Debt Securities
and the Indenture and its obligations under the Declaration, including its
obligations to pay costs, expenses, debts and liabilities of the Trust (other
than with respect to the Trust Securities), will provide a full and
unconditional guarantee on a subordinated basis of distributions, redemption
payments and liquidation payments on the Preferred Securities.
If the Corporation fails to make interest or principal payments on the
Junior Subordinated Debt Securities when due (taking account of any Extension
Period), the Declaration provides a mechanism whereby the holders of the
Preferred Securities, using the procedures described in "Description of the
Preferred Securities--Book Entry Only Issuance--The Depository Trust Company"
and "--Voting Rights," may direct the Institutional Trustee to enforce its
rights under the Junior Subordinated Debt Securities. If the Institutional
Trustee fails to enforce its rights under the Junior Subordinated Debt
Securities, any holder of Preferred Securities may directly institute a legal
proceeding against the Corporation to enforce the Institutional Trustee's
rights under the Junior Subordinated Debt Securities without first instituting
any legal proceeding against the Institutional Trustee or any other person or
entity. If a Declaration Event of Default has occurred and is continuing and
such event is attributable to the failure of the Corporation to pay interest
or principal on the Junior Subordinated Debt Securities on the date such
interest or principal is otherwise payable (or in the case of redemption, on
the redemption date), then a holder of Preferred Securities may also institute
a Direct Action for payment on or after the respective due date specified in
the Junior Subordinated Debt Securities without first (i) directing the
Institutional Trustee to enforce the terms of the Junior Subordinated Debt
Securities or (ii) instituting a legal proceeding against the Corporation to
enforce the Institutional Trustee's rights under the Junior Subordinated Debt
Securities. In connection with such Direct Action, the Corporation will be
subrogated to the rights of such holder of Preferred Securities under the
Declaration to the extent of any payment made by the Corporation to such
holder of Preferred Securities in such Direct Action. Consequently, the
Corporation will be entitled to
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payment of amounts that a holder of Preferred Securities receives in respect
of an unpaid distribution that resulted in the bringing of a Direct Action to
the extent that such holder receives or has already received full payment with
respect to such unpaid distribution from the Trust. The Corporation, under the
Guarantee, acknowledges that the Guarantee Trustee shall enforce the Guarantee
on behalf of the holders of the Preferred Securities. If the Corporation fails
to make payments under the Guarantee, the Guarantee provides a mechanism
whereby the holders of the Preferred Securities may direct the Guarantee
Trustee to enforce its rights thereunder. If the Guarantee Trustee fails to
enforce the Guarantee, any holder of Preferred Securities may directly
institute a legal proceeding against the Corporation to enforce the Guarantee
Trustee's rights under the Guarantee without first instituting a legal
proceeding against the Trust, the Guarantee Trustee, or any other person or
entity. A holder of Preferred Securities may also directly institute a legal
proceeding against the Corporation to enforce such holder's right to receive
payment under the Guarantee without first (i) directing the Guarantee Trustee
to enforce the terms of the Guarantee or (ii) instituting a legal proceeding
against the Trust or any other person or entity.
The Corporation and the Trust believe that the above mechanisms and
obligations, taken together, are equivalent to a full and unconditional
guarantee by the Corporation on a subordinated basis of payments due on the
Preferred Securities. See "Description of Guarantee--General."
UNITED STATES FEDERAL INCOME TAXATION
GENERAL
The following is a summary of the material United States federal income tax
consequences of the purchase, ownership and disposition of Preferred
Securities. Unless otherwise stated, this summary deals only with Preferred
Securities held as capital assets by holders who purchase the Preferred
Securities upon original issuance. It does not deal with special classes of
holders such as banks, thrifts, real estate investment trusts, regulated
investment companies, insurance companies, dealers in securities or
currencies, tax-exempt investors, persons that have a functional currency
other than the U.S. Dollar or persons that will hold the Preferred Securities
as a position in a "straddle," as part of a "synthetic security" or "hedge,"
or as part of a "conversion transaction" or other integrated investment.
Further, it does not include any description of any alternative minimum tax
consequences or the tax laws of any state or local government or of any
foreign government that may be applicable to the Preferred Securities. This
summary is based on the Internal Revenue Code of 1986, as amended (the
"Code"), Treasury regulations thereunder and administrative and judicial
interpretations thereof, as of the date hereof, all of which are subject to
change, possibly on a retroactive basis.
In the opinion of Sullivan & Cromwell, the Trustee will not be classified as
an association taxable as a corporation for United States federal income tax
purposes. Each holder of Preferred Securities will be treated as owning an
undivided beneficial interest in the Junior Subordinated Debt Securities.
Accordingly, each U.S. holder will be required to include in its gross income
its share of the interest income accrued with respect to the Junior
Subordinated Debt Securities whether or not actually distributed to the
holders of the Preferred Securities.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under recently issued Treasury regulations applicable to debt instruments
issued on or after August 13, 1996 (the "Regulations"), a "remote" contingency
that stated interest will not be timely paid will be ignored in determining
whether a debt instrument is issued with original issue discount ("OID"). The
Corporation believes that the likelihood of its exercising its option to defer
payments is remote. Based on the foregoing, the Corporation believes that the
Junior Subordinated Debt Securities will not be considered to be issued with
OID at the time of their original issuance and, accordingly, a holder of the
Preferred Securities should include in gross income such holder's allocable
share of interest on the Junior Subordinated Debt Securities in accordance
with such holder's method of tax accounting.
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Under the Regulations, if the Corporation exercised its option to defer any
payment of interest, the Junior Subordinated Debt Securities would at that
time be treated as issued with OID, and all stated interest on the Junior
Subordinated Debt Securities would thereafter be treated as OID as long as the
Junior Subordinated Debt Securities remained outstanding. In such event, all
of a holder's taxable interest income with respect to the Junior Subordinated
Debt Securities would be accounted for as OID on an economic accrual basis
regardless of such holder's method of tax accounting, and actual distributions
of stated interest would not be reported as taxable income. Consequently, a
holder of Preferred Securities would be required to include in gross income
OID even though the Corporation would not make any actual cash payments during
an Extension Period.
The Regulations have not been addressed in any rulings or other
interpretations by the Internal Revenue Service (the "IRS"), and it is
possible that the IRS could take a position contrary to the interpretation
herein.
Because income on the Preferred Securities will constitute interest or OID,
corporate holders of Preferred Securities will not be entitled to a dividends-
received deduction with respect to any income recognized with respect to the
Preferred Securities.
RECEIPT OF JUNIOR SUBORDINATED DEBT SECURITIES OR CASH UPON LIQUIDATION OF THE
TRUST
Under certain circumstances, as described under "Description of the
Preferred Securities--Special Event Redemption or Distribution," Junior
Subordinated Debt Securities may be distributed to holders in exchange for the
Preferred Securities upon the liquidation of the Trust. Under current law,
such a distribution, for United States federal income tax purposes, would be
treated as a non-taxable event to each holder, and each holder would receive
an aggregate tax basis in the Junior Subordinated Debt Securities equal to
such holder's aggregate tax basis in its Preferred Securities. A holder's
holding period in the Junior Subordinated Debt Securities received in
liquidation of the Trust would include the period during which the Preferred
Securities were held by such holder.
Under certain circumstances described herein (see "Description of the
Preferred Securities"), the Junior Subordinated Debt Securities may be
redeemed by the Corporation for cash and the proceeds of such redemption
distributed by the Trust to holders in redemption of their Preferred
Securities. Under current law, such a redemption would, for United States
federal income tax purposes, constitute a taxable disposition of the redeemed
Preferred Securities, and a holder could recognize gain or loss as if it sold
such redeemed Preferred Securities for cash. See "United States Federal Income
Taxation--Sales of Preferred Securities."
SALES OF PREFERRED SECURITIES
A holder that sells Preferred Securities will be considered to have disposed
of all or part of its pro rata share of the Junior Subordinated Debt
Securities and will recognize gain or loss equal to the difference between its
adjusted tax basis in the Preferred Securities and the amount realized on the
sale of such Preferred Securities. Assuming that the Corporation does not
exercise its option to defer payment of interest on the Junior Subordinated
Debt Securities, and the Preferred Securities are not considered issued with
OID, a holder's adjusted tax basis in the Preferred Securities generally will
be its initial purchase price. If the Junior Subordinated Debt Securities are
deemed to be issued with OID as a result of the Corporation's deferral of any
interest payment, a holder's tax basis in the Preferred Securities generally
will be its initial purchase price, increased by OID previously includible in
such holder's gross income to the date of disposition and decreased by
distributions or other payments received on the Preferred Securities since and
including the date of the first Extension Period. Such gain or loss generally
will be a capital gain or loss (except to the extent of any accrued interest
with respect to such holder's pro rata share of the Junior Subordinated Debt
Securities required to be included in income) and generally will be a long-
term capital gain or loss if the Preferred Securities have been held for more
than one year.
Should the Corporation exercise its option to defer any payment of interest
on the Junior Subordinated Debt Securities, the Preferred Securities may trade
at a price that does not accurately reflect the value of accrued but
S-40
<PAGE>
unpaid interest with respect to the underlying Junior Subordinated Debt
Securities. In the event of such a deferral, a holder who disposes of its
Preferred Securities between record dates for payments of distributions
thereon will be required to include in income as ordinary income accrued but
unpaid interest on the Junior Subordinated Debt Securities to the date of
disposition and to add such amount to its adjusted tax basis in its pro rata
share of the underlying Junior Subordinated Debt Securities deemed disposed
of. To the extent the selling price is less than the holder's adjusted tax
basis, such holder will recognize a capital loss. Subject to certain limited
exceptions, capital losses cannot be applied to offset ordinary income for
United States federal income tax purposes.
PROPOSED TAX LEGISLATION
On March 19, 1996, President Clinton proposed the Proposed Legislation that
would, among other things, generally deny corporate issuers a deduction for
interest in respect of certain debt obligations, such as the Junior
Subordinated Debt Securities, issued on or after December 7, 1995. On March
29, 1996, Senate Finance Committee Chairman William V. Roth, Jr. and House
Ways and Means Committee Chairman Bill Archer issued the Joint Statement
indicating their intent that the Proposed Legislation, if adopted by either of
the tax-writing committees of Congress, would have an effective date that is
no earlier than the date of "appropriate Congressional action." Based upon the
Joint Statement, it is expected that if the Proposed Legislation were to be
enacted, such legislation would not apply to the Junior Subordinated Debt
Securities. There can be no assurances, however, that the effective date
guidance contained in the Joint Statement will be incorporated into the
Proposed Legislation, if enacted, or that other legislation enacted after the
date hereof will not otherwise adversely affect the ability of the Corporation
to deduct the interest payable on the Junior Subordinated Debt Securities.
Accordingly, there can be no assurance that a Tax Event will not occur. See
"Description of the Preferred Securities--Special Event Redemption or
Distribution."
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
corporation, individual, partnership, estate or trust that is, as to the
United States, a foreign corporation, a non-resident alien individual, a
foreign partnership, or a non-resident fiduciary of a foreign estate or trust.
Under present United States federal income tax law: (i) payments by the
Trust or any of its paying agents to any holder of a Preferred Security who or
which is a United States Alien Holder will not be subject to United States
federal withholding tax; provided, that, (a) the beneficial owner of the
Preferred Security does not actually or constructively own 10% or more of the
total combined voting power of all classes of stock of the Corporation
entitled to vote, (b) the beneficial owner of the Preferred Security is not a
controlled foreign corporation that is related to the Corporation through
stock ownership, and (c) either (A) the beneficial owner of the Preferred
Security certifies to the Trust or its agent, under penalties of perjury, that
it is not a United States holder and provides its name and address or (B) a
securities clearing organization, bank or other financial institution that
holds customers' securities in the ordinary course of its trade or business (a
"Financial Institution"), and holds the Preferred Security in such capacity,
certifies to the Trust or its agent, under penalties of perjury, that such
statement has been received from the beneficial owner by it or by a Financial
Institution holding such security for the beneficial owner and furnishes the
Trust or its agent with a copy thereof; and (ii) a United States Alien Holder
of a Preferred Security will not be subject to United States federal
withholding tax on any gain realized upon the sale or other disposition of a
Preferred Security.
Recently proposed Internal Revenue Service Treasury regulations (the
"Proposed Regulations") would provide alternative methods for satisfying the
certification requirement described in clause (i)(c) above. The Proposed
Regulations also would require, in the case of Preferred Securities held by a
foreign partnership, that (x) the certification described in clause (i)(c)
above be provided by the partners rather than by the foreign partnership and
(y) the partnership provide certain information, including a United States
taxpayer identification number. A look-through rule would apply in the case of
tiered partnerships. The Proposed Regulations are proposed to be effective for
payments made after December 31, 1997. There can be no assurance that the
Proposed Regulations will be adopted or as to the provisions that they will
include if and when adopted in temporary or final form.
S-41
<PAGE>
INFORMATION REPORTING TO HOLDERS
Generally, income on the Preferred Securities will be reported to holders on
Forms 1099, which forms should be mailed to holders of Preferred Securities by
January 31 following each calendar year.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of, the Preferred Securities
may be subject to a "backup" withholding tax of 31% unless the holder complies
with certain identification requirements. Any withheld amounts will be allowed
as a credit against the holder's United States federal income tax, provided
the required information is provided to the IRS on a timely basis.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED
FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A
HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH
RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF THE PREFERRED SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER
STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES
IN UNITED STATES FEDERAL OR OTHER TAX LAWS.
S-42
<PAGE>
UNDERWRITING
Under the terms and subject to the conditions of the Underwriting Agreement
dated , 1996 (the "Underwriting Agreement"), each Underwriter named
below (the "Underwriters") has severally agreed to purchase from the Trust,
and the Trust has agreed to sell to such Underwriter, the number of Preferred
Securities set forth opposite the name of such Underwriter below.
<TABLE>
<CAPTION>
NUMBER OF
PREFERRED
UNDERWRITERS SECURITIES
------------ ----------
<S> <C>
---------
Total........................................................
=========
</TABLE>
The Underwriters are obligated to take and pay for the total number of
Preferred Securities offered hereby if any such Preferred Securities are
purchased. In the event of default by any Underwriter, the Underwriting
Agreement provides that, in certain circumstances, purchase commitments of the
non-defaulting Underwriters may be increased or the Underwriting Agreement may
be terminated.
The Underwriting Agreement provides that the Trust and the Corporation will
indemnify the several Underwriters against certain liabilities, including
liabilities under the Securities Act of 1933, as amended, and to make certain
contributions in respect thereof.
In view of the fact that the proceeds of the sale of the Preferred
Securities will ultimately be used to purchase the Junior Subordinated Debt
Securities of the Corporation, the Underwriting Agreement provides that the
Corporation will pay as compensation to the Underwriters $. per Preferred
Security for the accounts of the several Underwriters; provided that such
compensation for sales of 10,000 or more Preferred Securities to a single
purchaser will be $. per Preferred Security.
The Underwriters propose to offer the Preferred Securities, in part,
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and to certain dealers at a price
that represents a concession not in excess of $. , provided that such
concession for sales of 10,000 or more Preferred Securities to a single person
will not be in excess of $. per Preferred Security. The Underwriters may
allow, and such dealers may reallow, a concession not in excess of $. per
Preferred Security to certain brokers and dealers. After the Preferred
Securities are released for sale to the public, the offering price and other
selling terms may from time to time be varied by the Representatives.
Application will be made to list the Preferred Securities on the New York
Stock Exchange. Trading of the Preferred Securities on the New York Stock
Exchange is expected to commence within a 30-day period after the date of this
Prospectus Supplement.
This Prospectus Supplement and the accompanying Prospectus may also be
delivered in connection with sales of the Preferred Securities by affiliates
of the Corporation that have acquired such Preferred Securities.
Underwriters and certain of their associates and affiliates may be customers
of (including borrowers from), engage in transactions with, and/or perform
services for the Corporation and its subsidiaries (including Bankers) in the
ordinary course of business.
BT Securities Corporation is a wholly owned subsidiary of the Corporation.
The offering of Preferred Securities will comply with the requirements of Rule
2720 of the Conduct Rules of the National Association of Securities Dealers,
Inc. ("NASD") regarding an NASD member firm's underwriting securities of an
affiliate.
S-43
<PAGE>
VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the Preferred
Securities, the enforceability of the Trust Agreement and the formation of the
Trust will be passed upon by Richards, Layton & Finger, special Delaware
counsel to the Corporation and the Trust. The validity of the Guarantee and
the Junior Subordinated Debt Securities will be passed upon for the
Corporation by Sullivan & Cromwell, New York, New York, and for the
Underwriters by White & Case, New York, New York. Sullivan & Cromwell and
White & Case will rely on the opinion of Richards, Layton & Finger as to
matters of Delaware law. Certain matters relating to United States federal
income tax considerations will be passed upon for the Corporation by Sullivan
& Cromwell. White & Case performs services for the Corporation and its
subsidiaries from time to time.
S-44
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE.THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED OCTOBER 29, 1996
PROSPECTUS
BANKERS TRUST NEW YORK CORPORATION
[LOGO]
$500,000,000
JUNIOR SUBORDINATED DEBT SECURITIES
-----------
BT PREFERRED CAPITAL TRUST I
BT PREFERRED CAPITAL TRUST II
BT PREFERRED CAPITAL TRUST III
BT PREFERRED CAPITAL TRUST IV
TRUST PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
BANKERS TRUST NEW YORK CORPORATION
-----------
Bankers Trust New York Corporation, a New York corporation (the
"Corporation"), may offer, from time to time, its unsecured junior subordinated
debt securities (the "Junior Subordinated Debt Securities"), consisting of
debentures, notes or other evidences of indebtedness, in one or more series and
in amounts, at prices and on terms to be determined at or prior to the time of
any such offering. The Corporation's obligations under the Junior Subordinated
Debt Securities will be subordinate and junior in right of payment to certain
other indebtedness of the Corporation as described herein or as may be
described in an accompanying Prospectus Supplement (the "Prospectus
Supplement").
BT Preferred Capital Trust I, BT Preferred Capital Trust II, BT Preferred
Capital Trust III and BT Preferred Capital Trust IV, each a statutory business
trust formed under the laws of the State of Delaware (each, a "Trust"), may
offer, from time to time, trust preferred securities, representing undivided
beneficial interests in the assets of the respective Trust ("Preferred
Securities") with the payment of periodic cash distributions ("distributions")
and payments on liquidation, redemption or otherwise of such Preferred
Securities guaranteed (each, a "Guarantee") on a subordinated basis by the
Corporation to the extent described herein. See "Description of Guarantees."
The Company's obligations under the Guarantees will rank pari passu with the
most senior preferred or preference stock now or hereafter issued by the
Corporation. See "Description of Guarantees--Status of Guarantees." Junior
Subordinated Debt Securities may be issued and sold from time to time in one or
more series by the Corporation to a Trust, or a trustee of such trust, in
connection with the investment of the proceeds from the offering of Preferred
Securities and Common Securities (as defined herein) of such Trust, but the
Corporation does not intend to issue and sell the Junior Subordinated Debt
Securities directly to other purchasers, including the general public. The
Junior Subordinated Debt Securities purchased by a Trust may be subsequently
distributed pro rata to holders of Preferred Securities and Common Securities
in connection with the dissolution of such Trust upon the occurrence of certain
events as may be described in an accompanying Prospectus Supplement. The
Guarantee, when taken together with the Corporation's obligations under the
Junior Subordinated Debt Securities, the Indenture and the Declaration (as
defined herein), including its obligations to pay costs, expenses, debts and
liabilities of such Trust (other than with respect to the Preferred Securities
and the Common Securities), will provide a full and unconditional guarantee on
a subordinated basis by the Corporation of payments due on Preferred
Securities.
(Continued on next page)
-----------
THESE SECURITIES WILL NOT BE DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND WILL
NOT BE INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is , 1996
<PAGE>
(continued from previous page)
Specific terms of the Junior Subordinated Debt Securities of any series and
the Preferred Securities of any Trust in respect of which this Prospectus is
being delivered (the "Offered Securities") will be set forth in a Prospectus
Supplement with respect to such Offered Securities, which will describe,
without limitation and where applicable, the following: (i) in the case of
Junior Subordinated Debt Securities, the specific designation, aggregate
principal amount, denomination, maturity, premium, if any, redemption or
sinking fund provisions, if any, interest rate (which may be fixed or
variable), if any, the time and method of calculating interest payments, if
any, dates on which premium, if any, and interest, if any, will be payable,
the right of the Corporation, if any, to defer payment of interest on the
Junior Subordinated Debt Securities and the maximum length of such deferral
period, the initial public offering price, subordination terms, and any
listing on a securities exchange and other specific terms of the offering of
Junior Subordinated Debt Securities, and (ii) in the case of Preferred
Securities, the designation, number of securities, liquidation amount per
security, initial public offering price, any listing on a securities exchange,
distribution rate (or method of calculation thereof), dates on which
distributions shall be payable and dates from which distributions shall
accrue, any voting rights, any redemption or sinking fund provisions, any
other rights, preferences, privileges, limitations or restrictions relating to
the Preferred Securities and the terms upon which the proceeds of the sale of
the Preferred Securities will be used to purchase a specific series of Junior
Subordinated Debt Securities. If so specified in the applicable Prospectus
Supplement, Offered Securities may be issued in whole or in part in the form
of one or more temporary or permanent global securities.
If, as set forth in the applicable Prospectus Supplement, the Corporation
has the right to defer payments of interest on a series of Junior Subordinated
Debt Securities by extending the interest payment period of such series of
Junior Subordinated Debt Securities (each, an "Extension Period"),
distributions on the corresponding series of Preferred Securities will also be
deferred.
The Offered Securities may be offered in amounts, at prices and on terms to
be determined at the time of offering, except that the aggregate initial
public offering price of all Offered Securities will not exceed $500,000,000.
Any Prospectus Supplement relating to any series of Offered Securities will
contain information concerning certain United States federal income tax
considerations, if applicable, to the Offered Securities.
The Corporation or any of the Trusts may sell the Offered Securities
directly, through agents designated from time to time or through underwriters
or dealers. See "Plan of Distribution." If any agents of the Corporation, any
of the Trusts or any underwriters or dealers are involved in the sale of any
Offered Securities, the names of such agents, underwriters or dealers and any
applicable commissions and discounts will be set forth in the related
Prospectus Supplement.
Following the initial distribution of any Offered Securities, BT Securities
Corporation ("BT Securities") and other affiliates of the Corporation may
offer and sell such securities in the course of their business as broker-
dealers. BT Securities and such other affiliates may act as principal or agent
in such transactions. This Prospectus and the accompanying Prospectus
Supplement may be used by BT Securities and such other affiliates in
connection with such transactions. Such sales, if any, will be made at varying
prices related to prevailing market prices at the time of sale.
2
<PAGE>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR ANY OF THE
TRUSTS, OR ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE DELIVERY OF THIS
PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE THEREUNDER SHALL,
UNDER ANY CIRCUMSTANCE, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE CORPORATION OR ANY OF THE TRUSTS SINCE THE DATE HEREOF OR
THEREOF. THIS PROSPECTUS AND ANY RELATED PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
----------------
FOR NORTH CAROLINA INVESTORS: THE COMMISSIONER OF INSURANCE OF THE STATE OF
NORTH CAROLINA HAS NOT APPROVED OR DISAPPROVED THIS OFFERING NOR HAS SUCH
COMMISSIONER RULED UPON THE ACCURACY OR THE ADEQUACY OF THIS PROSPECTUS.
IN CONNECTION WITH THE OFFERING OF CERTAIN OF THE OFFERED SECURITIES, THE
UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN
THE MARKET PRICES OF SUCH OFFERED SECURITIES AT A LEVEL ABOVE THAT WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports and other information
concerning the Corporation can be inspected and copied at the Commission's
office at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and the
Commission's Regional Offices in New York (Seven World Trade Center, New York,
New York 10048) and Chicago (Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511). Copies of such material can also be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission also
maintains a site on the World Wide Web, the address of which is
http://www.sec.gov, that contains reports, proxy and information statements
and other information regarding issuers, such as the Corporation, that file
electronically with the Commission. In addition, such materials can be
inspected at the office of the New York Stock Exchange and the office of the
American Stock Exchange, on which certain securities of the Corporation are
listed.
The Corporation and the Trusts have filed with the Commission a Registration
Statement on Form S-3 (the "Registration Statement," which term includes all
amendments, exhibits, annexes and schedules thereto) pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Offered Securities. This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Corporation, the Trusts and the Offered
Securities, reference is made to the Registration Statement and exhibits
thereto. Statements contained in this Prospectus as to the contents of any
contract or other document are not necessarily complete, and in each instance
reference is made to the copy of such contract or document filed as an exhibit
to the Corporation's Registration Statement, each such statement being
qualified in all respects by such reference.
3
<PAGE>
No separate financial statements of the Trusts have been included or
incorporated by reference herein. The Corporation does not consider that such
financial statements would be material to holders of the Preferred Securities
because (i) all of the voting securities of the Trusts will be owned, directly
or indirectly, by the Corporation, a reporting company under the Exchange Act,
(ii) the Trusts have no independent operations but exist for the sole purpose
of issuing securities representing undivided beneficial interests in their
respective assets and investing the proceeds thereof in Junior Subordinated
Debt Securities issued by the Corporation, and (iii) the obligations of the
Trusts under the Preferred Securities are fully and unconditionally guaranteed
by the Corporation to the extent that the respective Trust has funds available
to meet such obligations. See "Description of Junior Subordinated Debt
Securities" and "Description of Guarantees."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the
following documents:
(a) The Corporation's Annual Report on Form 10-K (file number 1-5920) for
the year ended December 31, 1995, filed pursuant to Section 13 of the
Exchange Act;
(b) The Corporation's Quarterly Report on Form 10-Q (file number 1-5920)
for the quarters ended March 31 and June 30, 1996, filed pursuant to
Section 13 of the Exchange Act; and
(c) The Corporation's Current Reports on Form 8-K (file number 1-5920)
dated March 19, April 15, April 25, May 3, May 22, June 18, July 18, July
22, July 26, August 1, October 3, October 17 and October 22, 1996.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Offered Securities shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein or
in any accompanying Prospectus Supplement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Any person who receives a copy of this Prospectus may obtain without charge,
upon written or oral request, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents (unless such
exhibits are specifically incorporated by reference herein). Written requests
should be mailed to the Office of the Secretary, Bankers Trust New York
Corporation, 130 Liberty Street, New York, New York, 10006. Telephone requests
may be directed to (212) 250-2201.
4
<PAGE>
BANKERS TRUST NEW YORK CORPORATION
GENERAL
Bankers Trust New York Corporation (the "Corporation") is a bank holding
company, incorporated under the laws of the State of New York in 1965. At
September 30, 1996, the Corporation had consolidated total assets of $120.8
billion. The Corporation's principal banking subsidiary is Bankers Trust
Company ("Bankers"). Bankers, founded in 1903, is among the largest commercial
banks in New York City and the United States, based on consolidated total
assets. The Corporation concentrates its financial and managerial resources on
selected markets and services its clients by meeting their needs for
financing, advisory, processing and sophisticated risk management solutions.
The core organizational units of the Corporation are Investment Banking, Risk
Management Services, Trading & Sales, Investment Management, Client Processing
Services, Australia/New Zealand, Asia, Latin America and Corporate. Among the
institutional market segments served are corporations, banks, other financial
institutions, governments and agencies, retirement plans, not-for-profit
organizations, wealthy individuals, foundations and private companies. Bankers
originates loans and other forms of credit, accepts deposits, arranges
financings and provides numerous other commercial banking and financial
services. Bankers provides a broad range of financial advisory services to its
clients. It also engages in the proprietary trading of currencies, securities,
derivatives and commodities.
The Corporation is a legal entity separate and distinct from its
subsidiaries, including Bankers. There are various legal limitations governing
the extent to which certain of the Corporation's subsidiaries may extend
credit, pay dividends or otherwise supply funds to, or engage in transactions
with, the Corporation or certain of its other subsidiaries. The rights of the
Corporation to participate in any distribution of assets of any subsidiary
upon its dissolution, winding-up, liquidation or reorganization or otherwise
are subject to the prior claims of creditors of that subsidiary, except to the
extent that the Corporation may itself be a creditor of that subsidiary and
its claims are recognized. Claims on the Corporation's subsidiaries by
creditors other than the Corporation include long-term debt and substantial
obligations with respect to deposit liabilities, trading liabilities, federal
funds purchased, securities sold under repurchase agreements and commercial
paper, as well as short-term borrowings and accounts payable.
The Corporation's principal executive offices are located at 130 Liberty
Street, New York, New York 10006 and its telephone number is (212) 250-2500.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ -------------
1991 1992 1993 1994 1995 1995 1996
---- ---- ---- ---- ---- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Excluding Interest on Deposits.... 1.40 1.44 1.71 1.28 1.05 1.02 1.21
Including Interest on Deposits.... 1.22 1.28 1.48 1.21 1.03 1.02 1.16
</TABLE>
For purposes of computing these consolidated ratios, earnings represent
income (loss) before income taxes, cumulative effects of accounting changes
and equity in undistributed income of unconsolidated subsidiaries and
affiliates, plus fixed charges excluding capitalized interest. Fixed charges
represent all interest expense (ratios are presented both excluding and
including interest on deposits), the portion of net rental expense which is
deemed representative of the interest factor, the amortization of debt
issuance expense and capitalized interest.
CONSOLIDATED RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ -------------
1991 1992 1993 1994 1995 1995 1996
---- ---- ---- ---- ---- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Excluding Interest on Deposits.... 1.37 1.41 1.69 1.27 1.03 1.00 1.19
Including Interest on Deposits.... 1.21 1.26 1.47 1.20 1.02 1.00 1.14
</TABLE>
5
<PAGE>
For purposes of computing these consolidated ratios, earnings represent
income before income taxes, cumulative effects of accounting changes and
equity in undistributed income of unconsolidated subsidiaries and affiliates,
plus fixed charges excluding capitalized interest. Fixed charges represent all
interest expense (ratios are presented both excluding and including interest
on deposits), the portion of net rental expense which is deemed representative
of the interest factor, the amortization of debt issuance expense and
capitalized interest. Fixed charges are then combined with preferred stock
dividend requirements, adjusted to a pretax basis, on the outstanding
preferred stock.
THE TRUSTS
Each of the Trusts is a statutory business trust formed under Delaware law
pursuant to (i) a declaration of trust executed by the Corporation, as
depositor and sponsor for such trust (the "Sponsor"), and the initial trustee
of such trust dated as of October 28, 1996 and (ii) the filing of a
certificate of trust with the Secretary of State of the State of Delaware on
October 29, 1996. Each such declaration will be amended and restated in its
entirety (as so amended and restated, each a "Declaration") in substantially
in the form of the Amended and Restated Trust Agreement filed as an exhibit to
the Registration Statement of which this Prospectus forms a part. Each of the
Trusts exists for the exclusive purposes of (i) issuing the Preferred
Securities and common securities representing undivided beneficial interests
in the assets of the Trust (the "Common Securities" and, together with the
Preferred Securities, the "Trust Securities"), (ii) investing the gross
proceeds from the sale of the Trust Securities in the Junior Subordinated Debt
Securities and (iii) engaging in only those other activities necessary or
incidental thereto. All of the Common Securities will be directly or
indirectly owned by the Corporation. The Common Securities will rank pari
passu, and payments will be made thereon pro rata, with the Preferred
Securities, except that, upon an event of default under the Declaration, the
rights of the holders of the Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the Preferred Securities. The
Corporation will directly or indirectly acquire Common Securities in an
aggregate liquidation amount equal to 3% or more of the total capital of each
Trust.
Each Trust has a term of approximately 55 years but may terminate earlier,
as provided in each Declaration. Each Trust's business and affairs will be
conducted by the trustees of such Trust (the "Trustees") appointed by the
Corporation as the direct or indirect holder of all the Common Securities. The
holder of the Common Securities will be entitled to appoint, remove or replace
any of, or increase or reduce the number of, the Trustees of the Trusts. The
duties and obligations of the Trustees will be governed by the Declaration of
such Trust. Each Trust will have two Trustees (the "Regular Trustees") who are
employees or officers of or who are affiliated with the Corporation. In
addition, one Trustee of each Trust will be a financial institution that is
not affiliated with the Corporation and that has a specified minimum amount of
aggregate capital, surplus, and undivided profits of not less than
$50,000,000, which will act as property trustee and as indenture trustee for
the purposes of compliance with the provisions of Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), pursuant to the terms set forth in the
applicable Prospectus Supplement (the "Institutional Trustee"). Furthermore,
unless the Institutional Trustee maintains its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
one Trustee of each Trust will have a principal place of business or reside in
the State of Delaware (the "Delaware Trustee"). The Corporation will pay all
fees and expenses related to the Trusts and the offering of the Trust
Securities.
The office of the Institutional Trustee and Delaware Trustee for each of the
Trusts is Wilmington Trust Company. The address for each Trust is c/o the
Corporation, the Sponsor of the Trusts, at the Corporation's corporate
headquarters located at 130 Liberty Street, New York, New York 10006,
telephone (212) 250-2500.
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USE OF PROCEEDS
The proceeds from the sale of any Preferred Securities offered hereby will
be invested by the applicable Trust in Junior Subordinated Debt Securities.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporation will use the net proceeds from the sale of the Junior Subordinated
Debt Securities to the Trusts for general corporate purposes, which may
include investments in, or extensions of credit to, the Corporation's
subsidiaries and the repurchase and/or redemption of preferred stock of the
Corporation. Except as described in the applicable Prospectus Supplement,
specific allocations of the proceeds to such purposes have not been made,
although management will have determined at the date of the applicable
Prospectus Supplement that funds should be borrowed at that time. The precise
amount and timing of such investments in, or extensions of credit to,
subsidiaries will depend on the subsidiaries' funding requirements and the
availability of other funds.
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DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Junior Subordinated Debt Securities to which any Prospectus Supplement may
relate. The particular terms of the Junior Subordinated Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Junior Subordinated Debt Securities so
offered will be described in the Prospectus Supplement relating to such Junior
Subordinated Debt Securities.
The Junior Subordinated Debt Securities may be issued, from time to time, in
one or more series, under an Indenture, dated as of , 1996 (the
"Indenture"), between the Corporation and Wilmington Trust Company, as trustee
(the "Indenture Trustee"), the form of which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part.
The following summary of certain provisions of the Junior Subordinated Debt
Securities and the Indenture does not purport to be complete and is subject
to, and is qualified in its entirety by express reference to, all of the
provisions of the Indenture, including the definitions therein of certain
terms. All article and section references appearing herein are to articles and
sections of the Indenture, unless otherwise indicated, and capitalized terms
that are not otherwise defined in this Prospectus are used with the meanings
specified in the Indenture.
General. The Junior Subordinated Debt Securities will be direct, unsecured
obligations of the Corporation. The Indenture does not limit the amount of
Junior Subordinated Debt Securities that may be issued thereunder, and
provides that Junior Subordinated Debt Securities may be issued thereunder in
series up to the aggregate principal amount which may be authorized from time
to time by the Board of Directors of the Corporation. (Section 3.1)
Reference is made to the Prospectus Supplement that accompanies this
Prospectus for the following terms and other information with respect to the
Junior Subordinated Debt Securities being offered thereby: (i) the
designation, priority, aggregate principal amount and authorized
denominations; (ii) the percentage of their principal amount at which such
Junior Subordinated Debt Securities will be issued; (iii) the date on which
such Junior Subordinated Debt Securities will mature and any provisions for
extending or shortening such date; (iv) the rate per annum at which such
Junior Subordinated Debt Securities will bear interest or the method of
determination of such rate; (v) the dates on which such interest will be
payable; (vi) the rights, if any, to defer payments of interest on the Junior
Subordinated Debt Securities by extending the interest payment period, and the
maximum duration of such extensions; (vii) the place or places where payments
on such Junior Subordinated Debt Securities will be made; (viii) any
redemption terms or sinking fund provisions; (ix) the terms of subordination
of Junior Subordinated Debt Securities; (x) whether Junior Subordinated Debt
Securities issued in fully registered form will be represented by either a
global security delivered to a depositary and recorded in a book-entry system
maintained by such depositary or by a certificate delivered to the Holder;
(xi) the restrictions, if any, applicable to the exchange of Junior
Subordinated Debt Securities of a series of one form for another of such
series and to the offer, sale and delivery of the Junior Subordinated Debt
Securities; (xii) whether and under what circumstances the Corporation will
pay additional amounts in the event of certain developments with respect to
United States withholding tax or information reporting laws; or (xiii) other
specific terms.
Unless otherwise specified in the applicable Prospectus Supplement, Junior
Subordinated Debt Securities will be issued in fully registered form without
coupons, will be exchangeable for other Junior Subordinated Debt Securities of
the same series, registered in the same name, for a like aggregate principal
amount in authorized denominations, and will be transferable at any time or
from time to time at the Corporate Trust Office of the Indenture Trustee or at
any other office or agency of the Corporation maintained for that purpose. No
charge will be made to the Holder for any such exchange or transfer except for
any tax or governmental charge incidental thereto.
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Unless otherwise described in the Prospectus Supplement accompanying this
Prospectus, there are no covenants or provisions contained in the Indenture
that afford the Holders of the Junior Subordinated Debt Securities protection
in the event of a highly leveraged transaction involving the Corporation.
Consolidation, Merger and Sale of Assets. The Indenture provides that the
Corporation will not consolidate with or merge into any other corporation or
convey, transfer or lease its assets substantially as an entirety unless (a)
the successor is a corporation organized in the United States and expressly
assumes the due and punctual payment of the principal of (and premium, if any)
and interest on all Junior Subordinated Debt Securities issued thereunder and
the performance of every other covenant of the Indenture on the part of the
Corporation and (b) immediately thereafter no Event of Default and no event
that, after notice or lapse of time, or both, would become an Event of
Default, has happened and is continuing. Upon any such consolidation, merger,
conveyance or transfer, the successor corporation will succeed to and be
substituted for the Corporation under the Indenture and thereafter, except in
the case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under the Indenture and the Junior Subordinated Debt
Securities. (Article Eight)
Events of Default. The Indenture provides that the following are Events of
Default thereunder with respect to any series of the Junior Subordinated Debt
Securities: (a) default in the payment of the principal of (or premium, if
any, on) any Junior Subordinated Debt Security of such series at its maturity;
(b) default in making a sinking fund payment, if any, when and as the same
shall be due and payable by the terms of the Junior Subordinated Debt
Securities of such series; (c) default for 30 days in the payment of any
installment of interest on any Junior Subordinated Debt Security of such
series; (d) default for 90 days after written notice in the performance of any
other covenant in respect of the Junior Subordinated Debt Securities of such
series contained in the Indenture; (e) certain events of bankruptcy,
insolvency or reorganization, or court appointment of a receiver, liquidator
or trustee of the Corporation; (f) any other Event of Default provided in the
applicable resolution of the Board of Directors or supplemental indenture
under which the Junior Subordinated Debt Securities are issued; and (g) if
Junior Subordinated Debt Securities of a series are issued and sold to a Trust
or a trustee of such trust in connection with the issuance of Trust Securities
by such Trust, such Trust has voluntarily or involuntarily dissolved, wound-up
its business or otherwise terminated its existence, except in connection with
(i) the distribution of Junior Subordinated Debt Securities to holders of
Trust Securities in liquidation or redemption of their interests in such Trust
upon a Special Event, (ii) the redemption of all of the outstanding Trust
Securities of such Trust or (iii) certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Trust. (Section
5.1) The Indenture Trustee may withhold notice to the Holders of the Junior
Subordinated Debt Securities of any default with respect thereto (except in
the payment of principal, premium or interest) if it considers such
withholding to be in the interests of such Holders. (Section 6.2)
If an Event of Default with respect to any series of the Junior Subordinated
Debt Securities has occurred and is continuing, the Indenture Trustee or the
Holders of 25% in aggregate principal amount of the Junior Subordinated Debt
Securities of such series may declare the principal of all the Junior
Subordinated Debt Securities to be due and payable immediately. (Section 5.2)
The Indenture contains a provision entitling the Indenture Trustee to be
indemnified by the Holders before proceeding to exercise any right or power
under the Indenture at the request of any of the Holders. (Section 6.3) The
Indenture provides that the Holders of a majority in principal amount of the
outstanding Junior Subordinated Debt Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available
to the Indenture Trustee, or exercising any trust or power conferred upon the
Indenture Trustee, with respect to the Junior Subordinated Debt Securities of
such series. (Section 5.12) The right of a Holder to institute a proceeding
with respect to the Indenture is subject to certain conditions precedent
including notice and indemnity to the Indenture Trustee, but the Holder has an
absolute right to receipt of principal, premium, if any, and interest on the
Junior Subordinated Debt Securities at the Stated Maturity (or, in the case of
redemption, on the Redemption Date) or to institute suit for the enforcement
thereof. (Sections 5.7 and 5.8)
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The Holders of not less than a majority in principal amount of the
Outstanding Junior Subordinated Debt Securities of any series may on behalf of
the Holders of all the Junior Subordinated Debt Securities of such series
waive any past defaults except (a) a default in payment of the principal of
(or premium, if any) or interest on any Junior Subordinated Debt Security and
(b) a default in respect of a covenant or provision of the Indenture that
cannot be amended or modified without the consent of the Holder of each
affected Junior Subordinated Debt Security; provided, however, that if the
Junior Subordinated Debt Securities are held by a Trust or a trustee of such
trust, any such waiver or modification to such waiver will not be effective
until the holders of a majority in liquidation preference of Trust Securities
of the applicable Trust have consented to such waiver or modification to such
waiver; provided further, that if the consent of the Holder of each
outstanding Junior Subordinated Debt Security is required, such waiver will
not be effective until each holder of the Trust Securities of the applicable
Trust has consented to such waiver. (Section 5.13)
The Indenture requires the Corporation to furnish to the Indenture Trustee
an annual statement as to defaults, if any, by the Corporation under the
Indenture. (Section 10.4)
Modifications and Amendments. Modifications and amendments to the Indenture
may be made by the Corporation and the Indenture Trustee with the consent of
the Holders of a majority in principal amount of the Junior Subordinated Debt
Securities at the time outstanding of each series which is affected thereby,
provided that no such modification or amendment may, without the consent of
the Holder of each Junior Subordinated Debt Security affected thereby: (i)
modify the terms of payment of principal, premium, if any, or interest or
modify the subordination provisions in a manner adverse to the Holders; or
(ii) reduce the percentage of Holders of Junior Subordinated Debt Securities
necessary to modify or amend the Indenture or waive compliance by the
Corporation with any covenant or past default or (iii) remove or impair the
rights of any holder to bring a Direct Action under certain circumstances,
provided, further, that if the Junior Subordinated Debt Securities of such
series are held by a Trust or a trustee of such Trust, such supplemental
indenture will not be effective until the holders of a majority in liquidation
amount of Trust Securities of the applicable Trust have consented to such
supplemental indenture; provided further, that if the consent of the Holder of
each outstanding Junior Subordinated Debt Security is required, such
supplemental indenture will not be effective until each holder of the Trust
Securities of the applicable Trust has consented to such supplemental
indenture. (Section 9.2)
Discharge and Defeasance. The Corporation may discharge all of its
obligations (except those set forth below) to holders of any series of Junior
Subordinated Debt Securities issued under the Indenture, which Junior
Subordinated Debt Securities have not already been delivered to the Indenture
Trustee for cancellation and which either have become due and payable or are
by their terms due and payable within one year (or are to be called for
redemption within one year), by depositing with the Indenture Trustee an
amount certified to be sufficient to pay when due the principal of and
premium, if any, and interest on all outstanding Junior Subordinated Debt
Securities of such series and to make any mandatory sinking fund payments
thereon when due. (Section 4.1)
If so specified in the applicable Prospectus Supplement with respect to the
Junior Subordinated Debt Securities of a series, the Corporation, at its
option, (i) will be discharged from any and all obligations in respect of the
Junior Subordinated Debt Securities of such series (except for certain
obligations to pay all expenses of the applicable Trust, to register the
transfer or exchange of Junior Subordinated Debt Securities of such series, to
replace mutilated, defaced, destroyed, lost or stolen Junior Subordinated Debt
Securities of such series, and to maintain Paying Agents and hold monies for
payment in trust), or (ii) need not comply with certain covenants specified in
the applicable Prospectus Supplement with respect to the Junior Subordinated
Debt Securities of that series, and the occurrence of an event described in
clause (d) under "Events of Default" above with respect to any defeased
covenant and clause (f) of the "Events of Default" above shall no longer be an
Event of Default if, in either case, the Corporation deposits with the
Indenture Trustee, in trust, money or U.S. Government Obligations that through
the payment of interest thereon and principal thereof in accordance with their
terms will provide money in an amount sufficient to pay all the principal of
(and premium, if any) and any interest on the Junior Subordinated Debt
Securities of such series on the dates such payments are due (which may
include one or more redemption dates designated by the Corporation) in
accordance with the terms of such Junior Subordinated Debt Securities. Such a
trust may only be established, if, among other things, the Corporation has
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delivered an Opinion of Counsel, which, in the case of a discharge pursuant to
clause (i), must be based upon a ruling or administrative pronouncement of the
Internal Revenue Service, to the effect that the Holders of the Junior
Subordinated Debt Securities will not recognize gain or loss for federal
income tax purposes as a result of such deposit or defeasance and will be
subject to federal income tax in the same manner as if such defeasance had not
occurred. (Sections 4.2, 4.3 and 4.4) If the Corporation omits to comply with
its remaining obligations under the Indenture after a defeasance of the
Indenture with respect to the Junior Subordinated Debt Securities of any
series as described under clause (ii) above and the Junior Subordinated Debt
Securities of such series are declared due and payable because of the
occurrence of any Event of Default, the amount of money and U.S. Government
Obligations on deposit with the Indenture Trustee may be insufficient to pay
amounts due on the Junior Subordinated Debt Securities of such series at the
time of the acceleration resulting from such Event of Default. However, the
Corporation will remain liable in respect of such payments.
Concerning the Indenture Trustee. The Indenture Trustee has [list
relationships between the Corporation and the Indenture Trustee]. The
Corporation and certain of its subsidiaries also maintain bank accounts,
borrow money and have other customary commercial banking or investment banking
relationships with the Indenture Trustee in the ordinary course of business.
Global Securities. The Indenture provides that the registered Junior
Subordinated Debt Securities of a series may be issued in the form of one or
more fully registered Global Securities (a "Registered Global Security") that
will be deposited with a depositary (a "Depositary") or with a nominee for a
Depositary identified in the Prospectus Supplement relating to such series and
registered in the name of the Depositary or a nominee thereof. (Section 3.1)
In such case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding registered Junior Subordinated Debt Securities
to be represented by such Registered Global Security or Securities. Unless and
until it is exchanged in whole for Junior Subordinated Debt Securities in
definitive registered form, a Registered Global Security may not be
transferred except as a whole by the Depositary for such Registered Global
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor of such Depositary or a nominee of such
successor.
The specific terms of the depositary arrangement with respect to any portion
of a series of Junior Subordinated Debt Securities to be represented by a
Registered Global Security will be described in the Prospectus Supplement
relating to such series.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the
Depositary for such Registered Global Security will credit, on its book-entry
registration and transfer system, the participants' accounts with the
respective principal amounts of the Debt Securities represented by such
Registered Global Security beneficially owned by such participants. The
accounts to be credited will be designated by any dealers, underwriters or
agents participating in the distribution of such Junior Subordinated Debt
Securities. Ownership of beneficial interests in such Registered Global
Security will be shown on, and the transfer of such ownership interests will
be effected only through, records maintained by the Depositary for such
Registered Global Security (with respect to interests of participants) and on
the records of participants (with respect to interests of persons holding
through participants). The laws of some states may require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to own,
transfer or pledge beneficial interests in Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder
of the Junior Subordinated Debt Securities represented by such Registered
Global Security for
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all purposes under the Indenture. Except as set forth below, owners of
beneficial interests in a Registered Global Security will not be entitled to
have the Junior Subordinated Debt Securities represented by such Registered
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of such Junior Subordinated Debt Securities in
definitive form and will not be considered the owners or holders thereof under
the Indenture. Accordingly, each person owning a beneficial interest in a
Registered Global Security must rely on the procedures of the Depositary for
such Registered Global Security and, if such person is not a participant, on
the procedures of the participant through which such person owns its interest,
to exercise any rights of a holder under the Indenture. The Corporation
understands that under existing industry practices, if the Corporation
requests any action of holders or if an owner of a beneficial interest in a
Registered Global Security desires to give or take any action which a holder
is entitled to give or take under the Indenture, the Depositary for such
Registered Global Security would authorize the participants holding the
relevant beneficial interests to give or take such action, and such
participants would authorize beneficial owners owning through such
participants to give or take such action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on Junior Subordinated
Debt Securities represented by a Registered Global Security registered in the
name of a Depositary or its nominee will be made to such Depositary or its
nominee, as the case may be, as the registered owner of such Registered Global
Security. None of the Corporation, the Indenture Trustee or any other agent of
the Corporation or agent of the Indenture Trustee will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in such Registered Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Corporation expects that the Depositary for any Junior Subordinated Debt
Securities represented by a Registered Global Security, upon receipt of any
payment of principal, premium or interest in respect of such Registered Global
Security, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in such
Registered Global Security as shown on the records of such Depositary. The
Corporation also expects that payments by participants to owners of beneficial
interests in such Registered Global Security held through such participants
will be governed by standing customer instructions and customary practices, as
is now the case with the securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such participants.
If the Depositary for any Junior Subordinated Debt Securities represented by
a Registered Global Security is at any time unwilling or unable to continue as
Depositary or ceases to be a clearing agency registered under the Exchange
Act, and a successor Depositary registered as a clearing agency under the
Exchange Act is not appointed by the Corporation within 90 days, the
Corporation will issue such Junior Subordinated Debt Securities in definitive
form in exchange for such Registered Global Security. In addition, the
Corporation may at any time and in its sole discretion determine not to have
any of the Junior Subordinated Debt Securities of a series represented by one
or more Registered Global Securities and, in such event, will issue Junior
Subordinated Debt Securities of such series in definitive form in exchange for
all of the Registered Global Security or Securities representing such Junior
Subordinated Debt Securities. Any Junior Subordinated Debt Securities issued
in definitive form in exchange for a Registered Global Security will be
registered in such name or names as the Depositary shall instruct the relevant
Trustee. It is expected that such instructions will be based upon directions
received by the Depositary from participants with respect to ownership of
beneficial interests in such Registered Global Security.
The Junior Subordinated Debt Securities of a series may also be issued in
the form of one or more bearer global Securities (a "Bearer Global Security")
that will be deposited with a common depositary for Euro-clear and Cedel Bank,
societe anonyme, or with a nominee for such depositary identified in the
Prospectus Supplement relating to such series. The specific terms and
procedures, including the specific terms of the depositary arrangement, with
respect to any portion of a series of Junior Subordinated Debt Securities to
be represented by a Bearer Global Security will be described in the Prospectus
Supplement relating to such series.
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Ranking of Junior Subordinated Debt Securities. The Junior Subordinated Debt
Securities will be subordinated and junior in right of payment to certain
indebtedness of the Corporation to the extent set forth in the Prospectus
Supplement that will accompany this Prospectus.
Certain Provisions Applicable to the Trusts. If Junior Subordinated Debt
Securities of a series are issued and sold to a Trust or a trustee of such
Trust in connection with the issuance of Trust Securities by such Trust, such
Junior Subordinated Debt Securities subsequently may be distributed pro rata
to the holders of such Trust Securities in connection with the dissolution of
such Trust upon the occurrence of certain events described in the Prospectus
Supplement relating to such Trust Securities. Only one series of Junior
Subordinated Debt Securities will be issued to a Trust, or a trustee of such
Trust, in connection with the issuance of Trust Securities by such Trust. If
Junior Subordinated Debt Securities are issued to a Trust or a trustee of such
Trust in connection with the issuance of Trust Securities by such Trust and
(i) there has occurred and is continuing an Event of Default, (ii) the
Corporation is in default with respect to its payment of any obligations under
the related Guarantee, or (iii) the Corporation has given notice of its
election to defer payments of interest on such Junior Subordinated Debt
Securities by extending the interest payment period as provided in the
Indenture and such period, or any extension thereof, shall be continuing, then
(a) the Corporation may not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock or make any
guarantee payment with respect thereto (other than (i) repurchases,
redemptions or other acquisitions of shares of capital stock of the
Corporation in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of employees, officers, directors
or consultants, (ii) as a result of an exchange or conversion of any class or
series of the Corporation's capital stock for any other class or series of the
Corporation's capital stock, (iii) the purchase of fractional interests in
shares of the Corporation's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged or (iv) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto), and (b) the Corporation may not make any payment of
interest on or principal of (or premium, if any, on), or repay, repurchase or
redeem any debt securities issued by the Corporation which rank pari passu
with or junior to such Junior Subordinated Debt Securities. The foregoing,
however, will not apply to any stock dividends paid by the Corporation where
the dividend stock is the same stock as that on which the dividend is being
paid or is pari passu with or junior to such stock.
If Junior Subordinated Debt Securities are issued to a Trust or a trustee of
such Trust in connection with the issuance of Trust Securities of such Trust,
for so long as such Trust Securities remain outstanding, the Corporation will
covenant (i) to directly or indirectly maintain 100% ownership of the Common
Securities of such Trust; provided, however, that any permitted successor of
the Corporation under the Indenture may succeed to the Corporation's ownership
of such Common Securities, (ii) to not voluntarily dissolve, wind-up or
terminate such Trust, except in connection with a distribution of Junior
Subordinated Debt Securities upon a Special Event and in connection with
certain mergers, consolidations or amalgamations permitted by the Declaration
of the applicable Trust, (iii) to timely perform its duties as Sponsor of the
applicable Trust and (iv) to use its reasonable efforts to cause such Trust
(a) to remain a statutory business trust, except in connection with the
distribution of Junior Subordinated Debt Securities to the holders of Trust
Securities in liquidation of such Trust, the redemption of all of the Trust
Securities of such Trust, or certain mergers, consolidations or amalgamations,
each as permitted by the Declaration of such Trust, and (b) to otherwise
continue to be classified as a grantor trust for United States federal income
tax purposes. (Section 10.5)
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DESCRIPTION OF PREFERRED SECURITIES
The following description sets forth certain general terms and provisions of
the Preferred Securities to which any Prospectus Supplement may relate. The
particular terms of the Preferred Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply
to the Preferred Securities so offered will be described in the Prospectus
Supplement relating to such Preferred Securities. The description does not
purport to be complete and is subject in all respects to the provisions of,
and is qualified in its entirety by reference to, the forms of Declarations,
which are filed as exhibits to the Registration Statement of which this
Prospectus forms a part.
Each Trust may issue only one series of Preferred Securities having terms
described in the Prospectus Supplement relating to such series. The
Declaration of each Trust authorizes the Regular Trustees of such Trust to
issue on behalf of such Trust one series of Preferred Securities. Each
Declaration will be qualified as an indenture under the Trust Indenture Act.
The Preferred Securities will have such terms, including distributions,
redemption, voting, liquidation rights and such other preferred, deferred or
other special rights or such restrictions as shall be set forth in the
Declaration of the Trust issuing such Preferred Securities or made part of
such Declaration by the Trust Indenture Act. Reference is made to the
Prospectus Supplement relating to the Preferred Securities of a Trust for
specific terms, including (i) the distinctive designation of such Preferred
Securities, (ii) the number of Preferred Securities issued by such Trust,
(iii) the annual distribution rate (or method of determining such rate) for
Preferred Securities issued by such Trust and the date or dates upon which
such distributions shall be payable, (iv) whether distributions on Preferred
Securities issued by such Trust will be cumulative, and, in the case of
Preferred Securities having such cumulative distribution rights, the date or
dates or method of determining the date or dates from which distributions on
Preferred Securities issued by such Trust will be cumulative, (v) the amount
or amounts that will be paid out of the assets of such Trust to the holders of
Preferred Securities of such Trust upon voluntary or involuntary dissolution,
winding-up or termination of such Trust, (vi) the right or obligation, if any,
of such Trust to purchase or redeem Preferred Securities issued by such Trust
and the price or prices at which, the period or periods within which and the
terms and conditions upon which Preferred Securities issued by such Trust may
be purchased or redeemed, in whole or in part, pursuant to such right or
obligation, (vii) the voting rights, if any, of Preferred Securities issued by
such Trust in addition to those required by law, including the number of votes
per Preferred Security and any requirement for the approval by the holders of
Preferred Securities, as a condition to specified action or amendments to the
Declaration of such Trust, and (viii) any other relevant rights, preferences,
privileges, limitations or restrictions of Preferred Securities issued by such
Trust consistent with the Declaration of such Trust or with applicable law.
All Preferred Securities offered hereby will be guaranteed by the Corporation
to the extent set forth below under "Description of Guarantees." Certain
United States federal income tax considerations applicable to any series of
Preferred Securities will be described in the Prospectus Supplement relating
to such series.
In connection with the issuance of a series of Preferred Securities, each
Trust will issue one series of Common Securities. The Declaration of each
Trust authorizes the Regular Trustees of such Trust to issue on behalf of such
Trust one series of Common Securities having such terms including
distributions, redemption, voting, liquidation rights or such restrictions as
shall be set forth therein. The terms of the Common Securities issued by such
Trust will be substantially identical to the terms of the Preferred Securities
issued by such Trust and the Common Securities will rank pari passu, and
payments will be made thereon pro rata, with such Preferred Securities except
that, upon an Event of Default under the Declaration of such Trust, the rights
of the holders of such Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of such Preferred Securities. Except
in certain limited circumstances, the Common Securities of a Trust will also
carry the right to vote and to appoint, remove or replace any of the Trustees
of such Trust. All of the Common Securities of a Trust will be directly or
indirectly owned by the Corporation.
The Institutional Trustee will hold title to the Junior Subordinated Debt
Securities for the benefit of the holders of the Trust Securities and, in its
capacity as the holder, the Institutional Trustee will have the power to
exercise all rights, powers and privileges under the indenture pursuant to
which the Junior Subordinated Debt
14
<PAGE>
Securities are issued. In addition, the Institutional Trustee will maintain
exclusive control of a segregated non- interest bearing bank account (the
"Property Account") to hold all payments made in respect of the Junior
Subordinated Debt Securities for the benefit of the holders of the Trust
Securities. The Institutional Trustee will make payments of distributions and
payments on liquidation, redemption and otherwise to the holders of the Trust
Securities out of funds from the Property Account. The Guarantee Trustee will
hold the Guarantee for the benefit of the holders of the Preferred Securities.
The holder of all the Common Securities will have the right, subject to
certain restrictions contained in the Declaration, to appoint, remove or
replace any Trustee and to increase or decrease the number of Trustees. The
Corporation will pay all fees and expenses related to the Trust and the
offering of the Trust Securities.
If an Event of Default with respect to a Declaration of any Trust occurs and
is continuing, then the holders of Preferred Securities of such Trust would
rely on the enforcement by the Institutional Trustee of its rights as a holder
of the Junior Subordinated Debt Securities constituting the property of such
Trust against the Corporation. The holders of a majority in liquidation amount
of such Preferred Securities will have the right to direct the time, method,
and place of conducting any proceeding for any remedy available to the
Institutional Trustee or to direct the exercise of any trust or power
conferred upon the Institutional Trustee under such Declaration, including the
right to direct the Institutional Trustee to exercise the remedies available
to it as a holder of the Junior Subordinated Debt Securities. If the
Institutional Trustee fails to enforce its rights under the Junior
Subordinated Debt Securities, any holder of such Preferred Securities may
directly institute a legal proceeding against the Corporation to enforce the
Institutional Trustee's rights under the Junior Subordinated Debt Securities
without first instituting any legal proceeding against the Institutional
Trustee or any other person or entity. If an Event of Default with respect to
the Declaration of any Trust has occurred and is continuing and such event is
attributable to the failure of the Corporation to pay interest or principal on
the Junior Subordinated Debt Securities on the date such interest or principal
is otherwise payable (or in the case of redemption, on the redemption date),
then a holder of Preferred Securities of such Trust may also directly
institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the Junior Subordinated Debt Securities having a
principal amount equal to the aggregate liquidation amount of such Preferred
Securities of such holder (a "Direct Action") on or after the respective due
date specified in the Junior Subordinated Debt Securities without first (i)
directing the Institutional Trustee to enforce the terms of the Junior
Subordinated Debt Securities or (ii) instituting a legal proceeding against
the Corporation to enforce the Institutional Trustee's rights under the Junior
Subordinated Debt Securities. In connection with such Direct Action, the
Corporation will be subrogated to the rights of such holder of such Preferred
Securities to receive payment under such Declaration to the extent of any
payment made by the Corporation to such holder of such Preferred Securities in
such Direct Action. Consequently, the Corporation will be entitled to payment
of amounts that a holder of Preferred Securities receives in respect of an
unpaid distribution that resulted in the bringing of a Direct Action to the
extent that such holder receives or has already received full payment with
respect to such unpaid distribution from a Trust. The holders of Preferred
Securities of a Trust will not be able to exercise directly any other remedy
available to the holders of the Junior Subordinated Debt Securities.
DESCRIPTION OF GUARANTEES
Set forth below is a summary of information concerning the Guarantees that
will be executed and delivered by the Corporation for the benefit of the
holders, from time to time, of Preferred Securities. Each Guarantee will be
qualified as an indenture under the Trust Indenture Act. Wilmington Trust
Company will act as indenture trustee under each Guarantee (the "Guarantee
Trustee"). The terms of each Guarantee will be those set forth in such
Guarantee and those made part of such Guarantee by the Trust Indenture Act.
The summary does not purport to be complete and is subject in all respects to
the provisions of, and is qualified in its entirety by reference to, the form
of Guarantee, which is filed as an exhibit to the Registration Statement of
which this Prospectus forms a part, and the Trust Indenture Act. Each
Guarantee will be held by the Guarantee Trustee for the benefit of the holders
of the Preferred Securities of a Trust.
15
<PAGE>
GENERAL
Pursuant to and to the extent set forth in each Guarantee, the Corporation
will irrevocably and unconditionally agree to pay in full to the holders of
the Preferred Securities issued by a Trust (except to the extent paid by such
Trust), as and when due, regardless of any defense, right of set-off or
counterclaim that such Trust may have or assert, the following payments (the
"Guarantee Payments"), without duplication: (i) any accrued and unpaid
distributions that are required to be paid on such Preferred Securities, to
the extent such Trust has funds available therefor, and (ii) the redemption
price of $25 per Preferred Security, plus all accrued and unpaid distributions
(the "Redemption Price"), to the extent such Trust has funds available
therefor, with respect to any Preferred Securities called for redemption by
such Trust, and (iii) upon a voluntary or involuntary dissolution, winding-up
or termination of such Trust (other than in connection with the distribution
of Junior Subordinated Debt Securities to the holders of Preferred Securities
or the redemption of all of the Preferred Securities) the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid distributions
on such Preferred Securities to the date of payment or (b) the amount of
assets of such Trust remaining for distribution to holders of such Preferred
Securities in liquidation of such Trust. The Corporation's obligation to make
a Guarantee Payment may be satisfied by direct payment of the required amounts
by the Corporation to the holders of Preferred Securities or by causing such
Trust to pay such amounts to such holders.
Each Guarantee will be a guarantee on a subordinated basis with respect to
the Preferred Securities issued by a Trust from the time of issuance of such
Preferred Securities but will not apply to any payment of distributions or
Redemption Price, or to payments upon the dissolution, winding-up or
termination of such Trust, except to the extent such Trust shall have funds
available therefor. If the Corporation does not make interest payments on the
Junior Subordinated Debt Securities purchased by a Trust, such Trust will not
pay distributions on the Preferred Securities issued by such Trust and will
not have funds available therefor. See "Description of Junior Subordinated
Debt Securities." The Guarantee, when taken together with the Corporation's
obligations under the Junior Subordinated Debt Securities, the Indenture and
the Declaration of any Trust, including its obligations to pay costs,
expenses, debts and liabilities of such Trust (other than with respect to
Trust Securities) will provide a full and unconditional guarantee on a
subordinated basis by the Corporation of payments due on the Preferred
Securities issued by such Trust.
CERTAIN COVENANTS OF THE CORPORATION
In each Guarantee, the Corporation will covenant that, so long as any
Preferred Securities issued by a Trust remain outstanding, if there shall have
occurred any event that would constitute an Event of Default under such
Guarantee or the Declaration of such Trust, then (a) the Corporation will not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
of its capital stock or make any guarantee payment with respect thereto (other
than (i) repurchases, redemptions or other acquisitions of shares of capital
stock of the Corporation in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of employees,
officers, directors or consultants, (ii) as a result of an exchange or
conversion of any class or series of the Corporation's capital stock for any
other class or series of the Corporation's capital stock, (iii) the purchase
of fractional interests in shares of the Corporation's capital stock pursuant
to the conversion or exchange provisions of such capital stock or the security
being converted or exchanged or (iv) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto) and (b) the Corporation shall
not make any payment of interest on, or principal of (or premium, if any, on),
or repay, repurchase or redeem, any debt securities issued by the Corporation
that rank pari passu with or junior to such Junior Subordinated Debt
Securities. Each Guarantee, however, will except from the foregoing any stock
dividends paid by the Corporation where the dividend stock is the same stock
as that on which the dividend is being paid or is pari passu with or junior to
such stock.
MODIFICATION OF THE GUARANTEES; ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights
of holders of Preferred Securities to which a Guarantee relates (in which case
no vote will be required), each Guarantee may be amended only
16
<PAGE>
with the prior approval of the holders of not less than a majority in
aggregate liquidation amount of the outstanding related Preferred Securities
issued by the related Trust. The manner of obtaining any such approval of
holders of such Preferred Securities will be set forth in the applicable
Prospectus Supplement. All guarantees and agreements contained in a Guarantee
will bind the successors, assignees, receivers, trustees and representatives
of the Corporation and will inure to the benefit of the holders of the related
Preferred Securities of the applicable Trust then outstanding.
EVENTS OF DEFAULT
An Event of Default under a Guarantee will occur upon the failure of the
Corporation to perform any of its payment or other obligations thereunder. The
holders of a majority in aggregate liquidation amount of the Preferred
Securities to which a Guarantee relates will have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of the Guarantee or to direct the exercise
of any trust or power conferred upon the Guarantee Trustee under the
Guarantee. If the Guarantee Trustee fails to enforce the Guarantee Trustee's
rights under a Guarantee, any holder of related Preferred Securities may
directly institute a legal proceeding against the Corporation to enforce the
Guarantee Trustee's rights under such Guarantee without first instituting a
legal proceeding against the Trust that issued such Preferred Securities, the
Guarantee Trustee or any other person or entity. A holder of Preferred
Securities may also directly institute a legal proceeding against the
Corporation to enforce such holder's right to receive payment under such
Guarantee without first (i) directing the Guarantee Trustee to enforce the
terms of the Guarantee or (ii) instituting a legal proceeding against the
Trust that issued such Preferred Securities or any other person or entity.
The Corporation will be required to provide annually to the Guarantee
Trustee a statement as to the performance by the Corporation of certain of its
obligations under each of the Guarantees and as to any default in such
performance.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default with respect to
a Guarantee, undertakes to perform only such duties as are specifically set
forth in the Guarantee and, after default with respect to a Guarantee, will
exercise the same degree of care as a prudent individual would exercise in the
conduct of his or her own affairs. Subject to such provision, the Guarantee
Trustee is under no obligation to exercise any of the powers vested in it by a
Guarantee at the request of any holder of Preferred Securities to which such
Guarantee relates unless it is offered reasonable indemnity against the costs,
expenses and liabilities that might be incurred thereby.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate as to the Preferred Securities issued by a
Trust upon full payment of the Redemption Price of all Preferred Securities of
such Trust, upon distribution of the Junior Subordinated Debt Securities held
by such Trust to the holders of the Preferred Securities of such Trust or upon
full payment of the amounts payable in accordance with the Declaration of such
Trust upon liquidation of such Trust. Each Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any holder
of related Preferred Securities issued by a Trust must restore payment of any
sums paid under such Preferred Securities or such Guarantee.
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the Corporation
and will rank (i) subordinate and junior in right of payment to all other
liabilities of the Corporation, (ii) pari passu with the most senior preferred
or preference stock now or hereafter issued by the Corporation and with any
guarantee now or hereafter entered into by the Corporation in respect of any
preferred or preference stock of any subsidiary of the Corporation and (iii)
senior to the Corporation's common stock. The terms of the Preferred
Securities provide that each holder of
17
<PAGE>
Preferred Securities issued by a Trust by acceptance thereof agrees to the
subordination provisions and other terms of the applicable Guarantee.
Each Guarantee will constitute a guarantee of payment and not of collection
(that is, the guaranteed party may institute a legal proceeding directly
against the guarantor to enforce its rights under a Guarantee without
instituting a legal proceeding against any other person or entity).
GOVERNING LAW
The Guarantees will be governed by, and construed in accordance with, the
internal laws of the State of New York.
PLAN OF DISTRIBUTION
Any Trust may sell Preferred Securities in one or more of the following ways
from time to time: (i) to or through underwriters or dealers, (ii) directly to
purchasers, or (iii) through agents. Any such underwriters, dealers or agents
may include BT Securities Corporation ("BT Securities"), an affiliate of the
Corporation. The Prospectus Supplement with respect to any Offered Securities
will set forth (i) the terms of the offering of the Offered Securities,
including the name or names of any underwriters, dealers or agents, (ii) the
purchase price of the Offered Securities and the proceeds to the Corporation
or a Trust, as the case may be, from such sale, (iii) any underwriting
discounts and commissions or agency fees and other items constituting
underwriters' or agents' compensation, (iv) any initial public offering
prices, (v) any discounts or concessions allowed or reallowed or paid to
dealers and (vi) any securities exchange on which such Offered Securities may
be listed. Any initial public offering price, discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The Offered Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. The underwriter or
underwriters with respect to a particular underwritten offering of Offered
Securities will be named in the Prospectus Supplement relating to such
offering and, if an underwriting syndicate is used, the managing underwriter
or underwriters will be set forth on the cover of such Prospectus Supplement.
Unless otherwise set forth in the Prospectus Supplement relating thereto, the
obligations of the underwriters to purchase the Offered Securities will be
subject to certain conditions precedent, and the underwriters will be
obligated to purchase all the Offered Securities if any are purchased.
If dealers are utilized in the sale of Offered Securities, the Corporation
or the applicable Trust will sell such Offered Securities to the dealers as
principals. The dealers may then resell such Offered Securities to the public
at varying prices to be determined by such dealers at the time of resale. The
names of the dealers and the terms of the transaction will be set forth in the
Prospectus Supplement relating thereto.
Any series of Preferred Securities may be sold from time to time either
directly by a Trust or by its designated agents. Any agent involved in the
offer or sale of the Offered Securities in respect to which this Prospectus is
delivered will be named, and any commissions payable by the Corporation or the
applicable Trust to such agent will be set forth in the Prospectus Supplement
relating thereto. Unless otherwise indicated in the Prospectus Supplement, any
such agent will be acting on a best efforts basis for the period of its
appointment.
The Preferred Securities may be sold directly by a Trust to institutional
investors or others who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any resale thereof. The terms of any such
sales will be described in the Prospectus Supplement relating thereto.
If so indicated in the Prospectus Supplement, the Corporation or the
applicable Trust will authorize agents, underwriters or dealers to solicit
offers from certain types of institutions to purchase Offered Securities from
the
18
<PAGE>
Corporation or such Trust at the public offering price set forth in the
Prospectus Supplement pursuant to delayed delivery contracts (the "Contracts")
providing for payment and delivery on a specified date or dates in the future.
Such Contracts will not be subject to any conditions except (a) the purchase
by an institution of the Offered Securities covered by its Contracts shall not
at the time of delivery be prohibited under the laws of any jurisdiction in
the United States to which such institution is subject and (b) if the Offered
Securities are being sold to underwriters, the Corporation shall have sold to
such underwriters the total principal amount of the Offered Securities less
the principal amount thereof covered by the Contracts. The Prospectus
Supplement will set forth the commission payable for solicitation of such
Contracts.
BT Securities, which is a member of the National Association of Securities
Dealers, Inc. (the "NASD"), a subsidiary of the Corporation and an affiliate
of the Trusts, may participate in the distributions of the Offered Securities.
The offer and sale of the Offered Securities will conform with the
requirements set forth in Rule 2720 of the Conduct Rules of the NASD.
Any market making activities of BT Securities with respect to the Offered
Securities will be conducted in compliance with the requirements of Schedule
E. Following the initial distribution of any Offered Securities, BT Securities
and other affiliates of the Corporation may offer and sell such Offered
Securities in the course of their business as broker-dealers. BT Securities
and such other affiliates may act as principals or agents in such
transactions. This Prospectus may be used by BT Securities and such other
affiliates in connection with such transactions. Such sales, if any, will be
made at varying prices relating to prevailing market prices at the time of
sale or otherwise. Neither BT Securities nor such other affiliates are
obligated to make a market in any of the Offered Securities and may
discontinue any market-making activities at any time without notice.
Agents, dealers and underwriters may be entitled, under agreements with the
Corporation or a Trust, to indemnification by the Corporation or the
applicable Trust against certain civil liabilities, including liabilities
under the Securities Act, or to contribution with respect to payments that
such agents, dealers or underwriters may be required to make in respect
thereof. Agents, dealers and underwriters may be customers of, engage in
transactions with, or perform services for the Corporation or a Trust in the
ordinary course of business.
Each series of Offered Securities will be a new issue of securities and will
have no established trading market. Any underwriters to whom Offered
Securities are sold for public offering and sale may make a market in such
Offered Securities, but such underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. The Offered
Securities may or may not be listed on a national securities exchange. No
assurance can be given that there will be a market for the Offered Securities.
VALIDITY OF SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Guarantees and the Junior Subordinated Debt Securities will be
passed upon for the Corporation and the Trusts by Sullivan & Cromwell, New
York, New York, counsel to the Corporation, and for the Trusts by Richards,
Layton & Finger, special Delaware counsel to the Trusts. The validity of the
Guarantees and the Junior Subordinated Debt Securities will be passed upon for
any Underwriters by White & Case, New York, New York. Sullivan & Cromwell and
White & Case will rely on the opinion of Richards, Layton & Finger as to
matters of Delaware law. White & Case performs services for the Corporation
and its subsidiaries from time to time.
EXPERTS
The consolidated financial statements of the Corporation for the year ended
December 31, 1995, appearing in the Corporation's Annual Report on Form 10-K
for the year ended December 31, 1995, and incorporated by reference into this
Prospectus, have been audited by Ernst & Young LLP, independent auditors, as
set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm
as experts in auditing and accounting.
19
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING
PROSPECTUS, IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS
SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS, AND, IF GIVEN OR MADE, ANY SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY BANKERS TRUST NEW YORK CORPORATION, BT PREFERRED CAPITAL TRUST I OR ANY
UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY BY ANYONE IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF BANKERS TRUST NEW YORK CORPORATION OR BT
PREFERRED CAPITAL TRUST I SINCE THE DATE HEREOF.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUPPLEMENT
Summary.................................................................. S-4
Risk Factors............................................................. S-9
Bankers Trust New York Corporation....................................... S-13
Selected Financial Data and Other Information............................ S-15
Use of Proceeds.......................................................... S-16
Accounting Treatment..................................................... S-16
Capitalization........................................................... S-17
Description of Preferred Securities...................................... S-18
Description of Junior Subordinated Debt Securities....................... S-29
Description of Guarantee................................................. S-35
Effect of Obligations Under the Junior Subordinated Debt Securities and
the
Guarantee............................................................... S-38
United States Federal Income Taxation.................................... S-39
Underwriting............................................................. S-43
Validity of Securities................................................... S-44
PROSPECTUS
Available Information.................................................... 3
Incorporation of Certain Documents by Reference.......................... 4
Bankers Trust New York Corporation....................................... 5
The Trusts............................................................... 6
Use of Proceeds.......................................................... 7
Description of Junior Subordinated Debt
Securities.............................................................. 8
Description of Preferred Securities...................................... 14
Description of Guarantees................................................ 15
Plan of Distribution..................................................... 18
Validity of Securities................................................... 19
Experts.................................................................. 19
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
,000,000
TRUST PREFERRED SECURITIES
BT PREFERRED CAPITAL TRUST I
% TRUST PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
BANKERS TRUST NEW YORK CORPORATION
[LOGO]
-------
PROSPECTUS SUPPLEMENT
, 1996
(INCLUDING PROSPECTUS
DATED , 1996)
-------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting compensation, are:
<TABLE>
<S> <C>
Filing fee for registration statement........................... $151,516
Legal fees and expenses......................................... *
Accounting fees and expenses.................................... *
Blue sky fees and expenses...................................... *
Printing and engraving fees..................................... *
Trustees' fees and expenses..................................... *
Listing fees and expenses....................................... *
Rating agency fees.............................................. *
NASD Fees....................................................... *
Miscellaneous................................................... *
--------
Total....................................................... $ *
========
</TABLE>
- --------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the By-Laws of Bankers Trust New York Corporation provides as
follows:
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 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
II-1
<PAGE>
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 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 Section 5.01 and 5.03, notwithstanding any provision of the New
York Business Corporation Law to the contrary.
With certain limitations, Sections 721 through 726 of the New York Business
Corporation Law permit a corporation to indemnify a director or officer made a
party to an action (i) by a corporation or in its right in order to procure a
judgment in its favor unless he shall have breached his duties, or (ii) other
than an action by or in the right of the corporation in order to procure a
judgment in its favor if such director or officer acted in good faith and in a
manner he reasonably believed to be in or, in certain cases, not opposed to
such corporation's best interests, and additionally, in criminal actions, has
no reasonable cause to believe his conduct was unlawful.
II-2
<PAGE>
In addition, a Directors and Officer Liability and Corporation Reimbursement
Policy is maintained covering the Corporation and its directors and officers
for amounts, subject to policy limits, that the Corporation might be required
to pay by way of indemnification to its directors or officers under its By-
Laws or otherwise and for the protection of individual directors and officers
from loss for which they might not be indemnified by the Corporation.
Reference is made to the form of Underwriting Agreement filed as Exhibit 1.1
hereto for a description of certain indemnity arrangements.
Under the Amended and Restated Trust Agreements (Exhibits 4.10, 4.11, 4.12
and 4.13 to this Registration Statement), Bankers Trust New York Corporation
will agree to indemnify each of the Trustees of the Trusts and any predecessor
Trustees, and to hold such Trustees harmless, against any loss, damage,
claims, liability or expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration of
such Trust Agreements, including the costs and expenses of defense against any
claim or liability in connection with the exercise or performance of any of
their powers or duties under the Trust Agreements.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
*1.1 --Form of Underwriting Agreement.
*4.1 --Form of Indenture for Junior Subordinated Debt Securities between
Bankers Trust New York Corporation and Wilmington Trust Company, as
Indenture Trustee.
4.2 --Certificate of Trust of BT Preferred Capital Trust I.
4.3 --Declaration of Trust of BT Preferred Capital Trust I.
4.4 --Certificate of Trust of BT Preferred Capital Trust II.
4.5 --Declaration of Trust of BT Preferred Capital Trust II.
4.6 --Certificate of Trust of BT Preferred Capital Trust III.
4.7 --Declaration of Trust of BT Preferred Capital Trust III.
4.8 --Certificate of Trust of BT Preferred Capital Trust IV.
4.9 --Declaration of Trust of BT Preferred Capital Trust IV.
*4.10 --Form of Amended and Restated Declaration of Trust of BT Preferred
Capital Trust I.
*4.11 --Form of Amended and Restated Declaration of Trust of BT Preferred
Capital Trust II.
*4.12 --Form of Amended and Restated Declaration of Trust of BT Preferred
Capital Trust III.
*4.13 --Form of Amended and Restated Declaration of Trust of BT Preferred
Capital Trust IV.
*4.14 --Form of Preferred Security Certificate for BT Preferred Capital
Trust I (included as Exhibit D of Exhibit 4.10).
*4.15 --Form of Preferred Security Certificate for BT Preferred Capital
Trust II (included as Exhibit D of Exhibit 4.11).
*4.16 --Form of Preferred Security Certificate for BT Preferred Capital
Trust III (included as Exhibit D of Exhibit 4.12).
*4.17 --Form of Preferred Security Certificate for BT Preferred Capital
Trust IV (included as Exhibit D of Exhibit 4.13).
*4.18 --Form of Guarantee Agreement for BT Preferred Capital Trust I.
*4.19 --Form of Guarantee Agreement for BT Preferred Capital Trust II.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
*4.20 --Form of Guarantee Agreement of BT Preferred Capital Trust III.
*4.21 --Form of Guarantee Agreement of BT Preferred Capital Trust IV.
*5.1 --Opinion of Sullivan & Cromwell as to the legality of the Junior Subordinated Debt
Securities and the Guarantees to be issued by Bankers Trust New York Corporation.
*5.2 --Opinion of Richards, Layton & Finger as to the legality of the Preferred
Securities to be issued by BT Preferred Capital Trust I, BT Preferred Capital
Trust II, BT Preferred Capital Trust III and BT Preferred Capital Trust IV.
*8.1 --Opinion of Sullivan & Cromwell as to certain federal income tax matters.
*12.1 --Computation of Consolidated Ratios of Earnings to Fixed Charges.
*12.2 --Computation of Consolidated Ratios of Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements.
23.1 --Consent of Independent Auditors.
*23.2 --Consent of Sullivan & Cromwell (contained in the opinion filed as Exhibit 5.1 to
this Registration Statement).
*23.3 --Consent of Richards, Layton & Finger (contained in the opinion filed as Exhibit
5.2 to this Registration Statement).
*23.4 --Consent of Sullivan & Cromwell (contained in the opinion filed as Exhibit 8.1 to
this Registration Statement).
24.1 --Powers of Attorney.
*25.1 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the indenture relating to the
Junior Subordinated Debt Securities.
*25.2 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the Amended and Restated
Declaration of Trust of BT Preferred Capital Trust I.
*25.3 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the Amended and Restated
Declaration of Trust of BT Preferred Capital Trust II.
*25.4 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the Amended and Restated
Declaration of Trust of BT Preferred Capital Trust III.
*25.5 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the Amended and Restated
Declaration of Trust of BT Preferred Capital Trust IV.
*25.6 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the Guarantee for the benefit of
the holders of Preferred Securities issued by BT Preferred Capital Trust I.
*25.7 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the Guarantee for the benefit of
the holders of Preferred Securities issued by BT Preferred Capital Trust II.
*25.8 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the Guarantee for the benefit of
the holders of Preferred Securities issued by BT Preferred Capital Trust III.
*25.9 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the Guarantee for the benefit of
the holders of Preferred Securities issued by BT Preferred Capital Trust IV.
</TABLE>
- --------
* To be filed by amendment.
** Incorporated by reference.
II-4
<PAGE>
ITEM 17. UNDERTAKINGS.
Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports file by a registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
Each of the undersigned registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of a
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Each of the undersigned registrants hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required by
the underwriter to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of a
registrant pursuant to the foregoing provisions, or otherwise, the registrants
have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, each registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
II-5
<PAGE>
Each of the undersigned registrants hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of the
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-6
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON THE 29TH DAY OF
OCTOBER, 1996.
Bankers Trust New York Corporation
/s/ Duncan P. Hennes
By: _________________________________
(DUNCAN P. HENNES) SENIOR VICE
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATE INDICATED:
SIGNATURE TITLE DATE
Frank N. Newman* Chairman of the October 29,
- ------------------------------------- Board, Chief 1996
(FRANK N. NEWMAN) Executive Officer
and Director
(Principal
Executive Officer)
Richard H. Daniel* Executive Vice October 29,
- ------------------------------------- President and Chief 1996
(RICHARD H. DANIEL) Financial Officer
and Controller
(Principal
Financial Officer)
Geoffrey M. Fletcher* Senior Vice October 29,
- ------------------------------------- President 1996
(GEOFFREY M. FLETCHER) (Principal
Accounting Officer)
George B. Beitzel* Director October 29,
- ------------------------------------- 1996
(GEORGE B. BEITZEL)
Philip A. Griffiths* Director October 29,
- ------------------------------------- 1996
(PHILIP A. GRIFFITHS)
William R. Howell* Director October 29,
- ------------------------------------- 1996
(WILLIAM R. HOWELL)
Jon M. Huntsman* Director October 29,
- ------------------------------------- 1996
(JON M. HUNTSMAN)
II-7
<PAGE>
SIGNATURE TITLE DATE
Director October 29,
- ------------------------------------- 1996
(VERNON E. JORDAN, JR.)
Hamish Maxwell* Director October 29,
- ------------------------------------- 1996
(HAMISH MAXWELL)
N.J. Nicholas Jr.* Director October 29,
- ------------------------------------- 1996
(N.J. NICHOLAS JR.)
Russell E. Palmer* Director October 29,
- ------------------------------------- 1996
(RUSSELL E. PALMER)
Director October 29,
- ------------------------------------- 1996
(DONALD L. STAHELI)
Patricia C. Stewart* Director October 29,
- ------------------------------------- 1996
(PATRICIA C. STEWART)
George J. Vojta* Director October 29,
- ------------------------------------- 1996
(GEORGE J. VOJTA)
Paul A. Volcker* Director October 29,
- ------------------------------------- 1996
(PAUL A. VOLCKER)
/s/ Duncan P. Hennes
*By _________________________________
(DUNCAN P. HENNES, ATTORNEY-IN-FACT)
II-8
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, BT PREFERRED
CAPITAL TRUST I CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK, AND STATE OF NEW YORK ON
THE 29TH DAY OF OCTOBER, 1996.
BT Preferred Capital Trust I
By: Bankers Trust New York
Corporation
as Depositor
/s/ Duncan P. Hennes
By: _________________________________
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, BT PREFERRED
CAPITAL TRUST II CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK, AND STATE OF NEW YORK ON
THE 29TH DAY OF OCTOBER, 1996.
BT Preferred Capital Trust II
By: Bankers Trust New York
Corporation
as Depositor
/s/ Duncan P. Hennes
By: _________________________________
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, BT PREFERRED
CAPITAL TRUST III CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK, AND STATE OF NEW YORK ON
THE 29TH DAY OF OCTOBER, 1996.
BT Preferred Capital Trust III
By: Bankers Trust New York
Corporation,
as Depositor
/s/ Duncan P. Hennes
By: _________________________________
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, BT PREFERRED
CAPITAL TRUST IV CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK, AND STATE OF NEW YORK ON
THE 29TH DAY OF OCTOBER, 1996.
BT Preferred Capital Trust IV
By: Bankers Trust New York
Corporation,
as Depositor
/s/ Duncan P. Hennes
By: _________________________________
II-9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
------- ----------- ----
<C> <S> <C>
*1.1 --Form of Underwriting Agreement.
*4.1 --Form of Indenture for Junior Subordinated Debt Securities
between Bankers Trust New York Corporation and Wilmington
Trust Company, as Indenture Trustee.
4.2 --Certificate of Trust of BT Preferred Capital Trust I.
4.3 --Declaration of Trust of BT Preferred Capital Trust I.
4.4 --Certificate of Trust of BT Preferred Capital Trust II.
4.5 --Declaration of Trust of BT Preferred Capital Trust II.
4.6 --Certificate of Trust of BT Preferred Capital Trust III.
4.7 --Declaration of Trust of BT Preferred Capital Trust III.
4.8 --Certificate of Trust of BT Preferred Capital Trust IV.
4.9 --Declaration of Trust of BT Preferred Capital Trust IV.
*4.10 --Form of Amended and Restated Declaration of Trust of BT
Preferred Capital Trust I.
*4.11 --Form of Amended and Restated Declaration of Trust of BT
Preferred Capital Trust II.
*4.12 --Form of Amended and Restated Declaration of Trust of BT
Preferred Capital Trust III.
*4.13 --Form of Amended and Restated Declaration of Trust of BT
Preferred Capital Trust IV.
*4.14 --Form of Preferred Security Certificate for BT Preferred
Capital Trust I (included as Exhibit D of Exhibit 4.10).
*4.15 --Form of Preferred Security Certificate for BT Preferred
Capital Trust II (included as Exhibit D of Exhibit 4.11).
*4.16 --Form of Preferred Security Certificate for BT Preferred
Capital Trust III (included as Exhibit D of Exhibit 4.12).
*4.17 --Form of Preferred Security Certificate for BT Preferred
Capital Trust IV (included as Exhibit D of Exhibit 4.13).
*4.18 --Form of Guarantee Agreement for BT Preferred Capital Trust I.
*4.19 --Form of Guarantee Agreement for BT Preferred Capital Trust II.
*4.20 --Form of Guarantee Agreement of BT Preferred Capital Trust III.
*4.21 --Form of Guarantee Agreement of BT Preferred Capital Trust IV.
*5.1 --Opinion of Sullivan & Cromwell, as to the legality of the
Junior Subordinated Debt Securities and the Guarantees to be
issued by Bankers Trust New York Corporation.
*5.2 --Opinion of Richards, Layton & Finger as to the legality of
the Preferred Securities to be issued by BT Preferred
Capital Trust I, BT Preferred Capital Trust II, BT Preferred
Capital Trust III and BT Preferred Capital Trust IV.
*8.1 --Opinion of Sullivan & Cromwell as to certain federal income
tax matters.
*12.1 --Computation of Consolidated Ratios of Earnings to Fixed
Charges.
*12.2 --Computation of Consolidated Ratios of Earnings to Combined
Fixed Charges and Preferred Stock Dividend Requirements.
23.1 --Consent of Independent Auditors.
</TABLE>
<PAGE>
<TABLE>
<C> <S>
*23.2 --Consent of Sullivan & Cromwell (contained in the opinion filed
as Exhibit 5.1 to this Registration Statement).
*23.3 --Consent of Richards, Layton & Finger (contained in the opinion
filed as Exhibit 5.2 to this Registration Statement).
*23.4 --Consent of Sullivan & Cromwell (contained in the opinion filed
as Exhibit 8.1 to this Registration Statement).
24.1 --Powers of Attorney.
*25.1 --Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of Wilmington Trust Company to act as trustee under the
indenture relating to the Junior Subordinated Debt Securities.
*25.2 --Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of Wilmington Trust Company to act as trustee under the
Amended and Restated Declaration of Trust of BT Preferred
Capital Trust I.
*25.3 --Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of Wilmington Trust Company to act as trustee under the
Amended and Restated Declaration of Trust of BT Preferred
Capital Trust II.
*25.4 --Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of Wilmington Trust Company to act as trustee under the
Amended and Restated Declaration of Trust of BT Preferred
Capital Trust III.
*25.5 --Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of Wilmington Trust Company to act as trustee under the
Amended and Restated Declaration of Trust of BT Preferred
Capital Trust IV.
*25.6 --Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of Wilmington Trust Company to act as trustee under the
Guarantee for the benefit of the holders of Preferred Securities
issued by BT Preferred Capital Trust I.
*25.7 --Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of Wilmington Trust Company to act as trustee under the
Guarantee for the benefit of the holders of Preferred Securities
issued by BT Preferred Capital Trust II.
*25.8 --Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of Wilmington Trust Company to act as trustee under the
Guarantee for the benefit of the holders of Preferred Securities
issued by BT Preferred Capital Trust III.
*25.9 --Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of Wilmington Trust Company to act as trustee under the
Guarantee for the benefit of the holders of Preferred Securities
issued by BT Preferred Capital Trust IV.
</TABLE>
- --------
* To be filed by amendment.
** Incorporated by reference.
<PAGE>
EXHIBIT 4.2
CERTIFICATE OF TRUST
OF
BT PREFERRED CAPITAL TRUST I
This Certificate of Trust of BT Preferred Capital Trust I (the
"Trust"), dated October 28, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S) 3801 et seq.).
1. NAME. The name of the business trust being formed hereby is BT
Preferred Capital Trust I.
2. DELAWARE TRUSTEES. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware is
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890, Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
upon the filing of this Certificate of Trust.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Bruce Bisson
--------------------------------
Name: BRUCE BISSON
Title: VICE PRESIDENT
<PAGE>
EXHIBIT 4.3
DECLARATION OF TRUST
OF
BT PREFERRED CAPITAL TRUST I
DECLARATION OF TRUST, dated as of October 28, 1996, between Bankers
Trust New York Corporation, a New York corporation, as "Depositor", and
Wilmington Trust Company, as "Trustee". The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as BT Preferred Capital
Trust I (the "Trust"), in which name the Trustee, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustee the sum of $10. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustee is hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustee will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and substantially
in the form to be included as an exhibit to the Securities Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustee shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange
<PAGE>
Commission (the "Commission") and execute, in each case on behalf of the Trust
(a) the Registration Statement on Form S-3 (the "Securities Act Registration
Statement"), including all pre-effective or post-effective amendments thereto
(including the prospectus and the exhibits contained therein or forming a part
thereof), relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities of the Trust and certain other securities
and (b) a Registration Statement on Form 8-A (the "Exchange Act Registration
Statement"), including all pre-effective and post-effective amendments thereto
(including the exhibits contained therein or forming a part thereof), relating
to the registration of the Preferred Securities of the Trust under Section 12 of
the Securities Exchange Act of 1934, as amended; (ii) to file with one or more
national securities exchanges (each, an "Exchange") or the National Association
of Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws; (iv) to execute on behalf of the Trust such Underwriting Agreements
with one or more underwriters relating to the offering of the Preferred
Securities as the Depositor, on behalf of the Trust, may deem necessary or
desirable; and (v) to execute on behalf of the Trust any and all documents,
papers and instruments as may be desirable in connection with any of the
foregoing. If any filing referred to in clauses (i), (ii) and (iii) above is
required by the rules and regulations of the Commission, any Exchange, the NASD
or state securities or Blue Sky laws, to be executed on behalf of the Trust by a
Trustee, the Depositor and any trustee of the Trust appointed pursuant to
Section 6 hereof are hereby authorized to join in any such filing and to execute
on behalf of the Trust any and all of the foregoing.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The Trustee shall initially be the only trustee of the Trust.
Thereafter, the Depositor may increase or decrease (but not below one) the
number of trustees of the Trust by executing a written instrument
-2-
<PAGE>
fixing such number; provided, however, that so long as it is required by the
-------- -------
Business Trust Act, one trustee of the Trust shall be either a natural person
who is a resident of the State of Delaware or an entity other than a natural
person that has its principal place of business in the State of Delaware and
that, in either case, otherwise meets the requirements of applicable Delaware
law. Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any trustee at any time. The Trustee may resign upon thirty days'
prior notice to the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[Remainder of Page Intentionally Blank]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
BANKERS TRUST NEW YORK CORPORATION, as Depositor
By: /s/ Gordon S. Calder Jr.
---------------------------
Name: GORDON S. CALDER JR.
Title: SENIOR VICE PRESIDENT
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Emmitt R. Harmon
---------------------------
Name: EMMITT R. HARMON
Title: VICE PRESIDENT
-4-
<PAGE>
EXHIBIT 4.4
CERTIFICATE OF TRUST
OF
BT PREFERRED CAPITAL TRUST II
This Certificate of Trust of BT Preferred Capital Trust II (the
"Trust"), dated October 28, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S) 3801 et seq.).
1. NAME. The name of the business trust being formed hereby is BT
Preferred Capital Trust II.
2. DELAWARE TRUSTEES. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware is
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890, Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
upon the filing of this Certificate of Trust.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Bruce Bisson
--------------------------------
Name: BRUCE BISSON
Title: VICE PRESIDENT
<PAGE>
EXHIBIT 4.5
DECLARATION OF TRUST
OF
BT PREFERRED CAPITAL TRUST II
DECLARATION OF TRUST, dated as of October 28, 1996, between Bankers
Trust New York Corporation, a New York corporation, as "Depositor", and
Wilmington Trust Company, as "Trustee". The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as BT Preferred Capital
Trust II (the "Trust"), in which name the Trustee, or the Depositor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustee the sum of $10. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustee is hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustee will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and substantially
in the form to be included as an exhibit to the Securities Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustee shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange
<PAGE>
Commission (the "Commission") and execute, in each case on behalf of the Trust
(a) the Registration Statement on Form S-3 (the "Securities Act Registration
Statement"), including all pre-effective or post-effective amendments thereto
(including the prospectus and the exhibits contained therein or forming a part
thereof), relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities of the Trust and certain other securities
and (b) a Registration Statement on Form 8-A (the "Exchange Act Registration
Statement"), including all pre-effective and post-effective amendments thereto
(including the exhibits contained therein or forming a part thereof), relating
to the registration of the Preferred Securities of the Trust under Section 12 of
the Securities Exchange Act of 1934, as amended; (ii) to file with one or more
national securities exchanges (each, an "Exchange") or the National Association
of Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws; (iv) to execute on behalf of the Trust such Underwriting Agreements
with one or more underwriters relating to the offering of the Preferred
Securities as the Depositor, on behalf of the Trust, may deem necessary or
desirable; and (v) to execute on behalf of the Trust any and all documents,
papers and instruments as may be desirable in connection with any of the
foregoing. If any filing referred to in clauses (i), (ii) and (iii) above is
required by the rules and regulations of the Commission, any Exchange, the NASD
or state securities or Blue Sky laws, to be executed on behalf of the Trust by a
Trustee, the Depositor and any trustee of the Trust appointed pursuant to
Section 6 hereof are hereby authorized to join in any such filing and to execute
on behalf of the Trust any and all of the foregoing.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The Trustee shall initially be the only trustee of the Trust.
Thereafter, the Depositor may increase or decrease (but not below one) the
number of trustees of the Trust by executing a written instrument
-2-
<PAGE>
fixing such number; provided, however, that so long as it is required by the
-------- -------
Business Trust Act, one trustee of the Trust shall be either a natural person
who is a resident of the State of Delaware or an entity other than a natural
person that has its principal place of business in the State of Delaware and
that, in either case, otherwise meets the requirements of applicable Delaware
law. Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any trustee at any time. The Trustee may resign upon thirty days'
prior notice to the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[Remainder of Page Intentionally Blank]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of Trust
to be duly executed as of the day and year first above written.
BANKERS TRUST NEW YORK CORPORATION, as Depositor
By: /s/ Gordon S. Calder Jr.
---------------------------
Name: GORDON S. CALDER JR.
Title: SENIOR VICE PRESIDENT
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Emmitt R. Harmon
---------------------------
Name: EMMITT R. HARMON
Title: VICE PRESIDENT
-4-
<PAGE>
EXHIBIT 4.6
CERTIFICATE OF TRUST
OF
BT PREFERRED CAPITAL TRUST III
This Certificate of Trust of BT Preferred Capital Trust III (the
"Trust"), dated October 28, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S) 3801 et seq.).
1. NAME. The name of the business trust being formed hereby is BT
Preferred Capital Trust III.
2. DELAWARE TRUSTEES. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware is
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890, Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
upon the filing of this Certificate of Trust.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Bruce Bisson
--------------------------------
Name: BRUCE BISSON
Title: VICE PRESIDENT
<PAGE>
EXHIBIT 4.7
DECLARATION OF TRUST
OF
BT PREFERRED CAPITAL TRUST III
DECLARATION OF TRUST, dated as of October 28, 1996, between Bankers
Trust New York Corporation, a New York corporation, as "Depositor", and
Wilmington Trust Company, as "Trustee". The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as BT Preferred Capital
Trust III (the "Trust"), in which name the Trustee, or the Depositor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustee the sum of $10. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustee is hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustee will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and substantially
in the form to be included as an exhibit to the Securities Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustee shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange
<PAGE>
Commission (the "Commission") and execute, in each case on behalf of the Trust
(a) the Registration Statement on Form S-3 (the "Securities Act Registration
Statement"), including all pre-effective or post-effective amendments thereto
(including the prospectus and the exhibits contained therein or forming a part
thereof), relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities of the Trust and certain other securities
and (b) a Registration Statement on Form 8-A (the "Exchange Act Registration
Statement"), including all pre-effective and post-effective amendments thereto
(including the exhibits contained therein or forming a part thereof), relating
to the registration of the Preferred Securities of the Trust under Section 12 of
the Securities Exchange Act of 1934, as amended; (ii) to file with one or more
national securities exchanges (each, an "Exchange") or the National Association
of Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws; (iv) to execute on behalf of the Trust such Underwriting Agreements
with one or more underwriters relating to the offering of the Preferred
Securities as the Depositor, on behalf of the Trust, may deem necessary or
desirable; and (v) to execute on behalf of the Trust any and all documents,
papers and instruments as may be desirable in connection with any of the
foregoing. If any filing referred to in clauses (i), (ii) and (iii) above is
required by the rules and regulations of the Commission, any Exchange, the NASD
or state securities or Blue Sky laws, to be executed on behalf of the Trust by a
Trustee, the Depositor and any trustee of the Trust appointed pursuant to
Section 6 hereof are hereby authorized to join in any such filing and to execute
on behalf of the Trust any and all of the foregoing.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The Trustee shall initially be the only trustee of the Trust.
Thereafter, the Depositor may increase or decrease (but not below one) the
number of trustees of the Trust by executing a written instrument
-2-
<PAGE>
fixing such number; provided, however, that so long as it is required by the
-------- -------
Business Trust Act, one trustee of the Trust shall be either a natural person
who is a resident of the State of Delaware or an entity other than a natural
person that has its principal place of business in the State of Delaware and
that, in either case, otherwise meets the requirements of applicable Delaware
law. Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any trustee at any time. The Trustee may resign upon thirty days'
prior notice to the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[Remainder of Page Intentionally Blank]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of Trust
to be duly executed as of the day and year first above written.
BANKERS TRUST NEW YORK CORPORATION, as Depositor
By: /s/ Gordon S. Calder Jr.
---------------------------
Name: GORDON S. CALDER JR.
Title: SENIOR VICE PRESIDENT
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Emmitt R. Harmon
---------------------------
Name: EMMITT R. HARMON
Title: VICE PRESIDENT
-4-
<PAGE>
EXHIBIT 4.8
CERTIFICATE OF TRUST
OF
BT PREFERRED CAPITAL TRUST IV
This Certificate of Trust of BT Preferred Capital Trust IV (the
"Trust"), dated October 28, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S) 3801 et seq.).
1. NAME. The name of the business trust being formed hereby is BT
Preferred Capital Trust IV.
2. DELAWARE TRUSTEES. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware is
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890, Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
upon the filing of this Certificate of Trust.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Bruce Bisson
--------------------------------
Name: BRUCE BISSON
Title: VICE PRESIDENT
<PAGE>
EXHIBIT 4.9
DECLARATION OF TRUST
OF
BT PREFERRED CAPITAL TRUST IV
DECLARATION OF TRUST, dated as of October 28, 1996, between Bankers
Trust New York Corporation, a New York corporation, as "Depositor", and
Wilmington Trust Company, as "Trustee". The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as BT Preferred Capital
Trust IV (the "Trust"), in which name the Trustee, or the Depositor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustee the sum of $10. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustee is hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustee will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and substantially
in the form to be included as an exhibit to the Securities Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustee shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange
<PAGE>
Commission (the "Commission") and execute, in each case on behalf of the Trust
(a) the Registration Statement on Form S-3 (the "Securities Act Registration
Statement"), including all pre-effective or post-effective amendments thereto
(including the prospectus and the exhibits contained therein or forming a part
thereof), relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities of the Trust and certain other securities
and (b) a Registration Statement on Form 8-A (the "Exchange Act Registration
Statement"), including all pre-effective and post-effective amendments thereto
(including the exhibits contained therein or forming a part thereof), relating
to the registration of the Preferred Securities of the Trust under Section 12 of
the Securities Exchange Act of 1934, as amended; (ii) to file with one or more
national securities exchanges (each, an "Exchange") or the National Association
of Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws; (iv) to execute on behalf of the Trust such Underwriting Agreements
with one or more underwriters relating to the offering of the Preferred
Securities as the Depositor, on behalf of the Trust, may deem necessary or
desirable; and (v) to execute on behalf of the Trust any and all documents,
papers and instruments as may be desirable in connection with any of the
foregoing. If any filing referred to in clauses (i), (ii) and (iii) above is
required by the rules and regulations of the Commission, any Exchange, the NASD
or state securities or Blue Sky laws, to be executed on behalf of the Trust by a
Trustee, the Depositor and any trustee of the Trust appointed pursuant to
Section 6 hereof are hereby authorized to join in any such filing and to execute
on behalf of the Trust any and all of the foregoing.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The Trustee shall initially be the only trustee of the Trust.
Thereafter, the Depositor may increase or decrease (but not below one) the
number of trustees of the Trust by executing a written instrument
-2-
<PAGE>
fixing such number; provided, however, that so long as it is required by the
-------- -------
Business Trust Act, one trustee of the Trust shall be either a natural person
who is a resident of the State of Delaware or an entity other than a natural
person that has its principal place of business in the State of Delaware and
that, in either case, otherwise meets the requirements of applicable Delaware
law. Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any trustee at any time. The Trustee may resign upon thirty days'
prior notice to the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[Remainder of Page Intentionally Blank]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of Trust
to be duly executed as of the day and year first above written.
BANKERS TRUST NEW YORK CORPORATION, as Depositor
By: /s/ Gordon S. Calder Jr.
-----------------------------
Name: GORDON S. CALDER JR.
Title: SENIOR VICE PRESIDENT
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Emmitt R. Harmon
-----------------------------
Name: EMMITT R. HARMON
Title: VICE PRESIDENT
-4-
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Bankers Trust New
York and to the incorporation by reference therein of our report dated January
25, 1996, with respect to the consolidated financial statements of Bankers Trust
New York Corporation included in its Annual Report (Form 10-K) for the year
ended December 31, 1995, filed with the Securities and Exchange Commission
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
New York, New York
October 29, 1996
<PAGE>
EXHIBIT 24.1
BANKERS TRUST NEW YORK CORPORATION
----------------------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
directors and officers of Bankers Trust New York Corporation (the
"Corporation"), a New York corporation, hereby appoints each of Frank N.
Newman, George J. Vojta, Richard H. Daniel, Garret G. Thunen, Duncan P. Hennes
and James T. Byrne, Jr. his true and lawful attorney and agent, in the name and
on behalf of the undersigned, to do any and all acts and things and execute any
and all instruments which the said attorney and agent may deem necessary or
advisable to enable the Corporation to comply with the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended and the Trust
Indenture Act of 1939, as amended (collectively, "the Acts") and any rules and
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Acts of the
securities of the Corporation in with the public offering of such securities,
including specifically, but without limiting the generality of the foregoing,
the power and authority to sign the name of the undersigned in his capacity as a
Director and/or Officer of the Corporation to a Registration Statement to be
filed with the Securities and Exchange Commission to any and all amendments,
including pre- and post-effective amendments, to the said Registration Statement
and to any and all instruments and documents filed as part of or in connection
with the said Registration Statement or amendments thereto: HEREBY RATIFYING AND
CONFIRMING all that the said attorneys and agents, or any of them, has done,
shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has subscribed these
presents.
October 28, 1996 Bankers Trust New York Corporation
By /s/ FRANK N. NEWMAN
--------------------------------
Frank N. Newman
Chairman of the Board
/s/ FRANK N. NEWMAN
- --------------------------------
Frank N. Newman
Chairman of the Board of Directors
(Principal Executive Officer)
/s/ RICHARD H. DANIEL
- --------------------------------
Richard H. Daniel
Executive Vice President, Chief Financial
Officer and Controller
(Principal Financial Officer)
/s/ GEOFFREY M. FLETCHER
- --------------------------------
Geoffrey M. Fletcher
Senior Vice President and
Principal Accounting Officer
<PAGE>
- 2 -
October 28, 1996
/s/ GEORGE B. BEITZEL
- ----------------------------------
George B. Beitzel Director
/s/ PHILLIP A. GRIFFITHS
- ----------------------------------
Phillip A. Griffiths Director
/s/ WILLIAM R. HOWELL
- ----------------------------------
William R. Howell Director
/s/ JON M. HUNTSMAN
- ----------------------------------
Jon M. Huntsman Director
- ----------------------------------
Vernon E. Jordan Director
/s/ HAMISH MAXWELL
- ----------------------------------
Hamish Maxwell Director
/s/ N.J. NICHOLAS JR.
- ----------------------------------
N.J. Nicholas Jr. Director
/s/ RUSSELL E. PALMER
- ----------------------------------
Russell E. Palmer Director
- ----------------------------------
Donald L. Staheli Director
<PAGE>
- 3 -
October 28, 1996
/s/ PATRICIA C. STEWART
- ----------------------------------
Patricia C. Stewart Director
/s/ GEORGE J. VOJTA
- ----------------------------------
George J. Vojta Director
/s/ PAUL A. VOLCKER
- ----------------------------------
Paul A. Volcker Director
