EXHIBIT 4(SSSS)
MERRILL LYNCH & CO., INC.
_________________________
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
_________________________
________________ PREFERRED STOCK, SERIES _____
(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,
pursuant to authority conferred upon the Board of Directors by the Restated
Certificate of Incorporation, as amended, of the Corporation, which authorizes
the issuance of up to 25,000,000 shares of preferred stock, par value $1.00 per
share, the following resolutions were duly adopted by the Board of Directors of
the Corporation at a meeting of the Board of Directors duly held on __________,
___:
"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:
_____ PREFERRED STOCK, SERIES _____
(1) Number of Shares and Designation. _____ 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 _____ Preferred Stock, Series _____ (hereinafter
called the "Preferred Stock, Series _____").
(2) Dividends. (a) The holders of shares of the Preferred
Stock, Series _____, 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 funds legally available for the
payment of dividends, cash dividends [at the rate set forth below in
this Section (2) applied to the amount of
$_____ per share] [as described below in this Section (2).] Such
dividends shall be [noncumulative] [cumulative] from the date of
original issue of such shares and shall be payable quarterly, when and
as declared by the Board of Directors of the Corporation (or a duly
authorized Committee thereof), on __________, __________, __________,
and __________ of each year, commencing on __________; provided that
if any such payment date is not a business day, dividends (if
declared) on the Preferred Stock, Series ___, 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 _____, as they appear on the stock register of
the Corporation on such record dates, 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 (as defined in subsection (b) of this Section (2)) 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 the Board of Directors of the Corporation (or a duly authorized
Committee thereof).]
(b) (i) Dividend periods ("Dividend Periods") shall commence on
__________, __________, __________, and __________ of each year (other
than the initial Dividend Period which shall commence on the date of
original issue of the Preferred Stock, Series _____ 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 _____, for the period from the date of original issue thereof
to and including __________, _____ and for each Dividend Period
thereafter shall be [_____% per annum.] [a rate per annum equal to
__________.]
(ii) The amount of dividends payable for each full Dividend
Period for the Preferred Stock, Series _____, shall be computed by
dividing the [applicable] dividend rate [of _____% per annum] by four
and applying the resulting rate to the amount of $_____ per share.
The amount of dividends payable for the initial Dividend Period on the
Preferred Stock, Series _____, or any other period shorter than a full
Dividend Period on the Preferred Stock, Series _____, shall be
computed on the basis of 30-day months, a 360-day year and the actual
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number of days elapsed in any period of less than one month.
[Describe alternate method of entitlement to and determination of
amount of dividend.]
(c) So long as any shares of the Preferred Stock, Series _____,
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 _____, for any period unless [full cumulative
dividends] [the immediately preceding dividend] [have] [has] been or
contemporaneously [are] [is] declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the
Preferred Stock, Series _____, for [all Dividend Periods terminating
on or prior to the date of payment of such full cumulative dividends]
[the immediately preceding dividend period]. When dividends are not
paid in full, as aforesaid, upon the shares of the Preferred Stock,
Series _____, and any other preferred stock ranking on a parity as to
dividends with the Preferred Stock, Series _____, all dividends
declared upon shares of the Preferred Stock, Series _____, 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 Stock, Series
_____, and such other preferred stock shall in all cases bear to each
other the same ratio that accrued dividends per share [, which shall
not include any cumulation in respect of unpaid dividends for prior
Dividend Periods,] on the shares of the Preferred Stock, Series _____,
and such other preferred stock bear to each other. Holders of shares
of the Preferred Stock, Series _____, shall not be entitled to any
dividends, whether payable in cash, property or stock, in excess of
[full cumulative dividends] [the immediately preceding dividend], as
herein provided, on the Preferred Stock, Series _____. 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 _____,
which may be in arrears.
(d) So long as any shares of the Preferred Stock, Series _____,
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 _____, as to
dividends and upon liquidation and other than as provided in
subsection (c) of this Section (2)) shall be
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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 _____, 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 ___, 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 _____,
as to dividends and upon liquidation) unless, in each case, [full
cumulative dividends] [the immediately preceding dividend] on all
outstanding shares of the Preferred Stock, Series _____, shall have
been declared and paid for [all Dividend Periods terminating on or
prior to the date of payment of such full cumulative dividends] [the
immediately preceding Dividend Period].
(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 _____, upon liquidation, dissolution, or
winding up, the holders of the shares of the Preferred Stock, Series
_____, shall be entitled to receive [$__________ 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 [, which shall exclude unpaid dividends for prior Dividend
Periods];] [describe alternate method of determination of amount of
liquidation preference;] 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 _____, 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 _____, then such assets, or the proceeds thereof, shall be
distributed among the holders of shares of Preferred Stock, Series
_____, and any such other preferred stock
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ratably in accordance with the respective amounts which would be
payable on such shares of Preferred Stock, Series _____, 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 __, 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 __, 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 __, 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 __, shall not be entitled to share therein.
(4) Redemption. [(a)] The Preferred Stock, Series _____, may
not be redeemed [.][prior to __________. At any time or from time to
time on and after __________, the Corporation, at its option, may
redeem shares of the Preferred Stock, Series _____, as a whole or in
part, at a redemption price of $_____ per share, together in each case
with accrued and unpaid dividends, if any, to the date fixed for
redemption.
(b) In the event the Corporation shall redeem shares of Preferred
Stock, Series _____, notice of such 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 _____, 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
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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 _____, 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 _____, 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 _____, 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 _____, are to be redeemed, shares to be redeemed shall
be selected by the Board of Directors of the Corporation (or a duly
authorized committee thereof) from outstanding shares of Preferred
Stock, Series _____, 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 _____, pursuant to
subsection (a) of this Section (4) unless [full cumulative dividends]
[the immediately preceding dividend] on all outstanding shares of the
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Preferred Stock, Series _____, 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] [the immediately preceding Dividend Period].]
(5) Voting Rights. The Preferred Stock, Series ____, 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 ____, 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 ____, 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 ____, 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 ____, 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 ____, (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 such holders of
such shares of the Preferred Stock, Series ____, 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 ____, shall have
been paid in full] [until all dividends on such shares of Preferred
Stock, Series ____, shall have been paid in full for at least one
year]. 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
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subsequent default in the payment of dividends as aforesaid.
Upon termination of the right of the holders of the Preferred
Stock, Series ____, 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 ____, remain
outstanding, the affirmative vote or consent of the holders of at
least two-thirds of the shares of the Preferred Stock, Series ____,
outstanding at the time (voting as a class with all other series of
preferred stock ranking on a parity with the Preferred Stock, Series
____, 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 ____, 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 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 ____, which would materially and adversely affect any right,
preference, privilege or voting power of the Preferred Stock, Series
____, or of the holders thereof; provided, however, that any increase
in the amount of authorized preferred stock or the creation and
issuance of other series of preferred stock, or any increase in
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the amount of authorized shares of Preferred Stock, Series ____, in
each case ranking on a parity with or junior to the Preferred Stock,
Series ____, 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 ____, 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 ___, 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 _____, 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 _____, if the
holders of such class of stock and the Preferred Stock, Series _____,
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
(ii) junior to the Preferred Stock, Series _____, 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 _____, 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.
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(8) Exclusion of Other Rights. Unless otherwise required by law,
shares of Preferred Stock, Series _____, 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 ____________________, its Senior Vice President,
and attested by ____________________, 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 _____ day of __________, _____.
MERRILL LYNCH & CO., INC.
By
--------------------------------
Senior Vice President
Attest:
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Secretary
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