Exhibit 1.2
BANKERS TRUST NEW YORK CORPORATION
Debt Securities
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Underwriting Agreement
Standard Provisions
(January 1997)
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From time to time, BANKERS TRUST NEW YORK CORPORATION, a New York
corporation (the "Corporation"), may enter into one or more underwriting
agreements that provide for the sale of designated debt securities (the
"Securities") to one or more underwriters named therein (the "Underwriters"),
severally where there are more than one. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein referred to as this Agreement.
Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. If an Underwriting Agreement provides for the
purchase of the Securities by an Underwriter or Underwriters, but does not
provide for a Manager or Managers, the references to the Manager herein shall be
deemed to refer to such Underwriter or Underwriters.
I.
The Corporation has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-15089),
including a prospectus relating to, among other securities, the Securities and
has filed with the Commission a prospectus supplement specifically relating to
the issue of the Securities pursuant to Rule 424 under the Securities Act of
1933. The term "Registration Statement" means such registration statement as
amended to the date of the Underwriting Agreement. The term "Basic Prospectus"
means the prospectus included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
specifically relating to the
Securities, as filed with, or mailed for filing to, the Commission pursuant to
Rule 424. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Securities together with the Basic
Prospectus. As used herein, the terms "Registration Statement," "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the material, if any, incorporated by reference therein.
The term "Underwriters' Securities" means the Securities to be purchased
by the Underwriters hereunder. The term "Contract Securities" means the
Securities, if any, to be purchased pursuant to the delayed delivery contracts
referred to below.
II.
If the Prospectus provides for sales of Contract Securities, the
Corporation hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to delayed delivery contracts substantially in the form of
Schedule I attached hereto ("Delayed Delivery Contracts") but with such changes
therein as the Corporation may authorize or approve. Delayed Delivery Contracts
are to be with institutional investors approved by the Corporation and of the
types set forth in the Prospectus. On the Closing Date (as hereinafter
defined), the Corporation will pay the Manager as compensation, for the accounts
of the Underwriters, the fee set forth in the Underwriting Agreement in respect
of the principal amount of the Contract Securities. The Underwriters will not
have any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts.
If the Corporation executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Securities to be purchased by each Underwriter shall be
reduced pro rata in proportion to the principal amount of Securities set forth
opposite each Underwriter's name in the Underwriting Agreement, except to the
extent that the Manager determines that such reduction shall be otherwise and so
advises the Corporation.
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III.
The Corporation is advised by the Manager that the Underwriters propose
to make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by certified or
official bank check or checks payable to the order of the Corporation in
immediately available funds or in such other manner and such other funds as may
be mutually agreed upon by the Corporation and the Manager and set forth in the
Underwriting Agreement, at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Underwriters' Securities are herein
referred to as the "Closing Date."
V.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and there shall have been
no material adverse change (not in the ordinary course of business) in the
financial condition or results of operations of the Corporation and its
subsidiaries, taken as a whole, from that set forth in the Prospectus since
the effective dates as of which information is given therein; and the
Manager shall have received, on the Closing Date, a certificate, dated the
Closing Date and signed by an executive officer of the Corporation, to the
foregoing effect and also to the effect that the representations and
warranties of the Corporation in this Agreement are true and correct in all
material respects as of the Closing Date. The officer making such
certificate may
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rely upon the best of his knowledge as to proceedings pending or
threatened.
(b) The Manager shall have received on the Closing Date an opinion of
counsel for the Corporation, dated the Closing Date, to the effect set
forth in Exhibit A, and, unless otherwise agreed, an opinion of tax counsel
for the Corporation, dated the Closing Date, covering such matters as may
be mutually agreed upon by such tax counsel and the Manager and set forth
in the Underwriting Agreement.
(c) The Manager shall have received on the Closing Date from White &
Case, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Corporation, the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as the Manager may require, and the Corporation shall
furnish to such counsel such documents as they may reasonably request for
the purposes of enabling them to pass upon such matters.
(d) On the Closing Date the Manager shall have received a letter,
dated the Closing Date and in form and substance satisfactory to the
Manager, from the independent accountants to the Corporation, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to Underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus, and confirming that
they are independent accountants within the meaning of the Securities Act
of 1933 and the Securities Exchange Act of 1934 and the respective
applicable published rules and regulations thereunder.
VI.
In further consideration of the agreements of the Underwriters contained
in this Agreement, the Corporation covenants as follows:
(a) To furnish the Manager, without charge, a copy of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any
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supplements and amendments thereto as the Manager may reasonably request.
The terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents filed by the Corporation with the Commission
subsequent to the date of the Basic Prospectus, pursuant to the Securities
Exchange Act of 1934, which are deemed to be incorporated by reference in
the Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Securities, to furnish the Manager with
a copy of each such proposed amendment or supplement.
(c) If, at any time during the period following the public offering
of the Securities during which, in the opinion of counsel for the
Underwriters, the Prospectus is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to ensure that the Prospectus does not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances
under which they were made, be misleading or so that the Prospectus will
comply with law, as the case may be.
(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to pay all reasonable expenses (including fees and
disbursements of counsel) in connection with such qualification, the
determination of the eligibility of the Securities for investment under the
laws of such jurisdictions as the Manager may reasonably designate, the
printing of any memoranda concerning the aforesaid qualification or
eligibility and the rating of the Securities by securities rating services.
(e) To make generally available to the Corporation's security holders
as soon as practicable, but not later than sixteen months, after the date
of each Underwriting Agreement an earnings statement
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covering a period of at least twelve months beginning after the later of
(i) the effective date of the Registration Statement, (ii) the effective
date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of such Underwriting
Agreement, and (iii) the date of the Corporation's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
Underwriting Agreement, which shall satisfy the provisions of Section 11(a)
of the Securities Act of 1933.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of the Closing Date
or the removal by the Manager of trading restrictions on the Securities,
not to offer, sell, contract to sell or otherwise dispose of (other than
upon exercise of warrants therefor, or on conversion of convertible
securities, in each case outstanding at the date of the Underwriting
Agreement or in an offering made exclusively outside the United States) any
securities of the Corporation substantially similar to the Securities
without the prior written consent of the Manager.
VII.
The Corporation covenants and agrees with each Underwriter that the
Corporation will pay or cause to be paid the following: (i) the fees for the
registration of the Securities under the Act; (ii) the fees, disbursements and
expenses of the Corporation's accountants in connection with the registration of
the Securities under the Act and all other expenses incurred by it in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements thereto and delivery
of copies thereof to the Underwriters; (iii) all expenses (including reasonable
fees and disbursements of counsel) payable pursuant to paragraph (d) of Article
VI of this Agreement; (iv) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities, fees paid in connection with any listing of the
Securities on the New York Stock Exchange or any other stock exchange or
quotation system and any fees of rating agencies; (v) all costs and expenses
incurred in the preparation and printing of the Prospectus, the Registration
Statement and any amendments or supplements thereto, this Agreement and all
other documents relating to the issuance,
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underwriting and initial offering of the Securities; (vi) all costs, fees and
expenses relating to the preparation and filing via the Commission's Electronic
Data Gathering and Retrieval System of the Prospectus, the Registration
Statement and any amendments or supplements thereto, this Agreement and all
other documents relating to the issuance, underwriting and initial offering of
the Securities; and (vii) all other costs and expenses incident to the
performance by the Corporation of its obligations hereunder that are not
otherwise specifically provided for in this Article.
VIII.
The Corporation represents and warrants to each Underwriter that (i)
each document, if any, filed or to be filed pursuant to the Securities Exchange
Act of 1934 and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with such Act and the rules and
regulations thereunder; (ii) each part of the Registration Statement (including
the documents incorporated by reference therein), filed with the Commission
pursuant to the Securities Act of 1933 relating to the Securities, when such
part became effective, did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (iii) each preliminary prospectus,
if any, filed pursuant to Rule 424 under the Securities Act of 1933 complied
when so filed in all material respects with such Act and the applicable rules
and regulations thereunder; (iv) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act of 1933 and the applicable rules and
regulations thereunder; and (v) the Registration Statement and the Prospectus do
not contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that these representations and
warranties do not apply to statements in or omissions from the Registration
Statement, any preliminary prospectus or the Prospectus based upon information
furnished to the Corporation in writing by an Underwriter expressly for use
therein.
The Corporation agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning of
either
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Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus, or in any blue sky application or related document
prepared pursuant to paragraph (d) of Article VI hereof, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Corporation by an Underwriter
expressly for use therein; provided that the foregoing indemnity agreement with
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respect to any Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Securities, or any person controlling such Underwriter, if (i) the
loss, claim, damage or liability asserted by such purchaser was caused by a
defect in the Prospectus delivered to such purchaser after the period referred
to in paragraph (c) of Article VI of this Agreement and such defect would not
have existed before the expiry of such period, or (ii) a copy of the Prospectus
(as then amended or supplemented if the Corporation shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of the Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Corporation, its directors and its officers who sign the
Registration Statement, any authorized representative of the Corporation and any
person controlling the Corporation to the same extent as the foregoing indemnity
from the Corporation to each Underwriter, but only with reference to information
furnished in writing by such Underwriter expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus and any amendments or
supplements thereto.
In case any proceeding (including any governmental investigation) shall
be threatened or instituted involving any person in respect of which indemnity
may be sought pursuant to either of the two preceding paragraphs, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
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reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. In
the case of parties indemnified pursuant to the second preceding paragraph, such
separate firm shall be designated in writing by the Manager. In the case of
parties indemnified pursuant to the immediately preceding paragraph, such
separate firm shall be designated in writing by the Corporation. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment.
If the indemnification provided for in this Article VII is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Corporation on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Corporation on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable
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considerations. The relative benefits received by the Corporation on the one
hand and the Underwriters on the other in connection with the offering of the
Securities shall be deemed to be in the same proportion as the total net
proceeds (before deducting expenses) from the offering of such Securities
received by the Corporation bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative fault
of the Corporation on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Corporation or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statements or omissions.
The Corporation and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if all of the Underwriters are treated as a single entity
for such purpose) or by any other method of allocation that does not take
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Article VII, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total public offering price of the Securities purchased by such Underwriter
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VII are several, in proportion to the respective principal amounts of
Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VIII
and the representations and warranties of the Corporation in this Agreement
shall remain operative and in full force and effect regardless of (i) any
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termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Corporation, its directors or officers, any authorized
representative of the Corporation or any person controlling the Corporation and
(iii) acceptance of and payment for any of the Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Corporation, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange,
or on any other stock exchange or automated quotation system on which the
Securities are or are to be listed or to which the Securities have been or are
to be admitted for quotation, shall have been suspended or materially limited,
(ii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iii)
there shall have occurred any material outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the Manager,
impracticable to market the Securities.
X.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Securities that it or they have agreed to purchase hereunder
and the aggregate principal amount of Securities that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions which the aggregate principal amount of Securities set forth
opposite their names in the Underwriting Agreement bears to the aggregate
principal amount of Securities set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Securities that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate
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principal amount of Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Corporation for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
thereupon terminate without liability on the part of any non-defaulting
Underwriter or of the Corporation. In any such case either the Manager or the
Corporation shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
XI.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Corporation to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Corporation shall be unable to perform its obligations
under this Agreement, the Corporation will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement, with respect to themselves,
severally, for all reasonable out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with the Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
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