EXHIBIT 1.2
BANKERS TRUST NEW YORK CORPORATION
Series Preferred Stock and Common Stock
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Underwriting Agreement
Standard Provisions
(December 1995)
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From time to time, BANKERS TRUST NEW YORK CORPORATION, a New York
corporation (the "Corporation"), may enter into one or more underwriting
agreements 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 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 shares of Series
Preferred Stock shall be deposited against delivery of receipts ("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 shares of Series
Preferred Stock, or fractions thereof, specified in the Prospectus. If the
shares of Series Preferred Stock 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. 33-_______),
including a prospectus relating to, among other securities, Common Stock,
Preferred Stock and Depositary Shares and has filed with, or mailed for filing
to, 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. 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, or mailed for filing to, 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 the
material, if any, incorporated by reference therein. The term "Securities" means
the Offered Shares and, if the shares of Series Preferred Stock 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
Schedule I attached hereto ("Delayed Delivery Contracts") but with such changes
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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 as compensation, for the accounts
of the Underwriters, 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 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 certified or
official bank check or checks payable 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."
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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 executive officer of the Corporation, to the
foregoing effect and also to the effect that the representations and
warranties of the Corporation in 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.
(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 Offered Shares and the Depositary Shares, 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.
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(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
of 1933 and the Securities Exchange Act of 1934 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 Securities Exchange Act of
1934, which are deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Securities, to furnish the Manager with
a copy of each such proposed amendment or supplement.
(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,
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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.
(d) To endeavor 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 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, the
printing of any memoranda concerning the aforesaid qualification or
eligibility and the rating of the Securities by securities rating services.
(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 each Underwriting Agreement an earnings statement covering a period of
at least twelve months beginning after the later of (i) the effective date
of the Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective
prior to the date of such Underwriting Agreement, and (iii) the date of the
Corporation's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Underwriting Agreement, which shall
satisfy the provisions of Section 11(a) of the Securities Act of 1933.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of the Closing Date
or 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 on conversion of convertible
securities, in each case outstanding at the date of the Underwriting
Agreement or in an offering made exclusively outside the United States) any
securities of the Corporation substantially similar to the
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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 Act; (ii) the fees, disbursements and
expenses of the Corporation's accountants in connection with the registration of
the Securities under the Act and all other expenses incurred by it in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements thereto and delivery
of copies thereof to the Underwriters; (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 or any other stock exchange or
quotation system and any fees of rating agencies; (v) all costs and expenses
incurred in the preparation and printing 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; (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; (vii) any fees of the
Depositary and for any taxes in connection with the deposit of the Offered
Shares with the Depositary and the issuance of the Depositary Receipts (it being
understood that the Underwriters agree to pay the New York State stock transfer
tax, if any, that may be imposed in connection therewith, and the Corporation
agrees to 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.
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VIII.
The Corporation represents and warrants to each Underwriter that (i)
each document, if any, filed or to be filed pursuant to the Securities Exchange
Act of 1934 and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with such Act and the rules and
regulations thereunder; (ii) each part of the Registration Statement (including
the documents incorporated by reference therein), filed with the Commission
pursuant to the Securities Act of 1933 relating to the Securities, 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, filed pursuant to Rule 424 under the Securities Act of 1933 complied
when so filed in all material respects with such Act and the applicable rules
and regulations 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 of 1933 and the applicable rules and
regulations thereunder; and (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; except that these
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 an Underwriter
expressly for use therein.
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 of 1933 or Section 20 of the Securities
Exchange Act of 1934, 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 in writing to the Corporation by an Underwriter
expressly for
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use therein; provided that the foregoing indemnity agreement with respect to any
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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) 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 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 and any amendments or
supplements thereto.
In case 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 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
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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 VII 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
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Corporation or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statements or
omissions.
The Corporation and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII 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 the provisions of this Article VII, 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 which 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 of 1933) 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 VII are several, in proportion to the respective number 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
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securities generally on the New York Stock Exchange, 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 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.
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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, severally, 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.
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EXHIBIT A
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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 and Common Stock Underwriting Agreement
Standard Provisions (December 1995) shall be to the effect that:
(i) the Corporation has been duly incorporated, is validly existing
as a 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 validly
existing as a banking corporation 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" and "Certain Terms of
the Depositary Shares," and in the Basic Prospectus under "Description of
Series Preferred Stock," "Depositary Shares" 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, par value $1.00 per
share, of the Corporation in accordance with their terms; the shares of
such Common Stock initially issuable upon conversion of the Offered Shares
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; the holders of outstanding shares of capital stock of the
Corporation are not entitled to preemptive rights with respect to such
Common Stock;
(vi) the Offered Shares and, if applicable, the shares of Common
Stock issuable upon conversion of such Offered Shares, have been duly
authorized for listing, in each case subject to official notice of
issuance, on the New York Stock Exchange or such other stock exchange or
automated quotation system on or to which such Offered Shares and, if
applicable, Common Stock is or is to be listed or admitted;
(vii) the Deposit Agreement has been duly authorized, executed and
delivered by the Corporation and, assuming due authorization, execution and
delivery by the Depositary, constitutes a valid and legally binding
agreement enforceable in accordance with its terms; 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 Series Preferred
Stock,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; and the Deposit Agreement, the Depositary Shares and
the Depositary Receipts conform to the descriptions thereof contained in
the Prospectus;
(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) the issuance and sale of the Offered Shares and, if applicable,
the issuance and sale of the Common Stock or Series Preferred Stock
issuable upon conversion thereof, and the execution, delivery and
performance by the Corporation of the Underwriting Agreement and the
Deposit Agreement will not contravene any provisions of applicable Federal
or New York law or
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regulation, the certificate of incorporation or by-laws of the Corporation,
or to the knowledge of such counsel, any agreement or other instrument
binding upon the Corporation;
(xi) no consent, approval, authorization or other order of any
governmental or regulatory body is required 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 State securities and blue sky laws;
(xii) the Registration Statement and Prospectus (except as to
financial statements and schedules and other financial data contained
therein, as to which such counsel need not express any opinion) comply as
to form in all material respects with the Securities Act of 1933, as
amended, and the rules and regulations thereunder; and each document filed
pursuant to the Securities Exchange Act of 1934, as amended, 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 such Act and the rules and
regulations thereunder;
(xiii) such counsel believes that (except for the financial
statements or schedules or other financial data and any statements
concerning the laws of tax contained therein, as to which such counsel need
not express any belief) each part of the Registration Statement (including
the documents incorporated by reference therein), filed with the Securities
and Exchange Commission, 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; and such counsel believes that (except for the financial
statements or schedules or other financial data and any statements
concerning the laws of tax contained therein, as to which such counsel need
not express any belief) the Registration Statement and the Prospectus as of
their respective effective or issue dates did not, and the Prospectus on
the Closing Date does not, contain any untrue statement of a
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material fact or omit 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; and
(xiv) the statements as to matters of law contained in the
Corporation's Annual Report on Form 10-K most recently filed with the
Securities and Exchange Commission under the caption "Supervision and
Regulation" were correct as of the date such report was filed with the
Securities and Exchange Commission and such statements fairly presented the
matters referred to therein.
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Corporation and public officials.
Referring to clauses (v), (vii) and (ix) above, such counsel may make the
expression of opinion as to the validity and enforceability of the agreements or
obligations 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 Federal
or New York State tax law. Counsel may take such other exceptions as may be
mutually agreed upon by such counsel and the Manager and set forth in the
Underwriting Agreement.
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EXHIBIT B
---------
Opinion of Counsel to the Depositary
The opinion of counsel to the Depositary, to be delivered pursuant to
Article IV, paragraph (c) of the document entitled Bankers Trust New York
Corporation Series Preferred Stock and Common Stock Underwriting Agreement
Standard Provisions (December 1995) 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) the Depositary Receipts, when issued in accordance with the
provisions of the Deposit Agreement against the deposit of duly authorized,
validly issued, fully paid and nonassessable shares of Series Preferred
Stock, will be validly issued and will entitle the holders thereof to the
rights specified therein and in the Deposit Agreement.
FORM OF DELAYED DELIVERY CONTRACT
___________, 19__
Bankers Trust New York Corporation,
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
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 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
Date Securities
-------- ----------
________ $________
________ $________
________ $________
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 Corporation or its order by certified
or official bank check in immediately available funds at the office of
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the Corporation located at the above address, at 10:00 A.M. (New York 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 by written or
telegraphic communication addressed 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 the 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 will 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
Corporation and the undersigned when such counterpart is so mailed or delivered.
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This contract shall be governed by and construed in
accordance with the laws of the State of New York.
Yours very truly,
_________________________
(Purchaser)
By_______________________
(Title)
_________________________
_________________________
(Address)
Accepted:
BANKERS TRUST NEW YORK CORPORATION
By________________________________
Title:
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FORM OF UNDERWRITING AGREEMENT
Bankers Trust New York Corporation,
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
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 [Common Stock] [_______% Series Preferred
Stock, Series ____] (the ["Offered Shares"] ["Securities" ) [to [us] [the
Underwriters named in Schedule I hereto (the "Underwriters")] [, to be deposited
against delivery of depositary receipts (the "Depositary Receipts"), evidencing
depositary shares (the "Depositary Shares", and with the Offered Shares, the
"Securities"), to be issued by ______________, as depositary (the "Depositary")
pursuant to a deposit agreement, dated as of ___________, among the Corporation,
the Depositary and the holders from time to time of the Depositary Receipts].
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 ___________ ___, 19__.
All the provisions contained in the document entitled Bankers Trust New
York Corporation Series Preferred Stock and Common Stock Underwriting Agreement
Standard Provisions (December 1995), a copy of which you 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 Securities 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 upon delivery thereof at the offices of
the Corporation, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M. (New York
City
time) on ________, __ 19__ or at such other time, not later than, ________, __
19__, as shall be designated by us, 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.]
[The certificates for the Securities shall be registered in such names
and in such denominations as we shall request and shall be 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:
-------------------------------
Title:
Accepted:
Bankers Trust New York Corporation
By:
-----------------------------------
Title:
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Schedule I
Number of
Name of Underwriter Offered Shares
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