Draft of September 22, 1997
Exhibit 1.2
BANKERS TRUST NEW YORK CORPORATION
Series Preferred Stock, Common Stock
and Depositary Shares
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Underwriting Agreement
Standard Provisions
(September 1997)
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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, in the form of Annex I hereto or otherwise, that provide for the
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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
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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, 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."
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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 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
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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.
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(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.
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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
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
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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
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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
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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
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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
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Depositary Receipts (provided that the Underwriters shall pay the New York State
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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,
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however, that the foregoing
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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
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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) 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
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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
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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
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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
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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.
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EXHIBIT A
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Opinion of Counsel to the Corporation
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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
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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.
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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,
000 Xxxxxxx 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 [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, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 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
----------------
XXXXX XX
---------
FORM OF DELAYED DELIVERY CONTRACT
___________, 19__
Bankers Trust New York Corporation,
000 Xxxxxxx 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, 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
