As filed with the Securities and Exchange Commission on August 29, 1997.
Registration No. 333-31061
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
incorporation or organization) identification no.)
130 LIBERTY STREET
NEW YORK, NEW YORK 10006
(Address of principal executive offices)
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ALEX. BROWN INCORPORATED
1991 EQUITY INCENTIVE PLAN
ALEX. BROWN INCORPORATED 1991 NON-EMPLOYEE
DIRECTOR EQUITY PLAN
(Full title of the Plans)
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GORDON S. CALDER, JR., ESQ.
MELVIN A. YELLIN, ESQ.
BANKERS TRUST NEW YORK CORPORATION
130 LIBERTY STREET
NEW YORK, NEW YORK 10006
(Name and address of agents for service)
Copy to:
MITCHELL S. EITEL, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
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<PAGE>
As of the date of this Registration Statement, Alex. Brown
Incorporated, a Maryland corporation ("Alex. Brown"), is merging with and into
(the "Merger") a subsidiary of Bankers Trust New York Corporation, a New York
corporation ("BTNY"). In connection with the Merger, BTNY has assumed the
outstanding executive convertible subordinated debentures and all options to
purchase shares of Alex. Brown Common Stock outstanding under the Alex. Brown
Incorporated 1991 Equity Incentive Plan and the Alex. Brown Incorporated 1991
Non-Employee Director Equity Plan immediately prior to the effective time of the
Merger (the "Effective Time").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by BTNY with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are hereby incorporated by reference into this Post-Effective Amendment
No. 1 to Form S-4 on Form S-8 (this "Registration Statement"):
(a) BTNY'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) BTNY's Quarterly Report on Form 10-Q (file number 1-5920) for the
quarters ended March 31, 1997 and June 30, 1997, filed pursuant to Section
13 of the Exchange Act;
(c) BTNY'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), and August 20, 1997 pursuant to Section 13 of the Exchange Act;
and
(d) The description of BTNY's Common Stock and associated stock
purchase rights set forth in Registration Statements on Form 8-A (file
number 5920), filed pursuant to Section 12 of the Exchange Act.
All documents filed by BTNY under Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all such securities then remaining
unsold shall be deemed to be
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incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the By-Laws of BTNY 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.
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"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 the
reimbursement or advancement of expenses as a matter of right pursuant to
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 if the claim and,
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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 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 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 BTNY and its directors and officers
for amounts, subject to policy limits, that BTNY 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 BTNY.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
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ITEM 8.
Exhibit
Number Description
*3.1 Restated Certificate of Incorporation of the Registrant filed
with the State of New York on June 9, 1998 (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
Incorporation 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
Incorporation 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
Incorporation 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
Incorporation 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
Incorporation 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
Incorporation 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).
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* Incorporated by Reference
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*3.8 Certificate of Amendment of the Restated Certificate of
Incorporation 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
Incorporation 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
Incorporation 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
Incorporation 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).
*3.12 By-Laws of the Registrant (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, (filed as an
Exhibit to the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1989, file number 1-5920).
**5.1 Opinion re validity.
23.1 Consent of Ernst & Young LLP, independent auditors.
**23.2 Consent of Counsel (contained in the opinion filed as Exhibit
5.1 to this Registration Statement).
**24.1 Powers of Attorney.
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* Incorporated by Reference
** Previously Filed
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ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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(c) 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.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON THE 29TH DAY OF
AUGUST, 1997.
BANKERS TRUST NEW YORK CORPORATION
By: /s/ GEORGE J. VOJTA
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED:
Signature Title Date
Frank N. Newman* Chairman of the Board, August 29, 1997
Chief Executive Officer
and Director (Principal
Executive Officer)
Richard H. Daniel* Vice Chairman, Chief August 29, 1997
Financial Officer and
Controller (Principal
Financial Officer and
Controller)
George B. Beitzel* Director August 29, 1997
Phillip A. Griffiths* Director August 29, 1997
William R. Howell* Director August 29, 1997
Vernon E. Jordan, Jr.* Director August 29, 1997
Hamish Maxwell* Director August 29, 1997
N.J. Nicholas, Jr.* Director August 29, 1997
Rusell E. Palmer* Director August 29, 1997
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Signature Title Date
Donald L. Staheli* Director August 29, 1997
Patricia C. Stewart* Director August 29, 1997
George J. Vojta* Director August 29, 1997
Paul A. Volcker* Director August 29, 1997
* By: /s/ GEORGE J. VOJTA
(Attorney-in-Fact)
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 (Form S-8) of Bankers Trust New York Corporation pertaining to the
Post-Effective Amendment No. 1 to Form S-4 Registration Statement (No.
333-31061), 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, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
New York, New York
August 26, 1997
