As filed with the Securities and Exchange Commission on December 19, 2005
Registration No. 333-108976
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
POST-EFFECTIVE AMENDMENT NO. 4 TO
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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The Bear Stearns Companies Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-3286161
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
383 Madison Avenue
New York, New York 10179
(212) 272-2000
(Address, including Zip Code, andTelephone Number,
including Area Code, of Registrant's Principal Executive Offices)
The Bear Stearns Companies Inc.
Capital Accumulation Plan for Senior Managing Directors
The Bear Stearns Companies Inc.
Restricted Stock Unit Plan
(Full Title of the Plans)
Samuel L. Molinaro Jr.
Executive Vice President and Chief Financial Officer
The Bear Stearns Companies Inc.
383 Madison Avenue
New York, New York 10179
(212) 272-2000
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent For Service)
Copies to:
Dennis J. Block, Esq.
Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York, New York 10281
(212) 504-6000
Explanatory Note
On September 19, 2003, The Bear Stearns Companies Inc., a Delaware
corporation (the "Company"), filed with the Securities and Exchange Commission a
Registration Statement on Form S-8 (File No. 333-108976) in order to register an
aggregate of 40,000,000 shares of the Company's common stock, par value $1.00
per share (the "Common Stock"), which included 33,000,000 shares of Common Stock
issuable from time to time upon settlement of awards of stock units (the "CAP
Units") pursuant to the Company's Capital Accumulation Plan for Senior Managing
Directors (the "CAP Plan") and 7,000,000 shares of Common Stock issuable from
time to time upon settlement of awards of restricted stock units pursuant to the
Company's Restricted Stock Unit Plan.
This Post-Effective Amendment No. 4 to the Registration Statement is being
filed solely for purposes of registering 1,253,927 shares of Common Stock
awarded pursuant to the CAP Plan to certain employees who are affiliates of the
Company (the "Selling Stockholders") for resale by the Selling Stockholders. The
reoffer prospectus which is filed as a part of this Registration Statement has
been prepared in accordance with the requirements of Form S-3, and pursuant to
General Instruction C of Form S-8 may be used for reoffers or resales of the
shares of Common Stock that have been acquired by the Selling Stockholders
pursuant to the CAP Plan.
REOFFER PROSPECTUS
The Bear Stearns Companies Inc.
1,253,927 Shares of Common Stock
Certain of our employees, all of whom are named in this prospectus, may
offer and sell from time to time, for their own accounts up to 1,253,927 shares
of our Common Stock that they acquired pursuant to our Capital Accumulation Plan
for Senior Managing Directors. We will not receive any of the proceeds from such
sales.
The Selling Stockholders propose to sell the shares from time to time in
transactions occurring either on or off the New York Stock Exchange, Inc. at
prevailing market prices or at negotiated prices. Sales may be made through
brokers or to dealers, who are expected to receive customary commissions or
discounts.
The Selling Stockholders and participating brokers and dealers may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933, as
amended, in which event any profit on the sale of shares by those Selling
Stockholders and any commissions or discounts received by those brokers or
dealers may be deemed to be underwriting compensation under the Securities Act.
Bear, Stearns & Co. Inc. and/or Bear, Stearns Securities Corp.,
subsidiaries of The Bear Stearns Companies Inc., may act as a broker on behalf
of one or more of the Selling Stockholders.
The Common Stock is traded on the NYSE under the symbol "BSC." On December
16, 2005, the closing price of the Common Stock on the NYSE was $117.57 per
share.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
December 19, 2005
You should only rely on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. The Common Stock is not being
offered in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any supplement is accurate as of any
date other than the date on the front of those documents.
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TABLE OF CONTENTS
Page
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Where You Can Find More Information...........................................2
Forward-Looking Statements....................................................3
The Company...................................................................4
Selling Stockholders..........................................................7
Plan of Distribution..........................................................9
Experts......................................................................10
WHERE YOU CAN FIND MORE INFORMATION
We file current, annual and quarterly reports, proxy statements and other
information required by the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), with the Securities and Exchange Commission (the "SEC"). You
may read and copy any document we file at the SEC's public reference room
located at 100 F. Street, N.E., Washington, D.C. 20549. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference room. Our SEC
filings are also available to the public from the SEC's internet site at
http://www.sec.gov. Copies of these reports, proxy statements and other
information can also be inspected at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005.
Our public website is http://www.bearstearns.com. We make available free
of charge on our website, via a link to the SEC's internet site at
http://www.sec.gov, our annual reports on Form 10-K, quarterly reports on Form
10-Q, current reports on Form 8-K, proxy statements and Forms 3, 4 and 5 filed
on behalf of directors and executive officers and any amendments to such reports
filed or furnished pursuant to the Exchange Act as soon as reasonably
practicable after such material is electronically filed with, or furnished to,
the SEC.
In addition, we currently make available on http://www.bearstearns.com our
most recent annual report on Form 10-K, our quarterly reports on Form 10-Q for
the current fiscal year and our most recent proxy statement, although in some
cases these documents are not available on our website as soon as they are
available on the SEC's internet site. You will need to have on your computer the
Adobe Acrobat Reader software to view these documents, which are in the .PDF
format.
We have filed with the SEC a registration statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to 33,000,000 shares of Common Stock issuable
pursuant to our Capital Accumulation Plan for Senior Managing Directors. This
prospectus, which constitutes a part of that Registration Statement, does not
include all the information contained in that Registration Statement and its
exhibits. For further information with respect to the Company and the Common
Stock, you should consult the Registration Statement and its exhibits.
Statements contained in this prospectus concerning the provisions of any
documents are necessarily
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summaries of those documents, and each statement is qualified in its entirety by
reference to the copy of the document filed with the SEC. The Registration
Statement and any of its amendments, including exhibits filed as a part of the
Registration Statement or an amendment to the Registration Statement, are
available for inspection and copying through the entities listed above.
The SEC allows us to "incorporate by reference" the information that we
file with them, which means that we can disclose important information to you by
referring you to the other information we have filed with the SEC. The
information that we incorporate by reference is considered to be part of this
prospectus, and information that we file later with the SEC will automatically
update and supersede this information.
The following documents filed by us with the SEC pursuant to Section 13 of
the Exchange Act (File No. 1-8989) and any future filings under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act made before the termination of the
offering are incorporated by reference:
(i) the Annual Report on Form 10-K (including the portions of the
Company's Annual Report to Stockholders and Proxy Statement incorporated
by reference therein) for the fiscal year ended November 30, 2004;
(ii) the Quarterly Reports on Form 10-Q for the fiscal quarters
ended February 28, 2005, May 31, 2005 and August 31, 2005;
(iii) the Current Reports on Form 8-K dated December 21, 2004,
December 28, 2004, January 5, 2005, January 6, 2005, January 20, 2005,
January 25, 2005, February 2, 2005, February 23, 2005, March 16, 2005,
March 28, 2005, April 8, 2005, April 26, 2005, April 28, 2005, May 20,
2005, June 15, 2005, June 20, 2005, June 21, 2005, July 11, 2005, July 20,
2005, July 27, 2005, August 15, 2005, September 8, 2005, September 15,
2005, September 21, 2005, September 21, 2005, September 30, 2005, October
24, 2005, October 31, 2005, November 23, 2005, December 9, 2005 and
December 15, 2005; and
(iv) the description of the Common Stock, which is registered under
Section 12 of the Exchange Act, set forth under the caption "Description
of Capital Stock" contained in the Company's Registration Statement on
Form 10, dated September 19, 1985.
We will provide to you without charge a copy of any or all documents
incorporated by reference into this prospectus except the exhibits to such
documents (unless such exhibits are specifically incorporated by reference in
such documents). You may request copies by writing or telephoning us at our
Investor Relations Department, The Bear Stearns Companies Inc., 383 Madison
Avenue, New York, New York 10179; telephone number (212) 272-2000.
FORWARD-LOOKING STATEMENTS
Certain statements included in or incorporated by reference into this
prospectus including (without limitation) certain matters discussed under "Legal
Proceedings," "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Quantitative and Qualitative Disclosures about
Market Risk" included in or incorporated by reference in our Annual Report on
Form 10-K for the fiscal year ended November 30, 2004 and our Quarterly Reports
on Form 10-Q for the fiscal quarters ended February 28, 2005, May 31, 2005 and
August 31, 2005, which have been filed with the SEC, are "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. Such forward-looking statements concerning management's expectations,
strategic objectives, business prospects, anticipated economic performance and
financial condition and other similar matters are subject to risks and
uncertainties, which could cause actual results to differ materially
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from those discussed in the forward-looking statements. Forward-looking
statements speak only as of the date of the document in which they are made. We
disclaim any obligation or undertaking to provide any updates or revisions to
any forward-looking statement to reflect any change in our expectations or any
change in events, conditions or circumstances on which the forward-looking
statement is based.
THE COMPANY
We are a holding company that, through our broker-dealer and international
bank subsidiaries, principally Bear, Stearns & Co. Inc. ("Bear Stearns"); Bear,
Stearns Securities Corp. ("BSSC"); Bear, Stearns International Limited ("BSIL")
and Bear Stearns Bank plc ("BSB") is a leading investment banking, securities
and derivatives trading, clearance and brokerage firm serving corporations,
governments, institutional and individual investors worldwide. BSSC, a
subsidiary of Bear Stearns, provides professional and correspondent clearing
services, in addition to clearing and settling customer transactions and certain
of our proprietary transactions. In addition to conducting a substantial portion
of our operating activities through certain of our regulated subsidiaries (Bear
Stearns, BSSC, BSIL and BSB), we also conduct significant activities through
other wholly-owned subsidiaries including: Bear Stearns Global Lending Limited
("BSGL"), Custodial Trust Company ("CTC"), Bear Stearns Financial Products Inc.
("BSFP"), Bear Stearns Capital Markets Inc. ("BSCM"), EMC Mortgage Corporation
("EMC"), Bear Stearns Commercial Mortgage, Inc. ("BSCMI"), Bear Stearns Credit
Products Inc. ("BSCPI") and Bear Stearns Forex Inc. ("BSFX").
Our business includes:
o market-making and trading in US government, government agency, corporate
debt and equity, mortgage-related, asset-backed, municipal securities and
high yield products;
o trading in options, futures, foreign currencies, interest rate swaps and
other derivative products;
o securities, options and futures brokerage;
o providing securities clearance services;
o managing equity and fixed income assets for institutional and individual
clients;
o financing customer activities;
o securities lending;
o securities and futures arbitrage;
o involvement in specialist activities on the NYSE and International
Securities Exchange;
o underwriting and distributing securities;
o arranging for the private placement of securities;
o assisting in mergers, acquisitions, restructurings and leveraged
transactions;
o making principal investments in leveraged acquisitions;
o engaging in commercial real estate activities;
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o investment management and advisory services; and
o fiduciary, custody, agency and securities research services.
Our business is conducted:
o from our principal offices in New York City;
o from domestic regional offices in Atlanta, Boston, Chicago, Dallas,
Denver, Los Angeles, San Francisco and San Juan;
o from representative offices in Beijing, Hong Kong, Sao Paulo and Shanghai;
and
o through international offices in Dublin, Hong Kong, London, Lugano, Milan,
Singapore and Tokyo.
Our international offices provide services and engage in investment activities
involving foreign clients and international transactions. Additionally, certain
of these foreign offices provide services to US clients.
Bear Stearns and BSSC are broker-dealers registered with the SEC.
Additionally, Bear Stearns is registered as an investment adviser with the SEC.
Bear Stearns and/or BSSC are also members of the NYSE, all other principal US
securities and futures exchanges, the National Association of Securities
Dealers, Inc., the National Futures Association and the ISE. Bear Stearns is a
"primary dealer" in US government securities as designated by the Federal
Reserve Bank of New York.
BSIL is a full service broker-dealer based in London and among other
European exchanges, is a member of Eurex Deutschland, the International
Petroleum Exchange, Euronext Liffe, Euronext Paris and Euronext Amsterdam. BSIL
is supervised by and is regulated in accordance with the rules of the Financial
Services Authority. BSIL is incorporated in the United Kingdom.
BSB is an Ireland-based bank, which was registered in 1996 and
subsequently granted a banking license on April 10, 1997 under the Irish Central
Bank Act, 1971. BSB allows our existing and prospective clients the opportunity
of dealing with a banking counterparty. BSB is incorporated in Ireland.
BSGL provides loans to certain Bear Stearns customers. BSGL is
incorporated in the Cayman Islands.
CTC, a Federal Deposit Insurance Corporation ("FDIC") insured New Jersey
state chartered bank, offers a range of trust, lending and securities-clearance
services. CTC provides the Company with banking powers including access to the
securities and funds-wire services of the Federal Reserve System. CTC provides
trust, custody, agency and securities lending services for institutional
accounts; commercial and margin lending; the clearance of government securities
for institutions and dealers; and the processing of mortgage and
mortgage-related products, including derivatives and collateralized mortgage
obligations products. At November 30, 2004, CTC held approximately $81 billion
of assets for clients, including institutional clients such as pension funds,
mutual funds, endowment funds and insurance companies. CTC is incorporated in
the State of New Jersey.
BSFP transacts business as a triple-A-rated counterparty to eligible
clients, offering a wide range of fixed income and equity derivative products.
Eligible clients are those rated A3 or better by Moody's Investors Service, Inc.
and A- or better by Standard & Poor's Ratings Services or counterparties
acceptable to both rating agencies. BSFP transfers its market risk associated
with derivative transactions
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to Bear Stearns Capital Markets Inc., an affiliate of BSFP and a wholly-owned
subsidiary of the Company. BSFP is incorporated in the State of Delaware.
BSCM is engaged in fixed income derivatives transactions and hedges
associated therewith. BSCM is incorporated in the State of Delaware.
EMC is a U.S. Department of Housing and Urban Development ("HUD") and
Freddie MAC approved lender based in Irving, Texas. EMC purchases both
conforming and non-conforming, investment-grade and non-investment grade,
conventional fixed rate and adjustable rate residential mortgage loans with
servicing released or retained and sells such loans to investors. EMC also
purchases and sells residual certificates and mortgage servicing rights. In
addition, through a subsidiary, EMC may originate commercial construction loans
through approved brokers. EMC is incorporated in the State of Delaware.
BSCMI is primarily engaged in the acquisition and securitization of
commercial mortgage loans for resale in the form of pass-through securities
("certificates"). These certificates represent fractional and undivided
interests in pools of mortgage loans held in a trust. BSCMI is incorporated in
the State of New York.
BSCPI is engaged in credit derivatives transactions and hedges associated
therewith. BSCPI is incorporated in the State of Delaware.
BSFX is a foreign exchange dealer engaged in foreign currency transactions
and hedges associated therewith. BSFX is incorporated in the State of Delaware.
We are incorporated in the State of Delaware. Our principal executive
office is located at 383 Madison Avenue, New York, New York 10179, and our
telephone number is (212) 272-2000. Our internet address is
http://www.bearstearns.com. Unless otherwise stated in this prospectus, the
terms "Company," "we," "us" and "our" refer to The Bear Stearns Companies Inc.
and its subsidiaries.
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SELLING STOCKHOLDERS
This prospectus relates to shares of Common Stock that have been acquired
by the Selling Stockholders named below pursuant to our Capital Accumulation
Plan for Senior Managing Directors.
Each of the Selling Stockholders is an employee of the Company or one of
its subsidiaries and is a Senior Managing Director of Bear Stearns. The
following table sets forth:
o the name and principal position or positions over the past three years
with the Company of each Selling Stockholder (other than such Selling
Stockholder's current position as a Senior Managing Director of Bear
Stearns);
o the number of shares of Common Stock each Selling Stockholder beneficially
owned as of December 14, 2005;
o the number of shares of Common Stock acquired by each Selling Stockholder
pursuant to the CAP Plan and being registered under this Registration
Statement, some or all of which shares may be sold pursuant to this
prospectus; and
o the number of shares of Common Stock and the percentage, if 1% or more, of
the total class of Common Stock outstanding to be beneficially owned by
each Selling Stockholder following this offering, assuming the sale
pursuant to this offering of all shares acquired by such Selling
Stockholder pursuant to the CAP Plan and registered under this
Registration Statement.
Certain of the Selling Stockholders may sell some or all of the shares listed
below from time to time in order to satisfy tax obligations incurred in
connection with the receipt of awards of Common Stock pursuant to the CAP Plan.
There is no assurance that any of the Selling Stockholders will sell any or all
of the shares offered by them under this Registration Statement. The address of
each Selling Stockholder is c/o The Bear Stearns Companies Inc., 383 Madison
Avenue, New York, New York 10179.
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Shares Beneficially
Owned After this
Offering
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Shares Shares
Position(s) with Beneficially Covered by
Selling Stockholder the Company Owned (1)(2)(3) this Prospectus Number Percent
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James E. Cayne (4) Chairman of the Board 6,371,638 404,214 5,967,424 5.21%
and Chief Executive
Officer
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Jeffrey M. Farber Controller 22,885 6,244 16,641 *
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Michael Minikes (a)(5) Treasurer 399,302 84,487 314,815 *
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Samuel L. Molinaro Jr Executive Vice 154,635 56,124 98,511 *
President and Chief
Financial Officer
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Shares Beneficially
Owned After this
Offering
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Shares Shares
Position(s) with Beneficially Covered by
Selling Stockholder the Company Owned (1)(2)(3) this Prospectus Number Percent
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Alan D. Schwartz President and 1,471,119 317,266 1,153,853 1.01%
Co-Chief Operating
Officer
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Warren J. Spector (6) President and 883,798 385,592 498,206 *
Co-Chief Operating
Officer
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* Less than one percent (1%).
(a) Former member of the Board of Directors of the Company.
(1) Nature of beneficial ownership is sole voting and investment power except
as indicated in subsequent notes.
(2) Includes shares of Common Stock owned by the Selling Stockholders through
The Bear Stearns Companies Inc. Employee Stock Ownership Plan (the
"ESOP"). Shares owned by the ESOP that are allocated to employees'
accounts are voted on a "pass through" basis by the employees to whose
accounts such shares are allocated. Shares not allocated to accounts and
allocated shares for which voting directions have not been received are
voted by the trustee of the ESOP in proportion to the manner in which
allocated shares are directed to be voted by participants in the ESOP.
(3) Does not include an aggregate of 1,544,252 shares underlying units
credited under the CAP Plan to the indicated individuals because such
individuals neither have the present ability to direct the vote nor the
ability to dispose of such shares and will not have such rights within 60
days.
(4) Includes 45,669 shares of Common Stock owned by Mr. Cayne's wife, as to
which shares Mr. Cayne disclaims beneficial ownership. Includes 189,515
shares of Common Stock held by a charitable trust, as to which shares Mr.
Cayne disclaims beneficial ownership. Does not include 215,454 shares of
Common Stock held by trusts established for Mr. Cayne's children, as to
which shares Mr. Cayne disclaims beneficial ownership. Does not include
8,248 shares of Common Stock owned by the children of Mr. Cayne, as to
which shares Mr. Cayne disclaims beneficial ownership.
(5) Does not include 4,190 shares of Common Stock owned by Mr. Minikes' wife,
as to which shares Mr. Minikes disclaims beneficial ownership.
(6) Does not include 636 shares of Common Stock owned by Mr. Spector's wife,
as to which shares Mr. Spector disclaims beneficial ownership.
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PLAN OF DISTRIBUTION
Shares covered by this prospectus will be sold by the Selling Stockholders as
principals for their own account. We will not receive any proceeds from sales of
any shares by Selling Stockholders.
The Selling Stockholders or their pledgees, donees, transferees or other
successors in interest (including Bear Stearns to the extent that shares may be
sold from a margin account) may sell shares pursuant to this prospectus from
time to time:
o in transactions (including one or more block transactions) on the NYSE;
o in the public market off the NYSE;
o in privately negotiated transactions;
o through put or call options transactions relating to the shares; or
o in a combination of such transactions.
Each sale may be made either at the market price prevailing at the time of sale
or at a negotiated price. Sales may be made through brokers or to dealers, and
such brokers or dealers may receive compensation in the form of commissions or
discounts not exceeding those customary in similar transactions. Any shares
covered by this prospectus that qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus. All expenses of registration incurred in connection with this
offering are being borne by the Company, but all brokerage commissions and other
expenses incurred by a Selling Stockholder will be borne by that Selling
Stockholder.
The Selling Stockholders and any dealer acting in connection with the
offering or any broker executing a sell order on behalf of a Selling Stockholder
may be deemed to be "underwriters" within the meaning of the Securities Act, in
which event any profit on the sale of shares by a Selling Stockholder and any
commissions or discounts received by any such broker or dealer may be deemed to
be underwriting compensation under the Securities Act. In addition, any such
broker or dealer may be required to deliver a copy of this prospectus to any
person who purchases any of the shares from or through such broker or dealer.
Bear Stearns and/or BSSC may act as a broker on behalf of one or more of
the Selling Stockholders in connection with sales under this prospectus and may
receive customary commissions in connection therewith. Bear Stearns and BSSC are
member firms of the NASD and their activities in connection with the offering
will conform to the requirements set forth in Rule 2720 of the NASD Conduct
Rules.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold only through registered or licensed brokers
or dealers.
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EXPERTS
The consolidated financial statements, the related financial statement
schedule, and management's report on the effectiveness of internal control over
financial reporting incorporated in this prospectus by reference from the
Company's Annual Report on Form 10-K for the year ended November 30, 2004 have
been incorporated by reference in this prospectus and have been audited by
Deloitte & Touche LLP, an independent registered public accounting firm, as
stated in their reports, which are incorporated herein by reference (which
reports (1) express an unqualified opinion on the consolidated financial
statements and related financial statement schedule and include an explanatory
paragraph referring to the adoption of Statement of Financial Accounting
Standards ("SFAS") No. 123, "Accounting for Stock-Based Compensation" as amended
by SFAS No. 148, "Accounting for Stock-Based Compensation - Transition and
Disclosure, an amendment of FASB Statement No. 123," in 2003, discussed in Note
1 to the consolidated financial statements, (2) express an unqualified opinion
on management's assessment regarding the effectiveness of internal control over
financial reporting, and (3) express an unqualified opinion on the effectiveness
of internal control over financial reporting), and have been so incorporated in
reliance upon the reports of such firm given upon their authority as experts in
accounting and auditing.
With respect to the unaudited interim financial information for the
periods ended February 28, 2005 and February 29, 2004 and May 31, 2005 and May
31, 2004 and August 31, 2005 and August 31, 2004, which is incorporated herein
by reference, Deloitte & Touche LLP, an independent registered public accounting
firm, have applied limited procedures in accordance with standards of the Public
Company Accounting Oversight Board (United States) for a review of such
information. However, as stated in their reports included in the Company's
Quarterly Reports on Form 10-Q for the quarters ended February 28, 2005 and May
31, 2005 and August 31, 2005, which are incorporated by reference herein, they
did not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their reports on such
information should be restricted in light of the limited nature of the review
procedures applied. Deloitte & Touche LLP is not subject to the liability
provisions of Section 11 of the Securities Act of 1933 for their reports on the
unaudited interim financial information because those reports are not "reports"
or a "part" of the registration statement prepared or certified by an accountant
within the meaning of Sections 7 and 11 of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the SEC pursuant to
Section 13 of the Exchange Act (File No. 1-8989), are incorporated herein by
reference: (i) the Annual Report on Form 10-K (including the portions of the
Company's Annual Report to Stockholders and Proxy Statement incorporated by
reference therein) for the fiscal year ended November 30, 2004; (ii) the
Quarterly Reports on Form 10-Q for the fiscal quarters ended February 28, 2005,
May 31, 2005 and August 31, 2005; (iii) the Current Reports on Form 8-K dated
December 21, 2004, December 28, 2004, January 5, 2005, January 6, 2005, January
20, 2005, January 25, 2005, February 2, 2005, February 23, 2005, March 16, 2005,
March 28, 2005, April 8, 2005, April 26, 2005, April 28, 2005, May 20, 2005,
June 15, 2005, June 20, 2005, June 21, 2005, July 11, 2005, July 20, 2005, July
27, 2005, August 15, 2005, September 8, 2005, September 15, 2005, September 21,
2005, September 21, 2005, September 30, 2005, October 24, 2005, October 31,
2005, November 23, 2005, December 9, 2005 and December 15, 2005; and (iv) the
description of the Common Stock, which is registered under Section 12 of the
Exchange Act, set forth under the caption "Description of Capital Stock"
contained in the Company's Registration Statement on Form 10, dated September
19, 1985. All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment indicating that
all securities offered hereby have been sold or deregistering all securities
then remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 145 of the Delaware General Corporation Law
which provides for indemnification of directors and officers in certain
circumstances.
Article VIII of the Company's Restated Certificate of Incorporation
provides for indemnification of directors and officers of the Company against
certain liabilities incurred as a result of their duties as such and also
provides for the elimination of the monetary liability of directors for certain
actions as such. The Company's Restated Certificate of Incorporation is filed as
Exhibit 4(a)(1) to the Registration Statement on Form S-3 (No. 333-57083) filed
June 17, 1998, and the Certificate of Amendment of Restated Certificate of
Incorporation, dated April 2, 2001, is filed as Exhibit 4(a)(2) to the
Registration Statement on Form S-8 (No. 333-92357) filed June 14, 2001.
We have in effect reimbursement insurance for our directors' and officers'
liability claims and directors' and officers' liability insurance indemnifying,
respectively, ourselves and our directors and officers within specific limits
for certain liabilities incurred by them, subject to the conditions and
exclusions and deductible provisions of the policies.
For the undertaking with respect to indemnification, see Item 9.
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Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Description
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4(a)(1) -- Restated Certificate of Incorporation of the
registrant (incorporated by reference to Exhibit
4(a)(1) to the Registration Statement on Form S-3
(File No. 333-57083)).
4(a)(2) -- Certificate of Amendment of Restated Certificate of
Incorporation of the registrant (incorporated by
reference to Exhibit 4(a)(2) to the Registration
Statement on Form S-8 (File No. 333-92357)).
4(a)(3) -- Certificate of Stock Designation relating to the
registrant's 6.15% Cumulative Preferred Stock, Series
E (incorporated by reference to Exhibit 1.4 to the
Registration Statement on Form 8-A filed on January
14, 1998).
4(a)(4) -- Certificate of Stock Designation relating to the
registrant's 5.72% Cumulative Preferred Stock, Series
F (incorporated by reference to Exhibit 1.4 to the
Registration Statement on Form 8-A filed on April 20,
1998).
4(a)(5) -- Certificate of Stock Designation relating to the
registrant's 5.49% Cumulative Preferred Stock, Series
G (incorporated by reference to Exhibit 1.4 to the
Registration Statement on Form 8-A filed on June 18,
1998).
4(a)(6) -- Certificate of Elimination of the Cumulative
Convertible Preferred Stock, Series A; Cumulative
Convertible Preferred Stock, Series B; Cumulative
Convertible Preferred Stock, Series C; and Cumulative
Convertible Preferred Stock, Series D of the
registrant (incorporated by reference to Exhibit
4(d)(9) to the Current Report on Form 8-K filed on
January 15, 2002).
4(a)(7) -- Certificate of Elimination of the 7.88% Cumulative
Convertible Preferred Stock, Series B of the
registrant (incorporated by reference to Exhibit
4(d)(10) to the Current Report on Form 8-K filed on
January 15, 2002).
4(a)(8) -- Certificate of Elimination of the 7.60% Cumulative
Convertible Preferred Stock, Series C of the
registrant (incorporated by reference to Exhibit
4(d)(11) to the Current Report on Form 8-K filed on
January 15, 2002).
II-2
Exhibit No. Description
----------- -----------
4(a)(9) -- Certificate of Elimination of the Adjustable Rate
Cumulative Preferred Stock, Series A of the
registrant (incorporated by reference to Exhibit
4(a)(9) to the Post-Effective Amendment No. 2 to
Registration Statement on Form S-8 (File No.
333-108976)).
4(b) -- Amended and Restated By-laws of the registrant as
amended through January 8, 2002 (incorporated by
reference to Exhibit 4(d)(6) to the Current Report on
Form 8-K filed on January 15, 2002).
5 -- Opinion of Cadwalader, Wickersham & Taft LLP
(previously filed with the Registration Statement on
Form S-8 (File No. 333-108976)).
10(a) -- The Bear Stearns Companies Inc. Capital Accumulation
Plan for Senior Managing Directors (amended and
restated as of October 28, 1999 and further amended
as of March 31, 2004) (incorporated by reference to
Exhibit 10(a)(1) to the Quarterly Report on Form 10-Q
for the fiscal quarter ended May 31, 2004, filed on
July 15, 2004).
10(b) -- The Bear Stearns Companies Inc. Capital Accumulation
Plan for Senior Managing Directors (amended and
restated November 29, 2000 for plan years beginning
on or after July 1, 1999, and further amended as of
March 31, 2004) (incorporated by reference to Exhibit
10(a)(2) to the Quarterly Report on Form 10-Q for the
fiscal quarter ended May 31, 2004, filed on July 15,
2004).
10(c) -- The Bear Stearns Companies Inc. Restricted Stock Unit
Plan (amended and restated as of March 31, 2004)
(incorporated by reference to Exhibit 10(a)(4) to the
Quarterly Report on Form 10-Q for the fiscal quarter
ended May 31, 2004, filed on July 15, 2004).
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of Cadwalader, Wickersham & Taft LLP
(included in Exhibit 5 to the Registration Statement
on Form S-8 (File No. 333-108976)).
24 -- Power of attorney (included in the signature pages to
the Registration Statement on Form S-8 (File No.
333-108976)).
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
II-3
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereto) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this Registration Statement. Notwithstanding the foregoing,
any increase or decrease in the volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(i) and
(a)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the SEC by the registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment will be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time will be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(d) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions referred to in Item 6
of this Registration Statement, or otherwise, the registrant has been
advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
hereby certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on December 19, 2005.
THE BEAR STEARNS COMPANIES INC.
By: /s/ Samuel L. Molinaro Jr.
-----------------------------------
Samuel L. Molinaro Jr.
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 19, 2005.
Signature Title
--------- -----
THE BEAR STEARNS COMPANIES INC.
/s/ James E. Cayne Chairman of the Board, Chief
------------------------------------ Executive Officer (Principal
James E. Cayne Executive Officer) and Director
Director
------------------------------------
Henry S. Bienen
* Director
------------------------------------
Carl D. Glickman
* Chairman of the Executive
------------------------------------ Committee and Director
Alan C. Greenberg
* Director
------------------------------------
Donald J. Harrington
* Director
------------------------------------
Frank T. Nickell
* Director
------------------------------------
Paul A. Novelly
II-5
Signature Title
--------- -----
* Director
------------------------------------
Frederic V. Salerno
* President, Co-Chief Operating
------------------------------------ Officer and Director
Alan D. Schwartz
* President, Co-Chief Operating
------------------------------------ Officer and Director
Warren J. Spector
* Director
------------------------------------
Vincent Tese
Director
------------------------------------
Wesley S. Williams, Jr.
/s/ Samuel L. Molinaro Jr. Executive Vice President and Chief
------------------------------------ Financial Officer
Samuel L. Molinaro Jr. (Principal Financial Officer)
Controller
/s/ Jeffrey M. Farber (Principal Accounting Officer)
------------------------------------
Jeffrey M. Farber
* By: /s/ Samuel L. Molinaro Jr.
------------------------------------
Samuel L. Molinaro Jr.
Attorney-in-Fact
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EXHIBIT INDEX
Exhibit
Number Description
------ -----------
4(a)(1) -- Restated Certificate of Incorporation of the registrant
(incorporated by reference to Exhibit 4(a)(1) to the
Registration Statement on Form S-3 (File No. 333-57083)).
4(a)(2) -- Certificate of Amendment of Restated Certificate of
Incorporation of the registrant (incorporated by reference to
Exhibit 4(a)(2) to the Registration Statement on Form S-8
(File No. 333-92357)).
4(a)(3) -- Certificate of Stock Designation relating to the
registrant's 6.15% Cumulative Preferred Stock, Series E
(incorporated by reference to Exhibit 1.4 to the Registration
Statement on Form 8-A filed on January 14, 1998).
4(a)(4) -- Certificate of Stock Designation relating to the
registrant's 5.72% Cumulative Preferred Stock, Series F
(incorporated by reference to Exhibit 1.4 to the Registration
Statement on Form 8-A filed on April 20, 1998).
4(a)(5) -- Certificate of Stock Designation relating to the
registrant's 5.49% Cumulative Preferred Stock, Series G
(incorporated by reference to Exhibit 1.4 to the Registration
Statement on Form 8-A filed on June 18, 1998).
4(a)(6) -- Certificate of Elimination of the Cumulative Convertible
Preferred Stock, Series A; Cumulative Convertible Preferred
Stock, Series B; Cumulative Convertible Preferred Stock,
Series C; and Cumulative Convertible Preferred Stock, Series
D of the registrant (incorporated by reference to Exhibit
4(d)(9) to the Current Report on Form 8-K filed on January
15, 2002).
4(a)(7) -- Certificate of Elimination of the 7.88% Cumulative
Convertible Preferred Stock, Series B of the registrant
(incorporated by reference to Exhibit 4(d)(10) to the Current
Report on Form 8-K filed on January 15, 2002).
4(a)(8) -- Certificate of Elimination of the 7.60% Cumulative
Convertible Preferred Stock, Series C of the registrant
(incorporated by reference to Exhibit 4(d)(11) to the Current
Report on Form 8-K filed on January 15, 2002).
4(a)(9) -- Certificate of Elimination of the Adjustable Rate Cumulative
Preferred Stock, Series A of the registrant (incorporated by
reference to Exhibit 4(a)(9) to the Post-Effective Amendment
No. 2 to Registration Statement on Form S-8 (File No.
333-108976)).
4(b) -- Amended and Restated By-laws of the registrant as amended
through January 8, 2002 (incorporated by reference to Exhibit
4(d)(6) to the Current Report on Form 8-K filed on January
15, 2002).
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5 -- Opinion of Cadwalader, Wickersham & Taft LLP (previously
filed with the Registration Statement on Form S-8 (File No.
333-108976)).
10(a) -- The Bear Stearns Companies Inc. Capital Accumulation Plan for
Senior Managing Directors (amended and restated as of October
28, 1999, and further amended as of March 31, 2004)
(incorporated by reference to Exhibit 10(a)(1) to the
Quarterly Report on Form 10-Q for the fiscal quarter ended
May 31, 2004, filed on July 15, 2004).
10(b) -- The Bear Stearns Companies Inc. Capital Accumulation Plan for
Senior Managing Directors (amended and restated November 29,
2000 for plan years beginning on or after July 1, 1999, and
further amended as of March 31, 2004) (incorporated by
reference to Exhibit 10(a)(2) to the Quarterly Report on Form
10-Q for the fiscal quarter ended May 31, 2004, filed on July
15, 2004).
10(c) -- The Bear Stearns Companies Inc. Restricted Stock Unit Plan
(amended and restated as of March 31, 2004) (incorporated by
reference to Exhibit 10(a)(4) to the Quarterly Report on Form
10-Q for the fiscal quarter ended May 31, 2004, filed on July
15, 2004).
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of Cadwalader, Wickersham & Taft LLP (included in
Exhibit 5 to the Registration Statement on Form S-8 (File No.
333-108976)).
24 -- Power of attorney (included in the signature pages to the
Registration Statement on Form S-8 (File No. 333-108976)).
II-8