<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 25, 1997
REGISTRATION NO. 333-32909
POST-EFFECTIVE AMENDMENT NO. 2 TO REGISTRATION STATEMENT NOS. 333-15089 AND
333-15089-01 THROUGH -04
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
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 (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
130 LIBERTY STREET NEW YORK, NEW YORK 10006 (212) 250-2500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
Copies to
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
ROBERT E. BUCKHOLZ, JR., ESQ. SULLIVAN & CROMWELL 125 BROAD STREET NEW YORK,
NEW YORK 10004 (212) 558-4000
KEVIN KEOGH, ESQ.
WHITE & CASE 1155
AVENUE OF THE AMERICAS
NEW YORK, NEW YORK
10036 (212) 819-8200
(NAME, ADDRESS, INCLUDING
ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA
CODE, OF AGENTS FOR
SERVICE)
--------------
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. [X]
Pursuant to Rule 429 under the Securities Act, the Prospectus included in
this Registration Statement relates to the unsold Debt Securities having an
aggregate principal amount of $80,000,000 that were previously registered by
the Registrant under Registration Statement Nos. 333-15089 and 333-15089-01
through -04 on Form S-3 (effective January 31, 1997). This Pre-Effective
Amendment No. 1 to this Registration Statement constitutes Post-Effective
Amendment No. 2 to such prior registration statement. Such post-effective
amendment shall hereafter become effective in accordance with Section 8(c) of
the Securities Act concurrently with the effectiveness of this Registration
Statement.
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<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, ISSUE DATE: SEPTEMBER 25, 1997
PROSPECTUS
U.S.$3,080,000,000
BANKERS TRUST NEW YORK CORPORATION
LOGO
[LOGO OF BANKERS TRUST NEW YORK CORPORATION APPEARS HERE, FLUSH LEFT]
DEBT SECURITIES, COMMON STOCK, SERIES PREFERRED STOCK AND DEPOSITARY SHARES
Bankers Trust New York Corporation (the "Corporation") may offer from time to
time up to U.S.$3,080,000,000 aggregate initial offering price, or its
equivalent (based on the applicable exchange rate at the time of offering) in
such other currencies or currency units as shall be designated by the
Corporation at the time of offering, of one or more series of debt securities
(the "Debt Securities"), common stock, par value $1.00 per share (the "Common
Stock"), or one or more series of series preferred stock, without par value
(the "Series Preferred Stock"), interests in which may be represented by
depositary shares (the "Depositary Shares"). The Debt Securities may be senior
debt securities (the "Senior Debt Securities") or subordinated debt securities
(the "Subordinated Debt Securities"). Debt Securities, Common Stock, Series
Preferred Stock and Depositary Shares (collectively, the "Offered Securities")
will be offered on terms to be determined at the time of offering. If Debt
Securities are offered, the specific title, the aggregate principal amount, the
initial public offering or purchase price, the maturity date, the rate and time
of payment of any interest, any redemption provisions, any terms of conversion
or exchange and any other terms of the offering of such Debt Securities will be
set forth in the accompanying supplement to this Prospectus (the "Prospectus
Supplement"). If Common Stock is offered, the applicable Prospectus Supplement
will set forth the number of shares of Common Stock, the initial public
offering or purchase price and any other terms of the offering. If Series
Preferred Stock is offered, the applicable Prospectus Supplement will set forth
the specific title, aggregate number of shares of Series Preferred Stock and
aggregate number of related Depositary Shares, if any, any dividend,
liquidation, redemption, conversion, exchange, voting or other rights, the
initial public offering or purchase price and any other terms of the offering.
The Offered Securities may be sold either separately or together as units and
may be sold by the Corporation directly or through agents or dealers. In
addition, the Offered Securities may be sold to or through underwriting
syndicates led by one or more managing underwriters or through one or more
underwriters acting alone pursuant to offering terms fixed at the time of
offering. The agents and dealers or underwriters in connection with the sale of
any Offered Securities will be set forth in the applicable Prospectus
Supplement.
The Senior Debt Securities, when issued, will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Corporation. The Subordinated
Debt Securities, when issued, will be unsecured and subordinated as described
herein under "Description of Offered Securities--Description of Debt
Securities--Subordination." Payment of the principal of the Subordinated Debt
Securities may be accelerated only in the case of certain events involving the
bankruptcy, insolvency or reorganization of the Corporation. There will be no
right of acceleration of payment of Subordinated Debt Securities in the case of
a default in the performance of any covenant of the Corporation, including the
payment of principal or interest. See "Description of Offered Securities--
Description of Debt Securities--Events of Default--Subordinated Debt
Securities."
-----------
THE OFFERED 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.
-----------
Following the initial distribution of any Offered Securities, BT Alex. Brown
Incorporated ("BT Alex. Brown") and other affiliates of the Corporation may
offer and sell such securities in the course of their business as broker-
dealers. BT Alex. Brown and such other affiliates may act as principal or agent
in such transactions. This Prospectus and the applicable Prospectus Supplement
may be used by BT Alex. Brown 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.
The date of this Prospectus is , 1997.
<PAGE>
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Corporation can be inspected and
copied at the Commission's office at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and the Commission's Regional Offices in New York
(Seven World Trade Center, Suite 1300, New York, New York 10048) and Chicago
(500 West Madison Street, Suite 1400, Chicago, Illinois 60661). Copies of such
material can 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 statements and other
information regarding issuers, such as the Corporation, that file
electronically with the Commission. In addition, such material can be inspected
at the office of the New York Stock Exchange, Inc., and the office of the
American Stock Exchange, Inc. on which certain securities of the Corporation
are listed. This Prospectus does not contain all of the information set forth
in the registration statement of which this Prospectus is a part (the
"Registration Statement"), which the Corporation has filed with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), and to
which reference is hereby made, certain parts of which are omitted in
accordance with the rules and regulations of the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation 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, 1996, filed pursuant to Section 13 of the
Exchange Act;
(b) The Corporation's Quarterly Reports on Form 10-Q (file number 1-5920)
for the quarters ended March 31 and June 30, 1997, filed pursuant to
Section 13 of the Exchange Act;
(c) The Corporation's Current Reports on Form 8-K (file number 1-5920)
filed on January 23, March 14 (as amended by the Form 8-K/A filed on June
18), April 7, April 17, May 1, June 13, July 17 (as amended by the Form 8-
K/A filed on July 18), August 20, September 4, September 9 and September
12, 1997 pursuant to Section 13 of the Exchange Act; and
(d) The description of the Corporation's Common Stock and associated
Preferred Share Purchase Rights set forth in Registration Statements on
Form 8-A (file number 1-5920), filed pursuant to Section 12 of the Exchange
Act.
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. In addition, all
documents filed by the Corporation pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of the initial Registration Statement
and prior to effectiveness of the Registration Statement shall be deemed to be
incorporated by reference into this Prospectus. 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 to whom a copy of this Prospectus is delivered 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
2
<PAGE>
documents (unless such exhibits are specifically incorporated by reference into
such documents). 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.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE OFFERED
SECURITIES, INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING
TRANSACTIONS IN SUCH SECURITIES, AND THE IMPOSITION OF A PENALTY BID, DURING
AND AFTER THE OFFERING. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF
DISTRIBUTION."
----------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS OR THE APPLICABLE PROSPECTUS SUPPLEMENT, IN CONNECTION WITH THE
OFFERING CONTAINED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION AND
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
CORPORATION. THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THOSE TO WHICH THEY RELATE OR
AN OFFER TO ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER WOULD BE
UNLAWFUL OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT INFORMATION HEREIN OR THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THEREOF OR, IN THE CASE
OF INFORMATION INCORPORATED HEREIN OR THEREIN BY REFERENCE, THE DATE OF FILING
WITH THE COMMISSION.
3
<PAGE>
BANKERS TRUST NEW YORK CORPORATION
GENERAL
The Corporation is a bank holding company, incorporated under the laws of the
State of New York in 1965. At June 30, 1997, the Corporation had consolidated
total assets of $131.6 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 also provides a broad range
of financial advisory services to its clients and 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 loaned and 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.
RECENT DEVELOPMENTS
On September 1, 1997, the Corporation acquired Alex. Brown Incorporated
("ABI"), the parent of Alex. Brown & Sons Incorporated ("Alex. Brown"). The
acquisition was effected by the merger of ABI with and into a wholly owned
subsidiary of the Corporation, which subsidiary was then renamed BT Alex. Brown
Holdings Incorporated ("BT Alex. Brown Holdings"). The Corporation contributed
all the stock of BT Securities Corporation ("BT Securities"), the Corporation's
existing broker-dealer subsidiary, to BT Alex. Brown Holdings, which as a
result became the immediate parent of BT Securities. At the same time, Alex.
Brown was merged into BT Securities, which was then renamed "BT Alex. Brown
Incorporated." As a result of these transactions, BT Alex. Brown is a direct
wholly owned subsidiary of BT Alex. Brown Holdings and an indirect wholly owned
subsidiary of the Corporation, and combines the operations of BT Securities
with those of Alex. Brown. Because the merger was accounted for as a pooling-
of-interests, the Corporation's audited year-end 1996 historical financial
information and its unaudited first and second quarter 1997 historical
consolidated financial information has been restated to reflect the merger.
This restated supplemental financial information is set forth in the
Corporation's Current Report on Form 8-K filed on September 9, 1997.
4
<PAGE>
SUPPLEMENTAL CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED
------------------------ JUNE 30,
1992 1993 1994 1995 1996 1997
---- ---- ---- ---- ---- ----------
<S> <C> <C> <C> <C> <C> <C>
Excluding Interest on Deposits.......... 1.48 1.77 1.32 1.12 1.27 1.34
Including Interest on Deposits.......... 1.31 1.53 1.24 1.09 1.20 1.24
</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.
SUPPLEMENTAL CONSOLIDATED RATIOS OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED
------------------------ JUNE 30,
1992 1993 1994 1995 1996 1997
---- ---- ---- ---- ---- ----------
<S> <C> <C> <C> <C> <C> <C>
Excluding Interest on Deposits.......... 1.45 1.75 1.30 1.09 1.24 1.32
Including Interest on Deposits.......... 1.29 1.51 1.23 1.07 1.18 1.22
</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.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the net
proceeds from the sale of the Offered Securities will be used for general
corporate purposes, including investments in, or extensions of credit to, the
Corporation's subsidiaries. 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. Pending such applications, such net proceeds may
be temporarily invested or applied to the reduction of short-term indebtedness.
DESCRIPTION OF OFFERED SECURITIES
DESCRIPTION OF DEBT SECURITIES
Senior Debt Securities may be issued from time to time in one or more series
under an Indenture, dated as of November 1, 1991, between the Corporation and
The Chase Manhattan Bank (formerly The Chase Manhattan Bank (National
Association)), as Trustee (the "Senior Trustee"), as amended (as so amended and
as further amended from time to time, the "Senior Indenture"). Subordinated
Debt Securities may be issued from time to time in one or more series under an
Indenture, dated as of April 1, 1992, between the
5
<PAGE>
Corporation and Marine Midland Bank (formerly Marine Midland Bank, N.A.) as
Trustee (the "Subordinated Trustee"), as amended (as so amended and as further
amended from time to time, the "Subordinated Indenture"). The Senior Indenture
and the Subordinated Indenture are referred to collectively as the
"Indentures," and the Senior Trustee and the Subordinated Trustee are referred
to collectively as the "Trustees." As used under this caption, unless the
context otherwise requires, "debt securities" in lower case refers to all debt
securities issued or issuable, as the case may be, under the Indentures, and
"Debt Securities" refers to the debt securities covered by this Prospectus and
any accompanying Prospectus Supplement.
The statements under this caption are brief summaries of certain provisions
contained in the Indentures, do not purport to be complete, and are qualified
in their entirety by reference to the Indentures, including the definitions
therein of certain terms, copies of which are filed or incorporated by
reference as exhibits to the Registration Statement of which this Prospectus is
a part. The Debt Securities may be offered alone or with other Offered
Securities.
General
Each Indenture provides for the issuance of debt securities in one or more
series, and does not limit the principal amount of debt securities that may be
issued thereunder.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Debt Securities being offered hereby: (1) the specific title of
the Debt Securities; (2) whether the Debt Securities are Senior Debt Securities
or Subordinated Debt Securities; (3) the aggregate principal amount of the Debt
Securities; (4) the percentage of their principal amount at which the Debt
Securities will be issued; (5) the date on which the Debt Securities will
mature; (6) whether the Debt Securities will bear interest and, if so, the rate
or rates per annum or the method for determining the rate or rates at which the
Debt Securities will bear interest; (7) any index, security, commodity, group
of securities or commodities or formula used to determine the amount of
principal of, or premium, if any, and interest, if any, on, the Debt
Securities; (8) the time or times at which any such principal, premium or
interest will be payable; (9) any provisions relating to optional or mandatory
redemption of the Debt Securities; (10) the denominations in which the Debt
Securities are authorized to be issued; (11) the place or places at which, the
period or periods within which, the price or prices at which and the terms and
conditions, if any, upon which the Debt Securities may be exchanged for or
converted into other securities of the Corporation, including other Debt
Securities, Series Preferred Stock and Common Stock; (12) the currency or units
of two or more currencies in which the Debt Securities are denominated, if
other than U.S. dollars, and the currency or units of two or more currencies in
which interest is payable if other than the currency or unit of two or more
currencies in which the Debt Securities are denominated; (13) the place or
places at which the Corporation will make payments of principal, premium, if
any, and interest, if any, and the method of such payment; (14) whether the
Debt Securities will be issued, in whole or in part, in the form of one or more
Global Securities (as hereinafter defined) and, in such case, the depository
for such Global Security or Global Securities; (15) the person to whom any Debt
Security of such series will be payable, if other than the person in whose name
that Debt Security (or one or more Predecessor Securities (as defined in the
applicable Indenture)) is registered at the close of business on the Regular
Record Date (as defined in the applicable Indenture) for such interest; (16)
the extent to which, or the manner in which, any interest payable on a Global
Security on an Interest Payment Date (as defined in the applicable Indenture)
will be paid; (17) any additional covenants and Events of Default (as defined
in the applicable Indenture) and the remedies with respect thereto not set
forth in the applicable Indenture; and (18) any other specific terms of the
Debt Securities.
Subordination
Unless otherwise indicated in the applicable Prospectus Supplement, the
Subordinated Debt Securities will be subject to the subordination provisions
set forth in the Subordinated Indenture and described below.
The payment of the principal of, and premium, if any, and interest, if any,
on, the Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinated in right of payment to
6
<PAGE>
the prior payment in full of all Senior Indebtedness (as defined below). In
certain events of insolvency, the payment of the principal of, and premium, if
any, and interest, if any, on, the Subordinated Debt Securities will, to the
extent set forth in the Subordinated Indenture, also be effectively
subordinated in right of payment to the prior payment in full of all Other
Financial Obligations (as defined below). Upon any payment or distribution of
assets to creditors upon any liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors, marshalling of assets
or any bankruptcy, insolvency or similar proceedings of the Corporation, the
holders of all Senior Indebtedness will first be entitled to receive payment in
full of all amounts due or to become due thereon before the holders of the
Subordinated Debt Securities will be entitled to receive any payment in respect
of the principal of, premium, if any, or interest, if any, on the Subordinated
Debt Securities. If upon any such payment or distribution of assets to
creditors, there remain, after giving effect to such subordination provisions
in favor of the holders of Senior Indebtedness, any amounts of cash, property
or securities available for payment or distribution in respect of Subordinated
Debt Securities ("Excess Proceeds") and if, at such time, any Entitled Persons
(as defined below) in respect of Other Financial Obligations have not received
payment in full of all amounts due or to become due on or in respect of such
Other Financial Obligations, then such Excess Proceeds will first be applied to
pay or provide for the payment in full of such Other Financial Obligations
before any payment or distribution may be made in respect of the Subordinated
Debt Securities. In the event of the acceleration of the maturity of any
Subordinated Debt Securities, the holders of all Senior Indebtedness will first
be entitled to receive payment in full of all amounts due thereon before the
holders of the Subordinated Debt Securities will be entitled to receive any
payment upon the principal of, premium, if any, or interest, if any, on the
Subordinated Debt Securities. No payments on account of principal of, or
premium, if any, or interest, if any, on, the Subordinated Debt Securities or
on account of the purchase or acquisition of Subordinated Debt Securities may
be made if there has occurred and is continuing a default in any payment with
respect to Senior Indebtedness, or if any judicial proceeding is pending with
respect to any such default.
By reason of such subordination in favor of the holders of Senior
Indebtedness, in the event of insolvency, creditors of the Corporation who hold
obligations other than Senior Indebtedness and the Subordinated Debt Securities
may recover less in respect of such obligations, ratably, than holders of
Senior Indebtedness and may recover more in respect of such obligations,
ratably, than the holders of the Subordinated Debt Securities. By reason of the
obligation of the holders of the Subordinated Debt Securities to pay over any
Excess Proceeds to Entitled Persons in respect of Other Financial Obligations,
in the event of insolvency, holders of Existing Subordinated Indebtedness (as
defined below) that are not required to pay over Excess Proceeds may recover
less, ratably, than Entitled Persons in respect of Other Financial Obligations
and may recover more, ratably, than the holders of Subordinated Debt
Securities.
"Senior Indebtedness" means, unless otherwise specified in the applicable
Prospectus Supplement, the principal of, and premium, if any, and interest
(including interest accruing subsequent to the commencement of any proceeding
for the bankruptcy or reorganization of the Corporation under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on, (a) all
indebtedness for money borrowed, whether outstanding on the date of execution
of the Subordinated Indenture or thereafter created, assumed or incurred,
except such indebtedness as is by its terms expressly stated to be subordinate
in right of payment to, or to rank pari passu in right of payment with, the
Subordinated Debt Securities or any other obligation that ranks pari passu in
right of payment with the Subordinated Debt Securities, or is identified in a
Board Resolution (as defined in the Subordinated Indenture) or any indenture
supplemental to the Subordinated Indenture as being subordinate in right of
payment to, or as ranking pari passu in right of payment with, the Subordinated
Debt Securities or any other obligation that ranks pari passu in right of
payment with the Subordinated Debt Securities, and (b) any deferrals, renewals
or extensions of any such indebtedness for money borrowed; provided, however,
that Senior Indebtedness does not include (i) any obligations on account of
Existing Subordinated Indebtedness or (ii) any obligations as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligation is not Senior Indebtedness.
The term "indebtedness for money borrowed," when used with respect to the
Corporation, is defined to mean any obligation of, or any obligation guaranteed
by, the Corporation for the
7
<PAGE>
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments, and any deferred obligation for the payment
of the purchase price of property or assets.
"Existing Subordinated Indebtedness" means, unless otherwise specified in the
applicable Prospectus Supplement, the Corporation's Executive Convertible
Subordinated Debentures due 1997-2003, Zero Coupon Subordinated Yen Notes due
1998-2004, Subordinated Money Market Capital Notes, Series A, B and C due June
1999, 9.20% Subordinated Capital Notes due July 15, 1999, 9.50% Subordinated
Debentures due June 14, 2000, 5 3/4% Convertible Subordinated Debentures due
2001, 9.40% Subordinated Debentures due March 1, 2001, 9.00% Subordinated
Debentures due August 1, 2001, 7.50% Subordinated Debentures due January 15,
2002, 8 1/8% Subordinated Notes due 2002, 8 1/8% Subordinated Debentures due
May 15, 2002, 7 1/8% Subordinated Debentures due July 31, 2002, Subordinated
Floating Rate Notes due 2002, 7.25% Subordinated Debentures due January 15,
2003, Subordinated Constant Maturity Treasury Floating Rate Debentures due
2003, Subordinated LIBOR/CMT Floating Rate Debentures due 2003, Floating Rate
Subordinated Notes due 2004, 8 1/4% Subordinated Notes due 2005, Subordinated
Floating Rate Notes due 2005, Subordinated Yen Loan due 2005, 7 1/8%
Subordinated Notes due March 15, 2006, 6% Subordinated Notes due October 2008,
7 3/8% Subordinated Notes due 2008, 7 1/8% Subordinated Notes due 2010, 7 1/2%
Subordinated Notes due 2010, 7 1/4% Subordinated Notes due October 15, 2011,
7.75% Subordinated Notes due May 1, 2012, 7.15% Subordinated Notes due August
14, 2012, 7 1/2% Subordinated Notes due November 15, 2015, 6 1/8% Convertible
Capital Securities due June 2033 and 6.00% Convertible Capital Securities due
August 2033.
"Other Financial Obligations" means, unless otherwise specified in the
applicable Prospectus Supplement, all obligations of the Corporation to make
payment pursuant to the terms of financial instruments, such as (i) securities
contracts and foreign currency exchange contracts, (ii) derivative instruments,
such as swap agreements (including interest rate and foreign exchange rate swap
agreements), cap agreements, floor agreements, collar agreements, interest rate
agreements, foreign exchange rate agreements, options, commodity futures
contracts and commodity option contracts, and (iii) in the case of both (i) and
(ii) above, other similar financial instruments other than (A) obligations on
account of Senior Indebtedness and (B) obligations on account of indebtedness
for money borrowed ranking pari passu in right of payment with or subordinate
to the Subordinated Debt Securities. "Entitled Persons" means any person who is
entitled to payment pursuant to the terms of Other Financial Obligations.
The Corporation's obligations under the Subordinated Debt Securities will
rank pari passu in right of payment with each other and with the Existing
Subordinated Indebtedness, subject to the obligations of the holders of
Subordinated Debt Securities to pay over any Excess Proceeds to Entitled
Persons in respect of Other Financial Obligations as provided in the
Subordinated Indenture.
As of June 30, 1997, Senior Indebtedness and Other Financial Obligations of
the Corporation aggregated approximately $16.2 billion.
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness and Other Financial Obligations, which may
include indebtedness that is senior to the Subordinated Debt Securities but
subordinate to other obligations of the Corporation, including obligations of
the Corporation in respect of Senior Indebtedness and Other Financial
Obligations.
Form, Exchange, Registration and Transfer
Debt Securities of a series may be issuable in certificated or global form.
Debt Securities may be presented for registration of transfer (with the form of
transfer endorsed thereon duly executed) at the office of the Security
Registrar (as defined in the applicable Indenture), or at the office of any
transfer agent designated by the Corporation for such purpose with respect to
any series of Debt Securities and referred to in the applicable Prospectus
Supplement, without service charge and upon payment of any taxes and other
governmental charges as described in the applicable Indenture. Such transfer or
exchange will be effected upon the Security Registrar or such transfer agent,
as the case may be, being satisfied with the documents of title and identity of
the person making the request. The Corporation has appointed Bankers as
Security Registrar with respect
8
<PAGE>
to both the Senior Debt Securities and the Subordinated Debt Securities. If the
applicable Prospectus Supplement refers to any transfer agents (in addition to
the Security Registrar) initially designated by the Corporation with respect to
any series of Debt Securities, the Corporation may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, except that the Corporation will be
required to maintain a transfer agent in each Place of Payment (as defined in
the applicable Indenture) for such series. The Corporation may at any time
designate additional transfer agents with respect to any series of Debt
Securities.
In the event of any redemption in part, the Corporation will not be required
to (i) issue, register the transfer of or exchange any Debt Security during a
period beginning at the opening of business 15 days before the day of mailing
of a notice of redemption of Debt Securities of like tenor and of the series of
which such Debt Security is a part, and ending at the close of business on the
earliest date in which the relevant notice of redemption is deemed to have been
given to all holders of Debt Securities of like tenor and of such series to be
redeemed and (ii) register the transfer of or exchange any Debt Security so
selected for redemption, in whole or in part, except the unredeemed portion of
any Debt Security being redeemed in part.
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of and premium, if any, on any Debt Security will be made only
against surrender to the Paying Agent (as defined in the applicable Indenture)
in respect of such Debt Security. Unless otherwise indicated in the applicable
Prospectus Supplement, principal of, and premium, if any, and interest, if any,
on, Debt Securities will be payable, subject to any applicable laws and
regulations, at the office of such Paying Agent or Paying Agents as the
Corporation may designate from time to time, except that at the option of the
Corporation payment of any interest may be made by check mailed to the address
of the person entitled thereto as such address appears in the Security Register
(as defined in the applicable Indenture) with respect to such Debt Securities.
Unless otherwise indicated in the applicable Prospectus Supplement, payment of
interest on a Debt Security on any Interest Payment Date will be made to the
person in whose name such Debt Security (or any Predecessor Security) is
registered at the close of business on the Regular Record Date for such
interest.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporate Trust Office (as defined in the applicable Indenture) of Bankers in
The City of New York will be designated as the Corporation's sole Paying Agent
for payments with respect to Debt Securities of each series. Any Paying Agents
outside the United States and any other Paying Agents in the United States
initially designated by the Corporation for the Debt Securities of any series
will be named in the applicable Prospectus Supplement. The Corporation may at
any time designate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any Paying Agent
acts, except that the Corporation will be required to maintain a Paying Agent
in each Place of Payment for each series of Debt Securities.
All moneys paid by the Corporation to a Paying Agent for the payment of the
principal of, or premium, if any, or interest, if any, on, any Debt Security of
any series and that remain unclaimed at the end of two years after such
principal, premium or interest has become due and payable will be repaid to the
Corporation and the holder of such Debt Security must thereafter look only to
the Corporation for payment of such amounts.
Modification of the Indentures
Each Indenture contains provisions that permit the Corporation and the
applicable Trustee, with the consent of the holders of not less than 66 2/3% in
principal amount of the debt securities that are affected by the modification,
to modify the particular Indenture or any supplemental indenture or the rights
of the
9
<PAGE>
holders of the debt securities issued under such Indenture. However, no such
modification may, without the consent of the holder of each outstanding debt
security affected thereby, (a) change the stated maturity date of the principal
of, or any installment of principal of or interest, if any, on, any such debt
security, (b) reduce the principal amount of, or premium, if any, or rate of
interest, if any, on, any such debt security, (c) reduce the amount of
principal of an original issue discount debt security payable upon acceleration
of the maturity thereof, (d) change the place or currency of payment of
principal of, or premium, if any, or interest, if any, on, any such debt
security, (e) impair the right to institute suit for the enforcement of any
payment on or with respect to any such debt security, or (f) reduce the
percentage in principal amount of debt securities of any series then
Outstanding (as defined in such Indenture), the consent of whose holders is
required for modification or amendment of such Indenture or for waiver of
compliance with certain provisions of such Indenture or for waiver of certain
defaults.
Events of Default
Senior Debt Securities. An Event of Default with respect to Senior Debt
Securities of any series is defined in the Senior Indenture as being: default
for 30 days in payment of any interest on Senior Debt Securities of such
series; default in payment of principal of, or premium, if any, on, Senior Debt
Securities of such series; default for 30 days in payment of any mandatory
sinking fund payment required by the Senior Debt Securities of such series;
default for 90 days after notice in performance of any other covenant in the
Senior Debt Securities of such series or in the Senior Indenture; or certain
events of bankruptcy, insolvency or reorganization. If an Event of Default with
respect to Senior Debt Securities of any series occurs and is continuing, the
Senior Trustee or the holders of not less than 25% in aggregate principal
amount of the Senior Debt Securities of such series then Outstanding may
declare the principal of all such Senior Debt Securities to be due and payable
immediately. The Corporation is required to furnish to the Senior Trustee
annually a statement as to the performance by the Corporation of its
obligations under the Senior Indenture and as to any default in such
performance. Under certain circumstances, any declaration of acceleration with
respect to Senior Debt Securities of any series may be rescinded and past
defaults (except, unless theretofore cured, a default in the payment of
principal of, or premium, if any, or interest, if any, on, such Senior Debt
Securities) may be waived by the holders of a majority in aggregate principal
amount of the Senior Debt Securities of such series then Outstanding. The
Senior Trustee may withhold notice to the holders of the Senior Debt Securities
of any series of any continuing default (except in the payment of the principal
of, or premium, if any, or interest, if any, on, any Senior Debt Securities of
such series or in the payment of any sinking or purchase fund installment) if
the Senior Trustee considers it in the interest of the holders of such series
of Senior Debt Securities to do so.
Subordinated Debt Securities. An Event of Default with respect to
Subordinated Debt Securities of any series is defined in the Subordinated
Indenture as being certain events involving a bankruptcy, insolvency or
reorganization of the Corporation. If an Event of Default with respect to
Subordinated Debt Securities of any series occurs and is continuing, the
Subordinated Trustee or the holders of not less than 25% in aggregate principal
amount of the Subordinated Debt Securities of such series then Outstanding may
declare the principal of such Subordinated Debt Securities to be due and
payable immediately. The Corporation is required to furnish to the Subordinated
Trustee annually a statement as to the performance by the Corporation of its
obligations under the Subordinated Indenture and as to any default in such
performance. Under certain circumstances, any declaration of acceleration with
respect to Subordinated Debt Securities of any series may be rescinded and past
defaults (except, unless theretofore cured, a default in the payment of
principal of, or premium, if any, or interest, if any, on, such Subordinated
Debt Securities) may be waived by the holders of a majority in aggregate
principal amount of the Subordinated Debt Securities of such series then
Outstanding. The Subordinated Trustee may withhold notice to the holders of the
Subordinated Debt Securities of any series of any continuing default (except in
the payment of the principal of, or premium, if any, or interest, if any, on
any Subordinated Debt Securities of such series or in the payment of any
sinking or purchase fund installment) if the Subordinated Trustee considers it
in the interest of the holders of such series of Subordinated Debt Securities
to do so.
10
<PAGE>
The Subordinated Indenture does not provide for any right of acceleration of
the payment of the principal of a series of Subordinated Debt Securities upon a
default in the payment of principal, premium, if any, or interest, if any, or a
default in the performance of any covenant or agreement in the Subordinated
Debt Securities of the particular series or in the Subordinated Indenture. In
the event of a default in the payment of principal, premium, if any, or
interest, if any, the holder of a Subordinated Debt Security (or the
Subordinated Trustee on behalf of the holders of all of the series of
Subordinated Debt Securities affected) may, subject to certain limitations and
conditions, seek to enforce payment of such principal, premium, if any, or
interest, if any.
Consolidation, Merger, Sale or Conveyance
The Corporation has covenanted in the Indentures that it will not merge or
consolidate with any other corporation or sell or convey all or substantially
all of its assets to any person, firm or corporation unless the Corporation is
the continuing corporation, or the successor corporation is a corporation
organized under the laws of the United States of America or a state thereof and
such corporation expressly assumes the obligations of the Corporation under any
Outstanding Debt Securities and the respective Indentures and the Corporation
or such successor corporation is not, immediately after such merger,
consolidation, sale or conveyance, in default in the performance of any of the
covenants or conditions of the respective Indentures. The Indentures do not
contain any other covenant that restricts the Corporation's ability to merge or
consolidate with any other corporation, sell or convey all or substantially all
of its assets to any person, firm or corporation or otherwise engage in
restructuring transactions. Further, the Indentures do not contain any
provisions that would provide protection to holders of Debt Securities against
a sudden and dramatic decline in credit quality resulting from a takeover,
recapitalization or similar restructuring of the Corporation.
Title
The Corporation, the applicable Trustee and any agent of the Corporation or
the applicable Trustee may treat the registered owner of any Debt Security as
the absolute owner thereof (whether or not such Debt Security is overdue and
notwithstanding any notice to the contrary) for the purpose of making payment
and for all other purposes.
Replacement of Debt Securities
Any mutilated Debt Security will be replaced by the Corporation at the
expense of the holder upon surrender of such Debt Security to the applicable
Trustee. Debt Securities that are destroyed, lost or stolen will be replaced by
the Corporation at the expense of the holder upon delivery to the applicable
Trustee of evidence of such destruction, loss or theft satisfactory to the
Corporation and the applicable Trustee. In the case of a destroyed, lost or
stolen Debt Security, an indemnity satisfactory to the applicable Trustee and
the Corporation may be required at the expense of the holder of such Debt
Security before a replacement Debt Security will be issued.
Governing Law
The Indentures and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
Information Concerning the Trustees
Subject to the provisions of the applicable Indenture relating to its duties,
neither Trustee will be under any obligation to exercise any of its rights or
powers under such Indenture at the request, order or direction of any of the
holders of Debt Securities issued thereunder unless such holders have offered
reasonable indemnity to such Trustee. Subject to such provision for
indemnification, the holders of a majority in principal amount of the debt
securities then outstanding thereunder will have the right to direct the time,
method and
11
<PAGE>
place of conducting any proceeding for any remedy available to the applicable
Trustee under the applicable Indenture, or exercising any trust or power
conferred on such Trustee.
Senior Trustee. Bankers serves as trustee under various indentures for The
Chase Manhattan Corporation, parent company of the Senior Trustee. The Senior
Trustee also serves as trustee under another indenture with the Corporation
relating to other issues of its debt securities. In addition, the Corporation
and Bankers have other relationships arising in the ordinary course of business
with the Senior Trustee.
Subordinated Trustee. Bankers serves as trustee under various indentures for
affiliates of the Subordinated Trustee. In addition, the Corporation and
Bankers have other relationships arising in the ordinary course of business
with the Subordinated Trustee.
DESCRIPTION OF COMMON STOCK
The statements under this caption are brief summaries of certain provisions
contained in the Restated Certificate of Incorporation, as amended, of the
Corporation (the "Certificate of Incorporation"), the By-Laws of the
Corporation (the "By-Laws"), and the Rights Agreement, dated as of February 22,
1988 (the "Rights Agreement"), between the Corporation and Harris Trust Company
of New York, as Rights Agent, as successor to Morgan Shareholders Services
Trust Company, do not purport to be complete, and are qualified in their
entirety by reference to the Certificate of Incorporation, the By-Laws and the
Rights Agreement, copies of which are filed or incorporated by reference as
exhibits to the Registration Statement of which this Prospectus is a part. The
Common Stock may be offered alone or with other Offered Securities.
The Common Stock
Subject to the rights of holders of the Corporation's preferred stock,
holders of Common Stock are entitled to receive dividends when, as and if
declared by the Board of Directors of the Corporation out of any funds legally
available therefor, and are entitled upon liquidation, dissolution or winding
up, after claims of creditors, to receive pro rata the net assets of the
Corporation. The holders of the Common Stock are entitled to one vote for each
share held and are vested with all of the voting power except to the extent
that the Board of Directors provides voting rights with respect to any series
of preferred stock.
Holders of shares of Common Stock have non-cumulative voting rights, which
means that the holders of more than 50% of the shares voting for the election
of directors can elect 100% of the directors if they choose to do so, and, in
such event, the holders of the remaining fewer than 50% of the shares voting
for the election of directors will not be able to elect any person or persons
to the Board of Directors. The Common Stock does not have any sinking fund,
conversion or redemption provisions and does not carry preemptive rights.
Harris Trust Company of New York is the Transfer Agent and Registrar of the
Common Stock of the Corporation. The Common Stock is listed on the New York
Stock Exchange and The International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited.
Preferred Share Purchase Rights
On February 16, 1988, the Board of Directors of the Corporation declared a
dividend distribution of one Preferred Share Purchase Right (a "Right") for
each share of Common Stock held, payable February 26, 1988 to shareholders of
record on that date. Rights also automatically attach to each share of Common
Stock issued after February 26, 1988. The Rights are issued pursuant to the
Rights Agreement.
Each Right entitles the record holder to purchase from the Corporation a
1/100th interest in a share of the Corporation's Series C Junior Participating
Preferred Stock at an exercise price of $140, subject to certain
12
<PAGE>
adjustments. The Rights will not be exercisable or transferable apart from the
Common Stock until the tenth day after either a public announcement that a
person or group has acquired beneficial ownership of 20% or more of the Common
Stock or the announcement or commencement of a tender offer for 20% or more of
the Common Stock. If the Corporation is acquired or 50% or more of its
consolidated assets or earning power are sold, each holder of a Right will have
the right to receive, upon exercise at the then current exercise price of the
Right, that number of shares of common stock of the acquiring company having a
market value of two times the exercise price of the Right. If any person
becomes an Acquiring Person (as defined in the Rights Agreement) (unless such
person first acquires 20% or more of the outstanding Common Stock by a purchase
pursuant to a tender offer for all of the Common Stock for cash, which purchase
increases such person's beneficial ownership to 80% or more of the outstanding
Common Stock), each holder of a Right other than Rights beneficially owned by
the Acquiring Person (which will be void) will have the right to receive upon
exercise that number of shares of Common Stock having a market value of two
times the exercise price of the Right. The Rights will expire on February 26,
1998, but may be redeemed for $0.01 per Right at any time before a person or
group acquires the beneficial ownership of 20% or more of the Common Stock.
Until a Right is exercised, the holder has no rights as a shareholder of the
Corporation.
After the acquisition by a person or group of beneficial ownership of 20% or
more of the outstanding Common Stock and prior to the acquisition by such
person or group of 50% or more of the outstanding Common Stock, the Board of
Directors of the Corporation may exchange the Rights (other than Rights owned
by such person or group), in whole or in part, at an exchange ratio of one
share of Common Stock, or a 1/100th interest in a share of Series C Junior
Participating Preferred Stock (or a share of a class or series of the
Corporation's preferred stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
If issued, each share of Series C Junior Participating Preferred Stock will
be entitled, subject to adjustment, to (i) a quarterly dividend of the greater
of $1 per share or 100 times the quarterly dividend declared on each share of
Common Stock, (ii) in the event of liquidation, dissolution or winding up, a
preferential liquidation payment of the greater of $100 per share or 100 times
the liquidation payment made per share of Common Stock, and (iii) 100 votes per
share voting together with the holders of the Corporation's Common Stock on all
matters.
Under certain conditions, the Rights will also be redeemed in connection with
an acquisition of all of the Corporation's Common Stock for cash in a
transaction approved by the Corporation's shareholders. Subject to certain
specified conditions, a special meeting of the Corporation's shareholders to
vote on such a transaction will be called upon the request of a potential
acquiror.
DESCRIPTION OF SERIES PREFERRED STOCK
The Corporation is authorized to issue up to 10,000,000 shares of Series
Preferred Stock. All shares of Series Preferred Stock, irrespective of series,
constitute one and the same class. See "Description of the Corporation's
Capital Stock" below. The following description of the terms of the Series
Preferred Stock sets forth certain general terms and provisions of the Series
Preferred Stock to which any Prospectus Supplement may relate. Certain terms of
any series of Series Preferred Stock will be described in the applicable
Prospectus Supplement. If so indicated in the applicable Prospectus Supplement,
the terms of any such series may differ from the terms set forth below.
The statements under this caption are brief summaries of certain provisions
contained in the Certificate of Incorporation, the By-Laws and the certificate
of amendment to the Certificate of Incorporation relating to a particular
series of Series Preferred Stock (a "Certificate of Amendment"), do not purport
to be complete, and are qualified in their entirety by reference to the
Certificate of Incorporation and the By-Laws, copies of which are filed or
incorporated by reference as exhibits to the Registration Statement of which
this Prospectus is a part, and the applicable Certificate of Amendment, which
will be filed by the Corporation as an exhibit
13
<PAGE>
to the Registration Statement at or about the time of the sale of the
applicable series of Series Preferred Stock. The Preferred Stock may be offered
alone or with other Offered Securities.
General
Upon issuance, the Series Preferred Stock has preference over the Common
Stock with respect to the payment of dividends and the distribution of assets
in the event of liquidation, dissolution or winding up of the Corporation and
such other rights, preferences and limitations as may be fixed by the Board of
Directors. Dividend provisions, liquidation preferences, voting rights, if any,
sinking fund and redemption provisions, if any, and conversion and exchange
provisions, if any, with respect to each series of Series Preferred Stock also
will be fixed by the Board of Directors.
The Board of Directors is authorized to establish and designate series and to
fix the number of shares and the relative rights, preferences and limitations
of the respective series of the Series Preferred Stock. The terms of a
particular series of Series Preferred Stock may differ, among other things, in
(1) the number of shares that constitute such series, (2) the dividend rate (or
the method of calculation) on the shares of such series, and whether such
dividends are cumulative, (3) whether or not the shares of the series shall be
redeemable and the terms thereof, (4) whether or not the shares of the series
shall be convertible into, or exchangeable for, Common Stock or other Series
Preferred Stock of the Corporation and the terms thereof, (5) the amount per
share payable on the shares of the series in case of liquidation, dissolution
or winding up of the Corporation, (6) the terms of voting rights, if any, of
shares of the series, and (7) the other rights and privileges and any
qualifications, limitations or restrictions of such rights or privileges of
such series. Unless otherwise specifically set forth in the applicable
Prospectus Supplement, all shares of Series Preferred Stock shall be of equal
rank, preference and priority as to dividends; when the stated dividends on any
series are not paid in full, the shares of all series of the Series Preferred
Stock will share ratably in any dividend payment that is made; and upon
liquidation, dissolution or winding up, if assets are insufficient to pay in
full all Series Preferred Stock, then such assets are to be distributed among
the holders ratably.
As described under "--Description of Depositary Shares" below, the
Corporation may, at its option, elect to offer Depositary Shares evidenced by
Depositary Receipts (as defined below), each representing a fraction (to be
specified in the applicable Prospectus Supplement) of a share of the particular
series of Series Preferred Stock issued and deposited with a depositary, in
lieu of offering full shares of such series of the Series Preferred Stock.
Dividend Rights
The holders of the Series Preferred Stock will be entitled to receive, but
only when, as and if declared by the Board of Directors out of funds legally
available for that purpose, cash dividends at the rates and on the dates set
forth in the Prospectus Supplement relating to a particular series of Series
Preferred Stock, and no more (each date of such payment, a "Dividend Payment
Date"). Such rate may be fixed or variable, as set forth in the applicable
Prospectus Supplement. Each such dividend will be payable to the holders of
record of the shares of such series as they appear on the stock books of the
Corporation (or, if applicable, the records of the Depositary referred to below
under "--Description of Depositary Shares") on such record dates as are fixed
by the Board of Directors of the Corporation or a duly authorized committee
thereof. Unless otherwise specified in the applicable Prospectus Supplement,
dividends payable on any series of Series Preferred Stock for any period less
than a full quarter will be computed on the basis of the actual number of days
elapsed over a 360-day year, and for a period of a full quarter will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Unless otherwise specified in the applicable Prospectus Supplement, such
dividends will be payable from, and will be cumulative from, the date of
original issue of each share, so that if in the period between any two Dividend
Payment Dates (a "dividend period") dividends at the rate or rates as described
in the applicable Prospectus Supplement are not declared and paid or set apart
for payment on all outstanding shares of Series Preferred Stock for such
dividend period and all preceding dividend periods from and after the first day
from which dividends are cumulative, then the aggregate deficiency must be
14
<PAGE>
declared and fully paid or set apart for payment, but without interest, before
any dividends may be declared or paid or set apart for payment on the Common
Stock. The cutting-off of dividends on Common Stock until the arrearages have
been paid or provided for, as outlined above, and such rights, if any, to vote
for the election of directors as may be set forth in the applicable Prospectus
Supplement, will be the only consequences of the failure to declare or pay
dividends on the Series Preferred Stock. After payment in full of all dividend
arrearages on the Series Preferred Stock, dividends on the Common Stock may be
declared and paid out of funds legally available for that purpose as the Board
of Directors may determine.
Each series of Series Preferred Stock will be entitled to dividends as
described in the applicable Prospectus Supplement. Different series of Series
Preferred Stock may be entitled to dividends at different dividend rates or
based upon different methods of determination.
Optional Redemption
The Corporation may, at its option, at any time or from time to time on not
less than 30 and not more than 60 days' notice, redeem one or more series of
Series Preferred Stock, in whole or in part, at the redemption prices and on
the dates set forth in the applicable Prospectus Supplement.
Any optional redemption by the Corporation will be made only with the
approval of the appropriate bank regulatory authorities unless at the time of
redemption such approval is not required. At the date of this Prospectus, the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board") require that the optional redemption of any series of
Series Preferred Stock, if such series is to be treated as tier 1 capital of
the Corporation, be subject to the prior approval of the Federal Reserve Board.
If less than all the outstanding shares of a series of Series Preferred Stock
are to be redeemed, the selection of the shares to be redeemed will be
determined by lot or pro rata as may be determined by the Board of Directors of
the Corporation or by any other method that the Board of Directors may
determine to be equitable, unless otherwise specified in the applicable
Prospectus Supplement. From and after the redemption date (unless default is
made by the Corporation in providing for the payment of the redemption price),
dividends will cease to accrue on the shares of Series Preferred Stock called
for redemption and all rights of the holders thereof (except the right to
receive the redemption price) will cease.
At the option of the Corporation, shares of Series Preferred Stock redeemed
or otherwise acquired by the Corporation may be restored to the status of
authorized but unissued shares of Series Preferred Stock.
Conversion or Exchange
The holders of shares of any series of Series Preferred Stock will have such
rights, if any, to convert such shares into, or to exchange such shares for,
cash, shares of Common Stock or shares of any other series of Series Preferred
Stock of the Corporation, as may be set forth in the applicable Prospectus
Supplement.
Voting Rights
Except as indicated below or in the applicable Prospectus Supplement, or
except as expressly required by applicable law, the holders of the Series
Preferred Stock will not be entitled to vote. Each share of any series of
Series Preferred Stock will generally be entitled to one vote on matters on
which holders of such series are entitled to vote, irrespective of such series'
aggregate stated value, liquidation preference or initial offering price.
However, as more fully described under "--Description of Depositary Shares"
below, if the Corporation elects to issue Depositary Shares representing a
fraction of a share of a series of Series Preferred Stock, each such Depositary
Share will, in effect, be entitled to the same fraction of a vote, rather than
a full vote, per Depositary Share.
15
<PAGE>
Unless otherwise specified in the applicable Prospectus Supplement, so long
as any shares of any series of Series Preferred Stock remain outstanding, the
Corporation may not amend the Certificate of Incorporation so as to adversely
affect or subordinate the rights of the Series Preferred Stock without the
affirmative vote or consent of the holders of at least a majority of the
outstanding shares of Series Preferred Stock. However, unless otherwise
specified in the applicable Prospectus Supplement, if any such adverse
alteration affects the rights of only a single series of Series Preferred
Stock, then the alteration may be effected only with the vote or consent of at
least a majority of the outstanding shares of such series of Series Preferred
Stock. An increase in the authorized amount of the Series Preferred Stock
and/or the creation and issuance of other series of Series Preferred Stock or
serial preferred stock in accordance with the Certificate of Incorporation will
not be, or be deemed to be, an adverse alteration.
The foregoing voting provisions will not apply if, in connection with the
matters specified, provision is made for the redemption or retirement of all
outstanding Series Preferred Stock of each affected series.
Under regulations adopted by the Federal Reserve Board, if the holders of any
series of Series Preferred Stock become entitled to vote for the election of
directors because dividends on such series are in arrears, such series may then
be deemed a "class of voting securities," and a holder of 25% or more of such
series (or a holder of 5% or more if it otherwise exercises a "controlling
influence" over the Corporation) may then be subject to regulation as a bank
holding company in accordance with the Bank Holding Company Act of 1956, as
amended (the "BHC Act"). In addition, at such time (i) any bank holding company
may be required to obtain the approval of the Federal Reserve Board under the
BHC Act, and any foreign bank, and any company that controls a foreign bank,
that has certain types of U.S. banking operations may be required to obtain the
approval of the Federal Reserve Board under the International Banking Act of
1978, as amended, to acquire or retain 5% or more of any series of Series
Preferred Stock and (ii) any person other than a bank holding company may be
required to obtain the approval of the Federal Reserve Board under the Change
in Bank Control Act to acquire 10% or more of such series of Series Preferred
Stock.
Liquidation Rights
Upon any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of the Series Preferred Stock will have
preference and priority over the Common Stock for payment out of the assets of
the Corporation or proceeds thereof, whether from capital or surplus, of such
amounts as are set forth in the applicable Prospectus Supplement and, after
such payment, the holders of such series of Series Preferred Stock will be
entitled to no other payments. If, in such case, the assets of the Corporation
or proceeds thereof are insufficient to make the full liquidating payment on
such series of Series Preferred Stock and liquidating payments on any other
outstanding Series Preferred Stock (including accrued and unpaid dividends, if
any), then such assets and proceeds will be distributed among the holders of
such series of Series Preferred Stock and any other outstanding series of
Series Preferred Stock, ratably in accordance with the respective amounts that
would be payable on all Series Preferred Stock (including accrued and unpaid
dividends, if any) if all such liquidating amounts payable were paid in full. A
consolidation or merger of the Corporation with or into any other corporation
or corporations or a sale, whether for cash, shares of stock, securities or
properties, of all or substantially all or any part of the assets of the
Corporation will not be deemed or construed to be a liquidation, dissolution or
winding up of the Corporation.
Miscellaneous
Harris Trust Company of New York will serve as transfer agent, dividend
disbursing agent and registrar for the Series Preferred Stock. The holders of
Series Preferred Stock will not have any preemptive rights to purchase or
subscribe for any shares of any class or other securities of any type of the
Corporation. When issued and paid for as described in this Prospectus and the
applicable Prospectus Supplement, the Series Preferred Stock will be fully paid
and nonassessable. The Certificate of Amendment setting forth the
16
<PAGE>
provisions of each series of Series Preferred Stock will become effective after
the date of this Prospectus but at or before issuance of the related series of
Series Preferred Stock.
DESCRIPTION OF DEPOSITARY SHARES
General
The Corporation may, at its option, elect to offer fractional shares of
Series Preferred Stock, rather than full shares of Series Preferred Stock. If
this option is exercised, the Corporation will issue to the public receipts for
Depositary Shares, each of which will represent a fraction (to be set forth in
the applicable Prospectus Supplement) of a share of a particular series of
Series Preferred Stock as described below.
The shares of any series of Series Preferred Stock represented by Depositary
Shares will be deposited under a deposit agreement (each, a "Deposit
Agreement") between the Corporation and a bank or trust company selected by the
Corporation, having its principal office in the United States (each, a
"Depositary"). Subject to the terms of the applicable Deposit Agreement, each
owner of a Depositary Share will be entitled, in proportion to the applicable
fraction of a share of Series Preferred Stock represented by such Depositary
Share, to all the rights and preferences of the Series Preferred Stock
represented thereby (including dividend, voting, redemption and liquidation
rights).
The statements under this caption are brief summaries of certain provisions
contained in the form of Deposit Agreement relating to a particular series of
Depositary Shares, do not purport to be complete, and are qualified in their
entirety by reference to the form of Deposit Agreement, a copy of which is
filed as an exhibit to the Registration Statement of which this Prospectus is a
part, and to the actual Deposit Agreement relating to such series of Depositary
Shares, which will be filed by the Corporation as an exhibit to the
Registration Statement at or about the time of the sale of the applicable
series of Depositary Shares. The Depositary Shares may be offered alone or with
other Offered Securities.
Form
The Depositary Shares relating to any series of Series Preferred Stock will
be evidenced by receipts (the "Depositary Receipts") issued pursuant to the
applicable Deposit Agreement. Depositary Receipts will be distributed to those
persons purchasing the fractional shares of the related series of Series
Preferred Stock in accordance with the terms of the offering described in the
applicable Prospectus Supplement.
Pending the preparation of any definitive engraved or printed Depositary
Receipts relating to any series of Series Preferred Stock, the applicable
Depositary may, upon the written order of the Corporation, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) such definitive Depositary Receipts
but not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Corporation's
expense.
Dividends and Other Distributions
The applicable Depositary will distribute all cash dividends or other cash
distributions received in respect of the series of Series Preferred Stock
represented by any series of Depositary Shares to the record holders of such
Depositary Shares in proportion to the number of such Depositary Shares owned
by such holders.
In the event of a distribution other than in cash, the applicable Depositary
will distribute property received by it to the record holders of Depositary
Shares entitled thereto, unless the Depositary determines that it is not
feasible to make such distribution, in which case the Depositary may, with the
approval of the Corporation, sell such property and distribute the net proceeds
from such sale to such holders.
17
<PAGE>
Withdrawal of Stock
Upon surrender of Depositary Receipts at the corporate trust office of the
applicable Depositary (unless the applicable Depositary Shares have previously
been called for redemption as described below), the holder of the Depositary
Shares evidenced thereby will be entitled to delivery at such office to or upon
such holder's order, of the number of whole shares of the related series of
Series Preferred Stock and any money or other property represented by such
Depositary Shares. Holders of Depositary Shares will be entitled to receive
whole shares of the related series of Series Preferred Stock on the basis set
forth in the applicable Prospectus Supplement, but holders of such whole shares
of such Series Preferred Stock will not thereafter be entitled to receive
Depositary Shares in exchange therefor. If the Depositary Receipts delivered by
the holder evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole shares of the related series
of Series Preferred Stock to be withdrawn, the applicable Depositary will
deliver to such holder at the same time a new Depositary Receipt evidencing
such excess number of Depositary Shares.
Redemption of Depositary Shares
If a series of Series Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the applicable Depositary upon the redemption, in whole or in part,
of such series of Series Preferred Stock held by such Depositary. The
redemption price per Depositary Share will be equal to the applicable fraction
of the redemption price per share payable with respect to such series of Series
Preferred Stock. Whenever the Corporation redeems shares of Series Preferred
Stock held by a Depositary, such Depositary will redeem, as of the same
redemption date, the number of Depositary Shares representing shares of the
related series of Series Preferred Stock so redeemed. If less than all the
Depositary Shares are to be redeemed, unless otherwise specified in the
applicable Prospectus Supplement, the Depositary Shares to be redeemed will be
selected by lot or pro rata or by any other method as may be determined by the
Depositary to be equitable.
Voting the Series Preferred Stock
Upon receipt of notice of any meeting at which the holders of the Series
Preferred Stock are entitled to vote, the applicable Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such Series Preferred Stock. Each record holder
of such Depositary Shares on the record date (which will be the same date as
the record date for the Series Preferred Stock) will be entitled to instruct
such Depositary as to the exercise of the voting rights pertaining to the
amount of the Series Preferred Stock represented by such holder's Depositary
Shares. The applicable Depositary will endeavor, insofar as practicable, to
vote the amount of the Series Preferred Stock represented by such Depositary
Shares in accordance with such instructions, and the Corporation will agree to
take all action that may be deemed necessary by such Depositary in order to
enable such Depositary to do so. The applicable Depositary will abstain from
voting shares of the Series Preferred Stock to the extent that it does not
receive specific instructions from the holders of Depositary Shares
representing such Series Preferred Stock.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing Depositary Shares and any provision
of the applicable Deposit Agreement may at any time be amended by agreement
between the Corporation and the applicable Depositary. However, unless
otherwise specified in the applicable Prospectus Supplement, any amendment that
materially and adversely alters the rights of the holders of Depositary Shares
issued under any Deposit Agreement will not be effective unless such amendment
has been approved by the holders of at least a majority of the Depositary
Shares then outstanding under such Deposit Agreement. A Deposit Agreement may
be terminated by the Corporation or the applicable Depositary only if (i) all
outstanding Depositary Shares under such Deposit Agreement have been redeemed
or (ii) there has been a final distribution in respect of the
18
<PAGE>
related series of Series Preferred Stock in connection with any liquidation,
dissolution or winding up of the Corporation and such distribution has been
distributed to the holders of Depositary Receipts.
Charges of Depositary
The Corporation will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Corporation will also pay charges of the applicable Depositary in connection
with the initial deposit of the related series of Series Preferred Stock, any
redemption of such Series Preferred Stock at the option of the Corporation, and
any withdrawals of Series Preferred Stock by the holders of Depositary Shares.
Holders of Depositary Receipts will pay transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
applicable Deposit Agreement to be for their accounts.
Resignation and Removal of Depositary
A Depositary may resign at any time by delivering to the Corporation notice
of its election to do so, and the Corporation may at any time remove a
Depositary, and any such resignation or removal will take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
Such successor Depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
Miscellaneous
Each Depositary will forward to the holders of the applicable series of
Depositary Shares all reports and communications from the Corporation that are
delivered to such Depositary as the holder of the applicable series of Series
Preferred Stock.
Neither a Depositary nor the Corporation will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the applicable Deposit Agreement. The obligations of the
Corporation and the Depositary under each Deposit Agreement will be limited to
performance in good faith of their duties thereunder and they will not be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or Series Preferred Stock unless satisfactory indemnity is
furnished. They may rely on written advice of counsel or accountants, or
information provided by persons presenting Series Preferred Stock for deposit,
holders of Depositary Receipts or other persons believed to be competent, and
on documents believed to be genuine.
BOOK-ENTRY SECURITIES
The Offered Securities may be issued in the form of one or more global
certificates (collectively, with respect to each series or issue of Offered
Securities, the "Global Security") registered in the name of a depositary or a
nominee of a depositary. Unless otherwise specified in the applicable
Prospectus Supplement, the depositary will be The Depository Trust Company
("DTC"). The Corporation has been informed by DTC that its nominee will be Cede
& Co. ("Cede"). Accordingly, Cede is expected to be the initial registered
holder of any series of Offered Securities that are issued in global form. No
person that acquires an interest in such Offered Securities will be entitled to
receive a certificate representing such person's interest in such Offered
Securities except as set forth herein or in the applicable Prospectus
Supplement. Unless and until definitive Offered Securities are issued under the
limited circumstances described herein, all references to actions by holders of
Offered Securities issued in global form shall refer to actions taken by DTC
upon instructions from its Participants (as defined below), and all references
herein to payments and notices to such holders shall refer to payments and
notices to DTC or Cede, as the registered holder of such Offered Securities.
19
<PAGE>
DTC has informed the Corporation that it is a limited purpose trust company
organized under the New York Banking Law and a "banking organization" within
the meaning of the New York Banking Law, that it is 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 Section
17A of the Exchange Act, and that it was created to hold securities for its
participating organizations ("Participants") and to facilitate the clearance
and settlement of securities transactions among Participants through electronic
book-entry, thereby eliminating the need for physical movement of certificates.
Participants include securities brokers and dealers, banks, trust companies and
clearing corporations, and may include certain other organizations. Indirect
access to the DTC system also is available to others such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly ("Indirect
Participants").
Holders that are not Participants or Indirect Participants but that desire to
purchase, sell or otherwise transfer ownership of, or other interests in,
Offered Securities may do so only through Participants and Indirect
Participants. Under a book-entry format, holders may experience some delay in
their receipt of payments, as such payments will be forwarded by the agent
designated by the Corporation to Cede, as nominee for DTC. DTC will forward
such payments to its Participants, which thereafter will forward them to
Indirect Participants or holders. Holders will not be recognized by the
applicable Trustee or Depositary or by the Corporation as registered holders of
the Offered Securities entitled to the benefits of the applicable Indenture or
Deposit Agreement or the terms of the Offered Securities. Holders that are not
Participants will be permitted to exercise their rights as such only indirectly
through and subject to the procedures of Participants and, if applicable,
Indirect Participants.
Under the rules, regulations and procedures creating and affecting DTC and
its operations as currently in effect (the "Rules"), DTC will be required to
make book-entry transfers of Offered Securities among Participants and to
receive and transmit payments to Participants. Participants and Indirect
Participants with which holders have accounts with respect to the Offered
Securities similarly are required by the Rules to make book-entry transfers and
receive and transmit such payments on behalf of their respective holders.
Because DTC can act only on behalf of Participants, which in turn act only on
behalf of holders or Indirect Participants, and on behalf of certain banks,
trust companies and other persons approved by it, the ability of a holder to
pledge Offered Securities to persons or entities that do not participate in the
DTC system, or to otherwise act with respect to such Offered Securities, may be
limited due to the absence of physical certificates for such Offered
Securities.
DTC has advised the Corporation that DTC will take any action permitted to be
taken by a registered holder of any Offered Securities under the applicable
Indenture or Deposit Agreement or the terms of the Offered Securities only at
the direction of one or more Participants to whose accounts with DTC such
Offered Securities are credited.
A Global Security will be exchangeable for the relevant definitive Offered
Securities registered in the names of persons other than DTC or its nominee
only if (i) DTC notifies the Corporation that it is unwilling or unable to
continue as depositary for such Global Security or if at any time DTC ceases to
be a clearing agency registered under the Exchange Act at a time when DTC is
required to be so registered in order to act as such depository, (ii) the
Corporation determines that such Global Security shall be so exchangeable or
(iii) in the case of Debt Securities, an Event of Default has occurred and is
continuing with respect to such Debt Securities. Any Global Security that is
exchangeable pursuant to the preceding sentence will be exchangeable for
definitive Offered Securities registered in such names as DTC directs.
Upon the occurrence of any event described in the immediately preceding
paragraph, DTC is generally required to notify all Participants of the
availability of definitive Offered Securities. Upon surrender by DTC of the
Global Security representing the Offered Securities and delivery of
instructions for re-registration, the
20
<PAGE>
applicable Trustee or Depositary or the applicable registrar, as the case may
be, will reissue the Offered Securities as definitive Offered Securities, and
thereafter such Trustee, Depositary or registrar will recognize the holders of
such definitive Offered Securities as registered holders of Offered Securities
entitled to the benefits of the applicable Indenture or Deposit Agreement or
the terms of the Offered Securities, as the case may be.
Except as described above, a Global Security may not be transferred except as
a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or to a successor depositary appointed by the Corporation.
Except as described above, DTC may not sell, assign, transfer or otherwise
convey any beneficial interest in a Global Security evidencing all or part of
the Offered Securities of any series unless such beneficial interest is in an
amount equal to an authorized denomination for such Offered Securities.
UNITED STATES TAXATION
Certain special United States federal income tax considerations may be
applicable to the Offered Securities. If Debt Securities are issued at an
original issue discount or any such tax considerations are material to
investors, the applicable Prospectus Supplement will describe the tax
considerations and a tax opinion will be filed with the Commission. Prospective
purchasers of Offered Securities are urged to consult their own tax advisors
prior to any acquisition of such Offered Securities.
FOREIGN CURRENCY RISKS
GENERAL
Debt Securities of a series may be denominated in or linked to such foreign
currencies or units of two or more currencies as may be designated by the
Corporation at the time of offering ("Foreign Currency Securities").
ADDITIONAL FACTORS MAY BE SET FORTH IN CONNECTION WITH A SPECIFIC FOREIGN
CURRENCY SECURITY IN THE APPLICABLE PROSPECTUS SUPPLEMENT.
Unless otherwise indicated in the applicable Prospectus Supplement, a Foreign
Currency Security will not be sold in, or to a resident of, the country that
issues the Specified Currency (as defined below) in which such Foreign Currency
Security is denominated. The information set forth below and in any applicable
Prospectus Supplement is by necessity incomplete and prospective purchasers of
Foreign Currency Securities should consult their own financial and legal
advisors with respect to any matters that may affect the purchase or holding of
a Foreign Currency Security or the receipt of payments of principal of,
premium, if any, and interest, if any, on a Foreign Currency Security in a
Specified Currency.
EXCHANGE RATES AND EXCHANGE CONTROLS
An investment in Foreign Currency Securities may entail significant risks
that are not associated with a similar investment in a security denominated in
U.S. dollars. Such risks may include, without limitation, the possibility of
significant changes in the rate of exchange between the U.S. dollar and the
currency or currency unit designated by the Corporation at the time of offering
(the "Specified Currency") and the possibility of the imposition or
modification of foreign exchange controls by either the United States or
foreign governments. Such risks generally depend on economic and political
events and the supply of and demand for the relevant currencies, over which the
Corporation has no control. In recent years, rates of exchange between the U.S.
dollar and many foreign currencies or currency units have been highly volatile
and such volatility may be expected in the future. The exchange rate between
the U.S. dollar and a foreign currency or currency unit is at any moment a
result of the supply of and demand for such currencies, and changes in the rate
result over time from the interaction of many factors, among which are rates of
inflation, interest rate levels, balances of payments and the extent of
governmental surpluses or deficits in the countries of such currencies. These
factors are in turn sensitive to the monetary, fiscal and trade policies
pursued by such
21
<PAGE>
governments and those of other countries important to international trade and
finance. Fluctuations in any particular exchange rate that have occurred in the
past are not necessarily indicative, however, of the fluctuations in the rate
that may occur during the term of any Foreign Currency Security. Depreciation
of the Specified Currency applicable to a Foreign Currency Security against the
U.S. dollar would generally result in a decrease in the U.S. dollar-equivalent
yield of such Foreign Currency Security, in the U.S. dollar-equivalent value of
the principal repayable at maturity of such Foreign Currency Security and,
generally, in the U.S. dollar-equivalent market value of such Foreign Currency
Security.
Foreign exchange rates can either be fixed by sovereign governments or float.
Exchange rates of most economically developed noncommunist nations are
permitted to fluctuate in value relative to the U.S. dollar. Sovereign
governments, however, rarely voluntarily allow their currencies to float freely
in response to economic forces. In fact, such governments use a variety of
techniques, such as intervention by a country's central bank or imposition of
regulatory controls or taxes, to affect the exchange rate of their currencies.
Governments may also issue a new currency to replace an existing currency or
alter the exchange rate or relative exchange characteristics by devaluation or
revaluation of a currency. Thus, a special risk in purchasing Debt Securities
that are denominated in or linked to a foreign currency or currency unit is
that their U.S. dollar-equivalent yields could be affected by governmental
actions that could change or interfere with a theretofore freely determined
currency valuation, by fluctuations in response to other market forces and by
the movement of currencies across borders. Unless otherwise specified in the
applicable Prospectus Supplement, there will be no adjustment or change in the
terms of the Foreign Currency Securities if exchange rates should become fixed,
or in the event of any devaluation or revaluation or imposition of exchange or
other regulatory controls or taxes, or in the event of other developments,
affecting the U.S. dollar or any applicable currency or currency unit.
Governments have imposed from time to time exchange controls and may in the
future impose or revise exchange controls at or prior to a Foreign Currency
Security's maturity. Even if there are no exchange controls in effect with
respect to a Specified Currency, it is possible that the Specified Currency for
any particular Foreign Currency Security would not be available at such Foreign
Currency Security's maturity due to other circumstances beyond the control of
the Corporation.
EUROPEAN MONETARY UNION
Under Article 109G of the Treaty establishing the European Communities, as
amended by the Treaty on European Union (the "Treaty"), the currency
composition of the ECU may not be changed. The Treaty contemplates that
European monetary union will occur in three stages, the second of which began
on January 1, 1994 with the entry into force of the Treaty. The Treaty provides
that, at the start of the third stage of European monetary union, the value of
the ECU as against the currencies of the member states participating in the
third stage will be irrevocably fixed and the ECU will become a currency in its
own right. In contemplation of that third stage, the European Council meeting
in Madrid on December 16, 1995 decided that the name of that currency will be
the Euro and that, in accordance with the Treaty, substitution of the Euro for
the ECU will be at the rate of one Euro for one ECU. From the start of the
third stage of European monetary union, all payments in respect of Notes
payable in ECU and other currencies that will be replaced by the Euro will be
payable in the Euro at the rate then established pursuant to the Treaty.
JUDGMENTS
If an action based on Foreign Currency Securities were commenced in a court
of the United States, it is likely that such court would grant judgment
relating to such Foreign Currency Securities only in U.S. dollars. It is not
clear, however, whether, in granting such judgment, the rate of conversion into
U.S. dollars would be determined with reference to the date of default, the
date on which judgment is rendered or some other date. Holders of Foreign
Currency Securities would bear the risk of exchange rate fluctuations between
the time the amount of the judgment is calculated and the time the applicable
Trustee converts U.S. dollars to the Specified Currency for payment of the
judgment.
22
<PAGE>
DESCRIPTION OF THE CORPORATION'S CAPITAL STOCK
AUTHORIZED CAPITAL STOCK
The Corporation is authorized to issue 300,000,000 shares of Common Stock and
10,000,000 shares of Series Preferred Stock. Neither the Common Stock nor the
Series Preferred Stock has preemptive rights. Each share of Common Stock has
attached to it one Right issued pursuant to the Rights Agreement. Each Right
entitles the holder of a share of Common Stock to acquire a 1/100th interest in
a share of the Corporation's Series C Junior Participating Preferred Stock, as
described under "Description of Offered Securities-- Description of Common
Stock--Preferred Share Purchase Rights" above.
At the Annual Meeting of the Corporation on April 17, 1990, shareholders
voted in favor of an amendment to the Certificate of Incorporation increasing
the number of shares of authorized preferred stock from 10,000,000 to
20,000,000 by creating a new class of serial preferred stock, without par
value, with 10,000,000 authorized shares. This proposed amendment would not
give the holders of serial preferred stock preemptive rights.
As of June 30, 1997 (after adjustment to reflect the acquisition of ABI),
approximately 98,778,102 shares of Common Stock and 1,303,902 shares of Series
Preferred Stock were issued and outstanding, and approximately 45,460,029
shares of Common Stock were reserved for issuance under various plans and
agreements.
The Common Stock and the Series Preferred Stock are more fully described
under "Description of Offered Securities--Description of Common Stock" and
"Description of Offered Securities--Description of Series Preferred Stock"
above.
OUTSTANDING SERIES PREFERRED STOCK
Fixed/Adjustable Rate Cumulative Preferred Stock, Series J. On October 28,
1992, the Corporation issued 447,225 shares of the Corporation's
Fixed/Adjustable Rate Cumulative Preferred Stock, Series J ($100 Liquidation
Preference) (the "Series J Preferred Stock"). Dividends on the Series J
Preferred Stock are cumulative. If dividends payable on the Series J Preferred
Stock are in arrears in an amount equivalent to dividends for six full dividend
periods, the number of directors of the Corporation will be increased by two
and the holders of the outstanding Series J Preferred Stock, voting together as
a single class with holders of shares of any other Series Preferred Stock then
outstanding upon which like voting rights have been conferred and are then
exercisable, will be entitled to elect two additional directors until all
dividends in arrears have been declared and paid or set apart for payment in
full. In the event of liquidation, dissolution or winding up of the
Corporation, the holders of the Series J Preferred Stock are entitled to
receive a distribution of $100 per share, plus, in each case, accrued and
unpaid dividends to the date of final distribution.
Prior to December 1, 1997, shares of Series J Preferred Stock are redeemable
at the option of the Corporation at a redemption price per share of $103.00 and
thereafter at $100 per share. The redemption price set forth above with respect
to Series J Preferred Stock will be increased, in each case, by the amount of
accrued and unpaid dividends thereon to the date fixed for redemption.
The dividend rate on the Series J Preferred Stock for each dividend period to
December 1, 1997 is 7 3/8% per annum. Thereafter, dividends on the Series J
Preferred Stock will be established quarterly at a rate per annum equal to the
sum of (i) the amount determined by applying the effective rate (as defined
below) in effect from time to time and (ii) the amount (not to exceed $0.50 per
share) by which the regular quarterly cash dividend per share, if any, declared
on the Common Stock during the immediately preceding dividend period exceeds
the last regular quarterly cash dividend per share actually paid by the
Corporation on the Common Stock prior to September 1, 1997. The "effective
rate" for any dividend period will be equal to .25% over the highest of the
Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty Year
Constant Maturity Rate, each as defined in the Certificate of Incorporation,
determined for the dividend period. The effective rate for any dividend period,
however, will not be less than 7% per annum nor greater
23
<PAGE>
than 15% per annum. Under certain circumstances, the amount of dividends
payable or accrued in respect of shares of the Series J Preferred Stock will
be adjusted to take account of certain amendments to the Internal Revenue Code
of 1986, as amended. In no event will the dividends payable on the Series J
Preferred Stock exceed 17% per annum.
7 5/8% Cumulative Preferred Stock, Series O. On June 2, 1993, the
Corporation issued $150 million of 7 5/8% Convertible Capital Securities due
June 2033. These debt securities are subordinated and can be redeemed in
whole, but not in part, on or after June 1, 1998 at par, plus accrued and
unpaid interest to the redemption date. The Corporation, at its option, may
reset at any time the interest rate of the 7 5/8% Convertible Capital
Securities to a rate of 6 1/8% per annum. The Corporation opted to reset the
interest rate to 6 1/8% per annum, effective March 1, 1995. Holders have the
right, at any time prior to redemption or maturity, to convert the debt
securities into depositary shares, at $25 per share, each representing a one-
tenth interest in a share of the Corporation's 7 5/8% Cumulative Preferred
Stock, Series O (Liquidation Preference $250 per share) (the "Series O
Preferred Stock").
On June 30, 1997, approximately 5,934,749 depositary receipts had been
issued each evidencing a depositary share representing a one-tenth interest in
a share of the Series O Preferred Stock. The aggregate liquidation preference
of the shares represented by such depositary shares on such date was
approximately $148,368,725.
Dividends on the Series O Preferred Stock are cumulative and payable
quarterly on each March 1, June 1, September 1 and December 1, commencing with
the first such date succeeding original issuance. If dividends payable on the
Series O Preferred Stock are in arrears in an amount equivalent to dividends
for six full dividend periods, the number of directors of the Corporation will
be increased by two and the holders of the outstanding Series O Preferred
Stock, voting together as a single class with holders of shares of any other
series of series preferred stock then outstanding upon which like voting
rights have been conferred and are then exercisable, will be entitled to elect
two additional directors until all dividends in arrears on the Series O
Preferred Stock have been declared and paid or set apart for payment in full.
In the event of any liquidation, dissolution or winding up of the Corporation,
the holders of the Series O Preferred Stock will be entitled to receive a
distribution of $250 per share plus, in each case, an amount equal to accrued
and unpaid dividends to the date of final distribution. Shares of the Series O
Preferred Stock are redeemable at the Corporation's option, in whole or in
part, at any time at a redemption price of $300 per share on or before June 1,
1998 and thereafter at $250 per share, plus, in each case, accrued and unpaid
dividends to the redemption date.
7.50% Cumulative Preferred Stock, Series P. On August 19, 1993, the
Corporation issued $100 million of 7.50% Convertible Capital Securities due
August 2033. These debt securities are subordinated and can be redeemed, in
whole but not in part, on or after August 15, 1998 at par, plus accrued and
unpaid interest to the redemption date. The Corporation, at its option, may
reset at any time the interest rate on the 7.50% Convertible Capital
Securities to a rate of 6.00% per annum. The Corporation opted to reset the
interest rate to 6.00% per annum, effective May 15, 1995. Holders have the
right, at any time prior to redemption or maturity, to convert the debt
securities into depositary shares, at $25 per share, each representing a one-
fortieth interest in a share of the Corporation's 7.50% Cumulative Preferred
Stock, Series P (Liquidation Preference $1,000 per share) (the "Series P
Preferred Stock").
On June 30, 1997, approximately 3,957,883 depositary receipts had been
issued each evidencing a depositary share representing a one-fortieth interest
in a share of the Series P Preferred Stock. The aggregate liquidation
preference of the shares represented by such depositary shares on such date
was approximately $98,947,075.
Dividends on the Series P Preferred Stock are cumulative and payable
quarterly on each February 15, May 15, August 15 and November 15, commencing
with the first such date succeeding original issuance. If dividends payable on
the Series P Preferred Stock are in arrears in an amount equivalent to
dividends for six full dividend periods, the number of directors of the
Corporation will be increased by two and the holders of
24
<PAGE>
the outstanding Series P Preferred Stock, voting together as a single class
with holders of shares of any other series of series preferred stock then
outstanding upon which like voting rights have been conferred and are then
exercisable, will be entitled to elect two additional directors until all
dividends in arrears on the Series P Preferred Stock have been declared and
paid or set apart for payment in full. In the event of any liquidation,
dissolution or winding up of the Corporation, the holders of the Series P
Preferred Stock will be entitled to receive a distribution of $1,000 per share
plus, in each case, an amount equal to accrued and unpaid dividends to the
date of final distribution. Shares of Series P Preferred Stock are redeemable
at the Corporation's option, in whole or in part, at any time at a redemption
price of $1,200 per share on or before August 15, 1998 and thereafter at
$1,000 per share, plus, in each case, accrued and unpaid dividends to the
redemption date.
Adjustable Rate Cumulative Preferred Stock, Series Q. On March 28, 1994, the
Corporation issued 80,000 shares of its Adjustable Rate Cumulative Preferred
Stock, Series Q ($2,500 liquidation preference) (the "Series Q Preferred
Stock"). The dividend rate on the Series Q Preferred Stock is equal to 85% of
the Effective Rate (as defined below) in effect from time to time, but in no
event less than 4 1/2% or more than 10 1/2% per annum. The "Effective Rate"
for the Series Q Preferred Stock for each quarterly dividend period is the
highest of the "Treasury Bill Rate," the "Ten Year Constant Maturity Rate" and
the "Thirty Year Constant Maturity Rate" determined in advance of such
dividend period. If dividends payable on the Series Q Preferred Stock are in
arrears in an amount equivalent to dividends for six full dividend periods,
the number of directors of the Corporation will be increased by two and the
holders of the outstanding Series Q Preferred Stock, voting together as a
single class with holders of shares of any other series of series preferred
stock then outstanding upon which like voting rights have been conferred and
are then exercisable, will be entitled to elect two additional directors until
all dividends in arrears on the Series Q Preferred Stock have been declared
and paid or set apart for payment in full. In the event of any liquidation,
dissolution or winding up of the Corporation, the holders of the Series Q
Preferred Stock will be entitled to receive a distribution of $2,500 per share
plus, in each case, an amount equal to accrued and unpaid dividends to the
date of final distribution. The Series Q Preferred Stock is redeemable at the
option of the Corporation, in whole or in part, at any time or from time to
time on or after March 1, 1999. The redemption price payable by the
Corporation in respect of any such redemption will be $2,500 per share plus
accrued and unpaid dividends to the redemption date.
Adjustable Rate Cumulative Preferred Stock, Series R. On August 22, 1994,
the Corporation issued 60,000 shares of its Adjustable Rate Cumulative
Preferred Stock, Series R ($2,500 liquidation preference) (the "Series R
Preferred Stock"). The dividend rate on the Series R Preferred Stock is equal
to 84.5% of the Effective Rate (as defined below) in effect from time to time,
but in no event less than 4 1/2% or more than 10 1/2% per annum. The
"Effective Rate" for the Series R Preferred Stock for each quarterly dividend
period is the highest of the "Treasury Bill Rate," the "Ten Year Constant
Maturity Rate" and the "Thirty Year Constant Maturity Rate" determined in
advance of such dividend period. If dividends payable on the Series R
Preferred Stock are in arrears in an amount equivalent to dividends for six
full dividend periods, the number of directors of the Corporation will be
increased by two and the holders of the outstanding Series R Preferred Stock,
voting together as a single class with holders of shares of any other series
of series preferred stock then outstanding upon which like voting rights have
been conferred and are then exercisable, will be entitled to elect two
additional directors until all dividends in arrears on the Series R Preferred
Stock have been declared and paid or set apart for payment in full. In the
event of any liquidation, dissolution or winding up of the Corporation, the
holders of the Series R Preferred Stock will be entitled to receive a
distribution of $2,500 per share plus, in each case, an amount equal to
accrued and unpaid dividends to the date of final distribution. The Series R
Preferred Stock is redeemable at the option of the Corporation, in whole or in
part, at any time or from time to time on or after September 1, 1999. The
redemption price payable by the Corporation in respect of any such redemption
will be $2,500 per share plus accrued and unpaid dividends to the redemption
date.
7 3/4% Cumulative Preferred Stock, Series S. On June 30, 1995, the
Corporation issued 50,000 shares of its Adjustable Rate Cumulative Preferred
Stock, Series S ($2,500 liquidation preference) (the "Series S Preferred
Stock"). If dividends payable on the Series S Preferred Stock are in arrears
in an amount equivalent
25
<PAGE>
to dividends for six full dividend periods, the number of directors of the
Corporation will be increased by two and the holders of the outstanding Series
S Preferred Stock, voting together as a single class with holders of shares of
any other series of series preferred stock then outstanding upon which like
voting rights have been conferred and are then exercisable, will be entitled to
elect two additional directors until all dividends in arrears on the Series S
Preferred Stock have been declared and paid or set apart for payment in full.
In the event of any liquidation, dissolution or winding up of the Corporation,
the holders of the Series S Preferred Stock will be entitled to receive a
distribution of $2,500 per share plus, in each case, an amount equal to accrued
and unpaid dividends to the date of final distribution. The Series S Preferred
Stock is redeemable at the option of the Corporation, in whole or in part, at
any time or from time to time on or after June 1, 2000. The redemption price
payable by the Corporation in respect of any such redemption will be $2,500 per
share plus accrued and unpaid dividends to the redemption date.
SERIAL PREFERRED STOCK
The proposed amendment relating to the serial preferred stock would authorize
10,000,000 shares, which would have preference over the Common Stock with
respect to the payment of dividends and the distribution of assets in the event
of liquidation, dissolution or winding up of the Corporation, and such other
rights, preferences and limitations as may be fixed by the Board of Directors.
The serial preferred stock, upon issuance, would rank on a parity with the
Series Preferred Stock with respect to the payment of dividends and the
distribution of assets in the event of liquidation, dissolution or winding up
of the Corporation. Dividend provisions, liquidation preferences, voting
rights, if any, sinking fund and redemption provisions, if any, and conversion
and exchange provisions, if any, would be fixed by the Board of Directors.
There are currently no outstanding shares of serial preferred stock. The Board
of Directors has determined not to cause the proposed amendment authorizing the
serial preferred stock to be filed at this time.
VALIDITY OF OFFERED SECURITIES
Unless otherwise specified in the applicable Prospectus Supplement, the
validity of the Offered Securities to which this Prospectus relates will be
passed upon for the Corporation by Gordon S. Calder, Jr., Esq., a Managing
Director and Counsel of Bankers, and for any underwriters or agents by White &
Case, New York, New York. White & Case performs services for the Corporation
from time to time. Mr. Calder has an interest in a number of shares equal to
less than .02% of the Corporation's outstanding Common Stock.
EXPERTS
The combination of the Corporation and its subsidiaries and ABI and its
subsidiaries as reflected in the supplemental consolidated balance sheet as of
December 31, 1996 and 1995, and the related supplemental consolidated
statements of income, changes in stockholders' equity and cash flows for each
of the years in the three-year period ended December 31, 1996, which appear in
the Corporation's Current Report on Form 8-K filed on September 9, 1997, has
been audited by KPMG Peat Marwick LLP, independent auditors, as set forth in
their report dated September 5, 1997 thereon and incorporated herein by
reference. The historical consolidated financial statements of the Corporation
and its subsidiaries included in the Corporation's Annual Report on Form 10-K
for the year ended December 31, 1996, prior to their restatement for the
pooling-of-interests with ABI described in "Bankers Trust New York
Corporation--Recent Developments" above, have been audited by Ernst & Young
LLP, independent auditors, as stated in their report dated January 23, 1997,
except for Note 28 as to which the date is March 6, 1997, incorporated herein
by reference. The consolidated statements of financial condition of ABI and
subsidiaries as of December 31, 1996 and 1995, and the related supplemental
consolidated statements of earnings, stockholders' equity and cash flows for
each of the years in the three-year period ended December 31, 1996, which
appear in the Corporation's Current Report on Form 8-K filed on September 4,
1997, have been audited by KPMG Peat Marwick LLP, independent auditors, as set
forth in their report dated January 20, 1997, thereon and incorporated herein
by reference. Such financial statements have been incorporated herein by
reference in reliance upon the respective reports given upon the authority of
such firms as experts in accounting and auditing.
26
<PAGE>
PLAN OF DISTRIBUTION
The Corporation may sell Offered Securities to one or more underwriters for
public offering and sale by them or may sell Offered Securities to investors
directly or through agents. Any underwriter or agent involved in the offer and
sale of the Offered Securities will be named in the applicable Prospectus
Supplement.
Underwriters may offer and sell the Offered Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Corporation also may, from time to time, authorize firms
acting as the Corporation's agents to offer and sell the Offered Securities
upon the terms and conditions as shall be set forth in the applicable
Prospectus Supplement. In connection with the sale of Offered Securities,
underwriters and agents may be deemed to have received compensation from the
Corporation in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of Offered Securities for whom they act as
agent. Underwriters and agents may sell Offered Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from such underwriters or agents and may receive
commissions (which may be changed from time to time) from purchasers for whom
they act as agent.
Any underwriting compensation paid by the Corporation to underwriters or
agents in connection with the offering of Offered Securities, and any
discounts, concessions or commissions allowed by underwriters or agents to
participating dealers, will be set forth in the applicable Prospectus
Supplement. Underwriters, dealers and agents participating in the distribution
of the Offered Securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them on resale of
the Offered Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. Underwriters, dealers and agents may be
entitled, under agreements with the Corporation, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act, and to reimbursement by the Corporation for certain expenses.
If so indicated in the applicable Prospectus Supplement, the Corporation will
authorize dealers acting as the Corporation's agents to solicit offers by
certain institutions to purchase Offered Securities from the Corporation at the
public offering price set forth in such Prospectus Supplement pursuant to
Delayed Delivery Contracts ("Contracts") providing for payment and delivery on
the date or dates stated in such Prospectus Supplement. Each Contract will be
for an amount not less than, and the aggregate principal amount of Offered
Securities sold pursuant to Contracts shall be not less nor more than, the
respective amounts stated in such Prospectus Supplement. Institutions with whom
Contracts, when authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and other institutions, but will in all cases be
subject to the approval of the Corporation. Contracts will not be subject to
any conditions except that (i) 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 (ii) 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 Contracts. Agents and underwriters will have no responsibility in
respect of the delivery or performance of Contracts.
Each series of Offered Securities, except Common Stock, will be a new issue
of securities with no established trading market. Any underwriters to whom
Offered Securities are sold by the Corporation 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. No assurance can be given as to the liquidity of or the trading markets
for any Offered Securities.
27
<PAGE>
BT Alex. Brown, a wholly owned subsidiary of the Corporation which is a
member of the National Association of Securities Dealers, Inc. (the "NASD"),
may participate in 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 Alex. Brown with respect to the Offered
Securities will be conducted in compliance with the requirements of Rule 2720
of the Conduct Rules of the NASD. Following the initial distribution of the
Offered Securities, BT Alex. Brown and other affiliates of the Corporation may
offer and sell such Offered Securities in the course of their business as
broker-dealers. BT Alex. Brown and such other affiliates may act as principals
or agents in such transactions. This Prospectus may be used by BT Alex. Brown
and such other affiliates in connection with such transactions, and such sales,
if any, will be made at varying prices relating to prevailing market prices at
the time of sale or otherwise. Neither BT Alex. Brown 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.
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with, and perform services for, the Corporation in
the ordinary course of business.
During and after the offering, the underwriters or agents may purchase and
sell the Offered Securities in the open market. These transactions may include
overallotment and stabilizing transactions and purchases to cover syndicate
short positions created in connection with the offering. The underwriters or
agents also may impose a penalty bid, whereby selling concessions allowed to
syndicate members or other broker-dealers in respect of the Offered Securities
sold in the offering for their account may be reclaimed by the syndicate if
such securities are repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or otherwise affect the
market price of the Offered Securities, which may be higher than the price that
might otherwise prevail in the open market.
28
<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......................... $ 909,091
Legal fees and expenses....................................... 200,000*
Accounting fees and expenses.................................. 125,000*
Blue sky fees and expenses.................................... 30,000*
Printing and engraving fees................................... 300,000*
Trust indenture fees and expenses............................. 30,000*
Depositary's fees and expenses................................ 30,000*
Rating agency fees............................................ 80,000*
NASD fees..................................................... 30,500
Listing fees.................................................. 100,000*
Miscellaneous................................................. 65,409*
----------
Total....................................................... $1,900,000*
==========
</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.
II-1
<PAGE>
SECTION 5.03 The corporation shall, from time to time, reimburse or advance
to any person referred to in Section 5.01 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action or
proceeding referred to in Section 5.01, upon receipt of a written undertaking
by or on behalf of such person to repay such amount(s) if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 5.04 Any director or officer of the corporation serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the corporation, or (ii) any employee benefit plan
of the corporation or any corporation referred to in clause (i), in any
capacity shall be deemed to be doing so at the request of the corporation. In
all other cases, the provisions of this Article V will apply (i) only if the
person serving another corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise so served at the specific request of
the corporation, evidenced by a written communication signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Senior Vice Chairman
or any Vice Chairman, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer, or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5.05 Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of the
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 5.06 The right to be indemnified or to the reimbursement or
advancement of expenses pursuant to this Article V (i) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
corporation and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
SECTION 5.07 If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the corporation
within thirty days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
or reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel, or its shareholders) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses, shall be a defense to the action or create a
presumption that the claimant is not so entitled.
SECTION 5.08 A person who has been successful, on the merits or otherwise, in
the defense of a civil or criminal action or proceeding of the character
described in Section 5.01 shall be entitled to indemnification only as provided
in Sections 5.01 and 5.03, notwithstanding any provision of the New York
Business Corporation Law to the contrary.
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
II-2
<PAGE>
by or in the right of the corporation in order to procure a judgment in its
favor if such director or officer acted in good faith and in a manner he
reasonably believed to be in or, in certain cases, not opposed to such
corporation's best interests, and additionally, in criminal actions, has no
reasonable cause to believe his conduct was unlawful.
In addition, 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.
Reference is made to the forms of Underwriting Agreements filed as Exhibits
1.1 and 1.2 hereto for a description of certain indemnity arrangements.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 --Form of Underwriting Agreement for Debt Securities.
1.2 --Form of Underwriting Agreement for Common Stock, Series Preferred
Stock and Depositary Shares.
**3.1 --Restated Certificate of Incorporation of the Registrant filed with
the State of New York on June 9, 1988 (filed as an Exhibit to the
Registrant's Current Report on Form 8-K dated September 24, 1993,
file number 1-5920).
**3.2 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on August 30,
1989 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated September 24, 1993, file number 1-5920).
**3.3 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on June 14,
1990 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated September 24, 1993, file number 1-5920).
**3.4 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on March 20,
1992 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated September 24, 1993, file number 1-5920).
**3.5 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on October
27, 1992 (filed as an Exhibit to the Registrant's Current Report on
Form 8-K dated September 24, 1993, file number 1-5920).
**3.6 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on January
21, 1993 (filed as an Exhibit to the Registrant's Current Report on
Form 8-K dated September 24, 1993, file number 1-5920).
**3.7 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on June 1,
1993 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated September 24, 1993, file number 1-5920).
**3.8 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on August 18,
1993 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated August 6, 1993, file number 1-5920).
**3.9 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on March 25,
1994 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated March 21, 1994, file number 1-5920).
**3.10 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on August 22,
1994 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated August 12, 1994, file number 1-5920).
**3.11 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on June 29,
1995 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated June 29, 1995, file number 1-5920).
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
**3.12 --By-Laws of the Registrant as amended January 27, 1997 (filed as an
Exhibit to the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1996, file number 1-5920).
**3.13 --Rights Agreement dated as of February 22, 1988 describing the terms
of the Preferred Purchase Rights (filed as an Exhibit to the Regis-
trant's Annual Report on Form 10-K for the year ended December 31,
1989, file number 1-5920).
4.1 --Form of Certificate of Common Stock.
4.2 --Form of Certificate for Series Preferred Stock.
4.3 --Form of Certificate of Amendment of the Restated Certificate of In-
corporation of the Registrant.
4.4 --Form of Deposit Agreement.
4.5 --Form of Depositary Receipt (included as Exhibit A to Exhibit 4.4
hereof).
**4.6 --Indenture, dated as of November 1, 1991, between the Registrant and
The Chase Manhattan Bank (formerly The Chase Manhattan Bank (National
Association)) relating to Senior Debt Securities (filed as an Exhibit
to the Registrant's Current Report on Form 8-K, dated November 12,
1991, file number 1-5920).
**4.7 --First Supplemental Indenture, dated as of September 1, 1993, between
the Registrant and The Chase Manhattan Bank (formerly The Chase Man-
hattan Bank (National Association)) (filed as an Exhibit to the Reg-
istrant's Current Report on Form 8-K, dated October 22, 1993, file
number 1-5920)).
4.8 --Form of Second Supplemental Indenture, dated as of September ,
1997, between the Registrant and The Chase Manhattan Bank (formerly
The Chase Manhattan Bank (National Association)).
**4.9 --Indenture, dated as of April 1, 1992, between the Registrant and Ma-
rine Midland Bank (formerly Marine Midland Bank, N.A.) relating to
Subordinated Debt Securities (filed as an Exhibit to the Registrant's
Registration Statement on Form S-3, file number 33-50395, as filed on
September 24, 1993).
**4.10 --First Supplemental Indenture, dated as of January 15, 1993, between
the Registrant and Marine Midland Bank (formerly Marine Midland Bank,
N.A.) (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated January 14, 1993, file number 1-5920).
4.11 --Form of Second Supplemental Indenture, dated as of September ,
1997, between the Registrant and Marine Midland Bank (formerly Marine
Midland Bank N.A.).
4.12 --Form of Certificate for Debt Securities.
5.1 --Opinion re Validity.
**12.1 --Computation of Consolidated Ratios of Earnings to Fixed Charges
(filed as an Exhibit to the Registrant's Current Report on Form 8-K
dated September 9, 1997, file number 1-5920).
**12.2 --Computation of Consolidated Ratios of Earnings to Combined Fixed
Charges and Preferred Stock Dividend Requirements (filed as an Ex-
hibit to the Registrant's Current Report on Form 8-K dated September
9, 1997, file number 1-5920).
23.1 --Consent of Ernst & Young LLP, Independent Auditors.
23.2 --Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.3 --Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.4 --Consent of Counsel (contained in the opinion filed as Exhibit 5.1 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 The Chase Manhattan Bank.
25.2 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Marine Midland Bank.
</TABLE>
- --------
* Previously filed.
** Incorporated by reference.
ITEM 17. UNDERTAKINGS.
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:
II-4
<PAGE>
(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; 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 filed by the 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.
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 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
herein, and the offering of such securities at that time shall be deemed to be
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by 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 Act and will be governed by the final
adjudication of such issue.
II-5
<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 AMENDMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY
OF NEW YORK, STATE OF NEW YORK, ON THE 25TH DAY OF SEPTEMBER, 1997.
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 AMENDMENT
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
- ------------------------------------ Board, Chief September 25,
(FRANK N. NEWMAN) Executive Officer 1997
and Director
(Principal
Executive Officer)
Richard H. Daniel* Vice Chairman,
- ------------------------------------ Chief Financial September 25,
(RICHARD H. DANIEL) Officer and 1997
Controller
(Principal
Financial Officer
and Controller)
- ------------------------------------ Director
(LEE A. AULT III)
- ------------------------------------ Director
(NEIL R. AUSTRIAN)
George B. Beitzel* Director
- ------------------------------------ September 25,
(GEORGE B. BEITZEL) 1997
Phillip A. Griffiths* Director
- ------------------------------------ September 25,
(PHILLIP A. GRIFFITHS) 1997
William R. Howell* Director
- ------------------------------------ September 25,
(WILLIAM R. HOWELL) 1997
Vernon E. Jordan, Jr.* Director
- ------------------------------------ September 25,
(VERNON E. JORDAN, JR.) 1997
II-6
<PAGE>
SIGNATURE TITLE DATE
- ------------------------------------- Director
(A.B. KRONGARD)
Hamish Maxwell* Director September 25,
- ------------------------------------- 1997
(HAMISH MAXWELL)
N.J. Nicholas Jr.* Director
- ------------------------------------- September 25,
(N.J. NICHOLAS JR.) 1997
Russell E. Palmer* Director
- ------------------------------------- September 25,
(RUSSELL E. PALMER) 1997
Donald L. Staheli* Director
- ------------------------------------- September 25,
(DONALD L. STAHELI) 1997
Director
Patricia Carry Stewart* September 25,
- ------------------------------------- 1997
(PATRICIA CARRY STEWART)
- ------------------------------------- Director
(G. RICHARD THOMAN)
George J. Vojta* Director
- ------------------------------------- September 25,
(GEORGE J. VOJTA) 1997
Paul A. Volcker* Director
- ------------------------------------- September 25,
(PAUL A. VOLCKER) 1997
/s/ Duncan P. Hennes
*By _________________________________
(DUNCAN P. HENNES, ATTORNEY-IN-FACT)
II-7
<PAGE>
Draft of September 22, 1997
Exhibit 1.1
BANKERS TRUST NEW YORK CORPORATION
Debt Securities
_____________________________
Underwriting Agreement
Standard Provisions
(September 1997)
_____________________________
From time to time, BANKERS TRUST NEW YORK CORPORATION, a New York
corporation (the "Corporation"), may enter into one or more underwriting
agreements, in the form of Annex I hereto or otherwise, that provide for the
-------
sale of designated debt securities (the "Securities") to one or more
underwriters named therein (the "Underwriters"), severally where there are more
than one. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions hereof incorporated therein by
reference, is herein referred to as this Agreement. Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as therein
defined. If an Underwriting Agreement provides for the purchase of the
Securities by an Underwriter or Underwriters, but does not provide for a Manager
or Managers, the references to the Manager herein shall be deemed to refer to
such Underwriter or Underwriters.
I.
The Corporation has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-32909),
including a prospectus relating to, among other securities, the Securities and
has filed with the Commission a prospectus supplement specifically relating to
the issue of the Securities pursuant to Rule 424 under the Securities Act of
1933, as amended (the "Securities Act"). The term "Registration Statement"
means such registration statement as amended to the date of the Underwriting
Agreement. The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the prospectus supplement specifically relating to the Securities,
as filed with the Commission pursuant to Rule 424. The term "preliminary
prospectus" means a
<PAGE>
preliminary prospectus supplement specifically relating to the Securities
together with the Basic Prospectus. As used herein, the terms "Registration
Statement," "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall
include in each case all documents and information, if any, incorporated by
reference therein.
The term "Underwriters' Securities" means the Securities to be
purchased by the Underwriters hereunder. The term "Contract Securities" means
the Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
If the Prospectus provides for sales of Contract Securities, the
Corporation hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to delayed delivery contracts substantially in the form of
Annex II hereto ("Delayed Delivery Contracts") but with such changes therein as
- --------
the Corporation may authorize or approve. Delayed Delivery Contracts are to be
with institutional investors approved by the Corporation and of the types set
forth in the Prospectus. On the Closing Date (as hereinafter defined), the
Corporation will pay the Manager, for the accounts of the Underwriters, as
compensation, the fee set forth in the Underwriting Agreement in respect of the
principal amount of the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts.
If the Corporation executes and delivers Delayed Delivery Contracts
with institutional investors, the Contract Securities shall be deducted from the
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Securities to be purchased by each Underwriter shall be
reduced pro rata in proportion to the principal amount of Securities set forth
opposite each Underwriter's name in the Underwriting Agreement, except to the
extent that the Manager determines that such reduction shall be otherwise and so
advises the Corporation.
III.
The Corporation is advised by the Manager that the Underwriters
propose to make a public offering of their
-2-
<PAGE>
respective portions of the Underwriters' Securities as soon after this Agreement
is entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Underwriters' Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by wire
transfer to the order of the Corporation in immediately available funds or in
such other manner and such other funds as may be mutually agreed upon by the
Corporation and the Manager and set forth in the Underwriting Agreement, at the
time and place set forth in the Underwriting Agreement, upon delivery to the
Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations as
the Manager shall request in writing not less than two full business days prior
to the date of delivery. The time and date of such payment and delivery with
respect to the Underwriters' Securities are herein referred to as the "Closing
Date."
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and there shall have been
no material adverse change (not in the ordinary course of business) in the
financial condition or results of operations of the Corporation and its
subsidiaries, taken as a whole, from that set forth in the Prospectus since
the effective dates as of which information is given therein; and the
Manager shall have received, on the Closing Date, a certificate, dated the
Closing Date and signed by an officer of the Corporation, to the foregoing
effect and also to the effect that the representations and warranties of
the Corporation in the first paragraph of Article VIII of this Agreement
are true and correct in all material respects as of the Closing Date. The
officer making such certificate may rely upon the best of his knowledge as
to proceedings pending or threatened and whether a stop order suspending
the effectiveness of the Registration Statement is in effect.
-3-
<PAGE>
(b) The Manager shall have received on the Closing Date an opinion of
counsel for the Corporation, dated the Closing Date, to the effect set
forth in Exhibit A, and, unless otherwise agreed, an opinion of tax counsel
---------
for the Corporation, dated the Closing Date, covering such matters as may
be mutually agreed upon by such tax counsel and the Manager and set forth
in the Underwriting Agreement.
(c) The Manager shall have received on the Closing Date from White &
Case, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Corporation, the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as the Manager may require, and the Corporation shall
furnish to such counsel such documents as they may reasonably request for
the purposes of enabling them to pass upon such matters.
(d) On the Closing Date the Manager shall have received a letter,
dated the Closing Date and in form and substance satisfactory to the
Manager, from the independent accountants to the Corporation, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to Underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus, and confirming that
they are independent accountants within the meaning of the Securities Act
and the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the respective applicable published rules and regulations thereunder.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Corporation covenants as follows:
(a) To furnish the Manager, without charge, a copy of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents filed by the Corporation with the
-4-
<PAGE>
Commission subsequent to the date of the Basic Prospectus, pursuant to the
Exchange Act, which are deemed to be incorporated by reference in the
Prospectus.
(b) During the period between the date of the Underwriting Agreement
and the Closing Date, to furnish the Manager with a copy of each proposed
amendment or supplement to the Registration Statement or the Prospectus
specifically relating to the Securities before filing such amendment or
supplement with the Commission.
(c) If, at any time during the period following the public offering
of the Securities during which, in the opinion of counsel for the
Underwriters, the Prospectus is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to ensure that the Prospectus does not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances
under which they were made, be misleading or so that the Prospectus will
comply with law, as the case may be, provided that any such amendment or
--------
supplement shall be made at the expense of the requesting Underwriter if
such Underwriter's request for such amendment or supplement is received by
the Corporation 90 days or more following the Closing Date.
(d) To endeavor, in cooperation with the Underwriters, to qualify
the Securities for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Manager shall reasonably request and to pay all
reasonable expenses (including reasonable fees and disbursements of
counsel) in connection with such qualification, the determination of the
eligibility of the Securities for investment under the laws of such
jurisdictions as the Manager may reasonably designate, and the preparation
of any memoranda concerning the aforesaid qualification or eligibility,
provided that, in connection with any such qualification, the Corporation
--------
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction.
-5-
<PAGE>
(e) To make generally available to the Corporation's security holders
as soon as practicable, but not later than sixteen months, after the date
of the Underwriting Agreement an earnings statement covering a period of at
least twelve months beginning after the effective date of the Registration
Statement (as such date is defined for this purpose by Rule 158 under the
Securities Act), which shall satisfy the provisions of Section 11(a) of the
Securities Act (including, at the option of the Corporation, Rule 158
thereunder).
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of the Closing Date
and the removal by the Manager of trading restrictions on the Securities,
not to offer, sell, contract to sell or otherwise dispose of (other than
upon exercise of warrants therefor, or upon conversion of convertible
securities, in each case outstanding at the date of the Underwriting
Agreement, pursuant to the Euro Medium-Term Note Program of the Corporation
and certain of its subsidiaries or in any other offering made exclusively
outside the United States) any debt securities of the Corporation
substantially similar to the Securities without the prior written consent
of the Manager.
VII.
The Corporation covenants and agrees with each Underwriter that the
Corporation will pay or cause to be paid the following: (i) the fees for the
registration of the Securities under the Securities Act; (ii) the fees,
disbursements and expenses of the Corporation's accountants in connection with
the registration of the Securities under the Securities Act and all other
expenses incurred by it in connection with the preparation of the Registration
Statement, any preliminary prospectus, the Prospectus and any amendments and
supplements thereto, the printing of any preliminary prospectus, the Prospectus
and any amendments or supplements thereto, and delivery of copies thereof to the
Underwriters as provided in Article VI of this Agreement; (iii) all expenses
(including reasonable fees and disbursements of counsel) payable pursuant to
paragraph (d) of Article VI of this Agreement; (iv) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Securities, fees paid in connection with
any listing of the Securities on the New York Stock Exchange, Inc. or any other
stock exchange or
-6-
<PAGE>
quotation system and any fees of rating agencies; (v) all costs and expenses
incurred in the preparation of this Agreement and all other documents relating
to the issuance, underwriting and initial offering of the Securities; (vi) all
costs, fees and expenses relating to the preparation and filing via the
Commission's Electronic Data Gathering and Retrieval System of the Prospectus,
the Registration Statement and any amendments or supplements thereto, this
Agreement and all other documents relating to the issuance, underwriting and
initial offering of the Securities required to be so filed; and (vii) all other
costs and expenses incident to the performance by the Corporation of its
obligations hereunder that are not otherwise specifically provided for in this
Article.
VIII.
The Corporation represents and warrants to each Underwriter that (i)
each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder; (ii) insofar as relevant to the
offering of the Securities, each part of the Registration Statement filed with
the Commission pursuant to the Securities Act, when such part became effective,
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; (iii) each preliminary prospectus, if any, relating to
the Securities filed pursuant to Rule 424 under the Securities Act complied when
so filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder; (iv) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder; (v) the
Registration Statement and the Prospectus do not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and (vi) the issuance and sale of the Securities and, if applicable,
the issuance and sale of the Common Stock, par value $1.00 per share ("Common
Stock"), or Series Preferred Stock, without par value ("Series Preferred
Stock"), of the Corporation issuable upon conversion of the Securities, and the
execution, delivery and performance by the Corporation of the Underwriting
-7-
<PAGE>
Agreement will not contravene any provisions of applicable Federal or New York
law or regulation, the certificate of incorporation or by-laws of the
Corporation, or any agreement or other instrument binding upon the Corporation,
which contravention, in any such case, would have a material adverse effect on
the Corporation; provided, however, that the foregoing representations and
-------- -------
warranties do not apply to statements in or omissions from the Registration
Statement, any preliminary prospectus or the Prospectus based upon information
furnished to the Corporation in writing by any Underwriter expressly for use
therein or to any statements in or omissions from the statement of eligibility
and qualification on Form T-1 (a "Form T-1") of any trustee under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), that may be filed
in connection with the Registration Statement.
The Corporation agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus, or in any
Blue Sky application or related document prepared pursuant to paragraph (d) of
Article VI hereof, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Corporation in writing by an Underwriter expressly for use therein or by any
untrue statement or omission or alleged untrue statement or omission in any Form
T-1; provided that the foregoing indemnity agreement with respect to any
--------
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if (i) the loss, claim,
damage or liability asserted by such purchaser was caused by a defect in the
Prospectus delivered to such purchaser after the period referred to in paragraph
(c) of Article VI of this Agreement and such defect would not have existed
before the expiry of such period, or (ii) a copy of the Prospectus (as then
amended or supplemented if the Corporation shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of the Securities to such person, and if the Prospectus (as so amended
-8-
<PAGE>
or supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Corporation, its directors and its officers who sign the
Registration Statement, any authorized representative of the Corporation and any
person controlling the Corporation to the same extent as the foregoing indemnity
from the Corporation to each Underwriter, but only with reference to information
furnished in writing by such Underwriter expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus, or in any Blue Sky
application or related document prepared pursuant to paragraph (d) of Article VI
hereof, or any amendments or supplements thereto.
If any proceeding (including any governmental investigation) shall be
threatened or instituted involving any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. In
the case of parties indemnified pursuant to the second preceding paragraph, such
separate firm shall be designated in writing by the Manager. In the case of
parties indemnified pursuant to the immediately preceding paragraph, such
separate firm shall be designated in writing by the Corporation. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees
-9-
<PAGE>
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under the second or third paragraphs hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Corporation on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Corporation on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Corporation on the one hand and the Underwriters on the other in connection with
the offering of the Securities shall be deemed to be in the same proportion as
the total net proceeds (before deducting expenses) from the offering of such
Securities received by the Corporation bear to the total underwriting
discounts and commissions received by the Underwriters in respect thereof. The
relative fault of the Corporation on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Corporation or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Corporation and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Article VIII were determined by
pro rata allocation (even if all of the Underwriters are treated as a single
entity for such purpose) or by any other method of allocation that does not take
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
-10-
<PAGE>
defending any such action or claim. Notwithstanding any other provision of this
Article VIII, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total public offering price of the Securities
purchased by such Underwriter exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Article VIII are several, in proportion to the
respective principal amounts of Securities purchased by each of such
Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article
VIII and the representations and warranties of the Corporation in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Corporation, its directors or officers, any authorized
representative of the Corporation or any person controlling the Corporation and
(iii) acceptance of and payment for any of the Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Corporation, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange,
Inc., or on any other stock exchange or automated quotation system on which the
Securities are or are to be listed or to which the Securities have been or are
to be admitted for quotation, shall have been suspended or materially limited,
(ii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iii)
there shall have occurred any material outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the Manager,
impracticable to market the Securities.
-11-
<PAGE>
X.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Securities that it or they have agreed to purchase
hereunder and the aggregate principal amount of Securities that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions which the principal amount of Securities set forth opposite their
names in the Underwriting Agreement bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Manager may specify, to purchase the
Securities that such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date, and arrangements satisfactory to the Manager and the Corporation
for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall thereupon terminate without liability on the part
of any non-defaulting Underwriter or of the Corporation. In any such case
either the Manager or the Corporation shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
XI.
If this Agreement shall be terminated by the Underwriters or any of
them because of any failure or refusal on the part of the Corporation to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Corporation shall be unable to perform its obligations under this
Agreement, the Corporation will reimburse the Underwriters, or such Underwriters
as have so terminated this Agreement with respect to themselves, for all
reasonable out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the
Securities.
-12-
<PAGE>
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
-13-
<PAGE>
EXHIBIT A
---------
Opinion of Counsel to the Corporation
-------------------------------------
The opinion of counsel to the Corporation to be delivered pursuant to
Article V, paragraph (b) of the document entitled Bankers Trust New York
Corporation Debt Securities Underwriting Agreement Standard Provisions
(September 1997) shall be to the effect that:
(i) the Corporation has been duly incorporated, is an existing
corporation in good standing under the laws of the State of New York, is
duly registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended, and has all requisite corporate power and
authority to own its properties and conduct its business as described in
the Prospectus;
(ii) Bankers Trust Company has been duly incorporated, is an existing
trust company in good standing under the laws of the State of New York, and
has all requisite corporate power and authority to own its properties and
to conduct its business as described in the Prospectus;
(iii) the Indenture has been duly authorized, executed and delivered
by the Corporation, is a valid and binding agreement of the Corporation
enforceable in accordance with its terms, and has been duly qualified under
the Trust Indenture Act of 1939, as amended;
(iv) the Securities have been duly authorized, executed,
authenticated, issued and delivered and are valid and binding obligations
of the Corporation enforceable in accordance with their terms;
(v) if applicable, the Securities are convertible into Common Stock
or Series Preferred Stock of the Corporation in accordance with their
terms; the shares of Common Stock or Series Preferred Stock initially
issuable upon conversion of the Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable subject to
Section 630 of the New York Business Corporation Law; and the holders of
outstanding shares of capital stock of the Corporation are not entitled to
preemptive rights with respect to such Common Stock or Preferred Stock;
(vi) if applicable, the Securities and, if applicable, the shares of
Common Stock or Series Preferred Stock issuable upon conversion of the
Securities have been duly authorized for listing, in each case subject to
official
A-1
<PAGE>
notice of issuance, on the New York Stock Exchange, Inc., or such other
stock exchange or automated quotation system on or to which such Securities
and, if applicable, such shares of Common Stock or Series Preferred Stock
are or are to be listed or admitted;
(vii) the Underwriting Agreement has been duly authorized, executed
and delivered by the Corporation;
(viii) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Corporation and are valid and
binding agreements of the Corporation enforceable in accordance with their
respective terms;
(ix) no consent, approval, authorization or other order of any
governmental or regulatory body is required under Federal or New York law
or regulation for the issuance and the sale of the Securities or, if
applicable, the issuance of the Common Stock or Series Preferred Stock
issuable upon conversion thereof, and the execution, delivery and
performance of the Underwriting Agreement, except for the order of the
Securities and Exchange Commission making the Registration Statement
effective and except as may be required under the securities or Blue Sky
laws of any jurisdiction;
(x) the statements in the Prospectus Supplement under the caption
"Certain Terms of the Securities," and in the Basic Prospectus under the
caption "Description of Offered Securities--Description of Debt
Securities," insofar as such statements constitute a summary of the
documents or proceedings referred to therein, fairly present the matters
referred to therein;
(xi) each part of the Registration Statement, when such part became
effective, and the Prospectus, as of the Closing Date (in each case except
as to financial statements and schedules and other financial data contained
therein, and except as to any Form T-1, as to which such counsel need not
express any opinion), complied as to form in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder; and each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except as to financial
statements and schedules and other financial data contained therein, as to
which such counsel need not express any opinion) complied when so filed as
to form in all material
A-2
<PAGE>
respects with the Exchange Act and the applicable rules and regulations of
the Commission thereunder; and
(xii) nothing has come to such counsel's attention that has caused him
to believe that [,insofar as relevant to the offering of the Securities]* any
part of the Registration Statement, when such part became effective (except
for the financial statements and schedules and other financial data and any
statements concerning the tax laws contained therein, and except as to any
Form T-1, as to which such counsel need not express any belief), contained
any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (except for the financial
statements and schedules and other financial data and any statements
concerning the tax laws contained therein, as to which such counsel need
not express any belief), as of the Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to certain matters
on certificates of responsible officers of the Corporation and other persons
believed by such counsel to be responsible. Referring to clauses (iii), (iv),
(v), (viii) and (ix) above, such counsel may make the expression of opinion
referred to therein subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles. Further, such
counsel may state that he does not express an opinion as to any law other than
the law of the State of New York and the Federal law of the United States of
America and that he does not express any opinion as to any tax laws. Such
counsel may also take such other exceptions as may be mutually agreed upon by
such counsel and the Manager and set forth in the Underwriting Agreement.
* To be included if (i) an annual report on Form 10-K has been filed
subsequent to the effectiveness of the Registration Statement or (ii) a
post-effective amendment was filed solely to add information concerning
a prior offering not connected with the present one.
A-3
<PAGE>
ANNEX I
-------
FORM OF UNDERWRITING AGREEMENT
[DATE]
Bankers Trust New York Corporation,
130 Liberty Street,
New York, New York 10006.
Dear Sirs:
We [, as [sole] Underwriter[s]] [, as representative[s] of the several
Underwriters (the "Manager[s]"),] understand that Bankers Trust New York
Corporation, a New York corporation (the "Corporation"), proposes to issue and
sell $___________ aggregate principal amount of its [title of securities] (the
"Securities") to [us] [the Underwriters named in Schedule I hereto (the
"Underwriters")]. The Securities will be issued pursuant to an Indenture, dated
as of ___________ __, 199__ (the "Indenture"), between the Corporation and
____________________, as trustee (the "Trustee"). The terms of the Securities
are set forth in the Registration Statement and Basic Prospectus referred to in
the provisions incorporated herein by reference, as supplemented by a Prospectus
Supplement dated _________ __ , 199__.
All the provisions contained in the document entitled Bankers Trust
New York Corporation Debt Securities Underwriting Agreement Standard Provisions
(September 1997), a copy of which we have previously received, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein.
Subject to the terms and conditions set forth herein or incorporated
by reference herein, the Corporation hereby agrees to sell and [we hereby agree]
[each of the Underwriters hereby agrees, severally and not jointly,] to purchase
[the Securities] [the principal amount of Securities set forth opposite the name
of such Underwriter in Schedule I hereto] at ___% of their principal amount,
plus accrued interest or accrued amortization of original issue discount, if
any, or both, from _________ __, 199__ to the date of payment and delivery.
We will pay for such Securities as provided in the Standard Provisions
upon delivery thereof at the offices of the Corporation, 130 Liberty Street, New
York, New York, at 10:00
I-1
<PAGE>
A.M. (New York City time) on ___________ __ 199__ or at such other time, not
later than _____________ __, 199__, as the Corporation and we shall agree, such
time being referred to herein as the "Closing Date."
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and by returning the signed
copy to us.
Very truly yours,
[UNDERWRITER[S]]
[MANAGER[S],]
[As representatives of the Several
Underwriters named in Schedule I hereto]
By:___________________________
Name:
Title:
Accepted:
BANKERS TRUST NEW YORK CORPORATION
By:_______________________________
Name:
Title:
I-2
<PAGE>
Schedule I
----------
Name of Underwriter Aggregate Principal
- --------------------- Amount of Securities
--------------------
<PAGE>
ANNEX II
--------
FORM OF DELAYED DELIVERY CONTRACT
___________, 19__
Bankers Trust New York Corporation,
130 Liberty Street,
New York, New York 10006.
Dear Sirs:
The undersigned hereby agrees to purchase from Bankers Trust New York
Corporation, a New York corporation (the "Corporation"), and the Corporation
agrees to sell to the undersigned
$__________
principal amount of the Corporation's [title of issue] (the "Securities"),
offered by the Corporation's Prospectus dated __________________, 19__ and
Prospectus Supplement dated ______________, 19__, receipt of copies of which is
hereby acknowledged, at a purchase price of ____% of the principal amount
thereof, plus accrued interest or accrued amortization of original issue
discount, if any, or both, and on the further terms and conditions set forth in
this contract. The undersigned does not contemplate selling the Securities
prior to making payment therefor.
The undersigned will purchase from the Corporation the Securities in
the principal amounts and on the delivery dates set forth below:
Plus Accrued Interest and/
Delivery Principal or Amortization of Original
Date Amount Issue Discount From
- ---------- --------- ------------------------------
_________ $ ________ _______________
_________ $ ________ _______________
_________ $ ________ _______________
Each such date on which the Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."
II-1
<PAGE>
Payment for the Securities that the undersigned has agreed to purchase
on each Delivery Date shall be made to the Corporation or its order by wire
transfer in immediately available funds at the office of the Corporation located
at the above address, at 10:00 A.M. (New York City time) on the Delivery Date or
in such other manner and such other funds as may be mutually agreed upon by the
Corporation and the Manager and set forth in the Underwriting Agreement, upon
delivery to the undersigned of the Securities to be purchased by the undersigned
on the Delivery Date, in such denominations and registered in such names as the
undersigned may designate in writing to the Corporation not less than five full
business days prior to the Delivery Date or, if the undersigned fails to make a
timely designation in the foregoing manner, in the form of one fully registered
instrument representing the Securities in the above principal amount, registered
in the name of the undersigned.
The obligation of the undersigned to take delivery of and make payment
for the Securities on each Delivery Date shall be subject to the conditions that
(1) the purchase of the Securities to be made by the undersigned shall not at
the time of delivery be prohibited under the laws of the jurisdiction to which
the undersigned is subject and (2) the Corporation shall have sold, and delivery
shall have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Corporation shall mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Corporation delivered to the Underwriters in
connection therewith.
Failure to take delivery of and make payment for the Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Corporation, it is requested
that the Corporation sign the form of acceptance below and mail or deliver one
of the counterparts hereof to the undersigned at its address set forth below.
This will become a binding contract, as of the date first above written, between
the
II-2
<PAGE>
Corporation and the undersigned when such counterpart is so mailed or
delivered.
This contract shall be governed by and construed in accordance with
the laws of the State of New York.
Yours very truly,
_________________________
(Purchaser)
By:_______________________
Name:
Title:
_________________________
_________________________
(Address)
Accepted:
BANKERS TRUST NEW YORK CORPORATION
By________________________________
Name:
Title:
II-3
<PAGE>
Draft of September 22, 1997
Exhibit 1.2
BANKERS TRUST NEW YORK CORPORATION
Series Preferred Stock, Common Stock
and Depositary Shares
_____________________________
Underwriting Agreement
Standard Provisions
(September 1997)
_____________________________
From time to time, BANKERS TRUST NEW YORK CORPORATION, a New York
corporation (the "Corporation"), may enter into one or more underwriting
agreements, in the form of Annex I hereto or otherwise, that provide for the
-------
sale of designated shares (the "Offered Shares") of its series preferred stock,
without par value (the "Series Preferred Stock"), or common stock, par value
$1.00 per share (the "Common Stock"), to one or more underwriters named therein
(the "Underwriters"), severally where there are more than one. The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions hereof incorporated therein by reference, is
herein referred to as this Agreement. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined. If
the Prospectus (as defined below) so provides, the Offered Shares shall be
deposited by the Manager or on its behalf against delivery of receipts (the
"Depositary Receipts") to be issued by the bank or trust company named in the
Prospectus as the depositary (such bank or trust company being referred to
herein as the "Depositary") under a Deposit Agreement, to be dated as of the
date specified in the Prospectus (the "Deposit Agreement"), among the
Corporation, the Depositary and the holders from time to time of the Depositary
Receipts issued thereunder. Such Depositary Receipts will evidence Depositary
Shares (the "Depositary Shares") and each Depositary Share will represent the
number of Offered Shares, or fractions thereof, specified in the Prospectus. If
the Offered Shares are not to be represented by Depositary Receipts, then all
references herein to Depositary Receipts, Depositary Shares and to any
agreements, instruments or persons related thereto shall be disregarded and all
opinions (or portions thereof) and other documents relating to the foregoing
shall be deemed to be deleted from this Agreement for purposes of the related
Underwriting Agreement. If an Underwriting Agreement provides for the
<PAGE>
purchase of the Offered Shares by an Underwriter or Underwriters, but does not
provide for a Manager or Managers, the references to the Manager herein shall be
deemed to refer to such Underwriter or Underwriters.
I.
The Corporation has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-32909),
including a prospectus relating to, among other securities, Common Stock,
Preferred Stock and Depositary Shares and has filed with the Commission a
prospectus supplement specifically relating to the issue of the Offered Shares
and, if applicable, the Depositary Shares pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means such registration statement as amended to the
date of the Underwriting Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement specifically
relating to the Offered Shares, as filed with the Commission pursuant to Rule
424. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Shares together with the Basic
Prospectus. As used herein, the terms "Registration Statement," "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case all documents and information, if any, incorporated by reference therein.
The term "Securities" means the Offered Shares and, if the Offered Shares are to
be evidenced by Depositary Receipts, the Depositary Shares evidenced by such
Depositary Receipts.
The term "Underwriters' Securities" means the Securities to be
purchased by the Underwriters hereunder. The term "Contract Securities" means
the Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
If the Prospectus provides for sales of Contract Securities, the
Corporation hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to delayed delivery contracts substantially in the form of
Annex II hereto ("Delayed Delivery Contracts") but with such changes
- --------
-2-
<PAGE>
therein as the Corporation may authorize or approve. Delayed Delivery Contracts
are to be with institutional investors approved by the Corporation and of the
types set forth in the Prospectus. On the Closing Date (as hereinafter defined),
the Corporation will pay the Manager, for the accounts of the Underwriters, as
compensation, the fee set forth in the Underwriting Agreement in respect of the
number of the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts.
If the Corporation executes and delivers Delayed Delivery Contracts
with institutional investors, the Contract Securities shall be deducted from the
Securities to be purchased by the several Underwriters and the aggregate number
of Securities to be purchased by each Underwriter shall be reduced pro rata in
proportion to the number of Securities set forth opposite each Underwriter's
name in the Underwriting Agreement, except to the extent that the Manager
determines that such reduction shall be otherwise and so advises the
Corporation.
III.
The Corporation is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Manager's judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by wire
transfer to the order of the Corporation in immediately available funds or in
such other manner and such other funds as may be mutually agreed upon by the
Corporation and the Manager and set forth in the Underwriting Agreement, at the
time and place set forth in the Underwriting Agreement, upon delivery to the
Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations as
the Manager shall request in writing not less than two full business days prior
to the date of delivery. The time and date of such payment and delivery with
respect to the Underwriters' Securities are herein referred to as the "Closing
Date."
-3-
<PAGE>
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and there shall have been
no material adverse change (not in the ordinary course of business) in the
financial condition or results of operations of the Corporation and its
subsidiaries, taken as a whole, from that set forth in the Prospectus since
the effective dates as of which information is given therein; and the
Manager shall have received, on the Closing Date, a certificate, dated the
Closing Date and signed by an officer of the Corporation, to the foregoing
effect and also to the effect that the representations and warranties of
the Corporation in the first paragraph of Article VIII of this Agreement
are true and correct in all material respects as of the Closing Date. The
officer making such certificate may rely upon the best of his knowledge as
to proceedings pending or threatened and whether a stop order suspending
the effectiveness of the Registration Statement is in effect.
(b) The Manager shall have received on the Closing Date an opinion of
counsel for the Corporation, dated the Closing Date, to the effect set
forth in Exhibit A, and, unless otherwise agreed, an opinion of tax counsel
---------
for the Corporation, dated the Closing Date, covering such matters as may
be mutually agreed upon by such tax counsel and the Manager and set forth
in the Underwriting Agreement.
(c) The Manager shall have received on the Closing Date an opinion of
counsel for the Depositary, if applicable, dated the Closing Date, to the
effect set forth in Exhibit B.
---------
(d) The Manager shall have received on the Closing Date from White &
Case, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Corporation, the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as the Manager may require, and the Corporation shall
furnish to such counsel such documents as they may reasonably request for
the purposes of enabling them to pass upon such matters.
-4-
<PAGE>
(e) On the Closing Date the Manager shall have received a letter,
dated the Closing Date and in form and substance satisfactory to the
Manager, from the independent accountants to the Corporation, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to Underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus, and confirming that
they are independent accountants within the meaning of the Securities Act
and the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the respective applicable published rules and regulations thereunder.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Corporation covenants as follows:
(a) To furnish the Manager, without charge, a copy of the Registration
Statement including exhibits and materials, if any, incorporated by
reference therein and, during the period mentioned in paragraph (c) below,
as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto as the Manager may
reasonably request. The terms "supplement" and "amendment" or "amend" as
used in this Agreement shall include all documents filed by the Corporation
with the Commission subsequent to the date of the Basic Prospectus,
pursuant to the Exchange Act, which are deemed to be incorporated by
reference in the Prospectus.
(b) During the period between the date of the Underwriting Agreement
and the Closing Date, to furnish the Manager with a copy of each proposed
amendment or supplement to the Registration Statement or the Prospectus
specifically relating to the Securities before filing such amendment or
supplement with the Commission.
(c) If, at any time during the period following the public offering of
the Securities during which, in the opinion of counsel for the
Underwriters, the Prospectus is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to ensure that the Prospectus does not contain an
untrue statement of a material fact or omit to
-5-
<PAGE>
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
it is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters,
either amendments or supplements to the Prospectus so that the statements
in the Prospectus as so amended or supplemented will not, in the light of
the circumstances under which they were made, be misleading or so that the
Prospectus will comply with law, as the case may be, provided that any such
--------
amendment or supplement shall be made at the expense of the requesting
Underwriter if such Underwriter's request for such amendment or supplement
is received by the Corporation 90 days or more following the Closing Date.
(d) To endeavor, in cooperation with the Underwriters, to qualify the
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Manager shall reasonably request and to pay all
reasonable expenses (including reasonable fees and disbursements of
counsel) in connection with such qualification, the determination of the
eligibility of the Securities for investment under the laws of such
jurisdictions as the Manager may reasonably designate and the preparation
of any memoranda concerning the aforesaid qualification or eligibility,
provided that, in connection with any such qualification, the Corporation
--------
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction.
(e) To make generally available to the Corporation's security holders
as soon as practicable, but not later than sixteen months, after the date
of the Underwriting Agreement an earnings statement covering a period of at
least twelve months beginning after the effective date of the Registration
Statement (as such date is defined for this purpose by Rule 158 under the
Securities Act), which shall satisfy the provisions of Section 11(a) of the
Securities Act (including, at the option of the Corporation, Rule 158
thereunder).
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of the Closing Date
and the removal by the Manager of trading restrictions on the Securities,
not to offer, sell, contract to sell or otherwise dispose of (other than
upon exercise of warrants therefor, or upon conversion of
-6-
<PAGE>
convertible securities, in each case outstanding at the date of the
Underwriting Agreement, pursuant to any employment contract, benefit plan
or similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, in connection with a
dividend reinvestment or shareholder stock purchase plan or in connection
with the issuance of securities of the Corporation as consideration under
an acquisition agreement, in each case outstanding at the date of the
Underwriting Agreement, or in an offering made exclusively outside the
United States) any equity securities of the Corporation substantially
similar to the Securities without the prior written consent of the Manager.
VII.
The Corporation covenants and agrees with each Underwriter that the
Corporation will pay or cause to be paid the following: (i) the fees for the
registration of the Securities under the Securities Act; (ii) the fees,
disbursements and expenses of the Corporation's accountants in connection with
the registration of the Securities under the Securities Act and all other
expenses incurred by it in connection with the preparation of the Registration
Statement, any preliminary prospectus, the Prospectus and any amendments and
supplements thereto, the printing of any preliminary prospectus, the Prospectus
and any amendments or supplements thereto, and delivery of copies thereof to the
Underwriters as provided in Article VI of this Agreement; (iii) all expenses
(including reasonable fees and disbursements of counsel) payable pursuant to
paragraph (d) of Article VI of this Agreement; (iv) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Securities, fees paid in connection with
any listing of the Securities on the New York Stock Exchange, Inc. or any other
stock exchange or quotation system and any fees of rating agencies; (v) all
costs and expenses incurred in the preparation of this Agreement and all other
documents relating to the issuance, underwriting and initial offering of the
Securities; (vi) all costs, fees and expenses relating to the preparation and
filing via the Commission's Electronic Data Gathering and Retrieval System of
the Prospectus, the Registration Statement and any amendments or supplements
thereto, this Agreement and all other documents relating to the issuance,
underwriting and initial offering of the Securities required to be so filed;
(vii) any fees of the Depositary and any taxes in connection with the deposit of
the Offered Shares with the Depositary and the issuance of the
-7-
<PAGE>
Depositary Receipts (provided that the Underwriters shall pay the New York State
--------
stock transfer tax, if any, that may be imposed in connection therewith, and the
Corporation shall reimburse the Underwriters for associated carrying costs if
such tax payment is not rebated on the day of payment and for any portion of
such tax payment not rebated); and (viii) all other costs and expenses incident
to the performance by the Corporation of its obligations hereunder that are not
otherwise specifically provided for in this Article.
VIII.
The Corporation represents and warrants to each Underwriter that (i)
each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder; (ii) insofar as relevant to the
offering of the Securities, each part of the Registration Statement filed with
the Commission pursuant to the Securities Act, when such part became effective,
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; (iii) each preliminary prospectus, if any, relating to
the Securities filed pursuant to Rule 424 under the Securities Act complied when
so filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder; (iv) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder; (v) the
Registration Statement and the Prospectus do not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and (vi) the issuance and sale of the Securities and, if applicable,
the issuance and sale of the Common Stock or Series Preferred Stock issuable
upon conversion of the Offered Shares, and the execution, delivery and
performance by the Corporation of the Underwriting Agreement will not contravene
any provisions of applicable Federal or New York law or regulation, the
certificate of incorporation or by-laws of the Corporation, or any agreement or
other instrument binding upon the Corporation, which contravention, in any such
case, would have a material adverse effect on the Corporation; provided,
--------
however, that the foregoing
- -------
-8-
<PAGE>
representations and warranties do not apply to statements in or omissions from
the Registration Statement, any preliminary prospectus or the Prospectus based
upon information furnished to the Corporation in writing by any Underwriter
expressly for use therein or to any statements in or omissions from the
statement of eligibility and qualification on Form T-1 (a "Form T-1") of any
trustee under the Trust Indenture Act of 1939, as amended, that may be filed in
connection with the Registration Statement.
The Corporation agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus, or in any
Blue Sky application or related document prepared pursuant to paragraph (d) of
Article VI hereof, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Corporation in writing by an Underwriter expressly for use therein or by any
untrue statement or omission or alleged untrue statement or omission in any Form
T-1; provided that the foregoing indemnity agreement with respect to any
--------
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if (i) the loss, claim,
damage or liability asserted by such purchaser was caused by a defect in the
Prospectus delivered to such purchaser after the period referred to in paragraph
(c) of Article VI of this Agreement and such defect would not have existed
before the expiry of such period, or (ii) a copy of the Prospectus (as then
amended or supplemented if the Corporation shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of the Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Corporation, its directors and its officers who sign the
Registration Statement, any authorized representative of the Corporation and any
person controlling the
-9-
<PAGE>
Corporation to the same extent as the foregoing indemnity from the Corporation
to each Underwriter, but only with reference to information furnished in writing
by such Underwriter expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus, or in any Blue Sky application or
related document prepared pursuant to paragraph (d) of Article VI hereof, or any
amendments or supplements thereto.
If any proceeding (including any governmental investigation) shall be
threatened or instituted involving any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. In
the case of parties indemnified pursuant to the second preceding paragraph, such
separate firm shall be designated in writing by the Manager. In the case of
parties indemnified pursuant to the immediately preceding paragraph, such
separate firm shall be designated in writing by the Corporation. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment.
If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under the second or third paragraphs hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each
-10-
<PAGE>
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Corporation on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Corporation on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Corporation on the one
hand and the Underwriters on the other in connection with the offering of the
Securities shall be deemed to be in the same proportion as the total net
proceeds (before deducting expenses) from the offering of such Securities
received by the Corporation bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative fault
of the Corporation on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Corporation or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Corporation and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Article VIII were determined by
pro rata allocation (even if all of the Underwriters are treated as a single
entity for such purpose) or by any other method of allocation that does not take
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding any other provision of this Article VIII, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total public offering price of the Securities purchased by such
Underwriter exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such
-11-
<PAGE>
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Article VIII are several, in proportion to the
respective numbers of Securities purchased by each of such Underwriters, and not
joint.
The indemnity and contribution agreements contained in this Article
VIII and the representations and warranties of the Corporation in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Corporation, its directors or officers, any authorized
representative of the Corporation or any person controlling the Corporation and
(iii) acceptance of and payment for any of the Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Corporation, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange,
Inc., or on any other stock exchange or automated quotation system on which the
Securities are or are to be listed or to which the Securities have been or are
to be admitted for quotation, shall have been suspended or materially limited,
(ii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iii)
there shall have occurred any material outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the Manager,
impracticable to market the Securities.
X.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Securities that it or they have agreed to purchase
hereunder and the aggregate number of Securities that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of Securities to be
-12-
<PAGE>
purchased on such date, the other Underwriters shall be obligated severally in
the proportions which the number of Securities set forth opposite their names in
the Underwriting Agreement bears to the aggregate number of Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Manager may specify, to purchase the Securities that such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Securities and the aggregate number of Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Securities to be purchased on such date, and arrangements satisfactory
to the Manager and the Corporation for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall thereupon
terminate without liability on the part of any non-defaulting Underwriter or of
the Corporation. In any such case either the Manager or the Corporation shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
XI.
If this Agreement shall be terminated by the Underwriters or any of
them because of any failure or refusal on the part of the Corporation to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Corporation shall be unable to perform its obligations under this
Agreement, the Corporation will reimburse the Underwriters, or such Underwriters
as have so terminated this Agreement with respect to themselves, for all
reasonable out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the
Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
-13-
<PAGE>
EXHIBIT A
---------
Opinion of Counsel to the Corporation
-------------------------------------
The opinion of counsel to the Corporation to be delivered pursuant to
Article V, paragraph (b) of the document entitled Bankers Trust New York
Corporation Series Preferred Stock, Common Stock and Depositary Shares
Underwriting Agreement Standard Provisions (September 1997) shall be to the
effect that:
(i) the Corporation has been duly incorporated, is an existing
corporation in good standing under the laws of the State of New York, is
duly registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended, and has all requisite corporate power and
authority to own its properties and conduct its business as described in
the Prospectus;
(ii) Bankers Trust Company has been duly incorporated, is an existing
trust company in good standing under the laws of the State of New York, and
has all requisite corporate power and authority to own its properties and
to conduct its business as described in the Prospectus;
(iii) the Corporation's authorized equity capitalization is as set
forth in the Prospectus; the statements in the Prospectus Supplement under
the captions "Certain Terms of the Preferred Stock," "Certain Terms of the
Common Stock" and "Certain Terms of the Depositary Shares," as applicable,
and in the Basic Prospectus under "Description of Offered Securities--
Description of Series Preferred Stock," "Description of Offered Securities-
-Description of Depositary Shares" "Description of Offered Securities--
Description of Common Stock," as applicable, and "Description of the
Corporation's Capital Stock," insofar as such statements constitute a
summary of the documents or proceedings referred to therein, fairly present
the matters referred to therein;
(iv) the Offered Shares have been duly authorized and validly issued
and are fully paid and nonassessable subject to Section 630 of the New York
Business Corporation Law; and the holders of outstanding shares of capital
stock of the Corporation are not entitled to preemptive or other rights to
subscribe for the Offered Shares;
(v) if applicable, the Offered Shares are convertible into Common
Stock or other Series Preferred Stock of the Corporation in accordance with
their terms; the shares of Common Stock or Series Preferred Stock initially
issuable upon conversion of the Offered Shares have been duly authorized
and reserved for issuance upon such conversion
A-1
<PAGE>
and, when issued upon such conversion, will be validly issued, fully paid
and nonassessable subject to Section 630 of the New York Business
Corporation Law;
(vi) if applicable, the Securities and, if applicable, the shares of
Common Stock or Series Preferred Stock issuable upon conversion of the
Offered Shares have been duly authorized for listing, in each case subject
to official notice of issuance, on the New York Stock Exchange, Inc., or
such other stock exchange or automated quotation system on or to which such
Securities and, if applicable, such shares of Common Stock or Series
Preferred Stock are or are to be listed or admitted; and the holders of
outstanding shares of capital stock of the Corporation are not entitled to
preemptive rights with respect to such Common Stock or Series Preferred
Stock;
(vii) the Deposit Agreement has been duly authorized, executed and
delivered by the Corporation and is a valid and binding agreement of the
Corporation enforceable in accordance with its terms; and when the
Depositary Receipts are issued by the Depositary in accordance with the
provisions of the Deposit Agreement against the deposit of the shares of
Common Stock or Series Preferred Stock, as the case may be, the persons in
whose names such Depositary Receipts are registered will be entitled to the
rights specified in such Depositary Receipts and the Deposit Agreement;
(viii) the Underwriting Agreement has been duly authorized, executed
and delivered by the Corporation;
(ix) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Corporation and are valid and
binding agreements of the Corporation enforceable in accordance with their
respective terms;
(x) no consent, approval, authorization or other order of any
governmental or regulatory body is required under Federal or New York law
or regulation for the issuance and the sale of the Securities or, if
applicable, the issuance of the Common Stock or Series Preferred Stock
issuable upon conversion thereof, and the execution, delivery and
performance of the Underwriting Agreement and the Deposit Agreement, except
for the order of the Securities and Exchange Commission making the
Registration Statement effective and except as may be required under the
securities or Blue Sky laws of any jurisdiction;
(xi) each part of the Registration Statement, when such part became
effective, and the Prospectus, as of the Closing
A-2
<PAGE>
Date (in each case except as to financial statements and schedules and
other financial data contained therein, and except as to any Form T-1, as
to which such counsel need not express any opinion), complied as to form in
all material respects with the Securities Act and the rules and regulations
of the Commission thereunder; and each document filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus (except as to
financial statements and schedules and other financial data contained
therein, as to which such counsel need not express any opinion) complied
when so filed as to form in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder; and
(xii) nothing has come to such counsel's attention that has caused
him to believe that[, insofar as relevant to the offering of the
Securities,]* any part of the Registration Statement, when such part became
effective (except for the financial statements and schedules and other
financial data and any statements concerning the tax laws contained
therein, and except as to any Form T-1, as to which such counsel need not
express any belief), contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (except for the financial statements and schedules and other
financial data and any statements concerning the tax laws contained
therein, as to which such counsel need not express any belief), as of the
Closing Date, contained any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to certain matters
on certificates of responsible officers of the Corporation and other persons
believed by such counsel to be responsible. Referring to clauses (v), (vii),
(ix) and (x) above, such counsel may make the expression of opinion referred to
therein subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. Further, such counsel may
state that he does not express an opinion as to any law other than the law of
the State of New York and the Federal law of the United States of America and
that he does not express any opinion as to any tax laws. Such counsel may also
take such other exceptions as may be
* To be included if (i) an annual report on Form 10-K has been filed
subsequent to the effectiveness of the Registration Statement or (ii) a
post-effective amendment was filed solely to add information concerning a
prior offering not connected with the present one.
A-3
<PAGE>
mutually agreed upon by such counsel and the Manager and set forth in the
Underwriting Agreement.
A-4
<PAGE>
EXHIBIT B
---------
Opinion of Counsel to the Depositary
------------------------------------
The opinion of counsel to the Depositary, to be delivered pursuant to
Article V, paragraph (c) of the document entitled Bankers Trust New York
Corporation Series Preferred Stock, Common Stock and Depositary Shares
Underwriting Agreement Standard Provisions (September 1997) shall be to the
effect that:
(i) the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and is a valid and binding agreement of the
Depositary enforceable in accordance with its terms; and
(ii) when the Depositary Receipts are issued by the Depositary in
accordance with the provisions of the Deposit Agreement against the deposit
of duly authorized, validly issued, fully paid and nonassessable shares of
Common Stock or Series Preferred Stock, as the case may be, the persons in
whose name such Depositary Receipts are registered will be entitled to the
rights specified in such Depositary Receipts and the Deposit Agreement.
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Depositary and public officials.
Referring to clauses (i) and (ii) above, such counsel may make the expression of
opinion referred to therein subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
Further, such counsel may state that he does not express an opinion as to any
law other than the law of the State of New York and the Federal law of the
United States of America. Such counsel may also take such other exceptions as
may be mutually agreed upon by such counsel and the Manager and set forth in the
Underwriting Agreement.
B-1
<PAGE>
ANNEX I
-------
FORM OF UNDERWRITING AGREEMENT
[DATE]
Bankers Trust New York Corporation,
130 Liberty Street,
New York, New York 10006.
Dear Sirs:
We[, as [sole] Underwriter[s]] [, as representative[s] of the several
Underwriters (the "Manager[s]"),] understand that Bankers Trust New York
Corporation, a New York corporation (the "Corporation"), proposes to issue and
sell __________ shares of its [Series Preferred Stock, Series __, without par
value] [Common Stock, par value $1.00 per share] (the ["Offered Shares"]
["Securities"]), to [us] [the Underwriters named in Schedule I hereto (the
"Underwriters")]. [The Offered Shares are to be deposited by us or on our
behalf against delivery of Depositary Receipts (the "Depositary Receipts") to be
issued by __________ as Depositary (the "Depositary"), under a Deposit
Agreement, to be dated as of ____________ __, 199__ (the "Deposit Agreement"),
among the Corporation, the Depositary and the holders from time to time of the
Depositary Receipts issued thereunder. The Depositary Receipts will evidence
Depositary Shares (the "Depositary Shares," and together with the Offered
Shares, the "Securities") and each Depositary Share will represent [specify
fraction] of an Offered Share.] The terms of the Securities are set forth in
the Registration Statement and Basic Prospectus referred to in the provisions
incorporated herein by reference, as supplemented by a Prospectus Supplement
dated ______________ __, 199__.
All the provisions contained in the document entitled Bankers Trust
New York Corporation Series Preferred Stock, Common Stock and Depositary Shares
Underwriting Agreement Standard Provisions (September 1997), a copy of which we
have previously received, are herein incorporated by reference in their entirety
and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein.
Subject to the terms and conditions set forth herein or incorporated
by reference herein, the Corporation hereby agrees to sell and [we hereby agree]
[each of the Underwriters hereby
<PAGE>
agrees, severally and not jointly,] to purchase [the Securities] [the number of
[Offered Shares] [Depositary Shares] set forth opposite the name of such
Underwriter in Schedule I hereto] at a purchase price of $ _______ per share,
plus accrued dividends, if any, from the date of original issue to the date of
payment and delivery.
We will pay for such Securities as provided in the Standard Provisions
upon delivery thereof at the offices of the Corporation, 130 Liberty Street, New
York, New York, at 10:00 A.M. (New York City time) on ________ __, 199__ or at
such other time, not later than ________ __, 199__, as the Corporation and we
shall agree, such time being referred to herein as the "Closing Date."
[The certificate representing the Offered Shares will be delivered by
us to, and deposited with, the Depositary against delivery of Depositary
Receipts representing Depositary Shares. Such Depositary Receipts shall be
issued in such denominations and registered in such names as we shall request
and shall be made available for checking and packaging at the above office of
the Corporation at least 24 hours prior to the Closing Date.]
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and by returning the signed
copy to us.
Very truly yours,
[UNDERWRITER[S]]
[MANAGER[S],]
[As representatives of the
Several Underwriters named in
Schedule I hereto]
By:_______________________________
Name:
Title:
Accepted:
BANKERS TRUST NEW YORK CORPORATION
By:___________________________________
Name:
Title:
I-2
<PAGE>
Schedule I
----------
Name of Underwriter Aggregate Number
- --------------------- of Securities
----------------
<PAGE>
ANNEX II
---------
FORM OF DELAYED DELIVERY CONTRACT
___________, 19__
Bankers Trust New York Corporation,
130 Liberty Street,
New York, New York 10006.
Dear Sirs:
The undersigned hereby agrees to purchase from Bankers Trust New York
Corporation, a New York corporation (the "Corporation"), and the Corporation
agrees to sell to the undersigned
__________
shares of the Corporation's [title of issue] (the "Securities"), offered by the
Corporation's Prospectus dated __________________, 19__ and Prospectus
Supplement dated ______________, 19__, receipt of copies of which is hereby
acknowledged, at a purchase price of $______ per share, plus accrued dividends,
if any, and on the further terms and conditions set forth in this contract. The
undersigned does not contemplate selling the Securities prior to making payment
therefor.
The undersigned will purchase from the Corporation the number of
Securities on the delivery dates set forth below:
Delivery Number of Plus Accrued
Date Securities Dividends From:
- ---------- ---------- ---------------
- ---------- ---------- -----------
- ---------- ---------- -----------
- ---------- ---------- -----------
Each such date on which the Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."
Payment for the Securities that the undersigned has agreed to purchase
on each Delivery Date shall be made to the
II-1
<PAGE>
Corporation or its order by wire transfer in immediately available funds at the
office of the Corporation located at the above address, at 10:00 A.M. (New York
City time) on the Delivery Date or in such other manner and such other funds as
may be mutually agreed upon by the Corporation and the Manager and set forth in
the Underwriting Agreement, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate in writing to the
Corporation not less than five full business days prior to the Delivery Date or,
if the undersigned fails to make a timely designation in the foregoing manner,
in the form of one fully registered instrument representing the Securities in
the above principal amount, registered in the name of the undersigned.
The obligation of the undersigned to take delivery of and make payment
for the Securities on each Delivery Date shall be subject to the conditions that
(1) the purchase of the Securities to be made by the undersigned shall not at
the time of delivery be prohibited under the laws of the jurisdiction to which
the undersigned is subject and (2) the Corporation shall have sold, and delivery
shall have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Corporation shall mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Corporation delivered to the Underwriters in
connection therewith.
Failure to take delivery of and make payment for the Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Corporation, it is requested
that the Corporation sign the form of acceptance below and mail or deliver one
of the counterparts hereof to the undersigned at its address set forth below.
This will become a binding contract, as of the date first above written, between
the
II-2
<PAGE>
Corporation and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with
the laws of the State of New York.
Yours very truly,
_________________________
(Purchaser)
By:_______________________
Name:
Title:
_________________________
_________________________
(Address)
Accepted:
BANKERS TRUST NEW YORK CORPORATION
By________________________________
Name:
Title:
II-3
<PAGE>
EXHIBIT 4.1
-----------
CERTIFICATE FOR CERTIFICATE FOR
NOT MORE THAN NOT MORE THAN
100,000 100,000
SHARES SHARES
NB SHARES
COMMON COMMON
STOCK STOCK
BANKERS TRUST NEW YORK CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK
This Certifies that CUSIP 066365 10 7
SEE REVERSE FOR CERTAIN DEFINITIONS
is the owner of
SHARES OF THE COMMON STOCK
of Bankers Trust New York Corporation, transferable in person or by attorney
upon the books of the Corporation upon surrender of this certificate properly
assigned. This certificate is not valid unless countersigned by a Transfer Agent
and registered by a Registrar. Witness the seal of the Corporation and
the signatures of its duly authorized officers.
Dated
/s/ /s/
SECRETARY CHAIRMAN
COUNTERSIGNED AND REGISTERED:
HARRIS TRUST COMPANY OF NEW YORK
TRANSFER AGENT
AND REGISTRAR,
BY
AUTHORIZED SIGNATURE.
<PAGE>
BANKERS TRUST NEW YORK CORPORATION
The Corporation will furnish to any shareholder upon request and without
charge, a full statement of the designation, relative rights, preferences and
limitations of the shares of each class of shares authorized to be issued, and
the designation, relative rights, preferences and limitations of each series
of preferred shares, so far as the same have been fixed, and the authority of
the Board of Directors to designate and fix the relative rights, preferences
and limitations of other series.
THE FOLLOWING ABBREVIATIONS, WHEN USED IN THE INSCRIPTION ON THE FACE OF
THIS CERTIFICATE, SHALL BE CONSTRUED AS THOUGH THEY WERE WRITTEN OUT IN FULL
ACCORDING TO APPLICABLE LAWS OR REGULATIONS:
TEN COM --AS TENANTS IN COMMON
TEN ENT --AS TENANTS BY THE ENTIRETIES
JT TEN --AS JOINT TENANTS WITH RIGHT OF
SURVIVORSHIP AND NOT AS TENANTS
IN COMMON
UNIF GIFT MIN ACT-- ..........Custodian..........
(Cust) (Minor)
under Uniform Gifts to Minors
Act..........................
(State)
ADDITIONAL ABBREVIATIONS MAY ALSO BE USED THOUGH NOT IN THE ABOVE LIST.
For value received, ____________________ hereby sell, assign and transfer under
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFICATION NUMBER OF ASSIGNEE
[_______________________]_______________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
__________________________________________________________________________Shares
of the Stock represented by the within Certificate, and do hereby irrevocably
constitute and appoint_________________________________________________________
_______________________________________________________________________________
Attorney to transfer the said stock on the books of the within-named
Corporation with full power of substitution in the premises.
Dated, ______________________ _______________________________
SIGNATURE GUARANTEED:
This certificate also evidences and entitles the holder hereof to certain rights
as set forth in a Rights Agreement between Bankers Trust New York Corporation
and First Chicago Trust Company of New York as successor to Morgan Shareholder
Services Trust Company, dated as of February 22, 1988 (the "Rights Agreement"),
the terms of which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices of Bankers Trust New York
Corporation. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. Bankers Trust New York Corporation
will mail to the holder of this certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor. As described in the
Rights Agreement, Rights issued to any Person who becomes an Acquiring Person
(as defined in the Rights Agreement) shall become null and void.
<PAGE>
EXHIBIT 4.2
CERTIFICATE
NUMBER NUMBER OF
SHARES
BANKERS TRUST NEW YORK CORPORATION
Incorporated Under the Laws of the State of New York
____% PREFERRED STOCK, SERIES __
$_____ LIQUIDATION PREFERENCE
CUSIP NO.
-----------------
(See Reverse for Certain
Definitions)
This Certifies that ________________________ is the owner of
_______________________ (___) fully paid and nonassessable shares without par
value of ____% Preferred Stock, Series __ ($____ Liquidation Preference), of
Bankers Trust New York Corporation (the "Corporation") transferable only on the
books of the Corporation by the holder thereof in person or by duly authorized
Attorney upon surrender of this Certificate properly endorsed. This Certificate
is not valid unless countersigned by the transfer agent and registrar.
WITNESS the seal of the Corporation and the signatures of its duly authorized
officers.
HARRIS TRUST COMPANY OF NEW YORK BANKERS TRUST NEW YORK CORPORATION
as Registrar and Transfer Agent
By By
----------------------------- --------------------------------
Authorized Signature
Attest
------------------------
<PAGE>
The Corporation will furnish to any shareholder upon request and without
charge, a full statement of the designation, relative rights, preferences and
limitations of the shares of each class of shares authorized to be issued, and
the designation, relative rights, preferences and limitations of each series
of preferred shares, so far as the same have been fixed, and the authority of
the Board of Directors to designate and fix the relative rights, preferences
and limitations of other series.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN
ACT-____ Custodian_____
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act____________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, _________________________ hereby sell, assign and
transfer unto _____________________ ________________________________ Shares of
the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint ________________________ Attorney to
transfer the said stock on the books of the within-named Corporation with full
power of substitution in the premises.
Dated _________________, 19___ ___________________
In presence of ___________________________________
<PAGE>
EXHIBIT 4.3
- --------------------------------------------------------------------------------
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
BANKERS TRUST NEW YORK CORPORATION
___________________
Under Section 805 of the Business Corporation Law
___________________
STATE OF NEW YORK
DEPARTMENT OF STATE
Filed _____________, 199__
___________________
Bankers Trust New York Corporation
280 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
<PAGE>
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
BANKERS TRUST NEW YORK CORPORATION
-------------------
Under Section 805 of the Business Corporation Law
-------------------
Pursuant to the provisions of Section 805 of the
Business Corporation Law, the undersigned hereby certify:
FIRST: The name of the corporation is Bankers Trust New York
Corporation and the name under which it was formed is BT New York Corporation.
SECOND: The Certificate of Incorporation of the corporation was filed
by the Department of State of New York on the 12th day of May, 1965.
THIRD: The Certificate of Incorporation, as amended and restated and
supplemented by certificates filed pursuant to law, is hereby amended by the
addition at the end of Article Fourth thereof of the following provisions
stating the number, designation, relative rights, preferences and limitations,
to the extent not heretofore set forth in Article Fourth, of a series of
authorized Series Preferred Stock, without par value, such series being hereby
designated as the corporation's "____% Preferred Stock, Series __ ($___
Liquidation Preference)", all as fixed by the Board of Directors of the
corporation before issuance of such series:
(__) Provisions relating to the ____% Preferred
Stock, Series __ ($___ Liquidation Preference):
1. Designation and Amount: The shares of such series shall be
----------------------
designated as "____% Preferred Stock, Series __ ($___ Liquidation Preference)"
(the "Series ___ Preferred Stock") and the number of shares constituting the
Series ___ Preferred Stock shall be [__________]. Such number of shares may be
increased or decreased by resolution of the
<PAGE>
Board of Directors; provided that no decrease shall reduce the number of shares
--------
of Series ___ Preferred Stock to a number less than the number of shares then
outstanding.
2. Dividends and Distributions: (A) The holders of shares of
---------------------------
Series ___ Preferred Stock, in preference to the holders of Common Stock, par
value $1.00 per share (the "Common Stock"), of the corporation, and of any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of [_________], [___________],
[___________] and [_____________] in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series ___ Preferred Stock, in an amount per share (rounded to the
nearest cent) at a rate [equal to ________%] [calculated as follows:]
(B) The corporation shall declare a dividend or distribution on the
Series ___ Preferred Stock as provided in paragraph (A) of this Section before
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event that no
--------
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend as determined pursuant to clause
2(A) above on the Series ___ Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series ___ Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series ___ Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series ___ Preferred Stock in an amount less than the
total amount of such dividends at
2
<PAGE>
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board
of Directors may fix a record date for the determination of holders of shares of
Series ___ Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
3. Voting Rights: (A) The holders of the Series ___ Preferred Stock
-------------
shall have the voting power and rights set forth and referred to in this
paragraph 3 and in paragraph [ ], and shall have no other voting power or
rights except as otherwise may from time to time be required by law.
[(B) Whenever dividends on the Series ___ Preferred Stock shall be
unpaid in whole or part for [____] consecutive dividend periods, then at the
annual meeting of shareholders next following omission of the [______________]
successive dividend and at all annual meetings thereafter, and at any meeting
called for the election of directors, until all dividends accumulated on the
Series ___ Preferred Stock have been declared and paid or a sum sufficient for
payment has been set aside, the holders of the Series ___ Preferred Stock,
either alone or together with the holders of one or more other cumulative series
of the Series Preferred Stock at the time outstanding which are granted such
voting right, voting as a class, shall be entitled, to the exclusion of the
holders of one or more other series or classes of stock, to vote for and elect
_____ members of the Board of Directors of the corporation, and the holders of
Common Stock together with the holders of any series or class or classes of
stock of the corporation having general voting rights and not then entitled to
elect two members of the Board of Directors pursuant to this paragraph 3 to the
exclusion of the holders of all series then so entitled, shall be entitled to
vote and elect the balance of the Board of Directors. In such case the Board of
Directors of the corporation shall, as of the date of the annual meeting of
shareholders aforesaid, be increased by ___ Directors. The rights of the Series
___ Preferred Stock to participate (either alone or together with the holders of
one or more other cumulative series at the time outstanding which are granted
such voting right) in the exclusive election of ____ members of the Board of
Directors of the corporation pursuant to this paragraph 3 shall continue in
effect until cumulative dividends have been paid in full or set apart for
payment on the Series ___ Preferred Stock. Upon termination at any time (by
reason of the payment of all accumulated and defaulted dividends on such stock
or provision for the
3
<PAGE>
payment thereof by declaration and setting apart thereof) of the exclusive
voting power pursuant to this paragraph 3 of the holders of Series ___ Preferred
Stock and the holders of all other cumulative series which shall have been
entitled to vote for and elect _______ members of the Board of Directors of the
corporation, the terms of office of all persons who may have been elected
directors of the corporation by vote of such holders shall terminate and the
_____ vacancies created pursuant to this paragraph 3 to accommodate the
exclusive right of election conferred hereunder shall thereupon be eliminated
and the Board of Directors shall be decreased by ____ directors. At elections
for such directors, each holder of Series ___ Preferred Stock shall be entitled
to one vote for each share held. The holders of Series ___ Preferred Stock
shall have no right to cumulate such shares in voting for the election of
directors.]
(C) So long as any shares of Series ___ Preferred Stock remain
outstanding, the corporation shall not, without the affirmative vote or consent
of the holders of at least a majority of the votes of the Series Preferred Stock
entitled to vote outstanding at the time, given in person or by proxy, either in
writing or by resolution adopted at a meeting at which the holders of Series ___
Preferred Stock (alone or together with the holders of one or more other series
of Series Preferred Stock at the time outstanding and entitled to vote) vote
separately as a class, alter the provisions of the Series Preferred Stock so as
to materially adversely affect its rights; provided, however, that in the event
-------- -------
any such materially adverse alteration affects the rights of only the Series ___
Preferred Stock, then the alteration may be effected with the vote or consent of
at least two-thirds of the votes of the Series ___ Preferred Stock; provided
--------
further, however, that an increase in the amount of the authorized Series
- ------- -------
Preferred Stock and/or the creation and issuance of other series of Series
Preferred Stock in accordance with the Certificate of Incorporation shall not
be, nor be deemed to be, materially adverse alterations. In connection with the
exercise of the voting rights contained in the preceding sentence, holders of
all series of Series Preferred Stock which are granted such voting rights (of
which the Series ___ Preferred Stock is the ______ series) shall vote as a class
(except as specifically provided otherwise) and each holder of Series ___
Preferred Stock shall have one vote for each share of stock held and each other
series shall have such number of votes, if any, for each share of stock held as
may be granted to them.
4
<PAGE>
The foregoing voting provisions will not apply if, in connection with
the matters specified, provision is made for the redemption or retirement of all
outstanding Series ___ Preferred Stock.
4. Liquidation: Subject to the provisions of section (a) of this
-----------
Article Fourth, upon any liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, the holders of the Series ___
Preferred Stock shall have preference and priority over the Common Stock, and
any other junior stock for payment out of the assets of the corporation or
proceeds thereof, whether from capital or surplus of $_______________ per share
(the "liquidation value") together with the amount of any dividends accrued and
unpaid thereon, and after such payment the holders of Series ___ Preferred Stock
shall be entitled to no other payments.
5. Redemption: Subject to the provisions of section (a) of this
----------
Article Fourth, the Series ___ Preferred Stock may be redeemed at the option of
the Board of Directors, in whole or in part, at any time and from time to time
commencing after _______________, at the following [optional redemption prices
(but not less than $_________ share)] [percentages of the liquidation preference
(but not less than 100% per share)], during the 12 months' period ending
________ of the years indicated below in each case plus accrued and unpaid
dividends to the date of redemption:
[The Series ___ Stock is also subject to redemption and may be redeemed
on and after _____________, through the operation of the [________________] as
hereinafter provided in paragraph [ ] of this section (__).]
At the option of the corporation, shares of Series __ Preferred Stock
redeemed or otherwise acquired may be restored to the status of authorized but
unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of such
redemption to the holders of the Series ___ Preferred Stock to be redeemed in
the following manner: a notice specifying the shares to be redeemed and the
time and place of redemption (and, if less than the total outstanding shares are
to be redeemed, specifying the certificate numbers and number of shares to be
redeemed) shall be mailed by first class mail, addressed to the holders of
record of the Series ___ Preferred Stock to be redeemed at their respective
addresses as the same shall
5
<PAGE>
appear upon the books of the corporation, not more than sixty (60) days and not
less than thirty (30) days previous to the date fixed for redemption. In the
event such notice is not given to any shareholder such failure to give notice
shall not affect the notice given to other shareholders. If less than the whole
amount of outstanding Series ___ Preferred Stock is to be redeemed, the shares
to be redeemed shall be selected by lot or pro rata in any manner determined by
resolution of the Board of Directors to be fair and proper. From and after the
date fixed in any such notice as the date of redemption (unless default shall be
made by the corporation in providing moneys at the time and place of redemption
for the payment of the redemption price) all dividends upon the Series ___ Stock
so called for redemption shall cease to accrue, and all rights of the holders of
said Series ___ Preferred Stock as stockholders in the corporation, except the
right to receive the redemption price (without interest) upon surrender of the
certificate representing the Series ___ Preferred Stock so called for
redemption, duly endorsed for transfer, if required, shall cease and terminate.
The corporation's obligation to provide moneys in accordance with the preceding
sentence shall be deemed fulfilled if, on or before the redemption date, the
corporation shall deposit with a bank or trust company (which may be an
affiliate of the corporation) having an office in the Borough of Manhattan, City
of New York, having a capital and surplus of at least $5,000,000, funds
necessary for such redemption, in trust, with irrevocable instructions that such
funds be applied to the redemption of the shares of Series ___ Preferred Stock
so called for redemption. Any interest accrued on such funds shall be paid to
the corporation from time to time. Any funds so deposited and unclaimed at the
end of two (2) years from such redemption date shall be released or repaid to
the corporation, after which the holders of such shares of Series ___ Preferred
Stock so called for redemption shall look only to the corporation for payment of
the redemption price.
[6. Conversion]
7. For the purposes of this section (__):
(A) The term "outstanding", when used in reference to shares of stock,
shall mean issued shares, excluding shares held by the corporation and shares
called for redemption pursuant to paragraph 5 of this section (__), funds for
the redemption of which shall have been deposited in trust pursuant to paragraph
5 of this section (__);
6
<PAGE>
(B) The amount of dividends "accrued" on any share of
Series ___ Preferred Stock as at any Quarterly Dividend Payment Date shall be
deemed to be the amount of any unpaid dividends accumulated thereon to and
including the end of the day preceding such Quarterly Dividend Payment Date,
whether or not earned or declared; and the amount of dividends "accrued" on any
share of Series ___ Preferred Stock as at any date other than a Quarterly
Dividend Payment Date shall be calculated as the amount of any unpaid dividends
accumulated thereon to and including the end of the day preceding the last
preceding Quarterly Dividend Payment Date, whether or not earned or declared,
plus an amount equivalent to dividends on the liquidation value of such share at
the annual dividend rate fixed for such share for the period after the end of
the day preceding such last preceding Quarterly Dividend Payment Date to and
including the date as of which the calculation is made;
(C) Any class or classes of stock of the corporation shall be
deemed to rank
(i) prior to the Series ___ Preferred Stock either as to dividends or
upon liquidation, if the holders of such class shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to
the holders of the Series ___ Preferred Stock;
(ii) on a parity with the Series ___ Preferred Stock either as to
dividends or upon liquidation, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share thereof be
different from those of the Series ___ Preferred Stock, if the holders of
such class of stock shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in proportion to their respective dividend rates or
liquidation prices, without preference or priority one over the other with
respect to the holders of the Series ___ Preferred Stock; and
(iii) junior to the Series ___ Preferred Stock as to dividends or
upon liquidation, if such stock shall be Common Stock or if the holders of
the Series ___ Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or
7
<PAGE>
winding up, as the case may be, in preference or priority to the holders of
shares of such class.
The manner in which the foregoing amendment of the Certificate of
Incorporation was authorized was by the affirmative vote of a majority of the
directors present at the time of the vote at a meeting of the Board of Directors
at which a quorum was present.
IN WITNESS WHEREOF, we, the undersigned, subscribe this Certificate and
affirm that the statements made herein are true under the penalties of perjury,
the _______ day of ________________, 199_.
______________________________
Chairman of the Board
______________________________
Secretary
8
<PAGE>
EXHIBIT 4.4
================================================================================
BANKERS TRUST NEW YORK CORPORATION,
__________________________, As Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
Deposit Agreement
_________________
Dated as of ____________, 199_
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES.................................................... 1
RECITALS................................................... 1
ARTICLE I
Definitions
Certificate................................................ 1
Certificate of Incorporation............................... 2
Corporation................................................ 2
Deposit Agreement.......................................... 2
Depositary................................................. 2
Depositary Shares.......................................... 2
Depositary's Agent......................................... 2
Depositary's Office........................................ 2
Paying Agent............................................... 2
Receipt.................................................... 3
record holder.............................................. 3
Redemption Date............................................ 3
Registrar.................................................. 3
Securities Act............................................. 3
Series ___ Preferred Stock................................. 3
Stock...................................................... 3
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts.......... 3
SECTION 2.02. Deposit of Stock; Execution and
Delivery of Receipts in Respect
Thereof.............................. 6
SECTION 2.03. Redemption of Stock.................... 8
SECTION 2.04. Registration of Transfer of Receipts... 12
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 2.05. Split-Ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Stock............................. 12
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange
of Receipts.......................... 15
SECTION 2.07. Lost Receipts, Etc..................... 16
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts................. 16
ARTICLE III
Certain Obligations of Holders
of Receipts and the Corporation
SECTION 3.01. Filing Proofs, Certificates and
Other Information.................... 16
SECTION 3.02. Payment of Taxes or Other
Governmental Charges................. 17
SECTION 3.03. Warranty as to Stock................... 18
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions..................... 18
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges............ 19
SECTION 4.03. Subscription Rights, Preferences
or Privileges......................... 20
SECTION 4.04. Notice of Dividends, Etc.; Fixing of
Record Date for Holders of
Receipts............................. 23
SECTION 4.05. Voting Rights.......................... 24
SECTION 4.06. Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, Etc............... 25
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 4.07. Inspection of Reports.................. 26
SECTION 4.08. Lists of Receipt Holders............... 27
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Corporation
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar............................ 27
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the
Corporation.......................... 29
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Corporation.................. 30
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of
Successor Depositary................. 32
SECTION 5.05. Corporate Notices and Reports.......... 33
SECTION 5.06. Indemnification by the Corporation..... 34
SECTION 5.07. Charges and Expenses................... 34
SECTION 5.08 Tax Compliance......................... 35
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment.............................. 36
SECTION 6.02. Termination............................ 37
ARTICLE VII
Miscellaneous
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 7.01. Counterparts........................... 38
SECTION 7.02. Exclusive Benefit of Parties........... 38
SECTION 7.03. Invalidity of Provisions............... 38
SECTION 7.04. Notices................................ 38
SECTION 7.05. Depositary's Agents.................... 40
SECTION 7.06. Holders of Receipts Are Parties........ 40
SECTION 7.07. Governing Law.......................... 41
SECTION 7.08. Inspection of Deposit Agreement........ 41
SECTION 7.09. Headings............................... 41
TESTIMONIUM................................................ 42
SIGNATURES................................................. 42
EXHIBIT A: Form of Depositary Receipt
</TABLE>
-iv-
<PAGE>
DEPOSIT AGREEMENT dated as of ____________, 199_, among BANKERS TRUST
NEW YORK CORPORATION, a New York corporation (the "Corporation"),
___________________, a ___________________ corporation, as depositary (the
"Depositary") and the holders from time to time of the Receipts described
herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of [Insert designation of shares to
be deposited] of the Corporation with the Depositary for the purposes set forth
in this Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
Definitions
-----------
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the certificate of amendment to the Certificate
of Incorporation filed with the
<PAGE>
Secretary of State of New York establishing the Stock as a series of series
preferred stock, without par value, of the Corporation.
"Certificate of Incorporation" shall mean the Restated Certificate of
Incorporation of the Corporation (including the Certificate), as amended or
supplemented from time to time.
"Corporation" shall mean Bankers Trust New York Corporation, a New York
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean _______________________, a ______________
corporation, and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
one-________ (1/___) of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05 hereof.
"Depositary's Office" shall mean the principal office of the Depositary
in New York City, at which at any particular time its depositary receipt
business shall be administered.
"Paying Agent" shall have the meaning specified in the Certificate.
-2-
<PAGE>
"Receipt" shall mean one of the Depositary Receipts issued hereunder,
whether in definitive or temporary form.
"record holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Redemption Date" shall have the meaning specified in Section 2.03
hereof.
"Registrar" shall mean any bank or trust company that shall be appointed
to register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933 and the rules and
regulations promulgated thereunder, in each case as amended or supplemented from
time to time.
"Series ___ Preferred Stock" shall mean shares of the Corporation's
[Insert designation of shares to be deposited].
"Stock" shall mean shares of the Corporation's Series ___ Preferred
Stock.
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery,
-----------------------------------------------------------
Transfer, Surrender and Redemption of Receipts
----------------------------------------------
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall
-----------------------------
be engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to
-3-
<PAGE>
this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Corporation delivered in
compliance with Section 2.02 hereof, shall execute and deliver temporary
Receipts, which shall be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by such persons' execution of such Receipts. If temporary Receipts
are issued, the Corporation and the Depositary shall cause definitive Receipts
to be prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive Receipts
upon surrender of the temporary Receipts at an office described in the last
paragraph of Section 2.02 hereof, without charge to the holder. Upon surrender
for cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Corporation's expense
and without any charge therefor. Until so exchanged, the temporary Receipts
-4-
<PAGE>
shall in all respects be entitled to the same benefits under this Agreement, and
with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary, provided that such signature may be
--------
a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are counter-signed by manual signature of
a duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by manual or facsimile signature of a duly authorized
officer of the Depositary and countersigned manually by a duly authorized
officer of such Registrar. The Depositary shall record on its books each Receipt
so signed and delivered as hereinafter provided.
[Receipts shall be in denominations of any number of whole Depositary
Shares up to but not in excess of _________ Depositary Shares for any particular
Receipt.]
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
-5-
<PAGE>
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt that is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
-------- -------
registered on the books of the Depositary as provided in Section 2.04 hereof,
the Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
-------------------------------------------------------
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
- ---------------
the Corporation may from time to time deposit shares of the Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or certificates
for the Stock to be deposited, properly endorsed or accompanied, if required
-6-
<PAGE>
by the Depositary, by a duly executed instrument of transfer or endorsement, in
form satisfactory to the Depositary, together with all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement, and together with a written order of the Corporation
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order a Receipt or Receipts for the
number of Depositary Shares representing such deposited Stock and registered in
the name of the person or persons stated in such order.
Upon receipt by the Depositary of a certificate or certificates for
shares of Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Stock on the books of the Corporation in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver a Receipt or Receipts for
the number of Depositary Shares representing the Stock so deposited registered
in the name or names of the person or persons specified in the written order
delivered to the Depositary referred to in the first paragraph of this Section.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate to the person or
-7-
<PAGE>
persons specified in such order. Delivery at other offices shall be at the risk
and expense of the person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, or unless the Corporation provides written
notice to the Depositary as to a different number of shares of Stock, there
shall be deposited hereunder not more than ___________ shares of Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine. The
Depositary shall not lend any Stock deposited hereunder.
SECTION 2.03. Redemption of Stock. Whenever the Corporation shall
-------------------
elect to redeem shares of Stock in accordance with the provisions of the
Certificate, it shall (unless otherwise agreed to in writing with the
Depositary) give the Depositary not less than 40 nor more than 70 days' notice
of the date of such proposed redemption of Stock, which notice shall be
accompanied by a certificate from the Corporation stating that such redemption
of Stock is in accordance with the provisions of the Certificate. Such notice,
if given more than 60 days prior to the redemption date, shall be in addition to
the notice required to be given for redemption pursuant to the Certificate. On
the
-8-
<PAGE>
date of such redemption, provided that the Corporation shall then have paid in
full to the Depositary the redemption price of the Stock to be redeemed,
including any accrued and unpaid dividends thereon, the Depositary shall redeem
the number of Depositary Shares representing such Stock. The Depositary shall
mail notice of such redemption and the proposed simultaneous redemption of the
number of Depositary Shares representing the Stock to be redeemed, first-class
postage prepaid, not less than 30 nor more than 60 days prior to the date fixed
for redemption of such Stock and Depositary Shares (the "Redemption Date"), to
the record holders of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as they appear on the records of the
Depositary; provided that neither any failure to mail any such notice to one or
--------
more such holders nor any defect in any notice to one or more such holders shall
affect the sufficiency of the proceedings for redemption as to any other
holders. Each such notice shall state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all the Depositary
Shares held by any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; (iii) the redemption price; (iv)
the place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends in
respect of the
-9-
<PAGE>
Stock represented by the Depositary Shares to be redeemed will cease to
accumulate on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata as may be determined by the Depositary or
by any other method that may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the earlier of (i) the time of deposit of funds, pursuant to Paragraph 5 of the
Certificate, necessary for such redemption with the Paying Agent in trust for
the pro rata benefit of the holders of Stock represented by the Depositary
Shares called for redemption or (ii) the Redemption Date (unless the Corporation
shall have failed to redeem the shares of Stock to be redeemed by it as set
forth in the Corporation's notice provided for in the preceding paragraph), all
dividends in respect of each share of Stock so called for redemption shall cease
to accumulate, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the redemption
price) shall, to the extent of such Depositary Shares, cease and terminate and,
upon surrender in accordance with such notice of the Receipts evidencing any
such Depositary Shares (properly endorsed or assigned
-10-
<PAGE>
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to one-_______ (1/__) of the redemption price per share paid in respect of each
share of Stock plus all money and other property, if any, represented by such
Depositary Shares, including all amounts paid by the Corporation in respect of
dividends that on the Redemption Date have accumulated on the shares of Stock to
be so redeemed and have not theretofore been paid.
If fewer than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption. Notwithstanding anything to the contrary herein, the
Corporation may purchase or acquire shares of Stock represented by the
Depositary Shares pursuant to a tender or exchange offer as set forth in
Paragraph ____ of the Certificate; provided, however, that if some, but less
-------- -------
than all, of the shares of Stock represented by the Depositary Shares are to be
purchased or otherwise acquired pursuant to such tender or exchange offer and
the number of shares of Stock represented by the Depositary Shares so tendered
exceeds the number of shares of Stock represented by the Depositary Shares so to
be purchased or otherwise acquired
-11-
<PAGE>
by the Corporation, the Depositary Shares representing Stock so tendered shall
be purchased or otherwise acquired by the Depositary, on behalf and upon the
instructions of the Corporation, on a pro rata basis (with adjustments to
eliminate fractions) according to the number of such Depositary Shares duly
tendered by each holder so tendering Depositary Shares for such purchase or
exchange.
SECTION 2.04. Registration of Transfer of Receipts. Subject to the
------------------------------------
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Receipts upon any surrender thereof by
the holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts, in any authorized
denomination or denominations requested, evidencing the same aggregate number of
Depositary Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the person entitled
thereto.
SECTION 2.05. Split-Ups and Combinations of Receipts; Surrender of
----------------------------------------------------
Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at the
- --------------------------------
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions
-12-
<PAGE>
of this Deposit Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts, in any authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may (unless the related Depositary Shares have previously been
called for redemption) withdraw the Stock and all money and other property, if
any, represented by such Receipt or Receipts by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares of Stock and
all money and other property, if any, represented by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole shares of Stock will not
thereafter be entitled to deposit such Stock hereunder or to receive Depositary
Shares therefor. If a Receipt delivered by the holder to the Depositary in
connection with such withdrawal shall evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such
-13-
<PAGE>
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or (subject to Section 2.03 hereof) upon
such holder's order, a new Receipt evidencing such excess number of Depositary
Shares. Delivery of the Stock and money and other property being withdrawn may
be made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of such holder, such delivery may be made at such other place as may be
designated by such holder.
-14-
<PAGE>
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
------------------------------------------------
Surrender and Exchange of Receipts. As a condition precedent to the execution
- ----------------------------------
and delivery, registration or registration of transfer, split-up, combination,
redemption, surrender or exchange of any Receipt, the Depositary, any of the
Depositary's Agents or the Corporation may require payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the
Corporation shall have made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt pursuant to Section 5.07
hereof, may require the production of evidence satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
such regulations, if any, as the Depositary or the Corporation may establish
consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of Receipts may be refused and the
registration of transfer, split-up, combination, redemption, surrender or
exchange of outstanding Receipts may be suspended (i) during any period when the
register of stockholders of the Corporation is closed or (ii) if any such action
is deemed necessary or advisable by the Depositary, any of the Depositary's
Agents or the Corporation at any time or from time to time because of any
requirement of law or of any government or
-15-
<PAGE>
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.07. Lost Receipts, Etc. In case any Receipt shall be
------------------
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
----------------------------------------------------
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
Certain Obligations of Holders
------------------------------
of Receipts and the Corporation
-------------------------------
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
-------------------------------------------------
holder of a Receipt may be required from time to time to file such proof of
residence or other
-16-
<PAGE>
matters or information, to execute such certificates and to make such
representations and warranties as the Depositary or the Corporation may
reasonably deem necessary or proper. The Depositary or the Corporation may
withhold the delivery, or delay the registration or registration of transfer,
split-up, combination, redemption, surrender or exchange of any Receipt or the
withdrawal of the Stock and all money and other property, if any, represented by
the Depositary Shares evidenced by any Receipt or the distribution of any
dividend or other distribution or the sale of any rights or of the proceeds
thereof until such proof or other information is filed, such certificates are
executed and such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. Holders
----------------------------------------------
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07 hereof. Any registration or
registration of transfer, split-up, combination, redemption, surrender or
exchange of any Receipt or any withdrawal of the Stock and all money and other
property, if any, represented by the Depositary Shares evidenced by any Receipt
may be refused until any such payment due is made, and the distribution of any
dividend, interest payment or other distribution may be delayed or withheld or
any part of or all the Stock or money or other property represented by the
Depositary Shares evidenced by
-17-
<PAGE>
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and any such dividend, interest payment or other distribution or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, provided that the holder of such Receipt shall remain liable for any
--------
deficiency.
SECTION 3.03. Warranty as to Stock. The Corporation hereby represents
--------------------
and warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of
the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
---------------------------------
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
------------------
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.01 and 3.02 hereof, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 hereof such dividend
or distribution in such amounts as are, as nearly as practicable, in proportion
to the respective numbers of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that in case the Corporation or the Depositary
-------- -------
shall be required to
-18-
<PAGE>
withhold and shall withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be reduced
accordingly; and provided further, however, that the Depositary shall distribute
-------- ------- -------
or make available for distribution, as the case may be, only such amount as can
be distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
-----------------------------------------------------
Privileges. Whenever the Depositary shall receive any distribution other than
- ----------
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02 hereof, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 hereof such
securities or property received by it in such amounts as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the
-19-
<PAGE>
opinion of the Depositary such distribution cannot be made proportionately among
such record holders, or if for any other reason (including any requirement that
the Corporation or the Depositary withhold an amount on account of taxes) the
Depositary, after consultation with the Corporation, deems such distribution not
to be feasible, the Depositary may, with the approval of the Corporation, adopt
such method as it deems equitable and practicable for the purpose of effecting
such distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02 hereof, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.01 hereof in the case of a
distribution received in cash. The Corporation shall not make any distribution
of such securities unless the Corporation shall have provided an opinion of
counsel stating that such securities have been registered under the Securities
Act or are not required to be so registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
----------------------------------------------
Corporation shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Corporation any rights,
preferences or privileges to subscribe for or to purchase
-20-
<PAGE>
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such manner as
the Depositary may determine, either by the issue to such record holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its discretion with the approval
of the Corporation; provided, however, that (i) if at the time of issue or offer
-------- -------
of any such rights, preferences or privileges the Depositary determines that it
is not lawful or (after consultation with the Corporation) not feasible to make
such rights, preferences or privileges available to holders of Receipts by the
issue of warrants or otherwise, or (ii) if and to the extent so instructed by
holders of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Corporation, in any case where the Depositary has determined that it is not
feasible to make such rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Sections 3.01 and 3.02 hereof,
be distributed by
-21-
<PAGE>
the Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.01 hereof in the case of a distribution received in cash. The
Corporation shall not make any distribution of any such rights, preferences or
privileges unless the Corporation shall have provided an opinion of counsel
stating that such rights, preferences or privileges have been registered under
the Securities Act or are not required to be registered.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Corporation shall promptly file a registration
statement pursuant to the Securities Act with respect to such rights,
preferences or privileges and securities and use its best efforts and take all
steps available to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall have become
effective, or unless the offering and sale of such
-22-
<PAGE>
securities to such holders are exempt from registration under the provisions of
the Securities Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Corporation shall use its best efforts to take such action or
obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Etc.; Fixing of Record Date for
----------------------------------------------------
Holders of Receipts. Whenever any cash dividend or other cash distribution
- -------------------
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered with respect to
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depository and the Corporation shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Corporation with respect
to the Stock) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or
-23-
<PAGE>
the net proceeds of the sale thereof, or to give instructions for the exercise
of voting rights at any such meeting, or who shall be entitled to notice of such
meeting or for any other appropriate reason.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at
-------------
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders of the Receipts may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the
Corporation) and a brief statement as to the manner in which such instructions
may be given. Upon the written request of the holders of Receipts on the
relevant record date, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of whole shares of Stock represented by the
Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Corporation shall take all action that the
Depositary may
-24-
<PAGE>
deem necessary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted. In the absence of specific instructions from the holder
of a Receipt, the Depositary shall abstain from voting (but, at its discretion,
not from appearing at any meeting with respect to such Stock unless directed to
the contrary by the holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
------------------------------------------
Reclassifications, Recapitalizations, Etc. Upon any change in par or stated
- -----------------------------------------
value or liquidation preference, split-up, combination or any other
reclassification of the Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Corporation or to which it
is a party, the Depositary may in its discretion with the approval of, and shall
upon the instructions of, the Corporation, and (in either case) in such manner
as the Depositary may deem equitable, (i) make such adjustments as are certified
by the Corporation in (x) the fraction of an interest represented by one
Depositary Share in one share of Stock and (y) the ratio of the redemption price
per Depositary Share to the redemption price of a share of Stock, in each case
as may be necessary fully to reflect the effects of such change in par or stated
value or liquidation preference, split-up, combination or other reclassification
of Stock, or of such
-25-
<PAGE>
recapitalization, reorganization, merger, amalgamation or consolidation and (ii)
treat any securities that shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Stock as new deposited securities so
received in exchange for or upon conversion or in respect of such Stock. In any
such case the Depositary may in its discretion, with the approval of the
Corporation, execute and deliver additional Receipts, or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have the right from and after
the effective date of any such change in par or stated value or liquidation
preference, split-up, combination or other reclassification of the Stock or any
such recapitalization, reorganization, merger, amalgamation or consolidation to
surrender such Receipts to the Depositary with instructions to convert, exchange
or surrender the Stock represented thereby only into or for, as the case may be,
the kind and amount of shares of stock and other securities and property and
cash into which the Stock represented by such Receipts might have been converted
or for which such Stock might have been exchanged or surrendered immediately
prior to the effective date of such transaction.
-26-
<PAGE>
SECTION 4.07. Inspection of Reports. The Depositary shall transmit to
---------------------
the record holders of Receipts, at the addresses of such record holders as set
forth on the books of the Depositary, and shall make available for inspection by
holders of Receipts at the Depositary's Office, and at such other places as it
may from time to time deem advisable, any reports and communications received
from the Corporation which are received by the Depositary as the holder of
Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
------------------------
time to time by the Corporation, the Depositary shall furnish to it a list, as
of a recent date, of the names, addresses and holdings of Depositary Shares of
all persons in whose names Receipts are registered on the books of the
Depositary.
ARTICLE V
The Depositary, the Depositary's Agents,
----------------------------------------
the Registrar and the Corporation
---------------------------------
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
------------------------------------------------------
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
- -------------------------
Depositary shall establish, and thereafter it shall maintain, at the
Depositary's Office, facilities for the execution and delivery, registration or
registration of transfer, split-up, combination, redemption, surrender or
exchange of Receipts, and at the offices of the Depositary's Agents, if
-27-
<PAGE>
any, facilities for the delivery, registration or registration of transfer,
split-up, combination, redemption, surrender or exchange of Receipts, all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration or registration of transfer, split-up, combination, redemption,
surrender or exchange of Receipts, which books at all reasonable times shall be
open for inspection by the record holders of Receipts; provided that any such
--------
holder requesting to exercise such right shall certify to the Depositary that
such inspection shall be for a proper purpose reasonably related to such
person's interest as an owner of Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Corporation, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, the Depositary will appoint a Registrar (acceptable to the
Corporation) for registration of such receipts or Depositary Shares in
accordance with any requirements of such Exchange. Such Registrar (which may be
-28-
<PAGE>
the Depositary if so permitted by the requirements of such Exchange) may be
removed and a substitute registrar appointed by the Depositary upon the request
or with the approval of the Corporation. If the Receipts, such Depositary
Shares or such Stock are listed on one or more other stock exchanges, the
Depositary will, at the request of the Corporation, arrange such facilities for
the delivery, registration or registration of transfer, split-up, combination,
redemption, surrender or exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary,
--------------------------------------------------------
the Depositary's Agents, the Registrar or the Corporation. Neither the
- ---------------------------------------------------------
Depositary nor any Depositary's Agent nor any Registrar nor the Corporation
shall incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or any present or future regulation
thereunder, of the United States of America or of any other governmental
authority or, in the case of the Depositary, the Depositary's Agent or the
Registrar, by reason of any provision, present or future, of the Certificate of
Incorporation or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Corporation shall be prevented or forbidden from, or subjected
to any penalty on account of, doing or
-29-
<PAGE>
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Corporation incur any liability to any holder of a Receipt
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this Deposit Agreement provide
shall or may be done or performed, or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit Agreement
except, in case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the negligence or willful misconduct of the
party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
-------------------------------------------------------
the Registrar and the Corporation. Neither the Depositary nor any Depositary's
- ---------------------------------
Agent nor any Registrar nor the Corporation assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Receipts
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Corporation shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity
-30-
<PAGE>
satisfactory to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Corporation shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, any holder of
a Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, any Registrar
and the Corporation may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote made, as long as any such action or non-action is in good faith.
The Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar. The Depositary
will be liable to the Corporation for any liability that may arise out of acts
performed or omitted by the Depositary or any Depositary's Agent due to its or
their gross negligence or wilful
-31-
<PAGE>
misconduct. The Depositary, the Depositary's Agents, and any Registrar may own
and deal in any class of securities of the Corporation and its affiliates and in
Receipts. The Depositary may also act as transfer agent or registrar of any of
the securities of the Corporation and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
---------------------------------------------------------
Successor Depositary. The Depositary may at any time resign as Depositary
- --------------------
hereunder by notice of its election so to do delivered to the Corporation. Such
resignation shall be effective upon the appointment of a successor Depositary
and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Corporation by notice
of such removal delivered to the Depositary. Such removal shall be effective
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Corporation shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after
-32-
<PAGE>
delivery of such notice, the resigning or removed Depositary may petition any
court of competent jurisdiction for the appointment of a successor Depositary.
Every successor Depositary shall execute and deliver to its predecessor and to
the Corporation an instrument in writing accepting its appointment hereunder,
and thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Corporation, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any moneys or property held hereunder to such successor, and
shall deliver to such successor a list of the record holders of all outstanding
Receipts. Any successor Depositary shall promptly mail notice of its
appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may
-33-
<PAGE>
authenticate the Receipts in the name of the predecessor Depositary or in the
name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Corporation agrees
-----------------------------
that it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08 hereof, all notices and
reports (including without limitation financial statements) required by law, by
the rules of any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed or by the Certificate of
Incorporation to be furnished by the Corporation to holders of Stock. Such
transmission will be at the Corporation's expense.
SECTION 5.06. Indemnification by the Corporation. The Corporation shall
----------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself and reasonable counsel fees) which may
arise out of acts performed or omitted in connection with this Deposit Agreement
and the Receipts (a) by the Depositary, any Registrar or any of their respective
agents (including any Depositary's Agent), except for any liability or expense
arising out of negligence or bad faith on the respective parts of any such
person or persons, or (b) by the Corporation or any of its agents. The
obligations of the
-34-
<PAGE>
Corporation set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Corporation shall pay all
--------------------
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements hereunder. The Corporation shall pay
all charges of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Depositary Shares, redemption of the Stock
at the option of the Corporation and all withdrawals of shares of the Stock by
owners of Depositary Shares. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar (including,
in each case, reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Corporation as to the
amount and nature of such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Corporation once every three
months or at
-35-
<PAGE>
such other intervals as the Corporation and the Depositary may agree.
SECTION 5.08. Tax Compliance. (a) The Depositary, on its own behalf
--------------
and on behalf of the Corporation will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Depositary
Shares or (ii) the issuance, delivery, holding, transfer, redemption or exercise
of rights under the Depositary Receipts or the Depositary Shares. Such
compliance shall include, without limitation, the preparation and timely filing
of required returns and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent.
(b) The Depositary shall comply with any direction received from the
Corporation with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 5.03 hereof.
(c) The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Corporation or to its authorized representatives.
-36-
<PAGE>
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. Amendment. The form of the Receipts and any provision of
---------
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Corporation and the Depositary in any respect which they
may deem necessary or desirable; provided, however, that no such amendment which
-------- -------
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of
Receipts evidencing at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective, or any transferee of such holder, shall be deemed,
by continuing to hold such Receipt or by reason of the acquisition thereof, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the
-----------
Corporation or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03 hereof or (ii) there shall
have been made a final distribution in respect of the Stock in connection with
any liquidation, dissolution or winding up of the Corporation and such
distribution shall have been distributed to the holders of Receipts evidencing
the
-37-
<PAGE>
Depositary Shares pursuant to Section 4.01 or 4.02 hereof, as applicable.
Upon the termination of this Deposit Agreement, the Corporation shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07 hereof.
ARTICLE VII
Miscellaneous
-------------
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in
------------
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement is
----------------------------
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
------------------------
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions
-38-
<PAGE>
contained herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
-------
Corporation hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail or
telegram, telex or telecopier confirmed by letter, addressed to the Corporation
at 130 Liberty Street, New York, New York 10006, to the attention of the Office
of the Secretary, or at any other address of which the Corporation shall have
notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram, telex or telecopier
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
_______________________, or at any other address of which the Depositary shall
have notified the Corporation and the record holders of the Receipts in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram, telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on
-39-
<PAGE>
the books of the Depositary, or if such holder shall have filed with the
Depositary a written request that notices intended for such holder be mailed to
some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram, telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram, telex
or telecopier message) is deposited, postage prepaid, in a post office letter
box. The Depositary or the Corporation may, however, act upon any telegram,
telex or telecopier message received by it from the other or from any holder of
a Receipt, notwithstanding that such telegram, telex or telecopier message shall
not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
-------------------
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary shall notify the Corporation of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts
-------------------------------
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by and upon
-40-
<PAGE>
acceptance by them of delivery of Receipts issued in accordance with the terms
of this Deposit Agreement.
SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
-------------
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit
-------------------------------
Agreement shall be filed with the Depositary and the Depositary's Agents, if
any, and shall be open to inspection during business hours at the Depositary's
Office and the respective offices of the Depositary's Agents, if any, by any
holder of a Receipt.
SECTION 7.09. Headings. The headings of articles and sections in this
--------
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any
-41-
<PAGE>
bearing upon the meaning or interpretation of any provision contained herein or
in the Receipts.
IN WITNESS WHEREOF, the Corporation and the Depositary have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all holders of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
BANKERS TRUST NEW YORK
CORPORATION
Attested by by
__________________________ ________________________
Name:
Title:
[SEAL]
________________________,
as Depositary,
Attested by by
__________________________ ________________________
Name:
Title:
[SEAL]
-42-
<PAGE>
Exhibit A
[FORM OF FACE OF RECEIPT]
TEMPORARY RECEIPT - Exchangeable for Definitive Engraved Receipt When Ready for
Delivery
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN ____________ DEPOSITARY SHARES
TDR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING
[INSERT DESIGNATION OF SHARES TO BE DEPOSITED] OF
BANKERS TRUST NEW YORK CORPORATION
CUSIP ______
INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK
SEE REVERSE FOR CERTAIN DEFINITIONS
_____________________, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of
DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing one-_____ (1/___) of
one share of [insert designation of shares to be deposited] (the "Stock"), of
Bankers Trust New York Corporation, a New York corporation (the "Corporation"),
on deposit with the Depositary, subject to the terms and entitled to the
benefits of the Deposit Agreement dated as of ________ __, 199__ (the "Deposit
Agreement"), among the Corporation, the Depositary and the holders from time to
time of the Depositary Receipts described therein. By accepting this Depositary
Receipt the holder hereof becomes a party to and agrees to be bound by all the
terms and conditions of the Deposit Agreement. This Depositary Receipt shall
not be valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer or, if executed in facsimile by
the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by the manual signature of a duly authorized officer thereof.
Dated: Countersigned:
- ------------------ ------------------ ------------------
Depositary Registrar Transfer Agent
By By By
Authorized Officer Authorized Officer Authorized Officer
-43-
<PAGE>
[FORM OF REVERSE OF RECEIPT]
BANKERS TRUST NEW YORK CORPORATION
BANKERS TRUST NEW YORK CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR
SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH
THE CORPORATION IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS RECEIPT.
------------------------------
The following abbreviations when used in the inscription on the face of this
receipt shall be construed as though they were written out in full according to
applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______Custodian_______
(Cust) (Minor)
TEN ENT - as tenants by Under Uniform Gifts to Minors Act
the entireties
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common ---------------------
(State)
Additional abbreviations may also be used though not in the above list
For value received, hereby sells, assigns and
-------------------------------
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
- --------------------------------------------------------------------------------
Depositary Shares
- --------------------------------------------------------
represented by the within Receipt, and do hereby irrevocably constitute and
appoint
- --------------------------------------------------------------------------------
Attorney
- ---------------------------------------------------------------------
to transfer the said Depositary Shares on the books of the within-named
Depositary with full power of substitution
in the premises
Dated___________________________________
------------------------------------------------------
NOTICE The signature to the assignment must correspond
with the name as written upon the face of this Receipt
in every particular, without alteration or enlargement
or any change whatever.
-44-
<PAGE>
Draft of September 22, 1997
Exhibit 4.8
================================================================================
BANKERS TRUST NEW YORK CORPORATION
TO
THE CHASE MANHATTAN BANK (formerly The Chase
Manhattan Bank (National Association)), TRUSTEE
---------
SECOND SUPPLEMENTAL INDENTURE
Dated as of September __, 1997
---------
Supplemental to Indenture,
dated as of November 1, 1991
as amended by
First Supplemental Indenture,
dated as of September 1, 1993
================================================================================
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of September __, 1997, between
BANKERS TRUST NEW YORK CORPORATION, a corporation duly organized and existing
under the laws of the State of New York (the "Company"), and THE CHASE MANHATTAN
BANK (formerly The Chase Manhattan Bank (National Association)), a banking
corporation duly organized and existing under the laws of the State of New York
, as Trustee under the Indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee are parties to the Indenture, dated as
of November 1, 1991, as previously supplemented by the First Supplemental
Indenture thereto, dated as of September 1, 1993 (as so supplemented, the
"Indenture"), pursuant to which the Company has issued certain Securities that
remain outstanding as of the date hereof; and
WHEREAS, Section 901 of the Indenture provides that the Company, when
authorized by a Board Resolution, and the Trustee may enter into a supplemental
indenture without the consent of any Holder to add to, change or eliminate any
of the provisions of the Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination (i) shall not
apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision, nor modify
the rights of the Holder of any such Security with respect to such provision, or
(ii) shall become effective only when there is no such Security Outstanding; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and
by this Second Supplemental Indenture to amend and supplement the Indenture in
certain respects, which amendment and supplement shall not apply to any
Securities created prior to the execution of this Second Supplemental Indenture;
and
WHEREAS, the Company has duly authorized the execution and delivery of this
Second Supplemental Indenture by a Board Resolution, as defined in the
Indenture, and all things necessary to make this Second Supplemental Indenture a
valid agreement of the Company, in accordance with the terms of the Indenture,
have been done;
NOW, THEREFORE, the Company and the Trustee hereby agree as follows:
Article I
-1-
<PAGE>
AMENDMENTS
----------
Section 1.01. Amendments to Section 101 of Indenture.
(a) Section 101 of the Indenture is hereby amended by replacing the words
"its Vice Chairman of the Board," in the definition of "Company Request" or
"Company Order" with the words "its Senior Vice Chairman, one of its Vice
Chairmen,".
(b) Section 101 of the Indenture is hereby further amended by replacing the
words "a Vice Chairman of the Board," in the definition of "Officers'
Certificate" with the words "its Senior Vice Chairman, one of its Vice
Chairmen,".
(c) Section 101 of the Indenture is hereby further amended by inserting the
words "in Section 114 or, if different," in the definition of "Outstanding "
immediately following the words "the U.S. dollar equivalent, determined in the
manner provided" therein.
Section 1.02. Amendments to Section 201 of Indenture. Section 201 of the
Indenture is hereby amended by adding the following at the end of the first
paragraph thereof:
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of
each Security of such series, but an appropriate record of such action
shall be delivered at or before the time of issuance of the first Security
of such series.
Section 1.03. Amendments to Section 301 of Indenture.
(a) Section 301(5) of the Indenture is hereby amended by inserting the
words "(or the formula pursuant to which such rate or rates shall be
determined)" after the word "rates" the first time such word appears in such
section:
(b) The penultimate paragraph of Section 301 of the Indenture is hereby
amended by adding the following at the end thereof:
All Securities of any one series need not be issued at one time and, unless
otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
(c) The final paragraph of Section 301 of the Indenture is hereby amended
by adding the following at the end thereof:
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of
each Security of such series, but an appropriate
-2-
<PAGE>
record of such action shall be delivered at or before the time of issuance
of the first Security of such series.
Section 1.04. Amendments to Section 303 of Indenture.
(a) The first paragraph of Section 303 of the Indenture is hereby amended
by replacing the words "its Vice Chairman of the Board," with the words ", its
Senior Vice Chairman, one of its Vice Chairmen".
(b) The third paragraph of Section 303 of the Indenture is hereby amended
by inserting the following after the first sentence thereof:
If all of the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to
the Trustee for the issuance of such Securities and determining the terms
of particular Securities of such series, such as interest rate, maturity
date, date of issuance and date from which interest shall accrue, and for
instructing the Trustee to authenticate and deliver such Securities
(including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents,
promptly confirmed in writing).
(c) Subparagraph (a) of the third paragraph of Section 303 of the Indenture
is hereby amended by inserting the words "or, if all the Securities of such
series are not to be issued at one time, will be" following the words "have
been" therein.
Section 1.05. Amendments to Section 305 of Indenture.
(a) The seventh paragraph of Section 305 of the Indenture is hereby amended
and restated as follows:
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of
that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of any such Securities selected for redemption
under Section 1103 and ending at the close of business on the day of such
mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
(b) The eighth paragraph of Section 305 of the Indenture is hereby amended
by inserting the words "at a time when the Depository is required to be so
registered in order to act as such depository" after the words "as amended," and
before the words "(ii) the Company" in the first sentence thereof.
-3-
<PAGE>
(c) Section 305 of the Indenture is hereby further amended by adding the
following paragraph at the end thereof:
Except as provided in the immediately preceding paragraph and as
otherwise provided as contemplated by Section 301 with respect to any
series of Securities evidenced in whole or in part by a Book-Entry
Security, (i) a Book-Entry Security may not be transferred except as a
whole by the Depository with respect to such Security to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository and (ii) the Depository may not sell, assign,
transfer or otherwise convey any beneficial interest in a Book-Entry
Security evidencing all or part of the Securities of such Series unless
such beneficial interest is in an amount equal to an authorized
denomination for Securities of such series.
Section 1.06. Amendments to Section 501 of Indenture. Subsections (e) and
(f) of Section 501 of the Indenture are hereby amended by replacing the words
"the Federal Bankruptcy Act" each time such words appear with the words "Title
11 of the United States Code".
Article II
MISCELLANEOUS
-------------
Section 2.01. Defined Terms. For all purposes of this Second Supplemental
Indenture, except as otherwise stated herein, capitalized terms used but not
defined in this Second Supplemental Indenture shall have the respective meanings
assigned to them in the Indenture.
Section 2.02. Trustee's Rights, Duties and Immunities. All of the
provisions of the Indenture with respect to the rights, duties and immunities of
the Trustee shall be applicable in respect hereof as fully and with like effect
as if set forth herein in full.
Section 2.03. Application of Amendments. All amendments to the Indenture
made hereby shall have effect only with respect to the Securities of any series
created on or after the date hereof, and not with respect to the Securities of
any series created prior to the date hereof.
Section 2.04. Recitals. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
SECTION 2.05. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-4-
<PAGE>
Section 2.06. Counterparts. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument.
Section 2.07. Ratification and Confirmation. As amended and modified by
this Second Supplemental Indenture, the Indenture is in all respects ratified
and confirmed and the Indenture and this Second Supplemental Indenture shall be
read, taken and construed as one and the same instrument.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
BANKERS TRUST NEW YORK CORPORATION
By:_______________________________
Name:
Title:
ATTEST:
- -------------------
THE CHASE MANHATTAN BANK (formerly The Chase
Manhattan Bank (National Association)), as Trustee
By:_______________________________
Name:
Title:
ATTEST:
- -------------------
-6-
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the ___ day of September, 1997, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that s/he is _____________________ of Bankers Trust New York
Corporation, one of the corporations described in and which executed the
foregoing instrument; that s/he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that s/he signed
her/his name thereto by like authority.
[Notarial Seal] ___________________
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the ___ day of September, 1997, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that s/he is _____________________ of The Chase Manhattan Bank,
one of the corporations described in and which executed the foregoing
instrument; that s/he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that s/he signed her/his name
thereto by like authority.
[Notarial Seal] ___________________
-7-
<PAGE>
Draft of September 22, 1997
Exhibit 4.11
================================================================================
BANKERS TRUST NEW YORK CORPORATION
TO
MARINE MIDLAND BANK (formerly
Marine Midland Bank, N.A.), TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
Dated as of September __, 1997
Supplemental to Indenture,
dated as of April 1, 1992
as amended by
First Supplemental Indenture,
dated as of January 15, 1993
================================================================================
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of September __, 1997, between
BANKERS TRUST NEW YORK CORPORATION, a corporation duly organized and existing
under the laws of the State of New York (the "Company"), and MARINE MIDLAND BANK
(formerly Marine Midland Bank, N.A.), a banking corporation and trust company
duly organized and existing under the laws of the State of New York , as Trustee
under the Indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee are parties to the Indenture, dated as
of April 1, 1992, as previously supplemented by the First Supplemental Indenture
thereto, dated as of January 15, 1993 (as so supplemented, the "Indenture"),
pursuant to which the Company has issued certain Securities that remain
outstanding as of the date hereof; and
WHEREAS, Section 901 of the Indenture provides that the Company, when
authorized by a Board Resolution, and the Trustee may enter into a supplemental
indenture without the consent of any Holder to add to, change or eliminate any
of the provisions of the Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination (i) shall not
apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision, nor modify
the rights of the Holder of any such Security with respect to such provision, or
(ii) shall become effective only when there is no such Security Outstanding; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and
by this Second Supplemental Indenture to amend and supplement the Indenture in
certain respects, which amendment and supplement shall not apply to any
Securities created prior to the execution of this Second Supplemental Indenture;
and
WHEREAS, the Company has duly authorized the execution and delivery of this
Second Supplemental Indenture by a Board Resolution, as defined in the
Indenture, and all things necessary to make this Second Supplemental Indenture a
valid agreement of the Company, in accordance with the terms of the Indenture,
have been done;
NOW, THEREFORE, the Company and the Trustee hereby agree as follows:
Article I
-1-
<PAGE>
AMENDMENTS
----------
Section 1.0 Definitions.
(a) Section 101 of the Indenture is hereby amended by replacing the words
"its Vice Chairman of the Board," in the definition of "Company Request" or
"Company Order" with the words "its Senior Vice Chairman, one of its Vice
Chairmen,".
(b) Section 101 of the Indenture is hereby further amended by deleting the
words "which is issued at a price lower than the amount payable at the stated
maturity of and" from the definition of "Discount Security" therein.
(c) Section 101 of the Indenture is further hereby amended by amending and
restating the definition of "Existing Subordinated Indebtedness" as follows:
"Existing Subordinated Indebtedness" means, unless otherwise specified
with respect to any series of Securities pursuant to Section 301, the
Company's 6.00% Convertible Capital Securities due August 2033, 6 1/8%
Convertible Capital Securities due June 2033, 7 1/2% Subordinated Notes due
November 15, 2015, 7.75% Subordinated Notes due May 1, 2012, 7 1/4%
Subordinated Notes due October 15, 2011, 7 1/2% Subordinated Notes due
2010, 7 1/8% Subordinated Notes due 2010, 7 3/8% Subordinated Notes due
2008, 6% Subordinated Notes due October 2008, 7 1/8% Subordinated Notes due
March 15, 2006, 8 1/4% Subordinated Notes due 2005, Subordinated Yen Loan
due 2005, Subordinated Floating Rate Notes due 2005, Floating Rate
Subordinated Notes due 2004, Subordinated LIBOR/CMT Floating Rate
Debentures due 2003, Subordinated Constant Maturity Treasury Floating Rate
Debentures due 2003, 7.25% Subordinated Debentures due January 15, 2003,
Subordinated Floating Rate Notes due 2002, 7 1/8% Subordinated Debentures
due July 31, 2002, 8 1/8% Subordinated Notes due May 15, 2002, 8 1/8%
Subordinated Notes due 2002, 7.50% Subordinated Debentures due January 15,
2002, 9.00% Subordinated Debentures due August 1, 2001, 9.40% Subordinated
Debentures due March 1, 2001, 9.50% Subordinated Debentures due June 14,
2000, 9.20% Subordinated Capital Notes due July 15, 1999, Subordinated
Money Market Capital Notes, Series A, B and C due June 1999 and Zero Coupon
Subordinated Yen Notes due 1997-2004.
(d) Section 101 of the Indenture is hereby further amended by replacing the
words "a Vice Chairman of the Board," in the definition of "Officers'
Certificate" with the words "its Senior Vice Chairman, one of its Vice
Chairmen,".
(e) Section 101 of the Indenture is hereby further amended by amending and
restating the definition of "Other Financial Obligations" as follows:
-2-
<PAGE>
"Other Financial Obligations" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 301, all
obligations of the Company to make payment pursuant to the terms of
financial instruments, such as (i) securities contracts and foreign
currency exchange contracts, (ii) derivative instruments, such as swap
agreements (including interest rate and foreign exchange rate swap
agreements), cap agreements, floor agreements, collar agreements, interest
rate agreements, foreign exchange rate agreements, options, commodity
future contracts and commodity options contracts, and (iii) in the case of
both (i) and (ii) above, other similar financial instruments other than (A)
obligations on account of Senior Indebtedness and (b) obligations on
account of indebtedness for money borrowed ranking pari passu in right of
payment with or subordinate to the Securities.
(f) Section 101 of the Indenture is hereby further amended by inserting the
words "in Section 114 or, if different," in the definition of "Outstanding "
immediately following the words "the U.S. dollar equivalent, determined in the
manner provided" therein.
(g) Section 101 of the Indenture is hereby further amended by amending and
restating the definition of "Senior Indebtedness" as follows:
"Senior Indebtedness" means, unless otherwise determined with respect
to any series of Securities pursuant to Section 301, the principal of,
premium, if any, and interest (including interest accruing subsequent to
the commencement of any proceeding for the bankruptcy or reorganization of
the Company under applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on (a) all indebtedness for money borrowed, whether
outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, except such indebtedness as is by its terms
expressly stated to be subordinate in right of payment to, or to rank pari
passu in right of payment with, the Securities or any other obligation that
ranks pari passu in right of payment with the Securities, or is identified
in a Board Resolution or any indenture supplemental hereto as being
subordinate in right of payment to, or as ranking pari passu in right of
payment with, the Securities or any other obligation that ranks pari passu
in right of payment with the Securities, and (b) any deferrals, renewals or
extensions of any such indebtedness for money borrowed; provided, however,
that Senior Indebtedness shall not include (i) any obligations on account
of Existing Subordinated Indebtedness or (ii) any obligations as to which,
in the instrument creating or evidencing the same or pursuant to which the
same is outstanding, it is provided that such obligation is not Senior
Indebtedness.
Section 1.02. Amendments to Section 111 of Indenture. Section 111 of the
Indenture is hereby amended and restated as follows:
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders and,
-3-
<PAGE>
subject to Section 907, the holders of Senior Indebtedness and Entitled
Persons in respect of Other Financial Obligations, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 1.03. Addition of Section 114. The Indenture is hereby further
amended by inserting the following provision in the appropriate numerical order:
Section 114. Currency Conversion.
-------------------
If the principal amount of a Security is denominated in any currency,
currencies or currency units other than U.S. dollars and it is necessary to
determine as of any date the equivalent in U.S. dollars of any amount in
respect of such Security, such amount shall be deemed to be the amount of
U.S. dollars that could have been purchased by the amount of the units of
the currency, currencies or currency units, in which such amount is
denominated based, except as otherwise set forth in the Board Resolution or
supplemental indenture establishing such series of Securities, on the
average of the mean of the buying and selling spot rates in effect at 11:00
A.M., New York City time, in The City of New York on the date of such
determination or, if such date is not a Business Day, on the next
succeeding Business Day, quoted by three banks who are members of the New
York Clearing House Association (other than Bankers) chosen by the Company.
Section 1.04. Amendments to Section 201 of Indenture. Section 201 of the
Indenture is hereby amended by adding the following at the end of the first
paragraph thereof:
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of
each Security of such series, but an appropriate record of such action
shall be delivered at or before the time of issuance of the first Security
of such series.
Section 1.05. Amendments to Section 301 of Indenture.
(a) Section 301(5) of the Indenture is hereby amended by inserting the
words "(or the formula pursuant to which such rate or rates shall be
determined)" after the word "rates" the first time such word appears in such
section:
(b) Section 301(10) of the Indenture is hereby amended by inserting the
words ", if other than as set forth in Section 114," after the words "United
States of America" the first time such words appear in such section.
(c) Section 301 of the Indenture is hereby further amended by deleting the
word "and" from subsection (14) and by replacing the period at the end of
subsection (15) with "; and".
-4-
<PAGE>
(d) The penultimate paragraph of Section 301 of the Indenture is hereby
amended by adding the following at the end thereof:
All Securities of any one series need not be issued at one time and, unless
otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
(e) The final paragraph of Section 301 of the Indenture is hereby amended
by adding the following at the end thereof:
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of
each Security of such series, but an appropriate record of such action
shall be delivered at or before the time of issuance of the first Security
of such series.
Section 1.06. Amendments to Section 303 of Indenture.
(a) The first paragraph of Section 303 of the Indenture is hereby amended
by inserting the words ", its Senior Vice Chairman, one of its Vice Chairmen"
after the words "Chairman of the Board,".
(b) The third paragraph of Section 303 of the Indenture is hereby amended
by inserting the following after the first sentence thereof:
If all of the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to
the Trustee for the issuance of such Securities and determining the terms
of particular Securities of such series, such as interest rate, maturity
date, date of issuance and date from which interest shall accrue, and for
instructing the Trustee to authenticate and deliver such Securities
(including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents,
promptly confirmed in writing).
(c) Subparagraph (a) of the third paragraph of Section 303 of the Indenture
is hereby amended by inserting the words "or, if all the Securities of such
series are not to be issued at one time, will be" following the words "have
been" therein.
Section 1.07. Amendments to Section 305 of Indenture.
(a) The seventh paragraph of Section 305 of the Indenture is hereby amended
and restated as follows:
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of
-5-
<PAGE>
or exchange any Securities of that series (or of that series and specified
tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
any such Securities selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (B) to register the
transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in
part.
(b) The eighth paragraph of Section 305 of the Indenture is hereby amended
by inserting the words "at a time when the Depository is required to be so
registered in order to act as such depository" after the words "as amended," and
before the words "(ii) the Company" in the first sentence thereof.
(c) Section 305 of the Indenture is hereby further amended by adding the
following paragraph at the end thereof:
Except as provided in the immediately preceding paragraph and as
otherwise provided as contemplated by Section 301 with respect to any
series of Securities evidenced in whole or in part by a Book-Entry
Security, (i) a Book-Entry Security may not be transferred except as a
whole by the Depository with respect to such Security to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository and (ii) the Depository may not sell, assign,
transfer or otherwise convey any beneficial interest in a Book-Entry
Security evidencing all or part of the Securities of such Series unless
such beneficial interest is in an amount equal to an authorized
denomination for Securities of such series.
Section 1.08. Amendments to Section 501 of Indenture. Subsections (1) and
(2) of Section 501 of the Indenture are hereby amended by replacing the words
"the Federal Bankruptcy Act" each time such words appear with the words "Title
11 of the United States Code".
Section 1.09. Amendments to Section 1415 of Indenture.
(a) Subsection (a) of Section 1415 of the Indenture is hereby amended by
inserting the following words immediately before the period at the end thereof:
and with any other obligations that by their terms rank pari passu in right
of payment with the Securities or any Existing Subordinated Indebtedness or
with any obligations that rank pari passu in right of payment with the
Securities or any Existing Subordinated Indebtedness
(b) Subsection (b) of Section 1415 of the Indenture is hereby amended by
inserting the following words immediately after the words "Existing Subordinated
Indebtedness" the first time such words appear in such paragraph:
-6-
<PAGE>
or of any other obligations that by their terms rank pari passu in right of
payment with the Securities or any Existing Subordinated Indebtedness or
with any obligations that rank pari passu in right of payment with the
Securities or any Existing Subordinated Indebtedness
(c) Subsection (b) of Section 1415 of the Indenture is hereby further
amended by inserting the words "or such pari passu obligations" immediately
after the words "Existing Subordinated Indebtedness" the last time such words
appear in such paragraph.
(d) Subsection (c) of Section 1415 of the Indenture is hereby amended by
inserting the word "such" immediately before the words "Existing Subordinated
Indebtedness" the first time such words appear in such paragraph and by
inserting the words "or any such pari passu obligations" immediately after the
words "Existing Subordinated Indebtedness" the first time such words appear in
such paragraph.
Article II
MISCELLANEOUS
-------------
Section 2.01. Defined Terms. For all purposes of this Second Supplemental
Indenture, except as otherwise stated herein, capitalized terms used but not
defined in this Second Supplemental Indenture shall have the respective meanings
assigned to them in the Indenture.
Section 2.02. Trustee's Rights, Duties and Immunities. All of the
provisions of the Indenture with respect to the rights, duties and immunities of
the Trustee shall be applicable in respect hereof as fully and with like effect
as if set forth herein in full.
Section 2.03. Application of Amendments. All amendments to the Indenture
made hereby shall have effect only with respect to the Securities of any series
created on or after the date hereof, and not with respect to the Securities of
any series created prior to the date hereof.
Section 2.04. Recitals. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
SECTION 2.05. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-7-
<PAGE>
Section 2.06. Counterparts. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument.
Section 2.07. Ratification and Confirmation. As amended and modified by
this Second Supplemental Indenture, the Indenture is in all respects ratified
and confirmed and the Indenture and this Second Supplemental Indenture shall be
read, taken and construed as one and the same instrument.
-8-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
BANKERS TRUST NEW YORK CORPORATION
By:_______________________________
Name:
Title:
ATTEST:
- ------------------------
MARINE MIDLAND BANK (formerly Marine Midland Bank,
N.A.), as Trustee
By:_______________________________
Name:
Title:
ATTEST:
- ------------------------
-9-
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the ___ day of September, 1997, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that s/he is _____________________ of Bankers Trust New York
Corporation, one of the corporations described in and which executed the
foregoing instrument; that s/he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that s/he signed
her/his name thereto by like authority.
[Notarial Seal] _____________________________
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the ___ day of September, 1997, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that s/he is _____________________ of Marine Midland Bank, one of
the corporations described in and which executed the foregoing instrument; that
s/he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that s/he signed her/his name
thereto by like authority.
[Notarial Seal] ________________________________
-10-
<PAGE>
EXHIBIT 4.12
Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
..........................................................
..........................................................................
No. ......... $ ........
Bankers Trust New York Corporation, a corporation duly organized and existing
under the laws of the State of New York (herein called the "Corporation", which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to
..............................................., or registered assigns, the
principal sum of ...................................... Dollars on
........................................................ [if the Security is to
bear interest prior to Maturity, insert -- , and to pay interest thereon from
............. or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ............ and
............ in each year, commencing ........., at the rate [of ....% per
annum] [rate per annum calculated as set forth below], until the principal
hereof is paid or made available for payment [if applicable, insert -- ,
provided that any principal and premium, and any such installment of interest,
that is overdue shall bear interest at the rate of ...% per annum (to the extent
that the payment of such interest shall be legally enforceable), from the dates
such amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the ....... or .......
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate [of ....% per annum] [rate per annum calculated as set
forth below] (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment. Interest on any
1
<PAGE>
overdue principal or premium shall be payable on demand. [Any such interest on
overdue principal or premium that is not paid on demand shall bear interest at
the rate [of ......% per annum] [calculated as set forth below] (to the extent
that the payment of such interest on interest shall be legally enforceable),
from the date of such demand until the amount so demanded is paid or made
available for payment. Interest on any overdue interest shall be payable on
demand.]]
[If applicable -- insert formula for calculation of interest rate.]
Payment of the principal of (and premium, if any) and [if applicable, insert
- -- any such] interest on this Security will be made at the office or agency of
the Corporation maintained for that purpose in ............, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Corporation payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Corporation has caused this instrument to be duly
executed under its corporate seal.
Dated:
......................................................
By...................................................
Attest:
.........................................
Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of ............... (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Corporation and ..................., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities
2
<PAGE>
thereunder of the Corporation, the Trustee[, the holders of Senior Debt] and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert -- , limited in aggregate
principal amount to $...........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after .........., 19..], as a whole or in part, at
the election of the Corporation, at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [if applicable, insert --
on or before ..............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
------ ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ............], as a whole or in part, at the
election of the Corporation, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning ............ of the years indicated,
3
<PAGE>
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
------ ----------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Corporation may
not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Corporation (calculated in accordance with generally accepted financial
practice) of less than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for the
redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert -- not less than
$.......... ("mandatory sinking fund") and not more than] $......... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Corporation otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In the event
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]
[If the indebtedness evidenced by this security is subordinated, insert --
the indebtedness evidenced by this Security is, to the extent provided in the
Indenture, subordinate and subject in right of payment to the prior payment in
full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, agrees that
4
<PAGE>
each holder of Senior Indebtedness, whether created or acquired before or after
the issuance of the Securities, shall be deemed conclusively to have relied on
such provisions in acquiring, or in continuing to hold, such Senior
Indebtedness. The Indenture also provides that if, upon the occurrence of
certain events of bankruptcy or insolvency relating to the Corporation, there
remains, after giving effect to such subordination provisions, any amount of
cash, property or securities available for payment or distribution in respect of
Securities (as defined in the Indenture, "Excess Proceeds"), and if, at such
time, any Entitled Person has not received payment in full of all amounts due or
to become due on or in respect of Other Financial Obligations, then such Excess
Proceeds shall first be applied to pay or provide for the payment in full of
such Other Financial Obligations before any payment or distribution may be made
in respect of Securities. This Security is also issued subject to the provisions
of the Indenture regarding payments to Entitled Persons in respect of Other
Financial Obligations. Each Holder of this Security, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination of this Security and payment of
Excess Proceeds as provided in the Indenture, and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. [For purposes of this Security,
Existing Subordinated Indebtedness includes, in addition to that indebtedness
listed in the Indenture, the following: [if subordinated securities have been
issued since the date of the Indenture, insert their names here].]
[If applicable, insert -- The Indenture contains provisions for defeasance at
any time of [the entire indebtedness of this Security] [or] [certain restrictive
covenants and Events of Default with respect to this Security] [, in each case]
upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment of
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of each series to be
affected under the Indenture
5
<PAGE>
at any time by the Corporation and the Trustee with the consent of the Holders
of 66 2/3% in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Corporation with certain provisions of
the Indenture and certain past Defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
[If the indebtedness represented by this Security is senior, insert -- If an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Securities may declare all the Securities
to be due and payable immediately. Holders of Securities may not enforce the
Indenture or the securities except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the securities may waive an Event of Default and rescind any related
declaration and also may direct the trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Securities notice of any
continuing Event of Default if it determines that withholding such notice is in
their interest. The Corporation must furnish an annual compliance certificate to
the Trustee.]
[If the indebtedness represented by this Security is subordinated insert --
"Events of Default" include any of certain events involving a bankruptcy,
insolvency or reorganization of the Corporation. If an Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the Subordinated Securities may declare all the Subordinated
Securities to be due and payable immediately. Holders of Subordinated Securities
may not enforce the Indenture or the Subordinated Securities except as provided
in the Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Subordinated Securities. Subject to certain
limitations, Holders of a majority in principal amount of the Subordinated
Securities may waive an Event of Default and rescind any related and also may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Subordinated Securities notice of any continuing Event
of Default if it determines that withholding notice is in their interest. The
Corporation must furnish an annual compliance certificate to the Trustee.]
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $....... and any integral multiple thereof. As
provided in the
6
<PAGE>
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
7
<PAGE>
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
..........................................,
As Trustee
By.........................................
Authorized Officer
or, if an Authenticating Agent has been appointed pursuant to Section 614, in
substantially the following form:
..........................................,
As Trustee
By.........................................
Authenticating Agent
By.........................................
Authorized Officer
8
<PAGE>
BANKERS TRUST NEW YORK CORPORATION
130 Liberty Street
New York, New York 10006
(212) 250-2500
September 25, 1997
Bankers Trust New York Corporation
130 Liberty Street
New York, NY 10006
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
I am a Managing Director and Counsel of Bankers Trust Company, a New York
trust company ("Bankers"), and, as such, I have acted as counsel for Bankers
Trust New York Corporation, a New York corporation (the "Corporation"), in the
preparation of the Registration Statement on Form S-3, File No. 333-32909 (the
"Registration Statement"), filed with the Securities and Exchange Commission
(the "Commission") on August 5, 1997, pursuant to the Securities Act of 1933, as
amended (the "Act"), to register (i) shares of Common Stock, par value $1.00 per
share (the "Common Stock"), and the Preferred Share Purchase Rights attributable
thereto (the "Rights") issued pursuant to the Rights Agreement, dated as of
February 22, 1988, between the Corporation and Harris Trust Company of New York,
as successor to Morgan Shareholders Services Trust Company, as Rights Agent,
(ii) shares of Series Preferred Stock, without par value (the "Series Preferred
Stock"), (iii) depositary shares representing the shares of Series Preferred
Stock (the "Depositary Shares"), and (iv) senior and subordinated debt
securities of the Corporation (the "Debt Securities"), with an aggregate initial
offering price of up to
<PAGE>
$3,080,000,000. I am familiar with the actions taken in connection with the
registration of the Common Stock, Preferred Stock, Depositary Shares and Debt
Securities (collectively, the "Securities"), and have reviewed such corporate
records, certificates and other documents, and such questions of law, as I have
deemed necessary or appropriate in connection with this opinion.
Based upon the foregoing, I am of the opinion that:
(i) When the Registration Statement has become effective under the
Act, the terms of the sale of any shares of Common Stock have been duly
established in conformity with the Corporation's certificate of
incorporation so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon the
Corporation and so as to comply with any requirement or restriction imposed
by any court or governmental body having jurisdiction over the Corporation,
and such shares have been duly issued and sold as contemplated in the
Registration Statement (including the Prospectus and the Prospectus
Supplement relating to such shares of Common Stock), such shares of Common
Stock will be validly issued, fully paid and nonassessable subject to
Section 630 of the New York Business Corporation Law.
(ii) When the Registration Statement has become effective under the
Act, a certificate of amendment to the Corporation's certificate of
incorporation with respect to any shares of Series Preferred Stock
substantially in the form filed as an exhibit to the Registration Statement
has been duly filed with the Secretary of State of the State of New York,
the terms of the sale of such shares of Series Preferred Stock and of their
issue and sale have been duly established in conformity with the
Corporation's certificate of incorporation so as not to violate any
applicable law or result in a default under or breach of any agreement
-2-
<PAGE>
or instrument binding upon the Corporation and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Corporation, and such shares have been duly issued
and sold as contemplated in the Registration Statement (including the
Prospectus and the Prospectus Supplement relating to such shares of Series
Preferred Stock), (a) such shares of Series Preferred Stock will be validly
issued, fully paid and nonassessable subject to Section 630 of the New York
Business Corporation Law, and (b) the shares of Common Stock or Preferred
Stock, if any, issuable upon conversion of such shares of Series Preferred
Stock, when duly issued upon such conversion, will be validly issued, fully
paid and nonassessable subject to Section 630 of the New York Business
Corporation Law.
(iii) When the Registration Statement has become effective under the
Act, the terms of any Depositary Shares and of their issuance and sale have
been duly established in conformity with the Deposit Agreement relating to
such Depositary Shares so as not to violate any applicable law or result in
a default under or breach of any agreement or instrument binding upon the
Corporation and so as to comply with any requirement or restriction imposed
by any court or governmental body having jurisdiction over the Corporation,
such Deposit Agreement has been duly authorized, executed and delivered by
the Corporation and the applicable Depositary, and the Depository Receipts
evidencing such Depositary Shares have been duly executed by such
Depositary and issued against the deposit of the applicable shares of
Series Preferred Stock in accordance with such Deposit Agreement and as
contemplated in the Registration Statement (including the Prospectus and
the Prospectus Supplement relating to such Depositary Shares), such
Depositary Shares will represent legal and valid interests in such shares
of Series Preferred Stock and the persons in whose names
-3-
<PAGE>
such Depositary Receipts are registered will be entitled to the rights
specified in such Depositary Receipts and the Deposit Agreement.
(iv) When the Registration Statement has become effective under the
Act, the terms of any Debt Securities and of their issuance and sale have
been duly established in conformity with the Indenture relating to such
Debt Securities so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon the
Corporation and so as to comply with any requirement or restriction imposed
by any court or governmental body having jurisdiction over the Corporation,
and such Debt Securities have been duly executed and authenticated in
accordance with such Indenture and issued and sold as described in the
Registration Statement (including the Prospectus and Prospectus Supplement
relating to such Debt Securities), (a) such Debt Securities will constitute
valid and legally binding obligations of the Corporation, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general application relating to or affecting creditors'
rights and to general equity principles, and (b) the shares of Common Stock
or Preferred Stock, if any, issuable upon conversion of such Debt
Securities, when duly issued upon such conversion, will be validly issued,
fully paid and nonassessable subject to Section 630 of the New York
Business Corporation Law.
(v) When the Registration Statement has become effective under the Act
and any shares of Common Stock have been validly issued, the Rights
attributable to such shares will be validly issued.
I note that, as of the date of this opinion, a judgment for money in an
action based on any Securities in a federal or state court in the United States
ordinarily would be
-4-
<PAGE>
enforced in the United States only in United States dollars. The date used to
determine the rate of conversion of the currency in which the applicable
Security is denominated into United States dollars will depend upon various
factors, including which court renders the judgment. Under Section 27 of the New
York Judiciary Law, a state court in the State of New York rendering a judgment
on a Note would be required to render such judgment in the currency in which the
applicable Security was denominated, and such judgment would be converted into
United States dollars at the exchange rate prevailing on the date of entry of
the judgment.
In connection with my opinion set forth in paragraph (v) above, I note that
the question whether the Board of Directors of the Corporation might be required
to redeem the Rights at some future time will depend upon the facts and
circumstances existing at that time and, accordingly, is beyond the scope of
such opinion.
I am a member of the New York bar and do not express any opinion as to the
effect of any law other than the Federal laws of the United States and the laws
of the State of New York.
I have relied as to certain matters on information obtained from public
officials, officers of the Corporation and other sources I believe to be
responsible, and I have assumed that the Indentures relating to any Debt
Securities and the Deposit Agreements relating to any Depositary Shares have
been duly authorized, executed and delivered by the respective Trustees and
Depositaries thereunder, an assumption which I have not independently verified.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Validity of
Offered Securities" in the Prospectus forming part of the Registration
Statement. In giving this consent, I do not admit that I come within
-5-
<PAGE>
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Gordon S. Calder, Jr.
Gordon S. Calder, Jr.
Managing Director and Counsel
-6-
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Pre-Effective Amendment No. 1 to Registration Statement (Form S-3 No. 333-32909)
and Post-Effective Amendment No. 2 to Registration Statement (Form S-3 Nos.
333-15089 and 333-15089-01 through -04) and the related Prospectus of Bankers
Trust New York Corporation and to the incorporation by reference therein of our
report dated January 23, 1997, except for Note 28, as to which the date is March
6, 1997, with respect to the consolidated financial statements of Bankers Trust
New York Corporation and Subsidiaries included in its Annual Report (Form 10-K)
for the year ended December 31, 1996, prior to their restatement for the 1997
pooling-of-interests with Alex. Brown Incorporated, filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
New York, New York
September 25, 1997
<PAGE>
Exhibit 23.2
Consent of Independent Auditors
-------------------------------
The Board of Directors
Bankers Trust New York Corporation:
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of our report dated September 5, 1997, with respect to the supplemental
consolidated balance sheet of Bankers Trust New York Corporation and
Subsidiaries (the "Company") as of December 31, 1996 and 1995, and the related
supplemental consolidated statements of income, changes in stockholders' equity
and cash flows for each of the years in the three-year period ended December 31,
1996, which appears in the Current Report on Form 8-K of Bankers Trust New York
Corporation filed September 9, 1997.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
New York, New York
September 24, 1997
<PAGE>
Exhibit 23.3
Consent of Independent Auditors
-------------------------------
The Board of Directors
Bankers Trust New York Corporation:
We consent to the incorporation by reference in this Registration Statement of
Bankers Trust New York Corporation on Form S-3 of our report dated January 20,
1997, with respect to the consolidated statements of financial condition of
Alex. Brown Incorporated and subsidiaries as of December 31, 1996 and 1995, and
the related consolidated statements of earnings, stockholders' equity and cash
flows for each of the years in the three-year period ended December 31, 1996,
which report appears in the Current Report on Form 8-K of Bankers Trust New York
Corporation filed September 4, 1997.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Baltimore, Maryland
September 24, 1997
<PAGE>
EXHIBIT 25.1
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
BANKERS TRUST NEW YORK CORPORATION
(Exact name of obligor as specified in its charter)
NEW YORK 13-6180473
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
280 Park Avenue
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
_____________________________________________
SENIOR DEBT SECURITIES
(Title of the indenture securities)
_____________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 23RD day of SEPTEMBER, 1997.
THE CHASE MANHATTAN BANK
By /s/ Sheik Wiltshire
--------------------------------
Sheik Wiltshire
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 13,892
Interest-bearing balances........................ 4,282
Securities:........................................
Held to maturity securities........................ 2,857
Available for sale securities...................... 34,091
Federal Funds sold and securities purchased under
agreements to resell............................. 29,970
Loans and lease financing receivables:
Loans and leases, net of unearned income $124,827
Less: Allowance for loan and lease losses 2,753
Less: Allocated transfer risk reserve............ 13
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 122,061
Trading Assets..................................... 56,042
Premises and fixed assets (including capitalized
leases).......................................... 2,904
Other real estate owned............................ 306
Investments in unconsolidated subsidiaries and
associated companies............................. 232
Customers' liability to this bank on acceptances
outstanding...................................... 2,092
Intangible assets.................................. 1,532
Other assets....................................... 10,448
--------
TOTAL ASSETS....................................... $280,709
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
Deposits
<S> <C>
In domestic offices................................. $ 91,249
Noninterest-bearing
.....................................$38,157
Interest-bearing...................... 53,092
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's........................................... 70,192
Noninterest-bearing...................$ 3,712
Interest-bearing..................... 66,480
Federal funds purchased and securities sold under agree-
ments to repurchase................................... 35,185
Demand notes issued to the U.S. Treasury.............. 1,000
Trading liabilities................................... 42,307
Other Borrowed money (includes mortgage indebtedness
and obligations under calitalized leases):
With a remaining maturity of one year or less....... 4,593
With a remaining maturity of more than one year .
through three years............................ 260
With a remaining maturity of more than three
years.......................................... 146
Bank's liability on acceptances executed and
outstanding 2,092
Subordinated notes and debentures..................... 5,715
Other liabilities..................................... 11,373
TOTAL LIABILITIES..................................... 264,112
--------
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual Preferred stock and related surplus 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,283
Undivided profits and capital reserves..................... 5,280
Net unrealized holding gains (Losses)
on available-for-sale securities........................... (193)
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 16,597
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $280,709
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25.2
Conformed Copy
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-----------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
MARINE MIDLAND BANK
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, N.Y. 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
Charles E. Bauer
Vice President
140 Broadway
New York, New York 10005-1180
Tel: (212) 658-1792
(Name, address and telephone number of agent for service)
BANKERS TRUST NEW YORK CORPORATION
(Exact name of obligor as specified in its charter)
New York 13-6180473
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
130 Liberty Street
New York, New York 10006
(212) 250-2500 (Zip Code)
(Address of principal executive offices)
SUBORDINATED DEBT SECURITIES
(Title of Indenture Securities)
<PAGE>
General
Item 1. General Information.
--------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
--------------------------
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None
<PAGE>
Item 16. List of Exhibits.
-----------------
<TABLE>
<CAPTION>
Exhibit
- -------
<S> <C> <C> <C>
T1A(i) * - Copy of the Organization Certificate of
Marine Midland Bank.
T1A(ii) * - Certificate of the State of New York
Banking Department dated December 31,
1993 as to the authority of Marine Midland
Bank to commence business.
T1A(iii) - Not applicable.
T1A(iv) * - Copy of the existing By-Laws of Marine
Midland Bank as adopted on January 20,
1994.
T1A(v) - Not applicable.
T1A(vi) * - Consent of Marine Midland Bank required
by Section 321(b) of the Trust Indenture
Act of 1939.
T1A(vii) - Copy of the latest report of condition of
the trustee (June 30, 1997), published
pursuant to law or the requirement of its
supervisory or examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
</TABLE>
*Exhibits previously filed with the Securities and Exchange Commission with
Registration No. 33-53693 and incorporated herein by reference thereto.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
Marine Midland Bank, a banking corporation and trust company organized under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York on the 23rd day of September, 1997.
MARINE MIDLAND BANK
By: /s/ Metin Caner
-------------------------------------
Metin Caner
Vice President
<PAGE>
EXHIBIT T1A (VII)
Board of Governors of the Federal
Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance
Corporation
OMB Number: 3064-0052
Office of the Comptroller of the
Currency
OMB Number: 1557-0081
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires March 31, 1999
- --------------------------------------------------------------------------------
This financial information has not been reviewed, or confirmed [1]
for accuracy or relevance, by the Federal Reserve System.
Please refer to page i,
Table of Contents, for
the required disclosure
of estimated burden.
- --------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES--FFIEC 031
(950630)
REPORT AT THE CLOSE OF BUSINESS JUNE 30, 1997 ------------
(RCRI 9999)
This report is required by law; 12 This report form is to be filed by
U.S.C. (S)324 (State member banks); banks with branches and consolidated
12 U.S.C. (S) 1817 (State nonmember subsidiaries in U.S. territories and
banks); and 12 U.S.C. (S)161 possessions, Edge or Agreement
(National banks). subsidiaries, foreign branches,
consoli-dated foreign subsidiaries,
or International Banking Facilities.
- --------------------------------------------------------------------------------
NOTE: The Reports of Condition and The Reports of Condition and Income
Income must be signed by an are to be prepared in accordance with
authorized officer and the Report of Federal regulatory authority
Condition must be attested to by not instructions. NOTE: These
less than two directors (trustees) instructions may in some cases differ
for State nonmember banks and three from generally accepted accounting
directors for State member and principles.
National Banks.
We, the undersigned directors
I, Gerald A. Ronning, Executive VP & (trustees), attest to the correctness
Controller of this Report of Condition
- ------------------------------------ (including the supporting schedules)
Name and Title of Officer Authorized and declare that it has been examined
to Sign Report by us and to the best of our
knowledge and belief has been
of the named bank do hereby declare prepared in conformance with the
that these Reports of Condition and instructions issued by the
Income (including the supporting appropriate Federal regulatory
schedules) have been prepared in authority and is true and correct.
conformance with the instructions
issued by the appropriate Federal /s/ James H. Cleave
regulatory authority and are true to --------------------------------------
the best of my knowledge and believe. Director (Trustee)
/s/ Gerald A. Ronning /s/ Bernard J. Kennedy
- -------------------------------------- --------------------------------------
Signature of Officer Authorized to Director (Trustee)
Sign Report
7/25/97 /s/ Malcolm Burnett
- -------------------------------------- --------------------------------------
Date of Signature Director (Trustee)
- --------------------------------------------------------------------------------
FOR BANKS SUBMITTING HARD COPY REPORT FORMS:
STATE MEMBER BANK: Return the NATIONAL BANKS: Return the original
original and one copy to the only in the special return address
appropriate Federal Reserve District envelope provided. If express mail
Bank. is used in lieu of the special return
address envelope, return the original
STATE NONMEMBER BANKS: Return the only to the FDIC, c/o Quality Data
original only in the special return Systems, 2127 Espey Court, Suite 204,
address envelope provided. If Crofton, MD 21114.
express mail is used in lieu of the
special return address envelope,
return the original only to the
FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD
21114.
- --------------------------------------------------------------------------------
FDIC Certificate Number 0 0 5 8 9
---------------
(RCRI 9030)
<PAGE>
NOTICE
This form is intended to assist institutions with state publication
requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities
for your state publication requirements.
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
Marine Midland Bank of Buffalo
Name of Bank City
in the state of New York, at the close of business
June 30, 1997
<TABLE>
<CAPTION>
ASSETS
Thousands
of dollars
Cash and balances due from depository
institutions:
<S> <C>
Noninterest-bearing balances
currency and coin............................ $ 1,044,050
Interest-bearing balances.................... 2,065,434
Held-to-maturity securities.................. 0
Available-for-sale securities................ 3,576,879
Federal funds sold and securities purchased
under agreements to resell................... 3,311,653
Loans and lease financing receivables:
Loans and leases net of unearned
income....................................... 20,801,413
LESS: Allowance for loan and lease
losses....................................... 429,338
LESS: Allocated transfer risk reserve 0
Loans and lease, net of unearned
income, allowance, and reserve............... 20,372,075
Trading assets............................... 982,806
Premises and fixed assets (including
capitalized leases).......................... 221,952
Other real estate owned......................... 8,293
Investments in unconsolidated
subsidiaries and associated companies........... 0
Customers' liability to this bank on
acceptances outstanding......................... 26,490
Intangible assets............................... 495,034
Other assets.................................... 530,288
Total assets.................................... 32,634,954
LIABILITIES
Deposits:
In domestic offices.......................... 20,705,098
Noninterest-bearing.......................... 4,382,353
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Interest-bearing............................. 16,322,745
In foreign offices, Edge, and Agreement
subsidiaries, and IBFs.......................... 3,458,100
Noninterest-bearing.......................... 0
Interest-bearing............................. 3,458,100
Federal funds sold and securities purchased
under agreements to resell................... 3,784,599
Demand notes issued to the U.S. Treasury 300,000
Trading Liabilities............................. 169,194
Other borrowed money:
With a remaining maturity of one year
or less...................................... 878,716
With a remaining maturity of more than
one year through three years................. 133,670
With a remaining maturity of more than
three years.................................. 112,907
Bank's liability on acceptances
executed and outstanding........................ 26,490
Subordinated notes and debentures............... 497,648
Other liabilities............................... 336,900
Total liabilities............................... 30,403,322
Limited-life preferred stock and
related surplus................................. 0
EQUITY CAPITAL
Perpetual preferred stock and related
surplus......................................... 0
Common Stock.................................... 205,000
Surplus......................................... 1,983,530
Undivided profits and capital reserves.......... 38,878
Net unrealized holding gains (losses)
on available-for-sale securities................ 4,224
Cumulative foreign currency translation
adjustments..................................... 0
Total equity capital............................ 2,231,632
Total liabilities, limited-life
preferred stock, and equity capital............. 32,634,954
</TABLE>
