As Filed with the Securities and Exchange Commission on September 17, 1996
Registration No. 333-__________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
Bankers Trust New York Corporation
------------------------------------------------------
(Exact name of registrant as specified in its charter)
New York 13-6180473
- ------------------------------------------------------ --------------------
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
130 Liberty Street, New York, New York 10006
- ------------------------------------------------------ --------------------
(Address of Principal Executive Offices) (Zip Code)
COINVESTMENT PLAN FOR THE FINANCE GROUP
------------------------------------------------------
(Full title of the plan)
Gordon S. Calder, Jr., Esq.
Melvin A. Yellin, Esq.
130 Liberty Street
New York, New York 10006
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(212) 250-2500
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
- --------------------------------------------------------------------------------
Page No. 1 of 17 pages.
<PAGE>
2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
-------------------------------
Title of Proposed Maximum Proposed Maximum Amount of
Securities to be Amount to be Offering Price Per Aggregate Offering Registration
Registered Registered (2) Share Price (2) Fee
---------------- -------------- ------------------ ------------------ ------------
<S> <C> <C> <C> <C>
Deferred
Compensation
Obligations (1) $35,000,000 100% $35,000,000 $12,069
</TABLE>
FOOTNOTES
(1) The Deferred Compensation Obligations are unsecured obligations of Bankers
Trust New York Corporation to pay deferred compensation in the future in
accordance with the terms of the Coinvestment Plan for the Finance Group of
Bankers Trust New York Corporation (the "Plan").
(2) Estimate of original amount deferred by participants plus amount "matched"
by the registrant subject to the terms of the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
----------------------------------------------------
Pursuant to the instructions contained in Form S-8, the document(s)
containing the information specified in Part I of Form S-8 are not required to
be filed with the Securities and Exchange Commission (the "Commission") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act of 1933 (the "Securities
Act"). Accordingly, such information is omitted.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents have been filed by the registrant with the
Commission (file number 1-5920) under the Securities Exchange Act of 1934 (the
"Exchange Act") and are incorporated herein by reference:
(a) the registrant's Annual Report on Form 10-K for the year ended
December 31, 1995, filed pursuant to Section 13 of the Exchange Act;
(b) the registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31 and June 30, 1996, filed pursuant to Section 13 of the
Exchange Act; and
(c) the registrant's Current Reports on Form 8-K dated March 19,
April 15, April 25, May 3, May 22, June 18, July 18, July 22, July 26 and
August 1, 1996.
All documents filed by the registrant pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated by reference or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for all
purposes of this Registration Statement to the extent that a statement contained
<PAGE>
3
herein or in any subsequently filed document that also is incorporated or deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
-------------------------
The securities being offered are Deferred Compensation Obligations
("Obligations"), which are offered pursuant to the Coinvestment Plan for the
Finance Group (the "Plan"). The purpose of the Plan is to aid Bankers Trust New
York Corporation (the "Corporation") and its subsidiaries in securing and
retaining officers and other key employees of outstanding ability and to
motivate such employees to exert their best efforts on behalf of the Corporation
and its subsidiaries. The following description of the terms and conditions of
the Obligations is qualified by reference to the Plan, which is filed herewith
as Exhibit 4 and incorporated herein by reference. Capitalized terms used
without definition have the meanings assigned to them in the Plan.
Subject to the terms and conditions of the Plan, each Obligation
entitles the holder to a cash payment, in an amount calculated as described
below. The Obligations are unsecured general obligations of the registrant to
pay deferred compensation in accordance with the terms of the Plan. The Plan is
unfunded. The registrant is not required to set aside assets to be used for
payment of Obligations. Because the registrant is a holding company, the right
of the registrant (and hence the rights of creditors of the registrant,
including participants in the Plan) to participate in any distribution of the
assets of any subsidiary of the registrant upon its liquidation or
reorganization or otherwise is subject to the prior claims of creditors of the
subsidiary, except to the extent that claims of the registrant as a creditor of
the subsidiary are recognized.
At the beginning of each Performance Year (as defined below), selected
Managing Directors and Vice Presidents in the registrant's Finance, M&A and
Research areas (collectively, the "Finance Group") and certain other employees
may elect to defer, on a pre-tax basis, a portion of their year-end annual cash
bonus. The maximum deferral is $100,000 for a Managing Director and $50,000 for
a Vice President. If the amount deferred by a participant exceeds the actual
cash bonus payable to such participant, his/her participation level will be
reduced to the actual bonus amount. Deferral elections may also be reduced on a
pro rata basis depending on (1) the aggregate size of (a) the investment deals
approved by the registrant's Private Equity Investment Group ("PEIG") in the
performance year to which the deferral relates (the "Performance Year") plus (b)
any investment deals (the "Independent Deals") recommended by the Finance Group
to the PEIG that are rejected by the PEIG and, after referral to a special
investment board, invested in by the Finance Group during such Performance Year
(collectively, the "Performance Deals") and (2) the amount of such investments
sourced by or referred from the Finance Group.
The amount deferred by each participant is leveraged by being
"matched" on a three-to-one basis by the registrant. Matched funds bear interest
equal to the floating prime plus one percent per annum and are "closed out"
(i.e., repaid) as described below. Both the amount deferred by the participant
and the "matched" amount (collectively, the "deemed investment") are deemed
invested (but are not actually invested) in the Performance Deals.
Upon the receipt by the registrant of current cash income (such as
dividends and/or interest) or liquidation proceeds from the actual investments
constituting the Performance Deals, proportionate amounts, as determined under
the Plan, will be treated as earned on the deemed investments under the Plan.
Such deemed earnings are first applied to close out (i.e., "repay") the matched
funds and the accrued interest thereon. Any additional deemed earnings are
distributable to participants on a pro rata basis (subject to vesting
requirements and a right of offset described below). Unless otherwise determined
by the Chief Executive Officer, distributions from the Plan will be made
entirely in cash. In the event that proceeds from the liquidation of the deals
of a given Performance Year are insufficient to recover the matched funds and
related interest, the participant will be required to repay the registrant the
difference between the proceeds and 50% of the matched funds.
Participants who are employed by the registrant for one full year
after the end of a Performance Year vest on any deemed earnings related to their
cash deferral for such Performance Year on the earlier of (1) the liquidation of
all the underlying investments or (2) the first anniversary of the end of such
Performance Year. Participants who are employed by the registrant for longer
<PAGE>
4
than one full year after the end of a Performance Year vest on gains related to
their "matched" funds related to such Performance Year at the earlier of (1) the
end of their fourth full year of employment after the end of such Performance
Year or (2) the liquidation of all the underlying investments. Participants
whose employment terminates due to retirement, death, total disability or
termination by the registrant without cause vest (to the extent not previously
vested) in the deemed earnings on both their cash deferral and "matched" funds
at the time of their termination of employment.
Participants who remain employed by the registrant or whose employment
terminates for the reasons listed above (which entitle the participant to vest)
will have any earnings attributable to the Performance Deals for a particular
Performance Year first applied to close out the portion of the "matched" amount
which would be repayable by the participant in the event of a loss. In the event
of termination with cause or resignation prior to vesting, any gains will first
be applied or recharacterized to close out the portion of the "matched" funds
not repayable by the participant, so that the participant will remain at risk
for the repayable portion of the "matched" funds until additional Performance
Deals' earnings, if any, are sufficient to repay such portion. Distributions to
participants who are terminated for cause or who resign prior to vesting are
limited to the lesser of such participants' deemed investments plus interest or
the actual distributions.
The registrant retains the right to apply amounts distributable under
the Plan to close out "matched" amounts from other Performance Years. The
registrant also reserves the right to pursue legal action against participants
for amounts due from participants under the Plan.
In addition to the Obligations, participants in the Plan will also be
eligible to receive "carried interest" awards with respect to certain
Performance Deals. The carried interest awards are up to a maximum of 5% of the
total value of a particular deal for all members of such deal's team and are
available only to those participants who were involved with the specific deal.
The carried interest award percentage will be allocated among the deal team
members based on recommendations of the deal team manager that must be approved
by senior management. "Carried interest" awards based on the net gains, if any,
for all deals for which carried interest awards were granted are paid out at the
end of each year. Net losses from carried interest awards are carried forward
cumulatively and must be offset by future net gains on carried interest awards
before any such gains can actually be paid out to the carried interest award
recipients. Award payments are paid prior to any payments with respect to the
Obligations. Such awards vest on the third anniversary of the closing date for
the related investment.
Participants' interests in the Plan are not transferable. No right,
title or interest of any kind in the Plan shall be transferable or assignable by
a participant or his or her beneficiary or be subject to alienation,
anticipation, encumbrance, garnishment, attachment, levy, execution or other
legal or equitable process, nor subject to the debts, contracts, liabilities or
engagements, or torts of any participant or his or her beneficiary.
The total amount of Obligations under the Plan are not determinable
because the amounts will vary depending upon the level of participation by
eligible persons and the total amount of Performance Deals. Likewise, the
duration of the Plan is indefinite because Obligations may only be paid, if at
all, after liquidation of all investments included in the Performance Deals for
each Performance Year.
The Obligations are not subject to redemption, in whole or in part, at
the option of the registrant or through operation of a mandatory or optional
sinking fund or analogous provision. The registrant reserves the right to amend
or terminate the Plan, except that no such amendment or termination can impair
the rights or participants with respect to investments previously made without
their written consent.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The validity of the securities offered hereby has been passed upon for
the registrant by Gordon S. Calder, Jr., Managing Director and Counsel of
Bankers Trust Company. Mr. Calder has an interest in a number of shares equal to
less than .015% of the outstanding Common Stock of the registrant.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Article V of the By-Laws of Bankers Trust New York Corporation
provides as follows:
<PAGE>
5
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 authorized 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 amounts(s) if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active an 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 or 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 provision 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 of 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 the 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.
<PAGE>
6
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 claimants 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) 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, Section 721 and 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
judgment in its favor if such director or officer acted in good faith and in a
manner he reasonably believed to be in or, in certain cases, not opposed to such
corporation's best interests, and additionally, in criminal actions, has no
reasonable cause to believe his conduct was unlawful.
In addition, a Directors and Officers 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.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The exhibits are listed in the exhibit index and are incorporated
herein by reference.
Item 9. Undertakings
------------
(a) The undersigned registrant 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, represents a fundamental change in the information set forth in this
Registration Statement;
(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 this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
<PAGE>
7
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.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the 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 this 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities 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, the
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 Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
The Registrant. 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-8 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 September 16,
1996.
Bankers Trust New York Corporation
By: /s/ James T. Byrne, Jr.
----------------------------------
(James T. Byrne, Jr.)
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:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Frank N. Newman*
- --------------------------------
(Frank N. Newman) Chairman of the Board, September 16, 1996
Chief Executive Officer
and Director (Principal
Executive Officer)
<PAGE>
8
<S> <C> <C>
/s/ Richard H. Daniel*
- --------------------------------
(Richard H. Daniel) Executive Vice President September 16, 1996
and Chief Financial
Officer (Principal
Financial Officer)
/s/ Geoffrey M. Fletcher*
- --------------------------------
(Geoffrey M. Fletcher) Senior Vice President September 16, 1996
(Principal Accounting
Officer)
/s/ George B. Beitzel*
- --------------------------------
(George B. Beitzel) Director September 16, 1996
/s/ Phillip A. Griffiths*
- --------------------------------
(Phillip A. Griffiths) Director September 16, 1996
/s/ William R. Howell*
- --------------------------------
(William R. Howell) Director September 16, 1996
/s/ Jon M. Huntsman*
- --------------------------------
(Jon M. Huntsman) Director September 16, 1996
/s/ Vernon E. Jordan, Jr.*
- --------------------------------
(Vernon E. Jordan, Jr.) Director September 16, 1996
/s/ Hamish Maxwell*
- --------------------------------
(Hamish Maxwell) Director September 16, 1996
/s/ N.J. Nicholas, Jr.*
- --------------------------------
(N.J. Nicholas, Jr.) Director September 16, 1996
/s/ Russell E. Palmer*
- --------------------------------
(Russell E. Palmer) Director September 16, 1996
/s/ Donald L. Staheli*
- --------------------------------
(Donald L. Staheli) Director September 16, 1996
/s/ Patricia C. Stewart*
- --------------------------------
(Patricia C. Stewart) Director September 16, 1996
/s/ George J. Vojta*
- --------------------------------
(George J. Vojta) Director September 16, 1996
*By /s/ James T. Byrne, Jr.
---------------------------------------
(James T. Byrne, Jr., Attorney-in-fact)
</TABLE>
<PAGE>
9
<TABLE>
<CAPTION>
EXHIBIT INDEX
-------------
Exhibit
Number Description Method of Filing Page
------ --------------------------------- ---------------------- --------
<S> <C> <C> <C>
4 Coinvestment Plan For The Finance Filed herewith 10
Group
5 Opinion re legality Filed herewith 14
23.1 Consent of Ernst & Young LLP Filed herewith 15
23.2 Consent of Gordon S. Calder, Jr Included in Exhibit 5
24 Powers of Attorney Filed herewith 16
</TABLE>
10
EXHIBIT 4
Coinvestment Plan for the Finance Group
Plan Document
I. Purpose of the Plan
The purpose of the Coinvestment Plan for the Finance Group (the "Plan") is to
foster teamwork between members of the Finance Group and the PEIG. Members of
the Finance, M&A and Research groups (the "Participants") of Bankers Trust New
York Corporation and its subsidiaries (the "Corporation") will be encouraged to
refer deals to the PEIG group for investment by providing the Finance Group an
opportunity to share in the performance of the Corporation's private equity
investments.
II. Administration of the Plan
The Plan is to be administered by the Human Resources Committee of the
Corporation's Board of Directors (the "Committee") or its designate(s). The CEO
may amend, suspend or terminate the Plan, including making modifications to the
participation schedule when deemed in the best interest of the Corporation,
provided that, with respect to investments previously made, no amendment,
termination or suspension may impair the rights of Participants, without their
written consent.
Actions taken by the CEO in regard to this Plan will be confirmed in writing.
Any material modification to the Plan is subject to Committee approval.
Accounting records will be administered by the controllers of PEIG with
oversight by Corporate Human Resources and the Corporate Controller's Office.
III. Eligible Employees
Selected MDs and VPs in the Finance, M&A and Research areas are eligible to
participate in the Plan. Other key individuals, such as originators from other
areas of the Corporation, as approved by the Head(s) of the function, may also
be eligible to participate. This Plan may be expanded to cover other employees
of the Corporation in the future.
To the extent that the proposed Plan is extended to employees outside the U.S.
where local law and/or tax regulations may conflict with certain provisions of
the Plan, the Plan may be modified to conform to local law upon the written
approval of the CEO. Any material modification is subject to approval by the
Committee.
IV. Plan Participation
The Plan is structured as a nonqualified deferred compensation arrangement and
participation in the Plan by eligible employees is completely voluntary.
At the beginning of the Performance Year eligible participants may elect to
defer, on a pre-tax basis, a portion of their year-end annual cash bonus.
Deferral elections for MD's may be either $50,000 or $100,000. VPs may elect to
defer either $25,000 or $50,000. Deferred elections will be reduced on a
pro-rata basis in Performance Years in which the PEIG approved deals are
insufficient to accommodate the aggregate deferrals and their related matching
funds. In the event that a participant's cash bonus is less than his/her elected
deferral amount for the Performance Year, his/her participation level will be
reduced to the amount of his/her cash bonus.
V. "Leveraging" by the Corporation
Each participant's deferred sum will be matched by the Corporation to replicate
the effects of leveraging. Under the Plan, deferred sums are matched three to
one, up to a maximum of $300,000. Neither the deferred nor the matched amounts
will be actual investments in deals but will simply be used to track returns
under the plan.
Matched funds are closed out ("repaid") from liquidation proceeds of the
underlying investments. Interest equal to the floating prime plus one percent
per annum will be attributed to matched amounts and will begin to "accrue" when
<PAGE>
11
the underlying investments are made. Matched amount plus attributable interest
must be earned back before a Participant receives a return on his/her deferral.
In the event that there are insufficient proceeds from the investments (i.e., a
loss on the portfolio), to repay the matched funds, one-half of the original
matched funds plus interest accrued thereon, is repayable by the Participant.
VI. Plan Investments
Returns under the Plan will track a wide range of equity instruments invested in
throughout the year during which the deferred bonus is earned. The determination
of returns or losses will be grouped by Performance Year. Amounts deferred for
PEIG investment activity is subject to the approval of the BT Capital Board.
The extent of Plan participation in the aggregate PEIG investments will be
determined by the total amount of investments sourced by the Participants during
the Performance Year according to the following table:
<TABLE>
<CAPTION>
Total of Investments Participants'
Sourced by Participants Portion of Total Annual
During the Year PEIG Investments
----------------------- -----------------------
<S> <C>
Below $25mm 10%
$25 - $50mm 15%
over $50 mm 20%
</TABLE>
The maximum share in the aggregate of PEIG investment that Participants would be
awarded is 20%.
To the extent that certain deals are not accepted by PEIG for investment, the
Corporation may allow Participants as a group to invest in them without the
Corporation but with 3:1 "matching" by the Corporation. The matching for these
deals will be treated in the same manner as that for deals accepted by PEIG.
In these instances, deals will be reviewed on a case-by-case basis by an
"exceptions" investment board. The "exceptions" board will review the
advisability of the deal from both a Participant's, as well as the Corporation's
perspective. The composition of the "exceptions" board will include members of
senior management, including individuals from the Finance, Credit, Research and
Private Equity Groups. The "exceptions" board may include one or more Plan
Participants, but Plan Participants will always constitute less than the
majority of board members.
Gains from warrants received in the course of financing deals will not be part
of this plan, but will be included in the P&L of the Finance Group. Gains (and
losses) from all other deals are to be included in PEIG's P&L.
VII. Plan Distributions
Proceeds from liquidations of investments together with any current cash income
such as dividends and/or interest will be applied to close-out all matched funds
and accrued interest for the related Performance Year prior to any distribution
to Participants. Other than in cases of resignations or termination for cause,
the portion of matched funds plus interest which is repayable by participants is
closed-out with the first liquidation proceeds available. The balance of the
matched funds plus interest is closed-out next. In general, net proceeds in
excess of matched funds and interest are to be distributed to Participants,
within 60 days from when the underlying investments are liquidated.
Subject to the sole discretion of the CEO, the Corporation reserves the right to
hold back any or all distributions in instances where unliquidated deals of the
same Performance Year are expected to be settled with losses.
Upon final settlement of the Performance Year portfolio in which net proceeds
are insufficient to pay related matching funds plus interest, amounts repayable
will be first offset against cash distributable as current bonus.
All distributions from the plan are paid out as compensation and are subject to
the appropriate tax withholding at the time of payout. Unless otherwise
determined by the CEO, distributions from the Plan will be made entirely in
cash.
<PAGE>
12
VIII. Vesting Provisions
Participants who are in the continuous employ of the Corporation for one year
following the end of the Performance Year vest on gains related to their cash
deferral on the earlier of: (1) the liquidation of the underlying investment, or
(2) on the first anniversary of the end of the Performance Year.
Participants who are in the continuous employ of the Corporation for four years
following the end of the Performance Year vest on gains related to their matched
funds on the earlier of: (1) the liquidation of the underlying investment, or
(2) on the fourth anniversary of the end of the Performance Year.
Participants terminated due to retirement, death, total disability or who are
terminated without cause vest to the extent not vested on gains on both their
cash deferral and matched funds on their off-payroll dates.
Distributions to participants who are terminated for cause or who resign prior
to vesting are limited to the lesser of the investment plus interest or the
actual distribution.
IX. Repayable Matched Funds
Participants who remain active employees and those who are terminated due to
retirement, death, total disability or who are terminated without cause will
have net liquidation proceeds applied first against the half of the matched
funds which would be repayable in the event of a loss by the Participant. The
balance of matched funds are closed-out next.
In the event of terminations with cause or resignations prior to vesting the
application of net proceeds to funds repayable by the Participant will not begin
or, if begun, will be recharacterized, until other matched funds and related
interest have been settled.
In general, after all matched funds plus interest for a performance year have
been closed-out, Participants will begin to receive distributions. Bankers Trust
reserves the right to apply any distributable sums due to Participants to
close-out any other amounts due from the Participants under this Plan. Bankers
Trust further reserves the right to pursue legal action for amounts due from
Participants under this Plan, together with reasonable attorneys' fees.
X. Carried Interest Awards for Deal Team Members
The Deal Teams from the Finance Group will be granted a separate overriding
carried interest, less the cost of funds, of 5% of the first $5 million and 2
1/2% on the balance above $5 million on all investments sourced by them and
accepted by PEIG.
Deal Team members and their participation levels will be determined by the head
deal maker who will submit the names of individuals to the head of Finance or
his designate(s) for approval. All deal team participation is subject to the
final approval of the Finance Group and the Corporate Human Resources Department
as indicated by the authorization of both their signatures on the Award.
The overriding carried interests for each Deal Team member will cliff vest on
the third anniversary of the date on which the related investment was closed.
Distributions to Deal Team members will be made at year end, after netting gains
and losses attributable to his/her carried interests realized during each payout
year. The determination of gains and losses for the Deal Team's carried interest
will be computed under the terms and conditions of the GSIG Plan.
XI. Expenses of the Plan
All profit participation for the Finance Group, PEIG and Bankers Trust is net of
the Deal Team's overriding carried interest. Overhead is to be allocated to the
Plan on a pro-rata basis. The Corporation may charge the Plan with an annual
management fee.
XII. Transfers In and Out of the Plan
If an employee transfers into one of the groups eligible for this Plan and meets
the eligibility requirements, they may elect to contribute to the Plan at the
beginning of their first full Performance Year in the group.
If an employee transfers to another Corporate department not generally eligible
to participate in the Plan, all investments will continue to vest as scheduled,
but no further investment will be allowed without the approval of the CEO.
<PAGE>
13
XIII. Plan Restrictions
1. Participants' interests are not assignable, pledgeable or otherwise
transferable.
2. The Corporation reserves the right to limit participation of employees
deemed to be Executive Officers of the Corporation.
XIV. Legal Structure
The Plan is a nonqualified deferred compensation arrangement and all deferred
sums therein are to remain subject to the claims of general creditors of Bankers
Trust New York Corporation. Subject to the approval of the CEO, the Plan may be
modified as required based on foreign/state laws and regulations.
The provisions of this Plan are to be governed under the laws of the State of
New York.
XV. Tax Withholding
The Corporation will withhold all taxes due as required on amounts distributed
to Participants from the Plan as such amounts are distributed.
XVI. Effective Date
The Plan is to be effective January 1, 1996.
14
EXHIBIT 5
LETTERHEAD OF GORDON S. CALDER, JR.
September 16, 1996
Bankers Trust New York Corporation
1 Bankers Trust Plaza
130 Liberty Street
New York, NY 10006
Dear Sirs:
I am Managing Director and Counsel of Bankers Trust Company, a
subsidiary of Bankers Trust New York Corporation, a New York corporation (the
"Company"). In connection with the proposed filing with the Securities and
Exchange Commission expected to be made by the Company on the date hereof under
the Securities Act of 1933, as amended, of a Registration Statement on Form S-8
(the "Registration Statement") for the purpose of registering $30,000,000 of
Deferred Compensation Obligations which represent unsecured obligations of the
Company to pay deferred compensation in the future in accordance with the terms
of the Coinvestment Plan for the Finance Group (the "Plan"), I have examined the
Restated Certificate of Incorporation and By-Laws of the Company, the Plan, and
such other documents of the Company as I have deemed necessary or appropriate
for the purposes of the opinion expressed herein.
Based upon the foregoing, I am of the opinion that, when issued in
accordance with the provisions of the Plan, the Deferred Compensation
Obligations will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability relating to or
affecting enforcement of creditors' rights or by general equity principles.
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name wherever appearing in the
Registration Statement and any amendment thereto.
Very truly yours,
/s/ Gordon S. Calder, Jr.
Gordon S. Calder, Jr.
15
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Coinvestment Plan for the Finance Group
of Bankers Trust New York Corporation 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. We also
consent to the reference to our firm under the caption "Experts" in the
Prospectus related to such Registration Statement.
September 17, 1996
/s/ Ernst & Young LLP
Ernst & Young LLP
16
EXHIBIT 24
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 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 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, 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 securities of the Corporation
with respect to the Coinvestment Plan For The Finance Group of Bankers Trust New
York Corporation and Affiliates, 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
one or more Registration Statements to be filed with the Securities and Exchange
Commission with respect thereto, to any and all amendments, including pre- and
post- effective amendments, to the said Registration Statements and to any and
all instruments and documents filed as a part of or in connection with the said
Registration Statements 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.
July 16, 1996.
Bankers Trust New York Corporation
By: /s/ Frank N. Newman
----------------------------------
FRANK N. NEWMAN
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
/s/ Frank N. Newman
- ----------------------------------
FRANK N. NEWMAN
CHAIRMAN OF THE BOARD, CHIEF
EXECUTIVE OFFICER AND DIRECTOR
(PRINCIPAL EXECUTIVE OFFICER)
/s/ Richard H. Daniel
- ----------------------------------
RICHARD H. DANIEL
EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
(PRINCIPAL FINANCIAL OFFICER)
/s/ Geoffrey M. Fletcher
- ----------------------------------
GEOFFREY M. FLETCHER
SENIOR VICE PRESIDENT
(PRINCIPAL ACCOUNTING OFFICER)
/s/ George B. Beitzel Director
- ----------------------------------
GEORGE B. BEITZEL
<PAGE>
17
/s/ Phillip A. Griffiths Director
- ----------------------------------
PHILLIP A. GRIFFITHS
/s/ William R. Howell Director
- ----------------------------------
WILLIAM R. HOWELL
/s/ Jon M. Huntsman Director
- ----------------------------------
JON M. HUNTSMAN
/s/ Vernon E. Jordan, Jr. Director
- ----------------------------------
VERNON E. JORDAN, JR.
/s/ Hamish Maxwell Director
- ----------------------------------
HAMISH MAXWELL
/s/ N.J. Nicholas, Jr. Director
- ----------------------------------
N.J. NICHOLAS, JR.
/s/ Russell E. Palmer Director
- ----------------------------------
RUSSELL E. PALMER
/s/ Donald L. Staheli Director
- ----------------------------------
DONALD L. STAHELI
/s/ Patricia C. Stewart Director
- ----------------------------------
PATRICIA C. STEWART
/s/ George J. Vojta Director
- ----------------------------------
GEORGE J. VOJTA
