<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Merrill Lynch & Co., Inc.
-----------------------------
(Exact name of registrant as specified in its charter)
Delaware 13-2740599
-------------- -------------
(State of incorporation or organization) (I.R.S. employer
identification no.)
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281
----------------------------- ---------
(Address of principal executive offices) (zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- ------------------- ------------------------------
Depositary Shares, each New York Stock Exchange
representing a
one-four hundredth
interest in a share
of 9% Cumulative
Preferred Stock, Series A,
par value $1.00 per share
Securities to be registered pursuant to Section 12(g) of the Act:
9% Cumulative Preferred Stock,
Series A, par value $1.00 per share
-----------------------------------
(Title of class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
-------------------------------------------------------
The descriptions of the general terms and provisions of the 9% Cumulative
Preferred Stock, Series A, par value $1.00 per share (the "Preferred Stock") of
Merrill Lynch & Co., Inc. and the Depositary Shares, each representing a one-
four hundredth interest in a share of Preferred Stock (the "Depositary Shares"),
to be registered hereunder set forth in the Prospectus Supplement and the
Prospectus, each dated October 27, 1994, filed on October 31, 1994 pursuant to
Rule 424(b)(5) under the Securities Act of 1933, as amended, under the
registrant's Registration Statement on Form S-3 (Registration No. 33-55363), are
hereby incorporated by reference into this Registration Statement.
Item 2. Exhibits.
--------
99(a) Form of certificate representing the Preferred Stock
99(b) Form of Depositary Receipt (attached as Exhibit A to Exhibit
99(d) hereto)
99(c) Certificate of Designations of the registrant establishing
the rights, preferences, privileges, qualifications,
restrictions and limitations relating to the Preferred Stock
99(d) Deposit Agreement, dated as of November 3, 1994, among the
registrant, Citibank, N.A. as Depositary and the holders
from time to time of the Depositary Receipts
Other securities issued by Merrill Lynch & Co., Inc. are listed on the
New York Stock Exchange.
2
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
MERRILL LYNCH & CO., INC.
By: /s/ Gregory T. Russo
---------------------------
Gregory T. Russo
Secretary
Date: November 4, 1994
3
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
MERRILL LYNCH & CO., INC.
EXHIBITS
TO
FORM 8-A DATED NOVEMBER 4, 1994
Commission File No. 1-7182
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit No. Page No.
- ---------- -------
99(a) Form of certificate representing the Preferred Stock
99(b) Form of Depositary Receipt (attached as Exhibit A to
Exhibit 99(d) hereto)
99(c) Certificate of Designations of the registrant
establishing the rights, preferences, privileges,
qualifications, restrictions and limitations relating
to the Preferred Stock
99(d) Deposit Agreement, dated as of November 3, 1994, among
the registrant, Citibank, N.A. as Depositary and the
holders from time to time of the Depositary Receipts
<PAGE>
EXHIBIT 99(a)
[LOGO]
MERRILL LYNCH & CO., INC.
NUMBER SHARES
PA
9% Cumulative
Preferred Stock, CUSIP 590188
Series A SEE REVERSE FOR CERTAIN DEFINITIONS
This Certifies that
is the owner of
fully paid and non-assessable shares of 9% Cumulative Preferred Stock, Series A,
par value $1.00 per share, of Merrill Lynch & Co., Inc., a Delaware corporation
(the "Corporation"), transferable upon the books of the Corporation by the
holder hereof in person or by duly authorized attorney upon surrender of this
Certificate properly endorsed.
This Certificate is not valid unless countersigned and registered by the
Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
Dated:
Countersigned and Registered:
Citibank, N.A.
Transfer Agent
and Registrar
Authorized Officer
[SEAL]
Secretary Chairman of the Board
<PAGE>
MERRILL LYNCH & CO., INC.
MERRILL LYNCH & CO., INC. WILL FURNISH WITHOUT CHARGE TO EACH
STOCKHOLDER WHO SO REQUESTS A STATEMENT OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF
EACH CLASS OF STOCK OR SERIES THEREOF WHICH MERRILL LYNCH & CO., INC. IS
AUTHORIZED TO ISSUE AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE SECRETARY
OF MERRILL LYNCH & CO., INC. OR TO THE TRANSFER AGENT.
Explanation of Abbreviations
The following abbreviations when used in the form of ownership on the face of
this certificate shall be construed as though they were written out in full
according to applicable laws or regulations. Abbreviations in addition to those
appearing below may be used.
<TABLE>
<CAPTION>
Phrase Abbreviation Equivalent Phrase Abbreviation Equivalent
<S> <C> <C> <C>
JT TEN As joint tenants, with right of survivorship TEN BY ENT As tenants by the entireties
and not as tenants in common
TEN IN COM As tenants in common UNIF GIFT MIN ACT Uniform Gifts to Minors Act
</TABLE>
<TABLE>
<CAPTION>
Word Word Word
Abbreviation Equivalent Abbreviation Equivalent Abbreviation Equivalent
<S> <C> <C> <C> <C> <C>
ADM Administrator(s) EST Estate, Of Estate of PAR Paragraph
Administratrix EX Executor(s), Executrix PL Public Law
AGMT Agreement FBO For the benefit of TR (As) trustee(s), for, of
ART Article FDN Foundation U Under
CH Chapter GDN Guardian(s) UA Under agreement
CUST Custodian for GDNSHP Guardianship UW Under will of, Of will of,
DEC Declaration MIN Minor(s) Under last will & testament
</TABLE>
================================================================================
For value received,........................hereby sell, assign and transfer unto
[RIGHT ARROW]
................................................................................
Please print or typewrite name and address of assignee
................................................................................
................................................................................
[RIGHT ARROW]
................................................................................
Please insert Social Security or other identifying number of assignee
..........................................................................Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
.......................................................................Attorney,
to transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated......................
X............................................
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVERY PARTICULAR
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATSOEVER.
SIGNATURE GUARANTEED BY:
.................................................
NOTICE: The signature(s) should be guaranteed by
an eligible guarantor institution (banks,
stockbrokers, savings and loan associations, and
credit unions with membership in an approved
signature guarantee medallion program),
pursuant to Rule 17Ad-15 under the Securities
Exchange Act of 1934.
<PAGE>
Exhibit 99(c)
MERRILL LYNCH & CO., INC.
_________________________
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
_________________________
9% CUMULATIVE PREFERRED STOCK, SERIES A
(PAR VALUE $1.00 PER SHARE)
_________________________
MERRILL LYNCH & CO., INC., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), HEREBY CERTIFIES that the
following resolutions were duly adopted by the Board of Directors of the
Corporation and by the Executive Committee of the Board of Directors, pursuant
to authority conferred upon the Board of Directors by the provisions of the
Restated Certificate of Incorporation, as amended, of the Corporation, which
authorize the issuance of up to 25,000,000 shares of preferred stock, par value
$1.00 per share, and pursuant to authority conferred upon the Executive
Committee of the Board of Directors in accordance with Section 141(c) of the
General Corporation Law of the State of Delaware, by Article IV, Section 1 of
the By-laws of the Corporation and by the resolutions of the Board of Directors
set forth herein, at a meeting of the Board of Directors duly held on April 19,
1994, by unanimous written consent to corporate action of the Board of Directors
dated August 22, 1994, and by unanimous written consent of the Executive
Committee dated November 2, 1994:
1. The Board of Directors on April 19, 1994 adopted the following
resolutions authorizing the Executive Committee of the Board of Directors to act
on behalf of the Board of Directors in connection with the designation, issuance
and sale of up to 100,000 shares of preferred stock of the Corporation in one or
more series (the "Preferred Stock") and depositary shares representing interests
in the Preferred Stock (the "Depositary Shares"), either directly or in exchange
for other obligations of the Corporation undertaken in connection with the
issuance of preferred units that may be issued by a limited liability company
affiliated with the Corporation, upon such terms as may be deemed appropriate by
the Executive Committee, including, but not limited to, determinations with
respect to classes and series, dividend and liquidation rights and preferences
(provided that the aggregate liquidation preference of the Preferred Stock, does
not exceed $600,000,000), stated value, denomination, redemption and conversion
or exchange features and to take all such actions in connection therewith as
such Committee may deem necessary or appropriate:
<PAGE>
"RESOLVED, that the Board of Directors hereby authorizes and empowers the
Executive Committee to take all such actions as may be necessary or
appropriate for the issuance and sale of up to 100,000 shares of the
Corporation's Preferred Stock, par value $1.00 per share (the "Preferred
Shares"), in one or more series, either directly or in exchange for other
obligations of the Corporation undertaken in connection with the issuance
of preferred units that may be issued by a limited liability company
affiliated with the Corporation (the "LLC Units"); provided that the
--------
aggregate liquidation preference of such Preferred Shares shall not exceed
$600,000,000;"
"FURTHER RESOLVED, that the Executive Committee may approve the
issuance of the Preferred Shares upon such terms as may be deemed
appropriate by the Executive Committee, including, but not limited to,
determinations with respect to classes and series, dividend and liquidation
rights and preferences, stated value, denomination, redemption and
conversion or exchange features, and may provide for the issuance of
depositary shares representing interests in the Preferred Shares in order
to accommodate retail marketing; provided, however, that the Preferred
-------- -------
Shares shall not have voting rights except (i) in the event that dividends
are in arrears for six consecutive quarters, the number of the
Corporation's directors shall be increased by two and the holders of the
Preferred Shares shall be entitled, voting as a class, to elect two
directors of the Corporation to serve until such time as such arrearages
are paid in full or (ii) as otherwise required by law;"
2. The Board of Directors, by unanimous written consent to corporate
action dated August 22, 1994, adopted the following resolution amending the
second resolution set forth in paragraph 1 above:
"RESOLVED, that the resolution attached hereto as Exhibit A, which was
adopted at the meeting of the Board of Directors duly called and held on
April 19, 1994, is hereby amended by deleting the word "consecutive" in the
third line of the proviso and inserting the words "or the requirements of
any stock exchange on which the Preferred Shares may be listed" at the end
thereof prior to the semicolon."
3. The Executive Committee of the Board of Directors, by unanimous
written consent to corporate action dated November 2, 1994, adopted the
following resolution pursuant to the authority conferred upon the Executive
Committee by the resolution of the Board of Directors set forth in paragraph 1
above adopted pursuant to Article 4, Section 1 of the By-laws of the Corporation
and Section 141(c) of the General Corporation Law of the State of Delaware:
2
<PAGE>
"RESOLVED, that the issue of a series of preferred stock, par value $1.00
per share, of the Corporation is hereby authorized and the designation,
preferences and privileges, relative, participating, optional and other
special rights, and qualifications, limitations and restrictions thereof,
in addition to those set forth in the Restated Certificate of
Incorporation, as amended, of the Corporation, are hereby fixed as follows:
9% CUMULATIVE PREFERRED STOCK, SERIES A
(1) Number of Shares and Designation. 42,500 shares of the
preferred stock, par value $1.00 per share, of the Corporation are
hereby constituted as a series of preferred stock, par value $1.00 per
share, designated as 9% Cumulative Preferred Stock, Series A
(hereinafter called the "Preferred Stock, Series A").
(2) Dividends. (a) The holders of shares of the Preferred
Stock, Series A, shall be entitled to receive, as, if and when
declared by the Board of Directors of the Corporation (or a duly
authorized Committee thereof), out of assets of the Corporation
legally available for the payment of dividends, cash dividends at the
rate set forth below in this Section (2) applied to the amount of
$10,000 per share. Such dividends shall be cumulative from the date of
original issue of such shares, whether or not in any Dividend Period
or Dividend Periods (as defined in subsection (b) of this Section (2))
there are assets of the Corporation legally available for the payment
thereof, and shall be payable quarterly, as, if and when declared by
the Board of Directors of the Corporation (or a duly authorized
Committee thereof), on March 30, June 30, September 30, and December
30 of each year, commencing on December 30, 1994; provided that if any
such payment date is not a business day, dividends (if declared) on
the Preferred Stock, Series A, will be paid on the immediately
succeeding business day, without interest. Each such dividend shall
be payable to the holders of record of shares of the Preferred Stock,
Series A, as they appear on the stock register of the Corporation on
such record dates, which shall be the fifteenth day immediately
preceding the payment date thereof, or such other date not more than
30 nor less than 15 days preceding the payment dates thereof, as shall
be fixed by the Board of Directors of the Corporation (or a duly
authorized Committee thereof). Dividends on account of arrears for
any past Dividend Periods may be declared and paid at any time,
without reference to any regular dividend payment date, to holders of
record on such date, not exceeding 45 days preceding the payment date
thereof, as may be fixed by
3
<PAGE>
the Board of Directors of the Corporation (or a duly authorized
Committee thereof).
(b) (i) Dividend periods ("Dividend Periods") shall commence on
March 30, June 30, September 30, and December 30 of each year (other
than the initial Dividend Period which shall commence on the date of
original issue of the Preferred Stock, Series A) and shall end on and
include the calendar day next preceding the first day of the next
Dividend Period. The dividend rate on the shares of Preferred Stock,
Series A, for the period from the date of original issue thereof to
and including December 30, 1994, and for each Dividend Period
thereafter shall be 9% per annum.
(ii) The amount of dividends payable for each full Dividend
Period for the Preferred Stock, Series A, shall be computed by
dividing the dividend rate of 9% per annum by four, rounded to the
nearest one-hundredth of a percent, with five one-thousandths rounded
upwards, and applying the resulting rate to the amount of $10,000 per
share. The amount of dividends payable for the initial Dividend
Period on the Preferred Stock, Series A, or any other period shorter
than a full Dividend Period on the Preferred Stock, Series A, shall be
computed on the basis of 30-day months, a 360-day year and the actual
number of days elapsed in any period of less than one month. The
amount of dividends payable on the Preferred Stock, Series A, shall be
rounded to the nearest cent, with one-half cent being rounded upwards.
(c) So long as any shares of the Preferred Stock, Series A, are
outstanding, no full dividends shall be declared or paid or set apart
for payment on the preferred stock of the Corporation of any series
ranking, as to dividends, on a parity with or junior to the Preferred
Stock, Series A, for any period unless full cumulative dividends have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the
Preferred Stock, Series A, for all Dividend Periods terminating on or
prior to the date of payment of such full cumulative dividends. When
dividends are not paid in full, as aforesaid, upon the shares of the
Preferred Stock, Series A, and any other preferred stock ranking on a
parity as to dividends with the Preferred Stock, Series A, all
dividends declared upon shares of the Preferred Stock, Series A, and
any other preferred stock ranking on a parity as to dividends (whether
cumulative or noncumulative) shall be declared pro rata so that the
amount of dividends declared per share on the Preferred
4
<PAGE>
Stock, Series A, and such other preferred stock shall in all cases
bear to each other the same ratio that accrued dividends per share on
the shares of the Preferred Stock, Series A, and such other preferred
stock bear to each other. Holders of shares of the Preferred Stock,
Series A, shall not be entitled to any dividends, whether payable in
cash, property or stock, in excess of full cumulative dividends, as
herein provided, on the Preferred Stock, Series A. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on the Preferred Stock, Series A, which
may be in arrears.
(d) So long as any shares of the Preferred Stock, Series A, are
outstanding, no dividends (other than dividends or distributions paid
in shares of, or options, warrants or rights to subscribe for or
purchase shares of, the Common Stock or another stock of the
Corporation ranking junior to the Preferred Stock, Series A, as to
dividends and upon liquidation and other than as provided in
subsection (c) of this Section (2)) shall be declared or paid or set
aside for payment or other distribution declared or made upon the
Common Stock or upon any other stock of the Corporation ranking junior
to or on a parity with the Preferred Stock, Series A, as to dividends
or upon liquidation, nor shall any Common Stock nor any other stock of
the Corporation ranking junior to or on parity with the Preferred
Stock, Series A, as to dividends or upon liquidation be redeemed,
purchased or otherwise acquired, other than in connection with the
distribution or trading thereof, for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of
any shares of any such stock) by the Corporation (except by conversion
into or exchange for stock of the Corporation ranking junior to the
Preferred Stock, Series A, as to dividends and upon liquidation)
unless, in each case, full cumulative dividends on all outstanding
shares of the Preferred Stock, Series A, shall have been declared and
paid for all Dividend Periods terminating on or prior to the date of
payment of such full cumulative dividends.
(3) Liquidation Preference. (a) In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, before any payment or distribution of the
assets of the Corporation or proceeds thereof (whether capital or
surplus) shall be made to or set apart for the holders of any series
or class or classes of stock of the Corporation ranking junior to the
Preferred Stock, Series A, upon liquidation, dissolution, or winding
up, the holders of the shares of the Preferred Stock, Series A, shall
be
5
<PAGE>
entitled to receive $10,000 per share plus an amount equal to all
dividends (whether or not earned or declared) accrued and unpaid
thereon to the date of final distribution to such holders but such
holders shall not be entitled to any further payment. If, upon any
liquidation, dissolution, or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the
holders of the shares of the Preferred Stock, Series A, shall be
insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of preferred stock ranking,
as to liquidation, dissolution or winding up, on a parity with the
Preferred Stock, Series A, then such assets, or the proceeds thereof,
shall be distributed among the holders of shares of Preferred Stock,
Series A, and any such other preferred stock ratably in accordance
with the respective amounts which would be payable on such shares of
Preferred Stock, Series A, and any such other preferred stock if all
amounts payable thereon were paid in full. For the purposes of this
Section (3), a consolidation or merger of the Corporation with one or
more corporations shall not be deemed to be a liquidation, dissolution
or winding up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series
or class or classes of stock ranking on a parity with or prior to the
Preferred Stock, Series A, upon liquidation, dissolution or winding
up, upon any liquidation, dissolution or winding up of the
Corporation, after payment shall have been made in full to the holders
of Preferred Stock, Series A, as provided in this Section (3), but not
prior thereto, any other series of class or classes of stock ranking
junior to the Preferred Stock, Series A, upon liquidation shall,
subject to the respective terms and provisions (if any) applying
thereto, be entitled to receive any and all assets remaining to be
paid or distributed, and the holders of the Preferred Stock, Series A,
shall not be entitled to share therein.
(4) Redemption. (a) The Preferred Stock, Series A, may not be
redeemed prior to December 30, 2004. At any time or from time to time
on and after December 30, 2004, the Corporation, at its option, may
redeem shares of the Preferred Stock, Series A, as a whole or in part,
at a redemption price of $10,000 per share, together in each case with
accrued and unpaid dividends (whether or not earned or declared) to
the date fixed for redemption.
(b) In the event the Corporation shall redeem shares of Preferred
Stock, Series A, notice of such
6
<PAGE>
redemption shall be given by first class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the redemption date,
to each holder of record of the shares to be redeemed, at such
holder's address as the same appears on the stock register of the
Corporation. Each such notice shall state: (1) the redemption date;
(2) the number of shares of Preferred Stock, Series A, to be redeemed
and, if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder;
(3) the redemption price; (4) the place or places where certificates
for such shares are to be surrendered for payment of the redemption
price; and (5) that dividends on the shares to be redeemed shall cease
to accrue on such redemption date. Notice having been mailed as
aforesaid, from and after the redemption date (unless default shall be
made by the Corporation in providing money for the payment of the
redemption price) dividends on the shares of the Preferred Stock,
Series A, so called for redemption shall cease to accrue, and said
shares shall no longer be deemed to be outstanding, and all rights of
the holders thereof as stockholders of the Corporation (except the
right to receive from the Corporation the redemption price) shall
cease. 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 $50,000,000, funds necessary for such
redemption, in trust, with irrevocable instructions that such funds be
applied to the redemption of the shares of Preferred Stock, Series A,
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 years from such redemption date shall be
released or repaid to the Corporation, after which the holder or
holders of such shares of Preferred Stock, Series A, so called for
redemption shall look only to the Corporation for payment of the
redemption price.
Upon surrender, in accordance with said notice, of the
certificates for any such shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Corporation
shall so require and the notice shall so state), such shares shall be
redeemed by the Corporation at the applicable redemption price
aforesaid. If less than all the outstanding shares of Preferred
Stock, Series A, are to be redeemed, shares to be redeemed shall be
selected by the Board of Directors
7
<PAGE>
of the Corporation (or a duly authorized committee thereof) from
outstanding shares of Preferred Stock, Series A, not previously called
for redemption by lot or pro rata or by any other method determined by
the Board of Directors of the Corporation (or a duly authorized
committee thereof) to be equitable. If fewer than all the shares
represented by any certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares without charge to the
holder thereof.
(c) In no event shall the Corporation redeem less than all the
outstanding shares of Preferred Stock, Series A, pursuant to
subsection (a) of this Section (4) unless full cumulative dividends on
all outstanding shares of the Preferred Stock, Series A, shall have
been or all contemporaneously declared and paid or declared and a sum
sufficient for payment thereof set apart for such payment for all
Dividend Periods terminating on or prior to the date of payment of
such full cumulative dividends.
(5) Voting Rights. The Preferred Stock, Series A, shall have no
voting rights, except as hereinafter set forth or as otherwise from
time to time required by law. Whenever dividends payable on the
Preferred Stock, Series A, shall be in arrears for such number of
dividend periods, whether or not consecutive, which shall in the
aggregate contain a number of months equivalent to six calendar
quarters, the holders of outstanding shares of the Preferred Stock,
Series A, shall have the exclusive right, voting as a class with
holders of shares of all other series of preferred stock ranking on a
parity with the Preferred Stock, Series A, either as to dividends or
the distribution of assets upon liquidation, dissolution or winding up
and upon which like voting rights have been conferred and are
exercisable, to vote for the election of two additional directors at
the next annual meeting of stockholders and at each subsequent annual
meeting of stockholders. At elections for such directors, each holder
of the Preferred Stock, Series A, shall be entitled to one vote for
each share held (the holders of shares of any other series of
preferred stock ranking on such a parity being entitled to such number
of votes, if any, for each share of stock held as may be granted to
them). Upon the vesting of such right of such holders, the maximum
authorized number of members of the Board of Directors shall
automatically be increased by two and the two vacancies so created
shall be filled by vote of the holders of such outstanding shares of
Preferred Stock, Series A, (either alone or together with the holders
of shares of all other series of preferred stock ranking on such a
parity) as hereinafter set forth. The right of
8
<PAGE>
such holders of such shares of the Preferred Stock, Series A, voting
as a class with holders of shares of all other series of preferred
stock ranking on such a parity, to elect members of the Board of
Directors of the Corporation as aforesaid shall continue until all
past dividends accumulated on such shares of Preferred Stock, Series
A, shall have been paid in full. Upon payment in full of such
dividends, such voting rights shall terminate except as expressly
provided by law, subject to re-vesting in the event of each and every
subsequent default in the payment of dividends as aforesaid.
Upon termination of the right of the holders of the Preferred
Stock, Series A, to vote for directors as herein provided, the term of
office of all directors then in office elected by such holders will
terminate immediately. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, retirement, disqualification, removal from office or
otherwise, the remaining director elected by such holders voting as a
class may choose a successor who shall hold office for the unexpired
term in respect of which such vacancy occurred. Whenever the term of
office of the directors elected by such holders voting as a class
shall end and the special voting rights shall have expired, the number
of directors shall be such number as may be provided for in the By-
laws irrespective of any increase made pursuant to the provisions
hereof.
So long as any shares of the Preferred Stock, Series A, remain
outstanding, the affirmative vote or consent of the holders of at
least two-thirds of the shares of the Preferred Stock, Series A,
outstanding at the time (voting as a class with all other series of
preferred stock ranking on a parity with the Preferred Stock, Series
A, either as to dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting
rights have been conferred and are exercisable), given in person or by
proxy, either in writing or at any meeting called for the purpose,
shall be necessary to permit, effect or validate any one or more of
the following:
(i) the authorization, creation or issuance, or any increase in
the authorized or issued amount, of any class or series of stock
ranking prior to the Preferred Stock, Series A, with respect to
payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up; or
(ii) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the
9
<PAGE>
provisions of the Restated Certificate of Incorporation, as amended,
or of the resolutions set forth in a Certificate of Designations for
such Preferred Stock, Series A, which would materially and adversely
affect any right, preference, privilege or voting power of the
Preferred Stock, Series A, or of the holders thereof; provided,
however, that any increase in the amount of authorized preferred stock
or the creation and issuance, or an increase in the authorized or
issued amount, of other series of preferred stock, or any increase in
the amount of authorized shares of Preferred Stock, Series A, in each
case ranking on a parity with or junior to the Preferred Stock, Series
A, with respect to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding up, shall not be
deemed to materially and adversely affect such rights, preferences,
privileges or voting powers.
The foregoing voting provisions shall not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Preferred Stock,
Series A, shall have been redeemed or sufficient funds shall have been
deposited in trust to effect such a redemption which is scheduled to
be consummated within three months after the time that such rights
would otherwise be exercisable.
(6) Record Holders. The Corporation and the transfer agent for
the Preferred Stock, Series A, may deem and treat the record holder of
any share of such Preferred Stock as the true and lawful owner thereof
for all purposes, and neither the Corporation nor such transfer agent
shall be affected by any notice to the contrary.
(7) Ranking. Any class or classes of stock of the Corporation
shall be deemed to rank:
(i) on a parity with the Preferred Stock, Series A, as to
dividends or as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share thereof
be different from those of the Preferred Stock, Series A, if the
holders of such class of stock and the Preferred Stock, Series A,
shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as the case
may be, in proportion to their respective dividend rates or
liquidation prices, without preference or priority one over the other;
and
10
<PAGE>
(ii) junior to the Preferred Stock, Series A, as to dividends or
as to the distribution of assets upon liquidation, dissolution or
winding up, if such stock shall be Common Stock or if the holders of
Preferred Stock, Series A, shall be entitled to receipt of dividends
or of amounts distributable upon dissolution, liquidation or winding
up, as the case may be, in preference or priority to the holders of
shares of such stock.
(8) Exclusion of Other Rights. Unless otherwise required by law,
shares of Preferred Stock, Series A, shall not have any rights,
including preemptive rights, or preferences other than those
specifically set forth herein or as provided by applicable law.
(9) Notices. All notices or communications unless otherwise
specified in the By-laws of the Corporation or the Restated
Certificate of Incorporation, as amended, shall be sufficiently given
if in writing and delivered in person or by first class mail, postage
prepaid. Notice shall be deemed given on the earlier of the date
received or the date such notice is mailed."
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations to be signed by Theresa Lang, its Senior Vice President, and
attested by Gregory T. Russo, its Secretary, whereby said Secretary affirms,
under penalties of perjury, that this Certificate of Designations is the act and
deed of the Corporation and that the facts stated herein are true, this 2nd day
of November, 1994.
MERRILL LYNCH & CO., INC.
By___________________________
Senior Vice President
Attest:
- -----------------------
Secretary
11
<PAGE>
Exhibit 99(d)
================================================================================
MERRILL LYNCH & CO., INC.,
CITIBANK, N.A., As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
DEPOSIT AGREEMENT
_________________
Dated as of November 3, 1994
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
ARTICLE I
Definitions
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
<TABLE>
<CAPTION>
<S> <C>
SECTION 2.01. Form and Transfer of Receipts............. 2
SECTION 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof............ 4
SECTION 2.03. Registration of Transfer of Receipts...... 5
SECTION 2.04. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of
Stock..................................... 5
SECTION 2.05. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts.................................. 6
SECTION 2.06. Lost Receipts, etc........................ 7
SECTION 2.07. Cancellation and Destruction of
Surrendered Receipts...................... 7
SECTION 2.08. Redemption of Stock....................... 7
</TABLE>
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
<TABLE>
<CAPTION>
<S> <C>
SECTION 3.01. Filing Proofs, Certificates and Other
Information............................... 9
SECTION 3.02. Payment of Taxes or Other
Governmental Charges...................... 9
SECTION 3.03. Warranty as to Stock...................... 9
SECTION 3.04. Warranty as to Receipts................... 9
</TABLE>
ARTICLE IV
The Deposited Securities; Notices
<TABLE>
<CAPTION>
<S> <C>
SECTION 4.01. Cash Distributions....................... 10
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges................ 10
SECTION 4.03. Subscription Rights, Preferences or
Privileges............................... 11
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 4.04. Notice of Dividends, etc.; Fixing Record
Date for Holders of Receipts............. 12
SECTION 4.05. Voting Rights............................ 12
SECTION 4.06. Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, etc................... 13
SECTION 4.07. Delivery of Reports...................... 14
SECTION 4.08. Lists of Receipt Holders................. 14
</TABLE>
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
<TABLE>
<CAPTION>
<S> <C>
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar................................ 14
SECTION 5.02. Prevention of or Delay in Performance by
the Depositary, the Depositary's Agents,
the Registrar or the Company............. 15
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and
the Company.............................. 15
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary............................... 16
SECTION 5.05. Corporate Notices and Reports............ 17
SECTION 5.06. Indemnification by the Company........... 18
SECTION 5.07. Fees, Charges and Expenses............... 18
</TABLE>
ARTICLE VI
Amendment and Termination
<TABLE>
<S> <C>
SECTION 6.01. Amendment................................ 19
SECTION 6.02. Termination.............................. 19
</TABLE>
ARTICLE VII
Miscellaneous
<TABLE>
<S> <C>
SECTION 7.01. Counterparts............................. 20
SECTION 7.02. Exclusive Benefit of Parties............. 20
SECTION 7.03. Invalidity of Provisions................. 20
SECTION 7.04. Notices.................................. 21
SECTION 7.05. Depositary's Agents...................... 22
SECTION 7.06. Holders of Receipts Are Parties.......... 22
SECTION 7.07. Governing Law............................ 22
SECTION 7.08. Inspection of Deposit Agreement.......... 22
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 7.09. Headings................................. 22
FORM OF FACE OF RECEIPT...................................... A-1
FORM OF REVERSE OF RECEIPT................................... A-2
</TABLE>
iii
<PAGE>
DEPOSIT AGREEMENT dated as of November 3, 1994, among MERRILL LYNCH &
CO., INC., a Delaware corporation (the "Company"), Citibank, N.A., a national
banking association (the "Depositary"), and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of 9% Cumulative Preferred Stock,
Series A, of MERRILL LYNCH & CO., INC. with the Depositary for the purposes set
forth in this Deposit Agreement and for the issuance hereunder of Receipts
evidencing Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
Definitions
-----------
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the Certificate of Designations filed with
the Secretary of State of the State of Delaware establishing the Stock as a
series of preferred stock of the Company.
"Company" shall mean Merrill Lynch & Co., Inc., a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean Citibank, N.A., and any successor as
Depositary hereunder.
"Depositary Shares" shall mean Depositary shares, each representing
one-four hundredth of one share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
<PAGE>
"Depositary's Office" shall mean the principal office of the
Depositary, at which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the depositary receipts, substantially in
the form set forth as Exhibit A hereto, issued hereunder, whether in definitive
or temporary form and evidencing the number of Depositary Shares held of record
by the record holder of such Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed by the Company to register ownership and
transfers of Receipts as herein provided and if a Registrar shall be so
appointed, references herein to "the books" of or maintained by the Depository
shall be deemed, as applicable, to refer as well to the register maintained by
such Registrar for such purpose.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's 9% Cumulative Preferred
Stock, Series A, par value $1.00 per share, $10,000 liquidation preference per
share.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
------------------------------------
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
-----------------------------
shall be engraved or printed or lithographed on steel-engraved borders, with
appropriate insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, the Depositary, upon the written
order of the Company, delivered in compliance with Section 2.02, shall execute
and deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts
2
<PAGE>
at an office described in the penultimate paragraph of Section 2.02, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until
so exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Agreement, and with respect to the Stock, as definitive
Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
--------
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by a duly
authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by manual or facsimile signature of a duly authorized
officer of the Depositary and countersigned by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary and approved by the
Company or required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any securities exchange upon
which the Stock, the Depositary Shares or the Receipts may be listed or to
conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
-------- -------
registered on the books of the Depositary as provided in Section 2.03, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or
3
<PAGE>
to any notice provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
-------------------------------------------------------
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
- ---------------
the Company may from time to time deposit shares of the Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts evidencing in the
aggregate the number of Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
office or at such other place or places as the Depositary shall determine. The
Depositary shall not lend any Stock deposited hereunder.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock on the books of the Company in the name of the Depositary or its nominee,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver to or upon the order of the person or persons named in
the written order delivered to the Depositary referred to in the first paragraph
of this Section, a Receipt or Receipts evidencing in the aggregate the number of
Depositary Shares representing the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary's Office or
such other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
SECTION 2.03. Registration of Transfer of Receipts. Subject to the
------------------------------------
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Receipts upon any surrender thereof by
the holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon, the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and
4
<PAGE>
deliver such new Receipt or Receipts to or upon the order of the person entitled
thereto.
The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the opening of business fifteen
days next preceding any selection of Depositary Shares and Stock to be redeemed
and ending at the close of business on the day of the mailing of notice of
redemption, or (b) to transfer or exchange for another Receipt any Receipt
called or being called for redemption in whole or in part except as provided in
Section 2.08.
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of
----------------------------------------------------
Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at
- --------------------------------
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered, and shall deliver such new
Receipt or Receipts to or upon the order of the holder of the Receipt or
Receipts so surrendered.
Any holder of a Receipt or Receipts may withdraw the number of whole
shares of Stock and all money and other property, if any, represented thereby by
surrendering such Receipt or Receipts, at the Depositary's Office or at such
other offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to deposit
such Stock hereunder or to receive a Receipt evidencing Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of Stock
to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or subject to Section 2.03 upon his order,
a new Receipt evidencing such excess number of Depositary Shares. In no event
will fractional shares of Stock be delivered by the Depositary. Delivery of the
Stock and money and other property, if any, being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as the
Depositary may deem appropriate.
5
<PAGE>
If the Stock and the money and other property, if any, being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder shall
execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.05. Limitations on Execution and Delivery, Transfer,
------------------------------------------------
Surrender and Exchange of Receipts. As a condition precedent to the execution
- ----------------------------------
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.06. Lost Receipts, etc. In case any receipt shall be
------------------
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity
6
<PAGE>
thereof and of his or her ownership thereof and (ii) the holder thereof
furnishing of the Depositary with reasonable indemnification satisfactory to the
Depositary.
SECTION 2.07. Cancellation and Destruction of Surrendered Receipts.
----------------------------------------------------
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized and directed to destroy all Receipts so
cancelled.
SECTION 2.08. Redemption of Stock. Whenever the Company shall be
-------------------
permitted and shall elect to redeem shares of Stock in accordance with the
provisions of the Certificate, it shall (unless otherwise agreed to in writing
with the Depositary) give or cause to be given to the Depositary, not less than
25 days and not more than 75 days prior to the Redemption Date (as defined
below), notice of the date of such proposed redemption of Stock and of the
number of such shares held by the Depositary to be so redeemed and the
applicable redemption price, which notice shall be accompanied by a certificate
from the Company stating that such redemption of Stock is in accordance with the
provisions of the Certificate. On the date of such redemption, provided that
the Company shall then have paid or caused to be paid in full to the Depositary
the redemption price of the Stock to be redeemed, plus an amount equal to any
accrued and unpaid dividends thereon to the date fixed for redemption, in
accordance with the provisions of the Certificate, the Depositary shall redeem
the number of Depositary Shares representing such Stock. The Depositary shall
mail notice of the Company's redemption of Stock and the proposed simultaneous
redemption of the number of Depositary Shares representing the Stock to be
redeemed by first-class mail, postage prepaid, not less than 10 and not more
than 60 days prior to the date fixed for redemption of such Stock and Depositary
Shares (the "Redemption Date"), to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice of redemption of Depositary Shares to one or more such holders nor any
defect in any notice of redemption of Depositary Shares to one or more such
holders shall affect the sufficiency of the proceedings for redemption as to the
other holders. Each such notice shall state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all the Depositary
Shares held by any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; (iii) the redemption price; (iv)
the place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock represented by the Depositary Shares to be redeemed will
cease to accrue on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be
7
<PAGE>
redeemed, the Depositary Shares to be so redeemed shall be selected by the
Depositary by lot or pro rata (as nearly as may be), as determined by the
Depositary in its sole discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to provide the
funds necessary to redeem the Stock evidenced by the Depositary Shares called
for redemption) (i) dividends on the shares of Stock so called for Redemption
shall cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, (iii)
all rights of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate, and (iv) upon surrender in accordance
with such redemption notice of the Receipts evidencing any such Depositary
Shares called for redemption (properly endorsed or assigned for transfer, if the
Depositary or applicable law shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
one-four hundredth of the redemption price per share of Stock so redeemed plus
all money and other property, if any, represented by such Depositary Shares,
including all amounts paid by the Company in respect of dividends which on the
Redemption Date have accrued on the shares of Stock to be so redeemed and have
not therefore been paid.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior receipt and
not called for redemption.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
-----------------------------------
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
-------------------------------------------------
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer or redemption, of
any Receipt or the withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
8
<PAGE>
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other
-------------------------
Governmental Charges. Holders of Receipts shall be obligated to make payments
- --------------------
to the Depositary of certain charges and expenses, as provided in Section 5.07.
Registration of transfer of any Receipt or any withdrawal of Stock and all money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused until any such payment due is made, and any
dividends, interest payments or other distributions may be withheld or any part
of or all the Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents
--------------------
and warrants that the Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Stock and the issuance of Receipts.
SECTION 3.04. Warranty as to Receipts. The Company hereby represents
-----------------------
and warrants that the Receipts, when issued, will represent legal and valid
interests in the Stock. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
---------------------------------
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
------------------
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
-------- -------
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however,
9
<PAGE>
as can be distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
-----------------------------------------------------
Privileges. Whenever the Depositary shall receive any distribution other than
- ----------
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, in a commercially reasonable manner. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.01 in the case of a distribution received in
cash. The Company shall not make any distribution of such securities or
property to the Depositary and the Depositary shall not make any distribution of
such securities or property to the holders of Receipts unless the Company shall
have provided an opinion of counsel stating that such securities or property
have been registered under the Securities Act or do not need to be registered in
connection with such distributions.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
----------------------------------------------
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of
10
<PAGE>
the Company; provided, however, that (i) if at the time of issue or offer of any
-------- -------
such rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the record holders of Receipts entitled thereto
as provided by Section 4.01 in the case of a distribution received in cash.
The Company shall notify the Depositary whether registration under the
Securities Act of the securities to which any rights, preferences or privileges
relate is required in order for holders of Receipts to be offered or sold the
securities to which such rights, preferences or privileges relate, and the
Company agrees with the Depositary that it will file promptly a registration
statement pursuant to such Act with respect to such rights, preferences or
privileges and securities and use its best efforts and take all steps available
to it to cause such registration statement to become effective sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges. In no event
shall the Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any securities unless
and until such registration statement shall have become effective, or the
Company shall have provided to the Depositary an opinion of counsel to the
effect that the offering and sale of such securities to such holders are exempt
from registration under the provisions of the Securities Act.
The Company shall notify the Depositary whether any other action under
the laws of any jurisdiction or any governmental or administrative
authorization, consent or permit is required in order for such rights,
preferences or privileges to be made available to holders of Receipts, and the
Company agrees with the Depositary that the Company will use its reasonable best
efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
11
<PAGE>
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date for
-------------------------------------------------
Holders of Receipts. Whenever any cash dividend or other cash distribution
- -------------------
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
or otherwise in accordance with the terms of the Stock) for the determination of
the holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting or for any other
appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
-------------
at which the holders of Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the record holders of Receipts a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Receipts on the relevant record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of whole shares of Stock represented by the Depositary Shares
evidenced by all Receipts as to which any particular voting instructions are
received. The Company hereby agrees to take all reasonable action which may be
deemed necessary by the Depositary in order to enable the Depositary to vote
such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will not vote (but, at
its discretion, may appear at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Stock represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
------------------------------------------
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
- -----------------------------------------
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization,
12
<PAGE>
reorganization, merger or consolidation affecting the Company or to which it is
a party, the Depositary may in its discretion with the approval of, and shall
upon the instructions of, the Company, and (in either case) in such manner as
the Depositary may deem equitable, (i) make such adjustments as are certified by
the Company in the fraction of an interest represented by one Depositary Share
in one share of Stock as may be necessary fully to reflect the effects of such
change in par or stated value, split-up, combination or other reclassification
of Stock, or of such recapitalization, reorganization, merger or consolidation
and (ii) treat any securities which shall be received by the Depositary in
exchange for or upon conversion of or in respect of the Stock as new deposited
securities so received in exchange for or upon conversion or in respect of such
Stock. In any such case the Depositary may in its discretion, with the approval
of the Company, execute and deliver additional Receipts or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have the right from and after
the effective date of any such change in par or stated value, split-up,
combination or other reclassification of the Stock or any such recapitalization,
reorganization, merger or consolidation to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which the Stock
represented by such Receipts might have been converted or for which such Stock
might have been exchanged or surrendered immediately prior to the effective date
of such transaction.
SECTION 4.07. Delivery of Reports. The Depositary shall furnish to
-------------------
holders of Receipts any reports and communications received from the Company
which are received by the Depositary and which the Company is required to
furnish to the holders of the Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
------------------------
time to time by the Company, the Depositary shall furnish to it a list, as of
the most recent practicable date, of the names, addresses and holdings of
Depositary Shares of all record holders of Receipts.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
-------------------------------------
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
------------------------------------------------------
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
- -------------------------
Depositary shall maintain at the
13
<PAGE>
Depositary's Office, facilities for the execution and delivery, registration and
registration of transfer, surrender and exchange of Receipts, and at the offices
of the Depositary's Agents, if any, facilities for the delivery, registration of
transfer, surrender and exchange of Receipts, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided that any such holder requesting to exercise such right shall certify to
- --------
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on one or more
national stock exchanges, the Depositary will appoint a Registrar (acceptable to
the Company) for registration of such Receipts or Depositary Shares in
accordance with any requirements of such exchange. Such Registrar (which may be
the Depositary if so permitted by the requirements of any such exchange) may be
removed and a substitute registrar appointed by the Depositary upon the request
or with the approval of the Company. If the Receipts, such Depositary Shares or
such Stock are listed on one or more other stock exchanges, the Depositary will,
at the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
--------------------------------------------
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
- -----------------------------------------------------------------
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any provision,
present or future, of the Company's Certificate of Incorporation, as amended
(including the Certificate) or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, the
Depositary's Agent, the Registrar or the Company
14
<PAGE>
shall be prevented or forbidden from, or subjected to any penalty on account of,
doing or performing any act or thing which the terms of this Deposit Agreement
provide shall be done or performed; nor shall the Depositary, any Depositary's
Agent, any Registrar or the Company incur liability to any holder of a Receipt
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement shall
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement
except, in the case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the negligence or willful misconduct of the
party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
-------------------------------------------------------
the Registrar and the Company. Neither the Depositary nor any Depositary's
- -----------------------------
Agent nor any Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Receipts
other than for its negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under, any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Stock for deposit, any holder of a Receipt or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Depositary or any Registrar.
15
<PAGE>
The Depositary, the Depositary's Agents, and any Registrar may own and
deal in any class of securities of the Company and its affiliates and in
Receipts. The Depositary may also act as transfer agent or registrar of any of
the securities of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
------------------------------------------------------
of Successor Depositary. The Depositary may at any time resign as Depositary
- -----------------------
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary hereunder and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Stock and any moneys or property held
hereunder to such successor, and shall deliver to such successor a list of the
record holders of all outstanding Receipts and such records, books and other
information in its possession relating thereto. Any successor Depositary shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required
16
<PAGE>
hereunder. Such successor Depositary may authenticate the Receipts in the name
of the predecessor Depositary or in the name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that
-----------------------------
it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Company's Restated Certificate of
Incorporation (including the Certificate), to be furnished to the record holders
of Receipts. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit to
the record holders of Receipts at the Company's expense such other documents as
may be requested by the Company.
SECTION 5.06. Indemnification by the Company. The Company shall
------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) which may arise out of acts
performed or omitted in connection with this Agreement and the Receipts by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence, willful
misconduct or bad faith on the respective parts of any such person or persons.
The obligations of the Company set forth in this Section 5.06 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Fees, Charges and Expenses. The Company agrees
--------------------------
promptly to pay the Depositary the compensation to be agreed upon with the
Company for all services rendered by the Depositary hereunder and to reimburse
the Depositary for its reasonable out-of-pocket expenses (including reasonable
counsel fees and expenses) incurred by the Depositary without negligence,
willful misconduct, bad faith or breach of this Agreement on its part in
connection with the services rendered by it hereunder. The Company shall pay
all charges of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Depositary Shares, all withdrawals of
shares of the Stock by owners of Depositary Shares, and any redemption or
exchange of the Stock at the option of the Company. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. All other transfer and other taxes
and governmental charges shall be at the expense of holders of Depositary Shares
evidenced by
17
<PAGE>
Receipts. If, at the request of a holder of Receipts, the Depositary incurs
charges or expenses for which the Company is not otherwise liable hereunder,
such holder will be liable for such charges and expenses. All other charges and
expenses of the Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, reasonable fees and expenses of counsel)
incident to the performance of their respective obligations hereunder will be
paid upon consultation and agreement between the Depositary and the Company as
to the amount and nature of such charges and expenses. The Depositary shall
present its statement for charges and expenses to the Company at such intervals
as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. Amendment. The form of the Receipts and any provisions
---------
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
-------- -------
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least a majority (or, in the case of amendments relating to or affecting rights
to receive dividends or distributions or voting or redemption rights, two-thirds
of the holders) of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such receipt, to consent and agree to such
amendment and to be bound by the Depositary Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.05 and 2.06 and Article III, of any owner of Depositary Shares to
surrender any Receipt evidencing such Depositary Shares to the Depositary with
instructions to deliver to the holder the Stock and all money and other
property, if any, represented thereby, except in order to comply with mandatory
provisions of applicable law or the rules and regulations of any governmental
body, agency or commission, or applicable stock exchange.
SECTION 6.02. Termination. This Agreement may be terminated by the
-----------
Company at any time upon not less than 60 days prior written notice to the
Depositary, in which case, at least 30 days prior to the date fixed in such
notice for such termination, the Depositary will mail notice of such termination
to the record holders of all Receipts then outstanding.
If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Depositary
18
<PAGE>
thereafter shall discontinue the transfer of Receipts, shall suspend the
distribution of dividends to the holders thereof and shall not give any further
notices (other than notice of such termination) or perform any further acts
under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Stock, shall sell
rights, preferences or privileges as provided in this Deposit Agreement and
shall continue to deliver the Stock and any money and other property, if any,
represented by Receipts upon surrender thereof by the holders thereof. At any
time after the expiration of two years from the date of termination, the
Depositary may sell Stock then held hereunder at public or private sale, at such
places and upon such terms as it deems proper and may thereafter hold the net
proceeds of any such sale, together with any money and other property held by it
hereunder, without liability for interest, for the benefit, pro rata in
accordance with their holdings, of the holders of Receipts that have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement except to account
for such net proceeds and money and other property.
This Agreement may be terminated by the Company or the Depositary only
if (i) all outstanding Depositary Shares have been redeemed pursuant to Section
2.08, (ii) there shall have been made a final distribution in respect of the
Stock in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the holders of
Depositary Shares pursuant to Section 4.01 or 4.02, as applicable or (iii) upon
the consent of holders of Depositary Receipts representing not less than two-
thirds of the Depositary Shares outstanding.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
Miscellaneous
-------------
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
------------
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
19
<PAGE>
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement
----------------------------
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of
------------------------
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
-------
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to the Company at
Merrill Lynch & Co., Inc.
100 Church Street, 12th Floor
New York, New York 10007
Attention: Secretary
Facsimile No.: (212) 602-8436
with a copy to:
Merrill Lynch & Co., Inc.
World Financial Center
South Tower, 7th Floor
New York, New York 10080-6107
Attention: Treasurer
Facsimile No.: (212) 236-6004
or at any other addresses of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office at
Citibank, N.A.
120 Wall Street, 13th Floor
New York, New York 10043
Attention: Corporate Trust Department
Facsimile No.: (212) 480-1614
or at any other address of which the Depositary shall have notified the Company
in writing.
20
<PAGE>
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to such record holder at
the address of such record holder as it appears on the books of the Depositary,
or if such holder shall have timely filed with the Depositary a written request
that notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram
or facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
-------------------
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will promptly notify the Company of any such action.
The Company hereby also appoints the Depositary as Registrar and
Transfer Agent in respect of the Receipts and the Depositary hereby accepts such
appointments.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
-------------------------------
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts
-------------
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by, and construed in accordance with, the laws of the State of New
York without giving effect to applicable conflicts of law principles.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
-------------------------------
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Receipt.
21
<PAGE>
SECTION 7.09. Headings. The headings of articles and sections in
--------
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
22
<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
MERRILL LYNCH & CO., INC.
Attested by
____________________________ by__________________________
Secretary Treasurer
[SEAL]
Attested by CITIBANK, N.A.
____________________________ by__________________________
[SEAL]
23
<PAGE>
Exhibit A
[FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
DR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH
REPRESENTING ONE-FOUR HUNDREDTH OF ONE SHARE OF 9% CUMULATIVE PREFERRED STOCK,
SERIES A,
OF
MERRILL LYNCH & CO., INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP _________
SEE REVERSE FOR CERTAIN DEFINITIONS
CITIBANK, N.A., as Depositary (the "Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing one-four hundredth of
one share of 9% Cumulative Preferred Stock, Series A, par value $1.00 per share
(the "Stock"), of Merrill Lynch & Co., Inc., a Delaware corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of November 3, 1994
(the "Deposit Agreement"), among the Corporation, the Depositary and the holders
from time to time of the Depositary Receipts. By accepting this Depositary
Receipt, the holder hereof becomes a party to and agrees to be bound by all the
terms and conditions of the Deposit Agreement. This Depositary Receipt shall
not be valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer or, if executed in facsimile by
the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by the manual signature of a duly authorized officer thereof.
Dated:
CITIBANK, N.A., Depositary
By________________________________
Authorized Officer
<PAGE>
[FORM OF REVERSE OF RECEIPT]
MERRILL LYNCH & CO., INC.
MERRILL LYNCH & CO., INC. WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR
SUMMARY OF THE CERTIFICATE OF DESIGNATIONS OF THE 9% CUMULATIVE PREFERRED STOCK,
SERIES A, OF MERRILL LYNCH & CO., INC. ANY SUCH REQUEST IS TO BE ADDRESSED TO
THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
_____________________
- --------------------------------------------------------------------------------
The Corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof of the
Corporation, and the qualifications, limitations or restrictions of such
preferences and/or rights. Such request may be made to the Corporation or to
the Transfer Agent or Registrar.
EXPLANATION OF ABBREVIATIONS
The following abbreviations when used in the form of ownership on the face of
this certificate shall be construed as though they were written out in full
according to applicable laws or regulations. Abbreviations in addition to those
appearing below may be used.
<TABLE>
<CAPTION>
Phrase Abbreviation Equivalent Phrase Abbreviation Equivalent
<S> <C> <C> <C>
JT TEN As joint tenants, with right of survivorship TEN BY ENT As tenants by the entireties
and not as tenants in common
TEN IN COM As tenants in common UNIF GIFT MIN ACT Uniform Gifts to Minors Act
</TABLE>
<TABLE>
<CAPTION>
Word Word Word
Abbreviation Equivalent Abbreviation Equivalent Abbreviation Equivalent
<S> <C> <C> <C> <C> <C>
ADM Administrator(s) EST Estate, of Estate of PAR Paragraph
Administratrix EX Executor(s), Executrix PL Public Law
AGMT Agreement FBO For the benefit of TR (As) trustee(s), for, of
ART Article FDN Foundation U Under
CH Chapter GDN Guardian(s) UA Under agreement
CUST Custodian for GDNSHP Guardianship UW Under will of, Of will of,
DEC Declaration MIN Minor(s) Under last will & testament
====================================================================================================================================
</TABLE>
For value received, ____________________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________Depositary Shares represented by
the within Receipt, and do(es) hereby irrevocably constitute and appoint
______________________ Attorney to transfer the said Depositary Shares on the
books of the within named Depositary with full power of substitution in the
premises.
Dated________________
_______________________________________________________
NOTICE: The signature to the assignment must correspond
with the name as written upon the face of this Receipt
in every particular, without alteration or enlargement
or any change whatsoever.
SIGNATURE GUARANTEED
_________________________________
NOTICE: The signature(s) should
be guaranteed by an eligible
guarantor institution (banks,
stockbrokers, savings and loan
associations, and credit unions
with membership in an approved
signature guarantee medallion
program), pursuant to Rule 17Ad-15
under the Securities Exchange
Act of 1934.
A-2
