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As filed with the Securities and Exchange Commission on January 31, 2001
Registration No. 333-54032
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
COMCAST CORPORATION
(Exact name of Registrant as specified in its charter)
-----------------------
Pennsylvania 23-1709202
-------------- ------------
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) See Table of Additional Registrants Identification Number)
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
(215) 665-1700
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
William E. Dordelman, Vice President
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
(215) 665-1700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------------
Copies of communications to:
Richard A. Drucker, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
-----------------------
Approximate Date of Commencement of Proposed Sale to the Public: From time
to time 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, as amended (the "Securities Act"), other than securities offered only
in connection with dividend or interest reinvestment plans, please check the
following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
-----------------------
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 SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
Additional Registrants
Comcast Corporation Trust I Delaware To be applied for
Comcast Corporation Trust II Delaware To be applied for
Comcast Corporation Trust III Delaware To be applied for
(Exact name of registrant as Specified (State of Other Jurisdiction or Incorporation (I.R.S. Employer Identification No.)
in its Charter) or Organization)
2
EXPLANATORY NOTE
The purpose of this Amendment No. 1 is to file the Exhibits to the
Registration Statement as set forth below in Item 16 of Part II.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
All of the expenses in connection with the offering are as follows:
Securities and Exchange Commission registration fee................ $1,000,000
Legal fees and expenses............................................ 75,000 *
Printing and engraving fees........................................ 50,000 *
Accountants' fees and expenses..................................... 25,000 *
Miscellaneous...................................................... 25,000 *
----------
Total......................................................... $1,175,000 *
==========
- -------------------
* Estimated
Item 15. Indemnification of Directors and Officers.
Sections 1741 through 1750 of Subchapter C, Chapter 17, of the
Pennsylvania Business Corporation Law of 1988 (the "BCL") contain provisions
for mandatory and discretionary indemnification of a corporation's directors,
officers and other personnel, and related matters.
Under Section 1741, subject to certain limitations, a corporation has the
power to indemnify directors and officers under certain prescribed
circumstances against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with an action or proceeding, whether civil, criminal, administrative or
investigative, to which any of them is a party by reason of his being a
director, officer, employee or agent of the corporation or serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the corporation and, with respect to any criminal
proceeding, has no reasonable cause to believe his conduct was unlawful. Under
Section 1743, indemnification is mandatory to the extent that the director,
officer, employee or agent has been successful on the merits or otherwise in
defense of any action or proceeding relating to third-party or derivative
actions if the appropriate standards of conduct are met.
Section 1742 provides for indemnification in derivative actions except in
respect of any claim, issue or matter as to which the person has been adjudged
to be liable to the corporation unless and only to the extent that the proper
court determines upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for the expense that the court deems proper.
Section 1744 provides that, unless ordered by a court, any indemnification
under Sections 1741 or 1742 shall be made by the corporation as authorized in
the specific case upon a determination that the representative met the
applicable standard of conduct set forth in those sections and such
determination shall be made by the board of directors by majority vote of a
quorum of directors not parties to the action or proceeding; if a quorum is not
3
obtainable or if obtainable and a majority of disinterested directors so
directs, by independent legal counsel; or by the shareholders.
Section 1745 provides that expenses incurred by an officer, director,
employee or agent in defending a civil or criminal action or proceeding may be
paid by the corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the corporation.
Section 1746 provides generally that except in any case where the act or
failure to act giving rise to the claim for indemnification is determined by
the court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by this Subchapter of the
BCL shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of shareholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding that office.
Section 1747 also grants a corporation the power to purchase and maintain
insurance on behalf of any director or officer against any liability incurred
by him in his capacity as officer or director, whether or not the corporation
would have the power to indemnify him against the liability under this
Subchapter of the BCL.
Sections 1748 and 1749 extend the indemnification and advancement of
expenses provisions contained in Sections 1741-1750 of the BCL to successor
corporations in fundamental changes and to representatives serving as
fiduciaries of employee benefit plans.
Section 1750 provides that the indemnification and advancement of expenses
provided by, or granted pursuant to, Sections 1741-1750 of the BCL shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs and personal representative of such person.
For information regarding provisions under which a director or officer of
the Company may be insured or indemnified in any manner against any liability
which he may incur in his capacity as such, reference is made to Article VII of
the Company's By-Laws.
Item 16. Exhibits.
The following exhibits are filed as part of the Registration Statement:
Exhibit
Number Description
- ------- -----------
1.1 Form of Underwriting Agreement (Debt Securities, Warrants, Purchase Contracts and Units)
(Incorporated by reference to the corresponding exhibit to our Registration Statement on Form
S-3 (File No. 333-81391)).
1.2 Form of Underwriting Agreement (Preferred Stock, Depositary Shares, Common Stock)
(Incorporated by reference to the corresponding exhibit to our Registration Statement on Form
S-3 (File No. 333-81391)).
1.3 Form of Underwriting Agreement (Preferred Securities) (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
3.1 Amended and Restated By-Laws (Incorporated by reference to
Exhibit 3(ii) to our Annual Report on Form 10-K for the year
ended December 31, 1993).
4
Exhibit
Number Description
- ------- -----------
4.1 Senior Indenture dated as of June 15, 1999 between the Company and The Bank of New York
(as successor in interest to Bank of Montreal Trust Company), as Trustee (Incorporated by
reference to the corresponding exhibit to our Registration Statement on Form S-3
(File No. 333-81391)).
4.2 Subordinated Indenture dated as of June 15, 1999 between the Company and Bankers Trust
Company, as Trustee (Incorporated by reference to the corresponding exhibit to our
Registration Statement on Form S-3 (File No. 333-81391)).
4.3 Certificate of Trust of Comcast Corporation Trust I (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.4 Certificate of Trust of Comcast Corporation Trust II (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.5 Certificate of Trust of Comcast Corporation Trust III (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.6 Declaration of Trust of Comcast Corporation Trust I (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.7 Declaration of Trust of Comcast Corporation Trust II (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.8 Declaration of Trust of Comcast Corporation Trust III (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.9 Form of Amended and Restated Declaration of Trust for each of Comcast Corporation Trust I,
Comcast Corporation Trust II and Comcast Corporation Trust III (Incorporated by reference to
the corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.10 Form of Senior Debt Security (Incorporated by reference to the corresponding exhibit to our
Registration Statement on Form S-3 (File No. 333-81391)).
4.11 Form of Subordinated Debt Security (Incorporated by reference to the corresponding exhibit to
our Registration Statement on Form S-3 (File No. 333-81391)).
4.12 Form of Preferred Security (included in Exhibit 4.9)
4.13 Form of Preferred Securities Guarantee with respect to Preferred Securities (Incorporated by
reference to the corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-
81391)).
4.14 Form of Purchase Contract Agreement relating to Purchase Contracts (to be included in Exhibit
4.15).
4.15* Form of Unit Agreement.
4.16 Form of Warrant Agreement for Warrants sold separately (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.17 Form of Warrant for Warrants sold separately (included in Exhibit 4.16).
5
Exhibit
Number Description
- ------- -----------
4.18 Form of Warrant Agreement for Warrants sold attached to other Securities (Incorporated by
reference to the corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-
81391)).
4.19 Form of Warrant for Warrants sold attached to other Securities (included in Exhibit 4.18).
4.20 Form of Pledge Agreement (Incorporated by reference to the corresponding exhibit to our
Registration Statement on Form S-3 (File No. 333-81391)).
4.21 Form of Deposit Agreement (Incorporated by reference to the corresponding exhibit to our
Registration Statement on Form S-3 (File No. 333-81391)).
4.22 Form of Depositary Share (included in Exhibit 4.21).
5.1** Opinion of Arthur R. Block, Esquire.
5.2** Opinion of Davis Polk & Wardwell.
5.3** Opinion of Richards, Layton & Finger.
12.1*** Statement re: Computation of Ratios of Earnings to Fixed Charges and Combined Fixed Charges
and Preferred Dividends.
23.1*** Consent of Deloitte & Touche LLP.
23.2*** Consent of KPMG LLP.
23.3 Consent of Arthur R. Block, Esquire (included in Exhibit 5.1).
23.4 Consent of Davis Polk & Wardwell (included in Exhibit 5.2).
23.5 Consent of Richards, Layton & Finger (included in Exhibit 5.3).
24.1*** Powers of Attorney.
25.1*** Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of
New York, as Trustee under the Senior Indenture.
25.2** Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Bankers Trust
Company, as Trustee under the Subordinated Indenture.
25.3* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the
Institutional Trustee for Comcast Corporation Trust I.
25.4* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the
Institutional Trustee for Comcast Corporation Trust II.
25.5* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the
Institutional Trustee for Comcast Corporation Trust III.
- -------------------
* To be filed with subsequent Current Report on Form 8-K.
** Filed herewith.
*** Previously filed with this Registration Statement.
6
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
1. (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 of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that subparagraphs (a) (i) and (a) (ii) shall not apply
to the extent that information required to be included in a post-effective
amendment by those subparagraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act") that are incorporated by reference in the
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.
2. The undersigned Registrant hereby undertakes 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 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.
3. If the securities to be registered are to be offered at competitive
bidding, the undersigned registrant hereby undertakes (1) to use its best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus which
at that time meets the requirements of Section 10(a) of the Securities Act, and
relating to the securities offered at competitive bidding, as contained in the
Registration Statement, together with any supplements thereto, and (2) to file
an amendment to the Registration Statement reflecting the results of bidding,
the terms of the reoffering and related matters to the extent required by the
applicable form, not later thin the first use, authorized by the issuer after
the opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by
the issuer and no reoffering of such securities by the purchasers is proposed
to be made.
4. 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 foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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
7
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
8
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Comcast
Corporation 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 Philadelphia, Pennsylvania, on the 31st day of January,
2001.
COMCAST CORPORATION
By: /s/ William E. Dordelman
--------------------------------
William E. Dordelman,
Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
-
*
- --------------------------- Chairman and Director January 31, 2001
Ralph J. Roberts
*
- --------------------------- Vice Chairman and Director January 31, 2001
Julian A. Brodsky
*
- --------------------------- President (Principal Executive
Brian L. Roberts Officer) and Director January 31, 2001
*
- --------------------------- Executive Vice President and
John R. Alchin Treasurer (Principal Financial
Officer) January 31, 2001
*
- --------------------------- Senior Vice President
Lawrence J. Salva (Principal Accounting Officer) January 31, 2001
9
Signature Title Date
--------- ----- ----
*
- --------------------------- Director January 31, 2001
Gustave G. Amsterdam
*
- --------------------------- Director January 31, 2001
Sheldon M. Bonovitz
*
- --------------------------- Director January 31, 2001
Joseph L. Castle II
*
- --------------------------- Director January 31, 2001
Felix G. Rohatyn
*
- --------------------------- Director January 31, 2001
Bernard C. Watson
*
- --------------------------- Director January 31, 2001
Irving A. Wechsler
*
- --------------------------- Director January 31, 2001
Anne Wexler
By: /s/William E. Dordelman
- ---------------------------
William E. Dordelman
Attorney in fact
10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Comcast
Corporation Trust I, Comcast Corporation Trust II and Comcast Corporation Trust
III certify that they have reasonable grounds to believe that they meet all of
the requirements for filing on Form S-3 and that they have duly caused this
Registration Statement or amendment thereto to be signed on their behalf by the
undersigned, thereunto duly authorized, in the City of Newark, State of
Delaware, and the City of Philadelphia and State of Pennsylvania on 31st day of
January, 2001.
COMCAST CORPORATION TRUST I
By: /s/ Donald J. Puglisi
---------------------------------
Name: Donald J. Puglisi
Title: Trustee
By: /s/ William E. Dordelman
---------------------------------
Name: William E. Dordelman
Title: Trustee
COMCAST CORPORATION TRUST II
By: /s/ Donald J. Puglisi
---------------------------------
Name: Donald J. Puglisi
Title: Trustee
By: /s/ William E. Dordelman
---------------------------------
Name: William E. Dordelman
Title: Trustee
COMCAST CORPORATION TRUST III
By: /s/ Donald J. Puglisi
---------------------------------
Name: Donald J. Puglisi
Title: Trustee
By: /s/ William E. Dordelman
---------------------------------
Name: William E. Dordelman
Title: Trustee
11
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
1.1 Form of Underwriting Agreement (Debt Securities, Warrants, Purchase Contracts and
Units) (Incorporated by reference to the corresponding exhibit to our Registration
Statement on Form S-3 (File No. 333-81391)).
1.2 Form of Underwriting Agreement (Preferred Stock, Depositary Shares, Common Stock)
(Incorporated by reference to the corresponding exhibit to our Registration Statement on
Form S-3 (File No. 333-81391)).
1.3 Form of Underwriting Agreement (Preferred Securities) (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
3.1 Amended and Restated By-Laws (Incorporated by reference to Exhibit 3(ii) to our Annual
Report on Form 10-K for the year ended December 31, 1993).
4.1 Senior Indenture dated as of June 15, 1999 between the Company and The Bank of New York
(as successor in interest to Bank of Montreal Trust Company), as Trustee (Incorporated by
reference to the corresponding exhibit to our Registration Statement on Form S-3
(File No. 333-81391)).
4.2 Subordinated Indenture dated as of June 15, 1999 between the Company and Bankers Trust
Company, as Trustee (Incorporated by reference to the corresponding exhibit to our
Registration Statement on Form S-3 (File No. 333-81391)).
4.3 Certificate of Trust of Comcast Corporation Trust I (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.4 Certificate of Trust of Comcast Corporation Trust II (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.5 Certificate of Trust of Comcast Corporation Trust III (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.6 Declaration of Trust of Comcast Corporation Trust I (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.7 Declaration of Trust of Comcast Corporation Trust II (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.8 Declaration of Trust of Comcast Corporation Trust III (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.9 Form of Amended and Restated Declaration of Trust for each of Comcast Corporation Trust I,
Comcast Corporation Trust II and Comcast Corporation Trust III (Incorporated by reference to
the corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.10 Form of Senior Debt Security (Incorporated by reference to the corresponding exhibit to
our Registration Statement on Form S-3 (File No. 333-81391)).
4.11 Form of Subordinated Debt Security (Incorporated by reference to the corresponding
exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
E-1
Exhibit
Number Description
- ------- -----------
4.12 Form of Preferred Security (included in Exhibit 4.9).
4.13 Form of Preferred Securities Guarantee with respect to Preferred Securities (Incorporated
by reference to the corresponding exhibit to our Registration Statement on Form S-3 (File
No. 333-81391)).
4.14 Form of Purchase Contract Agreement relating to Purchase Contracts (to be included in
Exhibit 4.15).
4.15* Form of Unit Agreement.
4.16 Form of Warrant Agreement for Warrants sold separately (Incorporated by reference to the
corresponding exhibit to our Registration Statement on Form S-3 (File No. 333-81391)).
4.17 Form of Warrant for Warrants sold separately (included in Exhibit 4.16) (Incorporated by
reference to the corresponding exhibit to our Registration Statement on Form S-3 (File No.
333-81391)).
4.18 Form of Warrant Agreement for Warrants sold attached to other Securities (Incorporated
by reference to the corresponding exhibit to our Registration Statement on Form S-3 (File
No. 333-81391)).
4.19 Form of Warrant for Warrants sold attached to other Securities (included in Exhibit 4.18).
4.20 Form of Pledge Agreement (Incorporated by reference to the corresponding exhibit to our
Registration Statement on Form S-3 (File No. 333-81391)).
4.21 Form of Deposit Agreement (Incorporated by reference to the corresponding exhibit to our
Registration Statement on Form S-3 (File No. 333-81391)).
4.22 Form of Depositary Share (included in Exhibit 4.21).
5.1** Opinion of Arthur R. Block, Esquire.
5.2** Opinion of Davis Polk & Wardwell.
5.3** Opinion of Richards, Layton & Finger.
12.1*** Statement re: Computation of Ratios of Earnings to Fixed Charges and to Combined Fixed
Charges and Preferred Dividends.
23.1*** Consent of Deloitte & Touche LLP.
23.2*** Consent of KPMG LLP.
23.3 Consent of Arthur R. Block, Esquire (included in Exhibit 5.1).
23.4 Consent of Davis Polk & Wardwell (included in Exhibit 5.2).
23.5 Consent of Richards, Layton & Finger (included in Exhibit 5.3).
24.1*** Powers of Attorney.
25.1*** Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of
New York, as Trustee under the Senior Indenture.
E-2
Exhibit
Number Description
- ------- -----------
25.2** Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Bankers Trust
Company, as Trustee under the Subordinated Indenture.
25.3* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the
Institutional Trustee for Comcast Corporation Trust I.
25.4* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the
Institutional Trustee for Comcast Corporation Trust II.
25.5* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the
Institutional Trustee for Comcast Corporation Trust III.
- -------------------
* To be filed with subsequent Current Report on Form 8-K.
** Filed herewith.
*** Previously filed with this Registration Statement.
E-3
EXHIBIT 5.1
[LETTERHAD OF COMCAST CORPORATION]
January 31, 2001
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of Comcast Corporation, a
Pennsylvania corporation (the "Company") and have acted for the Company in
connection with the Company's Registration Statement on Form S-3 (the
"Registration Statement") filed with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended, for the registration of the
sale by the Company from time to time of up to $4,000,000,000 aggregate
principal amount of (i) senior debt securities and subordinated debt securities
(collectively, the "Debt Securities"), (ii) shares of preferred stock, without
par value (the "Preferred Stock"), (iii) shares of Class A Common Stock, $1.00
par value (the "Class A Common Stock"), (iv) shares of Class A Special Common
Stock, $1.00 par value (the "Class A Special Common Stock") (v) warrants to
purchase Debt Securities, Preferred Stock, Class A Common Stock, Class A
Special Common Stock or other securities or rights ("Warrants"), (vi) purchase
contracts ("Purchase Contracts") requiring the holders thereof to purchase or
sell (x) the Company's securities or securities of an entity unaffiliated or
affiliated with the Company, a basket of such securities, an index or indices
of such securities or any combination of the above, (y) currencies or composite
currencies or (z) commodities, (vii) preferred securities (the "Preferred
Securities") of Comcast Corporation Trust I, Comcast Corporation Trust II and
Comcast Corporation Trust III, each a statutory business trust created under
the Business Trust Act of the State of Delaware (each, a "Trust"and,
collectively, the "Trusts"), (viii) units ("Units") consisting of Debt
Securities, Warrants, Purchase Contracts, Preferred Securities, Preferred
Stock, Class A Common Stock or Class A Special Common Stock or any combination
of the foregoing and (ix) guarantees of the Preferred Securities by the Company
(the "Guarantees"). The Debt Securities, Preferred Stock, Class A Common Stock,
Class A Special Common Stock, Warrants, Purchase Contracts, Preferred
Securities, Units and Guarantees are herein collectively referred to as the
"Securities".
Comcast Corporation 2 January 31, 2001
The Debt Securities and the Preferred Stock may be convertible and/or
exchangeable for Securities or other securities or rights. The senior Debt
Securities are to be issued pursuant to an Indenture (the "Senior Indenture")
dated as of June 15, 1999 between the Company and The Bank of New York (as
successor in interest to Bank of Montreal Trust Company), as Trustee. The
subordinated Debt Securities are to be issued pursuant to an Indenture (the
"Subordinated Indenture") dated as of June 15, 1999 between the Company and
Bankers Trust Company, as Trustee. The Senior Indenture and the Subordinated
Indenture are hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures". The Company may offer Depositary Shares (the
"Depositary Shares") representing interests in Preferred Stock deposited with a
Depositary and evidenced by Depositary Receipts, and such Depositary Shares are
also covered by the Registration Statement.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as I have deemed necessary or advisable for the
purpose of rendering this opinion.
Based upon the foregoing, I am of the opinion that:
1. Upon designation of the preferences and relative,
participating, optional and other special rights, and qualifications,
limitations or restrictions, of any series of Preferred Stock by the
Board of Directors of the Company and proper filing with the
Secretary of State of the Commonwealth of Pennsylvania of a
Certificate of Designations relating to such series of Preferred
Stock, all necessary corporate action on the part of the Company will
have been taken to authorize the issuance and sale of such series of
Preferred Stock proposed to be sold by the Company, and when such
shares of Preferred Stock are issued and delivered against payment
therefor in accordance with the applicable underwriting or other
agreement or upon conversion in accordance with the terms of any
other Security that has been duly authorized, issued, paid for and
delivered, such shares will be validly issued, fully paid and
non-assessable.
2. When the specific terms of any offering or offerings of Class
A Special Common Stock have been duly established by the Board of
Directors of the Company and in accordance with provisions of any
applicable underwriting agreement so as not to violate any applicable
law or agreement or instrument then binding on the Company, and
shares of the Class A Special Common Stock have been issued and sold
against payment therefor in accordance with the applicable
underwriting or other agreement or upon exchange in accordance with
the terms of any Security that has been duly authorized, issued, paid
for and delivered, such shares will be validly issued, fully paid and
non-assessable.
Comcast Corporation 3 January 31, 2001
3. When the specific terms of any offering or offerings of Class
A Common Stock have been duly established by the Board of Directors
of the Company and in accordance with provisions of any applicable
underwriting agreement so as not to violate any applicable law or
agreement or instrument then binding on the Company, and shares of
the Class A Common Stock have been issued and sold against payment
therefor in accordance with the applicable underwriting or other
agreement or upon exchange in accordance with the terms of any other
Security that has been duly authorized, issued, paid for and
delivered, such shares will be validly issued, fully paid and
non-assessable.
4. When Depositary Shares evidenced by Depositary Receipts are
issued and delivered in accordance with the terms of a Deposit
Agreement against the deposit of duly authorized, validly issued,
fully paid and non-assessable shares of Preferred Stock, such
Depositary Shares will entitle the holders thereof to the rights
specified in the Deposit Agreement.
In connection with my opinions expressed above, I have assumed that, at or
prior to the time of the delivery of any such Security, (i) the Board of
Directors shall have duly established the terms of such Security, (ii) the
Registration Statement shall have been declared effective and such
effectiveness shall not have been terminated or rescinded and (iii) there shall
not have occurred any change in law affecting the validity or enforceability of
such Security. I have also assumed that none of the terms of any Security to be
established subsequent to the date hereof, nor the issuance and delivery of
such Security, nor the compliance by the Company with the terms of such
Security will violate any applicable law or will result in a violation of any
provision of any instrument or agreement then binding upon the Company, or any
restriction imposed by any court or governmental body having jurisdiction over
the Company.
I am a member of the Bar of the Commonwealth of Pennsylvania and the
foregoing opinion is limited to the laws of the Commonwealth of Pennsylvania
and the federal laws of the United States of America.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In addition, I consent to the reference to me under the
caption "Legal Matters" in the prospectus.
Comcast Corporation 4 January 31, 2001
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without my prior written
consent.
Very truly yours,
/s/ Arthur R. Block
-------------------------
Arthur R. Block
Senior Vice President and
General Counsel
EXHIBIT 5.2
DAVIS POLK & WARDWELL
450 Lexington Avenue
New York, NY 10017
January 31, 2001
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
Ladies and Gentlemen:
We have acted as your counsel in connection with the Company's
Registration Statement on Form S-3 (the "Registration Statement") filed with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, for the registration of the sale by Comcast Corporation, a
Pennsylvania corporation (the "Company") from time to time of up to
$4,000,000,000 aggregate principal amount of (i) senior debt securities and
subordinated debt securities (collectively, the "Debt Securities"), (ii) shares
of preferred stock, without par value (the "Preferred Stock"), (iii) shares of
Class A Common Stock, $1.00 par value (the "Class A Common Stock"), (iv) shares
of Class A Special Common Stock, $1.00 par value (the "Class A Special Common
Stock") (v) warrants to purchase Debt Securities, Preferred Stock, Class A
Common Stock, Class A Special Common Stock or other securities or rights
("Warrants"), (vi) purchase contracts ("Purchase Contracts") requiring the
holders thereof to purchase or sell (x) the Company's securities or securities
of an entity unaffiliated or affiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (y) currencies or composite currencies or (z) commodities, (vii)
preferred securities (the "Preferred Securities") of Comcast Corporation Trust
I, Comcast Corporation Trust II and Comcast Corporation Trust III, each a
statutory business trust created under the Business Trust Act of the State of
Delaware (each, a "Trust") and, collectively, the "Trusts"), (viii) units
("Units") consisting of Debt Securities, Warrants, Purchase Contracts,
Preferred Securities, Preferred Stock, Class A Common Stock or Class A Special
Common Stock or any combination of the foregoing and (ix) guarantees of the
Preferred Securities by the Company (the "Guarantees"). The Debt Securities,
Preferred Stock, Class A Common Stock, Class A Special Common Stock, Warrants,
Purchase Contracts, Preferred Securities, Units and Guarantees are herein
collectively referred to as the "Securities". The Debt Securities and the
Preferred Stock may be convertible and/or exchangeable for Securities or other
securities or rights. The senior Debt Securities are to be issued pursuant to
an Indenture (the "Senior Indenture") dated as of June 15, 1999 between the
Comcast Corporation -2- January 31, 2001
Company and The Bank of New York (as successor in interest to Bank of Montreal
Trust Company), as Trustee. The subordinated Debt Securities are to be issued
pursuant to an Indenture (the "Subordinated Indenture") dated as of June 15,
1999 between the Company and Bankers Trust Company, as Trustee. The Senior
Indenture and the Subordinated Indenture are hereinafter referred to
individually as an "Indenture" and collectively as the "Indentures". The
Company may offer Depositary Shares (the "Depositary Shares") representing
interests in Preferred Stock Deposited with a Depositary and evidenced by
Depositary Receipts, an such Depositary Shares are also covered by the
Registration Statement.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary for the purposes of
rendering this opinion.
On the basis of the foregoing, we are of the opinion that:
1. When the specific terms of a particular Debt Security have
been duly authorized and established in accordance with the
applicable Indenture and such Debt Security has been duly authorized,
executed, authenticated, issued and delivered in accordance with the
applicable Indenture and the applicable underwriting or other
agreement, such Debt Security will constitute a valid and binding
obligation of the Company, enforceable in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally from time to time in effect and
to general equity principles).
2. When the Warrants have been duly authorized by the Company,
the applicable Warrant Agreement has been duly executed and delivered
and the Warrants have been duly issued and delivered by the Company
as contemplated by the Registration Statement and any prospectus
supplement relating thereto, the Warrants will constitute valid and
binding obligations of the Company, enforceable in accordance with
their terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally from time to time in
effect and to general equity principles).
3. When the Guarantees have been duly authorized by the Company,
the applicable Guarantee Agreement has been duly executed and
delivered and the
Comcast Corporation -3- January 31, 2001
Preferred Securities have been duly issued and delivered by the
applicable Trust as contemplated by the Registration Statement and
any prospectus supplement relating thereto, the Guarantees will
constitute valid and binding obligations of the Company, enforceable
in accordance with their terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights
generally from time to time in effect and to get general equity
principles).
4. When the Units and Purchase Contracts have been duly
authorized by the Company, the applicable Unit Agreement, Purchase
Contract Agreement and Pledge Agreement have been duly executed and
delivered, the Units and Purchase Contracts will constitute valid and
binding obligations of the Company, enforceable in accordance with
their terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally from time to time in
effect and to general equity principles).
In connection with the opinions expressed above, we have assumed that, at
or prior to the time of the delivery of any such Security, (i) the Board of
Directors shall have duly established the terms of such Security and duly
authorized the issuance and sale of such Security and such authorization shall
not have been modified or rescinded; (ii) the Registration Statement shall have
been declared effective and such effectiveness shall not have been terminated
or rescinded; and (iii) there shall not have occurred any change in law
affecting the validity or enforceability of such Security. We have also assumed
that none of the terms of any Security to be established subsequent to the date
hereof, nor the issuance and delivery of such Security, nor the compliance by
the Company with the terms of such Security will violate any applicable law or
will result in a violation of any provision of any instrument or agreement then
binding upon the Company, or any restriction imposed by any court or
governmental body having jurisdiction over the Company.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In addition, we consent to the reference to us under
the caption "Legal Matters" in the prospectus.
Comcast Corporation -4- January 31, 2001
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
/s/ Davis Polk & Wardwell
EXHIBIT 5.3
[Letterhead of Richards, Layton & Finger, P.A.]
January 31, 2001
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
Re: Comcast Corporation Trust I, Comcast Corporation Trust II
and Comcast Corporation Trust III
---------------------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Comcast Corporation, a
Pennsylvania corporation (the "Company"), Comcast Corporation Trust I, a
Delaware business trust ("Trust I"), Comcast Corporation Trust II, a Delaware
business trust ("Trust II") and Comcast Corporation Trust III, a Delaware
business trust ("Trust III") (Trust I, Trust II and Trust III are hereinafter
collectively referred to as the "Trusts" and sometimes hereinafter individually
referred to as a "Trust"), in connection with the matters set forth herein. At
your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of Trust I, as filed with the office of the
Secretary of State of the State of Delaware (the "Secretary of
State") on June 16, 1999;
(b) The Certificate of Trust of Trust II, as filed with the Secretary of
State on June 16, 1999;
(c) The Certificate of Trust of Trust III, as filed with the Secretary of
State on June 16, 1999;
Comcast Corporation
January 31, 2001
Page 2
(d) The Declaration of Trust of Trust I, dated as of June 16, 1999, among
the Company and the trustees named therein;
(e) The Declaration of Trust of Trust II, dated as of June 16, 1999,
among the Company and the trustees named therein;
(f) The Declaration of Trust of Trust III, dated as of June 16, 1999,
among the Company and the trustees named therein;
(g) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus with respect to the Trusts,
filed by the Company with the Securities and Exchange Commission on
January 19, 2001, as amended by Amendment No. 1 thereto, filed by the
Company with the Securities and Exchange Commission on January 31,
2001, (the "Prospectus"), relating to the Guaranteed Trust Preferred
Securities of the Trusts representing preferred undivided beneficial
interests in the assets of the Trusts (each, a "Guaranteed Trust
Preferred Security" and collectively, the "Guaranteed Trust Preferred
Securities");
(h) A form of Amended and Restated Declaration of Trust for each of the
Trusts, to be entered into between the Company, the trustees of the
Trust named therein, and the holders, from time to time, of the
undivided beneficial interests in the assets of such Trust
(collectively, the "Trust Agreements" and individually, a "Trust
Agreement"), attached as an exhibit to the Registration Statement;
and
(i) A Certificate of Good Standing for each of the Trusts, dated January
31, 2001, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Trust Agreements.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (i) above. In particular,
we have not reviewed any document (other than the documents listed in
paragraphs (a) through (i) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent
with the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
Comcast Corporation
January 31, 2001
Page 3
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the Trust
Agreements will constitute the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the applicable Trust, and that the Trust
Agreements and the Certificates of Trust will be in full force and effect and
will not be amended, (ii) except to the extent provided in paragraph 1 below,
the due organization or due formation, as the case may be, and valid existence
in good standing of each party to the documents examined by us under the laws
of the jurisdiction governing its organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to
whom a Guaranteed Trust Preferred Security is to be issued by the Trusts
(collectively, the "Guaranteed Trust Preferred Security Holders") of a
Guaranteed Trust Preferred Security Certificate for such Guaranteed Trust
Preferred Security and the payment for such Guaranteed Trust Preferred
Security, in accordance with the Trust Agreements and the Registration
Statement, and (vii) that the Guaranteed Trust Preferred Securities are
authenticated, issued and sold to the Capital Security Holders in accordance
with the Trust Agreements and the Registration Statement. We have not
participated in the preparation of the Registration Statement or the Prospectus
and assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered only
with respect to Delaware laws and rules, regulations and orders thereunder
which are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
Comcast Corporation
January 31, 2001
Page 4
2. The Guaranteed Trust Preferred Securities of each Trust will represent
valid and, subject to the qualifications set forth in paragraph 3 below, fully
paid and nonassessable undivided beneficial interests in the assets of the
applicable Trust.
3. The Guaranteed Trust Preferred Security Holders, as beneficial owners
of the applicable Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Guaranteed Trust Preferred Security Holders may be obligated to make payments
as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. We hereby consent to
the use of our name under the heading "Legal Matters" in the Prospectus. In
giving the foregoing consents, we do not thereby admit that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder. Except as stated above, without our prior
written consent, this opinion may not be furnished or quoted to, or relied upon
by, any other person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
GCK/ks
=-------------------------------------------------------------------------------
EXHIBIT 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED
TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
------------------------------------------------------
Comcast Corporation
(Exact name of Registrant as specified in its charter)
Pennsylvania 23-1709202
(State or other jurisdiction or organization) (IRS Employer
Identification no.)
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
(Address, including zip code and telephone number
of principal executive offices)
Debt Securities
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers. Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust Company
dated August 6, 1998, Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated
September 25, 1998, and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated
December 16, 1998, copies attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with
Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2
filed with Form T-1 Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
June 22, 1999. Copy attached.
-2-
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company equired by Section 321(b)
of the Act. - incorporated herein by reference to Exhibit
filed with Form T-1 Statement, egistration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of September 30, 2000. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New York,
on this 31st day of January, 2001.
BANKERS TRUST COMPANY
By: /s/ Daniel M. Chipko
-------------------------
Daniel M. Chipko Associate
-4-
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated September 16, 1998, providing for an increase in authorized
capital stock from $3,001,666,670 consisting of 200,166,667 shares with a par
value of $10 each designated as Common Stock and 1,000 shares with a par value
of $1,000,000 each designated as Series Preferred Stock to $3,501,666,670
consisting of 200,166,667 shares with a par value of $10 each designated as
Common Stock and 1,500 shares with a par value of $1,000,000 each designated as
Series Preferred Stock. Witness, my hand and official seal of the Banking
Department at the City of New York,
this 25th day of September in the Year of our Lord
one thousand nine hundred and ninety-eight.
Manuel Kursky
-----------------------------------
Deputy Superintendent of Banks
RESTATED
ORGANIZATION
CERTIFICATE
OF
BANKERS TRUST COMPANY
----------------------------
Under Section 8007
Of the Banking Law
----------------------------
Bankers Trust Company
130 Liberty Street
New York, N.Y. 10006
Counterpart Filed in the Office of the Superintendent of Banks,
State of New York, August 31, 1998
RESTATED ORGANIZATION CERTIFICATE
OF
BANKERS TRUST
Under Section 8007 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary and a Vice President and an Assistant
Secretary of BANKERS TRUST COMPANY, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of the corporation was filed by the
Superintendent of Banks of the State of New York on the March 5, 1903.
3. The text of the organization certificate, as amended heretofore, is
hereby restated without further amendment or change to read as herein set forth
in full, to wit:
"Certificate of Organization
of
Bankers Trust Company
Know All Men By These Presents That we, the undersigned, James A. Blair,
James G. Cannon, E. C. Converse, Henry P. Davison, Granville W. Garth, A.
Barton Hepburn, Will Logan, Gates W. McGarrah, George W. Perkins, William H.
Porter, John F. Thompson, Albert H. Wiggin, Samuel Woolverton and Edward F. C.
Young, all being persons of full age and citizens of the United States, and a
majority of us being residents of the State of New York, desiring to form a
corporation to be known as a Trust Company, do hereby associate ourselves
together for that purpose under and pursuant to the laws of the State of New
York, and for such purpose we do hereby, under our respective hands and seals,
execute and duly acknowledge this Organization Certificate in duplicate, and
hereby specifically state as follows, to wit:
I. The name by which the said corporation shall be known is Bankers Trust
Company.
II. The place where its business is to be transacted is the City of New
York, in the State of New York.
III. Capital Stock: The amount of capital stock which the corporation is
hereafter to have is Three Billion One Million, Six Hundred Sixty-Six Thousand,
Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares
with a par value of $10 each designated as Common Stock and 1,000 shares with a
par value of One Million Dollars ($1,000,000) each designated as Series
Preferred Stock.
(a) Common Stock
1. Dividends: Subject to all of the rights of the Series Preferred Stock,
dividends may be declared and paid or set apart for payment upon the Common
Stock out of any assets or funds of the corporation legally available for the
payment of dividends.
2. Voting Rights: Except as otherwise expressly provided with respect to
the Series Preferred Stock or with respect to any series of the Series
Preferred Stock, the Common Stock shall have the exclusive right to vote for
the election of directors and for all other purposes, each holder of the Common
Stock being entitled to one vote for each share thereof held.
3. Liquidation: Upon any liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, and after the holders of the
Series Preferred Stock of each series shall have been paid in full the amounts
to which they respectively shall be entitled, or a sum sufficient for the
payment in full set aside, the remaining net assets of the corporation shall be
distributed pro rata to the holders of the Common Stock in accordance with
their respective rights and interests, to the exclusion of the holders of the
Series Preferred Stock.
4. Preemptive Rights: No holder of Common Stock of the corporation shall
be entitled, as such, as a matter of right, to subscribe for or purchase any
part of any new or additional issue of stock of any class or series whatsoever,
any rights or options to purchase stock of any class or series whatsoever, or
any securities convertible into, exchangeable for or carrying rights or options
to purchase stock of any class or series whatsoever, whether now or hereafter
authorized, and whether issued for cash or other consideration, or by way of
dividend or other distribution.
(b) Series Preferred Stock
1. Board Authority: The Series Preferred Stock may be issued from time to
time by the Board of Directors as herein provided in one or more series. The
designations, relative rights, preferences and limitations of the Series
Preferred Stock, and particularly of the shares of each series thereof, may, to
the extent permitted by law, be similar to or may differ from those of any
other series. The Board of Directors of the corporation is hereby expressly
granted authority, subject to the provisions of this Article III, to issue from
time to time Series Preferred Stock in one or more series and to fix from time
to time before issuance thereof, by filing a certificate pursuant to the
Banking Law, the number of shares in each such series of such class and all
designations, relative rights (including the right, to the extent permitted by
law, to convert into shares of any class or into shares of any series of any
class), preferences and limitations of the shares in each such series,
including, buy without limiting the generality of the foregoing, the following:
(i) The number of shares to constitute such series (which number may
at any time, or from time to time, be increased or decreased by the Board
of Directors, notwithstanding that shares of the series may be outstanding
at the time of such increase or decrease, unless the Board of Directors
shall have otherwise provided in creating such series) and the distinctive
designation thereof;
(ii) The dividend rate on the shares of such series, whether or not
dividends on the shares of such series shall be cumulative, and the date
or dates, if any, from which dividends thereon shall be cumulative;
(iii) Whether or not the share of such series shall be redeemable,
and, if redeemable, the date or dates upon or after which they shall be
redeemable, the amount or amounts per share (which shall be, in the case
of each share, not less than its preference upon involuntary liquidation,
plus an amount equal to all dividends thereon accrued and unpaid, whether
or not earned or declared) payable thereon in the case of the redemption
thereof, which amount may vary at different redemption dates or otherwise
as permitted by law;
(iv) The right, if any, of holders of shares of such series to
convert the same into, or exchange the same for, Common Stock or other
stock as permitted by law, and the terms and conditions of such conversion
or exchange, as well as provisions for adjustment of the conversion rate
in such events as the Board of Directors shall determine;
(v) The amount per share payable on the shares of such series upon
the voluntary and involuntary liquidation, dissolution or winding up of
the corporation;
(vi) Whether the holders of shares of such series shall have voting
power, full or limited, in addition to the voting powers provided by law
and, in case additional voting powers are accorded, to fix the extent
thereof; and
(vii) Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions of such rights and privileges
of such series, provided, however, that no such rights, privileges,
qualifications, limitations or restrictions shall be in conflict with the
organization certificate of the corporation or with the resolution or
resolutions adopted by the Board of Directors providing for the issue of
any series of which there are shares outstanding.
All shares of Series Preferred Stock of the same series shall be identical
in all respects, except that shares of any one series issued at different times
may differ as to dates, if any, from which dividends thereon may accumulate.
All shares of Series Preferred Stock of all series shall be of equal rank and
shall be identical in all respects except that to the extent not otherwise
limited in this Article III any series may differ from any other series with
respect to any one or more of the designations, relative rights, preferences
and limitations described or referred to in subparagraphs (I) to (vii)
inclusive above.
2. Dividends: Dividends on the outstanding Series Preferred Stock of each
series shall be declared and paid or set apart for payment before any dividends
shall be declared and paid or set apart for payment on the Common Stock with
respect to the same quarterly dividend period. Dividends on any shares of
Series Preferred Stock shall be cumulative only if and to the extent set forth
in a certificate filed pursuant to law. After dividends on all shares of Series
Preferred Stock (including cumulative dividends if and to the extend any such
shares shall be entitled thereto) shall have been declared and paid or set
apart for payment with respect to any quarterly dividend period, then and not
otherwise so long as any shares of Series Preferred Stock shall remain
outstanding, dividends may be declared and paid or set apart for payment with
respect to the same quarterly dividend period on the Common Stock out the
assets or funds of the corporation legally available therefor.
All Shares of Series Preferred Stock of all series shall be of equal rank,
preference and priority as to dividends irrespective of whether or not the
rates of dividends to which the same shall be entitled shall be the same and
when the stated dividends are not paid in full, the shares of all series of the
Series Preferred Stock shall share ratably in the payment thereof in accordance
with the sums which would by payable on such shares if all dividends were paid
in full, provided, however, that nay two or more series of the Series Preferred
Stock may differ from each other as to the existence and extent of the right to
cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided in the
certificate filed pursuant to law with respect to any series of the Series
Preferred Stock, or as otherwise provided by law, the Series Preferred Stock
shall not have any right to vote for the election of directors or for any other
purpose and the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes.
4. Liquidation: In the event of any liquidation, dissolution or winding up
of the corporation, whether voluntary or involuntary, each series of Series
Preferred Stock shall have preference and priority over the Common Stock for
payment of the amount to which each outstanding series of Series Preferred
Stock shall be entitled in accordance with the provisions thereof and each
holder of Series Preferred Stock shall be entitled to be paid in full such
amount, or have a sum sufficient for the payment in full set aside, before any
payments shall be made to the holders of the Common Stock. If, upon
liquidation, dissolution or winding up of the corporation, the assets of the
corporation or proceeds thereof, distributable among the holders of the shares
of all series of the Series Preferred Stock shall be insufficient to pay in
full the preferential amount aforesaid, then such assets, or the proceeds
thereof, shall be distributed among such holders ratably in accordance with the
respective amounts which would be payable if all amounts payable thereon were
paid in full. After the payment to the holders of Series Preferred Stock of all
such amounts to which they are entitled, as above provided, the remaining
assets and funds of the corporation shall be divided and paid to the holders of
the Common Stock.
5. Redemption: In the event that the Series Preferred Stock of any series
shall be made redeemable as provided in clause (iii) of paragraph 1 of section
(b) of this Article III, the corporation, at the option of the Board of
Directors, may redeem at any time or times, and from time to time, all or any
part of any one or more series of Series Preferred Stock outstanding by paying
for each share the then applicable redemption price fixed by the Board of
Directors as provided herein, plus an amount equal to accrued and unpaid
dividends to the date fixed for redemption, upon such notice and terms as may
be specifically provided in the certificate filed pursuant to law with respect
to the series.
6. Preemptive Rights: No holder of Series Preferred Stock of the
corporation shall be entitled, as such, as a matter or right, to subscribe for
or purchase any part of any new or additional issue of stock of any class or
series whatsoever, any rights or options to purchase stock of any class or
series whatsoever, or any securities convertible into, exchangeable for or
carrying rights or options to purchase stock of any class or series whatsoever,
whether now or hereafter authorized, and whether issued for cash or other
consideration, or by way of dividend.
(c) Provisions relating to Floating Rate Non-Cumulative Preferred Stock,
Series A. (Liquidation value $1,000,000 per share.)
1. Designation: The distinctive designation of the series established
hereby shall be "Floating Rate Non-Cumulative Preferred Stock, Series A"
(hereinafter called "Series A Preferred Stock").
2. Number: The number of shares of Series A Preferred Stock shall
initially be 250 shares. Shares of Series A Preferred Stock redeemed, purchased
or otherwise acquired by the corporation shall be cancelled and shall revert to
authorized but unissued Series Preferred Stock undesignated as to series.
3. Dividends:
(a) Dividend Payments Dates. Holders of the Series A Preferred Stock shall
be entitled to receive non-cumulative cash dividends when, as and if declared
by the Board of Directors of the corporation, out of funds legally available
therefor, from the date of original issuance of such shares (the "Issue Date")
and such dividends will be payable on March 28, June 28, September 28 and
December 28 of each year (:Dividend Payment Date") commencing September 28,
1990, at a rate per annum as determined in paragraph 3(b) below. The period
beginning on the Issue Date and ending on the day preceding the firs Dividend
Payment Date and each successive period beginning on a Dividend Payment Date
and ending on the date preceding the next succeeding Dividend Payment Date is
herein called a "Dividend Period". If any Dividend payment Date shall be, in
The City of New York, a Sunday or a legal holiday or a day on which
banking institutions are authorized by law to close, then payment will be
postponed to the next succeeding business day with the same force and effect as
if made on the Dividend Payment Date, and no interest shall accrue for such
Dividend Period after such Dividend Payment Date.
(b) Dividend Rate. The dividend rare from time to time payable in respect
of Series A Preferred Stock (the "Dividend Rate") shall be determined on the
basis of the following provisions:
(i) On the Dividend Determination Date, LIBOR will be determined on the
basis of the offered rates for deposits in U.S. dollars having a maturity of
three months commencing on the second London Business Day immediately following
such Dividend Determination Date, as such rates appear on the Reuters Screen
LIBO Page as of 11:00 A.M. London time, on such Dividend Determination Date. If
at least two such offered rates appear on the Reuters Screen LIBO Page, LIBOR
in respect of such Dividend Determination Dates will be the arithmetic mean
(rounded to the nearest one-hundredth of a percent, with five one-thousandths
of a percent rounded upwards) of such offered rates. If fewer than those
offered rates appear, LIBOR in respect of such Dividend Determination Date will
be determined as described in paragraph (ii) below.
(ii) On any Dividend Determination Date on which fewer than those offered
rates for the applicable maturity appear on the Reuters Screen LIBO Page as
specified in paragraph (I) above, LIBOR will be determined on the basis of the
rates at which deposits in U.S. dollars having a maturity of three months
commending on the second London Business Day immediately following such
Dividend Determination Date and in a principal amount of not less than
$1,000,000 that is representative of a single transaction in such market at
such time are offered by three major banks in the London interbank market
selected by the corporation at approximately 11:00 A.M., London time, on such
Dividend Determination Date to prime banks in the London market. The
corporation will request the principal London office of each of such banks to
provide a quotation of its rate. If at least two such quotations are provided,
LIBOR in respect of such Dividend Determination Date will be the arithmetic
mean (rounded to the nearest one-hundredth of a percent, with five
one-thousandths of a percent rounded upwards) of such quotations. If fewer than
two quotations are provided, LIBOR in respect of such Dividend Determination
Date will be the arithmetic mean (rounded to the nearest one-hundredth of a
percent, with five one-thousandths of a percent rounded upwards) of the rates
quoted by three major banks in New York City selected by the corporation at
approximately 11:00 A.M., New York City time, on such Dividend Determination
Date for loans in U.S. dollars to leading European banks having a maturity of
three months commencing on the second London Business Day immediately following
such Dividend Determination Date and in a principal amount of not less than
$1,000,000 that is representative of a single transaction in such market at
such time; provided, however, that if the banks selected as aforesaid by the
corporation are not quoting as aforementioned in this sentence, then, with
respect to such Dividend Period, LIBOR for the preceding Dividend Period will
be continued as LIBOR for such Dividend Period.
(ii) The Dividend Rate for any Dividend Period shall be equal to the lower
of 18% of 50 basis points above LIBOR for such Dividend Period as LIBOR is
determined by sections (I) or (ii) above.
As used above, the term "Dividend Determination Date" shall mean, with resect
to any Dividend Period, the second London Business Day prior to the
commencement of such Dividend Period; and the term "London Business Day" shall
mean any day that is not a Saturday or Sunday and that, in New York City, is
not a day on which banking institutions generally are authorized or required by
law or executive order to close and that is a day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
4. Voting Rights: The holders of the Series A Preferred Stock shall have
the voting power and rights set forth in this paragraph 4 and shall have no
other voting power or rights except as otherwise may from time to time be
required by law.
So long as any shares of Series A Preferred Stock remain outstanding, the
corporation shall not, without the affirmative vote or consent of the holders
of at least a majority of the votes of the Series Preferred Stock entitled to
vote outstanding at the time, given in person or by proxy, either in writing or
by resolution adopted at a meeting at which the holders of Series A Preferred
Stock (alone or together with the holders of one or more other series of Series
Preferred Stock at the time outstanding and entitled to vote) vote separately
as a class, alter the provisions of the Series Preferred Stock so as to
materially adversely affect its rights; provided, however, that in the event
any such materially adverse alteration affects the rights of only the Series A
Preferred Stock, then the alteration may be effected with the vote or consent
of at least a majority of the votes of the Series A Preferred Stock; provided,
further, that an increase in the amount of the authorized Series Preferred
Stock and/or the creation and/or issuance of other series of Series Preferred
Stock in accordance with the organization certificate shall not be, nor be
deemed to be, materially adverse alterations. In connection with the exercise
of the voting rights contained in the preceding sentence, holders of all series
of Series Preferred Stock which are granted such voting rights (of which the
Series A Preferred Stock is the initial series) shall vote as a class (except
as specifically provided otherwise) and each holder of Series A Preferred Stock
shall have one vote for each share of stock held and each other series shall
have such number of votes, if any, for each share of stock held as may be
granted to them.
The foregoing voting provisions will not apply if, in connection with the
matters specified, provision is made for the redemption or retirement of all
outstanding Series A Preferred Stock.
5. Liquidation: Subject to the provisions of section (b) of this Article
III, upon any liquidation, dissolution or winding up of the corporation,
whether voluntary or involuntary, the holders of the Series A Preferred Stock
shall have preference and priority over the Common Stock for payment out of the
assets of the corporation or proceeds thereof, whether from capital or surplus,
of $1,000,000 per share (the "liquidation value") together with the amount of
all dividends accrued and unpaid thereon, and after such payment the holders of
Series A Preferred Stock shall be entitled to no other payments.
6. Redemption: Subject to the provisions of section (b) of this Article
III, Series A Preferred Stock may be redeemed, at the option of the corporation
in whole or part, at any time or from time to time at a redemption price of
$1,000,000 per share, in each case plus accrued and unpaid dividends to the
date of redemption.
At the option of the corporation, shares of Series A Preferred Stock
redeemed or otherwise acquired may be restored to the status of authorized but
unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of such
redemption to the holders of the Series A Preferred Stock to be redeemed in the
following manner: a notice specifying the shares to be redeemed and the time
and place or redemption (and, if less than the total outstanding shares are to
be redeemed, specifying the certificate numbers and number of shares to be
redeemed) shall be mailed by first class mail, addressed to the holders of
record of the Series A Preferred Stock to be redeemed at their respective
addressees as the same shall appear upon the books of the corporation, not more
than sixty (60) days and not less than thirty (30) days previous to the date
fixed for redemption. In the event such notice is not given to any shareholder
such failure to give notice shall not affect the notice given to other
shareholders. If less than the whole amount of outstanding Series A Preferred
Stock is to be redeemed, the shares to be redeemed shall be selected by lot or
pro rata in any manner determined by resolution of the Board of Directors to b
fair and proper. From and after the date fixed in any such notice as the date
of redemption (unless default shall be made by the corporation in providing
moneys at the time and place of redemption for the payment of the redemption
price) all dividends upon the Series A Preferred Stock so called for redemption
shall cease to accrue, and all rights of the holders of said
Series A Preferred Stock as stockholders in the corporation, except the right
to receive the redemption price (without interest) upon surrender of the
certificate representing the Series A Preferred Stock so called for redemption,
duly endorsed for transfer, if required, shall cease and terminate. The
corporation's obligation to provide moneys in accordance with the preceding
sentence shall be deemed fulfilled if, on or before the redemption date, the
corporation shall deposit with a bank or trust company (which may e an
affiliate of the corporation) having an office in the Borough of Manhattan,
City of New York, having a capital and surplus of at least $5,000,000 funds
necessary for such redemption, in trust with irrevocable instructions that such
funds be applied to the redemption of the shares of Series A Preferred Stock so
called for redemption. Any interest accrued on such funds shall be paid to the
corporation from time to time. Any funds so deposited and unclaimed at the end
of two (2) years from such redemption date shall be released or repaid to the
corporation, after which the holders of such shares of Series A Preferred Stock
so called for redemption shall look only to the corporation for payment of the
redemption price.
IV. The name, residence and post office address of each member of the
corporation are as follows:
Name Residence Post Office Address
---- --------- -------------------
James A. Blair 9 West 50th Street, 33 Wall Street,
Manhattan, New York City Manhattan, New York City
James G. Cannon 72 East 54th Street, 14 Nassau Street,
Manhattan New York City Manhattan, New York City
E. C. Converse 3 East 78th Street, 139 Broadway,
Manhattan, New York City Manhattan, New York City
Henry P. Davison Englewood, 2 Wall Street,
New Jersey Manhattan, New York City
Granville W. Garth 160 West 57th Street, 33 Wall Street
Manhattan, New York City Manhattan, New York City
A. Barton Hepburn 205 West 57th Street 83 Cedar Street
Manhattan, New York City Manhattan, New York City
William Logan Montclair, 13 Nassau Street
New Jersey Manhattan, New York City
George W. Perkins Riverdale, 23 Wall Street,
New York Manhattan, New York City
William H. Porter 56 East 67th Street 270 Broadway,
Manhattan, New York City Manhattan, New York City
John F. Thompson Newark, 143 Liberty Street,
New Jersey Manhattan, New York City
Albert H. Wiggin 42 West 49th Street, 214 Broadway,
Manhattan, New York City Manhattan, New York City
Samuel Woolverton Mount Vernon, 34 Wall Street,
New York Manhattan, New York City
Edward F.C. Young 85 Glenwood Avenue, 1 Exchange Place,
Jersey City, New Jersey Jersey City, New Jersey
V. The existence of the corporation shall be perpetual.
VI. The subscribers, the members of the said corporation, do, and each for
himself does, hereby declare that he will accept the responsibilities and
faithfully discharge the duties of a director therein, if elected to act as
such, when authorized accordance with the provisions of the Banking Law of the
State of New York.
VII. The number of directors of the corporation shall not be less that 10
nor more than 25."
4. The foregoing restatement of the organization certificate was
authorized by the Board of Directors of the corporation at a meeting held on
July 21, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th
day of August, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th
day of August, 1998.
James T. Byrne, Jr.
---------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
---------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
Lea Lahtinen
---------------------------------------
Lea Lahtinen
State of New York )
) ss:
County of New York )
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
--------------------------------------
Lea Lahtinen
Sworn to before me this
6th day of August, 1998.
Sandra L. West
- ---------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "RESTATED ORGANIZATION
CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8007 of the Banking Law,"
dated August 6, 1998, providing for the restatement of the Organization
Certificate and all amendments into a single certificate.
Witness, my hand and official seal of the Banking Department at the City
of New York, this 31st day of August in the Year of our Lord
one thousand nine hundred and ninety-eight.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and Secretary and a Vice President and an Assistant Secretary of
Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock
in conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock
outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is hereafter
to have is Three Billion, One Million, Six Hundred Sixty-Six Thousand,
Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter
to have is Three Billion, Five Hundred One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670),
divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six
Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each
designated as Common Stock and 1500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 25th
day of September, 1998
James T. Byrne, Jr.
---------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
---------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
-----------------------------------
Lea Lahtinen
Sworn to before me this 25th day
of September, 1998
Sandra L. West
- ---------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under
Section 8005 of the Banking Law," dated December 16, 1998, providing for an
increase in authorized capital stock from $3,501,666,670 consisting of
200,166,667 shares with a par value of $10 each designated as Common Stock and
1,500 shares with a par value of $1,000,000 each designated as Series Preferred
Stock to $3,627,308,670 consisting of 212,730,867 shares with a par value of
$10 each designated as Common Stock and 1,500 shares with a par value of
$1,000,000 each designated as Series Preferred Stock. Witness, my hand and
official seal of the Banking Department at the City of New York,
this 18th day of December in the Year of our Lord one
thousand nine hundred and ninety-eight.
P. Vincent Conlon
---------------------------
Deputy Superintendent of Banks
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and Secretary and a Vice President and an Assistant Secretary of
Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock
in conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock
outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is hereafter
to have is Three Billion, Five Hundred One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670),
divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six
Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each
designated as Common Stock and 1500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter
to have is Three Billion, Six Hundred Twenty-Seven Million, Three
Hundred Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670),
divided into Two Hundred Twelve Million, Seven Hundred Thirty
Thousand, Eight Hundred Sixty- Seven (212,730,867) shares with a par
value of $10 each designated as Common Stock and 1500 shares with a
par value of One Million Dollars ($1,000,000) each designated as
Series Preferred Stock."
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 16th
day of December, 1998
James T. Byrne, Jr.
---------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
---------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
-----------------------------------
Lea Lahtinen
Sworn to before me this 16th day
of December, 1998
Sandra L. West
- ---------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
BY-LAWS
JUNE 22, 1999
Bankers Trust Corporation
(Incorporated under the New York Business Corporation Law)
1
BANKERS TRUST CORPORATION
-----------------------------------------------
BY-LAWS
-----------------------------------------------
ARTICLE I
SHAREHOLDERS
SECTION 1.01 Annual Meetings. The annual meetings of shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday in April of
each year, if not a legal holiday, and if a legal holiday then on the next
succeeding business day, at such hour as shall be designated by the Board of
Directors. If no other hour shall be so designated such meeting shall be held
at 3 P.M.
SECTION 1.02 Special Meetings. Special meetings of the shareholders, except
those regulated otherwise by statute, may be called at any time by the Board of
Directors, or by any person or committee expressly so authorized by the Board
of Directors and by no other person or persons.
SECTION 1.03 Place of Meetings. Meetings of shareholders shall be held at such
place within or without the State of New York as shall be determined from time
to time by the Board of Directors or, in the case of special meetings, by such
person or persons as may be authorized to call a meeting. The place in which
each meeting is to be held shall be specified in the notice of such meeting.
SECTION 1.04 Notice of Meetings. A copy of the written notice of the place,
date and hour of each meeting of shareholders shall be given personally or by
mail, not less than ten nor more than fifty days before the date of the
meeting, to each shareholder entitled to vote at such meeting. Notice of a
special meeting shall indicate that it is being issued by or at the direction
of the person or persons calling the meeting and shall also state the purpose
or purposes for which the meeting is called. Notice of any meeting at which is
proposed to take action which would entitle shareholders to receive payment for
their shares pursuant to statutory provisions must include a statement of that
purpose and to that effect. If mailed, such notices of the annual and each
special meeting are given when deposited in the United States mail, postage
prepaid, directed to the shareholder at his address as it appears in the record
of shareholders unless he shall have filed with the Secretary of the
corporation a written request that notices intended for him shall be mailed to
some other address, in which case it shall be directed to him at such other
address.
SECTION 1.05 Record Date. For the purpose of determining the shareholders
entitled to notice of or to vote any meeting of shareholders or any adjournment
thereof, or to express consent to or dissent from any proposal without a
meeting, or for the purpose of determining shareholders entitled to receive
payment of any dividend or the allotment of any rights, or for the purpose of
any other action, the Board of Directors may fix, in advance, a date as the
record date for any such determination of shareholders. Such date shall not be
more than fifty nor less than ten days before the date of such meeting, nor
more than fifty days prior to any other action.
SECTION 1.06 Quorum. The presence, in person or by proxy, of the holders of a
majority of the shares entitled to vote thereat shall constitute a quorum at a
meeting of shareholders for the transaction of
business, except as otherwise provided by statute, by the Certificate of
Incorporation or by the By-Laws. The shareholders present in person or by proxy
and entitled to vote at any meeting, despite the absence of a quorum, shall
have power to adjourn the meeting from time to time, to a designated time and
place, without notice other than by announcement at the meeting, and at any
adjourned meeting any business may be transacted that might have been
transacted on the original date of the meeting. However, if after the
adjournment the Board of Directors fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder
of record on the new record date entitled to notice.
SECTION 1.07 Notice of Shareholder Business at Annual Meeting. At an annual
meeting of shareholders, only such business shall be conducted as shall have
been brought before the meeting (a) by or at the direction of the Board of
Directors or (b) by any shareholder of the corporation who complies with the
notice procedures set forth in this Section 1.07. For business to be properly
brought before an annual meeting by a shareholder, the shareholder must have
given timely notice thereof in writing to the Secretary of the corporation. To
be timely, a shareholder's notice must be delivered to or mailed and received
at the principal executive offices of the corporation not less than thirty days
nor more than fifty days prior to the meeting; provided, however, that in the
event that less than forty days' notice or prior public disclosure of the date
of the meeting is given or made to shareholders, notice by the shareholder to
be timely must be received not later than the close of business on the tenth
day following the day on which such notice of the date of the annual meeting
was mailed or such public disclosure was made. A shareholder's notice to the
Secretary shall set forth as to each matter the shareholder proposes to bring
before the annual meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear on the
corporation's books, of the shareholder proposing such business, (c) the class
and number of shares of the corporation which are beneficially owned by the
shareholder and (d) any material interest of the shareholder in such business.
Notwithstanding anything in these By-Laws to the contrary, no business shall be
conducted at an annual meeting except in accordance with the procedures set
forth in this Section 1.07 and Section 2.03. The Chairman of an annual meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting and in accordance with the
provisions of this Section 1.07 and Section 2.03, and if he should so
determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.01 Number and Qualifications. The business of the corporation shall
be managed by its Board of Directors. The number of directors constituting the
entire Board of Directors shall be not less than seven nor more than fifteen,
as shall be fixed from time to time by vote of a majority of the entire Board
of Directors. Each director shall be at least 21 years of age. Directors need
not be shareholders. No Officer-Director who shall have attained age 65, or
earlier relinquishes his responsibilities and title, shall be eligible to serve
as a director.
SECTION 2.02 Election. At each annual meeting of shareholders, directors shall
be elected by a plurality of the votes to hold office until the next annual
meeting. Subject to the provisions of the statute, of the Certificate of
Incorporation and of the By-Laws, each director shall hold office until the
expiration of the term for which elected, and until his successor has been
elected and qualified.
SECTION 2.03 Nomination and Notification of Nomination. Subject to the rights
of holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, nominations for the election of
directors may be made by the Board of Directors or to any committee appointed
by the Board of Directors or by any shareholder entitled to vote in the
election of directors generally. However, any shareholder entitled to vote in
the election of directors generally may nominate one or more persons for
election as directors at a meeting only if written notice of such shareholder's
intent
to make such nomination or nominations has been given, either by personal
delivery or by United States mail, postage prepaid, to the Secretary of the
corporation not later than (i) with respect to an election to be held at an
annual meeting of shareholders ninety days in advance of such meeting, and (ii)
with respect to an election to be held at a special meeting of shareholders for
the election of directors, the close of business on the seventh day following
the date on which notice of such meeting is first given to shareholders. Each
such notice shall set forth: (a) the name and address of the shareholder who
intends to make the nomination and of the person or persons to be nominated;
(b) a representation that the shareholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the shareholder; (d) such other information regarding each nominee
proposed by such shareholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission, had the nominee been nominated, or intended to be nominated, by the
Board of Directors; and (e) the consent of each nominee to serve as a director
of the corporation if so elected. At the request of the Board of Directors, any
person nominated by the Board of Directors for election as a director shall
furnish to the Secretary of the corporation that information required to be set
forth in a shareholder's notice of nomination which pertains to the nominee. No
person shall be eligible for election as a director of the corporation unless
nominated in accordance with the procedures set forth in the By-Laws. The
Chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by these By-Laws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
SECTION 2.04 Regular Meetings. Regular meetings of the Board of Directors may
be held without notice at such places and times as may be fixed from time to
time by resolution of the Board and a regular meeting for the purpose of
organization and transaction of other business shall be held each year after
the adjournment of the annual meeting of shareholders.
SECTION 2.05 Special Meetings. The Chairman of the Board, the Chief Executive
Officer, the President, the Senior Vice Chairman or any Vice Chairman may, and
at the request of three directors shall, call a special meeting of the Board of
Directors, two days' notice of which shall be given in person or by mail,
telegraph, radio, telephone or cable. Notice of a special meeting need not be
given to any director who submits a signed waiver of notice whether before or
after the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to him.
SECTION 2.06 Place of Meeting. The directors may hold their meetings, have one
or more offices, and keep the books of the corporation (except as may be
provided by law) at any place, either within or without the State of New York,
as they may from time to time determine.
SECTION 2.07 Quorum and Vote. At all meetings of the Board of Directors the
presence of one-third of the entire Board, but not less than two directors,
shall constitute a quorum for the transaction of business. Any one or more
members of the Board of Directors or of any committee thereof may participate
in a meeting of the Board of Directors or a committee thereof by means of a
conference telephone or similar communications equipment which allows all
persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at such a
meeting. The vote of a majority of the directors present at the time of the
vote, if a quorum is present at such time, shall be the act of the Board of
Directors, except as may be otherwise provided by statute or the By-Laws.
SECTION 2.08 Vacancies. Newly created directorships resulting from increase in
the number of directors and vacancies in the Board of Directors, whether caused
by resignation, death, removal or otherwise, may be filled by vote of a
majority of the directors then in office, although less than a quorum exists.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 3.01 Designation and Authority. The Board of Directors, by resolution
adopted by a majority of the entire Board, may designate from among its members
an Executive Committee and other committees, each consisting of three or more
directors. Each such committee, to the extent provided in the resolution or the
By-Laws, shall have all the authority of the Board, except that no such
committee shall have authority as to:
(i) the submission to shareholders of any action as to which shareholders'
authorization is required by law.
(ii) the filling of vacancies in the Board of Directors or any committee.
(iii) the fixing of compensation of directors for serving on the Board or
on any committee.
(iv) the amendment or appeal of the By-Laws, or the adoption of new
By-Laws.
(v) the amendment or repeal of any resolution of the Board which by its
terms shall not be so amendable or repealable.
The Board may designate one or more directors as alternate members of any such
committee, who may replace any absent member or members at any meeting of such
committee. Each such committee shall serve at the pleasure of the Board of
Directors.
SECTION 3.02 Procedure. Except as may be otherwise provided by statute, by the
By-Laws or by resolution of the Board of Directors, each committee may make
rules for the call and conduct of its meetings. Each committee shall keep a
record of its acts and proceedings and shall report the same from time to time
to the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 4.01 Titles and General. The Board of Directors shall elect from among
their number a Chairman of the Board and a Chief Executive Officer, and may
also elect a President, a Senior Vice Chairman, one or more Vice Chairmen, one
or more Executive Vice Presidents, one or more Senior Vice Presidents, one or
more Principals, one or more Vice Presidents, a Secretary, a Controller, a
Treasurer, a General Counsel, a General Auditor, and a General Credit Auditor,
who need not be directors. The officers of the corporation may also include
such other officers or assistant officers as shall from time to time be elected
or appointed by the Board. The Chairman of the Board or the Chief Executive
Officer or, in their absence, the President, the Senior Vice Chairman or any
Vice Chairman, may from time to time appoint assistant officers. All officers
elected or appointed by the Board of Directors shall hold their respective
offices during the pleasure of the Board of Directors, and all assistant
officers shall hold office at the pleasure of the Board or the Chairman of the
Board or the Chief Executive Officer or, in their absence, the President, the
Senior Vice Chairman or any Vice Chairman. The Board of Directors may require
any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 4.02 Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the shareholders and of the Board of Directors. Subject to the
Board of Directors, he shall exercise all the powers and perform all the duties
usual to such office and shall have such other powers as may be prescribed by
the Board of Directors or the Executive Committee or vested in him by the
By-Laws.
SECTION 4.03 Chief Executive Officer. The Board of Directors shall designate
the Chief Executive Officer of the corporation, which person may also hold the
additional title of Chairman of the Board, President, Senior Vice Chairman or
Vice Chairman. Subject to the Board of Directors, he shall exercise all the
powers and perform all the duties usual to such office and shall have such
other powers as may be prescribed by the Board of Directors or the Executive
Committee or vested in him by the By-Laws.
SECTION 4.04 Chairman of the Board, President, Senior Vice Chairman, Vice
Chairmen, Executive Vice Presidents, Senior Vice Presidents, Principals and
Vice Presidents. The Chairman of the Board or, in his absence or incapacity the
President or, in his absence or incapacity, the Senior Vice Chairman, the Vice
Chairmen, the Executive Vice Presidents, or in their absence, the Senior Vice
Presidents, in the order established by the Board of Directors shall, in the
absence or incapacity of the Chief Executive Officer perform the duties of the
Chief Executive Officer. The President, the Senior Vice Chairman, the Vice
Chairmen, the Executive Vice Presidents, the Senior Vice Presidents, the
Principals, and the Vice Presidents shall also perform such other duties and
have such other powers as may be prescribed or assigned to them, respectively,
from time to time by the Board of Directors, the Executive Committee, the Chief
Executive Officer, or the By-Laws.
SECTION 4.05 Controller. The Controller shall perform all the duties customary
to that office and except as may be otherwise provided by the Board of
Directors shall have the general supervision of the books of account of the
corporation and shall also perform such other duties and have such powers as
may be prescribed or assigned to him from time to time by the Board of
Directors, the Executive Committee, the Chief Executive Officer, or the
By-Laws.
SECTION 4.06 Secretary. The Secretary shall keep the minutes of the meetings of
the Board of Directors and of the shareholders and shall have the custody of
the seal of the corporation. He shall perform all other duties usual to that
office, and shall also perform such other duties and have such powers as may be
prescribed or assigned to him from time to time by the Board of Directors, the
Executive Committee, the Chairman of the Board, the Chief Executive Officer, or
the By-Laws.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 5.01 The corporation shall, to the fullest extent permitted by Section
721 of the New York Business Corporation Law, indemnify any person who is or
was made, or threatened to be made, a party to an action or proceeding, whether
civil or criminal, whether involving any actual or alleged breach of duty,
neglect or error, any accountability, or any actual or alleged misstatement,
misleading statement or other act or omission and whether brought or threatened
in any court or administrative or legislative body or agency, including an
action by or in the right of the corporation to procure a judgment in its favor
and an action by or in the right of any other corporation of any type or kind,
domestic or foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise, which any director or officer of the corporation is
serving or served in any capacity at the request of the corporation by reason
of the fact that he, his testator or intestate, is or was a director or officer
of the corporation, or is serving or served such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise in
any capacity, against judgments, fines, amounts paid in settlement, and costs,
charges and expenses, including attorneys' fees, or any appeal therein;
provided, however, that no indemnification shall be provided to any such person
if a judgment or other final adjudication adverse to the director or officer
establishes that (i) his acts were committed in bad faith or were the result of
active and deliberate dishonesty and, in either case, were material to the
cause of action so adjudicated, or (ii) he personally gained in fact a
financial profit or other advantage to which he was not legally entitled.
SECTION 5.02 The corporation may indemnify any other person to whom the
corporation is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to, or
provided by, the New York Business Corporation Law or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these By-Laws authorize the creation of other rights in any such manner.
SECTION 5.03 The corporation shall, from time to time, reimburse or advance to
any person referred to in Section 5.01 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action or
proceeding referred to in Section 5.01, upon receipt of a written undertaking
by or on behalf of such person to repay such amount(s) if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 5.04 Any director or officer of the corporation serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the corporation, or (ii) any employee benefit plan
of the corporation or any corporation referred to in clause (i), in any
capacity shall be deemed to be doing so at the request of the corporation. In
all other cases, the provisions of this Article V will apply (i) only if the
person serving another corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise so served at the specific request of
the corporation, evidenced by a written communication signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Senior Vice Chairman
or any Vice Chairman, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer, or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5.05 Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of the
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 5.06 The right to be indemnified or to the reimbursement or advancement
of expenses pursuant to this Article V (i) is a contract right pursuant to
which the person entitled thereto may bring suit as if the provisions hereof
were set forth in a separate written contract between the corporation and the
director or officer, (ii) is intended to be retroactive and shall be available
with respect to events occurring prior to the adoption hereof, and (iii) shall
continue to exist after the rescission or restrictive modification hereof with
respect to events occurring prior thereto.
SECTION 5.07 If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the corporation
within thirty days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
or reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel, or its shareholders) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses, shall be a defense to the action or create a
presumption that the claimant is not so entitled.
SECTION 5.08 A person who has been successful, on the merits or otherwise, in
the defense of a civil or criminal action or proceeding of the character
described in Section 5.01 shall be entitled to indemnification only as provided
in Sections 5.01 and 5.03, notwithstanding any provision of the New York
Business Corporation Law to the contrary.
ARTICLE VI
SEAL
SECTION 6.01 Corporate Seal. The corporate seal shall contain the name of the
corporation and the year and state of its incorporation. The seal may be
altered from time to time at the discretion of the Board of Directors.
ARTICLE VII
SHARE CERTIFICATES
SECTION 7.01 Form. The certificates for shares of the corporation shall be in
such form as shall be approved by the Board of Directors and shall be signed by
the Chairman of the Board, the Chief Executive Officer, the President, the
Senior Vice Chairman or any Vice Chairman and the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the corporation or a facsimile
thereof. The signatures of the officers upon the certificate may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a
registrar other than the corporation itself or its employees.
ARTICLE VIII
CHECKS
SECTION 8.01 Signatures. All checks, drafts and other orders for the payment of
money shall be signed by such officer or officers or agent or agents as the
Board of Directors may designate from time to time.
ARTICLE IX
AMENDMENT
SECTION 9.01 Amendment of By-Laws. The By-Laws may be amended, repealed or
added to by vote of the holders of the shares at the time entitled to vote in
the election of any directors. The Board of Directors may also amend, repeal or
add to the By-Laws, but any By-Laws adopted by the Board of Directors may be
amended or repealed by the shareholders entitled to vote thereon as provided
herein. If any By-Law regulating an impending election of directors is adopted,
amended or repealed by the Board, there shall be set forth in the notice of the
next meeting of shareholders for the election of directors the By-Laws so
adopted, amended or repealed, together with concise statement of the changes
made.
ARTICLE X
SECTION 10.01 Construction. The masculine gender, when appearing in these
By-Laws, shall be deemed to include the feminine gender.
I, Daniel M. Chipko, Associate of Bankers Trust Company, New York, New York,
hereby certify that the foregoing is a complete, true and correct copy of the
By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
/s/ Daniel M. Chipko
---------------------------
Daniel M. Chipko
Associate
DATED: January 31, 2001
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/00 State#: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-1
City, State ZIP: New York, NY 10006 Transit#: 21001003
11
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
-------
| C400|
---------------------
Dollar Amounts in Thousands | RCFD |
- -------------------------------------------------------------------------------------------------------------
ASSETS ////////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////////////
a. Noninterest-bearing balances and currency and coin (1) ............ 0081 1,560,000 |1.a.
b. Interest-bearing balances (2) ..................................... 0071 1,335,000 |1.b.
2. Securities: ////////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A) ........ 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)....... 1773 337,000 |2.b.
3. Federal funds sold and securities purchased under agreements to resell.. 1350 1,784,000 |3.
4. Loans and lease financing receivables: ////////////////////
a. Loans and leases, net of unearned income ////////////////////
(from Schedule RC-C) RCFD 2122 22,038,000 //////////////////// |4.a.
b. LESS: Allowance for loan and lease losses...RCFD 3123 458,000 //////////////////// |4.b.
c. LESS: Allocated transfer risk reserve ......RCFD 3128 0 //////////////////// |4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c) ............... 2125 16,211,000 |4.d.
5. Trading Assets (from schedule RC-D) .................................... 3545 14,817,000 |5.
6. Premises and fixed assets (including capitalized leases) ................ 2145 579,000 |6.
7. Other real estate owned (from Schedule RC-M) ............................ 2150 104,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M).................................................. 2130 65,000 |8.
9. Customers' liability to this bank on acceptances outstanding ............ 2155 266,000 |9.
10. Intangible assets (from Schedule RC-M) ................................... 2143 72,000 |10.
11. Other assets (from Schedule RC-F) ........................................ 2160 2,174,000 |11.
12. Total assets (sum of items 1 through 11) ................................. 2170 39,344,000 |12.
- ------------------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/00 State#: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-1
City, State ZIP: New York, NY 10006 Transit#: 21001003
Schedule RC--Continued
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------
LIABILITIES
13. Deposits: ///////////////////////// |
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part I).................................... RCON 2200 11,169,000 |13.a.
(1) Noninterest-bearing(1) ..................................... RCON 6631 2,964,000 |13.a.(1)
(2) Interest-bearing............................................. RCON 6636 8,205,000 |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E part II).......................... RCFN 2200 8,335,000 |13.b.
(1) Noninterest-bearing ........................................ RCFN 6631 907,000 |13.b.(1)
(2) Interest-bearing ........................................... RCFN 6636 7,428,000 |13.b.(2)
14. Federal funds purchased and securities sold under
agreements to repurchase.............................................. RCFD 2800 4,854,000 |14.
15. a. Demand notes issued to the U.S. Treasury ......................... RCON 2840 500,000 |15.a.
b. Trading liabilities (from Schedule RC-D).......................... RCFD 3548 2,463,000 |15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases): ///////////////////////// |
a. With a remaining maturity of one year or less .................... RCFD 2332 971,000 |16.a.
b. With a remaining maturity of more than one year
through three years............................................. A547 819,000 |16.b.
c. With a remaining maturity of more than three years................ A548 402,000 |16.c
17. Not Applicable. ///////////////////////// |17.
18. Bank's liability on acceptances executed and outstanding ................ RCFD 2920 266,000 |18.
19. Subordinated notes and debentures (2).................................... RCFD 3200 283,000 |19.
20. Other liabilities (from Schedule RC-G) .................................. RCFD 2930 2,916,000 |20.
21. Total liabilities (sum of items 13 through 20) .......................... RCFD 2948 32,978,000 |21.
22. Not Applicable ///////////////////////// |
///////////////////////// |22.
EQUITY CAPITAL ///////////////////////// |
23. Perpetual preferred stock and related surplus ........................... RCFD 3838 1,500,000 |23.
24. Common stock ............................................................ RCFD 3230 2,127,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ................ RCFD 3839 582,000 |25.
26. a. Undivided profits and capital reserves ........................... RCFD 3632 2,255,000 |26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities ................................... RCFD 8464 3,000 | 26.b
c. Accumulated net gains (losses) on cash flow hedges............... RCFD 4336 0 |26c.
27. Cumulative foreign currency translation adjustments ..................... RCFD 3284 (101,000)|27.
28. Total equity capital (sum of items 23 through 27) ....................... RCFD 3210 6,366,000 |28.
29. Total liabilities and equity capital (sum of items 21 and 28)............ RCFD 3300 39,344,000 |29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the Number
most comprehensive level of auditing work performed for the bank by independent externa -------------------
auditors as of any date during 1997 ...........................................................RCFD 6724 N/A |M.1
-------------------
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
- ------------------
(1) Including total demand deposits and noninterest-bearing time and savings deposits.
(2) Includes limited-life preferred stock and related surplus.