-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, kY2hdPY6cYQ039z1rbJYh4cU92Yx2PQ5IuLSekUOyLrCXEfTFs6RFUS1N1Tx1IL+ b74KBMQA+2pFVOp5AaphrQ== 0000950130-94-001233.txt : 19940817 0000950130-94-001233.hdr.sgml : 19940817 ACCESSION NUMBER: 0000950130-94-001233 CONFORMED SUBMISSION TYPE: 8-A12B PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19940816 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BANKERS TRUST NEW YORK CORP CENTRAL INDEX KEY: 0000009749 STANDARD INDUSTRIAL CLASSIFICATION: 6022 IRS NUMBER: 136180473 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12B SEC ACT: 1934 Act SEC FILE NUMBER: 001-05920 FILM NUMBER: 94544580 BUSINESS ADDRESS: STREET 1: 280 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2122502500 MAIL ADDRESS: STREET 1: 280 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: BT NEW YORK CORP DATE OF NAME CHANGE: 19671107 8-A12B 1 FORM 8-A SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ________________ FORM 8-A FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES AND EXCHANGE ACT OF 1934 BANKERS TRUST NEW YORK CORPORATION - -------------------------------------------------------------------------------- (exact name of registrant as specified in its charter) NEW YORK 13-6180473 - --------------------------------------------- --------------------------------- (State of incorporation or organization) (I.R.S. employer identification no.) 280 Park Avenue New York, New York 10017 - --------------------------------------------- --------------------------------- (Address of principal executive offices) (Zip code) Securities to be registered pursuant to Section 12(b) of the Act: Title of each class to Name of each Exchange on which be so registered each class is to be registered - ---------------------- ------------------------------ Adjustable Rate Cumulative Preferred Stock, Series R (without par value) of Registrant New York Stock Exchange, Inc. Depositary Shares, each representing a one-hundredth interest in a share of the Adjustable Rate Cumulative Preferred Stock, Series R (without par value) of the Registrant New York Stock Exchange, Inc. ________________________ Securities to be registered pursuant to Section 12(g) of the Act: None - -------------------------------------------------------------------------------- (Title of class) ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED The description of the Registrant's (i) Adjustable Rate Cumulative Preferred Stock, Series R, without par value ("Series R Preferred Stock") and (ii) Depositary Shares, each representing a one-hundredth interest in a share of Series R Preferred Stock (the "Depositary Shares") to be registered hereunder is incorporated by reference from the description of such Series R Preferred Stock and Depositary Shares contained under the captions "Certain Terms of the Series R Preferred Stock" and "Certain Terms of the Depositary Shares", in the Registrant's Prospectus Supplement, dated August 12, 1994 and "Description of Series Preferred Stock" and "Depositary Shares" in the Prospectus dated October 15, 1993, as filed with the Securities and Exchange Commission (the "Commission") on August 15, 1994, a copy of which is attached hereto in the submission to the New York Stock Exchange, Inc. ITEM 2. EXHIBITS The following exhibits are numbered in accordance with Item 601 of Regulation S-K under the Securities Exchange Act of 1934.
EXHIBIT NUMBER DESCRIPTION - --------- ----------- 4.1 Certificate of Amendment to the Registrant's Restated Certificate of Incorporation, as amended, relating to the Series R Preferred Stock. 4.2 Registrant's Restated Certificate of Incorporation, as amended, is incorporated herein by reference to Exhibit 4(d) of the Registrant's Current Report on Form 8-K, dated August 6, 1993, to Exhibits (3)(i)(1) - (3)(i)(7) to Registrant's Current Report on Form 8-K, dated September 24, 1993 and to Exhibit (4)(c) of the Registrant's Current Report on Form 8-K dated March 21, 1994. 4.3 Registrant's By-laws are incorporated herein by reference to Exhibit 3(ii)(1) of Registrant's Current Report on Form 8-K, dated September 24, 1993. 4.4 Form of Series R Preferred Stock certificate. 4.5 Form of Deposit Agreement between Bankers Trust New York Corporation and Harris Trust Company of New York, as Depositary, including the form of Depositary Receipt.
-2- SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized. BANKERS TRUST NEW YORK CORPORATION Date: August 16, 1994 By: /s/ James T. Byrne, Jr. ---------------------------- Name: James T. Byrne, Jr. Title: Senior Vice President -3- INDEX TO EXHIBITS
SEQUENTIALLY EXHIBIT NUMBERED NUMBER EXHIBIT PAGE - --------- ------- ------------ 4.1 Certificate of Amendment to the Registrant's Restated Certificate of Incorporation, as amended, relating to the Series R Preferred Stock. 4.2 Registrant's Restated Certificate of Incorporation, as amended, is incorporated herein by reference to Exhibit 4(d) of the Registrant's Current Report on Form 8-K, dated August 6, 1993, to Exhibits (3)(i)(1) - (3)(i)(7) to Registrant's Current Report on Form 8-K, dated September 24, 1993 and to Exhibit (4)(c) of the Registrant's Current Report on Form 8-K dated March 21, 1994. 4.3 Registrant's By-laws are incorporated herein by reference to Exhibit 3(ii)(1) of Registrant's Current Report on Form 8-K, dated September 24, 1993. 4.4 Form of Series R Preferred Stock certificate. 4.5 Form of Deposit Agreement between Bankers Trust New York Corporation and Harris Trust Company of New York, as Depositary, and a form of Depositary Receipt.
-4- EX-4.1 2 CERTIFICATE OF AMENDMENT EXHIBIT 4.1 ____________________________________________________________ ____________________________________________________________ CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF BANKERS TRUST NEW YORK CORPORATION ____________ Under Section 805 of the Business Corporation Law ____________ Bankers Trust New York Corporation 280 Park Avenue New York, New York 10017 ____________________________________________________________ ____________________________________________________________ CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF BANKERS TRUST NEW YORK CORPORATION ____________ Under Section 805 of the Business Corporation Law ____________ We, Duncan P. Hennes and James T. Byrne, Jr., being respectively a Senior Vice President and the Secretary of Bankers Trust New York Corporation, hereby certify that: FIRST: The name of the corporation is Bankers Trust New York Corporation and the name under which it was formed was BT New York Corporation. SECOND: The certificate of incorporation of the corporation was filed by the Department of State of New York on the 12th day of May, 1965. THIRD: The certificate of incorporation is hereby amended, pursuant to authority thereby vested in the Board of Directors, by the addition to Article FOURTH of the certificate of incorporation of the following provisions stating the designation, number, relative rights, -2- preferences and limitations, to the extent not heretofore set forth in Article FOURTH, of a series of the corporation's authorized Series Preferred Stock, without par value, such series being hereby designated as the "Adjustable Rate Cumulative Preferred Stock, Series R", all as fixed by the Board of Directors of the corporation before issuance of any shares of such series: (h) Provisions relating to the Series R Preferred Stock. 1. Designation. The distinctive serial designation of the series established hereby shall be "Adjustable Rate Cumulative Preferred Stock, Series R" (hereinafter called the "Series R Preferred Stock"). 2. Number. The number of shares of Series R Preferred Stock shall initially be 60,000, which number may not be increased, but may from time to time be decreased (but not below the number of shares of Series R Preferred Stock then outstanding) by a resolution duly adopted by the Board of Directors of the corporation. Shares of Series R Preferred Stock redeemed, purchased or otherwise acquired by the corporation shall be cancelled and shall revert to authorized but unissued Series Preferred Stock undesignated as to series. 3. Dividends. (a) Holders of shares of Series R Preferred Stock shall be entitled to receive cumulative cash dividends when, as and if declared by the Board of Directors -3- of the corporation, out of funds legally available therefor, from the date of original issuance of such shares to and including November 30, 1994 (the "Initial Dividend Period"), and for each dividend period commencing on each March 1, June 1, September 1 and December 1 thereafter, and ending on and including the day next preceding the first day of the next dividend period (such Initial Dividend Period and each of such other periods being hereinafter referred to as a "Dividend Period") at a rate per annum for each Dividend Period equal to the Applicable Rate (as defined in paragraph 4 below) in respect of such Dividend Period. The amount of dividends per share payable for the Initial Dividend Period and for any portion of any other Dividend Period less than a full Dividend Period shall be computed on the basis of a 360-day year and the actual number of days elapsed in the Dividend Period for which the dividends are payable, and by multiplying the Applicable Rate with respect to each Dividend Period, by $2,500. Dividends as provided for in this paragraph 3 will accrue from the date of original issuance and will be payable when, as and if declared by the Board of Directors of the corporation, out of funds legally available therefor, quarterly on March 1, June 1, September 1 and December 1 in each year, commencing December 1, 1994 (each, a "Dividend Payment Date"), to the holders of record on such respective -4- dates, not exceeding 30 days preceding the related Dividend Payment Date, as may be determined by the Board of Directors of the corporation, or a duly authorized committee of the Board of Directors, in advance of such Dividend Payment Date. Dividends as provided for in this paragraph 3, to the extent not declared and paid for any past Dividend Periods, may be declared and paid at any time, without reference to any regular Dividend Payment Date, to holders of record on such date, not exceeding 30 days preceding the payment date therefor, as may be fixed by the Board of Directors of the corporation, or a duly authorized committee of the Board of Directors. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend that is not paid when it accrues. (b) No dividend shall be declared and paid or set apart for payment on any share of Series R Preferred Stock or any share of any other series of Series Preferred Stock or any share of any class of stock, or series thereof, ranking on a parity with the Series R Preferred Stock as to dividends, for any Dividend Period unless at the same time a like proportionate dividend for the same Dividend Period, ratably in proportion to the respective dividends applicable thereto (adjusted in the case of the Initial Dividend Period to reflect the length of such period), shall be declared and paid or set apart for payment on all shares of Series R Preferred Stock and all shares of all other series of Series -5- Preferred Stock and all shares of any class, or series thereof, ranking on a parity with the Series R Preferred Stock as to dividends, then issued and outstanding and entitled to receive dividends. Holders of shares of Series R Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends, as herein provided, on the Series R Preferred Stock. (c) So long as any shares of Series R Preferred Stock shall be outstanding, unless the full cumulative dividends on all outstanding shares of Series R Preferred Stock shall have been declared and paid or set apart for payment for all past Dividend Periods and except as provided in paragraph 3(b), (i) no dividend (other than a dividend in Common Stock or in any other stock of the corporation ranking junior to the Series R Preferred Stock as to dividends and distribution of assets upon liquidation, dissolution or winding up) shall be declared and paid or set apart for payment, or other distribution declared or made, on the Common Stock or on any other stock ranking junior to or on a parity with Series R Preferred Stock as to dividends or distribution of assets upon liquidation, dissolution or winding up, and (ii) no shares of Common Stock or shares of any other stock of the corporation ranking junior to or on a parity with Series R Preferred Stock as to dividends or distribution of assets upon liquidation, dissolution or -6- winding up shall be redeemed, purchased or otherwise acquired for any consideration by the corporation or any subsidiary of the corporation (nor shall any moneys be paid to or made available for a sinking or other fund for the redemption, purchase or other acquisition of any shares of any such stock), other than by conversion into or exchange for Common Stock or any other stock of the corporation ranking junior to Series R Preferred Stock as to dividends and distribution of assets upon liquidation, dissolution or winding up. 4. Applicable Rate. (a) The dividend rate per annum referred to in paragraph 3(a) for any Dividend Period (the "Applicable Rate") shall be equal to (i) in the case of the Initial Dividend Period, 6.42% per annum and (ii) in the case of any Dividend Period subsequent to the Initial Dividend Period, 10-1/2% per annum; provided, however, that if a lower dividend rate for any such Dividend Period would result, then the Applicable Rate for such Dividend Period shall be equal to 84.5% of the Effective Rate (as defined below), but in no event less than 4-1/2% per annum. The "Effective Rate" for any Dividend Period shall be equal to the highest of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty Year Constant Maturity Rate (each as hereinafter defined) for such Dividend Period. If the corporation determines in good faith that for any reason: -7- (i) any one of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty Year Constant Maturity Rate cannot be determined for any Dividend Period, then the Effective Rate for such Dividend Period will be equal to the higher of whichever two such Rates can be so determined; (ii) only one of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty Year Constant Maturity Rate can be determined for any Dividend Period, then the Effective Rate for such Dividend Period will be equal to whichever such Rate can be so determined; or (iii) none of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty Year Constant Maturity Rate can be determined for any Dividend Period, then the Effective Rate for the preceding Dividend Period will be continued for such Dividend Period. Except as provided below in this paragraph, the "Treasury Bill Rate" for each Dividend Period shall be the arithmetic average of the two most recent weekly per annum market discount rates (or the one weekly per annum market discount rate, if only one such rate shall be published during the relevant Calendar Period, as defined below) for three-month U.S. Treasury bills, as published weekly by the -8- Board of Governors of the Federal Reserve System (the "Federal Reserve Board") during the Calendar Period immediately preceding the last ten calendar days preceding the Dividend Period for which the dividend rate on the Series R Preferred Stock is being determined. If the Federal Reserve Board does not publish such a weekly per annum market discount rate during any such Calendar Period, then the Treasury Bill Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum market discount rates (or the one weekly per annum market discount rate, if only one such rate shall be published during the relevant Calendar Period) for three-month U.S. Treasury bills, as published weekly during such Calendar Period by any Federal Reserve Bank or by any U.S. Government department or agency selected by the corporation. If a weekly per annum market discount rate for three-month U.S. Treasury bills shall not be published by the Federal Reserve Board or by any Federal Reserve Bank or by any U.S. Government department or agency during such Calendar Period, then the Treasury Bill Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum market discount rates (or the one weekly per annum market discount rate, if only one such rate shall be published during the relevant Calendar Period) for all of the U.S. Treasury bills then having remaining maturities of not less than 80 nor more than 100 days, as published during -9- such Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board shall not publish such rates, by any Federal Reserve Bank or by any U.S. Government department or agency selected by the corporation. If the corporation determines in good faith that for any reason no such U.S. Treasury bill rates are published as provided above during such Calendar Period, then the Treasury Bill Rate for such Dividend Period shall be the arithmetic average of the per annum market discount rates based upon the closing bids during such Calendar Period for each of the issues of marketable noninterest-bearing U.S. Treasury securities with a remaining maturity of not less than 80 nor more than 100 days from the date of each such quotation, as chosen and quoted daily for each business day in The City of New York (or less frequently if daily quotations shall not be generally available) to the corporation by at least three recognized dealers in U.S. Government securities selected by the corporation. If the corporation determines in good faith that for any reason the corporation cannot determine the Treasury Bill Rate for any Dividend Period as provided above in this paragraph, the Treasury Bill Rate for such Dividend Period shall be the arithmetic average of the per annum market discount rates based upon the closing bids during such Calendar Period for each of the issues of marketable interest-bearing U.S. Treasury securities with a remaining maturity of not less than 80 nor more than 100 -10- days from the date of each such quotation, as chosen and quoted daily for each business day in The City of New York (or less frequently if daily quotations shall not be generally available) to the corporation by at least three recognized dealers in U.S. Government securities selected by the corporation. Except as provided below in this paragraph, the "Ten Year Constant Maturity Rate" for each Dividend Period shall be the arithmetic average of the two most recent weekly per annum Ten Year Average Yields, as defined below (or the one weekly per annum Ten Year Average Yield, if only one such Yield shall be published during the relevant Calendar Period), as published weekly by the Federal Reserve Board during the Calendar Period immediately preceding the last ten calendar days preceding the Dividend Period for which the dividend rate on the Series R Preferred Stock is being determined. If the Federal Reserve Board does not publish such a weekly per annum Ten Year Average Yield during any such Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum Ten Year Average Yields (or the one weekly per annum Ten Year Average Yield, if only one such Yield shall be published during the relevant Calendar Period), as published weekly during such Calendar Period by any Federal Reserve Bank or by any U.S. Government department or agency selected -11- by the corporation. If a weekly per annum Ten Year Average Yield shall not be published by the Federal Reserve Board or by any Federal Reserve Bank or by any U.S. Government department or agency during such Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum average yields to maturity (or the one weekly per annum average yield to maturity, if only one such yield shall be published during the relevant Calendar Period) for all of the actively traded marketable U.S. Treasury fixed interest rate securities (other than Special Securities, as defined below) then having remaining maturities of not less than eight nor more than twelve years, as published during such Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board shall not publish such yields, by any Federal Reserve Bank or by any U.S. Government department or agency selected by the corporation. If the corporation determines in good faith that for any reason the corporation cannot determine the Ten Year Constant Maturity Rate for any Dividend Period as provided above in this paragraph, then the Ten Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the per annum average yields to maturity based upon the closing bids during such Calendar Period for each of the issues of actively traded marketable U.S. Treasury fixed interest rate securities (other than -12- Special Securities) with a final maturity date not less than eight nor more than twelve years from the date of each such quotation, as chosen and quoted daily for each business day in The City of New York (or less frequently if daily quotations shall not be generally available) to the corporation by at least three recognized dealers in U.S. Government securities selected by the corporation. Except as provided below in this paragraph, the "Thirty Year Constant Maturity Rate" for each Dividend Period shall be the arithmetic average of the two most recent weekly per annum Thirty Year Average Yields, as defined below (or the one weekly per annum Thirty Year Average Yield, if only one such Yield shall be published during the relevant Calendar Period), as published weekly by the Federal Reserve Board during the Calendar Period immediately preceding the last ten calendar days preceding the Dividend Period for which the dividend rate on the Series R Preferred Stock is being determined. If the Federal Reserve Board does not publish such a weekly per annum Thirty Year Average Yield during any such Calendar Period, then the Thirty Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum Thirty Year Average Yields (or the one weekly per annum Thirty Year Average Yield, if only one such Yield shall be published during the relevant Calendar Period), as published weekly during such Calendar -13- Period by any Federal Reserve Bank or by any U.S. Government department or agency selected by the corporation. If a per annum Thirty Year Average Yield shall not be published by the Federal Reserve Board or by any Federal Reserve Bank or by any U.S. Government department or agency during such Calendar Period, then the Thirty Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum average yields to maturity (or the one weekly per annum average yield to maturity, if only one such yield shall be published during the relevant Calendar Period) for all the actively traded marketable U.S. Treasury fixed interest rate securities (other than Special Securities) then having remaining maturities of not less than twenty-eight nor more than thirty years, as published during such Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board shall not publish such yields, by any Federal Reserve Bank or by any U.S. Government department or agency selected by the corporation. If the corporation determines in good faith that for any reason the corporation cannot determine the Thirty Year Constant Maturity Rate for any Dividend Period as provided above in this paragraph, then the Thirty Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the per annum average yields to maturity based upon the closing bids during such Calendar Period for each of the issues of actively traded marketable -14- U.S. Treasury fixed interest rate securities (other than Special Securities) with a final maturity date not less than twenty-eight nor more than thirty years from the date of each such quotation, as chosen and quoted daily for each business day in The City of New York (or less frequently if daily quotations shall not be generally available) to the corporation by at least three recognized dealers in U.S. government securities selected by the corporation. The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty Year Constant Maturity Rate shall each be rounded to the nearest five hundredths of a percentage point. (b) The Applicable Rate with respect to each Dividend Period commencing after the Initial Dividend Period will be calculated as promptly as practicable by the corporation according to the appropriate method described herein. The corporation will cause each such Applicable Rate (separately identifying the Effective Rate) to be published in a daily newspaper of general circulation in The City of New York prior to the commencement of the first Dividend Period to which it applies and will cause notice of such Applicable Rate (separately identifying the Effective Rate) to be included with the dividend payment checks next mailed to the holders of the Series R Preferred Stock. (c) For purposes of this paragraph 4, the per annum market discount rates for three-month U.S. Treasury -15- bills shall be secondary market rates (quoted on a bank-discount basis), and the term: (i) "Calendar Period" shall mean 14 calendar days; (ii) "Special Securities" shall mean securities which can, at the option of the holder, be surrendered at face value in payment of any federal estate tax or which provide tax benefits to the holder and are priced to reflect such tax benefits or which were originally issued at a deep or substantial discount; (iii) "Ten Year Average Yield" shall mean the average yield to maturity for actively traded marketable U.S. Treasury fixed interest rate securities (adjusted to constant maturities of ten years); and (iv) "Thirty Year Average Yield" shall mean the average yield to maturity for actively traded marketable U.S. Treasury fixed interest rate securities (adjusted to constant maturities of thirty years). 5. Liquidation. (a) Upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, the holders of the shares of Series R Preferred Stock shall be entitled to receive in full out of the net assets of the corporation or the proceeds thereof, whether from capital or surplus, before any payment or distribution shall be made or set aside for payment on the Common Stock or on any other class or series -16- of stock ranking junior to Series R Preferred Stock as to distribution of assets upon such liquidation, dissolution or winding up, liquidating distributions in the amount of $2,500.00 per share, plus in each case an amount equal to accrued and unpaid dividends (whether or not declared) to the date of final distribution (the "Liquidation Preference"). (b) In the event the assets of the corporation, or the proceeds thereof, available for distribution to the holders of shares of Series R Preferred Stock upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, shall be insufficient to pay the full Liquidation Preference to which such holders are entitled pursuant to paragraph 5(a), no such distribution shall be made on account of any shares of any other series of Series Preferred Stock or any other class of stock, or series thereof, ranking on a parity with the shares of Series R Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up, unless proportionate distributive amounts shall be paid on account of the shares of Series R Preferred Stock, ratably in proportion to the preferential sums which would be payable in such distribution if all sums payable in respect of the shares of all series of Series Preferred Stock and any such other class or series as aforesaid were paid in full. -17- (c) After the payment to the holders of the shares of Series R Preferred Stock of the full Liquidation Preference, the holders of shares of Series R Preferred Stock, as such, shall have no right or claim to any of the remaining assets of the corporation, or the proceeds thereof. (d) A consolidation or merger of the corporation with or into another corporation or corporations, or a sale, lease or conveyance, whether for cash, shares of stock, securities or properties, of all or substantially all or any part of the assets of the corporation, shall not be deemed or construed to be a liquidation, dissolution or winding up of the corporation within the meaning of this paragraph 5. 6. Redemption. (a) Issued and outstanding shares of Series R Preferred Stock shall be redeemable, at the option of the corporation, as a whole or from time to time in part, at any time on or after September 1, 1999 at a redemption price of $2,500.00 per share, plus, in each case, an amount equal to accrued and unpaid dividends (whether or not declared) to the date fixed for redemption. (b)(i) In the event the corporation shall redeem shares of Series R Preferred Stock, notice of such redemption shall be given by first-class mail, postage prepaid, mailed not more than 60 nor less than 30 days prior to the date fixed for redemption, to each holder of record of the shares to be redeemed, at such holder's address as -18- the same appears on the books of the corporation. Each such notice shall state: (A) the date fixed for redemption; (B) the number of shares of Series R Preferred Stock to be redeemed and, if less than all of the shares of Series R Preferred Stock held by such holder are to be redeemed, the number of such shares (and the certificate numbers of such shares) to be redeemed from such holder; (C) the redemption price (specifying the amount of accrued and unpaid dividends to be included therein) and the manner in which such redemption price is to be paid and delivered; (D) the place or places (which shall include a place in the Borough of Manhattan, The City of New York) where certificates for such shares are to be surrendered for payment of the redemption price; and (E) that dividends on the shares to be redeemed will cease to accrue on such date fixed for redemption. No defect in the notice of redemption or in the mailing thereof shall affect the validity of the redemption proceedings, and the failure to give notice to any holder of shares of Series R Preferred Stock to be so redeemed shall not affect the validity of the notice given to the other holders of shares of Series R Preferred Stock to be so redeemed. (ii) Notice having been mailed as aforesaid, from and after the date fixed for redemption (unless default shall be made by the corporation in providing funds for the payment of the redemption price), dividends on the shares of Series R Preferred Stock so called for redemption shall -19- cease to accrue, and such shares shall no longer be deemed to be outstanding, and all rights of the holders thereof as holders of Series R Preferred Stock (except the right to receive from the corporation the redemption price, but without interest) shall cease. The corporation's obligation to provide funds in accordance with the preceding sentence shall be deemed fulfilled if, on or before 12:00 noon, New York City time on the date fixed for redemption, the corporation shall deposit with a paying agent (which may be an affiliate of the corporation) (a "Paying Agent"), which shall be a bank or trust company organized and in good standing under the laws of the United States or the State of New York having an office or agency in the Borough of Manhattan, The City of New York, and having, together with its corporate parent, capital, surplus and undivided profits aggregating at least $50,000,000, funds necessary for such redemption, in trust, with irrevocable instructions and authorization that such funds be applied to the redemption of the shares of Series R Preferred Stock so called for redemption upon surrender of certificates for such shares (properly endorsed or assigned for transfer). (iii) If such notice of redemption shall have been duly mailed or if the corporation shall have given to a Paying Agent irrevocable authorization promptly to mail such notice, and if, on or before 12:00 noon, New York City time on the redemption date specified therein, the funds -20- necessary for such redemption shall have been deposited by the corporation with such Paying Agent in trust for the pro rata benefit of the holders of the shares of Series R Preferred Stock called for redemption, together with irrevocable instructions that such funds be applied to such redemption, then, notwithstanding that any certificate for shares of Series R Preferred Stock so called for redemption shall not have been surrendered for cancellation, from and after the time of such deposit, all shares of Series R Preferred Stock so called for redemption shall no longer be deemed to be outstanding and all rights with respect to such shares of Series R Preferred Stock shall forthwith cease and terminate, except only the right of the holders thereof to receive from such Paying Agent at any time after the time of such deposit the funds so deposited, without any interest thereon. (iv) Any interest accrued on funds deposited with a Paying Agent in connection with any redemption of shares of Series R Preferred Stock shall be paid to the corporation from time to time and the holders of any such shares to be redeemed with such money shall have no claim to any such interest. Any funds deposited and unclaimed at the end of two years from any redemption date shall be repaid or released to the corporation, after which the holder or holders of shares of Series R Preferred Stock so called for -21- redemption shall look only to the corporation for payment of the redemption price, without any interest thereon. (c) Upon surrender in accordance with such notice of the certificates for any shares to be redeemed (properly endorsed or assigned for transfer), such shares shall be redeemed by the corporation at the applicable redemption price. If fewer than all the outstanding shares of Series R Preferred Stock are to be redeemed, the shares to be redeemed shall be determined by lot or pro rata as may be determined by the Board of Directors of the corporation. (d) In no event shall the corporation redeem, purchase or otherwise acquire fewer than all the outstanding shares of Series R Preferred Stock unless full cumulative dividends shall have been declared and paid or set apart for payment on all outstanding shares of Series R Preferred Stock for all prior Dividend Periods; provided, however, that the foregoing shall not prevent, if otherwise permitted, the purchase or acquisition of shares of Series R Preferred Stock pursuant to a tender or exchange offer made on the same terms to holders of all the outstanding shares of Series R Preferred Stock and mailed to the holders of record of all such outstanding shares at such holders' addresses as the same appear on the books of the corporation; and provided further, however, that if some, but fewer than all, of the shares of Series R Preferred Stock are to be purchased or otherwise acquired pursuant to -22- such tender or exchange offer and the number of shares so tendered exceeds the number of shares so to be purchased or otherwise acquired by the corporation, the shares of Series R Preferred Stock so tendered shall be purchased or otherwise acquired by the corporation on a pro rata basis (with adjustments to eliminate fractions) according to the number of such shares duly tendered by each holder so tendering shares of Series R Preferred Stock for such purchase or exchange. 7. Conversion and Exchange. The holders of shares of Series R Preferred Stock shall not have any rights to convert such shares into or to exchange such shares for shares of Common Stock or any other stock of the corporation. 8. Voting Rights. (a) Except as hereinafter in this paragraph 8 expressly provided and as otherwise from time to time required by the laws of the State of New York, the Series R Preferred Stock shall not have any voting rights. (b) Whenever, at any time or times, dividends payable on shares of Series R Preferred Stock shall be in arrears in an amount equivalent to dividends for six full Dividend Periods, then, immediately upon the happening of such event, the number of directors of the corporation shall be increased by two and the holders of outstanding shares of Series R Preferred Stock shall have the right, voting -23- together as a single class with holders of shares of any other series of Series Preferred Stock then outstanding upon which like voting rights have been conferred and are then exercisable, to the exclusion of the holders of the Common Stock, the holders of any other series of Series Preferred Stock upon which such voting rights have not been conferred or are not then exercisable, and the holders of any other stock of the corporation having general voting rights, to vote for the election of two members of the Board of Directors of the corporation to fill such newly created directorships, until all dividends in arrears on the Series R Preferred Stock have been declared and paid or set apart for payment in full. The right of the holders of Series R Preferred Stock to elect members of the Board of Directors of the corporation as aforesaid shall continue until such time as all dividends in arrears on the Series R Preferred Stock shall have been declared and paid or set apart for payment in full, at which time such right shall terminate, except as herein or by law expressly provided, subject to revesting in the event of each and every subsequent arrearage in the amount above mentioned. Upon any termination of the right of such holders to elect directors as herein provided, the term of office of all directors then in office elected thereby, and the vacancies created pursuant to this paragraph 8(b), shall terminate immediately. Any director who shall have been so elected -24- pursuant to this paragraph 8(b) may be removed at any time, with or without cause, and any vacancy thereby created may be filled, only by the affirmative vote of the holders of Series R Preferred Stock voting together as a single class with the holders of shares of any other series of Series Preferred Stock upon which like voting rights have been conferred and are then exercisable. If the office of any director so elected pursuant to this paragraph 8(b) becomes vacant for any reason other than removal from office as aforesaid, the remaining director may choose a successor who shall hold office for the unexpired term in respect of which such vacancy occurred. (c) So long as any shares of Series R Preferred Stock shall be outstanding, unless the vote or consent of the holders of a greater number of shares shall then be required by law, the affirmative vote or consent of (a) the holders of at least 66 2/3% of the shares of Series R Preferred Stock and (b) the holders of at least a majority of the shares of Series R Preferred Stock and of any other series of Series Preferred Stock then outstanding upon which like voting rights have been conferred and are then exercisable, voting together as a single class, in each case given in person or by proxy either in writing or by resolution at any special or annual meeting called for the purpose, shall be necessary to authorize, permit, effect or validate any one or more of the following: -25- (i) the authorization or any increase in the authorized amount of any class of stock, or the establishment or designation of any series of stock (unless the class of which such series is a part has been authorized previously pursuant to this paragraph 8(c)(i)), or the issuance or sale of any obligation, security or instrument convertible into, exchangeable for, or evidencing the right to purchase, acquire or subscribe for shares of a class or series of stock, if such class or series of stock ranks prior to the Series R Preferred Stock as to dividends or distribution of assets upon liquidation, dissolution or winding up (unless the class or series has been authorized previously pursuant to this paragraph 8(c)(i)), and (ii) the amendment, alteration or repeal, whether by merger, consolidation or otherwise, of any of the provisions of the certificate of incorporation, as amended hereby, which would materially and adversely affect any right, preference, privilege or voting rights of the Series Preferred Stock then outstanding; provided, however, that in the event that any such amendment, alteration or repeal would materially and adversely affect the rights of only the Series R Preferred Stock, then such amendment, alteration or repeal may be effected only with the affirmative vote or consent of the holders of at least 66-2/3% of the -26- shares of Series R Preferred Stock then outstanding; provided further, however, that the authorization, establishment, designation, issuance or sale of other Series Preferred Stock shall not have, or be deemed to have, such material adverse effect; and provided further, however, that an increase in the authorized amount of Series Preferred Stock, or the authorization, establishment, designation, issuance or sale of any shares of stock that do not rank prior to the Series Preferred Stock as to dividends or distribution of assets upon liquidation, dissolution or winding up, shall not have, or be deemed to have, such material adverse effect. In addition, unless the vote or consent of the holders of a greater number of shares shall then be required by law, the affirmative vote or consent of the holders of at least a majority of the shares of Series R Preferred Stock and any other series of Series Preferred Stock then outstanding upon which like voting rights have been conferred and are then exercisable, voting together as a single class, given in person or by proxy either in writing or by resolution at any special or annual meeting called for the purpose, shall be necessary to authorize an increase in the authorized amount of the Series Preferred Stock or the new class of serial preferred stock of the corporation authorized by the stockholders of the corporation prior to -27- the creation of the Series R Preferred Stock (the "Serial Preferred Stock"), or the creation of a class of stock that would rank pari passu with the Series Preferred Stock or the Serial Preferred Stock as to dividends or distribution of assets upon liquidation, dissolution or winding up, or to authorize, permit, effect or validate the voluntary liquidation, dissolution or winding up of the corporation; provided, however, that a consolidation or merger of the corporation with or into another corporation or corporations, or a sale, lease or conveyance, whether for cash, shares of stock, securities or properties, of all or substantially all or any part of the assets of the corporation, shall not be deemed or construed to be a liquidation, dissolution or winding up of the corporation within the meaning of this paragraph. (d) The foregoing provisions regarding voting rights shall not apply if, at or prior to the time when the act with respect to which such provisions would otherwise apply to a vote required to effect such act, (i) all shares of Series R Preferred Stock then outstanding shall have been redeemed or called for redemption and sufficient funds, together with irrevocable instructions to the Paying Agent to apply such funds, shall have been deposited in trust to effect such redemption in accordance with paragraph 6(b)(ii) and 6(b)(iii), or (ii) all shares of Series R Preferred -28- Stock have been purchased or otherwise acquired and cancelled. (e) Holders of Series R Preferred Stock, and the holders of shares of any other series of Series Preferred Stock upon which like voting rights have been conferred and are then exercisable (other than the Series C Junior Participating Preferred Stock), shall be entitled to one vote for each share of such stock held on matters as to which such holders shall be entitled to vote. 9. Definitions. For purposes hereof, any class or series of stock of the corporation shall be deemed to rank: (i) prior to the Series R Preferred Stock as to dividends or distribution of assets upon liquidation, dissolution or winding up, if the holders of such class or 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 preference or priority to the holders of Series R Preferred Stock; (ii) on a parity with the Series R Preferred Stock as to dividends or distribution of assets upon liquidation, dissolution or winding up, whether or not the dividend rates, dividend payment dates, redemption prices or liquidation preferences per share thereof are different from those of the Series R Preferred Stock, -29- if the holders of such class or series of stock and of the Series R Preferred Stock 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 amounts or liquidation preferences, without preference or priority to the holders of Series R Preferred Stock; and (iii) junior to the Series R Preferred Stock as to dividends or distribution of assets upon liquidation, dissolution or winding up, if such stock shall be Common Stock or if the holders of the Series R Preferred Stock shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of shares of such class or series. FOURTH: The manner in which the foregoing amendment of the certificate of incorporation was authorized was by the affirmative vote of at least a majority of the Board of Directors of the corporation at a meeting duly -30- convened and held on June 21, 1994, at which a quorum was present throughout. IN WITNESS WHEREOF, we, the undersigned, have subscribed this Certificate on the ___ day of August, 1994 and affirm the statements contained herein as true under penalties of perjury. _________________________ Senior Vice President _________________________ Secretary -31- EX-4.4 3 FORM OF SERIES R PREFERRED STOCK CERTIFICATE EXHIBIT 4.4 CERTIFICATE NUMBER OF NUMBER SHARES BANKERS TRUST NEW YORK CORPORATION Incorporated Under the Laws of the State of New York ADJUSTABLE RATE CUMULATIVE PREFERRED STOCK, SERIES R $2,500 LIQUIDATION PREFERENCE CUSIP NO. _________________ (See Reverse for Certain Definitions) This Certifies that ________________________ is the owner of __________________ (___) fully paid and nonassessable shares without par value of Adjustable Rate Cumulative Preferred Stock, Series R ($2,500 Liquidation Preference), of Bankers Trust New York Corporation (the "Corporation") transferable only on the books of the Corporation by the holder thereof in person or by duly authorized Attorney upon surrender of this Certificate properly endorsed. This Certificate is not valid unless countersigned by the registrar and transfer agent. WITNESS the seal of the Corporation and the signatures of its duly authorized officers. HARRIS TRUST COMPANY OF NEW YORK BANKERS TRUST NEW YORK CORPORATION as Registrar and Transfer Agent By_____________________________ By________________________________ Authorized Signature Attest__________________________ The Corporation will furnish to any shareholder upon request and without charge, a full statement of the designation, relative rights, preferences and limitations of the shares of the Series R Preferred Stock and of each class of shares authorized to be issued, and the designation, relative rights, preferences and limitations of each series of preferred shares, so far as the same have been fixed, and the authority of the Board of Directors to designate and fix the relative rights, preferences and limitations of other series. Any such request is to be addressed to the transfer agent named on the face of this certificate. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT-______ Custodian______ (Cust) (Minor) TEN ENT - as tenants by the entireties under Uniform Gifts to JT TEN - as joint tenants with right Minors Act____________ of survivorship and not as (State) tenants in common Additional abbreviations may also be used though not in the above list. FOR VALUE RECEIVED, _________________________ hereby sell, assign and transfer unto _____________________ ________________________________ Shares of the preferred stock represented by the within Certificate, and do hereby irrevocably constitute and appoint ________________________ Attorney to transfer the said stock on the books of the within-named Corporation with full power of substitution in the premises. Dated _________________, _____ ___________________ In presence of ___________________________________ ______________________________________________ Notice: The signature to the assignment must correspond with the name as written upon the face of this certificate in every particular, without alteration or enlargement or any change whatever. EX-4.5 4 FORM OF DEPOSIT AGREEMENT EXHIBIT 4.5 ================================================================================ BANKERS TRUST NEW YORK CORPORATION, Harris Trust Company of New York, As Depositary, AND THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS DESCRIBED HEREIN _________________ Deposit Agreement _________________ Dated as of August 15, 1994 ================================================================================ TABLE OF CONTENTS
Page ---- PARTIES......................................................... 1 RECITALS........................................................ 1 ARTICLE I Definitions Certificate...................................................... 1 Certificate of Incorporation..................................... 2 Corporation...................................................... 2 Deposit Agreement................................................ 2 Depositary....................................................... 2 Depositary Shares................................................ 2 Depositary's Agent............................................... 2 Depositary's Office.............................................. 2 Paying Agent..................................................... 3 Receipt.......................................................... 3 record holder.................................................... 3 Redemption Date.................................................. 3 Registrar........................................................ 3 Securities Act................................................... 3 Series R Preferred Stock......................................... 3 Stock............................................................ 3
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.................. 6 SECTION 2.03. Redemption of Stock............................ 8 SECTION 2.04. Registration of Transfer of Receipts........... 12
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Page ---- SECTION 2.05. Split-Ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock...................................... 12 SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts.. 15 SECTION 2.07. Lost Receipts, Etc.............................. 16 SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.......................... 16 ARTICLE III Certain Obligations of Holders of Receipts and the Corporation SECTION 3.01. Filing Proofs, Certificates and Other Information............................. 16 SECTION 3.02. Payment of Taxes or Other Governmental Charges.. 17 SECTION 3.03. Warranty as to Stock............................ 18 ARTICLE IV The Deposited Securities; Notices SECTION 4.01. Cash Distributions............................. 18 SECTION 4.02. Distributions Other than Cash, Rights, Preferences or Privileges.................... 19 SECTION 4.03. Subscription Rights, Preferences or Privileges................................ 20 SECTION 4.04. Notice of Dividends, Etc.; Fixing of Record Date for Holders of Receipts................. 23 SECTION 4.05. Voting Rights.................................. 24 SECTION 4.06. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, Etc.... 25
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Page ---- SECTION 4.07. Inspection of Reports......................... 26 SECTION 4.08. Lists of Receipt Holders...................... 27 ARTICLE V The Depositary, the Depositary's Agents, the Registrar and the Corporation SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar............ 27 SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Corporation................. 29 SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Corporation.............................. 30 SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary.......... 32 SECTION 5.05. Corporate Notices and Reports.................. 33 SECTION 5.06. Indemnification by the Corporation............. 34 SECTION 5.07. Charges and Expenses........................... 34 SECTION 5.08 Tax Compliance................................. 35 ARTICLE VI Amendment and Termination SECTION 6.01. Amendment...................................... 36 SECTION 6.02. Termination.................................... 37 ARTICLE VII Miscellaneous
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Page ---- SECTION 7.01. Counterparts................................... 38 SECTION 7.02. Exclusive Benefit of Parties................... 38 SECTION 7.03. Invalidity of Provisions....................... 38 SECTION 7.04. Notices........................................ 38 SECTION 7.05. Depositary's Agents............................ 40 SECTION 7.06. Holders of Receipts Are Parties................ 40 SECTION 7.07. Governing Law.................................. 41 SECTION 7.08. Inspection of Deposit Agreement................ 41 SECTION 7.09. Headings....................................... 41 TESTIMONIUM..................................................... 42 SIGNATURES...................................................... 42
EXHIBIT A: Form of Depositary Receipt -iv- DEPOSIT AGREEMENT dated as of August 15, 1994, among BANKERS TRUST NEW YORK CORPORATION, a New York corporation (the "Corporation"), HARRIS TRUST COMPANY OF NEW YORK, a New York corporation, as depositary (the "Depositary") and the holders from time to time of the Receipts described herein. WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of shares of Adjustable Rate Cumulative Preferred Stock, Series R ($2,500 Liquidation Preference), of the Corporation 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; 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 amendment to the Certificate of Incorporation filed with the Secretary of State of New York establishing the Stock as a series of series preferred stock, without par value, of the Corporation. "Certificate of Incorporation" shall mean the Restated Certificate of Incorporation of the Corporation (including the Certificate), as amended or supplemented from time to time. "Corporation" shall mean Bankers Trust New York Corporation, a New York corporation, and its successors. "Deposit Agreement" shall mean this Deposit Agreement, as amended or supplemented from time to time. "Depositary" shall mean Harris Trust Company of New York, a New York corporation, and any successor as Depositary hereunder. "Depositary Shares" shall mean Depositary Shares, each representing one-hundredth (1/100th) of a share of Stock and evidenced by a Receipt. "Depositary's Agent" shall mean an agent appointed by the Depositary pursuant to Section 7.05 hereof. "Depositary's Office" shall mean the principal office of the Depositary in New York City, at which at any particular time its depositary receipt business shall be administered. -2- "Paying Agent" shall have the meaning specified in the Certificate. "Receipt" shall mean one of the Depositary Receipts issued hereunder, whether in definitive or temporary form. "record 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. "Redemption Date" shall have the meaning specified in Section 2.03 hereof. "Registrar" shall mean any bank or trust company that shall be appointed to register ownership and transfers of Receipts as herein provided. "Securities Act" shall mean the Securities Act of 1933 and the rules and regulations promulgated thereunder, in each case as amended or supplemented from time to time. "Series R Preferred Stock" shall mean shares of the Corporation's Adjustable Rate Cumulative Preferred Stock, Series R ($2,500 Liquidation Preference). "Stock" shall mean shares of the Series R Preferred Stock. -3- 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 and shall be substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided. Pending the preparation of definitive Receipts, the Depositary, upon the written order of the Corporation delivered in compliance with Section 2.02 hereof, shall execute and deliver temporary Receipts, which shall be 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 such persons' execution of such Receipts. If temporary Receipts are issued, the Corporation and the Depositary shall 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 last paragraph of Section 2.02 hereof, without charge to the -4- 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 Corporation'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 counter-signed by manual signature of 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 manually by a duly authorized officer of such Registrar. The Depositary shall record on its books each Receipt so signed and delivered as hereinafter provided. -5- Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange upon which the Stock, the Depositary Shares or the Receipts may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject. Title to Depositary Shares evidenced by a Receipt that 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 2.04 hereof, 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 -6- Corporation 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 Corporation 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 for the number of Depositary Shares representing such deposited Stock and registered in the name of the person or persons stated in such order. Upon receipt by the Depositary of a certificate or certificates for shares of 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 Corporation 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 a Receipt or Receipts for the number of Depositary Shares representing the Stock so deposited registered in the name or names of the person or persons specified in the written order delivered to the Depositary -7- referred to in the first paragraph of this Section. 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 to the person or persons specified in such order. Delivery at other offices shall be at the risk and expense of the person requesting such delivery. Other than in the case of splits, combinations or other reclassifications affecting the Stock, or in the case of dividends or other distributions of Stock, if any, or unless the Corporation provides written notice to the Depositary as to a different number of shares of Stock, there shall be deposited hereunder not more than 60,000 shares of 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. SECTION 2.03. Redemption of Stock. Whenever the Corporation 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 the Depositary not less than 40 nor more than 70 days' notice of the date of such proposed redemption of Stock, which notice shall be accompanied by a certificate from the Corporation stating that such redemption of Stock is in -8- accordance with the provisions of the Certificate. Such notice, if given more than 60 days prior to the redemption date, shall be in addition to the notice required to be given for redemption pursuant to the Certificate. On the date of such redemption, provided that the Corporation shall then have paid in full to the Depositary the redemption price of the Stock to be redeemed, including any accrued and unpaid dividends thereon, the Depositary shall redeem the number of Depositary Shares representing such Stock. The Depositary shall mail notice of such redemption and the proposed simultaneous redemption of the number of Depositary Shares representing the Stock to be redeemed, first-class postage prepaid, not less than 30 nor more than 60 days prior to the date fixed for redemption of such Stock and Depositary Shares (the "Redemption Date"), to the record holders of the Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of such holders as they appear on the records of the Depositary; provided that neither any failure to mail any such notice to one or more such holders nor any defect in any notice to one or more such holders shall affect the sufficiency of the proceedings for redemption as to any other holders. Each such notice shall state: (i) the Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such holder are to be redeemed, the number of such Depositary Shares held by such -9- 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 accumulate 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 lot or pro rata as may be determined by the Depositary. Notice having been mailed by the Depositary as aforesaid, from and after the earlier of (i) the time of deposit of funds, pursuant to Paragraph 6 of the Certificate, necessary for such redemption with the Paying Agent in trust for the pro rata benefit of the holders of Stock represented by the Depositary Shares called for redemption or (ii) the Redemption Date (unless the Corporation shall have failed to redeem the shares of Stock to be redeemed by it as set forth in the Corporation's notice provided for in the preceding paragraph), all dividends in respect of each share of Stock so called for redemption shall cease to accumulate, the Depositary Shares being redeemed from such proceeds shall be deemed no longer to be outstanding, all rights of the holders of Receipts evidencing such Depositary Shares (except the right to -10- receive the redemption price) shall, to the extent of such Depositary Shares, cease and terminate and, upon surrender in accordance with such notice of the Receipts evidencing any such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall be redeemed by the Depositary at a redemption price per Depositary Share equal to one-hundredth (1/100th) of the redemption price per share paid in respect of each share of Stock plus all money and other property, if any, represented by such Depositary Shares, including all amounts paid by the Corporation in respect of dividends that on the Redemption Date have accumulated on the shares of Stock to be so redeemed and have not theretofore been paid. If fewer than all 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. Notwithstanding anything to the contrary herein, the Corporation may purchase or acquire shares of Stock represented by the Depositary Shares pursuant to a tender or exchange offer as set forth in Paragraph 6(d) of the Certificate; provided, however, that if some, but less than all, of the shares of Stock represented by the Depositary Shares are to be purchased or otherwise acquired pursuant to -11- such tender or exchange offer and the number of shares of Stock represented by the Depositary Shares so tendered exceeds the number of shares of Stock represented by the Depositary Shares so to be purchased or otherwise acquired by the Corporation, the Depositary Shares representing Stock so tendered shall be purchased or otherwise acquired by the Depositary, on behalf and upon the instructions of the Corporation, on a pro rata basis (with adjustments to eliminate fractions) according to the number of such Depositary Shares duly tendered by each holder so tendering Depositary Shares for such purchase or exchange. SECTION 2.04. 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, in any authorized denomination or denominations requested, 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. SECTION 2.05. Split-Ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock. -12- 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 and deliver a new Receipt or Receipts, in any authorized denomination or denominations requested, evidencing the aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered. Any holder of a Receipt or Receipts representing any number of whole shares of Stock may (unless the related Depositary Shares have previously been called for redemption) withdraw the Stock and all money and other property, if any, represented by such Receipt or Receipts 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 Depositary Shares therefor. If a Receipt delivered by the holder to the Depositary in connection with -13- 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 hereof) upon such holder's order, a new Receipt evidencing such excess number of Depositary Shares. Delivery of the Stock and money and other property 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 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 -14- expense of the holder surrendering such Receipt or Receipts and for the account of such holder, such delivery may be made at such other place as may be designated by such holder. SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts. As a condition precedent to the execution and delivery, registration or registration of transfer, split-up, combination, redemption, surrender or exchange of any Receipt, the Depositary, any of the Depositary's Agents or the Corporation may require payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Corporation 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 hereof, 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 Corporation may establish consistent with the provisions of this Deposit Agreement. The deposit of Stock may be refused, the delivery of Receipts against Stock may be suspended, the registration of Receipts may be refused and the registration of transfer, split-up, combination, redemption, surrender or exchange of outstanding Receipts may be suspended (i) during any period when the register of stockholders of the Corporation is -15- closed or (ii) if any such action is deemed necessary or advisable by the Depositary, any of the Depositary's Agents or the Corporation 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 2.07. 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 furnishing of the Depositary with reasonable indemnification satisfactory to it. SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent shall be canceled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized to destroy all Receipts so canceled. -16- ARTICLE III Certain Obligations of Holders of Receipts and the Corporation 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 information, to execute such certificates and to make such representations and warranties as the Depositary or the Corporation may reasonably deem necessary or proper. The Depositary or the Corporation may withhold the delivery, or delay the registration or registration of transfer, split-up, combination, redemption, surrender or exchange of any Receipt or the withdrawal of the Stock and all money and other property, if any, 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, such certificates are executed and 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 hereof. Any registration or registration of transfer, split-up, combination, redemption, surrender or exchange of any Receipt or any withdrawal of the Stock and all money and -17- other property, if any, represented by the Depositary Shares evidenced by any Receipt may be refused until any such payment due is made, and the distribution of any dividend, interest payment or other distribution may be delayed or withheld or any part of or all the Stock or money 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 any such dividend, interest payment or other distribution or the proceeds of any such sale may be applied to any payment of such charges or expenses, provided that the holder of such Receipt shall remain liable for any deficiency. SECTION 3.03. Warranty as to Stock. The Corporation hereby represents and warrants that the Stock, when issued, will be validly issued, fully paid and nonassessable. 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 hereof, distribute to record holders -18- of Receipts on the record date fixed pursuant to Section 4.04 hereof such dividend or distribution in such amounts 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 Corporation or the Depositary shall be required to withhold and shall withhold from any cash dividend or other cash distribution in respect of the Stock an amount on account of taxes, the amount made available for distribution or distributed in respect of Depositary Shares shall be reduced accordingly; and provided further, however, that the Depositary shall distribute or make available for distribution, as the case may be, only such amount as can be distributed without attributing to any holder of Depositary Shares a fraction of one cent, and any balance not so distributable shall be held by the Depositary (without liability for interest thereon) and shall be added to and be treated as part of the next sum received by the Depositary for distribution to record holders of Receipts then outstanding. SECTION 4.02. Distributions Other than Cash, Rights, Preferences or Privileges. Whenever the Depositary shall receive any distribution other than cash, rights, preferences or privileges upon Stock, the Depositary shall, subject to Sections 3.01 and 3.02 hereof, distribute to record holders of Receipts on the record date fixed pursuant -19- to Section 4.04 hereof such securities or property received by it in such amounts 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 Corporation or the Depositary withhold an amount on account of taxes) the Depositary, after consultation with the Corporation, deems such distribution not to be feasible, the Depositary may, with the approval of the Corporation, 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, 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 hereof, 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 hereof in the case of a distribution received in cash. The Corporation shall not make any distribution of such securities unless the Corporation shall have provided an opinion of counsel -20- stating that such securities have been registered under the Securities Act or are not required to be so registered. SECTION 4.03. Subscription Rights, Preferences or Privileges. If the Corporation shall at any time offer or cause to be offered to the persons in whose names Stock is recorded on the books of the Corporation 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 Corporation; 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 Corporation) not feasible to make such rights, preferences or privileges available to holders of Receipts by the issue of warrants or otherwise, or (ii) if and to the extent so instructed by holders of Receipts who do not desire to exercise such rights, preferences or privileges, then the Depositary, in its discretion (with the approval of the Corporation, in any case where the Depositary has determined that it is not -21- 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 hereof, be distributed by the Depositary to the record holders of Receipts entitled thereto as provided by Section 4.01 hereof in the case of a distribution received in cash. The Corporation shall not make any distribution of any such rights, preferences or privileges unless the Corporation shall have provided an opinion of counsel stating that such rights, preferences or privileges have been registered under the Securities Act or are not required to be registered. If 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, the Corporation shall promptly file a registration statement pursuant to the Securities 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 -22- 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 unless the offering and sale of such securities to such holders are exempt from registration under the provisions of the Securities Act. If 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, the Corporation shall use its 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 of 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 Depository and the -23- Corporation 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 Corporation with respect to 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 reason. SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at which the holders of Stock are entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the record holders of Receipts a notice which shall contain (i) such information as is contained in such notice of meeting and (ii) a statement that the holders of the Receipts 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 Corporation) 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 -24- as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum number of whole shares of Stock represented by the Depositary Shares evidenced by all Receipts as to which any particular voting instructions are received. The Corporation shall take all action that the Depositary may deem necessary 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 shall abstain from voting (but, at its discretion, not from appearing 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 or liquidation preference, split-up, combination or any other reclassification of the Stock, or upon any recapitalization, reorganization, merger, amalgamation or consolidation affecting the Corporation or to which it is a party, the Depositary may in its discretion with the approval of, and shall upon the instructions of, the Corporation, and (in either case) in such manner as the Depositary may deem equitable, (i) make such adjustments as are certified by the Corporation in (x) the fraction of an interest represented -25- by one Depositary Share in one share of Stock and (y) the ratio of the redemption price per Depositary Share to the redemption price of a share of Stock, in each case as may be necessary fully to reflect the effects of such change in par or stated value or liquidation preference, split-up, combination or other reclassification of Stock, or of such recapitalization, reorganization, merger, amalgamation or consolidation and (ii) treat any securities that 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 Corporation, 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 or liquidation preference, split-up, combination or other reclassification of the Stock or any such recapitalization, reorganization, merger, amalgamation 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 -26- other securities and property and cash into which the Stock represented by such Receipts might have been converted or for which such Stock might have been exchanged or surrendered immediately prior to the effective date of such transaction. SECTION 4.07. Inspection of Reports. The Depositary shall transmit to the record holders of Receipts, at the addresses of such record holders as set forth on the books of the Depositary, and shall make available for inspection by holders of Receipts at the Depositary's Office, and at such other places as it may from time to time deem advisable, any reports and communications received from the Corporation which are received by the Depositary as the holder of Stock. SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time to time by the Corporation, the Depositary shall furnish to it a list, as of a recent date, of the names, addresses and holdings of Depositary Shares of all persons in whose names Receipts are registered on the books of the Depositary. ARTICLE V The Depositary, the Depositary's Agents, the Registrar and the Corporation SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary shall -27- establish, and thereafter it shall maintain, at the Depositary's Office, facilities for the execution and delivery, registration or registration of transfer, split-up, combination, redemption, surrender or exchange of Receipts, and at the offices of the Depositary's Agents, if any, facilities for the delivery, registration or registration of transfer, split-up, combination, redemption, surrender or 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 or registration of transfer, split-up, combination, redemption, surrender or exchange 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 Corporation, 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 -28- Stock represented by such Depositary Shares shall be listed on the New York Stock Exchange, the Depositary will appoint a Registrar (acceptable to the Corporation) 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 such Exchange) may be removed and a substitute registrar appointed by the Depositary upon the request or with the approval of the Corporation. 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 Corporation, arrange such facilities for the delivery, registration or registration of transfer, split-up, combination, redemption, surrender or 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 Corporation. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Corporation shall incur any liability to any holder of any Receipt if by reason of any provision of any present or future law, or any present or future 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 -29- the Certificate of Incorporation 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 Corporation shall be prevented or forbidden from, or subjected to any penalty on account of, doing or performing any act or thing that the terms of this Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary's Agent, any Registrar or the Corporation incur any 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 that the terms of this Deposit Agreement provide shall or may be done or performed, or (ii) by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement except, in case of any such exercise or failure to exercise discretion not caused as aforesaid, if caused by the negligence or willful misconduct of the party charged with such exercise or failure to exercise. SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders of Receipts other than for its negligence or willful misconduct. -30- Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Corporation 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 Corporation shall be liable for any action or any failure to act by it in reliance upon the written advice of legal counsel or accountants, 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 Corporation may each rely and shall each be protected in acting upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Stock or for the manner or effect of any such vote made, as long as any such action or non-action is in good faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit -31- Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary will be liable to the Corporation for any liability that may arise out of acts performed or omitted by the Depositary or any Depositary's Agent due to its or their gross negligence or wilful misconduct. The Depositary, the Depositary's Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary. The Depositary may at any time resign as Depositary hereunder by notice of its election so to do delivered to the Corporation. Such resignation shall be effective 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 Corporation by notice of such removal delivered to the Depositary. Such removal shall be effective upon the appointment of a successor Depositary and its acceptance of such appointment as hereinafter provided. In case at any time the Depositary acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of -32- 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 Corporation 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 Corporation, shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys or property held hereunder to such successor, and shall deliver to such successor a list of the record holders of all outstanding Receipts. Any successor Depositary shall promptly mail notice of its appointment to the record holders of Receipts. -33- Any corporation into or with which the Depositary may be merged, consolidated or converted shall be the successor of such Depositary without the execution or filing of any document or any further act, and notice thereof shall not be required 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 Corporation agrees that it will transmit to the record holders of Receipts, in each case at the addresses furnished to it pursuant to Section 4.08 hereof, 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 Certificate of Incorporation to be furnished by the Corporation to holders of Stock. Such transmission will be at the Corporation's expense. SECTION 5.06. Indemnification by the Corporation. The Corporation shall indemnify the Depositary, any Depositary's Agent and any Registrar against, and hold each of them harmless from, any loss, liability or expense (including the costs and expenses of defending itself and reasonable counsel fees) which may arise out of acts performed or omitted in connection with this Deposit Agreement and the Receipts (a) by the Depositary, any Registrar or any of their respective agents (including any -34- Depositary's Agent), except for any liability or expense arising out of negligence or bad faith on the respective parts of any such person or persons, or (b) by the Corporation or any of its agents. The obligations of the Corporation set forth in this Section 5.06 shall survive any succession of any Depositary, Registrar or Depositary's Agent. SECTION 5.07. Charges and Expenses. The Corporation shall pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements hereunder. The Corporation shall pay all charges of the Depositary in connection with the initial deposit of the Stock and the initial issuance of the Depositary Shares, redemption of the Stock at the option of the Corporation and all withdrawals of shares of the Stock by owners of Depositary Shares. All other transfer and other taxes and governmental charges shall be at the expense of holders of Depositary Shares. If, at the request of a holder of Receipts, the Depositary incurs charges or expenses for which it is not otherwise liable hereunder, such holder will be liable for such charges and expenses. All other charges and expenses of the Depositary and any Depositary's Agent hereunder and of any Registrar (including, in each case, reasonable fees and expenses of counsel) incident to the performance of their respective obligations hereunder will be paid upon consultation and -35- agreement between the Depositary and the Corporation as to the amount and nature of such charges and expenses. The Depositary shall present its statement for charges and expenses to the Corporation once every three months or at such other intervals as the Corporation and the Depositary may agree. SECTION 5.08. Tax Compliance. (a) The Depositary, on its own behalf and on behalf of the Corporation will comply with all applicable certification, information reporting and withholding (including "backup" withholding) requirements imposed by applicable tax laws, regulations or administrative practice with respect to (i) any payments made with respect to the Depositary Shares or (ii) the issuance, delivery, holding, transfer, redemption or exercise of rights under the Depositary Receipts or the Depositary Shares. Such compliance shall include, without limitation, the preparation and timely filing of required returns and the timely payment of all amounts required to be withheld to the appropriate taxing authority or its designated agent. (b) The Depositary shall comply with any direction received from the Corporation with respect to the application of such requirements to particular payments or holders or in other particular circumstances, and may for purposes of this Agreement rely on any such direction in accordance with the provisions of Section 5.03 hereof. -36- (c) The Depositary shall maintain all appropriate records documenting compliance with such requirements, and shall make such records available on request to the Corporation or to its authorized representatives. ARTICLE VI Amendment and Termination SECTION 6.01. Amendment. The form of the Receipts and any provision of this Deposit Agreement may at any time and from time to time be amended by agreement between the Corporation 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 Receipts evidencing at least a majority of the Depositary Shares then outstanding. Every holder of an outstanding Receipt at the time any such amendment becomes effective, or any transferee of such holder, shall be deemed, by continuing to hold such Receipt or by reason of the acquisition thereof, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. SECTION 6.02. Termination. This Agreement may be terminated by the Corporation or the Depositary only after (i) all outstanding Depositary Shares shall have been redeemed pursuant to Section 2.03 hereof or (ii) there shall -37- have been made a final distribution in respect of the Stock in connection with any liquidation, dissolution or winding up of the Corporation and such distribution shall have been distributed to the holders of Receipts evidencing the Depositary Shares pursuant to Section 4.01 or 4.02 hereof, as applicable. Upon the termination of this Deposit Agreement, the Corporation 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 hereof. 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 -38- 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 Corporation 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 telegram, telex or telecopier confirmed by letter, addressed to the Corporation at 280 Park Avenue, New York, New York 10017, to the attention of the Office of the Secretary, or at any other address of which the Corporation shall have notified the Depositary in writing. Any and all notices to be given to the Depositary hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telegram, telex or telecopier confirmed by letter, addressed to the Depositary at the Depositary's Office, at 77 Water Street, New York, New York 10005, or at any other address of which the Depositary shall have notified the Corporation and the record holders of the Receipts 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 -39- personally delivered or sent by mail or by telegram, telex or telecopier 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 filed with the Depositary a written request that notices intended for such holder be mailed to some other address, at the address designated in such request. Delivery of a notice sent by mail or by telegram, telex or telecopier shall be deemed to be effected at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a telegram, telex or telecopier message) is deposited, postage prepaid, in a post office letter box. The Depositary or the Corporation may, however, act upon any telegram, telex or telecopier message received by it from the other or from any holder of a Receipt, notwithstanding that such telegram, telex or telecopier message 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 shall notify the Corporation of any such action. -40- SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts from time to time shall be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by and upon acceptance by them of delivery of Receipts issued in accordance with the terms of this Deposit Agreement. SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary's Agents, if any, 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 7.09. Headings. The headings of articles and sections in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as a part of this Deposit Agreement or the Receipts or to have any -41- bearing upon the meaning or interpretation of any provision contained herein or in the Receipts. IN WITNESS WHEREOF, the Corporation and the Depositary have duly executed this Deposit 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. BANKERS TRUST NEW YORK CORPORATION Attested by by __________________________________________________ Name: Title: [SEAL] HARRIS TRUST COMPANY OF NEW YORK, as Depositary, Attested by by __________________________________________________ Name: Title: [SEAL] -42- Exhibit A [FORM OF FACE OF RECEIPT] TEMPORARY RECEIPT - Exchangeable for Definitive Engraved Receipt When Ready for Delivery NUMBER DEPOSITARY SHARES CERTIFICATE FOR NOT MORE THAN 60,000 DEPOSITARY SHARES TDR DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING ADJUSTABLE RATE CUMULATIVE PREFERRED STOCK, SERIES R ($2,500 LIQUIDATION PREFERENCE) OF BANKERS TRUST NEW YORK CORPORATION CUSIP ______ INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK SEE REVERSE FOR CERTIFICATE TRANSFERABLE IN CHICAGO, IL OR NEW YORK, NY CERTAIN DEFINITIONS HARRIS TRUST COMPANY OF NEW YORK, as Depositary (the "Depositary"), hereby certifies that is the registered owner of DEPOSITARY SHARES ("Depositary Shares"), each representing one-hundredth (1/100th) of one share of Adjustable Rate Cumulative Preferred Stock, Series R ($2,500 Liquidation Preference) (the "Stock"), of Bankers Trust New York Corporation, a New York corporation (the "Corporation"), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement dated as of August 15, 1994 (the "Deposit Agreement"), among the Corporation, the Depositary and the holders from time to time of the Depositary Receipts described therein. 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: Harris Trust Company of New York Depositary, Registrar and Transfer Agent By Authorized Officer [FORM OF REVERSE OF RECEIPT] BANKERS TRUST NEW YORK CORPORATION BANKERS TRUST NEW YORK CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF THE SERIES R PREFERRED STOCK AND OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH THE CORPORATION IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS RECEIPT. ___________________________________ The following abbreviations when used in the inscription on the face of this receipt shall be construed as though they were written out in full according to applicable laws or regulations. TEN COM - as tenants in common UNIF GIFT MIN ACT - _______Custodian____________ (Cust) (Minor) TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors Act JT TEN - as joint tenants with right of survivorship and not as tenants in common _________________________________________________ (State) Additional abbreviations may also be used though not in the above list For value received, _______________________________ hereby sells, assigns and transfers 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 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 whatever. -----END PRIVACY-ENHANCED MESSAGE-----