EX-4.P






Exhibit 4(p)




 





MERRILL LYNCH & CO., INC.,




THE BANK OF NEW YORK, As Depositary




AND




THE HOLDERS FROM TIME TO TIME OF

THE DEPOSITARY RECEIPTS DESCRIBED HEREIN




 





DEPOSIT AGREEMENT




 





Dated as of April 29, 2008




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I
	 	 	 	 
	Definitions

 	 	 	 	 
	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
	 	 	3	 
	SECTION 2.02.

	 	Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof
	 	 	4	 
	SECTION 2.03.

	 	Registration of Transfer of Receipts
	 	 	4	 
	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
	 	 	5	 
	SECTION 2.06.

	 	Lost Receipts, etc.
	 	 	6	 
	SECTION 2.07.

	 	Cancellation and Destruction of Surrendered Receipts
	 	 	6	 
	SECTION 2.08.

	 	Redemption of Stock
	 	 	6	 
	SECTION 2.09.

	 	Receipts Issuable in Global Registered Form
	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 	 	 
	Certain Obligations of
	 	 	 	 
	Holders of Receipts and the Company
	 	 	 	 
	 
	 	 	 	 	 	 
	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	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 	 	 
	The Deposited Securities; Notices
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Cash Distributions
	 	 	9	 
	SECTION 4.02.

	 	Distributions Other than Cash, Rights, Preferences or Privileges
	 	 	10	 






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	 	 	 	 	Page
	SECTION 4.03.

	 	Subscription Rights, Preferences or Privileges
	 	 	10	 
	SECTION 4.04.

	 	Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts
	 	 	11	 
	SECTION 4.05.

	 	Voting Rights
	 	 	12	 
	SECTION 4.06.

	 	Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc
	 	 	12	 
	SECTION 4.07.

	 	Delivery of Reports
	 	 	13	 
	SECTION 4.08.

	 	Lists of Receipt Holders
	 	 	13	 
	 
	 	 	 	 	 	 
	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
	 	 	13	 
	SECTION 5.02.

	 	Prevention of or Delay in Performance by the Depositary, the Depositary’s
Agents, the Registrar or the Company
	 	 	13	 
	SECTION 5.03.

	 	Obligations of the Depositary, the Depositary’s Agents, the Registrar and
the Company
	 	 	14	 
	SECTION 5.04.

	 	Resignation and Removal of the Depositary; Appointment of Successor
Depositary
	 	 	15	 
	SECTION 5.05.

	 	Corporate Notices and Reports
	 	 	16	 
	SECTION 5.06.

	 	Indemnification by the Company
	 	 	16	 
	SECTION 5.07.

	 	Fees, Charges and Expenses
	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 	 	 
	Amendment and Termination
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	Amendment
	 	 	17	 
	SECTION 6.02.

	 	Termination
	 	 	17	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 7.01.

	 	Counterparts
	 	 	18	 
	SECTION 7.02.

	 	Exclusive Benefit of Parties
	 	 	18	 
	SECTION 7.03.

	 	Invalidity of Provisions
	 	 	18	 
	SECTION 7.04.

	 	Notices
	 	 	18	 
	SECTION 7.05.

	 	Depositary’s Agents
	 	 	19	 
	SECTION 7.06.

	 	Appointment of Registrar and Transfer Agent in
respect of the Depositary Shares and Receipts
	 	 	19	 
	SECTION 7.07.

	 	Appointment of Registrar and Transfer Agent in respect of the Stock
	 	 	19	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 7.08.

	 	Holders of Receipts Are Parties
	 	 	20	 
	SECTION 7.09.

	 	Governing Law
	 	 	20	 
	SECTION 7.10.

	 	Inspection of Deposit Agreement
	 	 	20	 
	SECTION 7.11.

	 	Headings
	 	 	20	 
	 
	 	 	 	 	 	 
	EXHIBIT A

	 	FORM OF RECEIPT
	 	 	A-1	 






iii









 






          DEPOSIT AGREEMENT dated as of April 29, 2008, among Merrill Lynch & Co., Inc., a Delaware
corporation, The Bank of New York, a New York banking corporation, 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 8.625% Non-Cumulative Preferred Stock, Series 8, of the Company 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 The Bank of New York, and any successor as Depositary hereunder.



          “Depositary Shares” shall mean depositary shares, each representing one-twelve 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.



          “Depositary’s Office” shall mean the principal office of the Depositary, at which at any
particular time its depositary receipt business shall be administered.



          “Exchange Event” means with respect to any Global Registered Receipt



 









 





     (1) (A) the Global Receipt Depository which is the holder of such Global Registered Receipt
or Receipts notifies the Company that it is no longer willing or able to properly discharge its
responsibilities under any Letter of Representations or that it is no longer eligible or in good
standing under the Securities Exchange Act of 1934, as amended, and (B) the Company has not
appointed a qualified successor Global Receipt Depository within ninety (90) calendar days after
the Company received such notice, or



     (2) the Company in its sole discretion notifies the Depositary in writing that the Receipts
or portion thereof issued or issuable in the form of one or more Global Registered Receipts shall
no longer be represented by such Global Receipt or Receipts.



          “Global Receipt Depository” means, with respect to any Receipt issued hereunder The Depository
Trust Company (“DTC”) or such other entity designated as Global Receipt Depository by the Company
in or pursuant to this Deposit Agreement, which Person must be, to the extent required by any
applicable law or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended.



          “Global Registered Receipts” means a global registered Receipt registered in the name of a
nominee of DTC.



          “Letter of Representations” means any applicable agreement among the Company, the Depositary
and a Global Receipt Depository with respect to such Global Receipt Depository’s rights and
obligations with respect to any Global Registered Receipts, as the same may be amended,
supplemented, restated or otherwise modified from time to time and any successor agreement thereto.



          “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 8.625% Non-Cumulative Preferred Stock, Series 8,
par value $1.00 per share, $30,000 liquidation preference per share.



2









 





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 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
manually 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 all 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.



3









 





          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 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 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



4









 







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 (or any cash payment in lieu thereof) 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.



          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



5









 







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
and/or applicable law.



          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 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 30 days and not more than 60 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 15 and not more than 60 days prior to the date fixed for redemption of such
Stock and Depositary Shares (the



6









 







“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 be prepared by the Company and 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 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-twelve 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.



               SECTION 2.09. Receipts Issuable in Global Registered Form. If the Company shall
determine in a writing delivered to the Depositary that the Receipts are to be issued in whole or
in part in the form of one or more Global Registered Receipts, then the Depositary shall, in
accordance with the other provisions of this Deposit Agreement, execute and deliver one or more
Global Registered Receipts evidencing the Receipts of such Series, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of, the Receipts to be
represented by such Global Registered Receipt or Receipts, (ii) shall be registered in the name of
the Global Receipt Depository therefor or its nominee.



7









 





          Notwithstanding any other provision of this Deposit Agreement to the contrary, unless
otherwise provided in the Global Registered Receipt, a Global Registered Receipt may only be
transferred in whole and only by the applicable Global Receipt Depository for such Global
Registered Receipt to a nominee of such Global Receipt Depository, or by a nominee of such Global
Receipt Depository to such Global Receipt Depository or another nominee of such Global Receipt
Depository, or by such Global Receipt Depository or any such nominee to a successor Global Receipt
Depository for such Global Registered Receipt selected or approved by the Company or to a nominee
of such successor Global Receipt Depository. Except as provided below, owners solely of beneficial
interests in a Global Registered Receipt shall not be entitled to receive physical delivery of the
Receipts represented by such Global Registered Receipt. Neither any such beneficial owner nor any
direct or indirect participant of a Global Receipt Depository shall have any rights under this
Deposit Agreement with respect to any Global Registered Receipt held on their behalf by a Global
Receipt Depository and such Global Receipt Depository may be treated by the Company, the Depositary
and any director, officer, employee or agent of the Company or the Depositary as the holder of such
Global Registered Receipt for all purposes whatsoever. Unless and until definitive Receipts are
delivered to the owners of the beneficial interests in a Global Registered Receipt, (1) the
applicable Global Receipt Depository will make book-entry transfers among its participants and
receive and transmit all payments and distributions in respect of the Global Registered Receipts to
such participants, in each case, in accordance with its applicable procedures and arrangements, and
(2) whenever any notice, payment or other communication to the holders of Global Registered
Receipts is required under this Deposit Agreement, the Company and the Depositary shall give all
such notices, payments and communications specified herein to be given to such holders to the
applicable Global Receipt Depository.



          If an Exchange Event has occurred with respect to any Global Registered Receipt, then, in any
such event, the Depositary shall, upon receipt of a written order from the Company for the
execution and delivery of individual definitive registered Receipts in exchange for such Global
Registered Receipt, shall execute and deliver, individual definitive registered Receipts, in
authorized denominations and of like tenor and terms in an aggregate principal amount equal to the
principal amount of the Global Registered Receipt in exchange for such Global Registered Receipt.



          Definitive registered Receipts issued in exchange for a Global Registered Receipt pursuant to
this Section shall be registered in such names and in such authorized denominations as the Global
Receipt Depository for such Global Registered Receipt, pursuant to instructions from its
participants, shall instruct the Depositary in writing. The Depositary shall deliver such Receipts
to the persons in whose names such Receipts are so registered.



          Notwithstanding anything to the contrary in this Deposit Agreement, should the Company
determine that the Receipts should be issued as a Global Registered Receipt, the parties hereto
shall comply with the terms of each Letter of Representations.



8









 





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 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



9









 







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, 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. Each holder of a Receipt shall provide the Depositary
with its certified tax identification number on a properly completed Form W-8 or W-9, as may be
applicable. Each holder of a Receipt acknowledges that, in the event of non-compliance with the
preceding sentence, the Internal Revenue Code of 1986, as amended, may require withholding by the
Depositary of a portion of any of the distributions to be made hereunder.



               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 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



10









 







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.



               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.



11









 





               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 prepared by the Company 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 provided that the Depositary receives such
instructions sufficiently in advance of such voting to enable it to so vote or cause such Stock to
be voted. 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, 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.



12









 





               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
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



13









 







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 Restated Certificate of Incorporation (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 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 as otherwise set forth in this Deposit Agreement.



               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. Notwithstanding
anything in this Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor
any Registrar nor the Company shall be liable in any event for special, punitive, incidental,
indirect or consequential losses or damages of any kind whatsoever (including but not limited to
lost profits).



          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 or omitting to act 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 not taken in bad 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.



14









 





          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.



          The Depositary shall not be under any liability for interest on any monies at any time
received by it pursuant to any of the provisions of this Agreement or of the Receipts, the
Depositary Shares or the Stock nor shall it be obligated to segregate such monies from other monies
held by it, except as required by law. The Depositary shall not be responsible for advancing funds
on behalf of the Company and shall have no duty or obligation to make any payments if it has not
timely received sufficient funds to make timely payments.



          In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any
notice, instruction, direction, request or other communication, paper or document received by the
Depositary hereunder, or in the administration of any of the provisions of this Agreement, the
Depositary shall deem it necessary or desirable that a matter be proved or established prior to
taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole
discretion upon written notice to the Company, refrain from taking any action and shall be fully
protected and shall not be liable in any way to the Company, any holders of Receipts or any other
person or entity for refraining from taking such action, unless the Depositary receives written
instructions or a certificate signed by the Company which eliminates such ambiguity or uncertainty
to the satisfaction of the Depositary or which proves or establishes the applicable matter to the
satisfaction of the Depositary.



               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



15









 







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 entity 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 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. Notwithstanding Section 5.03 to the
contrary, the Company shall indemnify the Depositary, any Depositary’s Agent and any Registrar
(including each of their officers, directors, agents and employees) against, and hold each of them
harmless from, any loss, damage, cost, penalty, liability or expense (including the reasonable
costs and expenses of defending itself) which may arise out of acts performed, suffered or omitted
to be taken in connection with this Agreement and the Receipts by the Depositary, any Registrar or
any of their respective agents (including any Depositary’s Agent) and any transactions or documents
contemplated hereby, 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 or bad faith 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



16









 







expense of holders of Depositary Shares evidenced by Receipts. If, at the request of a holder
of Receipts, the Depositary incurs charges or expenses for which it or the Company is not otherwise
liable hereunder, such holder will be liable for such charges and expenses; provided,
however, that the Depositary may, at its sole option, require a holder of a Receipt to
prepay the Depositary any charge or expense the Depositary has been asked to incur at the request
of such holder of Receipts. 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 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. If this Agreement is terminated by the Company,
the Company shall provide 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 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



17









 







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.



          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.



               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.

4 World Financial Center, 22 Floor

New York, New York 10007

Attention: Treasurer

Facsimile No.: (212) 449-7481



with a copy to:



Merrill Lynch & Co., Inc.

222 Broadway, 17th Floor




18









 







New York, New York 10038

Attention: Corporate Secretary

Facsimile No.: (212) 670-4703



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
facsimile transmission confirmed by letter, addressed to the Depositary at the Depositary’s Office
at:


The Bank of New York

101 Barclay Street— Floor 8W

New York, New York 10286

Attention: Corporate Trust Administration

Facsimile No.: (212) 815-5704



or at any other address of which the Depositary shall have notified the Company in writing.




          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 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 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 facsimile transmission) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, without liability act upon any facsimile transmission
received by it from the other or from any holder of a Receipt, notwithstanding that such 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.



               SECTION 7.06. Appointment of Registrar and Transfer Agent in respect of the Depositary
Shares and Receipts. The Company hereby appoints the Depositary as Registrar, transfer agent,
dividend disbursing agent and redemption agent in respect of the Depositary Shares and the related
Receipts and the Depositary hereby accepts such appointments.



               SECTION 7.07. Appointment of Registrar and Transfer Agent in respect of the Stock.
The Company hereby appoints The Bank of New York as transfer agent, registrar, dividend disbursing
agent and redemption agent in respect of the Stock, and The Bank of New York hereby accepts such
appointments. With respect to the appointments of The Bank of New



19









 







York as transfer agent, registrar, dividend disbursing agent and redemption agent in respect
of the Stock, The Bank of New York shall be entitled to the same rights, indemnities, immunities
and benefits as Depositary hereunder as if explicitly named in each such provision. Notwithstanding
anything to the contrary contained herein, The Bank of New York in no capacity hereunder shall have
any duties or obligations to make or verify any calculations hereunder.



               SECTION 7.08. 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 7.09. 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 7.10. 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.



               SECTION 7.11. 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.



20









 





     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.	 	 
	 
	 	 	 	 
	By       

	 	         /s/ John Thurlow	 	 
	 

	 	 	 	 
	 

	 	               John Thurlow	 	 
	 

	 	               Assistant Treasurer	 	 
	 
	 	 	 	 
	THE BANK OF NEW YORK, AS DEPOSITARY	 	 
	 
	 	 	 	 
	By       

	 	         /s/ Rafael Miranda 	 	 
	 

	 	 	 	 





21









 






EXHIBIT A




[FORM OF FACE OF RECEIPT]




			
	 	 	 
	NUMBER
	 	DEPOSITARY SHARES






DR




DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, 

EACH REPRESENTING

ONE-TWELVE HUNDREDTH 

OF ONE SHARE OF 8.625% NON-CUMULATIVE

PREFERRED STOCK, SERIES 8,




OF




MERRILL LYNCH & CO., INC. INCORPORATED

UNDER THE LAWS OF THE STATE OF DELAWARE




CUSIP 59023V373




SEE REVERSE FOR CERTAIN DEFINITIONS




	 	 	 
	THE BANK OF NEW YORK, as Depositary (the “Depositary”), hereby certifies that
is the registered owner of

	 	DEPOSITARY SHARES





(“Depositary Shares”), each Depositary Share representing one-twelve hundredth of one share of
8.625% Non-Cumulative Preferred Stock, Series 8, 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
April 29, 2008 (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:




THE BANK OF NEW YORK, Depositary




By        
                                                             
        

Authorized Officer




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[FORM OF REVERSE OF RECEIPT]

MERRILL LYNCH & CO., INC.




     MERRILL LYNCH & CO., INC. WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT HOLDER WHO SO REQUESTS A
COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE CERTIFICATE OF DESIGNATIONS OF THE
8.625% NON-CUMULATIVE PREFERRED STOCK, SERIES 8, 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.




	 	 	 	 	 	 	 
	Phrase Abbreviation	 	Equivalent	 	Phrase Abbreviation	 	Equivalent
	JT TEN

	 	As joint tenants,
with right of
survivorship and
not as tenants in
common
	 	TEN BY ENT
	 	As tenants by the entireties
	 
	 	 	 	 	 	 
	TEN IN COM

	 	As tenants in common
	 	UNIF GIFT MIN ACT
	 	Uniform Gifts to Minors Act






	 	 	 	 	 	 	 	 	 	 	 
	Word	 	 	 	Word	 	 	 	Word	 	 
	Abbreviation	 	Equivalent	 	Abbreviation	 	Equivalent	 	Abbreviation	 	Equivalent
	ADM

	 	Administrator(s)

Administratrix
	 	EST

EX
	 	Estate, of Estate of
Executor(s),
Executrix
	 	PAR

PL
	 	Paragraph

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






A-2









 







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-3