AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 17, 2002
Registration No. 333-
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
AND POST-EFFECTIVE AMENDMENT
UNDER THE SECURITIES ACT OF 1933
---------------------
THE BEAR STEARNS COMPANIES INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-3286161
(State or Other Jurisdiction of Incorporation or (I.R.S. Employer Identification No.)
Organization)
383 MADISON AVENUE
NEW YORK, NEW YORK 10179
(212) 272-2000
(Address, including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
SAMUEL L. MOLINARO JR.
CHIEF FINANCIAL OFFICER
THE BEAR STEARNS COMPANIES INC.
383 MADISON AVENUE
NEW YORK, NEW YORK 10179
(212) 272-2000
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
COPIES TO:
DENNIS J. BLOCK, ESQ.
CADWALADER, WICKERSHAM & TAFT
100 MAIDEN LANE
NEW YORK, NEW YORK 10038
(212) 504-6000
----------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At various
times after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box./X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / 333-___
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / 333-___
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED(1)(4) PER UNIT OFFERING PRICE(2) REGISTRATION FEE
Debt Securities and Warrants (3)
Preferred Stock
Depositary Shares (5)
Totals $10,086,693,162 $10,086,693,162 $920,000(6)
(1) In U.S. dollars or their equivalent in one or more foreign or composite
currencies.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The amount of debt securities and warrants to be registered is their issue
price plus the issue price of any warrants or the issue price of any debt
securities to be issued upon the exercise of the warrants and that amount
also includes any offers and sales of debt securities and warrants in
market-making transactions by Bear, Stearns & Co. Inc., an affiliate of the
Registrant.
(4) An indeterminate principal amount or number of debt securities, preferred
stock, warrants and depositary shares of The Bear Stearns Companies Inc. as
may from time to time be issued at indeterminate prices, with an aggregate
offering price not to exceed $10,000,000,000. Depositary receipts evidencing
the depositary shares will be issued pursuant to a deposit agreement. In the
event the Registrant elects to offer to the public fractional interests in
shares of preferred stock registered by this Registration Statement,
depositary receipts will be distributed to those persons purchasing
fractional interests and shares of preferred stock will be deposited with
the depositary under the deposit agreement.
(5) No additional consideration will be received for the depositary shares.
(6) Pursuant to Rule 429(b) under the Securities Act of 1933, this Registration
Statement includes debt securities, warrants, preferred stock and depositary
shares having an initial public offering price of $86,693,162 and previously
registered on Registration Statement No. 333-52902 filed by the Registrant
on Form S-3 and declared effective on January 11, 2001. In connection with
such amount of debt securities, warrants, preferred stock and depositary
shares previously registered on Registration Statement No. 333-52902, the
Registrant paid a fee of $2,000,000, of which $21,673 is attributable to the
$86,693,162 of securities being carried forward. In connection with this
Registration Statement, the Registrant is paying a fee based solely on the
additional debt securities, warrants, preferred stock and depositary shares
being registered and having an aggregate initial public offering price of
$10,000,000,000.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this Registration Statement is a combined Prospectus and relates
to this Registration Statement and Registration Statement No. 333-52902.
This Registration Statement also constitutes Post-Effective Amendment No. 1
to Registration Statement No. 333-52902 and such Post-Effective Amendment
shall hereafter become effective concurrently with the effectiveness of this
Registration Statement in accordance with Section 8(c) of the Securities Act
of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JANUARY 17, 2002
PROSPECTUS
THE BEAR STEARNS COMPANIES INC.
DEBT SECURITIES
WARRANTS
PREFERRED STOCK
DEPOSITARY SHARES
---------------------------------------------------
By this Prospectus, we intend to offer at one or
more times--
Debt Securities
Warrants to Purchase Debt Securities
Preferred Stock
Depositary Shares
in one or more series with an aggregate initial public
offering price of up to $10,086,693,162 (as described in the
applicable Prospectus Supplement).
----------------------------------------------------------------------------
We will provide the specific terms of these securities in
supplements to this Prospectus. You should read this
Prospectus and any supplements carefully before you invest
in the securities.
----------------------------------------------------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
BEAR, STEARNS & CO. INC.
THE DATE OF THIS PROSPECTUS IS , 2002.
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. YOU SHOULD ONLY RELY ON THE INFORMATION INCORPORATED BY REFERENCE OR
PROVIDED IN THIS PROSPECTUS OR ANY SUPPLEMENT TO THIS PROSPECTUS. WE HAVE NOT
AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. THESE
SECURITIES ARE NOT BEING OFFERED IN ANY STATE WHERE THE OFFER IS NOT PERMITTED.
YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY SUPPLEMENT
TO THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT
OF THOSE DOCUMENTS.
------------------------
TABLE OF CONTENTS
PAGE
--------
Where You Can Find More Information......................... 3
Certain Definitions......................................... 4
The Bear Stearns Companies Inc.............................. 4
Use of Proceeds............................................. 5
Ratio Information........................................... 5
Description of Debt Securities.............................. 6
Description of Warrants..................................... 13
Limitations on Issuance of Bearer Debt Securities and Bearer
Warrants.................................................. 16
Description of Preferred Stock.............................. 17
Description of Depositary Shares............................ 20
Book-Entry Procedures and Settlement........................ 24
Plan of Distribution........................................ 25
ERISA Considerations........................................ 27
Experts..................................................... 28
Validity of the Securities.................................. 28
2
WHERE YOU CAN FIND MORE INFORMATION
We file annual and quarterly reports, proxy statements and other information
required by the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), with the Securities and Exchange Commission (the "SEC"). You may read and
copy any of these filed documents at the SEC's public reference rooms located at
450 Fifth Street, N.W., Washington, D.C. 20549 and at Northwest Atrium Center,
5000 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference rooms.
Our SEC filings are also available to the public from the SEC's web site at
http://www.sec.gov. Copies of these reports, proxy statements and other
information can also be inspected at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York 10005.
We have filed with the SEC a registration statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the securities. This Prospectus, which
constitutes a part of that Registration Statement, does not include all the
information contained in that Registration Statement and its exhibits. For
further information with respect to the securities, you should consult the
Registration Statement and its exhibits.
Statements contained in this Prospectus concerning the provisions of any
documents are necessarily summaries of those documents, and each statement is
qualified in its entirety by reference to the copy of the document filed with
the SEC. The Registration Statement and any of its amendments, including
exhibits filed as a part of the Registration Statement or an amendment to the
Registration Statement, are available for inspection and copying through the
entities listed above.
The SEC allows us to "incorporate by reference" the information that we file
with them, which means that we can disclose important information to you by
referring you to the other information we have filed with the SEC. The
information that we incorporate by reference is considered to be part of this
Prospectus, and information that we file later with the SEC will automatically
update and supersede this information.
The following documents filed by us with the SEC pursuant to Section 13 of
the Exchange Act (File No. 1-8989) and any future filings under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act made before the termination of the
offering are incorporated by reference:
(1) the Annual Report on Form 10-K (including the portions of the
Company's Annual Report to Stockholders and Proxy Statement incorporated by
reference therein) for the fiscal year ended November 30, 2000;
(2) the Quarterly Reports on Form 10-Q for the quarters ended
February 23, 2001, May 25, 2001 and August 31, 2001; and
(3) the Current Reports on Form 8-K dated December 13, 2000, January 4,
2001, January 11, 2001, February 15, 2001, February 15, 2001, March 21,
2001, March 30, 2001, April 20, 2001, May 3, 2001, May 4, 2001, June 20,
2001, June 26, 2001, September 26, 2001, October 19, 2001, December 20,
2001, January 8, 2002 and January 8, 2002.
We will provide to you without charge, a copy of any or all documents
incorporated by reference into this Prospectus except the exhibits to those
documents (unless they are specifically incorporated by reference in those
documents). You may request copies by writing or telephoning us at our Corporate
Communications Department, The Bear Stearns Companies Inc., 383 Madison Avenue,
New York, New York 10179; telephone number (212) 272-2000.
3
CERTAIN DEFINITIONS
Unless otherwise stated in this Prospectus:
- the "Company," "we," "us" and "our" refer to The Bear Stearns
Companies Inc. and its subsidiaries;
- "AMEX" refers to the American Stock Exchange;
- "Bear Stearns" refers to Bear, Stearns & Co. Inc.;
- "BSB" refers to Bear Stearns Bank plc;
- "BSSC" refers to Bear, Stearns Securities Corp.;
- "BSIL" refers to Bear, Stearns International Limited;
- "DAISS-SM-" refers to Dutch Auction Internet Syndication System-SM-;
- "NASD" refers to the National Association of Securities Dealers, Inc.;
- "NYSE" refers to the New York Stock Exchange; and
- "securities" refers to the notes, warrants, preferred stock and depositary
shares described in this prospectus.
Bear Stearns, BSB, BSSC and BSIL are subsidiaries of The Bear Stearns
Companies Inc.
THE BEAR STEARNS COMPANIES INC.
We are a holding company that, through our subsidiaries, principally Bear
Stearns, BSSC, BSIL and BSB, is a leading investment banking, securities trading
and brokerage firm serving corporations, governments, institutional and
individual investors worldwide. BSSC, a subsidiary of Bear Stearns, provides
professional and correspondent clearing services, in addition to clearing and
settling our proprietary and customer transactions. Our business includes:
- market-making and trading in US government, government agency, corporate
debt and equity, mortgage-related, asset-backed and municipal securities;
- trading in options, futures, foreign currencies, interest rate swaps and
other derivative products;
- securities, options and futures brokerage;
- providing securities clearance services;
- managing equity and fixed income assets for institutional and individual
clients;
- financing customer activities;
- securities lending;
- securities and futures arbitrage;
- involvement in specialist activity on both the NYSE and the AMEX;
- underwriting and distributing securities;
- arranging for the private placement of securities;
- assisting in mergers, acquisitions, restructurings and leveraged
transactions;
- making principal investments in leveraged acquisitions;
- engaging in commercial real estate activities;
- investment management and advisory services; and
- advisory, fiduciary, custody, agency and securities research services.
Our business is conducted:
- from our principal offices in New York City;
- from domestic regional offices in Atlanta, Boston, Chicago, Dallas,
Denver, Los Angeles, San Francisco and San Juan;
4
- from representative offices in Beijing, Herzliya, Hong Kong, Milan, Sao
Paulo, Seoul and Shanghai;
- through international offices in Dublin, London, Lugano, Singapore and
Tokyo; and
- through joint ventures with other firms in Belgium, Greece and Spain.
Our international offices provide services and engage in investment activities
involving foreign clients and international transactions. Additionally, certain
of these foreign offices provide services to US clients. We provide
trust-company and clearance services through our subsidiary, Custodial Trust
Company, which is located in Princeton, New Jersey.
Bear Stearns and BSSC are broker-dealers registered with the SEC.
Additionally, Bear Stearns is registered as an investment advisor with the SEC.
Bear Stearns and/or BSSC are also members of the NYSE, all other principal US
securities and futures exchanges, the NASD, the Commodity Futures Trading
Commission, the National Futures Association and the International Stock
Exchange. Bear Stearns is a "primary dealer" in US government securities, as
designated by the Federal Reserve Bank of New York.
BSIL is a full service broker-dealer based in London and is a member of
Eurex (formerly the Deutsche Terminborse), the International Petroleum Exchange,
the London Commodity Exchange, the London International Financial Futures and
Options Exchange, the London Securities and Derivatives Exchange, Marche a Terme
International de France, SA and the London Clearing House. BSIL is supervised by
and regulated in accordance with the rules of the Financial Services Authority.
BSB is an Irish-based bank, which was incorporated in 1996 and subsequently
granted a banking license under the Irish Central Bank Act, 1971. BSB allows our
existing and prospective clients the opportunity of dealing with a banking
counterparty.
We are incorporated in the State of Delaware. Our principal executive office
is located at 383 Madison Avenue, New York, New York 10179 and our telephone
number is (212) 272-2000. Our Internet address is http://www.bearstearns.com.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, we
intend to use the net proceeds from the sale of the securities for general
corporate purposes, which may include additions to working capital, the
repayment of short-term and long-term debt and investments in, or extensions of
credit to, subsidiaries.
RATIO INFORMATION
The ratio of earnings to fixed charges was calculated by dividing the sum of
the fixed charges into the sum of the earnings before taxes and fixed charges.
The ratio of earnings to combined fixed charges and preferred dividends was
calculated by dividing the sum of fixed charges and preferred dividends into the
sum of earnings before taxes and fixed charges. Fixed charges for purposes of
the ratios consist of interest expense and certain other expenses. Preferred
dividends represent the pre-tax earnings necessary to cover the dividends on our
preferred stock, assuming such earnings are taxed at our consolidated effective
tax rate.
The table below presents the ratio of earnings to fixed charges and the
ratio of earnings to combined fixed charges and preferred dividends for the nine
months ended August 31, 2001 and August 25, 2000, the fiscal year ended
November 30, 2000, the five months ended November 26, 1999 and the fiscal years
ended June 30, 1999, 1998, 1997 and 1996.
NINE MONTHS ENDED FIVE MONTHS YEAR ENDED JUNE 30,
----------------------- YEAR ENDED ENDED -----------------------------------------
AUGUST 31, AUGUST 25, NOVEMBER 30, NOVEMBER 26,
2001 2000 2000 1999 1999 1998 1997 1996
---------- ---------- ------------ ------------ -------- -------- -------- --------
Ratio of earnings to fixed
charges..................... 1.2 1.3 1.2 1.3 1.3 1.3 1.4 1.4
Ratio of earnings to combined
fixed charges and preferred
dividends................... 1.2 1.2 1.2 1.3 1.3 1.3 1.4 1.4
5
DESCRIPTION OF DEBT SECURITIES
This section describes certain general terms and provisions of the debt
securities to which any Prospectus Supplement may relate. The particular terms
of any debt securities offered by a Prospectus Supplement and the extent to
which these general terms and provisions will not apply to the particular series
of debt securities being offered, will be described in the Prospectus Supplement
relating to that particular series of debt securities.
We will issue the debt securities under the Indenture, dated as of May 31,
1991, as amended (the "Indenture"), between us and JPMorgan Chase Bank
(formerly, The Chase Manhattan Bank), as trustee (the "Trustee").
The terms of the debt securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended. We have filed a copy of the Indenture as an exhibit to the
Registration Statement of which this Prospectus forms a part. A copy of the
Indenture is available as set forth under the section entitled "Where You Can
Find More Information."
This section, along with the description in the applicable Prospectus
Supplement, is a summary of the material provisions of the Indenture and is not
complete. It does not restate the Indenture in its entirety. We urge you to read
the Indenture because it, and not these descriptions, defines your rights as a
holder of debt securities.
GENERAL
We may offer debt securities for an aggregate principal amount of up to
$10,086,693,162 under this Prospectus. As of the date of this Prospectus, we
have issued approximately $69,877,479,650 aggregate principal amount of debt
securities under the Indenture, of which $22,398,967,175 is outstanding. The
Indenture permits us to:
- issue debt securities at various times in one or more series;
- issue an unlimited principal amount of debt securities;
- provide for the issuance of other debt securities under the Indenture
other than those authorized on the date of this Prospectus at various
times and without your consent; and
- "reopen" a previous issue of a series of debt securities and issue
additional debt securities of the series.
Unless we provide otherwise in an applicable Prospectus Supplement, we will
issue debt securities only in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000, and in bearer form with or without
coupons in the denomination of $5,000. If we issue bearer debt securities of a
series, we will describe the federal income tax consequences and other special
considerations applicable to those bearer debt securities in the Prospectus
Supplement relating to that series.
Unless we provide otherwise in the applicable Prospectus Supplement and
subject to any limitations in the Indenture, you may transfer or exchange your
registered securities at the corporate trust office or agency of the Trustee in
the City and State of New York without paying a service charge, other than
applicable tax or governmental charges. Bearer debt securities will be
transferable by delivery. We will describe the provisions relating to the
exchange of bearer debt securities of any series in the Prospectus Supplement
relating to that series.
If the principal, any premium or interest on the debt securities of any
series is payable in a foreign or composite currency, the applicable Prospectus
Supplement will describe any restrictions, elections, federal income tax
consequences, specific terms and other information that apply to those debt
securities and the currency.
6
We may sell one or more series of debt securities at a substantial discount
below the stated principal amount, bearing either no interest or interest at a
rate that at the time of issuance is below market rate. One or more series of
debt securities may be variable rate debt securities that may be exchanged for
fixed rate debt securities. We will describe the federal income tax consequences
and other special considerations applicable to a series in the Prospectus
Supplement relating to that series.
RANKING
The debt securities will be unsecured and will rank equally with all of our
other unsecured and unsubordinated indebtedness. We extend credit to our
subsidiaries at various times. Any credit we may extend to our subsidiaries may
be subordinated to the claims of unaffiliated creditors of those subsidiaries.
We are a holding company and depend on the earnings and cash flow of our
subsidiaries to meet our obligations under the debt securities. Because the
creditors of our subsidiaries generally would have a right to receive payment
superior to our right to receive payment from the assets of our subsidiaries,
the holders of our debt securities will effectively be subordinated to the
creditors of our subsidiaries. If we were to liquidate or reorganize, your right
to participate in any distribution of our subsidiaries' assets is necessarily
subject to the senior claims of the subsidiaries' creditors. Furthermore, the
Exchange Act and the rules of certain exchanges and other regulatory bodies, as
well as covenants governing certain indebtedness of our subsidiaries, impose net
capital requirements on some of our subsidiaries that limit their ability to pay
dividends or make loans and advances to us.
METHODS OF RECEIVING PAYMENT ON THE DEBT SECURITIES
REGISTERED DEBT SECURITIES. Unless we otherwise provide in the applicable
Prospectus Supplement, if the debt securities are in registered form, then the
principal, any premium and interest will be payable at the corporate trust
office or agency of the Trustee in the City and State of New York.
Interest payments made before maturity or redemption on registered debt
securities may be made:
- at our option, by check mailed to the address of the person entitled to
payment; or
- at your option, if you hold at least $10 million in principal amount of
registered debt securities, by wire transfer to an account you have
designated in writing at least 16 days before the date on which the
payment is due.
BEARER DEBT SECURITIES. Unless we provide otherwise in the applicable
Prospectus Supplement, if the debt securities are in bearer form, then the
principal, any premium and interest will be payable at the Trustee's office
located outside the United States that is maintained for this purpose. No
payment on a bearer debt security will be made by mail to a US address or by
wire transfer to an account maintained in the United States, or will otherwise
be made inside the United States, unless otherwise provided in the applicable
Prospectus Supplement.
NOTICES
REGISTERED DEBT SECURITIES. Unless otherwise provided in the applicable
Prospectus Supplement, any notice given to a holder of a registered debt
security will be mailed to the last address of such holder set forth in the
applicable security register.
BEARER DEBT SECURITIES. Any notice given to a holder of a bearer debt
security will be published in a daily newspaper of general circulation in the
city or cities specified in the Prospectus Supplement relating to such bearer
debt security.
7
GLOBAL SECURITIES
The debt securities may be issued in whole or in part in the form of one or
more global securities that will be deposited with, or on behalf of, a
depositary identified in the Prospectus Supplement relating to such series.
Global securities may be issued in either registered or bearer form and in
either temporary or definitive form.
Unless and until a global security is exchanged in whole or in part for the
applicable definitive debt securities, a global security may only be transferred
as a whole by:
- the depositary for the global security to a nominee of the depositary;
- a nominee of the depositary to the depositary or another nominee of the
depositary; or
- the depositary or any nominee of the depositary to a successor of the
depositary or a nominee of the successor.
Each Prospectus Supplement relating to a series will describe the specific
terms of the depositary arrangement with respect to the applicable debt
securities of that series. We anticipate that the following provisions will
apply to all depositary arrangements.
Once a global security is issued, the depositary will credit on its
book-entry system the respective principal amounts of the individual debt
securities represented by that global security to the accounts of institutions
that have accounts with the depositary. These institutions are known as
participants. The underwriters for the debt securities will designate the
accounts to be credited. However, if we have offered or sold the debt securities
either directly or through agents, we or the agents will designate the
appropriate accounts to be credited.
Ownership of beneficial interest in a global security will be limited to
participants or persons that may hold beneficial interests through participants.
Ownership of beneficial interest in a global security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the depositary's participants or persons that hold through participants. The
laws of some states require that certain purchasers of securities take physical
delivery of securities. Such limits and such laws may limit the market for
beneficial interests in a global security.
So long as the depositary for a global security, or its nominee, is the
registered owner of a global security, the depositary or nominee, as the case
may be, will be considered the sole owner or holder of the debt securities
represented by the global security for all purposes under the Indenture. Except
as provided below, owners of beneficial interests in a global security:
- will not be entitled to have debt securities represented by global
securities registered in their names;
- will not receive or be entitled to receive physical delivery of debt
securities in definitive form; and
- will not be considered the owners or holders of these securities under the
Indenture.
Subject to the restrictions discussed under the section entitled
"Limitations on Issuance of Bearer Debt Securities and Bearer Warrants,"
payments of principal, any premium and interest on the individual debt
securities registered in the name of the depositary or its nominee will be made
to the depositary or its nominee, as the case may be, as the holder of such
global security. Neither we nor the Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a global security, or for maintaining,
supervising or reviewing any records relating to beneficial ownership interests
and each of us and the Trustee may act or refrain from acting without liability
on any information provided by the depositary.
We expect that the depositary, after receiving any payment of principal, any
premium or interest in respect of a global security, will immediately credit the
accounts of the participants with payment in
8
amounts proportionate to their respective holdings in principal amount of
beneficial interest in a global security as shown on the records of the
depositary. We also expect that payments by participants to owners of beneficial
interests in a global security will be governed by standing customer
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such participants.
Receipt by owners of beneficial interests in a temporary global security of
payments of principal, any premium or interest relating to their interests will
be subject to the restrictions discussed under the section entitled "Limitations
on Issuance of Bearer Debt Securities and Bearer Warrants."
If interest is paid on a bearer global security, or if no interest has been
paid but the bearer global security remains outstanding beyond a reasonable
period of time after the restricted period (as defined in applicable US Treasury
regulations) has ended, the depositary must provide us with a certificate to the
effect that the owners of the beneficial interests in the bearer global security
are non-US persons or US persons that are permitted to hold bearer debt
securities under applicable US Treasury regulations.
In general, US persons that are permitted to hold bearer debt securities are
US persons who acquire the securities through the foreign branch of certain US
financial institutions and certain US financial institutions that hold the
bearer debt securities for resale to non-US persons or who hold the bearer debt
securities on their own account through a foreign branch. The certificate must
be provided within a reasonable period of time after the end of the restricted
period, but in no event later than the date when interest is paid. The
certificate must be based on statements provided to the depositary by the owners
of the beneficial interests.
If the depositary is at any time unwilling or unable or ineligible to
continue as depositary and we have not appointed a successor depositary within
90 calendar days, we will issue debt securities in certificated form in exchange
for all outstanding global securities.
In addition, we may at any time determine not to have debt securities
represented by a global security. In that event, we will issue debt securities
in definitive form in exchange for all global securities. An owner of a
beneficial interest in the global securities to be exchanged will be entitled to
delivery in definitive form of debt securities equal in principal amount to such
beneficial interest and to have such debt securities registered in its name.
Individual debt securities of the series so issued will be issued as:
(1) registered debt securities in denominations, unless we specify
otherwise, of $1,000 and integral multiples of $1,000 if the debt
securities of that series are issuable as registered debt securities;
(2) bearer debt securities in the denomination or denominations we have
specified if the debt securities of that series are issuable as bearer
debt securities; or
(3) either registered or bearer debt securities, if the debt securities of
that series are issuable in either form.
You should read the section entitled "Limitations on Issuance of Bearer Debt
Securities and Bearer Warrants" for a description of certain restrictions on the
issuance of individual bearer debt securities in exchange for beneficial
interests in a global security.
LIMITATION ON LIENS
We may not, and may not permit any of our Restricted Subsidiaries to, issue,
incur, assume, guarantee or suffer to exist any indebtedness for borrowed money
secured by a pledge of, lien on or security interest in any shares of voting
stock of any Restricted Subsidiary without effectively providing that the
securities issued under the Indenture, including the debt securities, will be
secured equally and ratably with such secured indebtedness.
9
The term "Restricted Subsidiary" as defined in the Indenture means Bear
Stearns, Custodial Trust Company, BSSC and any of our other subsidiaries owning,
directly or indirectly, any of the common stock of, or succeeding to a
significant portion of the business, property or assets of, a Restricted
Subsidiary, or with which a Restricted Subsidiary is merged or consolidated.
MERGER AND CONSOLIDATION
We may consolidate or merge with or into any other corporation, and may
sell, lease or convey all or substantially all of our assets to any corporation,
organized and existing under the laws of the United States or any US state, if:
(1) we or any other successor corporation shall not immediately after the
merger or consolidation be in default under the Indenture; and
(2) the continuing corporation (if other than us), or the resulting entity
that receives substantially all of our assets, shall expressly assume:
(a) payment of the principal of, and premium, if any, and interest on,
(and any additional amounts payable in respect of) the debt
securities and
(b) performance and observance of all of the covenants and conditions of
the Indenture to be performed or observed by us.
Unless otherwise provided in the applicable Prospectus Supplement, the
Indenture permits:
- a consolidation, merger, sale of assets or other similar transaction that
may adversely affect our creditworthiness or that of a successor or
combined entity;
- a change in control; or
- a highly leveraged transaction involving us, whether or not involving a
change in control;
and the Indenture, therefore, will not protect holders of the debt securities
from the substantial impact that any of the transactions described above may
have on the value of the debt securities.
MODIFICATION AND WAIVER
With the consent of the holders of 66 2/3% in principal amount of the
outstanding debt securities of each series affected, we and the Trustee may
modify or amend the Indenture, without the consent of each holder of the
outstanding debt security affected, unless the modification or amendment:
- changes the stated maturity or the date of any installment of principal
of, or interest on, any debt security or changes its redemption price or
optional redemption price;
- reduces the principal amount of, or the rate of interest on, or the amount
of any additional amount payable on, any debt security, or reduces the
amount of principal that could be declared due and payable before the
stated maturity of that debt security, or changes our obligation to pay
any additional amounts (except as permitted under the Indenture), or
reduces the amount of principal of a discount security that would be due
and payable if accelerated under the Indenture;
- changes the place or currency of any payment of principal, premium, if
any, or interest on any debt security;
- impairs the right to institute suit for the enforcement of any payment on
or with respect to any debt security;
- reduces the percentage in principal amount of the outstanding debt
securities of any series, the consent of whose holders is required to
modify or amend the Indenture; or
10
- modifies the foregoing requirements or reduces the percentage of
outstanding debt securities necessary to waive any past default to less
than a majority.
We may make any of these amendments or modifications, however, with the consent
of the holder of each outstanding debt security affected.
Except with respect to certain fundamental provisions of which a default
would require the consent of the holders of each outstanding security of a
series affected to waive, the holders of at least a majority in principal amount
of outstanding debt securities of any series may, with respect to that series,
waive past defaults under the Indenture and waive compliance with certain
provisions of the Indenture, either in a specific instance or generally.
EVENTS OF DEFAULT
Under the Indenture, an "Event of Default" with respect to any series of
debt securities means:
(1) a failure to pay any interest, or any additional amounts payable, on any
debt securities of that series for 30 days after payment is due;
(2) a failure to pay the principal of, and premium, if any, on any debt
security of that series when due;
(3) a failure to deposit any sinking fund payment when due relating to that
series;
(4) a failure to perform any other covenant contained in the Indenture or
relating to that series that has continued for 60 days after written
notice was provided;
(5) a failure lasting 10 days after notice relating to any of our other
indebtedness for borrowed money or indebtedness of any Restricted
Subsidiary in excess of $10 million, that results in such indebtedness
becoming due and payable before maturity;
(6) certain events of bankruptcy, insolvency or reorganization; and
(7) any other Event of Default with respect to debt securities of that
series.
CONCERNING THE TRUSTEE
Within 90 days after any default, the Trustee will notify you of the
default, unless the default is cured or waived.
The Trustee may withhold notice of a default (except a default relating to
the payment of principal, premium or interest, or any additional amounts related
to any debt security or the payment of any sinking fund installment), if the
Trustee in good faith determines that withholding notice is in your interests.
If a default in the performance or breach of any covenant in the Indenture
or relating to that series occurs and continues for 60 days after written notice
has been given to us or the Trustee by the holders of at least 25% in principal
amount of the outstanding debt securities of a series, the Trustee will not give
notice to the holders for at least an additional 30 days after such default.
If an event of default for any series of debt securities occurs and
continues, the Trustee or the holders of 25% of the aggregate principal amount
(or any lesser amount that the series may provide) of the outstanding debt
securities affected by the default may require us to immediately repay the
entire principal amount (or any lesser amount that the series may provide) of
the outstanding debt securities of such series.
So long as the Trustee has not yet obtained a judgment or decree for payment
of money due, and we have paid all amounts due (other than those due solely as a
result of acceleration) and have remedied all Events of Default, the holders of
a majority in principal amount of the outstanding debt securities of the
affected series may rescind any acceleration or may waive any past default.
However,
11
the holders of a majority in principal amount of all outstanding debt securities
of the affected series may not waive any Event of Default with respect to any
series of debt securities in the following two circumstances:
- a failure to pay the principal of, and premium, if any, or interest on, or
any additional amounts payable in respect of, any debt security of that
series for which payment had not been subsequently made; or
- a covenant or provision that cannot be modified or amended without the
consent of each holder of outstanding debt security of that series.
The holders of a majority in principal amount of the outstanding debt
securities of a series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to debt securities of that series,
provided that this direction is not in conflict with any rule of law or the
Indenture. Before proceeding to exercise any right or power under the Indenture
at the direction of those holders, the Trustee will be entitled to receive from
those holders reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in complying with any such direction.
We are required to deliver to the Trustee an annual statement as to our
fulfillment of all of our obligations under the Indenture.
DEFEASANCE
If provided for under the Indenture with respect to debt securities of any
series that are registered debt securities denominated and payable only in US
dollars (except as otherwise provided under the Indenture), we will:
- be discharged from any and all obligations in respect of the debt
securities of that series under the Indenture (except for certain
obligations to register the transfer or exchange of debt securities of
that series, replace stolen, lost or mutilated debt securities of that
series, maintain paying agents and hold moneys for payment in trust) on
the 91st day after the applicable conditions described in this paragraph
have been satisfied; or
- not be subject to provisions of the Indenture described above under the
subsections entitled "--Limitation on Liens" and "--Merger and
Consolidation" with respect to the debt securities of that series;
in each case if we deposit with the Trustee, in trust, money or US government
obligations that, through the payment of interest and principal in accordance
with their terms, will provide money in an amount sufficient to pay all the
principal (including any mandatory sinking fund payments) of, and premium, if
any, and any interest on, the debt securities of that series on the dates such
payments are due in accordance with the terms of those debt securities.
To exercise either option, we are required to deliver to the Trustee an
opinion of counsel to the effect that:
(1) the deposit and related defeasance would not cause the holders of the
debt securities of the series being defeased to recognize income, gain or
loss for US federal income tax purposes; and
(2) if the debt securities of that series are then listed on the NYSE, the
exercise of the option would not result in delisting.
We may specify defeasance provisions with respect to any series of debt
securities.
12
DESCRIPTION OF WARRANTS
This section sets forth certain general terms and provisions of the warrants
to which any Prospectus Supplement may relate. The particular terms of the
warrants offered by any Prospectus Supplement and the extent to which such
general terms and provisions will not apply to the warrants so offered will be
described in the Prospectus Supplement relating to those warrants.
We may issue warrants for the purchase of debt securities, warrants to buy
or sell debt securities of or guaranteed by the United States or other sovereign
states ("Government debt securities"), warrants to buy or sell currencies,
currency units or units of a currency index or currency basket, warrants to buy
or sell units of a stock index or stock basket and warrants to buy and sell a
commodity or units of a commodity index or basket. Warrants may be offered
independently of or together with any series of debt securities and may be
attached to or separate from those debt securities. The warrants will be settled
either through physical delivery or through payment of a cash settlement value
as set forth in this Prospectus and in any applicable Prospectus Supplement.
Each series of warrants will be issued under a separate warrant agreement to
be entered into between us and a bank or a trust company, as warrant agent, all
as described in the Prospectus Supplement relating to that series of warrants.
The warrant agent will act solely as our agent under the applicable warrant
agreement and in connection with the certificates for any warrants of that
series, and will not assume any obligation or relationship of agency or trust
for or with any holders of those warrant certificates or beneficial owners of
those warrants.
This section, along with the description in the applicable Prospectus
Supplement, is a summary of certain provisions of the forms of warrant
agreements and warrant certificates and is not complete. We urge you to read the
warrant agreements and the warrant certificates, because those documents, and
not these descriptions, define your rights as a holder of warrants. We have
filed copies of the forms of the warrant agreements and warrant certificates as
exhibits to the Registration Statement of which this Prospectus is a part.
Copies of the forms of warrant agreements and warrant certificates are available
as set forth under the section entitled "Where You Can Find More Information."
GENERAL
The terms of any particular series of warrants will be described in the
Prospectus Supplement relating to that particular series of warrants, including,
where applicable:
(1) whether the warrant is for debt securities, Government debt securities,
currencies, currency units, currency indices or currency baskets, stock
indices, stock baskets, commodities, commodity indices or any other index
or reference as described in the warrant;
(2) the offering price;
(3) the currency, currency unit, currency index or currency basket based on
or relating to currencies for which those warrants may be purchased;
(4) the date on which the right to exercise those warrants will commence and
the date on which that right will expire;
(5) whether those warrants are to be issuable in registered or bearer form;
(6) whether those warrants are extendible and the period or periods of such
extendibility;
(7) the terms upon which bearer warrants of any series may be exchanged for
registered warrants of that series;
(8) whether those warrants will be issued in book-entry form, as a global
warrant certificate, or in certificated form;
(9) US federal income tax consequences applicable to those warrants; and
13
(10) any other terms of those warrants not inconsistent with the applicable
warrant agreement.
If the offered warrants are to purchase debt securities, the Prospectus
Supplement will also describe:
(1) the designation, aggregate principal amount, currency, currency unit or
currency basket and other terms of the debt securities purchasable upon
exercise of those warrants;
(2) the designation and terms of the debt securities with which those
warrants are issued and the number of those warrants issued with each
such debt security;
(3) the date or dates on and after which those warrants and the related debt
securities will be separately transferable; and
(4) the principal amount of debt securities purchasable upon exercise of one
offered warrant and the price at which and currency, currency unit or
currency basket in which such principal amount of debt securities may be
purchased upon such exercise.
Before you exercise your warrants, you will not have any of the rights of
holders of the debt securities of the series purchasable upon such exercise,
including the right to receive payments of principal, any premium or interest on
those debt securities, or to enforce any of the covenants in the Indenture.
If the offered warrants are to buy or sell Government debt securities or a
currency, currency unit, currency index or currency basket, the Prospectus
Supplement will describe:
- the amount and designation of the Government debt securities or currency,
currency unit, currency index or currency basket, as the case may be,
subject to each warrant; and
- whether those warrants provide for cash settlement or delivery of the
Government debt securities or currency, currency unit, currency index or
currency basket upon exercise.
If the offered warrants are warrants on a stock index or a stock basket,
they will provide for payment of an amount in cash that will be determined by
reference to increases or decreases in such stock index or stock basket. The
Prospectus Supplement will describe:
- the terms of those warrants;
- the stock index or stock basket covered by those warrants; and
- the market to which the stock index or stock basket relates.
If the offered warrants are warrants on a commodity or commodity index,
those warrants will provide for cash settlement or delivery of the particular
commodity or commodity index. The Prospectus Supplement will describe:
- the terms of those warrants;
- the commodity or commodity index covered by those warrants; and
- any market to which the commodity or commodity index relates.
You may exchange registered warrants of any series for registered warrants
of the same series representing in total the number of warrants that you have
surrendered for exchange. To the extent permitted, you may exchange warrant
certificates and transfer registered warrants at the corporate trust office of
the warrant agent for that series of warrants (or any other office indicated in
the Prospectus Supplement relating to that series of warrants).
As the applicable Prospectus Supplement permits, a single global warrant
certificate, registered in the name of the nominee of the depository of the
warrants, or definitive certificates that may be
14
exchanged on a fixed date, or on a date or dates selected by us, for interests
in a global warrant certificate may be issued for:
- warrants to buy or sell Government debt securities or a currency, currency
unit, currency index or currency basket; and
- warrants on stock indices or stock baskets or on commodities or commodity
indices.
Bearer warrants will be transferable by delivery. The applicable Prospectus
Supplement will describe the terms of exchange applicable to any bearer
warrants.
EXERCISE OF WARRANTS
As set forth in, or calculable from, the Prospectus Supplement relating to
each series of warrants, each warrant you purchase will entitle you to:
- buy the equivalent amount of the debt securities;
- buy or sell the equivalent amount of Government debt securities;
- buy or sell the equivalent amount of a currency, currency unit, currency
index or currency basket, commodity or commodities at the exercise price;
- receive a settlement value for the equivalent amount of Government debt
securities; or
- receive a settlement value for the equivalent amount of a currency,
currency unit, currency index or currency basket, stock index or stock
basket, commodity or commodity index.
You may exercise your warrants at the corporate trust office of the warrant
agent (or any other office indicated in the Prospectus Supplement relating to
those warrants) up to 5:00 p.m., New York time, on the date stated in the
Prospectus Supplement relating to those warrants or as may be otherwise stated
in the Prospectus Supplement. If you do not exercise your warrants before the
time on that date (or such later date that we may set), your unexercised
warrants will become void.
Subject to any restrictions and additional requirements that may be set
forth in the Prospectus Supplement, you may exercise your warrants by:
- delivery to the warrant agent of the warrant certificate evidencing such
warrants properly completed and duly executed; and
- payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the debt securities, or (except in the case of
warrants providing for cash settlement) payment for or delivery of the
Government debt securities or currency, currency unit, currency basket,
stock index, stock basket, commodity or commodity index, as the case may
be, purchased or sold upon such exercise.
Only registered debt securities will be issued and delivered upon exercise
of registered warrants. Warrants will be deemed to have been exercised upon
receipt of such warrant certificate and any payment, if applicable, at the
corporate trust office of the warrant agent or any other office indicated in the
applicable Prospectus Supplement and we will, as soon as practicable after such
receipt and payment, issue and deliver the debt securities purchasable upon such
exercise, or buy or sell such Government debt securities or currency, currency
unit, currency basket, commodity or commodities or pay the settlement value in
respect of the warrants.
If fewer than all of the warrants represented by such warrant certificate
are exercised, a new warrant certificate will be issued for the remaining amount
of the warrants. Special provisions relating to the exercise of any bearer
warrants or automatic exercise of warrants will be described in the applicable
Prospectus Supplement.
15
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES AND BEARER WARRANTS
In compliance with U.S. federal income tax laws and regulations, bearer debt
securities, including bearer debt securities in global form, will not be
offered, sold, resold or delivered, directly or indirectly, in the United States
or its possessions or to "United States Persons," as defined below, except as
otherwise permitted by certain U.S. Treasury regulations. Any underwriters,
dealers or agents participating in the offerings of bearer debt securities,
directly or indirectly, must agree that they will not, in connection with the
original issuance of any bearer debt securities or during the "restricted
period" (as defined in the Treasury regulations) offer, sell, resell or deliver,
directly or indirectly, any bearer debt securities in the United States or to
United States Persons, other than as permitted by the Treasury regulations. In
addition, any underwriters, dealers or agents must have procedures reasonably
designed to ensure that their employees or agents who are directly engaged in
selling bearer debt securities are aware of the restrictions on the offering,
sale, resale or delivery of bearer debt securities.
We will not deliver a bearer debt security (other than a temporary global
bearer debt security) in connection with its original issuance or pay interest
on any bearer debt security until we have received the written certification
provided for in the indenture. Each bearer debt security, other than a temporary
global bearer debt security, will bear the following legend on the face of the
security and on any interest coupons that may be detachable:
"Any United States person who holds this obligation will be subject to
limitations under the U.S. income tax laws, including the limitations provided
in Sections 165(j) and 1287(a) of the Internal Revenue Code."
The legend also will be evidenced on any book-entry system maintained with
respect to the bearer debt securities.
The sections referred to in the legend provide, in general, that a U.S.
taxpayer who holds a bearer security or coupon may not deduct any loss realized
on the sale, exchange or redemption of the bearer security and any gain which
otherwise would be treated as capital gain will be treated as ordinary income,
unless the taxpayer is, or holds the bearer security or coupon through, a
"financial institution" (as defined in the relevant Treasury regulations) and
certain other conditions are satisfied.
For these purposes, "United States" means the United States of America
(including the District of Columbia), and its possessions. "United States
Person" generally means:
- a citizen or resident of the United States;
- a corporation, partnership, or other business entity created or organized
in or under the laws of the United States or any State or political
subdivision thereof (including the District of Columbia);
- an estate whose income is subject to U.S. federal income taxation
regardless of its source; or
- a trust, if a court within the United States is able to exercise primary
supervision over its administration, and one or more United States Persons
have the authority to control all of its substantial decisions.
The Prospectus Supplement relating to bearer warrants will describe any
limitations on the offer, sale, delivery and exercise of bearer warrants
(including a requirement that a certificate of non-U.S. beneficial ownership be
delivered once a bearer warrant is exercised).
16
DESCRIPTION OF PREFERRED STOCK
This section sets forth certain general terms and provisions of the
preferred stock to which any Prospectus Supplement may relate. The particular
terms of the preferred stock offered by any Prospectus Supplement and the
extent, if any, to which such general terms will not apply to the preferred
stock so offered will be described in the Prospectus Supplement relating to such
preferred stock.
This section, along with the description in the applicable Prospectus
Supplement, is a summary of certain provisions of our restated certificate of
incorporation, as amended, including the applicable certificate of designations,
and is not complete.
We urge you to read the restated certificate of incorporation, as amended,
and the certificate of designations for the relevant series of preferred stock
in which you are intending to invest, because those documents, and not these
descriptions, define your rights as a holder of preferred stock. We have filed a
copy of the restated certificate of incorporation, as amended, and the
certificates of designations for our currently outstanding shares of preferred
stock as exhibits to the Registration Statement of which this Prospectus is a
part. Copies of the restated certificate of incorporation, as amended, are
available as set forth under the section entitled "Where You Can Find More
Information."
GENERAL
Our restated certificate of incorporation, as amended, authorizes the
issuance of 10,000,000 shares of preferred stock, $1.00 par value. We may issue
preferred stock from time to time in one or more series. The exact terms of each
series will be established by our board of directors or a duly authorized
committee of the board.
The terms of any particular series of preferred stock will be described in
the Prospectus Supplement relating to that particular series of preferred stock,
including, where applicable:
(1) the designation, stated value and liquidation preference of such
preferred stock and the number of shares offered;
(2) the offering price;
(3) the dividend rate or rates (or method of calculation), the date or dates
from which dividends shall accrue, and whether such dividends shall be
cumulative or noncumulative and, if cumulative, the dates from which
dividends shall commence to cumulate;
(4) any redemption or sinking fund provisions;
(5) the amount that shares of such series shall be entitled to receive in
the event of our liquidation, dissolution or winding up;
(6) the terms and conditions, if any, on which shares of such series shall
be exchangeable for shares of our stock of any other class or classes, or
other series of the same class;
(7) the voting rights, if any, of shares of such series in addition to those
set forth in "Voting Rights" below;
(8) the status as to reissuance or sale of shares of such series redeemed,
purchased or otherwise reacquired, or surrendered to us on conversion or
exchange;
(9) the conditions and restrictions, if any, on the payment of dividends or
on the making of other distributions on, or the purchase, redemption or
other acquisition by us or any subsidiary, of the common stock or of any
other class of our stock ranking junior to the shares of such series as
to dividends or upon liquidation;
17
(10) the conditions and restrictions, if any, on the creation of
indebtedness of us or of any subsidiary, or on the issue of any
additional stock ranking on a parity with or prior to the shares of such
series as to dividends or upon liquidation; and
(11) any additional dividend, liquidation, redemption, sinking or retirement
fund and other rights, preferences, privileges, limitations and
restrictions of such preferred stock.
The preferred stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the applicable Prospectus Supplement, the shares
of each series of preferred stock will upon issuance rank senior to the common
stock and on a parity in all respects with each other outstanding series of
preferred stock. As of November 30, 2001, there were outstanding:
- 479,250 shares of Adjustable Rate Cumulative Preferred Stock, Series A;
- 5,000,000 depositary shares, each representing a one-fourth interest in a
share of 6.15% Cumulative Preferred Stock, Series E;
- 4,000,000 depositary shares, each representing a one-fourth interest in a
share of 5.72% Cumulative Preferred Stock, Series F; and
- 4,000,000 depositary shares, each representing a one-fourth interest in a
share of 5.49% Cumulative Preferred Stock, Series G.
The preferred stock will have no preemptive rights to subscribe for any
additional securities that may be issued by us.
DIVIDENDS
Unless otherwise specified in the applicable Prospectus Supplement, before
any dividends may be declared or paid to the holders of shares of our common
stock, par value $1.00 per share, or of any other of our capital stock ranking
junior to any series of the preferred stock as to the payment of dividends, the
holders of the preferred stock of that series will be entitled to receive, when
and as declared by the board of directors or a duly authorized committee of the
board, out of the our net profits or net assets legally available therefor,
dividends payable quarterly on January 15, April 15, July 15 and October 15, in
each year at such rates as will be specified in the applicable Prospectus
Supplement. Such rates may be fixed or variable or both. If variable, the
formula used for determining the dividend rate for each dividend period will be
specified in the applicable Prospectus Supplement. Dividends will be payable to
the holders of record as they appear on our stock transfer records on such dates
(not less than 15 days nor more than 60 days prior to a dividend payment date)
as will be fixed by the board of directors or a duly authorized committee
thereof. Dividends will be paid in the form of cash.
Dividends on any series of preferred stock may be cumulative or
noncumulative, as specified in the applicable Prospectus Supplement. If the
board of directors fails to declare a dividend payable on a dividend payment
date on any series of preferred stock for which dividends are noncumulative,
then the holders of the preferred stock of that series will have no right to
receive a dividend in respect of the dividend period relating to such dividend
payment date, and we will have no obligation to pay the dividend accrued for
such period, whether or not dividends on that series are declared or paid on any
future dividend payment dates. If dividends on any series of preferred stock are
not paid in full or declared in full and sums set apart for the payment thereof,
then no dividends shall be declared and paid on that series unless declared and
paid ratably on all shares of every series of preferred stock then outstanding,
including dividends accrued or in arrears, if any, in proportion to the
respective amounts that would be payable per share if all such dividends were
declared and paid in full.
The Prospectus Supplement relating to a series of preferred stock will
specify the conditions and restrictions, if any, on the payment of dividends or
on the making of other distributions on, or the purchase, redemption or other
acquisition by us or any of our subsidiaries of, the common stock or of
18
any other class of our stock ranking junior to the shares of that series as to
dividends or upon liquidation and any other preferences, rights, restrictions
and qualifications that are not inconsistent with the certification of
incorporation.
LIQUIDATION RIGHTS
Unless otherwise specified in the Prospectus Supplement relating to a series
of preferred stock, upon our liquidation, dissolution or winding up (whether
voluntary or involuntary) the holders of preferred stock of that series will be
entitled to receive out of our assets available for distribution to our
stockholders, whether from capital, surplus or earnings, the amount specified in
the applicable Prospectus Supplement for that series, together with all
dividends accrued and unpaid, before any distribution of the assets will be made
to the holders of common stock or any other class or series of shares ranking
junior to that series of preferred stock upon liquidation, dissolution or
winding up, and will be entitled to no other or further distribution. If, upon
our liquidation, dissolution or winding up the assets distributable among the
holders of a series of preferred stock shall be insufficient to permit the
payment in full to the holders of that series of preferred stock of all amounts
payable to those holders, then the entire amount of our assets thus
distributable will be distributed ratably among the holders of that series of
preferred stock in proportion to the respective amounts that would be payable
per share if those assets were sufficient to permit payment in full.
Neither our consolidation, merger or other business combination with or into
any other individual, firm, corporation or other entity nor the sale, lease,
exchange or conveyance of all or any part of our property, assets or business
will be deemed to be a liquidation, dissolution or winding up.
REDEMPTION
If so specified in the applicable Prospectus Supplement, any series of
preferred stock may be redeemable, in whole or in part, at our option or
pursuant to a retirement or sinking fund or otherwise, on terms and at the times
and the redemption prices specified in that Prospectus Supplement. If less than
all shares of the series at the time outstanding are to be redeemed, the shares
to be redeemed will be selected pro rata or by lot, in such manner as may be
prescribed by resolution of the board of directors.
Notice of any redemption of a series of preferred stock will be given by
publication in a newspaper of general circulation in the Borough of Manhattan,
the City of New York, not less than 30 nor more than 60 days prior to the
redemption date. We will mail a similar notice, postage prepaid, not less than
30 nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of shares of that series at the addresses shown on
our stock transfer records, but the mailing of such notice will not be a
condition of such redemption. In order to facilitate the redemption of shares of
preferred stock, the board of directors may fix a record date for the
determination of the shares to be redeemed. Such record date will be not more
than 60 days nor less than 30 days prior to the redemption date.
Prior to the redemption date, we will deposit money for the payment of the
redemption price with a bank or trust company doing business in the Borough of
Manhattan, the City of New York, and having a capital and surplus of at least
$10,000,000. Unless we fail to make such deposit, on the redemption date, all
dividends on the series of preferred stock called for redemption will cease to
accrue and all rights of the holders of shares of that series as our
stockholders shall cease, except the right to receive the redemption price (but
without interest). Unless otherwise specified in the applicable Prospectus
Supplement, any monies so deposited which remain unclaimed by the holders of the
shares of that series at the end of six years after the redemption date will
become our property, and will be paid by the bank or trust company with which it
has been so deposited to us.
19
CONVERSION RIGHTS
No series of preferred stock will be convertible into common stock.
VOTING RIGHTS
Unless otherwise determined by the board of directors and indicated in the
applicable Prospectus Supplement, holders of the preferred stock of that series
will not have any voting rights except as set forth below or as otherwise from
time to time required by law. Whenever dividends on any series of preferred
stock or any other class or series of stock ranking on a parity with that series
with respect to the payment of dividends shall be in arrears for dividend
periods, whether or not consecutive, containing in the aggregate a number of
days equivalent to six calendar quarters, the holders of shares of that series
(voting separately as a class with all other series of preferred stock upon
which like voting rights have been conferred and are exercisable) will be
entitled to vote for the election of two of the authorized number of our
directors at the next annual meeting of stockholders and at each subsequent
meeting until all dividends accumulated on that series have been fully paid or
set apart for payment. The term of office of all directors elected by the
holders of a series of preferred stock shall terminate immediately upon the
termination of the right of the holders of that series to vote for directors.
Whenever the shares of a series are or become entitled to vote, each holder of
shares of that series will have one vote for each share held.
So long as shares of any series of preferred stock remain outstanding, we
shall not, without the consent of the holders of at least two-thirds of the
shares of that series outstanding at the time (voting separately as a class with
all other series of preferred stock upon which like voting rights have been
conferred and are exercisable):
(1) issue or increase the authorized amount of any class or series of stock
ranking senior to the shares of that series as to dividends or upon
liquidation; or
(2) amend, alter or repeal the provisions of our certificate of
incorporation or of the resolutions contained in the certificate of
designation, whether by merger, consolidation or otherwise, so as to
materially and adversely affect any power, preference or special right of
the outstanding shares of that series or the holders thereof. Any
increase in the amount of the authorized common stock or authorized
preferred stock or the creation and issuance of common stock or any other
series of preferred stock ranking on a parity with or junior to a series
of preferred stock as to dividends and upon liquidation shall not be
deemed to materially and adversely affect the powers, preferences or
special rights of the shares of that series.
Unless otherwise indicated in the applicable Prospectus Supplement, the
transfer agent, dividend disbursing agent and registrar for each series of
preferred stock will be Mellon Investor Services L.L.C.
DESCRIPTION OF DEPOSITARY SHARES
This section sets forth certain general terms and provisions of the
depositary shares and depositary receipts which we may elect to issue.
This section, along with the description in the applicable Prospectus
Supplement, is a summary of certain provisions of the deposit agreement relating
to the applicable series of Preferred Stock and is not complete. Any such
deposit agreement will be filed as an exhibit to or incorporated by reference in
the Registration Statement of which this Prospectus is a part.
GENERAL
We may, at our option, elect to offer fractional interests in shares of a
series of preferred stock, rather than whole shares. If we exercise our option,
we will provide for the issuance by a depositary of depositary receipts
evidencing depositary shares, each of which will represent a fractional interest
(to be
20
specified in the applicable Prospectus Supplement) in a share of a particular
series of the Preferred Stock as more fully described below.
If we offer fractional shares of any series of preferred stock, those shares
will be deposited under a separate deposit agreement among us, a depositary bank
or trust company selected by us and having its principal office in the United
States and having a combined capital and surplus of at least $50,000,000 and the
holders from time to time of the depositary receipts issued thereunder by that
depositary. The applicable Prospectus Supplement will set forth the name and
address of the depositary. Subject to the terms of the deposit agreement, each
owner of a depositary share will be entitled, in proportion to the applicable
fractional interest in a share of preferred stock underlying such depositary
share, to all the rights and preferences of the fractional share of preferred
stock underlying such depositary share (including dividend, voting, redemption
and liquidation rights).
Until definitive engraved depositary receipts are prepared, upon our written
order, the depositary may issue temporary depositary receipts substantially
identical to (and entitling the holders thereof to all the rights pertaining to)
the definitive depositary receipts but not in definitive form. Definitive
depositary receipts will be prepared thereafter without unreasonable delay.
Temporary depositary receipts will be exchangeable for definitive depositary
receipts at our expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute to the holders of depositary receipts
evidencing depositary shares all cash dividends or other cash distributions
received in respect of the underlying fractional shares of preferred stock in
proportion to their respective holdings of the depositary shares on the relevant
record date. The depositary will distribute only the amount that can be
distributed without attributing to any holder of depositary shares a fraction of
one cent. Any balance not so distributed will be held by the depositary (without
liability for interest thereon) and will be added to and treated as part of the
next sum received by the depositary for distribution to holders of depositary
receipts then outstanding.
If we distribute property other than cash in respect of shares of preferred
stock deposited under a deposit agreement, the depositary will distribute the
property received by it to the record holders of depositary receipts evidencing
the depositary shares relating to those shares of preferred stock, in
proportion, as nearly as may be practicable, to their respective holdings of the
depositary shares on the relevant record dates. If the depositary determines
that it is not feasible to make such a distribution, the depositary may, with
our approval, adopt such method as it deems equitable and practicable to give
effect to the distribution, including the sale of the property so received and
distribution of the net proceeds from such sale to the holders of the depositary
receipts.
Each deposit agreement will also contain provisions relating to the manner
in which any subscription or similar right offered by us to holders of the
preferred stock deposited under such deposit agreement will be made available to
holders of depositary shares.
REDEMPTION OF DEPOSITARY SHARES
If the shares of preferred stock deposited under a deposit agreement are
subject to redemption, in whole or in part, then, upon any such redemption, the
depositary shares relating to those deposited shares will be redeemed from the
proceeds received by the depositary as a result of the redemption. Whenever we
redeem shares of preferred stock held by a depositary, the depositary will
redeem as of the same redemption date the number of depositary shares
representing the shares of preferred stock so redeemed. The depositary will mail
the notice of redemption not less than 20 and not more than 50 days prior to the
date fixed for redemption to the record holders of the depositary shares to be
so redeemed. The redemption price per depositary share will be equal to the
applicable fraction of the per share redemption price of the preferred stock
underlying such depositary share. If less than all the depositary shares are to
be redeemed, the depositary shares to be redeemed will be selected by lot or pro
rata as may be determined by the depositary.
21
Once notice of redemption has been given, from and after the redemption
date, the depositary shares called for redemption will no longer be deemed to be
outstanding, unless we fail to redeem the shares of preferred stock so called
for redemption. On the redemption date, all rights of the holders of depositary
shares will cease, except for the right to receive the monies payable upon such
redemption and any money or other property to which the holders of depositary
shares were entitled upon such redemption, upon surrender to the depositary of
the depositary receipts evidencing depositary shares.
VOTING RIGHTS
As soon as practicable after receipt of notice of any meeting at which the
holders of shares of preferred stock deposited under a deposit agreement are
entitled to vote, the depositary will mail the information contained in that
notice of meeting (and any accompanying proxy materials) to the holders of the
depositary shares relating to such preferred stock as of the record date for
such meeting. Each such holder will be entitled, subject to any applicable
restrictions, to instruct the depositary as to the exercise of the voting rights
of the preferred stock represented by such holder's depositary shares. The
depositary will attempt to vote the preferred stock represented by those
depositary shares in accordance with the holder's instructions, and we will
agree to take all action deemed necessary by the depositary to enable the
depositary to do so. The depositary will abstain from voting shares of preferred
stock deposited under a deposit agreement if it has not received specific
instructions from the holders of the depositary shares representing those
shares.
WITHDRAWAL OF STOCK
Upon surrender of depositary receipts at the principal office of the
depositary (unless the depositary shares evidenced by the depositary receipts
have previously been called for redemption), and subject to the terms of the
deposit agreement, the owner of the depositary shares shall be entitled to
delivery of whole shares of preferred stock and all money and other property, if
any, represented by those depositary shares. Fractional shares of preferred
stock will not be delivered. If the depositary receipts surrendered by the
holder evidence depositary shares in excess of those representing the number of
whole shares of preferred stock to be withdrawn, the depositary will deliver to
the holder at the same time a new depositary receipt evidencing the depositary
shares. Holders of shares of preferred stock which are withdrawn will not
thereafter be entitled to deposit such shares under a deposit agreement or to
receive depositary shares. We do not expect that there will be any public
trading market for the preferred stock, except as represented by depositary
shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
We may from time to time amend the form of depositary receipt evidencing any
depositary shares and any provision of a deposit agreement by agreement between
us and the depositary. However, any amendment that materially and adversely
alters the rights of the existing holders of depositary shares will not be
effective unless and until approved by the holders of at least a majority of the
depositary shares then outstanding under that deposit agreement. Each deposit
agreement will provide that each holder of depositary shares who continues to
hold those depositary shares at the time an amendment becomes effective will be
deemed to have consented to the amendment and will be bound by that amendment.
Except as may be necessary to comply with any mandatory provisions of applicable
law, no amendment may impair the right, subject to the terms of the deposit
agreement, of any holder of any depositary shares to surrender the depositary
receipt evidencing those depositary shares to the depositary together with
instructions to deliver to the holder the whole shares of preferred stock
represented by the surrendered depositary shares and all money and other
property, if any, represented thereby. A deposit agreement may be terminated by
us or the depositary only if:
(1) all outstanding depositary shares issued under the deposit agreement
have been redeemed; or
(2) there has been a final distribution in respect of the preferred stock
relating to those depositary shares in connection with any liquidation,
dissolution or winding up of the
22
Company and the amount received by the depositary as a result of that
distribution has been distributed by the Depositary to the holders of
those depositary shares.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay charges of
any depositary in connection with the initial deposit of preferred stock and the
initial issuance of the depositary shares and any redemption of such preferred
stock. Holders of depositary shares will pay any other taxes and charges
incurred for their accounts as are provided in the deposit agreement.
MISCELLANEOUS
Each depositary will forward to the holders of depositary shares issued by
that depositary all reports and communications from us that are delivered to the
depositary and that we are required to furnish to the holders of the preferred
stock held by the depositary. In addition, each depositary will make available
for inspection by the holders of those depositary shares, at the principal
office of such depositary and at such other places as it may from time to time
deem advisable, all reports and communications received from us that are
received by such depositary as the holder of preferred stock.
Neither we nor any depositary will assume any obligation or will be subject
to any liability under a deposit agreement to holders of the depositary shares
other than for its negligence or willful misconduct. Neither we nor any
depositary will be liable if it is prevented or delayed by law or any
circumstance beyond its control in performing its obligations under a deposit
agreement. The obligations of us and any depositary under a deposit agreement
will be limited to performance in good faith of their duties thereunder, and
they will not be obligated to prosecute or defend any legal proceeding in
respect of any depositary shares or preferred stock unless satisfactory
indemnity is furnished. We and any depositary may rely on written advice of
counsel or accountants, on information provided by persons presenting preferred
stock for deposit, holders of depositary shares or other persons believed in
good faith to be competent to give such information and on documents believed to
be genuine and to have been signed or presented by the proper party or parties.
RESIGNATION AND REMOVAL OF DEPOSITARY
A depositary may resign at any time by delivering to us notice of its
election to resign, and we may remove any depositary at any time. Any such
resignation or removal will take effect upon the appointment of a successor
depositary and its acceptance of such appointment. Such successor depositary
must be appointed within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000.
FEDERAL INCOME TAX CONSEQUENCES
Owners of the depositary shares will be treated for federal income tax
purposes as if they were owners of the preferred stock represented by such
depositary shares. Accordingly, the owners will be entitled to take into account
for federal income tax purposes income and deductions to which they would be
entitled if they were holders of the preferred stock. In addition:
- no gain or loss will be recognized for federal income tax purposes upon
the withdrawal of preferred stock in exchange for depositary shares;
- the tax basis of each share of preferred stock to an exchanging owner of
depositary shares will, when exchanged, be the same as the aggregate tax
basis of the depositary shares being exchanged; and
- the holding period for preferred stock in the hands of an exchanging owner
of depositary shares will include the period during which that person
owned the depositary shares.
23
BOOK-ENTRY PROCEDURES AND SETTLEMENT
Any series of preferred stock (and the depositary shares relating to such
series) may be issued in certificated or book-entry form, as specified in the
applicable Prospectus Supplement. Book-entry preferred stock or depositary
shares will be issued in the form of a single global stock certificate or a
single global depositary receipt (as the case may be) registered in the name of
the nominee of The Depository Trust Company or any successor or alternate
depositary we select.
The depositary has provided us the following information: The depositary is
a limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934. The depositary holds securities that have been deposited by its
participating organizations, which are called "participants." The depositary
also facilitates the settlement among participants of securities transactions,
such as transfers and pledges, in deposited securities through computerized
records for participants' accounts. This eliminates the need to exchange
certificates. Participants include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. The
depositary is owned by a number of its participants and by the NYSE, the AMEX
and the NASD. The depositary's book-entry system also is used by other
organizations such as securities brokers and dealers, banks, and trust companies
that work through a participant. Persons who are not participants may
beneficially own securities held by the depositary only through participants.
The rules applicable to the depositary and its participants are on file with the
SEC.
Upon our issuance of any preferred stock or depositary shares that will be
represented by a global security, the depositary will immediately credit on its
book-entry system the respective amounts of preferred stock or depositary shares
represented by the global security to participants' accounts. The accounts to be
credited will be designated by our agents, or by us if we directly offer and
sell the preferred stock or depositary shares. Ownership of beneficial interests
in a global security will be limited to participants or persons that hold
interests through the participants. Beneficial ownership interests in a global
security will be shown on, and transfers of those interests will be made only
through, records maintained by the depositary's participants or persons holding
interests through participants. Please note, the laws of some states require
that certain purchasers of securities take physical delivery of these securities
in definitive form. These limits and laws may impair the ability to transfer
beneficial interest in a global security.
Unless the global security is exchanged in whole or in part for the relevant
definitive security representing preferred stock or depositary shares, the
global security cannot be transferred. However, the depositary, its nominees and
their successors may transfer a global security as a whole to one another. This
means we will not issue certificates to you. Until the relevant definitive
security representing preferred stock or depositary shares is issued, the
depositary, not you, will be considered the holder of preferred stock or
depositary shares represented by a global security. We have described below the
only circumstances where preferred stock or depositary shares represented by a
global security will be exchangeable for certificates representing preferred
stock or depositary shares.
We will pay dividends and other distributions on the preferred stock or
depositary shares to the depositary or its nominee. We and the depositary will
treat the nominee as the owner of the global securities for all purposes.
Neither we nor the depositary will have any responsibility or liability for any
aspect of the records relating to or payments made on account of your beneficial
ownership interests in a global security or for maintaining, supervising or
reviewing the records relating to you as the owner of a beneficial interest in
such global securities. We expect that the depositary will credit immediately
the respective accounts of the participants upon receipt of any dividend payment
or other distribution on a global security. We expect that participants'
payments to owners of the beneficial interests in a
24
global security will be governed by standing customer instructions and customary
practices, and will be the participants' responsibility.
The depositary nominee is the only person who can exercise a right to
repayment of a global security. If you own a beneficial interest in a global
security and want to exercise a right to repayment, then you must instruct your
participant (for example, your broker) to notify the nominee of your desire to
exercise such right. Different participants have different procedures for
accepting instructions from their customers (for example, cut-off times for
notice), and accordingly, you should consult your participant to inform yourself
about their particular procedures.
Unless otherwise specified in the applicable Prospectus Supplement,
preferred stock or depositary shares will be issued initially as book-entry
preferred stock or depositary shares. Generally, we will issue book-entry
preferred stock or depositary shares only in the form of global securities.
Preferred stock or depositary shares represented by a global security may be
exchanged for the relevant definitive security with the same terms in authorized
denominations if:
- the depositary notified us that it is unwilling or unable to continue as a
depositary and a successor depositary is not appointed by us within 90
days; or
- we determine not to have any preferred stock or depositary shares
represented by a global security.
In these circumstances, you will be entitled to physical delivery of a
definitive certificate or other instrument evidencing such preferred stock or
depositary shares in an amount equal to your beneficial ownership interest and
registered in your name.
PLAN OF DISTRIBUTION
We may sell the securities in any of four ways:
- to underwriters (including Bear Stearns) or dealers, who may act directly
or through a syndicate represented by one or more managing underwriters
(including Bear Stearns);
- through broker-dealers (including Bear Stearns) we have designated to act
on our behalf as agents;
- directly to one or more purchasers; or
- directly to the public through Bear Stearns utilizing DAISS-SM- (Dutch
Auction Internet Syndication System-SM-), a rules-based, proprietary,
single-priced, modified Dutch Auction syndication system for the pricing
and allocation of securities.
Each Prospectus Supplement will set forth the manner and terms of an
offering of securities, including:
- whether that offering is being made to underwriters or through agents or
directly;
- the rules and procedures for the auction process through DAISS-SM-, if
used;
- any underwriting discounts, dealer concessions, agency commissions and any
other items that may be deemed to constitute underwriters', dealers' or
agents' compensation;
- the securities' purchase price or initial public offering price; and
- the proceeds we anticipate from the sale of the securities.
When securities are to be sold to underwriters, unless otherwise set forth
in the applicable Prospectus Supplement, the underwriters' obligations to
purchase those securities will be subject to certain conditions precedent. If
the underwriters purchase any of the securities, they will be obligated to
purchase all of the securities. The underwriters will acquire the securities for
their own accounts and may resell them, either directly to the public or to
securities dealers, at various times in one or more
25
transactions, including negotiated transactions, either at a fixed public
offering price or at varying prices determined at the time of sale.
Any initial public offering price and any concessions allowed or reallowed
to dealers may be changed intermittently.
To the extent that any securities underwritten by Bear Stearns are not
resold by Bear Stearns for an amount at least equal to their public offering
price, the proceeds from the offering of those securities will be reduced. Until
resold, any such preferred stock and depositary shares will be treated as if
they were not outstanding. Bear Stearns intends to resell any of those
securities at various times after the termination of the offering at varying
prices related to prevailing market prices at the time of sale, subject to
applicable prospectus delivery requirements.
Unless otherwise indicated in the applicable Prospectus Supplement, when
securities are sold through an agent, the designated agent will agree, for the
period of its appointment as agent, to use its best efforts to sell the
securities for our account and will receive commissions from us as will be set
forth in the applicable Prospectus Supplement.
Securities bought in accordance with a redemption or repayment under their
terms also may be offered and sold, if so indicated in the applicable Prospectus
Supplement, in connection with a remarketing by one or more firms acting as
principals for their own accounts or as agents for us. Any remarketing firm will
be identified and the terms of its agreement, if any, with us and its
compensation will be described in the Prospectus Supplement. Remarketing firms
may be deemed to be underwriters in connection with the securities remarketed by
them.
If so indicated in the applicable Prospectus Supplement, we will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase securities at the public offering price set forth in
the Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a future date specified in the Prospectus Supplement.
These contracts will be subject only to those conditions set forth in the
applicable Prospectus Supplement, and the Prospectus Supplement will set forth
the commissions payable for solicitation of these contracts.
Underwriters and agents participating in any distribution of securities may
be deemed "underwriters" within the meaning of the Securities Act and any
discounts or commissions they receive in connection with the distribution may be
deemed to be underwriting compensation. Those underwriters and agents may be
entitled, under their agreements with us, to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act, or to
contribution by us to payments that they may be required to make in respect of
those civil liabilities. Various of those underwriters or agents may be
customers of, engage in transactions with or perform services for us or our
affiliates in the ordinary course of business.
Following the initial distribution of any series of securities (and in the
case of shares of preferred stock, subject to obtaining approval or exemption
from the NYSE), Bear Stearns may offer and sell previously issued securities of
that series at various times in the course of its business as a broker-dealer.
Bear Stearns may act as principal or agent in those transactions. Bear Stearns
will use this Prospectus and the Prospectus Supplement applicable to those
securities in connection with those transactions. Sales will be made at prices
related to prevailing prices at the time of sale.
In order to facilitate the offering of certain securities under this
Registration Statement or an applicable Prospectus Supplement, certain persons
participating in the offering of those securities may engage in transactions
that stabilize, maintain or otherwise affect the price of those securities
during and after the offering of those securities. Specifically, if the
applicable Prospectus Supplement permits, the underwriters of those securities
may over-allot or otherwise create a short position in those securities for
their own account by selling more of those securities than have been sold to
them by us and may elect to cover any such short position by purchasing those
securities in the open market.
26
In addition, the underwriters may stabilize or maintain the price of those
securities by bidding for or purchasing those securities in the open market and
may impose penalty bids, under which selling concessions allowed to syndicate
members or other broker-dealers participating in the offering are reclaimed if
securities previously distributed in the offering are repurchased in connection
with stabilization transactions or otherwise. The effect of these transactions
may be to stabilize or maintain the market price of the securities at a level
above that which might otherwise prevail in the open market. The imposition of a
penalty bid may also affect the price of securities to the extent that it
discourages resales of the securities. No representation is made as to the
magnitude or effect of any such stabilization or other transactions. Such
transactions, if commenced, may be discontinued at any time.
We may from time to time offer securities directly to the public through
Bear Stearns and may utilize DAISS-SM-, a rules-based, proprietary,
single-priced, modified Dutch Auction syndication system for the pricing and
allocation of such securities. DAISS-SM- allows bidders to directly participate,
through Internet access to an auction site, by submitting conditional offers to
buy (each, a "bid") that are subject to acceptance by the underwriter, and which
may directly affect the price at which such securities are sold.
The final offering price at which securities will be sold and the allocation
of securities among bidders will be based solely on the results of the auction,
subject to possible stabilization activity previously described.
During an auction, DAISS-SM- will present to each bidder, on a real-time
basis, the clearing spread at which the offering would be sold, based on the
bids submitted and not withdrawn, and whether a bidder's individual bids would
be accepted, prorated or rejected. Upon completion of the auction, the offering
price of the securities will be the lowest spread at which the aggregate dollar
amount of bids submitted, and not removed, at that spread and lower spreads
equals or exceeds the size of the offering as disclosed in the Prospectus
Supplement which is the final clearing spread. If DAISS-SM- is utilized, prior
to the auction we and Bear Stearns will establish minimum admissible bids,
maximum quantity restrictions and other specific rules governing the auction
process, all of which will be made available to bidders in the offering
cul-de-sac and described in the Prospectus Supplement.
Bids at a lower spread than the final clearing spread will be fully
allocated. Bids at the final clearing spread will be prorated based on the time
of submission and pursuant to the allocation procedures in the auction rules.
Bids above the final clearing spread will receive no allocation.
If an offering is made using DAISS-SM- you should review the auction rules,
as displayed in the offering cul-de-sac and described in the Prospectus
Supplement, for a more detailed description of the offering procedures.
Because Bear Stearns is our wholly owned subsidiary, each distribution of
securities will conform to the requirements set forth in Rule 2720 of the NASD
Conduct Rules.
ERISA CONSIDERATIONS
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"),
prohibits the borrowing of money, the sale of property and certain other
transactions involving the assets of plans that are qualified under the Code
("Qualified Plans") or individual retirement accounts ("IRAs") and persons who
have certain specified relationships to them. Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), prohibits similar
transactions involving the assets of employee benefit plans that are subject to
ERISA ("ERISA Plans"). Qualified Plans, IRAs and ERISA Plans and entities
treated for purposes of ERISA and the Code as holding assets thereof are in this
Prospectus collectively referred to as "Plans."
Persons who have such specified relationships are referred to as "parties in
interest" under ERISA and as "disqualified persons" under the Code. "Parties in
interest" and "disqualified persons"
27
encompass a wide range of persons, including any fiduciary (for example,
investment manager, trustee or custodian), any person providing services (for
example, a broker), the Plan sponsor, an employee organization any of whose
members are covered by the Plan, and certain persons related to or affiliated
with any of the foregoing.
Each of us, Bear Stearns and BSSC may be considered a "party in interest" or
"disqualified person" with respect to many Plans, including, for example, IRAs
established with us or them. The purchase and/or holding of securities by a Plan
with respect to which we, Bear Stearns, BSSC and/or certain of our affiliates is
a fiduciary and/or a service provider (or otherwise is a "party in interest" or
"disqualified person") could constitute or result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code, unless such securities
are acquired or held pursuant to and in accordance with an applicable statutory
or administrative exemption.
Applicable exemptions may include certain prohibited transaction class
exemptions ("PTCEs") (for example, PTCE 84-14 relating to qualified professional
asset managers, PTCE 96-23 relating to certain in-house asset managers, PTCE
90-1 relating to insurance company pooled separate accounts, PTCE 91-38 relating
to bank collective trust funds and PTCE 95-60 relating to insurance company
general accounts).
A fiduciary who is responsible for an ERISA Plan engaging in a non-exempt
prohibited transaction may be liable for any losses to the Plan resulting from
such transaction and may be subject to a penalty under ERISA. Also, Code
Section 4975 generally imposes an excise tax on disqualified persons who engage,
directly or indirectly, in similar types of non-exempt transactions with the
assets of Plans subject to such Section.
In accordance with ERISA's general fiduciary requirement, a fiduciary with
respect to any ERISA Plan who is considering the purchase of securities on
behalf of such plan should determine whether such purchase is permitted under
the governing plan document and is prudent and appropriate for the ERISA Plan in
view of its overall investment policy and the composition and diversification of
its portfolio. Plans established with, or for which services are provided by,
us, Bear Stearns, BSSC and/or certain of our affiliates should consult with
counsel before making any acquisition. Each purchaser of any securities, the
assets of which constitute the assets of one or more Plans and each fiduciary
that directs such purchaser with respect to the purchase or holding of such
securities, will be deemed to represent that the purchase and holding of the
securities does not constitute a prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code for which an exemption is not available.
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this prospectus by reference from our 2000 Annual
Report on Form 10-K have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are incorporated in this Prospectus
by reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
VALIDITY OF THE SECURITIES
The validity of the debt securities, the warrants, the preferred stock and
the depositary shares will be passed on for us by Cadwalader, Wickersham & Taft,
New York, New York.
28
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses in connection with the issuance
and distribution of the securities being registered. All amounts shown are
estimated, except the SEC registration fee and the NASD filing fee.
SEC registration fee........................................ $ 920,000
Trustee's fees and expenses................................. 10,000
Accounting fees............................................. 10,000
Legal fees and expenses..................................... 200,000
Printing and engraving fees................................. 20,000
NASD filing fee............................................. 30,500
Miscellaneous............................................... 1,500
----------
Total..................................................... $1,192,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 145 of the Delaware General Corporation Law
which provides for indemnification of directors and officers in certain
circumstances.
Article VIII of the registrant's Restated Certificate of Incorporation
provides for indemnification of directors and officers of the registrant against
certain liabilities incurred as a result of their duties as such and also
provides for the elimination of the monetary liability of directors for certain
actions as such. The registrant's Restated Certificate of Incorporation, as
amended, is filed as Exhibit 4(a)(1) to the Registration Statement on Form S-3
(No. 333-57083) filed June 17, 1998, and the Certificate of Amendment of
Restated Certificate of Incorporation, dated April 2, 2001, is filed as Exhibit
4(a)(2) to the Registration Statement on Form S-8 (No. 333-92357) filed
June 14, 2001.
We, as registrant, have in effect reimbursement insurance for our directors'
and officers' liability claims and directors' and officers' liability insurance
indemnifying, respectively, ourselves and our directors and officers within
specific limits for certain liabilities incurred, subject to the conditions and
exclusions and deductible provisions of the policies.
For the undertaking with respect to indemnification, see Item 17 in this
Prospectus.
ITEM 16. EXHIBITS.
EXHIBIT NO. DESCRIPTION
----------- ------------------------------------------------------------
1(a) Form of Underwriting Agreement (Debt Securities and
Warrants).(1)
1(b) Form of Distribution Agreement.(1)
1(c) Distribution Agreement, including form of Terms Agreement,
dated November 8, 1991, for Medium-Term Notes ("MTN
Distribution Agreement").(2)
1(d) Amendment No. 1, dated December 4, 1991, to the MTN
Distribution Agreement.(3)
1(e) Form of Amendment No. 2 to the MTN Distribution
Agreement.(3)
1(f) Form of Underwriting Agreement for Offering of Global
Notes.(4)
II-1
EXHIBIT NO. DESCRIPTION
----------- ------------------------------------------------------------
1(g) Form of Underwriting Agreement for DAiSS-SM- Offering.(5)
1(h) Form of Underwriting Agreement (Preferred Stock).(6)
4(a)(1) Indenture, dated as of May 31, 1991, between The Bear
Stearns Companies Inc. and JPMorgan Chase Bank (formerly,
The Chase Manhattan Bank).(7)
4(a)(2) Supplemental Indenture, dated as of January 29, 1998,
between The Bear Stearns Companies Inc. and JPMorgan Chase
Bank (formerly The Chase Manhattan Bank).(8)
4(b)(1) Form of Fixed Rate Senior Note.(9)
4(b)(2) Form of Medium-Term Note, Series B (Fixed Rate).(6)
4(b)(3) Form of Medium-Term Note, Series B (Floating Rate).(6)
4(b)(4) Form of Note (Common-Linked Higher Income Participation
Securities).(10)
4(b)(5) Form of Note (S&P 500 Linked Note).(11)
4(b)(6) Form of Global Note.(6)
4(b)(7) Form of Medium-Term Note, Series B (Fixed Rate; S&P
Linked).(12)
4(c)(1) Form of Warrant Agreement, including form of Warrant
Certificate, for warrants to purchase debt securities.(1)
4(c)(2) Form of Warrant Agreement, including form of Warrant
Certificate (for warrants to be sold separately from debt
securities), for warrants to purchase debt securities.(1)
4(c)(3) Form of Warrant Agreement for warrants to purchase other
securities, currencies or units.(3)
4(c)(4) Form of Warrant Agreement relating to AMEX Hong Kong 30
Index Call Warrants.(13)
4(c)(5) Form of Warrant Agreement relating to AMEX Hong Kong 30
Index Put Warrants.(14)
4(c)(6) Form of Warrant Agreement relating to the Japan Index Call
Warrants.(15)
4(c)(7) Form of Warrant Agreement relating to the Japan Index Put
Warrants.(16)
4(c)(8) Form of Warrant Agreement relating to the Japanese Yen Put
Warrants.(17)
4(c)(9) Form of Warrant Agreement relating to Nikkei 225 Index
Strike Reset Call Warrants.(18)
4(c)(10) Form of Warrant Agreement relating to Vantage Point
Portfolio Call Warrants.(19)
4(d)(1) Restated Certificate of Incorporation of the registrant.(20)
4(d)(2) Certificate of Amendment of Restated Certificate of
Incorporation of the registrant.(21)
4(d)(3) Certificate of Stock Designation relating to the
registrant's Adjustable Rate Cumulative Preferred Stock,
Series A.(22)
4(d)(4) Certificate of Correction to the Certificate of Stock
Designation relating to the registrant's Adjustable Rate
Cumulative Preferred Stock, Series A.(23)
4(d)(5) Certificate of Stock Designation relating to the
registrant's 6.15% Cumulative Preferred Stock,
Series E.(24)
4(d)(6) Certificate of Stock Designation relating to the
registrant's 5.72% Cumulative Preferred Stock,
Series F.(25)
II-2
EXHIBIT NO. DESCRIPTION
----------- ------------------------------------------------------------
4(d)(7) Certificate of Stock Designation relating to the
registrant's 5.49% Cumulative Preferred Stock,
Series G.(26)
4(d)(8) Certificate of Elimination of the Cumulative Convertible
Preferred Stock, Series A; Cumulative Convertible Preferred
Stock, Series B; Cumulative Convertible Preferred Stock,
Series C; and Cumulative Convertible Preferred Stock,
Series D of the registrant. (27)
4(d)(9) Certificate of Elimination of the 7.88% Cumulative
Convertible Preferred Stock, Series B of the registrant.
(28)
4(d)(10) Certificate of Elimination of the 7.60% Cumulative
Convertible Preferred Stock, Series C of the registrant.
(29)
4(d)(11) Amended and Restated By-laws of the registrant as amended
through January 8, 2002.(30)
4(d)(12) Form of Deposit Agreement.(31)
4(d)(13) Specimen Depositary Receipt.(32)
5 Opinion of Cadwalader, Wickersham & Taft.*
12(a) Computation of Ratio of Earnings to Fixed Charges.*
12(b) Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Dividends.*
23(a) Consent of Deloitte & Touche LLP.*
23(b) Consent of Cadwalader, Wickersham & Taft (included in
Exhibit 5).*
24 Power of attorney (included in the signature pages to the
Registration Statement).*
25 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of JPMorgan Chase Bank
(separately bound).*
------------------------
* Filed herewith.
(1) Incorporated by reference to similarly numbered exhibits to the
registrant's Registration Statement No. 33-44521 on Form S-3.
(2) Incorporated by reference to Exhibit 1(a) to the registrant's Registration
Statement No. 33-43482 on Form S-3.
(3) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-48829 on Form S-3.
(4) Incorporated by reference to Exhibit 1(a)(2) to the registrant's Current
Report on Form 8-K filed with the Securities Exchange Commission on
April 6, 1998.
(5) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 333-52902 on Form S-3.
(6) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 333-31980 on Form S-3.
(7) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-40933 on Form S-3.
(8) Incorporated by reference to the similarly numbered exhibit to the
registrant's Current Report on Form 8-K filed with the Securities Exchange
Commission on February 2, 1998.
II-3
(9) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-57824 on Form S-3.
(10) Incorporated by reference to Exhibit No. 4(b)(7) to the registrant's
Registration Statement No. 33-52701 on Form S-3.
(11) Incorporated by reference to Exhibit 2.3 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
May 15, 1997.
(12) Incorporated by reference to Exhibit No. 4(b)(10) to the registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on December 21, 1998.
(13) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 6, 1993.
(14) Incorporated by reference to Exhibit 1.2 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 6, 1993.
(15) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
July 19, 1994.
(16) Incorporated by reference to Exhibit 1.2 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
July 19, 1994.
(17) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 13, 1994.
(18) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
October 13, 1995.
(19) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
February 12, 1996.
(20) Incorporated by reference to Exhibit No. 4(a)(1) to the registrant's
Registration Statement on Form S-3 (File No. 333-57083).
(21) Incorporated by reference to Exhibit No. 4(a)(2) to the Registration
Statement on Form S-8 (File No. 333-92357).
(22) Incorporated by reference to Exhibit No. 4(a)(6) to the registrant's
Registration Statement on Form S-8 (File No. 33-49979).
(23) Incorporated by reference to Exhibit No. 4(a)(7) to the registrant's
Registration Statement on Form S-8 (File No. 33-49979).
(24) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on January 14, 1998.
(25) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on April 20, 1998.
(26) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on June 18, 1998.
(27) Incorporated by reference to Exhibit No. 4(d)(9) to the registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on January 15, 2002.
II-4
(28) Incorporated by reference to Exhibit No. 4(d)(10) to the registrant's
Current Report on Form S-K filed with the Securities and Exchange
Commission on January 15, 2002.
(29) Incorporated by reference to Exhibit No. 4(d)(11) to the registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on January 15, 2002.
(30) Incorporated by reference to Exhibit No. 4(d)(6) to the registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on January 15, 2002.
(31) Incorporated by reference to Exhibit 4(d) to the registrant's Registration
Statement No. 33-59140 on Form S-3.
(32) Incorporated by reference to Exhibit 4(e) to the registrant's Registration
Statement No. 33-59140 on Form S-3.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or its most recent
post-effective amendment) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered), and any deviation from the low or high end of the
estimated maximum offering range, may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs (a)(i) and
(a)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the SEC by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(d) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act that is incorporated
II-5
by reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(e) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions referred to in Item 15 of this
Registration Statement, or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(f) (i) For the purposes of determining liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(ii) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(g) To file an application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the SEC under
Section 305(b)(2) of the Act.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
hereby certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on January 17, 2002.
THE BEAR STEARNS COMPANIES INC.
BY: /S/ SAMUEL L. MOLINARO JR.
-----------------------------------------
SAMUEL L. MOLINARO JR.
Executive Vice President and
Chief Financial Officer
We, the undersigned officers and directors of The Bear Stearns
Companies Inc., hereby severally constitute Alan C. Greenberg, James E. Cayne
and Samuel L. Molinaro Jr., and any of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our name in the capacities indicated below, any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-3 filed by
The Bear Stearns Companies Inc. with the Securities and Exchange Commission (and
any additional Registration Statement related hereto permitted by Rule 462(b)
promulgated under the Securities Act of 1933, as amended (and all further
amendments, including post-effective amendments, thereto)), and generally to do
all such things in our name and behalf in such capacities to enable The Bear
Stearns Companies Inc. to comply with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange
Commission, and we hereby ratify and confirm our signatures as they may be
signed by our said attorneys, or any of them, to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on January 17, 2002.
SIGNATURE TITLE
--------- -----
/s/ ALAN C. GREENBERG Chairman of the Executive Committee and
------------------------------------------- Director
Alan C. Greenberg
/s/ JAMES E. CAYNE Chairman of the Board, Chief Executive Officer
------------------------------------------- and Director (Principal Executive Officer)
James E. Cayne
/s/ CARL D. GLICKMAN Director
-------------------------------------------
Carl D. Glickman
/s/ DONALD J. HARRINGTON Director
-------------------------------------------
Donald J. Harrington
II-7
SIGNATURE TITLE
--------- -----
/s/ WILLIAM L. MACK Director
-------------------------------------------
William L. Mack
/s/ FRANK T. NICKELL Director
-------------------------------------------
Frank T. Nickell
/s/ FREDERIC V. SALERNO Director
-------------------------------------------
Frederic V. Salerno
/s/ ALAN D. SCHWARTZ President, Co-Chief Operating Officer and
------------------------------------------- Director
Alan D. Schwartz
/s/ WARREN J. SPECTOR President, Co-Chief Operating Officer and
------------------------------------------- Director
Warren J. Spector
/s/ VINCENT TESE Director
-------------------------------------------
Vincent Tese
/s/ FRED WILPON Director
-------------------------------------------
Fred Wilpon
/s/ SAMUEL L. MOLINARO JR. Executive Vice President and Chief Financial
------------------------------------------- Officer (Principal Financial Officer)
Samuel L. Molinaro Jr.
/s/ MARSHALL J LEVINSON Controller (Principal Accounting Officer)
-------------------------------------------
Marshall J Levinson
II-8
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
1(a) Form of Underwriting Agreement (Debt Securities and
Warrants).(1)
1(b) Form of Distribution Agreement.(1)
1(c) Distribution Agreement, including form of Terms Agreement,
dated November 8, 1991, for Medium-Term Notes ("MTN
Distribution Agreement").(2)
1(d) Amendment No. 1, dated December 4, 1991, to the MTN
Distribution Agreement.(3)
1(e) Form of Amendment No. 2 to the MTN Distribution
Agreement.(3)
1(f) Form of Underwriting Agreement for Offering of Global
Notes.(4)
1(g) Form of Underwriting Agreement for DAiSS-SM- Offering.(5)
1(h) Form of Underwriting Agreement (Preferred Stock).(6)
4(a)(1) Indenture, dated as of May 31, 1991, between The Bear
Stearns Companies Inc. and JPMorgan Chase Bank (formerly,
The Chase Manhattan Bank).(7)
4(a)(2) Supplemental Indenture, dated as of January 29, 1998,
between The Bear Stearns Companies Inc. and JPMorgan Chase
Bank (formerly, The Chase Manhattan Bank).(8)
4(b)(1) Form of Fixed Rate Senior Note.(9)
4(b)(2) Form of Medium-Term Note, Series B (Fixed Rate).(6)
4(b)(3) Form of Medium-Term Note, Series B (Floating Rate).(6)
4(b)(4) Form of Note (Common-Linked Higher Income Participation
Securities).(10)
4(b)(5) Form of Note (S&P 500 Linked Note).(11)
4(b)(6) Form of Global Note.(6)
4(b)(7) Form of Medium-Term Note, Series B (Fixed Rate; S&P
Linked).(12)
4(c)(1) Form of Warrant Agreement, including form of Warrant
Certificate, for warrants to purchase debt securities.(1)
4(c)(2) Form of Warrant Agreement, including form of Warrant
Certificate (for warrants to be sold separately from debt
securities), for warrants to purchase debt securities.(1)
4(c)(3) Form of Warrant Agreement for warrants to purchase other
securities, currencies or units.(3)
4(c)(4) Form of Warrant Agreement relating to AMEX Hong Kong 30
Index Call Warrants.(13)
4(c)(5) Form of Warrant Agreement relating to AMEX Hong Kong 30
Index Put Warrants.(14)
4(c)(6) Form of Warrant Agreement relating to the Japan Index Call
Warrants.(15)
4(c)(7) Form of Warrant Agreement relating to the Japan Index Put
Warrants.(16)
4(c)(8) Form of Warrant Agreement relating to the Japanese Yen Put
Warrants.(17)
4(c)(9) Form of Warrant Agreement relating to Nikkei 225 Index
Strike Reset Call Warrants.(18)
4(c)(10) Form of Warrant Agreement relating to Vantage Point
Portfolio Call Warrants.(19)
4(d)(1) Restated Certificate of Incorporation of the registrant.(20)
4(d)(2) Certificate of Amendment of Restated Certificate of
Incorporation of the registrant.(21)
4(d)(3) Certificate of Stock Designation relating to the
registrant's Adjustable Rate Cumulative Preferred Stock,
Series A.(22)
EXHIBIT NO. DESCRIPTION
----------- -----------
4(d)(4) Certificate of Correction to the Certificate of Stock
Designation relating to the registrant's Adjustable Rate
Cumulative Preferred Stock, Series A.(23)
4(d)(5) Certificate of Stock Designation relating to the
registrant's 6.15% Cumulative Preferred Stock,
Series E.(24)
4(d)(6) Certificate of Stock Designation relating to the
registrant's 5.72% Cumulative Preferred Stock,
Series F.(25)
4(d)(7) Certificate of Stock Designation relating to the
registrant's 5.49% Cumulative Preferred Stock,
Series G.(26)
4(d)(8) Certificate of Elimination of the Cumulative Convertible
Preferred Stock, Series A; Cumulative Convertible Preferred
Stock, Series B; Cumulative Convertible Preferred Stock,
Series C; and Cumulative Convertible Preferred Stock,
Series D of the registrant.(27)
4(d)(9) Certificate of Elimination of the 7.88% Cumulative Preferred
Stock, Series B of the registrant.(28)
4(d)(10) Certificate of Elimination of the 7.60% Cumulative Preferred
Stock, Series C of the registrant.(29)
4(d)(11) Amended and Restated By-laws of the registrant as amended
through January 8, 2002.(30)
4(d)(12) Form of Deposit Agreement.(31)
4(d)(13) Specimen Depositary Receipt.(32)
5 Opinion of Cadwalader, Wickersham & Taft.*
12(a) Computation of Ratio of Earnings to Fixed Charges.*
12(b) Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Dividends.*
23(a) Consent of Deloitte & Touche LLP.*
23(b) Consent of Cadwalader, Wickersham & Taft (included in
Exhibit 5).*
24 Power of attorney (included in the signature pages to the
Registration Statement).*
25 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of JPMorgan Chase Bank
(separately bound).*
------------------------
* Filed herewith.
(1) Incorporated by reference to similarly numbered exhibits to the
registrant's Registration Statement No. 33-44521 on Form S-3.
(2) Incorporated by reference to Exhibit 1(a) to the registrant's Registration
Statement No. 33-43482 on Form S-3.
(3) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-48829 on Form S-3.
(4) Incorporated by reference to Exhibit 1(a)(2) to the registrant's Current
Report on Form 8-K filed with the Securities Exchange Commission on
April 6, 1998.
(5) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 333-52902 on Form S-3.
(6) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 333-31980 on Form S-3.
(7) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-40933 on Form S-3.
(8) Incorporated by reference to the similarly numbered exhibit to the
registrant's Current Report on Form 8-K filed with the Securities Exchange
Commission on February 2, 1998.
(9) Incorporated by reference to the similarly numbered exhibit to the
registrant's Registration Statement No. 33-57824 on Form S-3.
(10) Incorporated by reference to Exhibit No. 4(b)(7) to the registrant's
Registration Statement No. 33-52701 on Form S-3.
(11) Incorporated by reference to Exhibit 2.3 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
May 15, 1997.
(12) Incorporated by reference to Exhibit No. 4(b)(10) to the registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on December 21, 1998.
(13) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 6, 1993.
(14) Incorporated by reference to Exhibit 1.2 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 6, 1993.
(15) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
July 19, 1994.
(16) Incorporated by reference to Exhibit 1.2 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
July 19, 1994.
(17) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
December 13, 1994.
(18) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
October 13, 1995.
(19) Incorporated by reference to Exhibit 1.1 to the registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
February 12, 1996.
(20) Incorporated by reference to Exhibit No. 4(a)(1) to the registrant's
Registration Statement on Form S-3 (File No. 333-57083).
(21) Incorporated by reference to Exhibit No. 4(a)(2) to the Registration
Statement on Form S-8 (File No. 333-92357).
(22) Incorporated by reference to Exhibit No. 4(a)(6) to the registrant's
Registration Statement on Form S-8 (File No. 33-49979).
(23) Incorporated by reference to Exhibit No. 4(a)(7) to the registrant's
Registration Statement on Form S-8 (File No. 33-49979).
(24) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on January 14, 1998.
(25) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on April 20, 1998.
(26) Incorporated by reference to Exhibit No. 1.4 to the registrant's
Registration Statement on Form 8-A filed on June 18, 1998.
(27) Incorporated by Reference to Exhibit No. (4)(d)(9) to the registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on January 15, 2002.
(28) Incorporated by Reference to Exhibit No. (4)(d)(10) to the registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on January 15, 2002.
(29) Incorporated by Reference to Exhibit No. (4)(d)(11) to the registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on January 15, 2002.
(30) Incorporated by reference to Exhibit No. 4(d)(6) to the registrant's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on January 15, 2002.
(31) Incorporated by reference to Exhibit 4(d) to the registrant's Registration
Statement No. 33-59140 on Form S-3.
(32) Incorporated by reference to Exhibit 4(e) to the registrant's Registration
Statement No. 33-59140 on Form S-3.