As Filed with the Securities and Exchange Commission on January 17, 1997
Registration No. 333-----------
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
Bankers Trust New York Corporation
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(Exact name of registrant as specified in its charter)
New York 13-6180473
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(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
130 Liberty Street, New York, New York 10006
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(Address of Principal Executive Offices) (Zip Code)
COINVESTMENT PLAN FOR THE FINANCE GROUP
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(Full title of the plan)
Gordon S. Calder, Jr., Esq.
Melvin A. Yellin, Esq.
130 Liberty Street
New York, New York 10006
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(Name and address of agent for service)
(212) 250-2500
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(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to Registered Offering Price Aggregate Offering Registration
be Registered (2) Per Share Price (2) Fee
- ------------- ------------ ---------------- ------------------ ------------
<S> <C> <C> <C> <C>
Deferred
Compensation
Obligations(1) $100,000,000. 100% $100,000,000. $30,304.
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(See footnotes on following page)
Page 1 of 26 pages.
<PAGE>
-2-
<FN>
FOOTNOTES
(1) The Deferred Compensation Obligations are unsecured obligations of Bankers
Trust New York Corporation to pay deferred compensation in the future in
accordance with the terms of the Coinvestment Plan for the Finance Group
of Bankers Trust New York Corporation (the "Plan").
(2) Estimate of original amount deferred by participants plus amount "matched"
by the registrant subject to the terms of the Plan.
</FN>
</TABLE>
<PAGE>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the instructions contained in Form S-8, the document(s) containing
the information specified in Part I of Form S-8 are not required to be filed
with the Securities and Exchange Commission (the "Commission") either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act of 1933 (the "Securities Act").
Accordingly, such information is omitted.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents have been filed by the registrant with the
Commission (file number 1-5920) under the Securities Exchange Act of 1934 (the
"Exchange Act") and are incorporated herein by reference:
(a) the registrant's Annual Report on Form 10-K for the year ended
December 31, 1995, filed pursuant to Section 13 of the Exchange Act;
(b) the registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30, and September 30, 1996, filed pursuant to Section
13 of the Exchange Act; and
(c) the registrant's Current Reports on Form 8-K dated March 19, April
15, April 25, May 3, May 22, June 18, July 18, July 22, July 26, August 1,
October 3, October 17, October 22, November 19, and December 9, 1996.
All documents filed by the registrant pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated by reference or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for all
purposes of this Registration Statement to the extent that a statement contained
herein or in any subsequently filed document that also is incorporated or deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
<PAGE>
-4-
Item 4. Description of Securities
-------------------------
The securities being offered are Deferred Compensation Obligations
("Obligations"), which are offered pursuant to the Coinvestment Plan for the
Finance Group as amended effective January 1, 1997 (the "Plan"). The purpose of
the Plan is to aid Bankers Trust New York Corporation (the "Corporation") and
its subsidiaries in securing and retaining officers and other key employees of
outstanding ability and to motivate such employees to exert their best efforts
on behalf of the Corporation and its subsidiaries. The Plan is also intended to
foster teamwork between members of the Corporation's Finance Group (as defined
below) and its Private Equity Investment Group ("PEIG"), and in particular to
encourage members of the Finance Group to refer deals to the PEIG for
investment. The following description of the terms and conditions of the
Obligations is qualified by reference to the Plan, which is filed herewith as
Exhibit 4 and incorporated herein by reference. Capitalized terms used without
definition have the meanings assigned to them in the Plan.
Subject to the terms and conditions of the Plan, each Obligation
entitles the holder to a cash payment, in an amount calculated as described
below. The Obligations are unsecured general obligations of the registrant to
pay deferred compensation in accordance with the terms of the Plan. The Plan is
unfunded. The registrant is not required to set aside assets to be used for
payment of Obligations. Because the registrant is a holding company, the right
of the registrant (and hence the rights of creditors of the registrant,
including participants in the Plan) to participate in any distribution of the
assets of any subsidiary of the registrant upon its liquidation or
reorganization or otherwise is subject to the prior claims of creditors of the
subsidiary, except to the extent that claims of the registrant as a creditor of
the subsidiary are recognized.
At the beginning of each Performance Year (as defined below), selected
Managing Directors and Vice Presidents in the registrant's Finance, M&A and
Research areas (collectively, the "Finance Group") may elect to defer, on a
pre-tax basis, a portion of their year-end annual cash bonus. The maximum
deferral is $100,000 for a Managing Director and $50,000 for a Vice President.
If the amount a participant elected to defer exceeds the actual cash bonus
payable to such participant, his/her deferral will be reduced to the actual cash
bonus amount. Deferrals may also be reduced on a pro rata basis depending on (1)
the aggregate size of the Performance Deals (as defined below) in the year to
which the deferral relates (the "Performance Year") and (2) the amount of such
investments sourced by the Finance Group, as described in the Plan. Performance
Deals are (i) investment deals that are approved by the PEIG, (ii) investment
deals that are recommended to the PEIG by the Finance Group, rejected by the
PEIG and, after approval by the Coinvestment Plan Board (which is the group
responsible for day-to-day administration of the Plan), invested in by the
Corporation, and (iii) LBO Fund Investments that are made by the Finance Group
and designated by the Coinvestment Plan Board as Performance Deals. If the
Corporation makes an additional capital investment in a Performance Deal in a
subsequent Performance Year which the Coinvestment Plan Board determines is for
the purpose of strengthening the capital base due to under-performance,
inability to service debt, or similar conditions, such subsequent investment
will be attributed to the Performance Year of the original investment in such
Performance Deal for purposes of the Plan.
<PAGE>
-5-
The amount deferred by each participant is deemed to be "matched" by
the registrant on a three-to-one basis to replicate the effects of leveraging.
"Matched" funds bear interest equal to the floating prime rate of Bankers Trust
Company plus one percent per annum and must be "closed out" (i.e., deemed to be
repaid from the deemed earnings of Performance Deals) as described below before
participants receive any distribution with respect to the particular Performance
Deal. Both the amount deferred by the participant and the "matched" amount
(collectively, the "deemed investment") are deemed invested (but are not
actually invested) in the Performance Deals.
Upon the receipt by the registrant of current cash income (such as
dividends and/or interest) or cash liquidation proceeds from the actual
investment constituting a Performance Deal, a proportionate amount of each such
cash receipt, as determined under the Plan (after payment of "carried interest"
awards, if any, granted to employees with respect to such Performance Deal),
will be treated as earned on the deemed investments under the Plan. Such deemed
earnings are first applied to close out the "matched" funds and the accrued
interest thereon. Any additional deemed earnings are distributable to
participants on a pro rata basis (subject to vesting requirements and a right of
offset described below). Unless otherwise determined by the Corporation's Chief
Executive Officer, distributions from the Plan will be made entirely in cash.
Participants vest in any deemed earnings related to their bonus
deferral for a Performance Year on the earlier of (1) the cash liquidation of
all the Performance Deals in that Performance Year or (2) the first anniversary
of the end of that Performance Year, in each case provided that the participant
has been continuously employed by the registrant through such vesting date.
Participants vest in any deemed earnings related to their "matched" funds for a
Performance Year at the earlier of (1) the fourth anniversary after the end of
that Performance Year or (2) the cash liquidation of all the Performance Deals
in that Performance Year, in each case provided that the participant has been
continuously employed by the registrant through such vesting date. Participants
whose employment terminates due to retirement, death, total disability or
termination by the registrant without cause vest (to the extent not previously
vested) in the deemed earnings on both their bonus deferral and "matched" funds
at the time of such termination of employment.
Participants who remain employed by the registrant or whose employment
terminates for a reason which entitles the participant to vest will have any
deemed earnings attributable to the Performance Deals for a particular
Performance Year first applied to close out the "Recourse Portion" (as defined
below) of the "matched" amount. In the event of termination for cause or
resignation prior to vesting, any such earnings will first be applied or
recharacterized to close out the portion of the "matched" funds other than the
Recourse Portion, so that the participant will remain at risk for the Recourse
Portion of the "matched" funds until additional Performance Deals' cash
proceeds, if any, are sufficient to close out such portion. Distributions to
participants whose employment is terminated for cause or who resign prior to
vesting are limited to the lesser of such participants' deferred bonus plus
interest or the actual distributions received by them under the terms of the
Plan prior to such termination of employment.
In the event that cash proceeds from the Performance Deals of a given
Performance Year are insufficient to close out the "matched" funds and related
<PAGE>
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interest, the participant will be required to repay to the registrant the
difference between the deemed earnings resulting from such cash proceeds and 50%
of the "matched" funds (plus interest thereon) (such difference being the
"Recourse Portion" of the "matched" amount). The registrant retains the right to
apply amounts distributable under the Plan or as bonus payments to close out
"matched" amounts from other Performance Years. The registrant also reserves the
right to pursue legal action against participants for amounts due from
participants under the Plan.
Participants' interests in the Plan are not transferable. No right,
title or interest of any kind in the Plan shall be transferable or assignable by
a participant or his or her beneficiary or be subject to alienation,
anticipation, encumbrance, garnishment, attachment, levy, execution or other
legal or equitable process, nor subject to the debts, contracts, liabilities or
engagements, or torts of any participant or his or her beneficiary. Once a
deferral election has been made, a participant has no ability to withdraw
his/her deferred bonus or any amounts related thereto, but can only receive
distributions as provided under the terms of the Plan.
The total amount of Obligations under the Plan are not determinable
because the amounts will vary depending upon, among other things, the level of
participation by eligible persons, the total amount of Performance Deals, the
amount of such Deals sourced by the Finance Group, and the performance of such
Deals. Likewise, the duration of the Plan is indefinite because Obligations may
only be paid, if at all, after cash liquidation of all investments included in
the Performance Deals for each Performance Year.
The Obligations are not subject to redemption, in whole or in part, at
the option of the registrant or through operation of a mandatory or optional
sinking fund or analogous provision. The registrant reserves the right to amend
or terminate the Plan, except that no such amendment or termination can impair
the rights or participants with respect to investments previously made without
their written consent.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The validity of the securities offered hereby has been passed upon for
the registrant by Gordon S. Calder, Jr., Managing Director and Counsel of
Bankers Trust Company. Mr. Calder has an interest in a number of shares equal to
less than .02% of the outstanding Common Stock of the registrant.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Article V of the By-Laws of Bankers Trust New York Corporation
provides as follows:
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
<PAGE>
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type or kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise, which any director or officer of the
corporation is serving or served in any capacity at the request of the
corporation by reason of the fact that he, his testator or intestate, is or was
a director or officer of the corporation, or is serving or served such other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid in
settlement, and costs, charges and expenses, including attorneys' fees, or any
appeal therein; provided, however, that no indemnification shall be provided to
any such person if a judgment or other final adjudication adverse to the
director or officer establishes that (i) his acts were committed in bad faith or
were the result of active and deliberate dishonesty and, in either case, were
material to the cause of action so adjudicated, or (ii) he personally gained in
fact a financial profit or other advantage to which he was not legally entitled.
SECTION 5.02 The corporation may indemnify any other person to whom the
corporation is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to, or
provided by, the New York Business Corporation Law or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these By-Laws authorized the creation of other rights in any such manner.
SECTION 5.03 The corporation shall, from time to time, reimburse or advance
to any person referred to in Section 5.01 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action or
proceeding referred to in Section 5.01, upon receipt of a written undertaking by
or on behalf of such person to repay such amounts(s) if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active an deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage or which he was not legally entitled.
SECTION 5.04 Any director or officer of the corporation serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the corporation, or (ii) any employee benefit plan
of the corporation or any corporation referred to in clause (i), in any capacity
shall be deemed to be doing so at the request of the corporation. In all other
cases, the provision of this Article V will apply (i) only if the person serving
another corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise so served at the specific request of the corporation,
evidenced by a written communication signed by the Chairman of the Board, the
Chief Executive Officer, the President, the Senior Vice Chairman or any Vice
Chairman, and (ii) only of and to the extent that, after making such efforts as
the Chairman of the Board, the Chief Executive Officer, or the President shall
deem adequate in the circumstances, such person shall be unable to obtain
indemnification from such other enterprise or its insurer.
SECTION 5.05 Any person entitled to be indemnified or to the reimbursement
or advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of the
<PAGE>
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occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 5.06 The right to be indemnified or to the reimbursement or
advancement of expenses pursuant to this Article V (i) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
corporation and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to the events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
SECTION 5.07 If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the corporation
within thirty days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimants shall be entitled also to be paid the expenses of prosecuting such
claim. neither the failure of the corporation (including its Board of Directors,
independent legal counsel, or its shareholders) that the claimant is not
entitled to indemnification or to the reimbursement or advancement of expenses,
shall be a defense to the action or create a presumption that the claimant is
not so entitled.
SECTION 5.08 A person who has been successful, on the merits or otherwise,
in the defense of a civil or criminal action or proceeding of the character
described in Section 5.01 shall be entitled to indemnification only as provided
in Section 5.01 and 5.03, notwithstanding any provision of the New York Business
Corporation Law to the contrary.
With certain limitations, Section 721 and 722 of the New York Business
Corporation Law permit a corporation to indemnify a director or officer made a
party to an action if such director or officer acted in good faith and in a
manner he reasonably believed to be in or, in certain cases, not opposed to such
corporation's best interests, and additionally, in criminal actions, has no
reasonable cause to believe his conduct was unlawful.
In addition, a Directors and Officers Liability and Corporation
Reimbursement Policy is maintained covering the Corporation and its directors
and officers for amounts, subject to policy limits, that the Corporation might
be required to pay by way of indemnification to its directors or officers under
its By-Laws or otherwise and for the protection of individual directors and
officers from loss for which they might not be indemnified by the Corporation.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The exhibits are listed in the exhibit index and are incorporated
herein by reference.
<PAGE>
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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, represents a fundamental
change in the information set forth in this Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
<PAGE>
-10-
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
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SIGNATURES
----------
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on, January 16,
1997.
Bankers Trust New York Corporation
By: /s/ James T. Byrne, Jr.
----------------------------------
(James T. Byrne, Jr.)
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
*
- -------------------------------------
(Frank N. Newman) Chairman of the Board, January 16, 1997
Chief Executive
Officer and
Director (Principal
Executive Officer)
*
- -------------------------------------
(Richard H. Daniel) Executive Vice January 16, 1997
President and Chief
Financial Officer
(Principal
Financial Officer)
*
- -------------------------------------
(Geoffrey M. Fletcher) Senior Vice President January 16, 1997
(Principal
Accounting Officer)
*
- -------------------------------------
(George B. Beitzel) Director January 16, 1997
<PAGE>
-12-
*
- -------------------------------------
(Phillip A. Griffiths) Director January 16, 1997
*
- -------------------------------------
(William R. Howell) Director January 16, 1997
*
- -------------------------------------
(Jon M. Huntsman) Director January 16, 1997
*
- -------------------------------------
(Vernon E. Jordan, Jr.) Director January 16, 1997
*
- -------------------------------------
(Hamish Maxwell) Director January 16, 1997
*
- -------------------------------------
(N.J. Nicholas, Jr.) Director January 16, 1997
*
- -------------------------------------
(Russell E. Palmer) Director January 16, 1997
*
- -------------------------------------
(Donald L. Staheli) Director January 16, 1997
*
- -------------------------------------
(Patricia C. Stewart) Director January 16, 1997
*
- -------------------------------------
(George J. Vojta) Director January 16, 1997
*
- -------------------------------------
(Paul A. Volcker) Director January 16, 1997
*By /s/ James T. Byrne
---------------------------------------
(James T. Byrne, Jr., Attorney-in-fact)
</TABLE>
<PAGE>
-13-
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit
Number Description Method of Filing Page
- ------- ----------- ---------------- ----
<S> <C> <C> <C>
4 Coinvestment Plan For The Filed herewith 14
Finance Group
5 Opinion re legality Filed herewith 23
23.1 Consent of Ernst & Young LLP Filed herewith 24
23.2 Consent of Gordon S. Calder, Jr. Included in Exhibit 5 23
24 Powers of Attorney Filed herewith 25
</TABLE>
-14-
EXHIBIT 4
Coinvestment Plan for the Finance Group
(as amended effective January 1, 1997)
Plan Document
I. Purpose of the Plan
The purpose of the Coinvestment Plan for the Finance Group (the "Plan") is to
aid Bankers Trust New York Corporation (the "Corporation") and its subsidiaries
in securing and retaining officers and other key employees of outstanding
ability and to motivate such employees to exert their best efforts on behalf of
the Corporation and its subsidiaries. The Plan is also intended to foster
teamwork between members of the Finance, M&A and Research areas of the
Corporation (collectively, the "Finance Group") and the Corporation's Private
Equity Investment Group ("PEIG") and in particular to encourage members of the
Finance Group to refer deals to the PEIG for investment by providing the Finance
Group an opportunity to share in the performance of the Corporation's private
equity investments.
The Plan is a nonqualified deferred compensation arrangement under which
participants may elect to defer a portion of their annual cash bonus which is
"matched" as provided in Section VI, and then credited with earnings and losses
in a manner that tracks the actual returns of the Performance Deals (as defined
below) during the year to which the bonus relates (the "Performance Year").
II. Performance Deals
Performance Deals are (i) investment deals that are approved by the PEIG ("PEIG
Investments"), (ii) investment deals that are recommended to the PEIG by the
Finance Group, rejected by the PEIG and, after approval by the Coinvestment Plan
Board, invested in by the Corporation ("Exceptions Deals"), and (iii) LBO Fund
Investments that are made by the Finance Group and designated by the
Coinvestment Plan Board for investment under the Plan ("LBO Fund Investments").
III. Administration of the Plan
The Plan shall be administered by the Human Resources Committee (the
"Committee") of the Corporation's Board of Directors (the "Board"). The
Committee may delegate any or all of its functions to designees appointed by it.
The Committee's powers include the power to construe and interpret the Plan, to
adopt rules for the Plan, and to make any determinations necessary or advisable
for the administration of the Plan.
<PAGE>
-15-
The Coinvestment Plan Board shall be responsible for the day to day
administration of the Plan. Members of the Coinvestment Plan Board shall be
nominated by the Senior Managing Director of Global Investment Banking, subject
to the approval of the Corporation's Chief Executive Officer ("CEO").
The responsibilities of the Coinvestment Plan Board shall include the following:
(i) to review investment deals which are recommended to the PEIG by
the Finance Group and rejected by the PEIG and to determine the
extent to which the Corporation will invest in such deals (deals
so invested in being referred to as "Exceptions Deals");
(ii) to determine the extent to which amounts deferred under the Plan
will be deemed to be invested in each Exceptions Deal;
(iii) to determine whether, and the extent to which, amounts deferred
under the Plan will be deemed invested in each LBO Fund
Investment;
(iv) to determine how warrants received in connection with other
finance transactions with respect to Performance Deals shall be
characterized;
(v) to determine whether additional capital invested by the
Corporation in a Performance Deal shall be treated as an "Add-on
Investment" or "Restructuring Investment" (as those terms are
defined in Section X); and
(vi) to make such other determinations with respect to investments by
the Corporation and deemed investments under the Plan as may be
necessary or desirable for the administration of the Plan.
All determinations by the Committee or the Coinvestment Plan Board relating to
the Plan shall be final and binding.
Accounting records for the Plan and for all Performance Deals shall be
administered by the controllers of the PEIG (or their designate(s)) with
oversight by Corporate Human Resources and the Corporate Controller's Office.
IV. Eligible Employees
Managing Directors and Vice Presidents of the Finance Group who are selected
each year by the CEO or his designate(s) are eligible to participate in the
Plan. To the extent that the Plan is extended to employees outside the U.S. who
are subject to local law and/or tax regulations which differ from those under
U.S. law, the Plan may be modified as provided in Section XX.
The Corporation reserves the right to limit participation of employees deemed to
be Executive Officers of the Corporation.
<PAGE>
-16-
Participation in the Plan by eligible employees is completely voluntary.
V. Deferral Elections
At the beginning of each Performance Year, eligible employees may elect to
defer, on a pre-tax basis, all or a portion of their annual cash bonus for the
Performance Year which is otherwise payable at the end of that calendar year or
the beginning of the following calendar year. The amount of bonus available for
deferral is subject to the limitations set forth in the Plan and any other
limitations on the form or timing of bonus payments which may be imposed by the
Corporation with respect to bonus plans generally. No election to defer shall be
effective unless it has been accepted in writing by representatives of both the
Finance Group and Corporate Human Resources.
Managing Directors may elect to defer either $50,000 or $100,000. Vice
Presidents may elect to defer either $25,000 or $50,000. In the event that a
participant's cash bonus as determined for a particular Performance Year is less
than the amount he/she elected to defer for that Performance Year, his/her
deferral will be reduced to the amount of his/her actual cash bonus.
The deferrals of all participants for a given Performance Year, plus related
"matched" amounts (as determined pursuant to Section VI), shall not exceed the
applicable percentage of the aggregate amount of the Performance Deals in such
Performance Year set forth in Section VII, and are subject to reduction on a pro
rata basis to the extent necessary to avoid exceeding such maximum amounts.
VI. "Leveraging" by the Corporation
The amount of a participant's deferral will be deemed to be "matched" by the
Corporation on a three-to-one basis to replicate the effects of leveraging. As a
result, the amount of bonus a participant defers will track the investment
performance of the Performance Deals as if the deferred amount were four times
the actual amount of the deferred bonus.
"Matched" funds, together with interest (calculated as described below), are
required to be "closed out" (i.e. deemed to be "repaid" to the Corporation from
the deemed earnings of the Performance Deals) before participants are entitled
to receive any distributions with respect to the particular Performance Deal.
Interest shall be attributed to "matched" funds as of the day the Corporation's
investment in a particular Performance Deal is made. Interest shall be computed
on a 365 day year on the basis of the number of days elapsed at the Prime
Lending Rate (as defined below) as from time to time in effect plus one percent
per annum. "Prime Lending Rate" shall mean the rate announced by Bankers Trust
Company from time to time at its principal office as its prime lending rate for
domestic commercial loans. Interest shall be compounded quarterly until the
"matched" amounts (plus interest thereon) have been repaid in full.
<PAGE>
-17-
VII. Determination of Plan Deemed Investments
Amounts deferred by participants and related "matched" amounts (collectively,
the "deemed investment") shall not be actually invested in Performance Deals,
but shall be treated as if so invested for purposes of determining amounts
payable to participants under the Plan.
The aggregate amounts deferred by all participants for a Performance Year, plus
related "matched" amounts, shall not exceed a percentage of the aggregate size
of the Performance Deals, as set forth below. In the case of Exceptions Deals
and LBO Fund Investments that percentage shall be 20%. However, the Coinvestment
Plan Board may, in its discretion, determine to apply the 20% participation
factor to a portion of an Exceptions Deal or LBO Fund Investment (the "Plan
Eligible Portion") which is less than the total amount invested in that
Exceptions Deal or LBO Fund Investment by the Corporation. In the case of PEIG
Investments, the percentage shall be determined by the total dollar amount of
PEIG Investments sourced by the Finance Group during the Performance Year as
follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Portion of Total
Total of PEIG Investments PEIG Investments During the
Sourced by Finance Group Performance Year which Deferrals
During the Performance Year and Matched Amounts Cannot Exceed
--------------------------- ---------------------------------
<S> <C>
Below $25 million 10%
$25 - $50 million 15%
over $50 million 20%
- --------------------------------------------------------------------------------
</TABLE>
In no event may the aggregate of participants' deferred amounts and "matched"
amounts for a Performance Year exceed 20% of the Performance Deals for that
year.
If the aggregate amount of participant deferrals and related "matched" amounts
for any Performance Year (after adjusting participant deferral elections to
reduce elections in excess of actual bonus amounts) exceed the maximum permitted
Plan "deemed investment" as determined above, participant deferral elections (as
so adjusted) shall be further reduced on a pro rata basis until such deferral
elections (as so adjusted) equal the maximum permitted Plan "deemed investment"
for the Performance Year.
If the aggregate amounts deferred by all participants for a Performance Year,
plus related "matched" amounts, are less than the maximum amount of "deemed
investment" permitted under the Plan (as set forth above), deferrals and
"matched" amounts shall first be deemed to be invested in the Exceptions Deals
and LBO Fund Investments (to the extent of 20% of the Plan Eligible Portion of
such Deals). Any remaining deferrals and "matched" amounts shall be deemed
invested in PEIG Investments on a pro rata basis.
<PAGE>
-18-
VIII. Plan Distributions
When the Corporation receives current cash income (such as dividends and/or
interest) or cash liquidation proceeds from the Performance Deals, a
proportionate amount of each payment (determined by comparing the amount deemed
invested in the particular Performance Deal under the Plan to the total amount
actually invested in that Performance Deal by the Corporation) shall be treated
as earned on the deemed investments under the Plan, subject to adjustment for
carried interest awards as provided in Section IX. For example, if the Plan's
deemed investment in a Performance Deal is 20% of the Corporation's investment
in that Deal, the Plan would be treated as earning 20% of each cash payment
received by the Corporation (after payment of Deal Team carried interest
awards). No distributions shall be made on the basis of non-cash liquidations or
receipts.
Deemed earnings shall first be applied to close out the "matched" funds and the
accrued interest thereon. Any additional deemed earnings shall be distributable
to participants on a pro-rata basis (subject to the vesting requirements set
forth in Section XII and the right of offset set forth below) within 60 days
after the Corporation's receipt of cash from income or a liquidation.
Cash returns on warrants acquired by the Corporation as a part of its initial
investment in a Performance Deal shall be treated in the same way as cash income
from a Performance Deal; however, returns on warrants acquired or received by
the Corporation in connection with other finance transactions with respect to
Performance Deals are expressly excluded from the Plan. Determinations regarding
the classification of warrants shall be made by the Coinvestment Plan Board,
whose determination shall be final and binding.
All distributions pursuant to the Plan shall be treated by the Corporation as
compensation and shall be subject to applicable tax withholding at the time of
payout. Unless otherwise determined by the Corporation's CEO, distributions from
the Plan shall be made entirely in cash.
IX. Carried Interest Awards
Certain employees who put together a Performance Deal may be designated as "Deal
Team" members and may be granted separate overriding "carried interest awards,"
less the cost of funds, with respect to the Performance Deals they put together.
The "carried interest awards" with respect to a particular Performance Deal for
all Deal Team members combined shall be limited to a total maximum of 5% of the
first $5 million of the value of such Deal and to 2 1/2% for any amount in
excess of such $5 million. With respect to each payment received by the
Corporation representing cash income or liquidation proceeds from a Performance
Deal for which carried interest awards have been granted, the relevant Deal Team
members shall receive their carried interest award percentage first, and the
remainder of the payment shall be divided between the Corporation and the Plan
as provided under Section VIII.
X. Effect of Subsequent Capital Investments in the Performance Deals
From time to time, the Corporation may invest additional capital in one or more
Performance Deals. If the additional capital is provided to effect a
strengthening of the capital base due to under-performance, inability to service
<PAGE>
-19-
debt, or other similar conditions, the capital thus infused shall be deemed a
"restructuring" investment ("Restructuring Investment"). If the additional
capital is provided for purposes of expanding the business or acquiring assets
or another company or other similar purpose, such capital shall be deemed an
"add-on" investment ("Add-on Investment"). Determinations as to whether an
additional investment is a Restructuring Investment or an Add-on Investment
shall be made by the Coinvestment Plan Board, whose determination shall be final
and binding.
Capital provided as a Restructuring Investment shall be considered part of the
investment attributable to the Performance Year in which the original investment
was made. As a result, the dollar amount of the Plan's "deemed investment" with
respect to that Performance Year (which will not change by virtue of the
Restructuring Investment) will represent a smaller percentage of the
Corporation's actual investments in Performance Deals for that Performance Year
than was the case before the Restructuring Investment. For each payment of cash
proceeds received with respect to the Performance Deals for such Performance
Year by the Corporation after making the Restructuring Investment, such smaller
percentage shall be used to determine the proportionate amount of such cash
proceeds to be treated as earned on the Plan's deemed investments for such
Performance Year.
Capital provided as an Add-on Investment shall be considered as a Performance
Deal for the Performance Year in which the Add-on Investment is made.
XI. Company Recovery of Matched Amounts
Notwithstanding the provisions of Section VIII, even if a particular Performance
Deal has generated sufficient cash income or liquidation proceeds to close out
the "matched" funds related to such Performance Deal, the Corporation reserves
the right to hold back any or all distributions to participants related to such
Performance Deal until all "matched" funds of all Performance Deals in that
Performance Year have been closed out. If the net proceeds of all Performance
Deals in a given Performance Year are insufficient to recover the matched funds
and related interest for all Performance Deals in the Performance Year, the
difference between the proceeds and the "matched" funds (plus interest) may be
offset by the Corporation against other amounts payable to the participant under
the Plan (with respect to other Performance Years), or as current bonus. The
Corporation reserves the right to require participants to repay to the
Corporation the difference between such proceeds and 50% of the "matched" funds
(plus interest on such portion of the "matched" funds) (such difference being
referred to as the "Recourse Portion" of the "matched" amount) to the extent
such amounts have not been otherwise recovered by the Corporation.
XII. Vesting Provisions
Participants vest in any deemed earnings related to their bonus deferral for a
Performance Year on the earlier of (1) the cash liquidation of all the
Performance Deals in that Performance Year or (2) the first anniversary of the
end of that Performance Year, in each case provided that the participant has
been continuously employed by the Corporation or its subsidiaries through such
<PAGE>
-20-
vesting date. Participants vest in any deemed earnings related to their
"matched" funds for a Performance Year at the earlier of (1) the fourth
anniversary after the end of that Performance Year or (2) the cash liquidation
of all the Performance Deals in that Performance Year, in each case provided
that the participant has been continuously employed by the Corporation or its
subsidiaries through such vesting date. Participants whose employment terminates
due to retirement, death, total disability or termination by the Corporation
without cause vest (to the extent not previously vested) in the deemed earnings
on both their bonus deferral and "matched" funds at the time of such termination
of employment.
Participants who remain employed by the Corporation until the applicable vesting
date for a Performance Year or whose employment terminates for a reason which
entitles the participant to vest shall have any deemed earnings attributable to
the Performance Deals for a particular Performance Year first applied to close
out the Recourse Portion of the "matched" amount. In the event of the
participant's termination of employment for cause or resignation prior to
vesting, any such deemed earnings shall first be applied or recharacterized to
close out the portion of the "matched" funds other than the Recourse Portion
thereof, so that the participant will remain at risk for the Recourse Portion of
the "matched" funds until additional Performance Deals' cash proceeds, if any,
are sufficient to repay such portion.
Distributions to participants whose employment is terminated for cause or who
resign prior to vesting shall be limited to the lesser of (i) such participants'
deferred bonus plus interest or (ii) the actual distributions received by them
prior to such termination of employment under the terms of the Plan. For this
purpose, interest is calculated as provided in Section VI, beginning with the
date the actual bonus would have been paid to the participant but for the
deferral election. Repayment of interest on the deferred bonus shall be paid to
such participants only as cash proceeds from income or liquidations of
Performance Deals yield sufficient returns to do so.
XIII. Withdrawal from the Plan
Once a deferral election has been made, a participant has no ability to withdraw
his/her deferred bonus or any amounts related thereto, but can only receive
distributions as provided hereunder.
XIV. Restrictions
Participants' interests in the Plan are not transferable. No right, title or
interest of any kind in the Plan may be transferred or assigned by a participant
or his/her beneficiary or be subject to alienation, anticipation, encumbrance,
garnishment, attachment, levy, execution or other legal or equitable process,
nor subject to the debts, contracts, liabilities or engagements, or torts of any
participant or his/her beneficiary.
XV. Expenses of the Plan
Before any amounts attributable to cash income and liquidation proceeds are
distributed to participants, such amounts are first applied to overhead expenses
<PAGE>
-21-
allocated to the Plan on a pro-rata basis and to an annual management fee that
may be charged to the Plan by the Corporation in its discretion.
XVI. Transfers In and Out of the Plan
If an employee transfers into one of the groups eligible for this Plan and meets
the eligibility requirements, he/she may elect to contribute to the Plan at the
beginning of the first Performance Year commencing after such employee becomes
eligible; provided such employee is, at such time, still eligible to
participate.
If a participant transfers into one of the groups not eligible for this Plan,
all investments by such participant prior to such transfer shall continue to
vest as scheduled, but no further investment by such participant shall be
allowed without the approval of the CEO.
XVII. Reports to Participants
Statements detailing participants' interests in the Plan as well as the
investment status of the Performance Deals shall be sent to each participant at
least once each calendar quarter.
XVIII. Legal Structure
The Plan is a nonqualified deferred compensation arrangement and all deferred
sums therein shall remain subject to the claims of general creditors of the
Corporation. The provisions of this Plan shall be governed under the laws of the
State of New York.
XIX. Tax Withholding
Payments to participants under the Plan shall be net of any required tax
withholding. For FICA tax purposes, bonus deferrals shall be treated as wages in
the year of deferral, subject to the requirements of applicable law. The
Corporation reserves the right to withhold the participant's liability for FICA
tax attributable to participation in the Plan from salary or other amounts
otherwise payable to the participant.
XX. Plan Amendments
The CEO may amend, suspend or terminate the Plan, subject to the limitations set
forth in this Section XX. Any material amendment shall be subject to approval by
the Committee, except for the following types of amendments, which may be
adopted solely by the action of the CEO or his designate(s): (i) any amendment
to extend the Plan to cover additional categories of employees, and (ii) any
amendment or modification which is necessary or desirable to comply with foreign
or state laws or to provide comparable benefits to non-U.S. participants in
light of applicable tax laws and regulations. With respect to deferral elections
<PAGE>
-22-
previously made, no amendment, termination or suspension may impair the rights
of participants without their written consent. Any action taken pursuant to this
Section XX shall be set forth in writing.
XXI. Effective Date
The Plan was adopted effective January 1, 1996. This amendment and restatement
shall be effective as of January 1, 1997.
-23-
EXHIBIT 5
Bankers Trust Company
One Bankers Trust Plaza, New York, New York 10006
Gordon S. Calder, Jr. Mailing Address:
Managing Director and Counsel P.O. Box 318, Church Street Station
Tel: 212-250-4857 New York, New York 10008
Fax: 212-250-0734
January 17, 1997
Bankers Trust New York Corporation
1 Bankers Trust Plaza
130 Liberty Street
New York, NY 10006
Dear Sirs:
I am Managing Director and Counsel of Bankers Trust Company, a
subsidiary of Bankers Trust New York Corporation, a New York corporation (the
"Company"). In connection with the proposed filing with the Securities and
Exchange Commission expected to be made by the Company on the date hereof under
the Securities Act of 1933, as amended, of a Registration Statement on Form S-8
(the "Registration Statement") for the purpose of registering $100,000,000 of
Deferred Compensation Obligations which represent unsecured obligations of the
Company to pay deferred compensation in the future in accordance with the terms
of the Coinvestment Plan for the Finance Group (the "Plan"), I have examined the
Restated Certificate of Incorporation and By-Laws of the Company, the Plan, and
such other documents of the Company as I have deemed necessary or appropriate
for the purposes of the opinion expressed herein.
Based upon the foregoing, I am of the opinion that, when issued in
accordance with the provisions of the Plan, the Deferred Compensation
Obligations will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability relating to or
affecting enforcement of creditors' rights or by general equity principles.
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name wherever appearing in the
Registration Statement and any amendment thereto. I do not admit in giving this
consent that I come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Gordon S. Calder, Jr.
--------------------------
Gordon S. Calder, Jr.
-24-
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) and the related prospectus pertaining to the Coinvestment
Plan for the Finance Group, as amended, of Bankers Trust New York Corporation of
our report dated January 25, 1996, with respect to the consolidated financial
statements of Bankers Trust New York Corporation included in its Annual Report
(Form 10-K) for the year ended December 31, 1995, filed with the Securities and
Exchange Commission. We also consent to the reference to our firm under the
caption "Experts" in the Prospectus related to such Registration Statement.
January 15, 1997.
/s/ Ernst & Young LLP
---------------------
Ernst & Young LLP
-25-
EXHIBIT 24
BANKERS TRUST NEW YORK CORPORATION
----------------------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of Bankers Trust New York Corporation (the "Corporation"), a New
York corporation, hereby appoints each of Frank N. Newman, George J. Vojta,
Richard H. Daniel, Garret G. Thunen, Duncan P. Hennes and James T. Byrne, Jr.
his true and lawful attorney and agent, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorney and agent may deem necessary or advisable to
enable the Corporation to comply with the Securities Act of 1933, as amended,
the Securities Exchange Act of 1934, as amended and the Trust Indenture Act of
1939, as amended (collectively the "Acts") and any rules and regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Acts of the securities of the
Corporation in connection with the offering of such securities, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement to be filed with
the Securities and Exchange Commission to any and all amendments, including pre-
and post-effective amendments, to the said Registration Statement and to any and
all instruments and documents filed as a part of or in connection with the said
Registration Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING
all that the said attorneys and agents, or any of them, has done, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has subscribed these
presents.
December 17, 1996 Bankers Trust New York Corporation
By /s/ Frank N. Newman
------------------------------------
Frank N. Newman
Chairman of the Board
/s/ Frank N. Newman
- -----------------------------------
Frank N. Newman
Chairman of the Board of Directors
(Principal Executive Officer)
/s/ Richard H. Daniel
- -----------------------------------
Richard H. Daniel
Executive Vice President; Chief Financial
Officer and Controller
(Principal Financial Officer)
/s/ Geoffrey M. Fletcher
- -----------------------------------
Geoffrey M. Fletcher
Senior Vice President and
Principal Accounting Officer
<PAGE>
-26-
Page 2
/s/ George B. Beitzel
- ----------------------------
George B. Beitzel Director
/s/ Phillip A. Griffiths
- ----------------------------
Phillip A. Griffiths Director
/s/ William R. Howell
- ----------------------------
William R. Howell Director
/s/ Jon M. Huntsman
- ----------------------------
Jon M. Huntsman Director
/s/ Vernon E. Jordan, Jr.
- ----------------------------
Vernon E. Jordan, Jr. Director
/s/ Hamish Maxwell
- ----------------------------
Hamish Maxwell Director
/s/ N.J. Nicholas Jr.
- ----------------------------
N.J. Nicholas Jr. Director
/s/ Russell E. Palmer
- ----------------------------
Russell E. Palmer Director
/s/ Donald L. Staheli
- ----------------------------
Donald L. Staheli Director
/s/ Patricia C. Stewart
- ----------------------------
Patricia C. Stewart Director
/s/ George J. Vojta
- ----------------------------
George J. Vojta Director
/s/ Paul A. Volcker
- ----------------------------
Paul A. Volcker Director
