-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, F2V1hL7/C0OVhhhJIwBuPMY4B0qm/aynhI4rEbNBVOlmMjOzyRMETpbca4O23I9H mIhwnRyXz/a7fJDCVubBPQ== 0000950130-97-004260.txt : 19970926 0000950130-97-004260.hdr.sgml : 19970926 ACCESSION NUMBER: 0000950130-97-004260 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 16 FILED AS OF DATE: 19970925 SROS: AMEX SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BANKERS TRUST NEW YORK CORP CENTRAL INDEX KEY: 0000009749 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 136180473 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-32909 FILM NUMBER: 97685688 BUSINESS ADDRESS: STREET 1: 130 LIBERTY STREET CITY: NEW YORK STATE: NY ZIP: 10006 BUSINESS PHONE: 2122502500 MAIL ADDRESS: STREET 1: 130 LIBERTY STREET CITY: NEW YORK STATE: NY ZIP: 10006 FORMER COMPANY: FORMER CONFORMED NAME: BT NEW YORK CORP DATE OF NAME CHANGE: 19671107 S-3/A 1 PRE-EFFECTIVE AMENDMENT #1 TO FORM S-3 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. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +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. 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 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 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 SUPPLEMENTAL CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
SIX MONTHS YEAR ENDED DECEMBER 31, ENDED ------------------------ JUNE 30, 1992 1993 1994 1995 1996 1997 ---- ---- ---- ---- ---- ---------- 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
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
SIX MONTHS YEAR ENDED DECEMBER 31, ENDED ------------------------ JUNE 30, 1992 1993 1994 1995 1996 1997 ---- ---- ---- ---- ---- ---------- 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
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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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: 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* ==========
- -------- * 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 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 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
EXHIBIT NUMBER DESCRIPTION ------- ----------- 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).
II-3
EXHIBIT NUMBER DESCRIPTION ------- ----------- **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.
- -------- * 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 (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 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 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 EX-1.1 2 FORM OF UNDERWRITING AGREEMENT FOR DEBT SECURITIES 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 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- 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- (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- 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- (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- 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- 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- 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- 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- 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- 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- 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- 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 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 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 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 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 Schedule I ---------- Name of Underwriter Aggregate Principal - --------------------- Amount of Securities -------------------- 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 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 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 EX-1.2 3 FORM OF UNDERWRITING AGREEMENT FOR COMMON STOCK 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 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- 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- 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- (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- 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- 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- 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- 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- 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- 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- 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- 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- 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 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 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 mutually agreed upon by such counsel and the Manager and set forth in the Underwriting Agreement. A-4 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 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 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 Schedule I ---------- Name of Underwriter Aggregate Number - --------------------- of Securities ---------------- 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 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 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 EX-4.1 4 FORM OF CERTIFICATE OF COMMON STOCK 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. 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. EX-4.2 5 FORM OF CERTIFICATE FOR SERIES PREFERRED STOCK 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 ------------------------ 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 ___________________________________ EX-4.3 6 FORM OF CERT OF AMEND OF RESTATED CERT OF INC. 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 - -------------------------------------------------------------------------------- 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 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 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 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 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 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 (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 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 EX-4.4 7 FORM OF DEPOSIT AGREEMENT 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_ ================================================================================ TABLE OF CONTENTS -----------------
Page ---- 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
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Page ---- 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
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Page ---- 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
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Page ---- 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
-iv- 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 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- "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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- [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- EX-4.8 8 FORM OF SECOND SUPP. INDENTURE DTD 9/ /97 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 ================================================================================ 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- 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- 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- (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- 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- 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- 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- EX-4.11 9 FORM OF SECOND SUPP. INDENTURE DTD 9/ /97 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 ================================================================================ 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- 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- "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- 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- (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- 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- 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- 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- 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- 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- EX-4.12 10 FORM OF CERTIFICATE FOR DEBT SECURITIES 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 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 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,
Redemption Redemption Year Price Year Price ------ ---------- ---- ----------
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
Redemption Price For Redemption Redemption Price For Through Operation Redemption Otherwise of the Than Through Operation Year Sinking Fund of the Sinking Fund ------ ----------------- ----------------------
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 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 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 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 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 EX-5.1 11 OPINION RE. VALIDITY 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 $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- 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- 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- 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- 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- EX-23.1 12 CONSENT OF ERNST & YOUNG 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 EX-23.2 13 CONSENT OF KPMG PEAT MARWICK 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 EX-23.3 14 CONSENT OF KPMG PEAT MARWICK 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 EX-25.1 15 FORM T-1 FOR THE CHASE MANHATTAN BANK 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) _____________________________________________ 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- 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- 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.
DOLLAR AMOUNTS ASSETS IN MILLIONS 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 ========
-4- LIABILITIES
Deposits 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 -------- EQUITY CAPITAL 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 ========
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- EX-25.2 16 FORM T-1 FOR MARINE MIDLAND BANK 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) 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 Item 16. List of Exhibits. -----------------
Exhibit - ------- 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.
*Exhibits previously filed with the Securities and Exchange Commission with Registration No. 33-53693 and incorporated herein by reference thereto. 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 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) 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
ASSETS Thousands of dollars Cash and balances due from depository institutions: 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
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
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