SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
October 21, 2004
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Date of Report (Date of earliest event reported)
H&R BLOCK, INC.
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(Exact name of Registrant as specified in its charter)
Missouri 1-6089 44-0607856
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(State of (Commission File Number) (I.R.S. Employer
Incorporation) Identification Number)
4400 Main Street, Kansas City, Missouri 64111
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(Address of Principal Executive Offices) (Zip Code)
(816) 753-6900
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(Registrant's telephone number, including area code)
Not applicable
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(Former name or former address, if changed since last report)
Item 1.01 Entry into a Material Definitive Agreement
On October 21, 2004, H&R Block, Inc. (the "Company") and Block Financial
Corporation entered into an Underwriting Agreement with JP Morgan Securities
Inc. and Merrill Lynch, Pierce Fenner & Smith Incorporated, as representatives
of the several underwriters named therein, in connection with the issuance and
sale by BFC of an aggregate of $400,000,000 of principal amount of BFC's
5.125% Notes due 2014 (the "Notes"), which are fully and unconditionally
guaranteed by the Company pursuant to guarantees (the "Guarantee") endorsed on
the Notes. The closing of the sale of the Notes and the Guarantee will occur on
October 26, 2004. The form of the Notes and Guarantee is filed as Exhibit 4.1
and the Officers' Certificate establishing the terms of the Notes is filed as
Exhibit 4.2.
Item 8.01 Other Events
The Company is filing certain exhibits to its Registration Statement on
Form S-3 (Nos. 333-118020; 333-118020-01) under Item 9.01 hereof in connection
with the completion of a public offering of $400 million in aggregate principal
amounts of BFC's 5.125% Notes due 2014 on October 26, 2004. The pricing of the
offering was previously announced in the Company's press release dated October
21, 2004, which is attached hereto as Exhibit 99.1 and incorporated by reference
herein.
Item 9.01. Financial Statements and Exhibits
Exhibit Number Description
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1.1 Block Financial Corporation Debt Securities
Underwriting Agreement Standard Provisions
4.1 Officers' Certificate of Block Financial Corporation
establishing the terms of the 5.125% Notes due
2014.
4.2 Form of 5.125% Notes due 2014.
5.1 Opinion of Stinson Morrison Hecker LLP.
23.1 Consent of Stinson Morrison Hecker LLP (included
in Exhibit 5.1)
25.1 Form T-1, Statement of Eligibility under the
Trust Indenture Act of 1939 of Deutsche Bank
Trust Company Americas, as trustee.
99.1 Press Release, dated October 21, 2004
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this to be signed on its behalf by the undersigned,
hereunto duly authorized.
H&R BLOCK, INC.
Dated: October 26, 2004
By: /s/ Bret G. Wilson
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Bret G. Wilson
Vice President and Secretary
BLOCK FINANCIAL CORPORATION
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Debt Securities
Underwriting Agreement Standard Provisions
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Block Financial Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time certain of its debt securities (the
"Securities") registered under the Securities Act of 1933, as amended (the
"Act"). The Securities will be issued in one or more series pursuant to an
indenture, dated October 20, 1997, among H&R Block, Inc., a Missouri corporation
(the "Parent Guarantor"), the Company and Bankers Trust Company, as trustee (the
"Original Indenture"), as supplemented by the First Supplemental Indenture,
dated April 18, 2000, among the Company, the Parent Guarantor, Bankers Trust
Company, as trustee under the Original Indenture and The Bank of New York, as
separate trustee (the "First Supplemental Indenture," together with the Original
Indenture, as may be from time to time further supplemented, amended or
modified, the "Indenture"; and any trustee so designated in Schedule 2 to the
Underwriting Agreement (as defined below) with respect to any additional series
being hereinafter referred to as the "Trustee"). The Securities will be fully
and unconditionally guaranteed by the Parent Guarantor pursuant to guarantees
(the "Guarantee") endorsed on the Securities under the terms of the Indenture.
From time to time, the Company and the Parent Guarantor may enter into one
or more underwriting agreements in the form of Annex A hereto that incorporate
by reference these Standard Provisions (collectively with these Standard
Provisions, an "Underwriting Agreement") that provide for the sale of the
securities designated in such Underwriting Agreement (the "Securities") to the
several Underwriters named therein (the "Underwriters"), for whom the
Underwriter(s) named therein shall act as representative (the "Representative").
The Underwriting Agreement, including these Standard Provisions, is sometimes
referred to herein as this "Agreement."
The obligations of the Underwriters under this Agreement are several and
not joint.
1. Registration Statement. The Company and the Parent Guarantor have
prepared and filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act"), a
registration statement on Form S-3 (File No. 333-33655) and a registration
statement on Form S-3 (File No. 333-11802001), which registration statement
includes a combined prospectus covering both registration statements pursuant to
Rule 429 of the Securities Act (the "Basic Prospectus"), relating to the debt
securities to be issued from time to time by the Company. The Company and the
Parent Guarantor have also filed, or propose to file,
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with the Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Securities (the "Prospectus
Supplement"). The registration statement, as amended at the time it becomes
effective, including the information, if any, deemed pursuant to Rule 430A under
the Securities Act to be part of the registration statement at the time of its
effectiveness ("Rule 430 Information"), is referred to herein as the
"Registration Statement"; and as used herein, the term "Prospectus" means the
Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales of the
Securities and the term "Preliminary Prospectus" means the preliminary
prospectus supplement specifically relating to the Securities together with the
Basic Prospectus. If the Company or the Parent Guarantor has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Registration Statement and the
Prospectus. References herein to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein as used herein with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed by the Parent
Guarantor under the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder (the "Exchange Act") subsequent to
the date of the Underwriting Agreement which are deemed to be incorporated by
reference therein. For purposes of this Agreement, the term "Effective Time"
means the date and time the Registration Statement became effective, and, if
later, the date of filing of the Parent Guarantor's most recent Annual Report on
Form 10-K.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees
to issue and sell the Securities to the several Underwriters named in the
Underwriting Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Securities set forth opposite
such Underwriter's name in the Underwriting Agreement at the purchase price set
forth in the Underwriting Agreement.
(b) Payment of the purchase price for and delivery of the Securities
will be made at the time and place set forth in the Underwriting Agreement. The
time and date of such payment and delivery is referred to herein as the "Closing
Date".
3. Representations and Warranties of the Company. The Company and the
Parent Guarantor jointly and severally represent and warrant to each Underwriter
that:
(a) Registration Statement and Prospectus. The Registration Statement
has become effective under the Securities Act; no order suspending the
effectiveness of the Registration Statement has been issued by the Commission
and, to the Company's knowledge, no proceeding for that purpose is pending or
threatened by
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the Commission; as of the Effective Time, the Registration Statement did, and
when the Prospectus is filed in accordance with Rule 424(b) of the Securities
Act and on the Closing Date, the Prospectus (and any amendments and supplements
thereto) will, comply in all material respects with the Securities Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Trust Indenture
Act"); at the Effective Time and as of the date of this Agreement, the
Registration Statement did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; at the Effective Time and
on the Closing Date, the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules thereunder; and,
as of the date of the Prospectus and any amendment or supplement thereto and as
of the Closing Date, the Prospectus did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Company and the Parent Guarantor make no representation and warranty
with respect to (i) that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) of the Trustee under the
Trust Indenture Act or (ii) any statements or omissions in the Registration
Statement and the Prospectus and any amendment or supplement thereto made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein.
(b) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, when
filed with the Commission, conformed or will conform, as the case may be, in all
material respects with the requirements of the Exchange Act and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(c) Financial Statements. The financial statements and the related
notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as applicable, and
present fairly in all material respects the financial position of the Parent
Guarantor and its subsidiaries as of the dates indicated and the results of
their operations and the changes in their cash flows for the periods specified;
such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods covered thereby, and the supporting schedules included or incorporated
by reference in the Registration Statement present fairly in all material
respects the information required to be stated therein; and the other financial
information included or incorporated by reference in the Registration Statement
and the Prospectus has been derived from the accounting records of the Parent
Guarantor and its subsidiaries and presents fairly in all material respects the
information shown thereby.
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(d) Legal Proceedings. Except as described in the Registration
Statement and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Parent
Guarantor or any of its subsidiaries is or may be a party or to which any
property of the Parent Guarantor or any of its subsidiaries is or may be the
subject as to which there is a reasonable possibility of an adverse
determination and that if determined adversely to the Parent Guarantor or any of
its subsidiaries, would reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the business, properties,
management, financial position or results of operations of the Parent Guarantor
and its subsidiaries taken as a whole or on the performance by the Company and
the Parent Guarantor of its obligations under the Securities and the Guarantee
("Material Adverse Effect"); except as described in the Registration Statement
and the Prospectus, to the knowledge of the Company and the Parent Guarantor, no
such investigations, actions, suits or proceedings are threatened or
contemplated by any governmental or regulatory authority or threatened by
others; and (i) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the Securities
Act to be described in the Prospectus that are not so described and (ii) there
are no contracts or other documents that are required under the Securities Act
to be filed as exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus that are not so filed or described,
except for those documents relating to the issuance of a particular series of
Securities, which will be filed on Form 8-K in connection with the closing of
the issuance of such Securities.
(e) Independent Accountants. KPMG LLP is (and PricewaterhouseCoopers
LLP was, when serving as the Parent Guarantor's and its subsidiaries'
independent auditors), independent public accountants with respect to the Parent
Guarantor and its subsidiaries and have certified certain financial statements
of the Parent Guarantor and its subsidiaries as required by the Securities Act.
(f) Licenses and Permits. Except as described in the Registration
Statement and the Prospectus, the Parent Guarantor and its subsidiaries possess
all licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement and the
Prospectus, except where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect.
(g) Sarbanes-Oxley Act of 2002. The Parent Guarantor is in compliance
in all material respects with the applicable provisions of the Sarbanes-Oxley
Act of 2002 that are effective and the rules and regulations of the Commission
that have been adopted and are effective thereunder.
Any certificate signed by any officer of the Company or the Parent
Guarantor and delivered to the Representative or counsel for the Underwriters in
connection with the offering of the Securities (including the Guarantee) shall
be deemed a
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representation and warranty by the Company and the Parent Guarantor, as to
matters covered thereby, to each Underwriter.
4. Further Agreements of the Company and the Parent Guarantor. The Company,
and to the extent expressly referred to in the paragraphs below, the Parent
Guarantor jointly and severally covenant and agree with each Underwriter that:
(a) Filings with the Commission. The Company and the Parent Guarantor
will (i) prepare the Rule 462(b) Registration Statement, if necessary, in a form
approved by the Underwriters and file such Rule 462(b) Registration Statement
with the Commission in compliance with Rule 462(b) under the Securities Act by
10:00 a.m. New York City time on the business day immediately following the date
of determination of the public offering price of the Securities and, at the time
of filing, either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Securities Act and (ii) file the
Prospectus in a form approved by the Underwriters with the Commission pursuant
to Rule 424 under the Securities Act not later than the close of business on the
second business day following the date of determination of the public offering
price of the Securities or, if applicable, such earlier time as may be required
by Rule 424(b) and Rule 430A under the Securities Act; and the Company and the
Parent Guarantor will furnish copies of the Prospectus to the Underwriters in
New York City on the business day next succeeding the date of this Agreement in
such quantities as the Representative may reasonably request.
(b) Delivery of Copies. The Company and the Parent Guarantor will
furnish, without charge, to each Underwriter during the Prospectus Delivery
Period, as many copies of the Prospectus (including all amendments and
supplements thereto) as the Representative may reasonably request. As used
herein, the term "Prospectus Delivery Period" means such period of time after
the first date of the public offering of the Securities as in the opinion of
counsel for the Underwriters a prospectus relating to the Securities is required
by law to be delivered in connection with sales of the Securities by any
Underwriter or dealer.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement or the Prospectus, the Company and the
Parent Guarantor will furnish to the Representative and counsel for the
Underwriters a copy of the proposed amendment or supplement for review and will
not file any such proposed amendment or supplement to which the Representative
reasonably objects.
(d) Notice to the Representative. The Company and the Parent Guarantor
will advise the Representative promptly, and confirm such advice in writing, (i)
when any amendment to the Registration Statement has been filed or becomes
effective; (ii) when any supplement to the Prospectus or any amendment to the
Prospectus has been filed; (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to the
Registration Statement or any other request by the Commission for any additional
information; (iv) of the issuance
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by the Commission of any order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or the initiation or threatening of any proceeding for that
purpose; (v) of the occurrence of any event within the Prospectus Delivery
Period as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, not misleading; and (vi) of the receipt by the Company
or the Parent Guarantor of any notice with respect to any suspension of the
qualification of the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and the Company
and the Parent Guarantor will use their reasonable best efforts to prevent the
issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification of the Securities and, if any
such order is issued, will use its reasonable best efforts to obtain as soon as
possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or supplement the
Prospectus to comply with law, the Company and the Parent Guarantor will
immediately notify the Underwriters thereof and forthwith prepare and, subject
to paragraph (c) above, file with the Commission and furnish to the Underwriters
and to such dealers as the Representative may designate, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(f) Blue Sky Compliance. The Company and the Parent Guarantor will
qualify the Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions as the Representative shall reasonably request and will
continue such qualifications in effect so long as required for distribution of
the Securities; provided that neither the Company nor the Parent Guarantor shall
be required to (i) qualify as a foreign corporation or other entity or as a
dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in
any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Parent Guarantor will make generally
available to its security holders and the Representative as soon as practicable
an earning statement that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder covering a
period of at least
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twelve months beginning with the first fiscal quarter of the Parent Guarantor
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. During the period from the date hereof through and
including the Closing Date or such later date as is specified in the
Underwriting Agreement, the Company and the Parent Guarantor will not, without
the prior written consent of the Representative, offer, sell, contract to sell
or otherwise dispose of any debt securities issued or guaranteed by the Company
or the Parent Guarantor and having a tenor of more than one year (other than the
Securities).
(i) Use of Proceeds. The Company will apply the net proceeds from the
sale of the Securities as described in the Prospectus under the heading "Use of
Proceeds."
(j) Filing of Exchange Act Documents. The Parent Guarantor will file
promptly all reports and any definitive proxy or information statements required
to be filed by the Parent Guarantor with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act during the Prospectus Delivery
Period.
5. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Securities on the Closing Date as provided herein is
subject to the performance by the Company and the Parent Guarantor of their
respective covenants and other obligations hereunder and to the following
additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective
amendment to the Registration Statement is required to be filed under the
Securities Act, such post-effective amendment shall have become effective, and
the Representative shall have received notice thereof, not later than 5:00 P.M.,
New York City time, on the date of the Underwriting Agreement; if applicable,
the Rule 462(b) Registration Statement shall have become effective by 10:00 a.m.
New York City time on the business day following the date of the Underwriting
Agreement; no order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceeding for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been timely filed
with the Commission under the Securities Act and in accordance with Section 4(a)
hereof; and all requests by the Commission for additional information shall have
been complied with to the reasonable satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties
of the Company and the Parent Guarantor contained herein shall be true and
correct on the date hereof and on and as of the Closing Date; the statements of
the Company, the Parent Guarantor and their respective officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date.
(c) No Downgrade. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
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Securities or any other debt securities or preferred stock of or guaranteed by
the Company or the Parent Guarantor by any "nationally recognized statistical
rating organization", as such term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of the Securities or of any other debt
securities or preferred stock of or guaranteed by the Company or the Parent
Guarantor (other than an announcement with positive implications of a possible
upgrading).
(d) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no Material Adverse Change (as defined below) shall
have occurred or shall exist, which event or condition is not described in the
Prospectus (excluding any amendment or supplement thereto) and the effect of
which in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement and the Prospectus.
For purposes of this Section 5(d), a "Material Adverse Change" shall mean (i)
any material change in the consolidated long-term debt of the Parent Guarantor,
or any material adverse change, or a prospective material adverse change, in or
affecting the business, properties, management, financial position or results of
operations of the Parent Guarantor and its subsidiaries taken as a whole; (ii)
the Parent Guarantor or any of its subsidiaries entering into any transaction or
agreement that is materially adverse to the Parent Guarantor and its
subsidiaries taken as a whole or the incurrence of any liability or obligation,
direct or contingent, that is material to the Parent Guarantor and its
subsidiaries taken as a whole; or (iii) the Parent Guarantor or any of its
subsidiaries has sustained any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or from any action, order or
decree of any court or arbitrator or governmental or regulatory authority,
except in each case as otherwise disclosed in the Registration Statement and the
Prospectus.
(e) Officer's Certificate. The Representative shall have received on
and as of the Closing Date a certificate of an executive officer of the Company
and the Parent Guarantor who has specific knowledge of the Company's or Parent
Guarantor's financial matters and is satisfactory to the Representative (i)
confirming that such officer has carefully reviewed the Registration Statement
and the Prospectus and, to the knowledge of such officer, the representation set
forth in Section 3(a) hereof is true and correct, (ii) confirming that the other
representations and warranties of the Company and the Parent Guarantor in this
Agreement are true and correct and that the Company and the Parent Guarantor
have complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date and (iii) to
the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing
Date, KPMG shall have furnished to the Representative, at the request of the
Company, letters, dated the respective dates of delivery thereof and addressed
to the Underwriters, in form and substance reasonably satisfactory to the
Representative,
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containing statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement and the Prospectus; provided that the
letter delivered on the Closing Date shall use a "cut-off" date no more than
three business days prior to the Closing Date.
(g) Opinion of Counsel for the Company and the Parent Guarantor.
Stinson, Morrison Hecker LLP, counsel for the Company and the Parent Guarantor,
shall have furnished to the Representative, at the request of the Company and
the Parent Guarantor, their written opinion, dated the Closing Date and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representative, to the effect set forth in Annex B hereto.
(h) Opinion of Counsel for the Underwriters. The Representative shall
have received on and as of the Closing Date an opinion of Simpson Thacher &
Bartlett LLP, counsel for the Underwriters, with respect to such matters as the
Representative may reasonably request, and such counsel shall have received such
documents and information as they may reasonably request to enable them to pass
upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date, prevent the issuance or sale of the
Securities or the issuance of the Guarantee; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Securities or the issuance of
the Guarantee.
(j) Good Standing. The Representative shall have received on and as of
the Closing Date satisfactory evidence of the good standing of the Company and
the Parent Guarantor in their respective jurisdictions of organization, in each
case in writing or any standard form of telecommunication from the appropriate
governmental authorities of such jurisdictions.
(k) Additional Documents. On or prior to the Closing Date, the Company
and the Parent Guarantor shall have furnished to the Representative such further
certificates and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company and the Parent
Guarantor jointly and severally agree to indemnify and hold harmless each
Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the
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Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Underwriter
furnished to the Company and the Parent Guarantor in writing by such Underwriter
through the Representative expressly for use therein; provided, that with
respect to any such untrue statement in or omission from any Preliminary
Prospectus, the indemnity agreement contained in this paragraph (a) shall not
inure to the benefit of any Underwriter to the extent that the sale to the
person asserting any such loss, claim, damage or liability was an initial resale
by such Underwriter and any such loss, claim, damage or liability of or with
respect to such Underwriter results from the fact that both (i) to the extent
required by applicable law, a copy of the Prospectus was not sent or given to
such person at or prior to the written confirmation of the sale of such
Securities to such person and (ii) the untrue statement in or omission from such
Preliminary Prospectus was corrected in the Prospectus unless, in either case,
such failure to deliver the Prospectus was a result of non-compliance by the
Company or the Parent Guarantor with the provisions of Section 4 hereof.
(b) Indemnification of the Company and the Parent Guarantor. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Parent Guarantor and each of their respective officers and
directors who signed the Registration Statement and each person, if any, who
controls the Company or the Parent Guarantor within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Underwriter
furnished to the Company or the Parent Guarantor in writing by such Underwriter
through the Representative expressly for use in the Registration Statement and
the Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus, it being understood and agreed that the only such information
consists of the information identified in the Underwriting Agreement as being
provided by the Underwriters.
(c) Notice and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the
11
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under paragraphs (a) and (b) of this Section 6. If any such
proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 6 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding as incurred. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Underwriter, its affiliates, directors and officers and
any control persons of such Underwriter shall be designated in writing by the
Representative and any such separate firm for the Company, the Parent Guarantor
or any of their respective directors or officers who signed the Registration
Statement and any control persons of the Company or the Parent Guarantor shall
be designated in writing by the Parent Guarantor. The Indemnifying Person shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by the Indemnifying Person of such
request, (ii) the Indemnifying Party has received notice of the terms of the
settlement at least 30 days prior to the settlement being entered into and (iii)
the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time
12
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement. No Indemnifying Person shall, without
the written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnification could have been sought hereunder
by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (y) does not include any statement as
to or any admission of fault, culpability or a failure to act by or on behalf of
any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs
(a) and (b) above is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Parent Guarantor on the one hand and
the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of the Company and the Parent
Guarantor on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Parent Guarantor on the one
hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the net proceeds (before deducting expenses) received
by the Company from the sale of the Securities and the total underwriting
discounts and commissions received by the Underwriters in connection therewith,
in each case as set forth in the table on the cover of the Prospectus, bear to
the aggregate offering price of the Securities. The relative fault of the
Company and the Parent Guarantor on the one hand and the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and the Parent Guarantor or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Limitation on Liability. The Company, the Parent Guarantor and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation (even if the
Underwriters were
13
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this
Section 6, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the offering of the
Securities exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 6 are several in proportion to their respective purchase obligations
hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section
6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
7. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on the New
York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Company or the Parent Guarantor shall
have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the
judgment of the Representative, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Securities on the terms and in the manner contemplated by this Agreement and
the Prospectus.
8. Defaulting Underwriter. (a) If, on the Closing Date, any
Underwriter defaults on its obligation to purchase the Securities that it has
agreed to purchase hereunder, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within
36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Securities on such terms. If other persons become obligated or
agree to purchase the Securities of a defaulting Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Closing Date for up
to five full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the
14
Underwriters may be necessary in the Registration Statement and the Prospectus
or in any other document or arrangement, and the Company agrees to promptly
prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in the Underwriting Agreement that,
pursuant to this Section 8, purchases Securities that a defaulting Underwriter
agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate
principal amount of such Securities that remains unpurchased does not exceed 10%
of the aggregate principal amount of all the Securities, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase
hereunder plus such Underwriter's pro rata share (based on the principal amount
of Securities that such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate
principal amount of such Securities that remains unpurchased exceeds 10% of the
aggregate principal amount of all the Securities, or if the Company shall not
exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any
termination of this Agreement pursuant to this Section 8 shall be without
liability on the part of the Company or the Parent Guarantor, except that the
Company and the Parent Guarantor will continue to be liable for the payment of
expenses as set forth in Section 9(a) hereof.
(d) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company, the Parent Guarantor or any
non-defaulting Underwriter for damages caused by its default.
9. Payment of Expenses. (a) Whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated, the Company and
the Parent Guarantor, jointly and severally agree to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder,
including without limitation, (i) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities and any taxes payable
in that connection; (ii) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement, the Preliminary
Prospectus and the Prospectus (including all exhibits, amendments and
supplements thereto) and the distribution thereof; (iii) the costs of
reproducing and distributing each of this Agreement, the Securities and the
Indenture (including the Guarantee set forth therein) (collectively, the
"Transaction Documents"); (iv) the fees and expenses of the Company's and the
Parent Guarantor's counsel and independent accountants; (v) the fees and
expenses incurred in connection with the
15
registration or qualification and determination of eligibility for investment of
the Securities under the laws of such jurisdictions as the Representative may
designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the
Underwriters); (vi) any fees charged by rating agencies for rating the
Securities; (vii) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (viii) all
expenses and application fees incurred in connection with any filing with, and
clearance of any offering by, the National Association of Securities Dealers,
Inc.; and (ix) all expenses incurred by the Company in connection with any "road
show" presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 7, (ii)
the Company and the Parent Guarantor for any reason fails to tender the
Securities for delivery to the Underwriters or (iii) the Underwriters decline to
purchase the Securities because any condition to the obligation of the
underwriters set forth in Section 5 is not satisfied, the Company and the Parent
Guarantor, jointly and severally agree to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their
outside counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby promptly upon receipt of an
itemized invoice of such out-of-pocket costs and expenses.
16
10. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred
to herein, and the affiliates of each Underwriter referred to in Section 6
hereof. Nothing in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein. No purchaser of Securities
from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Parent Guarantor
and the Underwriters contained in this Agreement or made by or on behalf of the
Company, the Parent Guarantor or the Underwriters pursuant to this Agreement or
any certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless
of any termination of this Agreement or any investigation made by or on behalf
of the Company, the Parent Guarantor or the Underwriters.
12. Certain Defined Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term "affiliate" has the meaning set forth in
Rule 405 under the Securities Act; (b) the term "business day" means any day
other than a day on which banks are permitted or required to be closed in New
York City; and (c) the term "subsidiary" or "subsidiaries" has the meaning set
forth in Rule 405 under the Securities Act.
13. Miscellaneous. (a) Authority of the Representative. Any action by the
Underwriters hereunder may be taken by the Representative on behalf of the
Underwriters, and any such action taken by the Representative shall be binding
upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representative at the address set forth in
the Underwriting Agreement (with copy to Simpson Thacher & Bartlett LLP, 425
Lexington Avenue, New York, New York 10017, attention of Jeremiah L. Thomas
III). Notices to the Company or the Parent Guarantor shall be given to it at H&R
Block World Headquarters, 4400 Main Street, Kansas City, Missouri 64111, (fax:
(816) 753-8538); Attention: HRB Treasury, with copy to the HRB General Counsel
of the Company at the same address, or if different, to the address set forth in
the Underwriting Agreement (with copy to Stinson Morrison Hecker LLP, 1201
Walnut Street, Kansas City, Missouri 64106, attention of Patrick J. Respeliers).
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
17
(d) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
(e) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
(f) Entire Agreement. This Agreement embodies the entire agreement
between the parties hereto and there are no agreements, representations or
warranties between the parties other than those set forth or provided herein.
Annex A
[Form of Underwriting Agreement]
Underwriting Agreement
----------------------
______________, 200__
[Name(s) of Representative(s)]
As Representative(s) of the
several Underwriters listed
in Schedule 1 hereto
c/o [Name(s) and Address(es) of Representative(s)]
Ladies and Gentlemen:
Block Financial Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule 1
hereto (the "Underwriters"), for whom you are acting as representative (the
"Representative"), $____________ principal amount of its _____% [Senior]
[Subordinated] Notes due 20__ having the terms set forth in Schedule 2 hereto
(the "Securities"). The Securities are to be issued pursuant to an indenture
(the "Indenture"), dated October 20, 1997, among H&R Block, Inc., a Missouri
corporation (the "Parent Guarantor"), the Company and Bankers Trust Company, as
trustee, as supplemented by the First Supplemental Indenture, dated April 18,
2000, among the Company, the Parent Guarantor, Bankers Trust Company and The
Bank of New York, as separate trustee (as may be further supplemented, amended
or modified). The Securities will be fully and unconditionally guaranteed by the
Parent Guarantor pursuant to guarantees (the "Guarantee") endorsed on the
Securities under the terms of the Indenture.
The Company agrees to issue and sell the Securities to the several
Underwriters as provided in this Agreement, and each Underwriter, on the basis
of the representations, warranties and agreements set forth herein and subject
to the conditions set forth herein, agrees, severally and not jointly, to
purchase from the Company the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule 1 hereto at a price equal to
_____% of the principal amount thereof plus accrued interest, if any, from
______________, 200__ to the Closing Date (as defined below). The Company will
not be obligated to deliver any of the Securities except upon payment for all
the Securities to be purchased as provided herein.
The Company and the Parent Guarantor understand that the Underwriters
intend to make a public offering of the Securities as soon after the
effectiveness of this Agreement as in the judgment of the Representative is
advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company and the Parent Guarantor acknowledge and agree that the
Underwriters may offer and sell Securities
A-1
to or through any affiliate of an Underwriter and that any such affiliate may
offer and sell Securities purchased by it to or through any Underwriter.
Payment for and delivery of the Securities shall be made at the
offices of [specify closing location] at 10:00 A.M., New York City time, on
_____________, 200__, or at such other time or place on the same or such other
date, not later than the fifth business day thereafter, as the Representative
and the Company may agree upon in writing.
Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representative against delivery to the nominee of The Depository Trust Company,
for the account of the Underwriters, of one or more global notes representing
the Securities (collectively, the "Global Note"), with any transfer taxes
payable in connection with the sale of the Securities duly paid by the Company.
The Global Note will be made available for inspection by the Representative not
later than 1:00 P.M., New York City time, on the business day prior to the
Closing Date.
The Company, the Parent Guarantor and the Underwriters acknowledge
and agree that the only information relating to any Underwriter that has been
furnished to the Company or the Parent Guarantor in writing by any Underwriter
through the Representative expressly for use in the Registration Statement and
the Prospectus (or any amendment or supplement thereto) [and any Preliminary
Prospectus] consists of the following: [insert references to appropriate
paragraphs].
Unless otherwise provided herein, all the provisions contained in the
document entitled Block Financial Corporation Debt Securities Underwriting
Agreement Standard Provisions are incorporated by reference herein in their
entirety and shall be deemed to be a part of this Underwriting Agreement to the
same extent as if such provisions had been set forth in full herein, except that
if any term defined in such Underwriting Agreement Standard Provisions is
otherwise defined herein, the definition set forth herein shall control.
This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which
shall be an original and all of which together shall constitute one and the same
instrument.
A-2
If the foregoing is in accordance with your understanding, please
sign and return to us a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Company, the
Parent Guarantor and the several Underwriters.
Very truly yours,
BLOCK FINANCIAL CORPORATION
By____________________________
Name:
Title:
H&R BLOCK, INC.
By____________________________
Name:
Title:
Accepted: __________, 200__
[NAME(S) OF REPRESENTATIVE(S)]
For [itself] [themselves] and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
By___________________________
Authorized Signatory
A-3
Schedule 1
Underwriter Principal Amount
----------- ----------------
$
Total _________________
$
A-4
Schedule 2
Underwriting Agreement dated ____, 20__
Registration Statement No[s].: ___________
Representative(s) and Address(es) for Notices:
Designated Trustee: _______________
Certain Terms of the Securities:
Title of Securities:_____% [Senior][Subordinated] Notes due 20__
Aggregate Principal Amount of Securities: $____________
Purchase Price (include accrued interest or amortization, if any): _______
Maturity Date: ___________, 20__
Interest Rate: ____%
Interest Payment Dates: ________ and ________, commencing
________, 200_
Record Dates: ________ and ________
Redemption Provisions:
Closing Date, Time and Location: _______________
[Other Provisions:]
A-5
Annex B
[Form of Opinion of Counsel for the Company and the Parent Guarantor]
(-) The Company and the Parent Guarantor have been duly incorporated and
are validly existing and in good standing under the laws of the jurisdictions in
which they were chartered or organized, with the corporate power and authority
to own their material properties and conduct their respective business as
described in the Prospectus, and are duly qualified to do business and are in
good standing in each jurisdiction in which their respective ownership or
leasing of property or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified or have such power or
authority would not, individually or in the aggregate, have a Material Adverse
Effect.
(-) The Parent Guarantor has an authorized capitalization as set forth in
the Prospectus under the heading "Capitalization."
(-) The Company and the Parent Guarantor have the corporate power and
authority to execute and deliver each of the Transaction Documents and to
perform their respective obligations thereunder; and all corporate action
required to be taken for the due and proper authorization, execution and
delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby has been duly and validly taken.
(-) The Indenture has been duly authorized, executed and delivered by the
Company and the Parent Guarantor and, assuming due execution and delivery
thereof by the Trustee, constitutes a valid and legally binding agreement of the
Company and the Parent Guarantor enforceable against the Company and the Parent
Guarantor in accordance with its terms, subject to the Enforceability
Exceptions.
(-) The Securities have been duly authorized, executed and delivered by the
Company and, when duly authenticated as provided in the Indenture and paid for
as provided in this Agreement, will be duly and validly issued and outstanding
and will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the
Indenture; and the Guarantee has been duly authorized and endorsed by the Parent
Guarantor and, when the Securities have been executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided in this
Agreement, will constitute valid and legally binding obligations of the Parent
Guarantor enforceable against the Parent Guarantor in accordance with their
terms, subject to the Enforceability Exceptions, and will be entitled to the
benefits of the Indenture.
(-) This Agreement has been duly authorized, executed and delivered by the
Company and the Parent Guarantor.
B-1
(-) The description of each Transaction Document contained in the
Registration Statement and the Prospectus constitutes a fair summary of the
material terms thereof.
(-) The execution, delivery and performance by the Company and the Parent
Guarantor of each of the Transaction Documents to which each is a party, the
issuance and sale of the Securities (including the Guarantee) and compliance by
the Company and the Parent Guarantor with the terms thereof and the consummation
of the transactions contemplated by the Transaction Documents will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company, the Parent Guarantor or any subsidiary pursuant to, any of the terms or
provisions of any indenture, mortgage, deed of trust or loan agreement or other
agreement or instrument filed or incorporated by reference as an exhibit to the
Parent Guarantor's Annual Report on Form 10-K most recently filed with the
Commission or under any Form 10-Q or Form 8-K of the Parent Guarantor filed
since the filing of such Annual Report on Form 10-K, (ii) result in any
violation of the provisions of the charter or by-laws or similar organizational
documents of the Company or the Parent Guarantor, (iii) result in the violation
of any an existing obligation of the Parent Guarantor or the Company under any
existing court or administrative order, judgment or decree of which such counsel
has knowledge or (iv) result in the violation of any applicable provisions of
the federal laws of the United States (provided that such counsel need express
no opinion as to the anti-fraud provisions of the federal securities laws), the
laws of the State of Missouri or the General Corporation Law of the State of
Delaware, except, in the case of clauses (i), (iii) and (iv) above, for any such
conflict, breach or violation that would not, individually or in the aggregate,
have a Material Adverse Effect.
(-) No consent, approval, authorization, order, registration or
qualification of or with any federal, Missouri or Delaware court or arbitrator
or governmental or regulatory authority is required under federal or Missouri
law, or the General Corporation Law of the State of Delaware for the execution,
delivery and performance by the Company and the Parent Guarantor of each of the
Transaction Documents, the issuance and sale of the Securities (including the
Guarantee) and compliance by the Company and the Parent Guarantor with the terms
thereof and the consummation of the transactions contemplated by the Transaction
Documents, except for (i) the registration of the Securities under the
Securities Act, (ii) the qualification of the Indenture under the Trust
Indenture Act, (iii) such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable state
securities laws in connection with the purchase and distribution of the
Securities (including the Guarantee) by the Underwriters (as to which such
counsel need not express any opinion) and (iv) such as the failure to obtain or
make would not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect.
(-) To the knowledge of such counsel, except as described in the
Prospectus, there are no pending legal, governmental or regulatory actions,
suits or proceedings
B-2
that are required under the Securities Act to be described in the Prospectus
that are not so described.
(-) Neither the Company nor the Parent Guarantor is and, after giving
effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an "investment
company" or required to be registered as an "investment company" under the
Investment Company Act.
(-) The Registration Statement was declared effective under the Securities
Act and the Indenture was qualified under the Trust Indenture Act as of the date
and time specified in such opinion; [the Rule 462(b) Registration Statement was
filed with the Commission pursuant to Rule 462(b) under the Securities Act on
the date and time specified in such opinion;] the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act
specified in such opinion on the date specified therein; and, to the knowledge
of such counsel, no order suspending the effectiveness of the Registration
Statement has been issued by the Commission and no proceeding for that purpose
has been initiated or threatened by the Commission.
(-) The Registration Statement as of the Effective Time and the Prospectus
and any amendments or supplements thereto, as of their respective dates,
appeared on their face, to be appropriately responsive, in all material
respects, to the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder (other than the financial statements
and related schedules and other financial or accounting data included therein or
omitted therefrom and excluding the documents incorporated therein by reference,
as to which such counsel need express no view).
Such counsel shall also state that they have participated in conferences
with officers and other representatives of the Company and the Parent Guarantor,
representatives of the independent accountants of the Company and the Parent
Guarantor, and representatives of the Underwriters, including counsel for the
Underwriters, at which the contents of the Registration Statement, the
Prospectus and any amendment or supplement thereto and related matters were
discussed; and, based upon such participation and review, and relying as to
materiality in part upon the factual statements of officers and other
representatives of the Company and the Parent Guarantor and representatives of
the Underwriters, no facts have come to the attention of such counsel to cause
such counsel to believe that the Registration Statement (except in each case for
the financial statements and related data and other financial or accounting data
or exhibits contained or incorporated by reference therein or omitted therefrom,
as to which such counsel need not comment), at the Effective Time, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus or any amendment or supplement thereto (except in each
case for the financial statements and related data and other financial or
accounting data or exhibits contained or incorporated by reference therein or
omitted therefrom, as to which such counsel need not comment), as of its date
and the Closing
B-3
Date included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and the Parent Guarantor and
public officials that are furnished to the Underwriters.
The opinion of [counsel] described above shall be rendered to the
Underwriters at the request of the Company and the Parent Guarantor and shall so
state therein.
B-4
BLOCK FINANCIAL CORPORATION
OFFICERS' CERTIFICATE
The undersigned, Becky Shulman, the Vice President and Treasurer of
Block Financial Corporation, a Delaware corporation (the "Corporation"), and
Bret G. Wilson, Secretary of the Corporation, do hereby establish the terms of
certain debt securities of the Corporation under the Indenture, dated
October 20, 1997 (the "Indenture"), among the Corporation, H&R Block, Inc.
("HRB") and Deutsche Bank Trust Company Americas (f/k/a Bankers Trust Company)
(the "First Trustee"), as supplemented by that certain First Supplemental
Indenture, dated as of April 18, 2000, among the Corporation, HRB, the First
Trustee and The Bank of New York, as separate trustee under the Indenture in
respect of BFC's 8.50% Notes due 2007 (the "Second Trustee), as follows:
(i) The title of the securities shall be "5.125% Notes due 2014" (the
"Notes");
(ii) Deutsche Bank Trust Company Americas shall be the Trustee,
Authenticating Agent, Paying Agent, Transfer Agent and Registrar
for the Notes;
(iii) The aggregate principal amount of the Notes which may be initially
authenticated and delivered under the Indenture shall be initially
limited to a maximum of $400,000,000, subject to the right of the
Corporation to issue additional principal amount of the Notes from time
to time;
(iv) The Notes shall mature on October 30, 2014; the holders of the Notes
shall not have the right to demand repayment of the Notes prior to
maturity; and the Notes shall not be subject to any sinking fund
requirement;
(v) The Notes shall bear interest at the rate of 5.125% per annum, which
interest shall accrue from October 26, 2004, or from the most recent
Interest Payment Date (as defined in the Indenture) to which interest
has been paid or duly provided for, which dates shall be April 30 and
October 30 of each year, and such interest shall be payable
semi-annually on April 30 and October 30, commencing on April 30, 2005,
to holders of record at the close of business on the April 15 or
October 15, respectively, next preceding each such Interest Payment
Date;
(vi) Deutsche Bank Trust Company Americas is appointed to be trustee for the
Notes, and Deutsche Bank Trust Company Americas or any other banking
institution hereafter selected by the officers of the Corporation, are
appointed agents of the Corporation (a) where the Notes may be presented
for registration of transfer or exchange, (b) where notices and demands
to or upon the Corporation in respect of the Notes or the Indenture may
be made or served and (c) where the Notes may be presented for payment
of principal and interest;
(vii) The Notes are approved in the form attached hereto as Exhibit A
and shall be issued upon original issuance in whole in the form of
book-entry Global Securities (as defined in the Indenture), and the
Depository (as defined in the Indenture) shall be the
Depository Trust Company, New York, New York. Such Global
Securities shall bear the legends set forth
in the form of Note attached as Exhibit A hereto;
(viii) In addition to the circumstances specified in Section 2.15(c)(i) and
(ii) of the Indenture, the Global Security may be exchanged for
individual Notes in definitive registered form if an Event of
Default has occurred and is continuing.
(ix) The Corporation may redeem the Notes at any time prior to maturity in
whole, or in part, at a redemption price equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed,
plus accrued interest to the redemption date, or
(ii) as determined by the Independent Investment Banker, the sum
of the present values of the remaining principal amount and
scheduled payments of interest on the Notes to be redeemed
(not including any portion of payments of interest accrued
as of the redemption date) discounted to the redemption date
on a semi-annual basis at the Treasury Rate plus 20 basis
points plus accrued interest to the redemption date.
The redemption price shall be calculated assuming a 360-day
year consisting of twelve 30-day months.
"Treasury Rate" means, with respect to any redemption date,
the rate per year equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated on the
third business day preceding the redemption date, assuming a
price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable
Treasury Price for that redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having
an actual or interpolated maturity comparable to the remaining
term of the Notes that would be used, at the time of selection
and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to
the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any
redemption date:
(i) the average of the Reference Treasury Dealer Quotations for
that redemption date, after excluding the highest and lowest
of the Reference Treasury Dealer Quotations, or
(ii) if the Trustee obtains fewer than three Reference Treasury
Dealer Quotations, the average of all Reference Treasury
Dealer Quotations so received.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the trustee after consultation with
the Corporation.
2
"Reference Treasury Dealer" means (a) each of J.P. Morgan
Securities Inc. and Merrill Lynch Government Securities Inc. and
their respective successors, unless either of them ceases to be a
primary U.S. government securities dealer in New York City (a
"Primary Treasury Dealer"), in which case the Corporation shall
substitute another Primary Treasury Dealer, and (b) any other
Primary Treasury Dealer selected by the Corporation.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any redemption date, the
average, as determined by the trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) quoted in writing to the
trustee by that Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third Business Day preceding that redemption
date.
Notice of any redemption shall be given at least 30 days but
not more than 60 days before the redemption date to each holder
of the Notes to be redeemed. Notices of redemption may not be
conditional. Unless there exists a default in payment of the
redemption price, on and after the redemption date, interest
shall cease to accrue on the Notes or portions of the Notes
called for redemption.
If less than all of the Notes are to be redeemed at any
time, the Trustee shall select Notes for redemption on a pro rata
basis, by lot or by such method as the Trustee deems fair and
appropriate.
(x) The Notes shall be general unsecured obligations of the Corporation
and shall rank equal in right of payment, on a pari passu basis,
with all of its other existing and future unsecured and
unsubordinated senior indebtedness. The Notes shall be fully and
unconditionally guaranteed on a senior unsecured basis by the Guarantor.
The guarantee shall rank equal in right of payment, on a pari passu
basis, with all of the Guarantor's existing and future unsecured and
unsubordinated senior indebtedness and guarantees;
(xi) The definition of "Permitted Lien" in the Indenture with respect to the
Notes shall be replaced with the following:
"Permitted Liens" means, with respect to any Person,
3
(a) Pledges or deposits by such Person under worker's
compensation laws, unemployment insurance laws, social
security laws or similar legislation, or good faith deposits
in connection with bids, tenders, contracts (other than for
the payment of Indebtedness) or leases to which such Person
is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or bonds to
secure performance, surety or appeal bonds to which such
Person is a party or which are otherwise required of such
Person, or deposits as security for contested taxes or
import duties or for the payment of rent or other
obligations of like nature, in each case Incurred in the
ordinary course of business;
(b) Liens imposed by law, such as carriers', warehousemen's,
laborers', materialmen's, landlords', vendors', workmen's,
operators', factors and mechanics liens, in each case for
sums not yet due or being contested in good faith by
appropriate proceedings;
(c) Liens for taxes, assessments and other governmental charges
or levies not yet delinquent or which are being contested in
good faith by appropriate proceedings;
(d) Survey exceptions, encumbrances, easements or reservations
of or with respect to, or rights of others for or with
respect to, licenses, rights-of-way, sewers, electric and
other utility lines and usages, telegraph and telephone
lines, pipelines, surface use, operation of equipment,
permits, servitudes and other similar matters, or zoning or
other restrictions as to the use of real property or Liens
incidental to the conduct of the business of such Person or
to the ownership of its properties which were not incurred
in connection with Indebtedness and which do not in the
aggregate materially adversely affect the value of said
properties or materially impair their use in the operation
of the business of such Person;
(e) Liens existing on or provided for under the terms of
agreements existing on the Issue Date (including, without
limitation, under the Credit Agreement);
(f) Liens on property at the time the Company or any of its
Subsidiaries acquired the property or the entity owning such
property, including any acquisition by means of a merger or
consolidation with or into the Company; provided, however,
that any such Lien may not extend to any other property
owned by the Company or any of its Subsidiaries;
(g) Liens on any Principal Property, or any shares of stock or
Indebtedness of any Subsidiary, acquired (including by way
of merger or consolidation) after the date of the Indenture
by the Company or any Subsidiary which are created
contemporaneously with such acquisition, or within 24 months
thereafter, to secure or provide for the payment or
financing of any part of the purchase price thereof;
4
(h) Liens arising from, or in connection with, any
securitization, sale or other transfer, or any financing,
involving loans, servicing assets, securities, receivables
or other financial assets (or, in each case, portions of, or
participations in, thereof) and/or, in each case, related
rights and interests;
(i) Liens securing a Hedging Obligation so long as such Hedging
Obligation is of the type customarily entered into for the
purpose of limiting risk;
(j) Purchase Money Liens;
(k) Liens securing only Indebtedness of a Subsidiary of the
Company to the Company or one or more wholly owned
Subsidiaries of the Company;
(l) Liens on any property to secure Indebtedness incurred in
connection with the construction, installation or financing
of pollution control or abatement facilities or other forms
of industrial revenue bond financing or Indebtedness issued
or Guaranteed by the United States, any state or any
department, agency or instrumentality thereof;
(m) Government Contract Liens;
(n) Liens securing Indebtedness of joint ventures in which the
Company or a Subsidiary has an interest to the extent such
Liens are on property or assets of, such joint ventures;
(o) Liens arising in connection with payables to brokers and
dealers in the ordinary course of business;
(p) Liens arising in connection with deposits and other
liabilities incurred by banking and/or other financial
services activities in the ordinary course of business;
(q) Banker's Liens, rights of setoff and other similar Liens
existing solely with respect to bank accounts maintained by
the Company and its Subsidiaries, in each case granted in
the ordinary course of business in favor of the bank or
banks with which such accounts are maintained; provided
that, unless the Liens are non-consensual and arise by
operation of law, the Liens shall not secure (either
directly or indirectly) the repayment of any Indebtedness;
(r) Liens resulting from the deposit of funds or evidences of
Indebtedness in trust for the purpose of defeasing Indebtedness
of the Company or any of its Subsidiaries;
(s) legal or equitable encumbrances deemed to exist by reason of
negative pledges or the existence of any litigation or other
legal proceeding and any related lis pendens filing
(excluding any attachment prior to judgment lien or
attachment lien in aid of execution on a judgment);
5
(t) any attachment Lien being contested in good faith and
by proceedings promptly initiated and diligently
conducted, unless the attachment giving rise thereto
shall not, within sixty days after the entry thereof,
have been discharged or fully bonded or shall not have
been discharged within sixty days after the termination
of any such bond;
(u) any judgment Lien, unless the judgment it secures shall
not, within sixty days after the entry thereof, have
been discharged or execution thereof stayed pending
appeal, or shall not have been discharged within sixty
days after the expiration of any such stay;
(v) Liens to banks arising from the issuance of letters of
credit issued by such banks;
(w) Rights of a common owner of any interest in property
held by such Person;
(x) Any defects, irregularities or deficiencies in title to
easements, rights-of-way or other properties which do
not in the aggregate materially adversely affect the
value of such properties or materially impair their use
in the operation of the business of such Person; and
(y) Liens to secure any refinancing, refunding, extension,
renewal or replacement (or successive refinancings,
refundings, extensions, renewals or replacements), as a
whole, or in part, of any indebtedness secured by any
Lien referred to in the foregoing clauses (e) through
(n); provided, however, that (i) such new Lien shall be
limited to all or part of the same property that
secured the original Lien (plus improvements on such
property) and (ii) the Indebtedness secured by such
Lien at such time is not increased to any amount
greater than the sum of (A) the outstanding principal
amount or, if greater, committed amount of the
indebtedness described under clauses (e) through (j) at
the time the original Lien became a Permitted Lien
under this Indenture and (B) an amount necessary to pay
any fees and expenses, including premiums, related to
such refinancing, refunding, extension, renewal or
replacement.
(xii) Section 4.08 of the Indenture shall not be applicable to the Notes;
(xiii) Section 4.10 of the Indenture with respect to the Notes shall be
replaced with the following:
Limitation on Liens. Unless the Company contemporaneously
secures the Notes equally and ratably with (or prior to)
such obligation, the Company shall not, and shall not permit
any of its Subsidiaries to create or permit to exist any
Lien on any Principal Property, or any shares of stock or
Indebtedness of any Restricted Subsidiary whether owned on
the Issue Date or thereafter acquired, securing any
obligation except for:
6
(i) Permitted Liens; or
(ii) Liens securing Indebtedness if, after giving pro forma
effect to the Incurrence of such indebtedness (and the
receipt and application of the proceeds thereof) or the
securing of outstanding Indebtedness, all Indebtedness of
the Company and its Subsidiaries secured by Liens on any
Principal Property (other than Permitted Liens), at the time
of determination does not exceed the greater of $250,000,000
or 15% of the total consolidated stockholders' equity of the
Company as shown on the audited consolidated balance sheet
contained in the latest annual report to stockholders of the
Company.
(xiv) The only Events of Default with respect to the Notes shall be those
listed in clauses (a) through (h) of Section 6.01;
(xv) Section 10.01 of the Indenture with respect to the Notes shall be
replaced with the following;
Consolidations and Mergers of the Company. Neither BFC nor
the Company shall consolidate with or merge with or into any
Person, or convey, transfer or lease all or substantially all the
assets of the Company on a consolidated basis, unless:
(i) either (a) the Company shall be the continuing Person in the
case of a merger or (b) the resulting, surviving or
transferee Person if other than the Company (the "Successor
Company") shall be a corporation organized and existing
under the laws of the United States, any State thereof or
the District of Columbia and the Successor Company shall
expressly assume, by an Indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of BFC and the Company
under the Notes according to their tenor, and this
Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the
Successor Company or any Subsidiary of the Company as a
result of such transaction as having been Incurred by the
Successor Company or such Subsidiary at the time of such
transaction), no Default or Event of Default would occur or
be continuing; and
(iii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental
Indenture (if any) comply with this Indenture.
(xvi) The Notes shall be subject to Article XI of the Indenture
(xvii) The initial public offering price of the Notes is 99.412% of
the principal amount thereof,
7
plus accrued interest, if any, from October 26, 2004;
(xviii) The price to be received by the Corporation from the Underwriters for
the Notes shall be 98.762% of the principal amount thereof;
(xix) In case of any conflict between this Certificate and the Notes in the
form referred to in paragraph (vii), the Notes shall control.
[signature page follows]
8
IN WITNESS WHEREOF, I have signed my name as of this 26th day of
October, 2004.
By: /s/ Becky Shulman
------------------------
Name: Becky Shulman
Title: Vice President and Treasurer
By: /s/ Bret G. Wilson
------------------------
Name: Bret G. Wilson
Title: Secretary
9
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Number R1 $400,000,000
CUSIP 093662AC8
Block Financial
Corporation
5.125% Note 2014
Rate of Interest Maturity Date Original Issue Date
5.125% October 30, 2014 October 26, 2004
BLOCK FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor corporation under the Indenture referred to
on the reverse hereof), for value received, hereby promises to pay to
CEDE & CO., or registered assigns, the principal sum of four hundred million
($400,000,000), at the office or agency of the Company in the Borough of
Manhattan, The City and State of New York, on October 30, 2014, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
at the rate of 5.125% per annum, from the date hereof or from the most recent
date to which interest has been paid or duly provided for, semi-annually on
April 30th and October 30th of each year and at maturity, on said principal
sum at said office or agency, in like coin or currency, commencing on
April 30, 2005. The interest so payable on any April 30th or October 30th will,
subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Note is registered at
the close of business on such April 15 or October 15, as the case may be, next
preceding such April 30th or October 30th, unless the Company shall default in
the payment of interest due on such interest payment date, in which case such
defaulted interest, at the option of the Company, may be paid to the person in
whose name this Note is registered at the close of business on a special record
date for the payment of such defaulted interest established by notice to the
registered holders of Notes not less than ten days preceding such special record
date or may be paid in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed.
Payment of interest may, at the option of the Company, be made by check mailed
to the registered address of the person entitled thereto.
This Note is one of a duly authorized issue of unsecured Notes, notes
or other evidences of indebtedness of the Company (hereinafter called the
"Securities"), of the series hereinafter specified, all issued or to be issued
under an indenture dated as of October 20, 1997 (hereinafter called the
"Indenture"), among the Company, H&R Block, Inc. ("Guarantor") and Deutsche Bank
Trust Company Americas (f/k/a Bankers Trust Company) (the "Trustee"), as
supplemented by that certain First Supplemental Indenture, dated as of April 18,
2000, among the Company, Guarantor, the Trustee and The
Bank of New York, as separate trustee under the Indenture in respect of the
Company's 8.50% Notes due 2007, to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the
respective rights and duties thereunder of the Trustee, Bank of New York, the
Company, the Guarantor and the holders of the Securities. The Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest at
different rates, may have different conversion prices (if any), may be subject
to different redemption provisions, may be subject to different sinking,
purchase or analogous funds, may be subject to different covenants and Events of
Default and may otherwise vary as in the Indenture provided. This Note is one of
a series designated as the 5.125% Notes due 2014 of the Company (hereinafter
called the "Notes") issued under the Indenture.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place. This Note shall not be valid or
become obligatory for any purpose until the certificate of authentication hereon
shall have been signed by the Trustee under the Indenture referred to on the
reverse hereof.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: October 26, 2004 BLOCK FINANCIAL CORPORATION
By /s/ Mark Ernst
----------------------
Mark Ernst
Chairman of the Board,
President and Chief Executive Officer
ATTEST:
By /s/ Bret G. Wilson
----------------------
Bret G. Wilson
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: October 26, 2004
This is one of the Notes referred to in the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE
By /s/ Susan Johnson
--------------------------
Name: Susan Johnson
Title: Vice President
BLOCK FINANCIAL CORPORATION
5.125% Notes 2014
The Notes shall be redeemable in whole or in part at the option of the
Company at any time, at a redemption price equal to the greater of (i) 100% of
the principal amount of the Notes to be redeemed, plus accrued interest to the
redemption date, or (ii) the sum of the present values of the remaining
principal amount and scheduled payments of interest on the Notes to be redeemed
(not including any portion of payments of interest accrued as of the redemption
date) discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus
twenty (20) basis points, plus accrued interest to the redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per year equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated on the third business day preceding the redemption
date, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
that redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having an actual or
interpolated maturity comparable to the remaining term of the Notes that would
be used, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes. "Independent Investment Banker"
means one of the Reference Treasury Dealers appointed by the trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the Reference Treasury Dealer Quotations for that redemption
date, after excluding the highest and lowest of the Reference Treasury Dealer
Quotations or (ii) if the trustee obtains fewer than three Reference Treasury
Dealer Quotations, the average of all Reference Treasury Dealer Quotations so
received. "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the trustee by that Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third business day preceding that redemption date.
"Reference Treasury Dealer" means (a) each of J.P. Morgan Securities
Inc. and Merrill Lynch Government Securities Inc. and their respective
successors, unless either of them ceases to be a primary U.S. government
securities dealer in New York City (a "Primary Treasury Dealer"), in which case
the issuer shall substitute another Primary Treasury Dealer, and (b) any other
Primary Treasury Dealer selected by the Company.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of Notes to be redeemed.
Notices of redemption may not be conditional.
Unless the Company defaults in payment of the redemption price on and
after the redemption date, interest will cease to accrue on the Notes or
portions thereof called for redemption.
The Notes will not be entitled to any sinking fund.
In case an Event of Default with respect to the Notes, as defined in
the Indenture, shall have occurred and be continuing, the principal hereof
together with interest accrued thereon, if any, may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company, the
Guarantor and the Trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of the Securities at the time outstanding
of all series to be affected (acting as one class) to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the holders of the Notes; provided, however, that no
such supplemental indenture shall, among other things, (i) reduce the percentage
in principal amount of Notes whose Holders must consent to an amendment; (ii)
reduce the rate of or extend the time for payment of interest on any Notes;
(iii) reduce the principal of or extend the Stated Maturity of any Notes; (iv)
make any Notes payable in Currency other than that stated in the Notes; (v)
release any security that may have been granted in respect of the Notes; or (vi)
make any change in any of the foregoing provisions. It is also provided in the
Indenture that the holders of a majority in aggregate principal amount of the
Securities of a series at the time outstanding may on behalf of the holders of
all the Securities of such series waive any past default under the Indenture
with respect to such series and its consequences, except a default in the
payment of the principal of, premium, if any, or interest, if any, on any
Security of such series or in respect of a covenant or provision which cannot be
modified without the consent of the Holder of each outstanding Security of the
series affected. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Note and any Notes which may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, if any, and interest on
this Note at the place, at the respective times, at the rate and in the coin or
currency herein prescribed.
The Indenture permits the Company to discharge its obligations with
respect to the Notes on the 91st day following the satisfaction of the
conditions set forth in the Indenture, which include the deposit with the
Trustee of money or U.S. Government Obligations or a combination thereof
sufficient to pay and discharge each installment of principal of (including
premium, if any, on) and interest, if any, on the outstanding Notes.
If the Company shall, in accordance with Section 10.01 of the
Indenture, consolidate with or merge into any other corporation or if the
Company or the Guarantor convey or transfer substantially all of the properties
and assets of the Guarantor, on a consolidated basis to any Person, the
successor shall succeed to, and be substituted for, the Person named as the
"Company" on the face of this Note, all on the terms set forth in the Indenture.
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. In the manner and
subject to the limitations provided in the Indenture, but without the payment of
any service charge, Notes may be exchanged for an equal aggregate principal
amount of Notes of other authorized denominations at the office or agency of the
Company maintained for such purpose in the Borough of Manhattan, The City and
State of New York.
Upon due presentation for registration of transfer of this Note at
the office or agency of the Company for such registration in the Borough of
Manhattan, The City and State of New York, a new Note or Notes of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange herefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Note is subject to redemption in whole or in part at any time at
the option of the Company as provided in the Indenture.
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee and any agent of the Company or the Trustee may deem
and treat the registered holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue) for the purpose of receiving payment
of the principal of, premium, if any, and interest on this Note, as herein
provided, and for all other purposes, and neither the Company nor the Trustee
nor any agent of the Company or the Trustee shall be affected by any notice of
the contrary. All payments made to or upon the order of such registered holder
shall, to the extent of the sum or sums paid, effectually satisfy and discharge
liability for moneys payable on this Note.
No recourse for the payment of the principal of, premium, if any, or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Unless otherwise defined in this Note, all terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
H&R BLOCK, INC., a Missouri corporation (the "Guarantor", which term
includes any successor under the Indenture (the "Indenture") referred to in the
Debt Security on which this notation is endorsed) has unconditionally
guaranteed, pursuant to the terms of the Guarantees contained in Article XIII of
the Indenture, the due and punctual payment of the principal of and any premium
and interest on this Debt Security, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption or otherwise, in accordance with the terms of this Debt Security
and the Indenture.
The obligations of the Guarantor to the Holders of the Securities and
to the Trustee pursuant to the Guarantees and the Indenture are expressly set
forth in Article XIII of the Indenture, and reference is hereby made to such
Article and Indenture for the precise terms of the Guarantees.
The Guarantees shall not be valid or obligatory for any purpose until
the certificate of authentication on the Debt Security upon which this notation
of the Guarantees is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
Dated: October 26, 2004 H&R BLOCK, INC.
By /s/ Mark Ernst
-------------------------------------
Mark Ernst
Chairman of the Board,
President and Chief Executive Officer
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT -- Custodian
---------- ---------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
--------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
- --------------------------------- ----------------------------------
[PLEASE INSERT SOCIAL SECURITY OR [PLEASE PRINT OR TYPE NAME AND
OTHER IDENTIFYING NUMBER OF ADDRESS INCLUDING ZIP CODE, OF
ASSIGNEE] ASSIGNEE]
Within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
- --------------------------------- -----------------------------------
DATE SIGNATURE
NOTICE: The signature must correspond with the name as written upon the face of
the within Note in every particular without alteration or enlargement or any
change whatsoever.
October 26, 2004
Block Financial Corporation
H&R Block, Inc.
4400 Main Street
Kansas City, Missouri 64111
Re: $400,000,000 of 5.125% Notes due 2014
Dear Ladies and Gentlemen:
We have acted as counsel for Block Financial Corporation, a Delaware
corporation ("BFC"), and H&R Block, Inc., a Missouri corporation (the
"Guarantor"), in connection with (i) the issuance and sale by the Company of an
aggregate of $400,000,000 of principal amount of the Company's 5.125% Notes due
2014 (the "Notes"), which are fully and unconditionally guaranteed by the
Guarantor pursuant to guarantees (the "Guarantee") endorsed on the Notes, to the
several Underwriters listed in Schedule 1 to the Underwriting Agreement dated
October 21, 2004 (the "Underwriting Agreement") among the Company, the
Guarantor, JP Morgan Securities Inc. and Merrill Lynch, Pierce Fenner & Smith
Incorporated, as representatives of the several Underwriters named therein. The
Notes (including the Guarantee) will be issued pursuant to the Indenture, dated
October 20, 1997 (the "Original Indenture"), among the Company, Guarantor and
Deutsche Bank Trust Company Americas (f/k/a Bankers Trust Company) (the "First
Trustee"), as supplemented by that certain First Supplemental Indenture, dated
as of April 18, 2000 (the "First Supplemental Indenture"), among the Company,
Guarantor, the First Trustee and The Bank of New York, as separate trustee under
the Indenture in respect of the Company's 8.50% Notes due 2007 (the "Second
Trustee").
In reaching the conclusions expressed herein, and acting in our capacity
as counsel to the Company in connection with the above referenced transactions,
we have examined originals, or copies certified or otherwise identified to our
satisfaction, of such corporate records and other documents as we have deemed
necessary or appropriate for purposes of this opinion letter, including, without
limitation:
a. the Underwriting Agreement;
b. the Original Indenture;
c. the First Supplemental Indenture;
d. Officers' Certificate of BFC establishing the terms of the Notes (the
"Officers' Certificate", the Original Indenture, as supplemented or
amended by the First Supplemental Indenture and the Officers'
Certificate is referred to herein as the "Indenture");
f. the global note representing the Notes and the Guarantee endorsed on
the Notes;
g. the Registration Statement on Form S-3 (File No. 333-11802001) filed
with the Commission on August 6, 2004 (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Act");
h. the prospectus of BFC and the Guarantor dated October 21, 2004 (the
"Base Prospectus");
i. the prospectus supplement of BFC dated October 21, 2004 (the
"Prospectus Supplement", and together with the Base Prospectus, the
"Prospectus"),
j. the Certificate of Incorporation of BFC, as amended;
k. the Articles of Incorporation of the Guarantor, as amended;
l. the Bylaws of BFC and the Guarantor, as amended;
m. the resolutions adopted by the Board of Directors of BFC and the
Guarantor relating to the offer and sale of the Notes by BFC and the
guarantee thereof by the Guarantor; and
n. resolutions adopted by the Pricing Committee of BFC's Board of
Directors on October 21, 2004.
We express no opinion as to matters under or involving the laws of any
jurisdiction other than the corporate laws of the States of Missouri, Delaware
and New York, and the federal law of the United States of America.
For purposes of the opinions expressed below, we have assumed (i) the
authenticity of original documents and the genuineness of all signatures; (ii)
the conformity to the originals of all documents submitted to us as copies;
(iii) the due authorization, execution and delivery of all documents by all
parties and the validity, binding effect and enforceability thereof (other than
the authorization, execution and delivery of documents by BFC or Guarantor);
(iv) the truth, accuracy, and completeness of the information, representations
and warranties contained in the records, documents, instruments and certificates
we have reviewed; and (v) all Notes will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the
Registration Statement and the Prospectus Supplement.
Our opinions below that any document is valid, binding or enforceable is
qualified as to: (i) the effect of applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar federal or
state laws generally affecting the rights of creditors or secured parties; (ii)
rights to indemnification and contribution, which may be limited by applicable
law or equitable principles, and
exculpatory provisions and waivers of the benefits of statutory provisions,
which may be limited on public policy grounds; and (iii) general principles of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, and the possible unavailability of specific
performance or injunctive relief and limitation of rights of acceleration,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
Based upon the foregoing and subject to the limitations, qualifications,
and exceptions set forth herein, we are of the opinion that:
1. the Notes have been duly authorized by all necessary corporate
action by BFC and the Guarantee has been duly authorized by all necessary
corporate action of the Guarantor; and
2. the Notes and the Guarantee constitute valid and legally binding
obligations of BFC and the Guarantor, respectively, enforceable in
accordance with their terms.
We consent to your filing this opinion letter as an exhibit to the Current
Report on Form 8-K and to the reference to our firm contained under the heading
"Legal Matters" in the Prospectus constituting a part of the Registration
Statement. This consent is not to be construed as an admission that we are a
person whose consent is required to be filed with the Registration Statement
under the provisions of the Act. This opinion is rendered solely for your
benefit in connection with the above matter and may not be relied upon in any
manner by any other person or entity without our express written consent.
Very truly yours,
STINSON MORRISON HECKER LLP
/s/ Stinson Morrison Hecker LLP
- --------------------------------------------------------------------------------
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)
------------------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly 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.)
60 WALL STREET
NEW YORK, NEW YORK 10005
(Address of principal (Zip Code)
executive offices)
Deutsche Bank Trust Company Americas
Attention: Will Christoph
Legal Department
60 Wall Street, 36th Floor
New York, New York 10005
(212) 250-0378
(Name, address and telephone number of
agent for service)
------------------------------------------------------
Block Finanical Corporation
(Exact Name of Registrant as Specified in its Charter)
Delaware 52-1781495
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
4400 Main Street
Kansas City, Missouri 64111
(816) 753-6900
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
H&R Block, Inc.
(As Issuer of the guarantees described herein)
(Exact name of registrant as specified in its charter)
Missouri 44-0007856
(State or other jurisdiction of incorporation) (I.R.S Employer
Identification No.)
4400 Main Street
Kansas City, Missouri 64111
(816) 753-6900
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Bret G. Wilson, Esq.
4400 Main Street
Kansas City, Missouri 64111
(816) 753-6900
(Name, address, including zip code, and telephone number, including area
code, of agent for service of each registrant)
Copies to:
Patrick J. Respeliers, Esq.
Stinson Morrison Hecker LLP
2600 Grand Blvd.
Kansas City, Missouri 64108
(816) 691-2600
DEBT SECURITIES
(Title of the Indenture 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,
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated
December 16, 1998, and Certificate of Amendment
of the Organization Certificate of Bankers Trust
Company dated February 27, 2002, 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 April 15, 2002. Copy attached.
-2-
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein
by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Deutsche
Bank Trust Company Americas dated as of June 30,
2004. 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, Deutsche Bank Trust Company Americas, 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 13th day of October, 2004.
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Susan Johnson
----------------------------
Susan Johnson
Vice President
-4-
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Deutsche Bank Trust Company Americas, 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 13th day of October 2004.
DEUTSCHE BANK TRUST COMPANY AMERICAS
/s/ Susan Johnson
-----------------
By: Susan Johnson
Vice President
-5-
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
1301 6th Avenue, 8th Floor
New York, N.Y. 10019
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 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 extent
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 be payable on such shares if all dividends were paid in
full, provided, however, that any 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 first 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 rate 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 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 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% or 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 respect
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 of 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
addresses 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 be
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 be 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 than 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
BANKERS TRUST COMPANY
ASSISTANT SECRETARY'S CERTIFICATE
I, Lea Lahtinen, Vice President and Assistant Secretary of Bankers Trust
Company, a corporation duly organized and existing under the laws of the State
of New York, the
United States of America, do hereby certify that attached copy of the
Certificate of Amendment of the Organization Certificate of Bankers Trust
Company, dated February 27, 2002, providing for a change of name of Bankers
Trust Company to Deutsche Bank Trust Company Americas and approved by the New
York State Banking Department on March 14, 2002 to effective on April 15, 2002,
is a true and correct copy of the original Certificate of Amendment of the
Organization Certificate of Bankers Trust Company on file in the Banking
Department, State of New York.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of Bankers
Trust Company this 4th day of April, 2002.
[SEAL]
/s/ Lea Lahti
----------------------------------------------------
Lea Lahtinen, Vice President and Assistant Secretary
Bankers Trust Company
State of New York )
) ss.:
County of New York )
On the 4th day of April in the year 2002 before me, the undersigned, a Notary
Public in and for said state, personally appeared Lea Lahtinen, personally known
to me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that
she executed the same in her capacity, and that by her signature on the
instrument, the individual, or the person on behalf of which the individual
acted, executed the instrument.
/s/ Sonja K. Olsen
- -------------------------------
Notary Public
SONJA K. OLSEN
Notary Public, State of New York
No. 01OL4974457
Qualified in New York County
Commission Expires November 13, 2002
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 February 27, 2002, providing for a change of name of BANKERS
TRUST COMPANY to DEUTSCHE BANK TRUST COMPANY AMERICAS.
Witness, my hand and official seal of the Banking Department at
the City of New York,
this 14th day of March two thousand and two.
/s/ P. Vincent Conlon
---------------------------------------
Deputy Superintendent of Banks
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF
BANKERS TRUST COMPANY
Under Section 8005 of the Banking Law
-----------------
We, James T. Byrne Jr., and Lea Lahtinen, being respectively the Secretary, and
Vice President and an Assistant Secretary of Bankers Trust Company, do hereby
certify:
1. The name of corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th day of March, 1903.
3. Pursuant to Section 8005 of the Banking Law, attached hereto as Exhibit A is
a certificate issued by the State of New York, Banking Department listing all of
the amendments to the Organization Certificate of Bankers Trust Company since
its organization that have been filed in the Office of the Superintendent of
Banks.
4. The organization certificate as heretofore amended is hereby amended to
change the name of Bankers Trust Company to Deutsche Bank Trust Company Americas
to be effective on April 15, 2002.
5. The first paragraph number 1 of the organization of Bankers Trust Company
with the reference to the name of the Bankers Trust Company, which reads as
follows:
"1. The name of the corporation is Bankers Trust Company."
is hereby amended to read as follows effective on April 15, 2002:
"1. The name of the corporation is Deutsche Bank Trust Company
Americas."
6. 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 27th day
of February, 2002.
/s/ James T. Byrne Jr.
-----------------------------------------
James T. Byrne Jr.
Secretary
/s/ Lea Lahtinen
-----------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
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 therein contained are true.
/s/ Lea Lahtinen
----------------------------------
Lea Lahtinen
Sworn to before me this 27th day
of February, 2002
/s/ Sandra L. West
- -------------------------------
Notary Public
SANDRA L. WEST
Notary Public, State of New York
No. 01WE4942401
Qualified in New York County
Commission Expires September 19, 2002
EXHIBIT A
---------
State of New York
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York,
DO HEREBY CERTIFY:
THAT, the records in the Office of the Superintendent of Banks indicate that
BANKERS TRUST COMPANY is a corporation duly organized and existing under the
laws of the State of New York as a trust company, pursuant to Article III of the
Banking Law; and
THAT, the Organization Certificate of BANKERS TRUST COMPANY was filed in the
Office of the Superintendent of Banks on March 5, 1903, and such corporation was
authorized to commence business on March 24, 1903; and
THAT, the following amendments to its Organization Certificate have been filed
in the Office of the Superintendent of Banks as of the dates specified:
Certificate of Amendment of Certificate of Incorporation providing
for an increase in number of directors - filed on January 14, 1905
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on August 4, 1909
Certificate of Amendment of Certificate of Incorporation providing
for an increase in number of directors - filed on February 1, 1911
Certificate of Amendment of Certificate of Incorporation providing
for an increase in number of directors - filed on June 17, 1911
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on August 8, 1911
Certificate of Amendment of Certificate of Incorporation providing
for an increase in number of directors - filed on August 8, 1911
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on March 21, 1912
Certificate of Amendment of Certificate of Incorporation providing
for a decrease in number of directors - filed on January 15, 1915
Certificate of Amendment of Certificate of Incorporation providing
for a decrease in number of directors - filed on December 18, 1916
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on April 20, 1917
Certificate of Amendment of Certificate of Incorporation providing
for an increase in number of directors - filed on April 20, 1917
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on December 28, 1918
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on December 4, 1919
Certificate of Amendment of Certificate of Incorporation providing
for an increase in number of directors - filed on January 15, 1926
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on June 12, 1928
Certificate of Amendment of Certificate of Incorporation providing
for a change in shares - filed on April 4, 1929
Certificate of Amendment of Certificate of Incorporation providing
for a minimum and maximum number of directors - filed on January 11,
1934
Certificate of Extension to perpetual - filed on January 13, 1941
Certificate of Amendment of Certificate of Incorporation providing
for a minimum and maximum number of directors - filed on January 13,
1941
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on December 11, 1944
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed January 30, 1953
Restated Certificate of Incorporation - filed November 6, 1953
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on April 8, 1955
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on February 1, 1960
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on July 14, 1960
Certificate of Amendment of Certificate of Incorporation providing
for a change in shares - filed on September 30, 1960
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on January 26, 1962
Certificate of Amendment of Certificate of Incorporation providing
for a change in shares - filed on September 9, 1963
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on February 7, 1964
Certificate of Amendment of Certificate of Incorporation providing
for an increase in capital stock - filed on February 24, 1965
Certificate of Amendment of the Organization Certificate providing
for a decrease in capital stock - filed January 24, 1967
Restated Organization Certificate - filed June 1, 1971
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed October 29, 1976
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed December 22, 1977
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed August 5, 1980
Restated Organization Certificate - filed July 1, 1982
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed December 27, 1984
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed September 18, 1986
Certificate of Amendment of the Organization Certificate providing
for a minimum and maximum number of directors - filed January 22,
1990
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed June 28, 1990
Restated Organization Certificate - filed August 20, 1990
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed June 26, 1992
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed March 28, 1994
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed June 23, 1995
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed December 27, 1995
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed March 21, 1996
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed December 27, 1996
Certificate of Amendment to the Organization Certificate providing
for an increase in capital stock - filed June 27, 1997
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed September 26, 1997
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed December 29, 1997
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed March 26, 1998
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed June 23, 1998
Restated Organization Certificate - filed August 31, 1998
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed September 25, 1998
Certificate of Amendment of the Organization Certificate providing
for an increase in capital stock - filed December 18, 1998; and
Certificate of Amendment of the Organization Certificate providing
for a change in the number of directors - filed September 3, 1999;
and
THAT, no amendments to its Restated Organization Certificate have been filed in
the Office of the Superintendent of Banks except those set forth above; and
attached hereto; and
I DO FURTHER CERTIFY THAT, BANKERS TRUST COMPANY is validly existing as a
banking organization with its principal office and place of business located at
130 Liberty Street, New York, New York.
WITNESS, my hand and official seal of the Banking Department at the City of New
York this 16th day of October in the Year Two Thousand and One.
/s/ P. Vincent Conlon
--------------------------
Deputy Superintendent of Banks
DEUTSCHE BANK TRUST COMPANY AMERICAS
BY-LAWS
APRIL 15, 2002
Deutsche Bank Trust Company Americas
New York
BY-LAWS
of
Deutsche Bank Trust Company Americas
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, in
January of each year, for the election of directors and such other business as
may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer, the
President or any Co-President to call such meetings whenever requested in
writing to do so by stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or any Co-President or, in their
absence, the senior officer present, shall preside at meetings of the
stockholders and shall direct the proceedings and the order of business. The
Secretary shall act as secretary of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than seven nor more than fifteen, as may from time to time be fixed by
resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone, video
conference 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.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
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. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence the
President or any Co-President or, in their absence such other director as the
Board of Directors from time to time may designate shall preside at such
meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time provided, however, that the Board of Directors shall hold a regular meeting
not less than six times a year, provided that during any three consecutive
calendar months the Board of Directors shall meet at least once, and its
Executive Committee shall not be required to meet at least once in each thirty
day period during which the Board of Directors does not meet. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, the President or any Co-President or, in their absence, by such
other director as the Board of Directors may have designated pursuant to Section
3 of this Article, and shall be called upon like notice whenever any three of
the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, the
President or any Co-President or, in their absence, such other member of the
Committee as the Committee from time to time may designate shall preside at such
meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting.
All acts done and powers and authority conferred by the Executive Committee from
time to time shall be and be deemed to be, and may be certified as being, the
act and under the authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of who must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President, or
two or more Co-Presidents, and may also elect, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Managing Directors, one or more
Senior Vice Presidents, one or more Directors, one or more Vice Presidents, one
or more General Managers, a Secretary, a Controller, a Treasurer, a General
Counsel, a General Auditor, 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 or any Co-President, 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, or any Co-President 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 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board, or
President, or any Co-President, and such person shall have, subject to the
supervision and direction of the Board of Directors or the Executive Committee,
all of the powers vested in such Chief Executive Officer by law or by these
By-Laws, or which usually attach or pertain to such office. The other officers
shall have, subject to the supervision and direction of the Board of Directors
or the Executive Committee or the Chairman of the Board or, the Chief Executive
Officer, the powers vested by law or by these By-Laws in them as holders of
their respective offices and, in addition, shall perform such other duties as
shall be assigned to them by the Board of Directors or the Executive Committee
or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter to be of special immediate importance, he shall
report thereon forthwith to the Audit Committee. The General Auditor shall
report to the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking 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 Company 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 Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, 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 2. The Company may indemnify any other person to whom the Company 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 Banking Law or other rights created by (i) a resolution of
stockholders, (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 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, 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 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. 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 Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer, the President or any Co-President, and (ii) only if and to the extent
that, after making such efforts as the Chairman of the Board, the Chief
Executive Officer, the President or any Co-President shall deem adequate in the
circumstances, such person shall be unable to obtain indemnification from such
other enterprise or its insurer.
SECTION 5. 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
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 6. The right to be indemnified or to the reimbursement or advancement of
expense 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 Company 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 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company 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 Company (including its Board of Directors,
independent legal counsel, or its
stockholders) 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 circumstance, nor an actual determination by the
Company (including its Board of Directors, independent legal counsel, or its
stockholders) 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 8. 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 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
I, Susan Johnson, Associate, of Deutsche Bank Trust Company Americas, New York,
New York, hereby certify that the foregoing is a complete, true and correct copy
of the By-Laws of Deutsche Bank Trust Company Americas, and that the same are in
full force and effect at this date.
/s/ Susan Johnson
-------------------------------------
Vice President
DATED AS OF: October 13, 2004
DEUTSCHE BANK TRUST COMPANY AMERICAS FFIEC 031
- ------------------------------------------
Legal Title of Bank RC-1
NEW YORK
- ------------------------------------------
City 12
NY 10019
- ------------------------------------------
State Zip Code
FDIC Certificate Number - 00623
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 2004
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
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 2,546,000 1.a.
b. Interest-bearing balances (2)...... 0071 240,000 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 50,000 2.b.
3. Federal funds sold and securities /////////////////
purchased under agreements to resell.. RCON 3.
a. Federal funds sold in domestic /////////////////
offices............................ B987 443,000 3.a
RCFD
b. Securities purchased under /////////////////
agreements to resell (3)........... B989 6,442,000 3.b
4. Loans and lease financing receivables /////////////////
(from Schedule RC-C): /////////////////
a. Loans and leases held for sale 5369 0 4.a.
b. Loans and leases, net unearned /////////////////
income.............................B528 7,338,000 ///////////////// 4.b.
c. LESS: Allowance for loan and /////////////////
lease losses.......................3123 331,000 ///////////////// 4.c.
d. Loans and leases, net of unearned /////////////////
income and allowance /////////////////
(item 4.b minus 4.c) .............. B529 7,007,000 4.d.
5. Trading Assets (from schedule RC-D).. 3545 8,557,000 5.
6. Premises and fixed assets (including /////////////////
capitalized leases).................. 2145 298,000 6.
7. Other real estate owned (from /////////////////
Schedule RC-M)....................... 2150 6,000 7.
8. Investments in unconsolidated /////////////////
subsidiaries and associated companies /////////////////
(from Schedule RC-M) 2130 8,000 8.
9. Customers' liability to this bank on /////////////////
acceptances outstanding.............. 2155 0 9.
10. Intangible assets.................... /////////////////
a. Goodwill ......................... 3163 0 10.a
b. Other intangible assets /////////////////
(from Schedule RC-M) 0426 30,000 10.b
11. Other assets (from Schedule RC-F)..... 2160 5,342,000 11.
12. Total assets (sum of items /////////////////
1 through 11)......................... 2170 30,969,000 12.
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
(3) Includes all securities resale agreements in domestic and foreign offices,
regardless of maturity.
DEUTSCHE BANK TRUST COMPANY AMERICAS FFIEC 031
- ------------------------------------
Legal Title of Bank RC-2
FDIC Certificate Number - 00623 13
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 7,525,000 13.a.
(1)Noninterest-bearing(1).RCON 6631 2,777,000////////////////////
(2)Interest-bearing ......RCON 6636 4,748,000//////////////////// 13.a.(2)
b.In foreign offices, Edge ////////////////////
and Agreement subsidiaries, ////////////////////
and IBFs (from Schedule ////////////////////
RC-E part II) RCFN 2200 7,110,000 13.b.
(1)Noninterest-bearing ...RCFN 6631 2,112,000//////////////////// 13.b.(1)
(2)Interest-bearing.......RCFN 6636 4,998,000//////////////////// 13.b.(2)
14.Federal funds purchased and ////////////////////
securities sold under ////////////////////
agreements to repurchase: RCON
a.Federal Funds purchased in ////////////////////
domestic offices (2)........ B993 5,381,000 14.a
RCFD
b.Securities sold under ////////////////////
agreements to repurchase (3) 8995 0 14.b
15.Trading liabilities (from ////////////////////
Schedule RC-D)................ RCFD 3548 1,079,000 15.
16.Other borrowed money (includes ////////////////////
mortgage indebtedness and ////////////////////
obligations under capitalized ////////////////////
leases):(from Schedule RC-M): RCFD 3190 158,000 16.
17.Not Applicable. //////////////////// 17.
18.Bank's liability on ////////////////////
acceptances executed and ////////////////////
outstanding................... RCFD 2920 0 18.
19.Subordinated notes and ////////////////////
debentures (2)................ RCFD 3200 9,000 19.
20.Other liabilities (from ////////////////////
Schedule RC-G)................ RCFD 2930 2,031,000 20.
21.Total liabilities (sum of ////////////////////
items 13 through 20).......... RCFD 2948 23,293,000 21.
22.Minority interest in ////////////////////
consolidated subsidiaries RCFD 3000 413,000 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 584,000 25.
26.a.Retained earnings........... RCFD 3632 2,986,000 26.a.
b.Accumulated other ////////////////////
comprehensive Income (3).... RCFD B530 66,000 26.b.
27.Other equity capital ////////////////////
components (4)................ RCFD A130 0 27.
28.Total equity capital (sum of ////////////////////
items 23 through 27).......... RCFD 3210 7,263,000 28.
29.Total liabilities, minority ////////////////////
interest, and equity capital ////////////////////
(sum of items 21, 22, and ////////////////////
28)........................... RCFD 3300 30,969,000 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 most comprehensive
level of auditing work performed for Number ___
the bank by independent external ----------------------------
auditors as of any date during 2002........RCFD 6724 1 M.1
----------------------------
1 = Independent audit of the bank 5 = Directors' examination of the bank
conducted in accordance performed by other external auditors
with generally accepted (may be required by state chartering
auditing standards by a authority)
certified public accounting 6 = Review of the bank's financial
firm which submits a report statements by external auditors
on the bank 7 = Compilation of the bank's financial
2 = Independent audit of the statements by external auditors
bank's parent holding company 8 = Other audit procedures (excluding tax
conducted in accordance with preparation work)
generally accepted auditing 9 = No external audit work
standards by a certified
public accounting firm which
submits a report on the
consolidated holding company
(but not on the bank
separately)
3 = Attestation on bank management's
assertion on the effectiveness
of the bank's internal control
over financial reporting by a
certified public accounting firm
4 = Directors' examination of the
bank conducted in accordance
with generally accepted auditing
standards by a certified public
accounting firm (may be required
by state chartering authority)
- ----------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Report overnight Federal Home Loan Bank advances in Schedule RC, Item 16,
"other borrowed money."
(3) Includes all securities repurchase agreements in domestic and foreign
offices, regardless of maturity.
(4) Includes limited-life preferred stock and related surplus.
(5) Includes net unrealized holding gains (losses) on available-for-sale
securities, accumulated net gains (losses) on
cash flow hedges, cumulative foreign currency translation adjustments, and
minimum pension liability adjustments.
(6) Includes treasury stock and unearned Employee Stock Plan shares.
H&R BLOCK
News Release
For Further Information:
Bob Schneider, Media Relations, 816-932-4835
Pam Kearney, Investor Relations, 816-932-1967
H&R BLOCK TO ISSUE $400 MILLION IN 10-YEAR NOTES
FOR RELEASE OCT. 21, 2004
- -------------------------
KANSAS CITY, Mo. - Block Financial Corp., a subsidiary of H&R Block Inc.
(NYSE: HRB), today announced that it has priced and will issue $400 million in
10-year senior unsecured notes to be unconditionally guaranteed by H&R Block.
The notes will bear an interest rate of 5 1/8 percent per year and will mature
in 2014.
The company expects to use the proceeds from the offering for general corporate
purposes, including the repayment of $250 million 6 3/4 percent senior notes
when they come due in November 2004.
A registration statement relating to these securities has been filed with the
Securities and Exchange Commission and has become effective. This press release
shall not constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any state in which such offer,
solicitation or sale would be unlawful under the securities laws of any such
state.
JPMorgan Securities, Inc. and Merrill Lynch & Co. serve as co-lead underwriters
and joint bookrunners for the transaction. Citigroup Global Markets Inc.,
Goldman Sachs & Co. and H&R Block Financial Advisors Inc. are serving as
co-managers.
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About H&R Block:
H&R Block Inc. (www.hrblock.com) is a diversified company with subsidiaries that
deliver tax services and financial advice, investment and mortgage services, and
business accounting and consulting services. H&R Block empowers clients to make
tax and financial decisions by providing a unique combination of tax services,
financial information and advice, and related products and services. The
company's mission is to help clients achieve their tax and financial objectives
by serving as their tax and financial partner.
As the world's largest tax services company, in 2004 H&R Block served more than
21 million clients in the U.S. and 12 countries. H&R Block Financial Advisors
Inc. offers investment services and securities products. With approximately
1,000 financial advisors serving clients at approximately 360 branch offices,
H&R Block Financial Advisors Inc. is a member NYSE, SIPC, a registered
broker-dealer and investment advisor. H&R Block Inc. is not a registered
broker-dealer and is not a registered investment advisor. H&R Block Mortgage
Corp. offers a full range of retail mortgage services. Option One Mortgage Corp.
provides mortgage services
and offers wholesale mortgages through large financial institutions and a
network of 24,000 independent mortgage brokers. RSM McGladrey Business Services
Inc. and its subsidiaries serve mid-sized businesses and their owners with tax,
accounting and business consulting services, as well as personal wealth
management services.