FILED PURSUANT TO RULE 424(B)(5)
REGISTRATION NO. 333-13649
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED JANUARY 6, 1997)
$4,240,774,362
[MERRILL LYNCH & CO., INC. LOGO]
MERRILL LYNCH & CO., INC.
MEDIUM-TERM NOTES, SERIES B
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
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Merrill Lynch & Co., Inc. (the "Company") may offer from time to time up to
$4,240,774,362 aggregate principal amount (except that with respect to Notes
sold at a discount, the initial offering price will be used), or the equivalent
thereof in one or more foreign currencies or currency units, of its Medium-Term
Notes, Series B (the "Notes"). Each Note will mature on a day nine months or
more from the date of issue, as selected by the purchaser and agreed to by the
Company, and may be subject to redemption by the Company or repayment at the
option of the Holder thereof, in each case, in whole or in part, prior to its
Stated Maturity, as set forth therein and specified in a pricing supplement
hereto (each, a "Pricing Supplement").
The interest rate, if any, or the formula for the determination of any such
interest rate, applicable to each Note and other variable terms of the Notes as
described herein will be established by the Company at the date of issue of such
Note and will be set forth therein and specified in a Pricing Supplement.
Interest rates, interest rate formulae and such other variable terms are subject
to change by the Company, but no change will affect any Note already issued or
as to which an offer to purchase has been accepted by the Company. Each Note
will be issued in fully registered book-entry form (a "Book-Entry Note") or
certificated form (a "Certificated Note"), as set forth in the applicable
Pricing Supplement, in denominations of $1,000 and integral multiples thereof,
unless otherwise specified in the applicable Pricing Supplement. Each Book-Entry
Note will be represented by one or more global securities ("Global Notes")
deposited with or on behalf of The Depository Trust Company (or such other
depository as is identified in an applicable Pricing Supplement) (the
"Depository") and registered in the name of the Depository's nominee. Beneficial
interests in Book-Entry Notes will be shown on, and transfers thereof will be
effected only through, records maintained by the Depository (with respect to its
participants) and the Depository's participants (with respect to Beneficial
Owners). Beneficial Owners of the Book-Entry Notes will not have the right to
receive physical certificates evidencing their ownership except under the
limited circumstances described herein.
Unless otherwise specified in an applicable Pricing Supplement, the Notes
will bear interest at fixed rates (the "Fixed Rate Notes") or at floating rates
(the "Floating Rate Notes"). The applicable Pricing Supplement will specify
whether a Floating Rate Note is a Floating Rate/Fixed Rate Note, Inverse
Floating Rate Note or Regular Floating Rate Note and whether its rate of
interest is determined by reference to one or more of the CD Rate, the CMT Rate,
the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the Federal
Funds Rate, LIBOR, the Prime Rate or the Treasury Rate (each, an "Interest Rate
Basis"), or any other interest rate basis or formula, as adjusted by any Spread
and/or Spread Multiplier and will specify such other terms applicable to such
Note. Interest rates offered by the Company with respect to the Notes may differ
depending upon the aggregate principal amount of Notes subject to purchase in
any single transaction. See "Description of Notes."
SEE "RISK FACTORS" ON PAGE S-2 FOR A DISCUSSION OF CERTAIN RISKS THAT SHOULD
BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE NOTES OFFERED HEREBY.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT, THE PROSPECTUS OR ANY SUPPLEMENT
HERETO. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
PRICE TO AGENT'S DISCOUNTS AND PROCEEDS TO
PUBLIC(1) COMMISSIONS(1)(2) COMPANY(1)(3)
Per Note........................ 100% .125%--.750% 99.875%--99.250%
Total(4)........................ $4,240,774,362 $5,300,968--$31,805,808 $4,235,473,394--$4,208,968,554
(1) Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Agent") will purchase the Notes, as principal, from the Company, for resale
to investors and other purchasers at varying prices relating to prevailing
market prices at the time of resale as determined by the Agent, or, if so
specified in an applicable Pricing Supplement, for resale at a fixed public
offering price. Unless otherwise specified in an applicable Pricing
Supplement, any Note sold to the Agent as principal will be purchased by
such Agent at a price equal to 100% of the principal amount thereof less a
percentage of the principal amount equal to the commission applicable to an
agency sale (as described below) of a Note of identical maturity. If agreed
to by the Company and the Agent, the Agent may utilize their reasonable
efforts on an agency basis to solicit offers to purchase the Notes at 100%
of the principal amount thereof, unless otherwise specified in an applicable
Pricing Supplement. The Company will pay a commission to an Agent, ranging
from .125% to .750% (or, with respect to Notes for which the Stated Maturity
is in excess of 30 years, such commission as shall be agreed upon by the
Company and the related Agent at the time of sale) of the principal amount
of a Note, depending upon its Stated Maturity, sold through such Agent.
(2) The Company has agreed to indemnify the Agent against, and to provide
contribution with respect to, certain liabilities, including liabilities
under the Securities Act of 1933, as amended. See "Plan of Distribution."
(3) Before deducting expenses payable by the Company.
(4) Or the equivalent thereof in one or more foreign or composite currencies.
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The Notes are being offered on a continuing basis by the Company through the
Agent. Unless otherwise specified in an applicable Pricing Supplement, the Notes
will not be listed on any securities exchange and there can be no assurance that
the Notes offered by this Prospectus Supplement will be sold or that there will
be a secondary market for the Notes. The Company reserves the right to cancel or
modify the offer made hereby without notice. The Company or the Agent, if it
solicits the offer, may reject any offer to purchase Notes in whole or in part.
See "Plan of Distribution."
This Prospectus Supplement and the accompanying Prospectus may be used by the
Agent, a wholly-owned subsidiary of the Company, in connection with offers and
sales related to market-making transactions in the Notes. The Agent may act as
principal or agent in such transactions.
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MERRILL LYNCH & CO.
-------------------
The date of this Prospectus Supplement is January 6, 1997.
IN CONNECTION WITH ANY OFFERING OF NOTES OFFERED TO THE PUBLIC ON A FIXED
PRICE BASIS (AS INDICATED IN THE APPLICABLE PRICING SUPPLEMENT), THE AGENT
(ACTING AS PRINCIPAL) MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICE OF SUCH NOTES AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE COMMISSIONER
OF INSURANCE FOR THE STATE OF NORTH CAROLINA, NOR HAS THE COMMISSIONER OF
INSURANCE RULED UPON THE ACCURACY OR THE ADEQUACY OF THIS DOCUMENT.
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RISK FACTORS
This Prospectus Supplement does not describe all of the risks of an
investment in Notes that result from such Notes being denominated or payable in
or determined by reference to a currency or composite currency other than United
States dollars or to one or more interest rate, currency or other indices or
formulas. The Company and the Agent disclaim any responsibility to advise
prospective investors of such risks as they exist at the date of this Prospectus
Supplement or as they change from time to time. Prospective investors should
consult their own financial and legal advisors as to the risks entailed by an
investment in such Notes and the suitability of investing in such Notes in light
of their circumstances. Such Notes are not an appropriate investment for
investors who are unsophisticated with respect to foreign currency transactions
or transactions involving the applicable interest rate index or currency index
or other indices or formulas. Prospective investors should carefully consider,
among other factors, the matters described below.
STRUCTURE RISKS
An investment in Notes indexed, as to principal, premium, if any, and/or
interest, if any, to one or more currencies or composite currencies (including
exchange rates and swap indices between currencies or composite currencies),
commodities, interest rates or other indices or formulas, either directly or
inversely, entails significant risks that are not associated with similar
investments in a conventional fixed rate or floating rate debt security. Such
risks include, without limitation, the possibility that such indices or formulas
may be subject to significant changes, that no interest will be payable in
respect of such Notes or that the resulting interest rate will be less than that
payable on a conventional fixed rate or floating rate debt security issued by
the Company at the same time, that the repayment of principal and/or premium, if
any, can occur at times other than that expected by the investor, and that the
investor could lose all or a substantial portion of principal and/or premium, if
any, payable on the Maturity Date (as defined under "Description of
Notes--General"). Such risks depend on a number of interrelated factors,
including economic, financial and political events, over which the Company has
no control. Additionally, if the formula used to determine the amount of
principal, premium, if any, and/or interest, if any, payable with respect to
such Notes contains a multiplier or leverage factor, the effect of any change in
the applicable index or indices or formula or formulas will be magnified. In
recent years, values of certain indices and formulas have been highly volatile
and such volatility may be expected to continue in the future. Fluctuations in
the value of any particular index or formula that have occurred in the past are
not necessarily indicative, however, of fluctuations that may occur in the
future.
Any optional redemption feature of Notes might affect the market value of
such Notes. Since the Company may be expected to redeem such Notes when
prevailing interest rates are relatively low, an
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investor might not be able to reinvest the redemption proceeds at an effective
interest rate as high as the interest rate on such Notes.
The Notes will not have an established trading market when issued, and there
can be no assurance of a secondary market for the Notes or the continued
liquidity of such market if one develops. See "Plan of Distribution."
The secondary market, if any, for such Notes will be affected by a number of
factors independent of the creditworthiness of the Company and the value of the
applicable index or indices or formula or formulas, including the complexity and
volatility of each such index or formula, the method of calculating the
principal, premium, if any, and/or interest, if any, in respect of such Notes,
the time remaining to the maturity of such Notes, the outstanding amount of such
Notes, any redemption features of such Notes, the amount of other debt
securities linked to such index or formula and the level, direction and
volatility of market interest rates generally. Such factors also will affect the
market value of such Notes. In addition, certain Notes may be designed for
specific investment objectives or strategies and, therefore, may have a more
limited secondary market and experience more price volatility than conventional
debt securities. Investors may not be able to sell such Notes readily or at
prices that will enable investors to realize their anticipated yield. No
investor should purchase Notes unless such investor understands and is able to
bear the risk that such Notes may not be readily saleable, that the value of
such Notes will fluctuate over time and that such fluctuations may be
significant.
CREDIT RATINGS
Any credit ratings assigned to the Company's medium-term note program may
not reflect the potential impact of all risks related to structure and other
factors on the market value of the Notes. Accordingly, prospective investors
should consult their own financial and legal advisors as to the risks entailed
by an investment in the Notes and the suitability of such Notes in light of
their particular circumstances.
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DESCRIPTION OF NOTES
The Notes will be issued as a series of debt securities under a senior
indenture, dated as of October 1, 1993 (the "1993 Indenture"), between the
Company and The Chase Manhattan Bank (successor by merger to The Chase Manhattan
Bank, N.A.), as trustee (as used in this Prospectus Supplement, the "Trustee").
The term "Senior Debt Securities," as used in this Prospectus Supplement, refers
to all securities issued and issuable from time to time under the Senior
Indentures (as defined in the accompanying Prospectus) and includes the Notes.
The Senior Debt Securities and the Trustee are more fully described in the
accompanying Prospectus. The following summary of certain provisions of the
Notes and of the 1993 Indenture does not purport to be complete and is qualified
in its entirety by reference to the 1993 Indenture, a copy of which has been
filed as an exhibit to the Registration Statement of which this Prospectus
Supplement and the accompanying Prospectus are a part. Capitalized terms used
but not defined herein have the meanings given to them in the 1993 Indenture or
the Notes, as the case may be.
THE FOLLOWING DESCRIPTION OF NOTES WILL APPLY UNLESS OTHERWISE SPECIFIED IN
AN APPLICABLE PRICING SUPPLEMENT.
GENERAL
All Senior Debt Securities, including the Notes, issued and to be issued
under the Senior Indentures will be unsecured general obligations of the Company
and will rank pari passu with all other unsecured and unsubordinated
indebtedness of the Company from time to time outstanding. However, because the
Company is a holding company, the right of the Company, and hence the right of
creditors of the Company (including the Holders of the Notes), to participate in
any distribution of the assets of any subsidiary upon its liquidation or
reorganization or otherwise is necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that claims of the Company
itself as a creditor of the subsidiary may be recognized. In addition,
dividends, loans and advances from certain subsidiaries, including Merrill
Lynch, Pierce, Fenner & Smith Incorporated, to the Company are restricted by net
capital requirements under the Securities Exchange Act of 1934, as amended, (the
"Exchange Act") and under rules of certain exchanges and other regulatory
bodies.
The Senior Indentures do not limit the aggregate principal amount of Senior
Debt Securities which may be issued thereunder and Senior Debt Securities may be
issued thereunder from time to time as a single series or in two or more
separate series up to the aggregate principal amount from time to time
authorized by the Company for each series. The Company may, from time to time,
without the consent of the Holders of the Notes, provide for the issuance of
Notes or other Senior Debt Securities under the Senior Indentures in addition to
the $4,240,774,362 aggregate principal amount of Notes offered hereby. As of
September 27, 1996, the Company had issued and outstanding Notes in an aggregate
principal amount of approximately $8,091,420,000. The aggregate principal amount
of Notes which may be offered hereby may be reduced by the issuance of other
securities of the Company pursuant to the registration statement of which this
Prospectus Supplement and the accompanying Prospectus are a part.
The Notes will be offered on a continuing basis and will mature on a day
nine months or more from the date of issue, as selected by the purchaser and
agreed to by the Company. Interest-bearing Notes will either be Fixed Rate Notes
or Floating Rate Notes as specified in the applicable Pricing Supplement. Notes
may be issued at significant discounts from their principal amount payable at
Stated Maturity (or on any prior date on which the principal or an installment
of principal of a Note becomes due and payable, whether by the declaration of
acceleration, call for redemption at the option of the Company, repayment at the
option of the Holder or otherwise) (each such date, a "Maturity"), and some
Notes may not bear interest.
Unless otherwise indicated in a Note and in the applicable Pricing
Supplement, the Notes will be denominated in United States dollars and payments
of principal of, and premium, if any, and interest on, the Notes will be made in
United States dollars. If any of the Notes to be denominated other than in
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United States dollars or if the principal of, and interest on, the Notes, and
any premium provided for in any Note is to be payable in or by reference to a
currency (or in composite currency units or in amounts determined by reference
to one or more currencies) other than that in which such Note is denominated,
provisions with respect thereto will be set forth in such Note and in the
applicable Pricing Supplement.
Interest rates, interest rate formulae and other variable terms of the Notes
are subject to change by the Company from time to time, but no such change will
affect any Note already issued or as to which an offer to purchase has been
accepted by the Company.
Each Note will be issued in fully registered book-entry form (a "Book-Entry
Note") or certificated form (a "Certificated Note"), in denominations of $1,000
and integral multiples thereof, unless otherwise specified in the applicable
Pricing Supplement. Book-Entry Notes may be transferred or exchanged only
through a participating member of The Depository Trust Company (or such other
depository as is identified in an applicable Pricing Supplement) (the
"Depository"). See "Book-Entry Notes." Registration of transfer of Certificated
Notes will be made at the Corporate Trust Office of the Trustee. No service
charge will be made by the Company, the Trustee or the Security Registrar for
any such registration of transfer or exchange of Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (other than exchanges pursuant to the
1993 Indenture, not involving any transfer).
Payments of principal of, and premium and interest, if any, on Book-Entry
Notes will be made by the Company through the Trustee to the Depository or its
nominee. See "Book-Entry Notes." Unless otherwise specified in the applicable
Pricing Supplement, a Beneficial Owner of Book-Entry Notes denominated in a
currency other than United States dollars (a "Specified Currency") electing to
receive payments of principal or any premium or interest in such Specified
Currency must notify the Participant through which its interest is held on or
prior to the applicable Record Date, in the case of a payment of interest, and
on or prior to the sixteenth day, whether or not a Business Day (as defined
below), prior to its Stated Maturity, in the case of principal or premium, of
such Beneficial Owner's election to receive all or a portion of such payment in
a Specified Currency. Such Participant must notify the Depository of such
election on or prior to the third Business Day after such Record Date. The
Depository will notify the Paying Agent of such election on or prior to the
fifth Business Day after such Record Date. If complete instructions are received
by the Participant and forwarded by the Participant to the Depository, and by
the Depository to the Paying Agent, on or prior to such dates, the Beneficial
Owner will receive payments in the Specified Currency.
In the case of Certificated Notes, payment of principal or premium, if any,
at the Maturity of each Certificated Note will be made in immediately available
funds upon presentation of the Certificated Note at the Corporate Trust Office
of the Trustee in the Borough of Manhattan, The City of New York, or at such
other place as the Company may designate. Payment of interest due at Maturity
will be made to the person to whom payment of the principal of the Certificated
Note shall be made. Payment of interest due on Certificated Notes other than at
Maturity will be made at the Corporate Trust Office of the Trustee or, at the
option of the Company, may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Notwithstanding the foregoing, a Holder of $1,000,000 or more in aggregate
principal amount of Certificated Notes (whether having identical or different
terms and provisions) having the same Interest Payment Dates will, at the option
of the Company, be entitled to receive interest payments (other than at
Maturity) by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee not less than
15 days prior to the applicable Interest Payment Date. Any such wire
instructions received by the Trustee shall remain in effect until revoked by
such Holder.
TRANSACTION AMOUNT
Interest rates offered by the Company with respect to the Notes may differ
depending upon, among other things, the aggregate principal amount of Notes
purchased in any transaction. Notes with similar variable terms but different
interest rates may be offered concurrently at any time. The Company may
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also concurrently offer Notes having different variable terms (as are described
herein or in any Prospectus Supplement) to different investors.
REDEMPTION AT THE OPTION OF THE COMPANY
The Notes will not be subject to any sinking fund. The Notes will be
redeemable at the option of the Company prior to their Stated Maturity only if
an Initial Redemption Date is specified therein and in the applicable Pricing
Supplement. If so indicated in the applicable Pricing Supplement, Notes will be
subject to redemption at the option of the Company on any date on and after the
applicable Initial Redemption Date specified in such Pricing Supplement. On and
after the Initial Redemption Date, if any, the related Note may be redeemed at
any time in whole or from time to time in part (in increments of $1,000,
provided that any remaining principal amount shall be an authorized denomination
of the applicable Note) at the option of the Company at the applicable
Redemption Price (as defined below) together with interest thereon payable to
the Redemption Date, on notice given, unless otherwise specified in the
applicable Pricing Supplement, not more than 60 nor less than 30 days prior to
the Redemption Date. "Redemption Price" with respect to a Note will initially
mean a percentage, the Initial Redemption Percentage, of the principal amount of
such Note to be redeemed specified in the applicable Pricing Supplement and
shall decline at each anniversary of the Initial Redemption Date by a
percentage, the Annual Redemption Percentage Reduction, if any, specified in the
applicable Pricing Supplement, of the principal amount to be redeemed until the
Redemption Price is 100% of such principal amount.
REPAYMENT AT THE OPTION OF THE HOLDER
If so indicated in an applicable Pricing Supplement, Notes will be repayable
by the Company in whole or in part at the option of the Holders thereof on their
respective Optional Repayment Dates specified in such Pricing Supplement. If no
Optional Repayment Date is indicated with respect to a Note, such Note will not
be repayable at the option of the Holder prior to its Stated Maturity. Any
repayment in part will be in an amount equal to $1,000 or integral multiples
thereof, provided that any remaining principal amount shall be an authorized
denomination of the applicable Note. The repurchase price for any Note so
repurchased will be 100% of the principal amount to be repaid, together with
interest thereon payable to the date of repayment. For any Note to be repaid,
such Note must be received, together with the form thereon entitled "Option to
Elect Repayment" duly completed, by the Trustee at its office maintained for
such purpose in the Borough of Manhattan, The City of New York, currently the
Corporate Trust Office of the Trustee, not more than 60 nor less than 30 days
prior to the Optimal Repayment Date. Notices of elections from a Holder to
exercise the repayment option must be received by the Trustee by 5:00 p.m., New
York City time, on the last day for giving such notice. Exercise of such
repayment option by the Holder will be irrevocable.
While the Book-Entry Notes are represented by Global Notes held by or on
behalf of the Depository, and registered in the name of the Depository or the
Depository's nominee, the option for repayment may be exercised by the
applicable Participant (as defined below under "Book-Entry Notes") on behalf of
the Beneficial Owners (as defined below) of such Book-Entry Notes by delivering
a written notice to the Trustee at the Corporate Trust Office, not more than 60
nor less than 30 days prior to the Optional Repayment Date. Notices of elections
from Participants on behalf of Beneficial Owners of the Book-Entry Notes to
exercise their option to have the Book-Entry Notes repaid must be received by
the Trustee by 5:00 p.m., New York City time, on the last day for giving such
notice. In order to ensure that a notice is received by the Trustee on a
particular day, the Beneficial Owner of Book-Entry Notes must so direct the
applicable Participant before such Participant's cut-off time for accepting
instructions for that day. Different firms may have different cut-off times for
accepting instructions from their customers. Accordingly, Beneficial Owners of
Book-Entry Notes should consult the Participants through which they own their
interest in the Book-Entry Notes for the cut-off times for such Participants.
All notices shall be executed by a duly authorized officer of such Participant
(with signature guaranteed) and shall be irrevocable. In addition, such
Beneficial Owners of Book-Entry
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Notes shall effect delivery of such Book-Entry Notes at the time such notices of
election are given to the Depository by causing the Participant to transfer such
Beneficial Owner's interest in the Book-Entry Notes, on the Depository's
records, to the Trustee. Conveyance of notices and other communications by the
Depository to Participants, by Participants to Indirect Participants (as defined
below) and by Participants and Indirect Participants to Beneficial Owners of the
Book-Entry Notes will be governed by agreements among them, subject to any
statutory or regulatory requirements as may be in effect from time to time.
The Company may at any time purchase Notes at any price or prices in the
open market or otherwise. Notes so purchased by the Company may, at the
discretion of the Company, be held, resold or surrendered to the Trustee for
cancellation.
INTEREST
General
Each Note will bear interest from the date of issue at the rate per annum
or, in the case of a Floating Rate Note, pursuant to the interest rate formula
stated therein and in the applicable Pricing Supplement until the principal
thereof is paid or made available for payment. Interest will be payable in
arrears on each date specified in the applicable Pricing Supplement on which an
installment of interest is due and payable (an "Interest Payment Date") and at
Maturity. The first payment of interest on any Note originally issued between a
Regular Record Date and the related Interest Payment Date will be made on the
Interest Payment Date immediately following the next succeeding Regular Record
Date to the registered Holder on such next succeeding Regular Record Date. The
"Regular Record Date" shall be the fifteenth calendar day (whether or not a
Business Day) (as defined below) immediately preceding the related Interest
Payment Date.
Fixed Rate Notes
Unless otherwise specified in an applicable Pricing Supplement, each Fixed
Rate Note will bear interest from, and including, the date of issue, at the rate
per annum stated on the face thereof until the principal amount thereof is paid
or made available for payment. Interest payments on Fixed Rate Notes will equal
the amount of interest accrued from and including the immediately preceding
Interest Payment Date in respect of which interest has been paid (or from and
including the date of issue, if no interest has been paid with respect to such
Fixed Rate Notes), to, but excluding, the related Interest Payment Date or
Maturity, as the case may be. Unless otherwise specified in the applicable
Pricing Supplement, interest on Fixed Rate Notes will be computed on the basis
of a 360-day year of twelve 30-day months.
Unless otherwise specified in the applicable Pricing Supplement, interest on
Fixed Rate Notes will be payable semiannually on May 15 and November 15 of each
year and at Maturity. If any Interest Payment Date or the Maturity of a Fixed
Rate Note falls on a day that is not a Business Day, the related payment of
principal, premium, if any, or interest will be made on the next succeeding
Business Day as if made on the date such payment was due, and no interest will
accrue on the amount so payable for the period from and after such Interest
Payment Date or Maturity, as the case may be.
Floating Rate Notes
Floating Rate Notes will be issued as described below. Each applicable
Pricing Supplement will specify certain terms with respect to which such
Floating Rate Note is being delivered, including: whether such Floating Rate
Note is a "Regular Floating Rate Note" (as defined below), an "Inverse Floating
Rate Note" (as defined below) or a "Floating Rate/Fixed Rate Note" (as defined
below); the Interest Rate Basis or Bases, Initial Interest Rate, Interest Reset
Dates, Interest Payment Dates, Index Maturity, Maximum Interest Rate and Minimum
Interest Rate, if any, and the Spread and/or Spread Multiplier, if any, and, if
one or more of the specified Interest Rate Bases is LIBOR, the Index Currency,
the Index Maturity and the Designated LIBOR Page or, if one or more of the
specified
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Interest Rate Bases is the CMT Rate, the Designated CMT Telerate Page and
Designated CMT Maturity Index, as described below.
The interest rate borne by the Floating Rate Notes will be determined as
follows:
(i) Unless such Floating Rate Note is designated as a Floating Rate/Fixed
Rate Note, an Inverse Floating Rate Note or as having an Addendum attached or as
having "Other Provisions" apply relating to a different interest rate formula,
such Floating Rate Note will be designated a "Regular Floating Rate Note" and,
except as described below or in an applicable Pricing Supplement, bear interest
at the rate determined by reference to the applicable Interest Rate Basis or
Bases (i) plus or minus the applicable Spread, if any, and/or (ii) multiplied by
the applicable Spread Multiplier, if any. Commencing on the first Interest Reset
Date, the rate at which interest on such Regular Floating Rate Note shall be
payable shall be reset as of each Interest Reset Date; provided, however, that
the interest rate in effect for the period from the Original Issue Date to the
first Interest Reset Date will be the Initial Interest Rate.
(ii) If such Floating Rate Note is designated as a "Floating Rate/Fixed Rate
Note", then such Floating Rate Note will bear interest at the rate determined by
reference to the applicable Interest Rate Basis or Bases (i) plus or minus the
applicable Spread, if any, and/or (ii) multiplied by the applicable Spread
Multiplier, if any. Commencing on the first Interest Reset Date, the rate at
which interest on such Floating Rate/Fixed Rate Note shall be payable shall be
reset as of each Interest Reset Date; provided, however, that (i) the interest
rate in effect for the period from the Original Issue Date to the first Interest
Reset Date will be the Initial Interest Rate, and (ii) the interest rate in
effect commencing on, and including, the Fixed Rate Commencement Date to
Maturity shall be the Fixed Interest Rate, if such rate is specified in the
applicable Pricing Supplement, or if no such Fixed Interest Rate is so
specified, the interest rate in effect thereon on the day immediately preceding
the Fixed Rate Commencement Date.
(iii) If such Floating Rate Note is designated as an "Inverse Floating Rate
Note," then, except as described below, such Floating Rate Note will bear
interest equal to the Fixed Interest Rate specified in the related Pricing
Supplement minus the rate determined by reference to the applicable Interest
Rate Basis or Bases (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any; provided, however, that
unless otherwise specified in the applicable Pricing Supplement, the interest
rate thereon will not be less than zero percent. Commencing on the first
Interest Reset Date, the rate at which interest on such Inverse Floating Rate
Note is payable shall be reset as of each Interest Reset Date; provided,
however, that the interest rate in effect for the period from the Original Issue
Date to the first Interest Reset Date will be the Initial Interest Rate.
Notwithstanding the foregoing, if such Floating Rate Note is designated as
having an Addendum attached or as having "Other Provisions" apply as specified
on the face thereof, such Floating Rate Note shall bear interest in accordance
with the terms described in such Addendum or specified under "Other Provisions"
and the applicable Pricing Supplement.
Each Interest Rate Basis shall be the rate determined in accordance with the
applicable provisions below. Except as set forth above, the interest rate in
effect on each day shall be (a) if such day is an Interest Reset Date, the
interest rate determined as of the Interest Determination Date (as defined
below) immediately preceding such Interest Reset Date or (b) if such day is not
an Interest Reset Date, the interest rate determined as of the Interest
Determination Date immediately preceding the applicable Interest Reset Date.
Interest on Floating Rate Notes will be determined by reference to an
"Interest Rate Basis," which may be one or more of (i) the "CD Rate," (ii) the
"CMT Rate," (iii) the "Commercial Paper Rate," (iv) the "Eleventh District Cost
of Funds Rate," (v) the "Federal Funds Rate," (vi) "LIBOR," (vii) the "Prime
Rate," (viii) the "Treasury Rate," or (ix) such other Interest Rate Basis or
interest rate formula as may be set forth in the applicable Pricing Supplement.
In addition, a Floating Rate Note may bear interest in respect of two or more
Interest Rate Bases.
S-8
The "Spread" is the number of basis points to be added to or subtracted from
the related Interest Rate Basis or Bases applicable to such Floating Rate Note.
The "Spread Multiplier" is the percentage of the related Interest Rate Basis or
Bases applicable to such Floating Rate Note by which such Interest Rate Basis or
Bases will be multiplied to determine the applicable interest rate on such
Floating Rate Note. The "Index Maturity" is the period to maturity of the
instrument or obligation with respect to which the Interest Rate Basis or Bases
will be calculated.
Each applicable Pricing Supplement will specify the dates on which such
Interest Rate will be reset (each, an "Interest Reset Date"). Unless otherwise
specified in the applicable Pricing Supplement, the Interest Reset Date will be,
in the case of Floating Rate Notes which reset: (i) daily, each Business Day;
(ii) weekly, the Wednesday of each week (with the exception of weekly reset
Treasury Rate Notes which will reset the Tuesday of each week, except as
specified below); (iii) monthly, the third Wednesday of each month (with the
exception of monthly reset Eleventh District Cost of Funds Rate Notes, which
will reset on the first calendar day of the month); (iv) quarterly, the third
Wednesday of March, June, September and December of each year; (v) semiannually,
the third Wednesday of the two months specified in the applicable Pricing
Supplement; and (vi) annually, the third Wednesday of the month specified in the
applicable Pricing Supplement; provided, however, that with respect to Floating
Rate/Fixed Rate Notes, the fixed rate of interest in effect for the period from
the Fixed Rate Commencement Date until Maturity shall be the Fixed Interest Rate
or the interest rate in effect on the day immediately preceding the Fixed Rate
Commencement Date, as specified in the applicable Pricing Supplement. If any
Interest Reset Date for any Floating Rate Note would otherwise be a day that is
not a Business Day, such Interest Reset Date will be postponed to the next
succeeding day that is a Business Day, except that in the case of a Floating
Rate Note as to which LIBOR is an applicable Interest Rate Basis, if such
Business Day falls in the next succeeding calendar month, such Interest Reset
Date will be the immediately preceding Business Day. In addition, in the case of
a Floating Rate Note for which the Treasury Rate is an applicable Interest Rate
Basis and the Interest Determination Date would otherwise fall on an Interest
Reset Date, then such Interest Reset Date will be postponed to the next
succeeding Business Day. As used herein, "Business Day" means any day other than
a Saturday or Sunday or any other day on which banks in The City of New York are
generally authorized or obligated by law, regulation or executive order to close
and, with respect to Notes as to which LIBOR is an applicable Interest Rate
Basis, is also a London Business Day. As used herein, "London Business Day"
means any day (a) if the Index Currency (as defined below) is other than the
European Currency Unit ("ECU"), on which dealings in deposits in such Index
Currency are transacted in the London interbank market or (b) if the Index
Currency is the ECU, any day that does not appear as an ECU non-settlement day
on the display designated as "ISDE" on the Reuter Monitor Money Rates Service
(or a day so designated by the ECU Banking Association) or, if ECU
non-settlement days do not appear on that page (and are not so designated), is
not a day on which payments in ECU cannot be settled in the international
interbank market.
A Floating Rate Note may also have either or both of the following: (i) a
maximum numerical limitation, or ceiling, on the rate at which interest may
accrue during any interest period (a "Maximum Interest Rate"), and (ii) a
minimum numerical limitation, or floor, on the rate at which interest may accrue
during any period (a "Minimum Interest Rate"). The Indenture provides that the
Indenture and the Securities will be governed by and construed in accordance
with the laws of the State of New York. Under present New York law, the maximum
rate of interest is 25% per annum on a simple interest basis. This limit may not
apply to Securities in which $2,500,000 or more has been invested. While the
Company believes that New York law would be given effect by a state or federal
court sitting outside of New York, state laws frequently regulate the amount of
interest that may be charged to and paid by a borrower (including, in some
cases, corporate borrowers). It is suggested that prospective investors consult
their personal advisors with respect to the applicability of such laws. The
Company has covenanted for the benefit of the beneficial owners of the
Securities, to the extent permitted by law, not to claim voluntarily the
benefits of any laws concerning usurious rates of interest against a beneficial
owner of the Securities.
S-9
Each applicable Pricing Supplement will specify the dates on which interest
will be payable (each an "Interest Payment Date"). Each Floating Rate Note will
bear interest from the date of issue at the rates specified therein until the
principal thereof is paid or otherwise made available for payment. Unless
otherwise specified in the applicable Pricing Supplement and, except as provided
below, interest will be payable in the case of Floating Rate Notes which reset:
(i) daily, weekly or monthly, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December of each year as specified
in the applicable Pricing Supplement; (ii) quarterly, on the third Wednesday of
March, June, September and December of each year; (iii) semiannually, on the
third Wednesday of the two months of each year specified in the applicable
Pricing Supplement; and (iv) annually, on the third Wednesday of the month of
each year specified in the applicable Pricing Supplement and, in each case, at
Maturity. If any Interest Payment Date for any Floating Rate Note (other than an
Interest Payment Date at Maturity) would otherwise be a day that is not a
Business Day, such Interest Payment Date will be postponed to the next
succeeding day that is a Business Day except that in the case of a Floating Rate
Note as to which LIBOR is an applicable Interest Rate Basis, if such Business
Day falls in the next succeeding calendar month, such Interest Payment Date will
be the immediately preceding Business Day. If the Maturity of a Floating Rate
Note falls on a day that is not a Business Day, the payment of principal,
premium, if any, and interest will be made on the next succeeding Business Day,
and no interest on such payment will accrue for the period from and after such
Maturity.
All percentages resulting from any calculation on Floating Rate Notes will
be rounded to the nearest one hundred-thousandth of a percentage point, with
five one millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all dollar amounts
used in or resulting from such calculation on Floating Rate Notes will be
rounded to the nearest cent (with one-half cent being rounded upward).
Interest payments on Floating Rate Notes will equal the amount of interest
accrued from and including the immediately preceding Interest Payment Date in
respect of which interest has been paid (or from and including the date of
issue, if no interest has been paid with respect to such Floating Rate Notes),
to but excluding the related Interest Payment Date or Maturity.
With respect to each Floating Rate Note, accrued interest is calculated by
multiplying its face amount by an accrued interest factor. Such accrued interest
factor is computed by adding the interest factor calculated for each day in the
period for which accrued interest is being calculated. The interest factor for
each such day will be computed by dividing the interest rate applicable to such
day by 360, in the case of Notes for which the Interest Rate Basis is the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate, or by the actual number of days in
the year in the case of Notes for which the Interest Rate Basis is the CMT Rate
or the Treasury Rate. The interest factor for Notes for which the interest rate
is calculated with reference to two or more Interest Rate Bases will be
calculated in each period in the same manner as if only one of the applicable
Interest Rate Bases applied.
The interest rate applicable to each interest reset period commencing on the
Interest Reset Date with respect to such interest reset period will be the rate
determined as of the applicable "Interest Determination Date." The Interest
Determination Date with respect to the CD Rate, the CMT Rate and the Commercial
Paper Rate will be the second Business Day preceding each Interest Reset Date
for the related Note; the Interest Determination Date with respect to the
Federal Funds Rate and the Prime Rate, unless otherwise specified in the
applicable Pricing Supplement, will be the Business Day immediately preceding
each Interest Reset Date; the Interest Determination Date with respect to the
Eleventh District Cost of Funds Rate will be the last working day of the month
immediately preceding each Interest Reset Date on which the Federal Home Loan
Bank of San Francisco (the "FHLB of San Francisco") publishes the Index (as
defined below); the Interest Determination Date with respect to LIBOR will be
the second London Business Day preceding each Interest Reset Date. With respect
to the Treasury Rate, unless otherwise specified in an applicable Pricing
Supplement, the Interest Determination Date will be the day in the week in which
the related Interest Reset Date falls on which
S-10
day Treasury Bills (as defined below) are normally auctioned (Treasury Bills are
normally sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); provided,
however, that if an auction is held on the Friday of the week preceding the
related Interest Reset Date, the related Interest Determination Date will be
such preceding Friday; and provided, further, that if an auction falls on any
Interest Reset Date, then the related Interest Reset Date will instead be the
first Business Day following such auction. Unless otherwise specified in the
applicable Pricing Supplement, the Interest Determination Date pertaining to a
Floating Rate Note the interest rate of which is determined with reference to
two or more Interest Rate Bases will be the latest Business Day which is at
least two Business Days prior to such Interest Reset Date for such Floating Rate
Note on which each Interest Reset Basis is determinable. Each Interest Rate
Basis will be determined on such date, and the applicable interest rate will
take effect on the related Interest Reset Date.
Unless otherwise provided in the applicable Pricing Supplement, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, a subsidiary of the Company, will be
the "Calculation Agent." Upon the request of the Holder of any Floating Rate
Note, the Calculation Agent will provide the interest rate then in effect and,
if determined, the interest rate that will become effective as a result of a
determination made for the next Interest Reset Date with respect to such
Floating Rate Note. Unless otherwise specified in the applicable Pricing
Supplement, the "Calculation Date," if applicable, pertaining to any Interest
Determination Date will be the earlier of (i) the tenth calendar day after such
Interest Determination Date, or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day preceding the applicable
Interest Payment Date or Maturity, as the case may be.
CD Rate. CD Rate Notes will bear interest at the rates (calculated with
reference to the CD Rate and the Spread and/or Spread Multiplier, if any)
specified in such CD Rate Notes and in any applicable Pricing Supplement.
"CD Rate" means, with respect to any Interest Determination Date relating to
a CD Rate Note or any Floating Rate Note for which the interest rate is
determined with reference to the CD Rate (a "CD Rate Interest Determination
Date"), the rate on such date for negotiable United States dollar certificates
of deposit having the Index Maturity specified in the applicable Pricing
Supplement as published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates" or any successor
publication ("H.15(519)") under the heading "CDs (Secondary Market)," or, if not
published by 3:00 P.M., New York City time, on the related Calculation Date, the
rate on such CD Rate Interest Determination Date for negotiable United States
dollar certificates of deposit of the Index Maturity specified in the applicable
Pricing Supplement as published by the Federal Reserve Bank of New York in its
daily statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" or any successor publication ("Composite Quotations") under the
heading "Certificates of Deposit." If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York
City time, on such CD Rate Interest Determination Date, of three leading
non-bank dealers in negotiable United States dollar certificates of deposit in
The City of New York selected by the Calculation Agent for negotiable United
States dollar certificates of deposit of major United States money market banks
with a remaining maturity closest to the Index Maturity designated in the
applicable Pricing Supplement in an amount that is representative for a single
transaction in that market at that time; provided, however, that if the dealers
so selected by the Calculation Agent are not quoting as set forth above, the CD
Rate with respect to such CD Rate Interest Determination Date will be the CD
Rate in effect on such CD Rate Interest Determination Date.
S-11
CMT Rate. CMT Rate Notes will bear interest at the rates (calculated with
reference to the CMT Rate and the Spread and/or Spread Multiplier, if any)
specified in such CMT Rate Notes and in any applicable Pricing Supplement.
"CMT Rate" means, with respect to any Interest Determination Date relating
to any Floating Rate Note for which the interest rate is determined with
reference to the CMT Rate (a "CMT Rate Interest Determination Date"), the rate
displayed on the Designated CMT Telerate Page under the caption "...Treasury
Constant Maturities...Federal Reserve Board Release H.15...Mondays Approximately
3:45 P.M.," under the column for the Designated CMT Maturity Index for (i) if
the Designated CMT Telerate Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
weekly or the monthly average, as specified in the Pricing Supplement, for the
week or the month, as applicable, ended immediately preceding the week in which
the related CMT Rate Interest Determination Date occurs. If such rate is no
longer displayed on the relevant page or is not displayed by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published or is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate of the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
such CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York (which may include the
Agent or its affiliates) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the Designated CMT
Maturity Index and a remaining term to maturity of not less than such Designated
CMT Maturity Index minus one year. If the Calculation Agent is unable to obtain
three such Treasury Note quotations, the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 P.M., New York City time, on such CMT Rate
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided, however, that if fewer than
three Reference Dealers so selected by the Calculation Agent are quoting as
mentioned herein, the CMT Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original maturity as described
in the second preceding sentence have remaining terms to maturity equally close
to the Designated CMT Maturity Index, the Calculation
S-12
Agent will obtain from five Reference Dealers quotations for the Treasury Note
with the shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page specified in the applicable Pricing Supplement (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)) for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified in the applicable Pricing Supplement, the Designated CMT
Telerate Page shall be 7052 for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of the
U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years) specified in
the applicable Pricing Supplement with respect to which the CMT Rate will be
calculated. If no such maturity is specified in the applicable Pricing
Supplement, the Designated CMT Maturity Index shall be 2 years.
Commercial Paper Rate. Commercial Paper Rate Notes will bear interest at the
rates (calculated with reference to the Commercial Paper Rate and the Spread
and/or Spread Multiplier, if any) specified in such Commercial Paper Rate Notes
and in any applicable Pricing Supplement.
"Commercial Paper Rate" means, with respect to any Interest Determination
Date relating to a Commercial Paper Rate Note or any Floating Rate Note for
which the interest rate is determined with reference to the Commercial Paper
Rate (a "Commercial Paper Rate Interest Determination Date"), the Money Market
Yield (as defined below) on such date of the rate for commercial paper having
the Index Maturity specified in the applicable Pricing Supplement as published
in H.15(519) under the heading "Commercial Paper." In the event that such rate
is not published by 3:00 P.M., New York City time, on the related Calculation
Date, then the Commercial Paper Rate will be the Money Market Yield on such
Commercial Paper Rate Interest Determination Date of the rate for commercial
paper having the Index Maturity specified in the applicable Pricing Supplement
as published in Composite Quotations under the heading "Commercial Paper" (with
an Index Maturity of one month or three months being deemed to be equivalent to
an Index Maturity of 30 days or 90 days, respectively). If by 3:00 P.M., New
York City time, on the related Calculation Date such rate is not yet published
in either H.15(519) or Composite Quotations, then the Commercial Paper Rate for
such Commercial Paper Rate Interest Determination Date will be calculated by the
Calculation Agent and will be the Money Market Yield of the arithmetic mean of
the offered rates at approximately 11:00 A.M., New York City time, on such
Commercial Paper Rate Interest Determination Date of three leading dealers of
commercial paper in The City of New York selected by the Calculation Agent for
commercial paper having the Index Maturity designated in the applicable Pricing
Supplement placed for an industrial issuer whose bond rating is "Aa", or the
equivalent, from a nationally recognized securities rating agency; provided,
however, that if the dealers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Commercial Paper Rate determined on
such Commercial Paper Rate Interest Determination Date will be the rate in
effect on such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated in
accordance with the following formula:
D x 360
----------------- x 100
Money Market Yield = 360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
S-13
Eleventh District Cost of Funds Rate. Eleventh District Cost of Funds Rate
Notes will bear interest at the rates (calculated with reference to the Eleventh
District Cost of Funds Rate and the Spread and/or Spread Multiplier, if any)
specified in such Eleventh District Cost of Funds Rate Notes and in any
applicable Pricing Supplement.
"Eleventh District Cost of Funds Rate" means, with respect to any Interest
Determination Date relating to an Eleventh District Cost of Funds Rate Note or
any Floating Rate Note for which the interest rate is determined with reference
to the Eleventh District Cost of Funds Rate (an "Eleventh District Cost of Funds
Rate Interest Determination Date"), the rate equal to the monthly weighted
average cost of funds for the calendar month preceding such Eleventh District
Cost of Funds Rate Interest Determination Date as set forth under the caption
"11th District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If such
rate does not appear on Telerate Page 7058 on any related Eleventh District Cost
of Funds Rate Interest Determination Date, the Eleventh District Cost of Funds
for such Eleventh District Cost of Funds Rate Interest Determination Date shall
be the monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month preceding the date of such announcement. If the FHLB of San Francisco
fails to announce the Index on or prior to such Eleventh District Cost of Funds
Rate Interest Determination Date for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate for such Eleventh District Cost of Funds
Rate Interest Determination Date will be the Eleventh District Cost of Funds
Rate in effect on such Eleventh District Cost of Funds Rate Interest
Determination Date.
Federal Funds Rate. Federal Funds Rate Notes will bear interest at the rates
(calculated with reference to the Federal Funds Rate and the Spread and/or
Spread Multiplier, if any) specified in such Federal Funds Rate Notes and in any
applicable Pricing Supplement.
"Federal Funds Rate" means, with respect to any Interest Determination Date
relating to a Federal Funds Rate Note or any Floating Rate Note for which the
interest rate is determined with reference to the Federal Funds Rate (a "Federal
Funds Rate Interest Determination Date"), the rate on such date for United
States dollar Federal Funds as published in H.15(519) under the heading "Federal
Funds (Effective)" or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, the Federal Funds Rate for such Federal Funds Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be the arithmetic mean of the rates for the last transaction in overnight United
States dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent prior to
9:00 A.M., New York City time on such Federal Funds Rate Interest Determination
Date; provided, however, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate with
respect to such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate in effect on such Federal Funds Rate Interest Determination
Date.
LIBOR. LIBOR Notes will bear interest at the rates (calculated with
reference to LIBOR and the Spread and/or Spread Multiplier, if any) specified in
such LIBOR Notes and in any applicable Pricing Supplement.
"LIBOR" means the rate determined by the Calculation Agent in accordance
with the following provisions:
(i) With respect to an Interest Determination Date relating to a LIBOR Note
or any Floating Rate Note for which the interest rate is determined with
reference to LIBOR (a "LIBOR Interest
S-14
Determination Date"), LIBOR will be either: (a) if "LIBOR Reuters" is specified
in the applicable Pricing Supplement, the arithmetic mean of the offered rates
(unless the specified Designated LIBOR Page (as defined below) by its terms
provides only for a single rate, in which case such single rate shall be used)
for deposits in the Index Currency (as defined below) having the Index Maturity
designated in the applicable Pricing Supplement, commencing on the second London
Business Day immediately following that LIBOR Interest Determination Date, that
appear on the Designated LIBOR Page specified in the applicable Pricing
Supplement as of 11:00 A.M., London time, on that LIBOR Interest Determination
Date, if at least two such offered rates appear (unless, as aforesaid, only a
single rate is required) on such Designated LIBOR Page, or (b) if "LIBOR
Telerate" is specified in the applicable Pricing Supplement, the rate for
deposits in the Index Currency having the Index Maturity designated in the
applicable Pricing Supplement commencing on the second London Business Day
immediately following that LIBOR Interest Determination Date that appears on the
Designated LIBOR Page specified in the applicable Pricing Supplement as of 11:00
A.M., London time, on that LIBOR Interest Determination Date. If fewer than two
offered rates appear, or no rate appears, as applicable, LIBOR in respect of the
related LIBOR Interest Determination Date will be determined as if the parties
had specified the rate described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer than
two offered rates appear, or no rate appears, as the case may be, on the
applicable Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent will request the principal London offices of each of four
major reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered quotation
for deposits in the Index Currency for the period of the Index Maturity
designated in the applicable Pricing Supplement, commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date, to
prime banks in the London interbank market at approximately 11:00 A.M., London
time, on such LIBOR Interest Determination Date and in a principal amount that
is representative for a single transaction in such Index Currency in such market
at such time. If at least two such quotations are provided, LIBOR determined on
such LIBOR Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, LIBOR determined on such
LIBOR Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M. (or such other time specified in the
applicable Pricing Supplement), in the applicable Principal Financial Center(s)
(as defined below), on such LIBOR Interest Determination Date by three major
banks in such Principal Financial Center selected by the Calculation Agent for
loans in the Index Currency to leading European banks, having the Index Maturity
designated in the applicable Pricing Supplement and in a principal amount that
is representative for a single transaction in such Index Currency in such market
at such time; provided, however, that if the banks so selected by the
Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Interest Determination Date will be LIBOR in effect on
such LIBOR Interest Determination Date.
"Index Currency" means the currency (including composite currencies)
specified in the applicable Pricing Supplement as the currency for which LIBOR
shall be calculated. If no such currency is specified in the applicable Pricing
Supplement, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is designated in
the applicable Pricing Supplement, the display on the Reuter Monitor Money Rates
Service for the purpose of displaying the London interbank rates of major banks
for the applicable Index Currency, or (b) if "LIBOR Telerate" is designated in
the applicable Pricing Supplement, the display on the Dow Jones Telerate Service
(or such other service or services as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates for the
Index Currency) for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency. If neither LIBOR Reuters nor
LIBOR Telerate is specified in the applicable Pricing Supplement, LIBOR for the
applicable Index Currency will be determined as if LIBOR Telerate (and, if the
U.S. dollar is the Index Currency, Page 3750) had been specified.
S-15
"Principal Financial Center" will be, unless otherwise specified in the
applicable Pricing Supplement, the following city or cities for the related
Index Currency:
INDEX CURRENCY PRINCIPAL FINANCIAL CENTER(S)
- ------------------------------------------------- -----------------------------
Australian Dollar................................ Sydney
Belgian Franc.................................... Brussels
Canadian Dollar.................................. Toronto
Danish Krone..................................... Copenhagen
Deutsche Mark.................................... Frankfurt
Dutch Guilder.................................... Amsterdam
ECU.............................................. Luxembourg
Finnish Markka................................... Helsinki
French Franc..................................... Paris
Hong Kong Dollar................................. Hong Kong
Italian Lira..................................... Milan
Luxembourg Franc................................. Brussels and Luxembourg
New Zealand Dollar............................... Wellington and Auckland
Norwegian Krone.................................. Oslo
Spanish Peseta................................... Madrid
Sterling......................................... London
Swedish Krona.................................... Stockholm
Swiss Franc...................................... Zurich
U.S. Dollar...................................... New York
Yen.............................................. Tokyo
Prime Rate. Prime Rate Notes will bear interest at the rates (calculated
with reference to the Prime Rate and the Spread and/or Spread Multiplier, if
any) specified in such Prime Rate Notes and any applicable Pricing Supplement.
"Prime Rate" means the rate determined by the Calculation Agent in
accordance with the provisions set out in clause (i) or in clause (ii) below,
depending upon whether such rate is specified as "Prime Rate--Major Banks" or as
"Prime Rate--H.15" in the applicable Pricing Supplement:
(i) If the applicable Pricing Supplement indicates that the applicable rate
is "Prime Rate--Major Banks": "Prime Rate" means, with respect to any Interest
Determination Date relating to a Prime Rate Note or any Floating Rate Note for
which the interest rate is determined with reference to the Prime Rate (a "Prime
Rate Interest Determination Date"), the arithmetic mean of the prime rates of
interest publicly announced by three major banks in The City of New York as its
United States dollar prime rate or base lending rate as in effect for that day.
Each change in the prime rate or base lending rate of any bank so announced by
such bank will be effective as of the effective date of the announcement or, if
no effective date is specified, as of the date of the announcement. If fewer
than three such quotations are provided, the Prime Rate will be calculated by
the Calculation Agent and will be determined as the arithmetic mean on the basis
of the prime rates quoted in The City of New York by three substitute banks or
trust companies organized and doing business under the laws of the United
States, or any state thereof, each having total equity capital of at least $500
million and being subject to supervision or examination by a federal or state
authority, selected by the Calculation Agent to quote such rate or rates;
provided, however, that if the banks or trust companies so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Prime Rate
with respect to such Prime Rate Interest Determination Date will be the Prime
Rate in effect on such Prime Rate Interest Determination Date.
(ii) If the applicable Pricing Supplement indicates that the applicable rate
is "Prime Rate-- H.15": "Prime Rate" means, with respect to any Prime Rate
Interest Determination Date, the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan." If such rate is
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not published prior to 3:00 P.M., New York City time, on the related Calculation
Date, then the Prime Rate shall be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen USPRIME1 as
such bank's prime rate or base lending rate as in effect for that Prime Rate
Interest Determination Date. If fewer than four such rates but more than one
such rate appear on the Reuters Screen USPRIME1 for such Prime Rate Interest
Determination Date, the Prime Rate shall be the arithmetic mean of the prime
rates quoted on the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Rate Interest
Determination Date by four major money center banks in The City of New York
selected by the Calculation Agent. If fewer than two such rates appear on the
Reuters Screen USPRIME1, the Prime Rate will be determined by the Calculation
Agent on the basis of the rates furnished in The City of New York by three
substitute banks or trust companies organized and doing business under the laws
of the United States, or any state thereof, having total equity capital of at
least $500 million and being subject to supervision or examination by Federal or
state authority, selected by the Calculation Agent to provide such rate or
rates; provided, however, that if the banks or trust companies selected as
aforesaid are not quoting as mentioned in this sentence, the Prime Rate for such
Prime Rate Interest Determination Date will be the Prime Rate in effect on such
Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1" means the display designated as page "USPRIME1"
(or such other page as may replace such page) on that service for the purpose of
displaying prime rates or base lending rates of major United States banks.
Treasury Rate. Treasury Rate Notes will bear interest at the rates
(calculated with reference to the Treasury Rate and the Spread and/or Spread
Multiplier, if any) specified in such Treasury Rate Notes and in any applicable
Pricing Supplement.
"Treasury Rate" means, with respect to an Interest Determination Date
relating to a Treasury Rate Note or any Floating Rate Note for which the
interest rate is determined by reference to the Treasury Rate (a "Treasury Rate
Interest Determination Date"), the rate applicable to the most recent auction of
direct obligations of the United States ("Treasury Bills") having the Index
Maturity specified in the applicable Pricing Supplement, as such rate is
published in H.15(519) under the heading "Treasury Bills-auction average
(investment)" or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the auction average rate (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the auction of Treasury Bills having
the Index Maturity designated in the applicable Pricing Supplement are not
reported as provided by 3:00 P.M., New York City time, on such Calculation Date,
or if no such auction is held in a particular week, then the Treasury Rate will
be calculated by the Calculation Agent and will be a yield to maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers (which may include the Agent)
selected by the Calculation Agent, for the issue of Treasury Bills with a
remaining maturity closest to the Index Maturity designated in the applicable
Pricing Supplement; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Treasury
Rate with respect to such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
OTHER PROVISIONS; ADDENDA
Any provisions with respect to an issue of Notes, including the
determination of one or more Interest Rate Bases, the specification of one or
more Interest Rate Bases, calculation of the interest rate applicable to a
Floating Rate Note, its Interest Payment Dates or any other matter relating
thereto may
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be modified by the terms as specified under "Other Provisions" on the face
thereof or in an Addendum relating thereto, if so specified on the face thereof
and in the applicable Pricing Supplement.
ORIGINAL ISSUE DISCOUNT NOTES
Notes may be issued at a price less than their redemption price at Maturity,
resulting in such Notes being treated as if they were issued with original issue
discount for federal income tax purposes ("Original Issue Discount Notes"). Such
Original Issue Discount Notes may currently pay no interest or interest at a
rate which at the time of issuance is below market rates. Certain additional
considerations relating to any Original Issue Discount Notes may be described in
the Pricing Supplement relating thereto.
AMORTIZING NOTES
The Company may from time to time offer Amortizing Notes. Unless otherwise
specified in the applicable Pricing Supplement, interest on each Amortizing Note
will be computed on the basis of a 360-day year of twelve 30-day months.
Payments with respect to Amortizing Notes will be applied first to interest due
and payable thereon and then to the reduction of the unpaid principal amount
thereof. Further information concerning additional terms and conditions of any
issue of Amortizing Notes will be provided in the applicable Pricing Supplement.
A table setting forth repayment information in respect of each Amortizing Note
will be included in the applicable Pricing Supplement and set forth on such
Notes.
BOOK-ENTRY NOTES
Upon issuance, all Book-Entry Notes having the same Original Issue Date,
Maturity and otherwise having identical terms and provisions will be represented
by one or more fully registered global Notes (the "Global Notes"). Each such
Global Note will be deposited with, or on behalf of, The Depository Trust
Company as Depository (the "Depository") registered in the name of the
Depository or a nominee thereof. Unless and until it is exchanged in whole or in
part for Notes in definitive form, no Global Note may be transferred except as a
whole by the Depository to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by such
Depository or any such nominee to a successor of such Depository or a nominee of
such successor.
The following is based on information furnished by the Depository:
The Depository will act as securities depository for the Book-Entry Notes.
The Book-Entry Notes will be issued as fully registered securities registered in
the name of Cede & Co. (the Depository's partnership nominee). One fully
registered Global Note will be issued for each issue of Book-Entry Notes, each
in the aggregate principal amount of such issue, and will be deposited with the
Depository. If, however, the aggregate principal amount of any issue exceeds
$200,000,000, one Global Note will be issued with respect to each $200,000,000
of principal amount and an additional Global Note will be issued with respect to
any remaining principal amount of such issue.
The Depository is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. The Depository holds securities that its participants ("Participants")
deposit with the Depository. The Depository also facilitates the settlement
among Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants of the Depository ("Direct
Participants") include securities brokers and dealers
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(including the Agent), banks, trust companies, clearing corporations and certain
other organizations. The Depository is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Securities Dealers, Inc. Access
to the Depository's system is also available to others such as securities
brokers and dealers, banks and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either directly or indirectly
("Indirect Participants"). The rules applicable to the Depository and its
Participants are on file with the Securities and Exchange Commission.
Purchasers of Book-Entry Notes under the Depository's system must be made by
or through Direct Participants, which will receive a credit for such Book-Entry
Notes on the Depository's records. The ownership interest of each actual
purchaser of each Book-Entry Note represented by a Global Note ("Beneficial
Owner") is, in turn, to be recorded on the records of Direct Participants and
Indirect Participants. Beneficial Owners will not receive written confirmation
from the Depository of their purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the transaction, as well as
periodic statements of their holdings, from the Direct Participants or Indirect
Participants through which such Beneficial Owner entered into the transaction.
Transfers of ownership interests in a Global Note representing Book-Entry Notes
are to be accomplished by entries made on the books of Participants acting on
behalf of Beneficial Owners. Beneficial Owners of a Global Note representing
Book-Entry Notes will not receive Certificated Notes representing their
ownership interests therein, except in the event that use of the book-entry
system for such Book-Entry Notes is discontinued.
To facilitate subsequent transfers, all Global Notes representing Book-Entry
Notes which are deposited with, or on behalf of, the Depository are registered
in the name of the Depository's nominee, Cede & Co. The deposit of Global Notes
with, or on behalf of, the Depository and their registration in the name of Cede
& Co. effect no change in beneficial ownership. The Depository has no knowledge
of the actual Beneficial Owners of the Global Notes representing the Book-Entry
Notes; the Depository's records reflect only the identity of the Direct
Participants to whose accounts such Book-Entry Notes are credited, which may or
may not be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by the Depository to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners, will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Neither the Depository nor Cede & Co. will consent or vote with respect to
the Global Notes representing the Book-Entry Notes. Under its usual procedures,
the Depository mails an Omnibus Proxy to the Company as soon as possible after
the applicable record date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to those Direct Participants to whose accounts the Book-Entry
Notes are credited on the applicable record date (identified in a listing
attached to the Omnibus Proxy).
Principal, premium, if any, and/or interest, if any, payments on the Global
Notes representing the Book-Entry Notes will be made in immediately available
funds to the Depository. The Depository's practice is to credit Director
Participants' accounts on the applicable payment date in accordance with their
respective holdings shown on the Depository's records unless the Depository has
reason to believe that it will not receive payment on such date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name", and will be the
responsibility of such Participant and not of the Depository, the Trustee or the
Company, subject to any statutory or regulatory requirements as may be in effect
from time to time. Payment of principal, premium, if any, and/or interest, if
any, to the Depository is the responsibility of the Company and the Trustee,
disbursement of such payments to Direct Participants shall be the responsibility
of the Depository, and
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disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct Participants and Indirect Participants.
If applicable, redemption notices shall be sent to Cede & Co. If less than
all of the Book-Entry Notes of like tenor and terms are being redeemed, the
Depository's practice is to determine by lot the amount of the interest of each
Direct Participant in such issue to be redeemed.
A Beneficial Owner shall give notice of any option to elect to have its
Book-Entry Notes repaid by the Company, through its Participant, to the Trustee,
and shall effect delivery of such Book-Entry Notes by causing the Direct
Participant to transfer the Participant's interest in the Global Note or Notes
representing such Book-Entry Notes, on the Depository's records, to the Trustee.
The requirement for physical delivery of Book-Entry Notes in connection with a
demand for repayment will be deemed satisfied when the ownership rights in the
Global Note or Notes representing such Book-Entry Notes are transferred by
Direct Participants on the Depository's records.
The Depository may discontinue providing its services as securities
depository with respect to the Book-Entry Notes at any time by giving reasonable
notice to the Company or the Trustee. Under such circumstances, in the event
that a successor securities depository is not obtained, Certificated Notes are
required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through the Depository (or a successor securities depository). In that
event, Certificated Notes will be printed and delivered.
The information in this section concerning the Depository and the
Depository's system has been obtained from sources that the Company believes to
be reliable, but the Company takes no responsibility for the accuracy thereof.
Purchases of Book-Entry Notes must be made by or through Participants, which
will receive a credit on the records of the Depository. The ownership interest
of each actual purchaser of each Book-Entry Note (the "Beneficial Owner") is in
turn to be recorded on the Participants' or Indirect Participants' records.
Beneficial Owners will not receive written confirmation from the Depository of
their purchase, but Beneficial Owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Participant or Indirect Participant
through which the Beneficial Owner entered into the transaction. Ownership of
beneficial interests in Global Notes will be shown on, and the transfer of such
ownership interests will be effected only through, records maintained by the
Depository (with respect to interests of Participants) and on the records of
Participants (with respect to interests of persons held through Participants).
The laws of some states may require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to own, transfer or pledge beneficial interests in
Global Notes.
So long as the Depository, or its nominee, is the registered owner of a
Global Note, the Depository or its nominee, as the case may be, will be
considered the sole owner or Holder of the Notes represented by such Global Note
for all purposes under the Senior Indenture. Except as provided below,
Beneficial Owners of a Global Note will not be entitled to have the Notes
represented by such Global Note registered in their names, will not receive or
be entitled to receive physical delivery of the Notes in definitive form and
will not be considered the owners or Holders thereof under the 1993 Indenture.
Accordingly, each person owning a beneficial interest in a Global Note must rely
on the procedures of the Depository and, if such person is not a Participant, on
the procedures of the Participant through which such person owns its interest,
to exercise any rights of a Holder under the 1993 Indenture. The Company
understands that under existing industry practices, in the event that the
Company requests any action of Holders or that an owner of a beneficial interest
in such a Global Note desires to give or take any action which a Holder is
entitled to give or take under the 1993 Indenture, the Depository
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would authorize the Participants holding the relevant beneficial interests to
give or take such action, and such Participants would authorize Beneficial
Owners owning through such Participants to give or take such action or would
otherwise act upon the instructions of Beneficial Owners. Conveyance of notices
and other communications by the Depository to Participants, by Participants to
Indirect Participants, and by Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them, subject to any
statutory or regulatory requirements as may be in effect from time to time.
If (x) the Depository is at any time unwilling or unable to continue as
Depository and a successor depository is not appointed by the Company within 60
days, or (y) the Company executes and delivers to the Trustee a Company Order to
the effect that the Global Notes shall be exchangeable, or (z) an Event of
Default has occurred and is continuing with respect to the Notes, the Global
Note or Global Notes will be exchangeable for Notes in definitive form of like
tenor and of an equal aggregate principal amount, in denominations of $1,000 and
integral multiples thereof. Such definitive Notes shall be registered in such
name or names as the Depository shall instruct the Trustee. It is expected that
such instructions may be based upon directions received by the Depository from
Participants with respect to ownership of beneficial interests in Global Notes.
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CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary of certain United States Federal income tax
consequences of the purchase, ownership and disposition of the Notes is based
upon laws, regulations, rulings and decisions now in effect, all of which are
subject to change (including changes in effective dates) or possible differing
interpretations. It deals only with Notes held as capital assets and does not
purport to deal with persons in special tax situations, such as financial
institutions, insurance companies, regulated investment companies, dealers in
securities or currencies, persons holding Notes as a hedge against currency
risks or as a position in a "straddle" for tax purposes, or persons whose
functional currency is not the United States dollar. It also does not deal with
holders other than original purchasers (except where otherwise specifically
noted). Persons considering the purchase of the Notes should consult their own
tax advisors concerning the application of United States Federal income tax laws
to their particular situations as well as any consequences of the purchase,
ownership and disposition of the Notes arising under the laws of any other
taxing jurisdiction.
As used herein, the term "U.S. Holder" means a beneficial owner of a Note
that is for United States Federal income tax purposes (i) a citizen or resident
of the United States, (ii) a corporation, partnership or other entity created or
organized in or under the laws of the United States or of any political
subdivision thereof, (iii) an estate that is described in section 7701(a)(30)(D)
of the Internal Revenue Code of 1986, as amended (the "Code") or a trust that is
described in section 7701(a)(30)(E) of the Code or (iv) any other person whose
income or gain in respect of a Note is effectively connected with the conduct of
a United States trade or business. As used herein, the term "non-U.S. Holder"
means a beneficial owner of a Note that is not a U.S. Holder.
U.S. HOLDERS
Payments of Interest. Payments of interest on a Note generally will be
taxable to a U.S. Holder as ordinary interest income at the time such payments
are accrued or are received (in accordance with the U.S. Holder's regular method
of tax accounting).
Original Issue Discount. The following summary is a general discussion of
the United States Federal income tax consequences to U.S. Holders of the
purchase, ownership and disposition of Notes issued with original issue discount
("Discount Notes"). The following summary is based upon final Treasury
regulations (the "OID Regulations") released by the Internal Revenue Service
("IRS") on January 27, 1994, as amended on June 11, 1996, under the original
issue discount provisions of the Code.
For United States Federal income tax purposes, original issue discount is
the excess of the stated redemption price at maturity of a Note over its issue
price, if such excess equals or exceeds a de minimis amount (generally 1/4 of 1%
of the Note's stated redemption price at maturity multiplied by the number of
complete years to its maturity from its issue date or, in the case of a Note
providing for the payment of any amount other than qualified stated interest (as
defined below) prior to maturity, multiplied by the weighted average maturity of
such Note). The issue price of each Note of an issue of Notes equals the first
price at which a substantial amount of such Notes has been sold (ignoring sales
to bond houses, brokers, or similar persons or organizations acting in the
capacity of underwriters, placement agents, or wholesalers). The stated
redemption price at maturity of a Note is the sum of all payments provided by
the Note other than "qualified stated interest" payments. The term "qualified
stated interest" generally means stated interest that is unconditionally payable
in cash or property (other than debt instruments of the issuer) at least
annually at a single fixed rate. In addition, under the OID Regulations, if a
Note bears interest for one or more accrual periods at a rate below the rate
applicable for the remaining term of such Note (e.g., Notes with teaser rates or
interest holidays), and if the greater of either the resulting foregone interest
on such Note or any "true" discount on such Note (i.e., the excess of the Note's
stated
S-22
principal amount over its issue price) equals or exceeds a specified de minimis
amount, then the stated interest on the Note would be treated as original issue
discount rather than qualified stated interest.
Payments of qualified stated interest on a Note are taxable to a U.S. Holder
as ordinary interest income at the time such payments are accrued or are
received (in accordance with the U.S. Holder's regular method of tax
accounting). A U.S. Holder of a Discount Note must include original issue
discount in income as ordinary interest for United States Federal income tax
purposes as it accrues under a constant yield method in advance of receipt of
the cash payments attributable to such income, regardless of such U.S. Holder's
regular method of tax accounting. In general, the amount of original issue
discount included in income by the initial U.S. Holder of a Discount Note is the
sum of the daily portions of original issue discount with respect to such
Discount Note for each day during the taxable year (or portion of the taxable
year) on which such U.S. Holder held such Discount Note. The "daily portion" of
original issue discount on any Discount Note is determined by allocating to each
day in any accrual period a ratable portion of the original issue discount
allocable to that accrual period. An "accrual period" may be of any length and
the accrual periods may vary in length over the term of the Discount Note,
provided that each accrual period is no longer than one year and each scheduled
payment of principal or interest occurs either on the final day of an accrual
period or on the first day of an accrual period. The amount of original issue
discount allocable to each accrual period is generally equal to the difference
between (i) the product of the Discount Note's adjusted issue price at the
beginning of such accrual period and its yield to maturity (determined on the
basis of compounding at the close of each accrual period and appropriately
adjusted to take into account the length of the particular accrual period) and
(ii) the amount of any qualified stated interest payments allocable to such
accrual period. The "adjusted issue price" of a Discount Note at the beginning
of any accrual period is the sum of the issue price of the Discount Note plus
the amount of original issue discount allocable to all prior accrual periods
minus the amount of any prior payments on the Discount Note that were not
qualified stated interest payments. Under these rules, U.S. Holders generally
will have to include in income increasingly greater amounts of original issue
discount in successive accrual periods.
A U.S. Holder who purchases a Discount Note for an amount that is greater
than its adjusted issue price as of the purchase date and less than or equal to
the sum of all amounts payable on the Discount Note after the purchase date
other than payments of qualified stated interest, will be considered to have
purchased the Discount Note at an "acquisition premium." Under the acquisition
premium rules, the amount of original issue discount which such U.S. Holder must
include in its gross income with respect to such Discount Note for any taxable
year (or portion thereof in which the U.S. Holder holds the Discount Note) will
be reduced (but not below zero) by the portion of the acquisition premium
properly allocable to the period.
Under the OID Regulations, Floating Rate Notes and Indexed Notes
(hereinafter "Variable Notes") are subject to special rules whereby a Variable
Note will qualify as a "variable rate debt instrument" if (a) its issue price
does not exceed the total noncontingent principal payments due under the
Variable Note by more than a specified de minimis amount and (b) it provides for
stated interest, paid or compounded at least annually, at current values of (i)
one or more qualified floating rates, (ii) a single fixed rate and one or more
qualified floating rates, (iii) a single objective rate, or (iv) a single fixed
rate and a single objective rate that is a qualified inverse floating rate.
A "qualified floating rate" is any variable rate where variations in the
value of such rate can reasonably be expected to measure contemporaneous
variations in the cost of newly borrowed funds in the currency in which the
Variable Note is denominated. Although a multiple of a qualified floating rate
will generally not itself constitute a qualified floating rate, a variable rate
equal to the product of a qualified floating rate and a fixed multiple that is
greater than .65 but not more than 1.35 will constitute a qualified floating
rate. A variable rate equal to the product of a qualified floating rate and a
fixed multiple that is greater than .65 but not more than 1.35, increased or
decreased by a fixed rate, will also constitute a qualified floating rate. In
addition, under the OID Regulations, two or more qualified
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floating rates that can reasonably be expected to have approximately the same
values throughout the term of the Variable Note (e.g., two or more qualified
floating rates with values within 25 basis points of each other as determined on
the Variable Note's issue date) will be treated as a single qualified floating
rate. Notwithstanding the foregoing, a variable rate that would otherwise
constitute a qualified floating rate but which is subject to one or more
restrictions such as a maximum numerical limitation (i.e., a cap) or a minimum
numerical limitation (i.e., a floor) may, under certain circumstances, fail to
be treated as a qualified floating rate under the OID Regulations unless such
cap or floor is fixed throughout the term of the Note. An "objective rate" is a
rate that is not itself a qualified floating rate but which is determined using
a single fixed formula that is based on objective financial or economic
information. A rate will not qualify as an objective rate if it is based on
information that is within the control of the issuer (or a related party) or
that is unique to the circumstances of the issuer (or a related party), such as
dividends, profits, or the value of the issuer's stock (although a rate does not
fail to be an objective rate merely because it is based on the credit quality of
the issuer). A "qualified inverse floating rate" is any objective rate where
such rate is equal to a fixed rate minus a qualified floating rate, as long as
variations in the rate can reasonably be expected to inversely reflect
contemporaneous variations in the qualified floating rate. The OID Regulations
also provide that if a Variable Note provides for stated interest at a fixed
rate for an initial period of one year or less followed by a variable rate that
is either a qualified floating rate or an objective rate and if the variable
rate on the Variable Note's issue date is intended to approximate the fixed rate
(e.g., the value of the variable rate on the issue date does not differ from the
value of the fixed rate by more than 25 basis points), then the fixed rate and
the variable rate together will constitute either a single qualified floating
rate or objective rate, as the case may be.
If a Variable Note that provides for stated interest at either a single
qualified floating rate or a single objective rate throughout the term thereof
qualifies as a "variable rate debt instrument" under the OID Regulations, and if
the interest on such Note is unconditionally payable in cash or property (other
than debt instruments of the issuer) at least annually, then all stated interest
on the Note will constitute qualified stated interest and will be taxed
accordingly. Thus, a Variable Note that provides for stated interest at either a
single qualified floating rate or a single objective rate throughout the term
thereof and that qualifies as a "variable rate debt instrument" under the OID
Regulations will generally not be treated as having been issued with original
issue discount unless the Variable Note is issued at a "true" discount (i.e., at
a price below the Note's stated principal amount) in excess of a specified de
minimis amount. The amount of qualified stated interest and the amount of
original issue discount, if any, that accrues during an accrual period on such a
Variable Note is determined under the rules applicable to fixed rate debt
instruments by assuming that the variable rate is a fixed rate equal to (i) in
the case of a qualified floating rate or qualified inverse floating rate, the
value as of the issue date, of the qualified floating rate or qualified inverse
floating rate, or (ii) in the case of an objective rate (other than a qualified
inverse floating rate), a fixed rate that reflects the yield that is reasonably
expected for the Variable Note. The qualified stated interest allocable to an
accrual period is increased (or decreased) if the interest actually paid during
an accrual period exceeds (or is less than) the interest assumed to be paid
during the accrual period pursuant to the foregoing rules.
In general, any other Variable Note that qualifies as a "variable rate debt
instrument" will be converted into an "equivalent" fixed rate debt instrument
for purposes of determining the amount and accrual of original issue discount
and qualified stated interest on the Variable Note. The OID Regulations
generally require that such a Variable Note be converted into an "equivalent"
fixed rate debt instrument by substituting any qualified floating rate or
qualified inverse floating rate provided for under the terms of the Variable
Note with a fixed rate equal to the value of the qualified floating rate or
qualified inverse floating rate, as the case may be, as of the Variable Note's
issue date. Any objective rate (other than a qualified inverse floating rate)
provided for under the terms of the Variable Note is converted into a fixed rate
that reflects the yield that is reasonably expected for the Variable Note. In
the case of a Variable Note that qualifies as a "variable rate debt instrument"
and provides for stated interest at a fixed rate in addition to either one or
more qualified floating rates or a qualified inverse
S-24
floating rate, the fixed rate is initially converted into a qualified floating
rate (or a qualified inverse floating rate, if the Variable Note provides for a
qualified inverse floating rate). Under such circumstances, the qualified
floating rate or qualified inverse floating rate that replaces the fixed rate
must be such that the fair market value of the Variable Note as of the Variable
Note's issue date is approximately the same as the fair market value of an
otherwise identical debt instrument that provides for either the qualified
floating rate or qualified inverse floating rate rather than the fixed rate.
Subsequent to converting the fixed rate into either a qualified floating rate or
a qualified inverse floating rate, the Variable Note is then converted into an
"equivalent" fixed rate debt instrument in the manner described above.
Once the Variable Note is converted into an "equivalent" fixed rate debt
instrument pursuant to the foregoing rules, the amount of original issue
discount and qualified stated interest, if any, are determined for the
"equivalent" fixed rate debt instrument by applying the general original issue
discount rules to the "equivalent" fixed rate debt instrument and a U.S. Holder
of the Variable Note will account for such original issue discount and qualified
stated interest as if the U.S. Holder held the "equivalent" fixed rate debt
instrument. Each accrual period appropriate adjustments will be made to the
amount of qualified stated interest or original issue discount assumed to have
been accrued or paid with respect to the "equivalent" fixed rate debt instrument
in the event that such amounts differ from the actual amount of interest accrued
or paid on the Variable Note during the accrual period.
If a Variable Note does not qualify as a "variable rate debt instrument"
under the OID Regulations, then the Variable Note would be treated as a
contingent payment debt obligation. On June 11, 1996, the Treasury Department
issued final regulations (the "CPDI Regulations") concerning the proper United
States Federal income tax treatment of contingent payment debt instruments. In
general, the CPDI Regulations would cause the timing and character of income,
gain or loss reported on a contingent payment debt instrument to substantially
differ from the timing and character of income, gain or loss reported on a
contingent payment debt instrument under general principles of current United
States Federal income tax law. Specifically, the CPDI Regulations generally
require a U.S. Holder of such an instrument to include future contingent and
noncontingent interest payments in income as such interest accrues based upon a
projected payment schedule. Moreover, in general, under the CPDI Regulations,
any gain recognized by a U.S. Holder on the sale, exchange, or retirement of a
contingent payment debt instrument will be treated as ordinary income and all or
a portion of any loss realized could be treated as ordinary loss as opposed to
capital loss (depending upon the circumstances). The CPDI Regulations apply to
debt instruments issued on or after August 13, 1996. The proper United States
Federal income tax treatment of Variable Notes that are treated as contingent
payment debt obligations will be more fully described in the applicable Pricing
Supplement. Furthermore, any other special United States Federal income tax
considerations, not otherwise discussed herein, which are applicable to any
particular issue of Notes will be discussed in the applicable Pricing
Supplement.
Certain of the Notes (i) may be redeemable at the option of the Company
prior to their stated maturity (a "call option") and/or (ii) may be repayable at
the option of the holder prior to their stated maturity (a "put option"). Notes
containing such features may be subject to rules that differ from the general
rules discussed above. Investors intending to purchase Notes with such features
should consult their own tax advisors, since the original issue discount
consequences will depend, in part, on the particular terms and features of the
purchased Notes.
U.S. Holders may generally, upon election, include in income all interest
(including stated interest, acquisition discount, original issue discount, de
minimis original issue discount, market discount, de minimis market discount,
and unstated interest, as adjusted by any amortizable bond premium or
acquisition premium) that accrues on a debt instrument by using the constant
yield method applicable to original issue discount, subject to certain
limitations and exceptions.
S-25
Foreign-Currency Notes. The United States Federal income tax consequences of
the purchase, ownership and disposition of Notes providing for payments
denominated in a currency other than U.S. dollars will be more fully described
in the applicable Pricing Supplement.
Short-Term Notes. Notes that have a fixed maturity of one year or less
("Short-Term Notes") will be treated as having been issued with original issue
discount. In general, an individual or other cash method U.S. Holder is not
required to accrue such original issue discount unless the U.S. Holder elects to
do so. If such an election is not made, any gain recognized by the U.S. Holder
on the sale, exchange or maturity of the Short-Term Note will be ordinary income
to the extent of the original issue discount accrued on a straight-line basis,
or upon election under the constant yield method (based on daily compounding),
through the date of sale or maturity, and a portion of the deductions otherwise
allowable to the U.S. Holder for interest on borrowings allocable to the
Short-Term Note will be deferred until a corresponding amount of income is
realized. U.S. Holders who report income for United States Federal income tax
purposes under the accrual method, and certain other holders including banks and
dealers in securities, are required to accrue original issue discount on a
Short-Term Note on a straight-line basis unless an election is made to accrue
the original issue discount under a constant yield method (based on daily
compounding).
Market Discount. If a U.S. Holder purchases a Note, other than a Discount
Note, for an amount that is less than its issue price (or, in the case of a
subsequent purchaser, its stated redemption price at maturity) or, in the case
of a Discount Note, for an amount that is less than its adjusted issue price as
of the purchase date, such U.S. Holder will be treated as having purchased such
Note at a "market discount," unless such market discount is less than a
specified de minimis amount.
Under the market discount rules, a U.S. Holder will be required to treat any
partial principal payment (or, in the case of a Discount Note, any payment that
does not constitute qualified stated interest) on, or any gain realized on the
sale, exchange, retirement or other disposition of, a Note as ordinary income to
the extent of the lesser of (i) the amount of such payment or realized gain or
(ii) the market discount which has not previously been included in income and is
treated as having accrued on such Note at the time of such payment or
disposition. Market discount will be considered to accrue ratably during the
period from the date of acquisition to the maturity date of the Note, unless the
U.S. Holder elects to accrue market discount on the basis of semiannual
compounding.
A U.S. Holder may be required to defer the deduction of all or a portion of
the interest paid or accrued on any indebtedness incurred or maintained to
purchase or carry a Note with market discount until the maturity of the Note or
certain earlier dispositions, because a current deduction is only allowed to the
extent the interest expense exceeds an allocable portion of market discount. A
U.S. Holder may elect to include market discount in income currently as it
accrues (on either a ratable or semiannual compounding basis), in which case the
rules described above regarding the treatment as ordinary income of gain upon
the disposition of the Note and upon the receipt of certain cash payments and
regarding the deferral of interest deductions will not apply. Generally, such
currently included market discount is treated as ordinary interest for United
States Federal income tax purposes. Such an election will apply to all debt
instruments acquired by the U.S. Holder on or after the first day of the taxable
year to which such election applies and may be revoked only with the consent of
the IRS.
Premium. If a U.S. Holder purchases a Note for an amount that is greater
than the sum of all amounts payable on the Note after the purchase date other
than payments of qualified stated interest, such U.S Holder will be considered
to have purchased the Note with "amortizable bond premium" equal in amount to
such excess. A U.S. Holder may elect to amortize such premium using a constant
yield method over the remaining term of the Note and may offset interest
otherwise required to be included in respect of the Note during any taxable year
by the amortized amount of such excess for the taxable year. However, if the
Note may be optionally redeemed after the U.S. Holder acquires it at a price in
excess of its stated redemption price at maturity, special rules would apply
which could result in
S-26
a deferral of the amortization of some bond premium until later in the term of
the Note. Any election to amortize bond premium applies to all taxable debt
obligations then owned and thereafter acquired by the U.S. Holder and may be
revoked only with the consent of the IRS.
Disposition of a Note. Except as discussed above, upon the sale, exchange or
retirement of a Note, a U.S. Holder generally will recognize taxable gain or
loss equal to the difference between the amount realized on the sale, exchange
or retirement (other than amounts representing accrued and unpaid interest) and
such U.S. Holder's adjusted tax basis in the Note. A U.S. Holder's adjusted tax
basis in a Note generally will equal such U.S. Holder's initial investment in
the Note increased by any original issue discount included in income (and
accrued market discount, if any, if the U.S. Holder has included such market
discount in income) and decreased by the amount of any payments, other than
qualified stated interest payments, received and amortizable bond premium taken
with respect to such Note. Such gain or loss generally will be long-term capital
gain or loss if the Note were held for more than one year.
NON-U.S. HOLDERS
A non-U.S. Holder will not be subject to United States Federal income taxes
on payments of principal, premium (if any) or interest (including original issue
discount, if any) on a Note, unless such non-U.S. Holder is a direct or indirect
10% or greater shareholder of the Company, a controlled foreign corporation
related to the Company or a bank receiving interest described in section
881(c)(3)(A) of the Code. To qualify for the exemption from taxation, the last
United States payor in the chain of payment prior to payment to a non-U.S.
Holder (the "Withholding Agent") must have received in the year in which a
payment of interest or principal occurs, or in either of the two preceding
calendar years, a statement that (i) is signed by the beneficial owner of the
Note under penalties of perjury, (ii) certifies that such owner is not a U.S.
Holder and (iii) provides the name and address of the beneficial owner. The
statement may be made on an IRS Form W-8 or a substantially similar form, and
the beneficial owner must inform the Withholding Agent of any change in the
information on the statement within 30 days of such change. If a Note is held
through a securities clearing organization or certain other financial
institutions, the organization or institution may provide a signed statement to
the Withholding Agent. However, in such case, the signed statement must be
accompanied by a copy of the IRS Form W-8 or the substitute form provided by the
beneficial owner to the organization or institution. The Treasury Department is
considering implementation of further certification requirements aimed at
determining whether the issuer of a debt obligation is related to holders
thereof.
Generally, a non-U.S. Holder will not be subject to United States Federal
income taxes on any amount which constitutes capital gain upon retirement or
disposition of a Note, provided the gain is not effectively connected with the
conduct of a trade or business in the United States by the non-U.S. Holder.
Certain other exceptions may be applicable, and a non-U.S. Holder should consult
its tax advisor in this regard.
The Notes will not be includible in the estate of a non-U.S. Holder unless
the individual is a direct or indirect 10% or greater shareholder of the Company
or, at the time of such individual's death, payments in respect of the Notes
would have been effectively connected with the conduct by such individual of a
trade or business in the United States.
BACKUP WITHHOLDING
Backup withholding of United States Federal income tax at a rate of 31% may
apply to payments made in respect of the Notes to registered owners who are not
"exempt recipients" and who fail to provide certain identifying information
(such as the registered owner's taxpayer identification number) in the required
manner. Generally, individuals are not exempt recipients, whereas corporations
and certain other entities generally are exempt recipients. Payments made in
respect of the Notes to a U.S.
S-27
Holder must be reported to the IRS, unless the U.S. Holder is an exempt
recipient or establishes an exemption. Compliance with the identification
procedures described in the preceding section would establish an exemption from
backup withholding for those non-U.S. Holders who are not exempt recipients.
In addition, upon the sale of a Note to (or through) a broker, the broker
must withhold 31% of the entire purchase price, unless either (i) the broker
determines that the seller is a corporation or other exempt recipient or (ii)
the seller provides, in the required manner, certain identifying information
and, in the case of a non-U.S. Holder, certifies that such seller is a non-U.S.
Holder (and certain other conditions are met). Such a sale must also be reported
by the broker to the IRS, unless either (i) the broker determines that the
seller is an exempt recipient or (ii) the seller certifies its non-U.S. status
(and certain other conditions are met). Certification of the registered owner's
non-U.S. status would be made normally on an IRS Form W-8 under penalties of
perjury, although in certain cases it may be possible to submit other
documentary evidence.
Any amounts withheld under the backup withholding rules from a payment to a
beneficial owner would be allowed as a refund or a credit against such
beneficial owner's United States Federal income tax provided the required
information is furnished to the IRS.
PLAN OF DISTRIBUTION
The Notes are being offered on a continuing basis for sale by the Company,
through the Agent, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, who will purchase the Notes, as principal, from the Company, for
resale to investors and other purchasers at varying prices relating to
prevailing market prices at the time of resale as determined by the Agent, or,
if so specified in an applicable Pricing Supplement, for resale at a fixed
public offering price. Unless otherwise specified in an applicable Pricing
Supplement, any Note sold to the Agent as principal will be purchased by the
Agent at a price equal to 100% of the principal amount thereof less a percentage
of the principal amount equal to the commission applicable to an agency sale (as
described below) of a Note of identical maturity. If agreed to by the Company
and the Agent, the Agent may utilize its reasonable efforts on an agency basis
to solicit offers to purchase the Notes at 100% of the principal amount thereof,
unless otherwise specified in an applicable Pricing Supplement. The Company will
pay a commission to the Agent, ranging from .125% to .750% of the principal
amount of a Note, depending upon its Stated Maturity (or, with respect to Notes
for which the Stated Maturity is in excess of 30 years, such commission as shall
be agreed upon by the Company and the Agent at the time of sale), sold through
the Agent.
The Agent may sell Notes it has purchased from the Company as principal to
other dealers for resale to investors, and may allow any portion of the discount
received in connection with such purchases from the Company to such dealers.
After the initial public offering of Notes, the public offering price (in the
case of Notes to be resold at a fixed public offering price), the concession and
the discount allowed to dealers may be changed.
The Company reserves the right to withdraw, cancel or modify the offer made
hereby without notice and may reject orders in whole or in part whether placed
directly with the Company or through the Agent. The Agent will have the right,
in its discretion reasonably exercised, to reject in whole or in part any offer
to purchase Notes received by the Agent.
Unless otherwise specified in an applicable Pricing Supplement, payment of
the purchase price of the Notes will be required to be made in immediately
available funds in New York City on the date of settlement.
S-28
No Note will have an established trading market when issued. Unless
specified in the applicable Pricing Supplement, the Notes will not be listed on
any securities exchange. The Agent may from time to time purchase and sell Notes
in the secondary market, but the Agent is not obligated to do so, and there can
be no assurance that there will be a secondary market for the Notes or liquidity
in the secondary market if one develops. From time to time, the Agent may make a
market in the Notes.
The Agent may be deemed to be an "underwriter" within the meaning of the
Securities Act of 1933, as amended (the "Act"). The Company has agreed to
indemnify the Agent against or to make contributions relating to certain civil
liabilities, including liabilities under the Act, or to contribute to payments
the Agent may be required to make in respect thereof. The Company has agreed to
reimburse the Agent for certain expenses.
From time to time, the Company may issue and sell other Securities described
in the accompanying Prospectus, and the amount of Notes offered hereby is
subject to reduction as a result of such sales.
LEGAL OPINION
The validity of the Notes will be passed upon for the Company and the Agent
by Brown & Wood LLP, New York, New York.
S-29
PROSPECTUS
[MERRILL LYNCH & CO., INC. LOGO]
MERRILL LYNCH & CO., INC.
DEBT SECURITIES AND WARRANTS
Merrill Lynch & Co., Inc. (the "Company") intends to sell from time to time
up to $5,096,322,580 aggregate principal amount (or net proceeds in the case of
warrants and in the case of securities issued at an original issue discount), or
its equivalent in such foreign currencies or units of two or more currencies,
based on the applicable exchange rate at the time of offering, as shall be
designated by the Company at the time of offering, of its senior debt securities
("Senior Debt Securities"), subordinated debt securities ("Subordinated Debt
Securities" and, together with the Senior Debt Securities, the "Debt
Securities"), warrants to purchase Debt Securities ("Debt Warrants"), warrants
entitling the holders thereof to receive from the Company a payment or delivery
determined by reference to decreases or increases in the level of an index or
portfolio based on one or more equity or debt securities (including the price or
yield of such securities), any statistical measure of economic or financial
performance (including any consumer price, currency or mortgage index) or the
price or value of any commodity or a combination thereof (the "Index Warrants")
and warrants to receive from the Company the cash value in U.S. dollars of the
right to purchase ("Currency Call Warrants") or to sell ("Currency Put Warrants"
and, together with the Currency Call Warrants, the "Currency Warrants") such
foreign currencies or units of two or more currencies as shall be designated by
the Company at the time of offering. The Debt Securities, Debt Warrants, Index
Warrants and Currency Warrants, which are collectively called the "Securities",
may be offered either jointly or separately and will be offered to the public on
terms determined by market conditions at the time of sale and set forth in a
prospectus supplement.
The Securities will be unsecured and, except in the case of Subordinated Debt
Securities, will rank equally with all other unsecured and unsubordinated
indebtedness of the Company. The Subordinated Debt Securities will be
subordinated to all existing and future Senior Indebtedness of the Company.
Each issue of Securities may vary, where applicable, as to aggregate
principal amount, maturity date, public offering or purchase price, interest
rate or rates, if any, and timing of payments thereof, provision for redemption,
sinking fund requirements, if any, exercise provisions, currencies of
denomination or currencies otherwise applicable thereto, the option of the
Company to satisfy its obligations upon maturity or any redemption or required
repurchase or in connection with any exchange provisions by delivering
securities (whether or not issued by, or the obligations of, the Company) or a
combination of cash, other securities and/or property and any other variable
terms and method of distribution. The accompanying Prospectus Supplement (the
"Prospectus Supplement") sets forth the specific terms with regard to the
Securities in respect of which this Prospectus is being delivered. The Company
may elect to deliver to purchasers of Securities an abbreviated term sheet
setting forth a description of the Securities being offered, or a summary
thereof (a "Terms Sheet"), instead of a Prospectus Supplement. This Prospectus
may be delivered prior to or concurrently with a Terms Sheet.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------
The Securities may be sold through Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("MLPF&S") as agent or may be offered and
reoffered through, or through underwriting syndicates managed or co-managed by,
one or more underwriters, including MLPF&S, or directly to purchasers by the
Company. The Securities may not be sold without delivery of a Prospectus
Supplement describing such issue of Securities, the method and terms of offering
thereof or of a Terms Sheet, the names of any agents or underwriters and any
applicable commissions or discounts.
-------------------
The date of this Prospectus is January 6, 1997.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy and information statements and
other information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of
the Commission: Midwest Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511 and Northeast Regional Office, Seven World Trade
Center, New York, New York 10048. Copies of such material can be obtained from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Reports, proxy and information
statements and other information concerning the Company may also be inspected at
the offices of the New York Stock Exchange, the American Stock Exchange, the
Chicago Stock Exchange and the Pacific Stock Exchange. The Commission maintains
a Web site at http://www.sec.gov containing reports, proxy and information
statements and other information regarding registrants, including the Company,
that file electronically with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 29,
1995, Quarterly Reports on Form 10-Q for the periods ended March 29, 1996, June
28, 1996 and September 27, 1996, and Current Reports on Form 8-K dated January
17, 1996, January 22, 1996, February 7, 1996, February 29, 1996, March 1, 1996,
March 12, 1996, March 18, 1996, April 1, 1996, April 15, 1996, May 1, 1996, May
13, 1996, May 15, 1996, May 28, 1996 (as amended by Form 8-K/A filed June 7,
1996), July 9, 1996, July 16, 1996, July 31, 1996, August 12, 1996, October 15,
1996 and October 30, 1996 filed pursuant to Section 13 of the Exchange Act, are
hereby incorporated by reference into this Prospectus.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering of the Securities shall be deemed to be incorporated
by reference into this Prospectus and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY
(WITHOUT EXHIBITS OTHER THAN EXHIBITS SPECIFICALLY INCORPORATED BY REFERENCE) OF
ANY OR ALL DOCUMENTS INCORPORATED BY REFERENCE INTO THIS PROSPECTUS. REQUESTS
FOR SUCH COPIES SHOULD BE DIRECTED TO MR. GREGORY T. RUSSO, SECRETARY, MERRILL
LYNCH & CO., INC., 100 CHURCH STREET, 12TH FLOOR, NEW YORK, NEW YORK 10080-6512;
TELEPHONE NUMBER (212) 602-8435.
2
MERRILL LYNCH & CO., INC.
Merrill Lynch & Co., Inc. is a holding company that, through its
subsidiaries and affiliates, provides investment, financing, insurance, and
related services on a global basis. Its principal subsidiary, MLPF&S, one of the
largest securities firms in the world, is a leading broker in securities,
options contracts, and commodity and financial futures contracts; a leading
dealer in options and in corporate and municipal securities; a leading
investment banking firm that provides advice to, and raises capital for, its
clients; and an underwriter of selected insurance products. Other subsidiaries
provide financial services on a global basis similar to those of MLPF&S and are
engaged in such other activities as international banking, lending, and
providing other investment and financing services. Merrill Lynch International
Incorporated, through subsidiaries and affiliates, provides investment,
financing, and related services outside the United States and Canada. Merrill
Lynch Asset Management, LP and Fund Asset Management, LP together constitute one
of the largest mutual fund managers in the world and provide investment advisory
services. Merrill Lynch Government Securities Inc. is a primary dealer in
obligations issued or guaranteed by the U.S. Government and its agencies.
Merrill Lynch Capital Services, Inc., Merrill Lynch Derivative Products AG, and
Merrill Lynch Capital Markets PLC are the Company's primary derivative product
dealers and enter into interest rate and currency swaps and other derivative
transactions as intermediaries and as principals. The Company's insurance
underwriting operations consist of the underwriting of life insurance and
annuity products. Banking, trust, and mortgage lending operations conducted
through subsidiaries of the Company include issuing certificates of deposit,
offering money market deposit accounts, making secured loans, and providing
foreign exchange facilities and other related services.
The principal executive office of the Company is located at World Financial
Center, North Tower, 250 Vesey Street, New York, New York 10281; its telephone
number is (212) 449-1000.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the Securities
for general corporate purposes. Such uses may include the funding of investments
in, or extensions of credit to, its subsidiaries, the funding of assets held by
the Company or its subsidiaries, including securities inventories, customer
receivables and loans (including business loans, home equity loans and loans in
connection with investment banking-related merger and acquisition activities)
and the lengthening of the average maturity of the Company's borrowings
(including the refunding of maturing indebtedness). The precise amount and
timing of investments in, and extensions of credit to, its subsidiaries will
depend upon their funding requirements and the availability of other funds to
the Company and its subsidiaries. Pending such applications, the net proceeds
will be temporarily invested or applied to the reduction of short-term
indebtedness. A substantial portion of the proceeds from the sale of any
Currency Warrants or Index Warrants may be used to hedge market risks with
respect to such Warrants. Management of the Company expects that it will, on a
recurrent basis, engage in additional financings as the need arises to finance
the growth of the Company or to lengthen the average maturity of its borrowings.
To the extent that Securities being purchased for resale by MLPF&S are not
resold, the aggregate proceeds to the Company and its subsidiaries would be
reduced.
3
SUMMARY FINANCIAL INFORMATION
The following summary of consolidated financial information was derived
from, and is qualified in its entirety by reference to, the financial
statements, condensed financial statements, and other information and data
contained in the Company's Annual Report on Form 10-K for the year ended
December 29, 1995 and Quarterly Report on Form 10-Q for the period ended
September 27, 1996 (the "Quarterly Report"). See "Incorporation of Certain
Documents by Reference." The condensed consolidated financial statements
contained in the Quarterly Report are unaudited; however, in the opinion of
management of the Company, all adjustments (consisting only of normal recurring
accruals) necessary for a fair statement of the results of operations have been
included. The year-end results include 52 weeks for 1991, 1992, 1994, and 1995
and 53 weeks for 1993.
The Company conducts its business in highly volatile markets. Consequently,
the Company's results can be affected by many factors, including general market
conditions, the liquidity of secondary markets, the level and volatility of
interest rates and currency values, the valuation of securities positions,
competitive conditions, and the size, number, and timing of transactions. In
periods of unfavorable market activity, profitability can be adversely affected
because certain expenses remain relatively fixed. As a result, net earnings and
revenues can vary significantly from period to period. Thus, interim results may
not necessarily be representative of the full year results of operations.
YEAR ENDED LAST FRIDAY IN DECEMBER NINE MONTHS ENDED
--------------------------------------------------- -----------------------------
SEPTEMBER 29, SEPTEMBER 27,
1991 1992 1993 1994 1995 1995 1996
------- -------- -------- -------- -------- ------------- -------------
(IN MILLIONS, EXCEPT RATIOS)
Revenues............ $12,353 $ 13,413 $ 16,588 $ 18,234 $ 21,513 $ 16,220 $ 18,410
Net revenues(1)..... $ 7,246 $ 8,577 $ 10,558 $ 9,625 $ 10,265 $ 7,652 $ 9,735
Earnings before
income taxes and
cumulative effect
of changes in
accounting
principles(2)....... $ 1,017 $ 1,621 $ 2,425 $ 1,730 $ 1,811 $ 1,329 $ 1,891
Cumulative effect of
changes in
accounting
principles (net of
applicable income
taxes)(2)........... -- $ (58) $ (35) -- -- -- --
Net earnings(2)..... $ 696 $ 894 $ 1,359 $ 1,017 $ 1,114 $ 810 $ 1,174
Ratio of earnings to
fixed charges(3).... 1.2 1.3 1.4 1.2 1.2 1.2 1.2
Total assets(4)..... $86,259 $107,024 $152,910 $163,749 $176,857 $ 185,473 $ 207,911
Long-term
borrowings(5)....... $ 7,964 $ 10,871 $ 13,469 $ 14,863 $ 17,340 $ 16,156 $ 24,098
Stockholders'
equity(6)........... $ 3,818 $ 4,569 $ 5,486 $ 5,818 $ 6,141 $ 6,077 $ 6,618
- ------------
(1) Net revenues are revenues net of interest expense.
(2) Net earnings for 1992 have been reduced by $58 million to reflect the
adoption of Statement of Financial Accounting Standards ("SFAS") No. 106,
Employers' Accounting for Postretirement Benefits Other than Pensions, and
SFAS No. 109, Accounting for Income Taxes. Net earnings for 1993 were
reduced by $35 million to reflect the adoption of SFAS No. 112, Employers'
Accounting for Postemployment Benefits.
(Footnotes continued on following page)
4
(Footnotes continued from preceding page)
(3) For the purpose of calculating the ratio of earnings to fixed charges,
"earnings" consists of earnings from continuing operations before income
taxes and fixed charges. "Fixed charges" consists of interest costs,
amortization of debt expense, preferred stock dividend requirements of
majority-owned subsidiaries, and that portion of rentals estimated to be
representative of the interest factor.
(4) In 1994, the Company adopted Financial Accounting Standards Board ("FASB")
Interpretation No. 39, "Offsetting of Amounts Related to Certain Contracts",
and FASB Interpretation No. 41, "Offsetting of Amounts Related to Certain
Repurchase and Reverse Repurchase Agreements", which increased assets and
liabilities at December 30, 1994 by approximately $8,500 million.
(5) To finance its diverse activities, the Company and certain of its
subsidiaries borrow substantial amounts of short-term funds on a regular
basis. Although the amount of short-term borrowings varies significantly
with the level of general business activity, on September 27, 1996, $2,659
million of bank loans and $20,208 million of commercial paper were
outstanding. In addition, certain of the Company's subsidiaries lend
securities and enter into repurchase agreements to obtain financing. At
September 27, 1996, cash deposits for securities loaned and securities sold
under agreements to repurchase amounted to $5,067 million and $65,123
million, respectively. From September 28, 1996 to December 30, 1996,
long-term borrowings, net of repayments and repurchases, increased by
approximately $2,824 million.
(6) On December 17, 1996, Merrill Lynch Preferred Capital Trust I, a subsidiary
of the Company ("Trust I"), issued $275 million of 7 3/4% Trust Originated
Preferred Securities Service Mark ("TOPrS" Service Mark). Trust I holds
preferred securities of a partnership, which is also a subsidiary of the
Company. The assets of the partnership consist primarily of debt
securities of the Company and one of its eligible controlled affiliates.
The Company has guaranteed, on a subordinated basis, certain payments
by Trust I and the partnership.
FISCAL YEAR 1995
Global financial markets, which steadily weakened during most of 1994,
generally improved during 1995, led by a more stable U.S. economy, declining
interest rates, and heightened investor activity. Inflationary fears eased
throughout 1995 as key U.S. economic statistics indicated slow to moderate
growth. The Federal Reserve decreased short-term interest rates in July and
December 1995 following seven rate increases between February 1994 and February
1995. Investors reacted favorably to these events and were more active in stock
and bond markets during 1995. Net earnings for the 1995 fourth quarter were $303
million, up 1% from the 1995 third quarter and up 88% from the 1994 fourth
quarter.
Net earnings for 1995 were $1,114 million, up 10% from 1994 net earnings of
$1,017 million. Earnings per common share were $5.44 primary and $5.42 fully
diluted in 1995, compared with $4.75 primary and $4.74 fully diluted in 1994.
Total revenues were a record $21,513 million, up 18% from 1994. Net revenues
(revenues after interest expense) totaled $10,265 million in 1995, up 7% from
1994.
Commission revenues increased 9% to a record $3,126 million from $2,871
million in 1994, due primarily to higher levels of listed and over-the-counter
securities transactions and mutual fund commissions, partially offset by lower
revenues from commodities. Commissions from listed and over-the-counter
securities increased due primarily to higher trading volumes on most major U.S.
and international exchanges. Mutual fund commissions increased due primarily to
higher distribution and redemption fees. Distribution fees from deferred-charge
funds increased due to strong fund sales in prior periods and higher asset
levels. Redemption fees increased as clients repositioned invested assets.
- ------------
Service Mark "Trust Originated Preferred Securities" and "TOPrS" are service
marks of Merrill Lynch & Co., Inc.
5
Interest and dividend revenues increased 28% to $12,221 million from $9,578
million in 1994. Interest expense, which includes dividend expense, increased
31% from 1994 to $11,248 million. Net interest and dividend profit was $973
million, virtually unchanged from $969 million in 1994, with increases in net
interest-earning assets offset by declining interest spreads due to the
flattening of the U.S. Treasury yield curve. The change in the yield curve
resulted from long-term interest rates falling more than short-term rates during
1995.
Principal transactions revenues increased 8% from 1994 to $2,519 million in
1995. Increases in equities and equity derivatives and taxable fixed-income
trading revenues were partially offset by decreases in trading revenues from
municipal securities, foreign exchange and commodities, and interest rate and
currency swaps. Equities and equity derivatives trading revenues, in the
aggregate, increased 46% to $912 million, due primarily to improved volumes in
the convertible, over-the-counter, and international equities markets, partially
offset by lower equity derivatives trading revenues. Taxable fixed-income
trading revenues increased 10% to $516 million due, in part, to higher revenues
from corporate bonds and preferred stock, high-yield bonds, and non-U.S.
governments and agencies securities. Trading revenues from mortgage-backed
products were negatively affected by reduced market liquidity, leading to a
loss. Nevertheless, trading results from mortgage-backed products, which include
related net interest revenues, were positive. U.S. Government and agencies
securities trading revenues were down from 1994 due to tighter spreads between
U.S. Treasury securities and related futures hedges, as well as reduced retail
investor demand attributable to lower interest rates. Municipal securities
revenues decreased 28% to $273 million as a result of decreased investor demand
for tax-exempt investments as investors remained wary of potential tax law
changes and sought higher returns in equity and taxable fixed-income securities.
Foreign exchange and commodities revenues, in the aggregate, declined 22% to $86
million. Commodities trading revenues decreased due to lower volumes. Increases
in foreign exchange trading revenues resulted from higher customer volume caused
by the strengthening of the U.S. dollar versus other major currencies during
1995. Interest rate and currency swaps revenues declined 2% to $732 million.
Decreases in U.S. dollar-denominated transactions were substantially offset by
increased revenues in non-dollar-denominated transactions, particularly in
Japanese and European markets.
Investment banking revenues were $1,308 million, up 5% from $1,240 million
in 1994. Strategic services revenues, which include fees for merger and
acquisition activity, debt restructuring, and other advisory services,
increased, as companies worldwide sought strategic partners to promote growth
while cutting costs and increasing efficiencies. Underwriting revenues were
down, as lower revenues from equities, private placements, high-yield debt, and
mortgage-backed securities underwriting were partially offset by increased
underwriting revenues from corporate bonds and preferred stock and defined asset
funds.
Asset management and portfolio service fees rose 9% in 1995 to a record
$1,890 million from $1,739 million in 1994, as a result of higher fees earned
from asset management and other fee-based services. Other revenues decreased 5%
from 1994 to $449 million, due to lower net realized investment gains in 1995
compared with 1994.
Non-interest expenses were $8,454 million, up 7% from $7,895 million in the
year-ago period. Compensation and benefits expense, which represented
approximately 62% of non-interest expenses, increased 6% due primarily to
increased production-related and incentive compensation and the addition of
Smith New Court PLC ("Smith New Court") employees. Compensation and benefits
expense as a percentage of net revenues was 51.3% in 1995, compared with 51.5%
in 1994.
Occupancy costs increased 3% from 1994 primarily due to international
growth. Other facilities-related costs, which include communications and
equipment rental expense and depreciation and amortization expenses, rose 13%
primarily due to expanded use of market data services, as well as higher
depreciation expense from the purchase of technology-related assets over the
past year.
6
Professional fees increased 16% from the year-ago period, due to higher
legal fees and systems development costs related to upgrading technology and
processing capabilities in customer, trading, and transaction processing
systems. Advertising and market development expenses increased 6% from 1994 as a
result of increased advertising, international travel, and sales promotion
primarily related to international growth. Brokerage, clearing, and exchange
fees increased 7% as a result of higher securities volume, particularly in
international markets. Other expenses increased 4% from 1994, due primarily to a
$26 million first quarter charge for the write-off of assets related to a
technology contract and $14 million of goodwill amortization related to Smith
New Court.
Income tax expense totaled $697 million in 1995. The effective tax rate in
1995 was 38.5%, compared with 41.2% in 1994. The decrease in the effective tax
rate was attributable to lower state income taxes, expanded international
business activities in jurisdictions with lower tax rates, and increases in
deductions for dividends received.
In 1995 the Company acquired Smith New Court, a U.K.-based global securities
firm, for approximately $800 million. The Company recorded approximately $530
million of goodwill related to the acquisition, which is being amortized on a
straight-line basis over 15 years. The Company's 1995 results include those of
Smith New Court since mid-August 1995.
CERTAIN BALANCE SHEET INFORMATION AS OF DECEMBER 29, 1995
The Company believes that its equity base is adequate relative to the level
and composition of its assets and the mix of its business.
In the normal course of business, the Company underwrites, trades, and holds
non-investment grade securities in connection with its investment banking,
market-making, and derivative structuring activities. These activities are
subject to risks related to the creditworthiness of the issuers of, and the
liquidity of the market for, such securities, in addition to the usual risks
associated with investing in, financing, underwriting, and trading in investment
grade instruments.
At December 29, 1995, the fair value of long and short non-investment grade
trading inventories amounted to $5,489 million and $353 million, respectively,
and in the aggregate (i.e., the sum of long and short trading inventories)
represented 6.3% of aggregate consolidated trading inventories.
At December 29, 1995, the carrying value of extensions of credit provided to
corporations entering into leveraged transactions aggregated $489 million
(excluding unutilized revolving lines of credit and other lending commitments of
$127 million), consisting primarily of senior term and subordinated financings
to 30 medium-sized corporations. At December 29, 1995, the Company had no bridge
loans outstanding. Loans to highly leveraged corporations are carried at unpaid
principal balances less a reserve for estimated losses. The allowance for loan
losses is estimated based on a review of each loan, and consideration of
economic, market, and credit conditions. Direct equity investments made in
conjunction with the Company's investment and merchant banking activities
aggregated $211 million at December 29, 1995, representing investments in 62
enterprises. Equity investments in privately-held companies for which sale is
restricted by government or contractual requirements are carried at the lower of
cost or estimated net realizable value. At December 29, 1995, the Company held
interests in partnerships, totaling $91 million (recorded on the cost basis),
that invest in highly leveraged transactions and non-investment grade
securities. At December 29, 1995, the Company also committed to invest an
additional $79 million in partnerships that invest in leveraged transactions.
The Company's insurance subsidiaries hold non-investment grade securities.
Non-investment grade securities were 4.2% of total insurance investments at
December 29, 1995. Non-investment grade securities of insurance subsidiaries are
classified as available-for-sale and are carried at fair value.
7
At December 29, 1995, the largest non-investment grade concentration
consisted of various issues of a South American sovereign totaling $674 million,
of which $672 million represented on-balance-sheet hedges for off-balance-sheet
financial instruments. No one industry sector accounted for more than 35% of
total non-investment grade positions. At December 29, 1995, the Company held an
aggregate carrying value of $164 million in debt and equity securities of
issuers in various stages of bankruptcy proceedings or in default, of which 75%
resulted from the Company's market-making activities in such securities.
RESULTS OF OPERATIONS FOR THE NINE MONTHS ENDED SEPTEMBER 27, 1996
Global financial markets were affected by a slowdown during the 1996 third
quarter after a strong first half. A brief midsummer U.S. stock market
correction combined with increased uncertainty over the direction of U.S.
interest rates led to lower trading and underwriting volumes, particularly in
equities, compared to the first six months of 1996. As a result, industrywide
revenues from such activities declined from first-half highs. Nevertheless,
issuer and investor demand was stronger than in the year-ago quarter.
Net earnings for the first nine months of 1996 were a record $1,174 million,
up 45% from the $810 million reported in the comparable 1995 period. Third
quarter net earnings of $331 million were down 24% from record second quarter
1996 net earnings of $433 million. Earnings per common share were $5.91 primary
and $5.89 fully diluted, compared with $3.95 primary and $3.90 fully diluted in
the first nine months of 1995. Total revenues for the first nine months of 1996
were a record $18,410 million, up 14% from $16,220 million in the comparable
1995 period. Net revenues (revenues after interest expense) totaled $9,735
million up 27% from the year-ago period.
Commission revenues rose 24% during the first nine months of 1996 to $2,819
million from $2,279 million in the comparable 1995 period. Commissions revenues
from listed securities increased due to higher trading volumes on most major
U.S. and international exchanges. Mutual fund commissions advanced to a record
level due to strong sales of U.S. and offshore funds and increased distribution
fees.
Interest and dividend revenues for the first nine months of 1996 increased
to $9,407 million, up 1% from $9,329 million in the first nine months of 1995.
Interest expense, which includes dividend expense, was $8,675 million up 1% from
$8,568 million in the year-ago period. Net interest and dividend profit was $732
million, down 4% from $761 million in 1995 as a result of reduced levels of net
interest-earning assets.
Principal transactions revenues increased 39% from the first nine months of
1995 to $2,709 million, as increased client activity led to higher revenues in
most product categories. Equities and equity derivatives trading revenues, in
the aggregate, were up 35% to $874 million. International equities trading
revenues benefited from the addition of trading activity related to Smith New
Court PLC ("Smith New Court"), which was acquired in the 1995 third quarter.
Over-the-counter equity trading revenues rose due to increased client order
flow. Taxable fixed-income trading revenues rose 76% to $771 million primarily
due to higher revenues from mortgage-backed products, non-U.S. governments and
agencies securities, and money market instruments. Mortgage-backed securities
trading revenues advanced due primarily to improved liquidity and increased
customer demand compared with the year-ago period. Trading revenues for non-U.S.
governments and agencies securities benefited from higher demand for emerging
market securities. Trading revenues from money market instruments rose due to
increased floating-rate note activity in European markets. Interest rate and
currency swap trading revenues increased 19% to $698 million due to higher
revenues from both U.S. and non-U.S. dollar-denominated transactions. Municipal
securities revenues increased 22% to $257 million, largely due to increased
investor demand for tax-advantaged products. Foreign exchange and commodities
trading revenues, in the aggregate, rose 67% from the first nine months for 1995
to $109 million. Strong
8
customer activity attributable to increased volatility in exchange rates
contributed to higher foreign exchange trading revenues.
Investment banking revenues were $1,428 million, up 52% from $938 million in
the first nine months of 1995. Underwriting fees were higher in virtually all
products, particularly equity securities due to increased transaction volume.
Strategic services revenues benefited from improved market share for mergers and
acquisitions activity.
Asset management and portfolio service fees were $1,661 million for the
first nine months of 1996, up 19% from $1,397 million in the year-ago period, as
a result of strong inflows of client assets and net asset appreciation. Other
revenues were $386 million, up 19% from $325 million in the first nine months of
1995 primarily due to gains on sales of Real Estate Mortgage Investment Conduit
("REMIC") transactions and partnership investments.
Non-interest expenses were $7,844 million, up 24% from $6,323 million in the
year-ago period. Compensation and benefits expense, which represented
approximately 64% of non-interest expenses, increased 27% during the first nine
months of 1996 due primarily to higher incentive and production-related
compensation as well as a 7% increase in the number of full-time employees, due
in part to acquisitions. Compensation and benefits expense was 51.8% of net
revenues for the first nine months of 1996, compared with 51.9% in the 1995
period.
Non-interest expenses excluding compensation and benefits, rose 19% to
$2,800 million. A significant component of this increase relates to strategic
investments in technology such as the Trusted Global Advisor ("TGA") initiative,
a new technology platform that will enable Financial Consultants to provide
enhanced services to clients. These technology-related expenses primarily
affected communications and equipment rental, depreciation and amortization, and
professional fees which, in the aggregate, increased 21% from the comparable
1995 period to $1,131 million.
Occupancy costs increased 4% from the first nine months of 1995 due to
international growth, including the addition of Smith New Court facilities.
Advertising and market development expenses increased 28% from the first nine
months of 1995 due to increased international travel and higher
promotion-related recognition costs. Brokerage, clearing, and exchange fees
increased 17% as a result of higher trading volume, particularly in
international markets. Other expenses increased 22% from the first nine months
of 1995, primarily due to provisions related to various business activities and
nine months of goodwill amortization primarily related to Smith New Court.
Income tax expense totaled $717 million for the first nine months of 1996.
The effective tax rate in the 1996 period was 37.9%, compared with 39.0% a year
ago. The decrease in the effective tax rate was primarily attributable to
expanded international business activities.
CERTAIN BALANCE SHEET INFORMATION AS OF SEPTEMBER 27, 1996
The Company believes that its equity base is adequate relative to the level
and composition of its assets and the mix of its business.
In the normal course of business, the Company underwrites, trades, and holds
non-investment grade securities in connection with its investment banking,
market making, and derivative activities. These activities are subject to risks
related to the creditworthiness of the issuers of, and the liquidity of the
market for, such securities, in addition to the usual risks associated with
investing in, financing, underwriting, and trading in investment grade
instruments.
At September 27, 1996, the fair value of long and short non-investment grade
trading inventories amounted to $8,912 million and $879 million, respectively,
and in the aggregate (i.e. the sum of long and short trading inventories),
represented 8.5% of aggregate consolidated trading inventories.
9
At September 27, 1996, the carrying value of extensions of credit provided
to corporations entering into leveraged transactions aggregated $269 million
(excluding unutilized revolving lines of credit and other lending commitments of
$109 million), consisting primarily of senior term and subordinated financings
to 38 large- and medium-sized corporations. At September 27, 1996, the Company
had no bridge loans outstanding but had two bridge loan commitments at September
27, 1996 that were subsequently canceled by the counterparties. Subsequent to
quarter-end, the Company entered into a bridge loan commitment for $90 million
to a non-investment grade counterparty. The Company intends to syndicate the
loan, if extended, and may retain a residual portion. Loans to highly leveraged
corporations are carried at unpaid principal balances less a reserve for
estimated losses. The allowance for loan losses is estimated based on a review
of each loan, and consideration of economic, market, and credit conditions.
Direct equity investments made in conjunction with the Company's investment
and merchant banking activities aggregated $153 million at September 27, 1996,
representing investments in 61 enterprises. Equity investments in privately-held
companies for which sale is restricted by government or contractual requirements
are carried at the lower of cost or estimated net realizable value. At September
27, 1996, the Company held interests in partnerships, totaling $112 million
(recorded on the cost basis), that invest in highly leveraged transactions and
non-investment grade securities. At September 27, 1996, the Company also
committed to invest an additional $74 million in partnerships that invest in
leveraged transactions.
The Company's insurance subsidiaries hold non-investment grade securities.
Non-investment grade securities were 4.7% of total insurance investments at
September 27, 1996. Non-investment grade securities of insurance subsidiaries
are classified as available-for-sale and are carried at fair value.
At September 27, 1996, the largest non-investment grade concentration
consisted of various sovereign and corporate issues of a South American country
totaling $1,186 million, which primarily represented hedges of other financial
instruments. No one industry sector accounted for more than 20% of total
non-investment grade positions. At September 27, 1996, the Company held an
aggregate carrying value of $144 million in debt and equity securities of
issuers in various stages of bankruptcy proceedings or in default, of which 50%
resulted from the Company's market making activities in such instruments. In
addition, the Company held distressed bank loans totaling $385 million at
quarter-end.
DESCRIPTION OF DEBT SECURITIES
Unless otherwise specified in a Prospectus Supplement, the Senior Debt
Securities are to be issued under an indenture (the "1983 Indenture"), dated as
of April 1, 1983, as amended and restated, between the Company and The Chase
Manhattan Bank, formerly known as Chemical Bank (successor by merger to
Manufacturers Hanover Trust Company), as trustee or issued under an indenture
(the "1993 Indenture"), dated as of October 1, 1993, between the Company and The
Chase Manhattan Bank (successor by merger to The Chase Manhattan Bank, N.A.), as
trustee (each, a "Senior Debt Trustee"). The 1983 Indenture and the 1993
Indenture are referred to herein as the "Senior Indentures". The Subordinated
Debt Securities are to be issued under an indenture (the "Subordinated
Indenture"), between the Company and The Chase Manhattan Bank, formerly known as
Chemical Bank, as trustee (the "Subordinated Debt Trustee"). The Senior Debt
Securities and Subordinated Debt Securities may also be issued under one or more
other indentures (each, a "Subsequent Indenture") and have one or more other
trustees (each, a "Subsequent Trustee"). Any Subsequent Indenture relating to
Senior Debt Securities will have terms and conditions identical in all material
respects to the above-referenced Senior Indentures and any Subsequent Indenture
relating to Subordinated Debt Securities will have terms and conditions
identical in all material respects to the above-referenced Subordinated
Indenture, including, but not limited to, the applicable terms and conditions
described below. Any Subsequent Indenture relating to a series of Debt
Securities, and the trustee with respect
10
thereto, will be identified in the applicable Prospectus Supplement. The Senior
Indentures, the Subordinated Indenture and any Subsequent Indentures (whether
senior or subordinated) are referred to herein as the "Indentures"; and the
Senior Debt Trustees, the Subordinated Debt Trustee and any Subsequent Trustees
are referred to herein as the "Trustees". A copy of each Indenture is filed (or,
in the case of a Subsequent Indenture, will be filed) as an exhibit to the
registration statements relating to the Securities (collectively, the
"Registration Statement"). The following summaries of certain provisions of the
Indentures do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all provisions of the respective Indentures,
including the definitions therein of certain terms.
GENERAL
Each Indenture provides that Debt Securities (Senior Debt Securities in the
case of the Senior Indentures or a Subsequent Indenture for Senior Debt
Securities, and Subordinated Debt Securities in the case of the Subordinated
Indenture or a Subsequent Indenture for Subordinated Debt Securities) may be
issued thereunder, without limitation as to aggregate principal amount, in one
or more series, by the Company from time to time upon satisfaction of certain
conditions precedent, including the delivery by the Company to the applicable
Trustee of a resolution of the Board of Directors, or the Executive Committee
thereof, of the Company which fixes or provides for the establishment of terms
of such Debt Securities, including: (1) the aggregate principal amount of such
Debt Securities and whether there is any limit upon the aggregate principal
amount of such Debt Securities that may be subsequently issued; (2) the date on
which such Debt Securities will mature; (3) the principal amount payable with
respect to such Debt Securities whether at maturity or upon earlier
acceleration, and whether such principal amount will be determined with
reference to an index, formula or other method; (4) the rate or rates per annum
(which may be fixed or variable) at which such Debt Securities will bear
interest, if any; (5) the dates on which such interest, if any, will be payable;
(6) the provisions for redemption of such Debt Securities, if any, the
redemption price and any remarketing arrangements relating thereto; (7) the
sinking fund requirements, if any, with respect to such Debt Securities; (8)
whether such Debt Securities are denominated or provide for payment in United
States dollars or a foreign currency or units of two or more of such foreign
currencies; (9) the form (registered or bearer or both) in which such Debt
Securities may be issued and any restrictions applicable to the exchange of one
form for another and to the offer, sale and delivery of such Debt Securities in
either form; (10) whether and under what circumstances the Company will pay
additional amounts ("Additional Amounts") in respect of such Debt Securities
held by a person who is not a U.S. person (as defined in the Prospectus
Supplement, as applicable) in respect of specified taxes, assessments or other
governmental charges and whether the Company has the option to redeem the
affected Debt Securities rather than pay such Additional Amounts; (11) whether
such Debt Securities are to be issued in global form; (12) the title of the Debt
Securities and the series of which such Debt Securities shall be a part; (13)
the denominations of such Debt Securities and (14) whether, and the terms and
conditions relating to when, the Company may satisfy certain of its obligations
with respect to such Debt Securities with regard to payment upon maturity, or
any redemption or required repurchase or in connection with any exchange
provisions by delivering to the Holders thereof securities (whether or not
issued by, or the obligation of, the Company) or a combination of cash, other
securities and/or property. Reference is made to the Prospectus Supplement for
the terms of the Debt Securities being offered thereby, including whether such
Debt Securities are Senior Debt Securities or Subordinated Debt Securities. The
Company may elect to deliver to purchasers of Securities a Terms Sheet instead
of a Prospectus. This Prospectus may be delivered prior to or concurrently with
a Terms Sheet. Debt Securities may also be issued under the Indentures upon the
exercise of Debt Warrants. See "Description of Debt Warrants". Nothing in the
Indentures or in the terms of the Debt Securities will prohibit the issuance of
securities representing subordinated indebtedness that is senior or junior to
the Subordinated Debt Securities.
11
The Debt Securities will be issued, to the extent provided in the Prospectus
Supplement, in fully registered form without coupons, and/or in bearer form with
or without coupons, and in denominations set forth in the Prospectus Supplement.
No service charge will be made for any registration of transfer of registered
Debt Securities or exchange of Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charges that
may be imposed in connection therewith. Each Indenture provides that Debt
Securities issued thereunder may be issued in global form. If any series of Debt
Securities is issuable in global form, the applicable Prospectus Supplement will
describe the circumstances, if any, under which beneficial owners of interest in
any such global Debt Securities may exchange such interests for Debt Securities
of such series and of like tenor and principal amount in any authorized form and
denomination. Principal of, and any premium, Additional Amounts and interest on,
a global Debt Security will be payable in the manner described in the applicable
Prospectus Supplement.
The provisions of the Indentures described above provide the Company with
the ability, in addition to the ability to issue Debt Securities with terms
different from those of Debt Securities previously issued, to "reopen" a
previous issue of a series of Debt Securities and issue additional Debt
Securities of such series.
The Senior Debt Securities will be unsecured and will rank pari passu with
all other unsecured and unsubordinated indebtedness of the Company. The
Subordinated Debt Securities will be unsecured and will be subordinated to all
existing and future Senior Indebtedness (as defined below) of the Company. Since
the Company is a holding company, the right of the Company, and hence the right
of creditors of the Company (including the Holders of the Debt Securities), to
participate in any distribution of the assets of any subsidiary upon its
liquidation or reorganization or otherwise is necessarily subject to the prior
claims of creditors of the subsidiary, except to the extent that claims of the
Company itself as a creditor of the subsidiary may be recognized. In addition,
dividends, loans and advances from certain subsidiaries, including MLPF&S, to
the Company are restricted by net capital requirements under the Exchange Act
and under rules of certain exchanges and other regulatory bodies.
Principal and any interest, premium and Additional Amounts will be payable
in the manner, at the places and subject to the restrictions set forth in the
applicable Indenture, the Debt Securities and the Prospectus Supplement relating
thereto, provided that payment of any interest and any Additional Amounts may be
made at the option of the Company by check mailed to the holders of registered
Debt Securities at their registered addresses.
Debt Securities may be presented for exchange, and registered Debt
Securities may be presented for transfer, in the manner, at the places and
subject to the restrictions set forth in the applicable Indenture, the Debt
Securities and the Prospectus Supplement relating thereto. Debt Securities in
bearer form and the coupons, if any, pertaining thereto will be transferable by
delivery. No service charge will be made for any transfer or exchange of Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
MERGER AND CONSOLIDATION
The Company may consolidate or merge with or into any other corporation, and
the Company may sell, lease or convey all or substantially all of its assets to
any corporation, provided that (i) the corporation (if other than the Company)
formed by or resulting from any such consolidation or merger or which shall have
received such assets shall be a corporation organized and existing under the
laws of the United States of America or a state thereof and shall assume payment
of the principal of, and any premium, Additional Amounts or interest on, the
Debt Securities and the performance and observance of all of the covenants and
conditions of the Indentures to be performed or observed by the Company,
12
and (ii) the Company or such successor corporation, as the case may be, shall
not immediately thereafter be in default under the Indentures.
MODIFICATION AND WAIVER
Modification and amendment of each Indenture may be effected by the Company
and the applicable Trustee with the consent of the Holders of at least 66 2/3%
in principal amount of the Outstanding Debt Securities of each series issued
pursuant to such Indenture and affected thereby, provided that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby, (a) change the Stated Maturity of,
or any installment of interest or Additional Amounts on, any Debt Security or
any premium payable on the redemption thereof, or change the Redemption Price;
(b) reduce the principal amount of, or the interest or Additional Amounts
payable on, any Debt Security or reduce the amount of principal which could be
declared due and payable prior to the Stated Maturity; (c) change the place or
currency of any payment of principal of, or any premium, interest or Additional
Amounts on, any Debt Security; (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security; (e) reduce
the percentage in principal amount of the Outstanding Debt Securities of any
series, the consent of whose Holders is required to modify or amend such
Indenture; or (f) modify the foregoing requirements or reduce the percentage of
Outstanding Debt Securities necessary to waive any past default to less than a
majority. No modification or amendment of the Subordinated Indenture or any
Subsequent Indenture for Subordinated Debt Securities may adversely affect the
rights of any Holder of Senior Indebtedness without the consent of such Holder.
Except with respect to certain fundamental provisions, the Holders of at least a
majority in principal amount of Outstanding Debt Securities of any series may,
with respect to such series, waive past defaults under the applicable Indenture
and waive compliance by the Company with certain provisions of such Indenture.
EVENTS OF DEFAULT
Under each Indenture, the following will be Events of Default with respect
to Debt Securities of any series issued thereunder: (a) default in the payment
of any interest or Additional Amounts upon any Debt Security of that series when
due, and such default has continued for 30 days; (b) default in the payment of
any principal of or premium, if any, on any Debt Security of that series when
due; (c) default in the deposit of any sinking fund payment, when due, in
respect of any Debt Security of that series; (d) default in the performance of
any other covenant of the Company contained in such Indenture for the benefit of
such series or in the Debt Securities of such series, and such default has
continued for 60 days after written notice as provided in such Indenture; (e)
certain events in bankruptcy, insolvency or reorganization; and (f) any other
Event of Default provided with respect to Debt Securities of that series. The
applicable Trustee or the Holders of 25% in principal amount of the Outstanding
Debt Securities of that series may declare the principal amount (or such lesser
amount as may be provided for in the Debt Securities of that series) of all
Outstanding Debt Securities of that series and the interest accrued thereon and
Additional Amounts payable in respect thereof, if any, to be due and payable
immediately if an Event of Default with respect to Debt Securities of such
series shall occur and be continuing at the time of declaration. At any time
after a declaration of acceleration has been made with respect to Debt
Securities of any series but before a judgment or decree for payment of money
due has been obtained by the applicable Trustee, the Holders of a majority in
principal amount of the Outstanding Debt Securities of that series may rescind
any declaration of acceleration and its consequences, provided that all payments
due (other than those due as a result of acceleration) have been made and all
Events of Default have been remedied or waived. Any Event of Default with
respect to Debt Securities of any series may be waived by the Holders of a
majority in principal amount of all Outstanding Debt Securities of that series,
except in a case of failure to pay principal of or premium, if any, or interest
or Additional Amounts, if any, on any Debt Security of that series for which
payment
13
had not been subsequently made or in respect of a covenant or provision which
cannot be modified or amended without the consent of the Holder of each
Outstanding Debt Security of such series affected.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of a series may direct the time, method and place of conducting any
proceeding for any remedy available to the applicable Trustee or exercising any
trust or power conferred on such Trustee with respect to Debt Securities of such
series, provided that such direction shall not be in conflict with any rule of
law or the applicable Indenture. Subject to the provisions of each Indenture
relating to the duties of the appropriate Trustee, before proceeding to exercise
any right or power under an Indenture at the direction of such Holders, the
applicable Trustee shall be entitled to receive from such Holders reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in complying with any such direction.
The Company will be required to furnish to each Trustee annually a statement
as to the fulfillment by the Company of all of its obligations under the
applicable Indenture.
SPECIAL TERMS RELATING TO THE SENIOR DEBT SECURITIES
LIMITATIONS UPON LIENS
The Senior Indentures provide that the Company may not, and may not permit
any Subsidiary to, create, assume, incur or permit to exist any indebtedness for
borrowed money secured by a pledge, lien or other encumbrance (except for
certain liens specifically permitted by the Senior Indentures) on the Voting
Stock owned directly or indirectly by the Company of any Subsidiary (other than
a Subsidiary which, at the time of incurrence of such secured indebtedness, has
a net worth of less than $3,000,000) without making effective provision whereby
the Outstanding Senior Debt Securities will be secured equally and ratably with
such secured indebtedness.
LIMITATIONS ON DISPOSITION OF VOTING STOCK OF, AND MERGER AND SALE OF ASSETS BY,
MLPF&S
The Senior Indentures provide that the Company may not sell, transfer or
otherwise dispose of any Voting Stock of MLPF&S or permit MLPF&S to issue, sell
or otherwise dispose of any of its Voting Stock, unless, after giving effect to
any such transaction, MLPF&S remains a Controlled Subsidiary (defined in the
Senior Indentures to mean a corporation more than 80% of the outstanding shares
of Voting Stock of which are owned directly or indirectly by the Company). In
addition, the Senior Indentures provide that the Company may not permit MLPF&S
to (i) merge or consolidate, unless the surviving company is a Controlled
Subsidiary, or (ii) convey or transfer its properties and assets substantially
as an entirety, except to one or more Controlled Subsidiaries.
SPECIAL TERMS RELATING TO THE SUBORDINATED DEBT SECURITIES
Upon any distribution of assets of the Company resulting from any
dissolution, winding up, liquidation or reorganization, payments on Subordinated
Debt Securities are to be subordinated to the extent provided in the
Subordinated Indenture in right of payment to the prior payment in full of all
Senior Indebtedness, but the obligation of the Company to make payments on the
Subordinated Debt Securities will not otherwise be affected. No payment on
Subordinated Debt Securities may be made at any time when there is a default in
the payment of any principal, premium, interest, Additional Amounts, if any, or
sinking fund of or on any Senior Indebtedness. Holders of Subordinated Debt
Securities will be subrogated to the rights of holders of Senior Indebtedness to
the extent of payments made on Senior Indebtedness upon any distribution of
assets in any such proceedings out of the distributive shares of Subordinated
Debt Securities. By reason of such subordination, in the event of a distribution
of assets upon insolvency, certain creditors of the Company may recover more,
ratably, than Holders of Subordinated Debt Securities.
14
Senior Indebtedness is defined in the Subordinated Indenture as the
principal of, premium, if any, and unpaid interest on (a) indebtedness of the
Company (including indebtedness of others guaranteed by the Company), other than
the Subordinated Debt Securities, whether outstanding on the date of execution
of the Subordinated Indenture or thereafter created, incurred, assumed or
guaranteed, (i) for money owing to banks, (ii) for money borrowed from sources
other than banks or (iii) in connection with the acquisition by the Company or a
subsidiary of assets of any kind except in the ordinary course of business,
unless in the instrument creating or evidencing the same or pursuant to which
the same is outstanding it is provided that such indebtedness is not superior in
right of payment to the Subordinated Debt Securities, and (b) renewals,
extensions, modifications and refundings of any such indebtedness. As of
September 27, 1996, a total of approximately $47.7 billion of the Company's
indebtedness would have been Senior Indebtedness as so defined.
DESCRIPTION OF DEBT WARRANTS
The Company may issue, together with Debt Securities, Currency Warrants or
Index Warrants or separately, Debt Warrants for the purchase of Debt Securities.
The Debt Warrants are to be issued under debt warrant agreements (each a "Debt
Warrant Agreement") to be entered into between the Company and a bank or trust
company, as debt warrant agent (the "Debt Warrant Agent"), all as shall be set
forth in the Prospectus Supplement relating to Debt Warrants being offered
thereby. A copy of the form of Debt Warrant Agreement, including the form of
warrant certificates representing the Debt Warrants (the "Debt Warrant
Certificates"), reflecting the alternative provisions to be included in the Debt
Warrant Agreements that will be entered into with respect to particular
offerings of Debt Warrants, is filed as an exhibit to the Registration
Statement. The following summaries of certain provisions of the Debt Warrant
Agreement and the Debt Warrant Certificates do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all the
provisions of the Debt Warrant Agreement and the Debt Warrant Certificates,
respectively, including the definitions therein of certain terms.
GENERAL
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Debt Warrant Agreement relating to such Debt
Warrants and the Debt Warrant Certificates representing such Debt Warrants,
including the following: (1) the designation, aggregate principal amount, price
at which such principal amount may be purchased upon exercise and terms of the
Debt Securities purchasable upon exercise of such Debt Warrants, including
whether such Debt Securities are Senior Debt Securities or Subordinated Debt
Securities, and the procedures and conditions relating to the exercise of such
Debt Warrants; (2) the designation and terms of any related Debt Securities with
which such Debt Warrants are issued, including whether such Debt Securities are
Senior Debt Securities or Subordinated Debt Securities, the number of such Debt
Warrants issued with each such Debt Security, and the Indenture under which the
Debt Securities will be issued; (3) the date, if any, on and after which such
Debt Warrants and the related Debt Securities will be separately transferable;
(4) the date on which the right to exercise such Debt Warrants shall commence
and the date on which such right shall expire (the "Expiration Date"); (5) if
the Debt Securities purchasable upon exercise of such Debt Warrants are original
issue discount Debt Securities, a discussion of Federal income tax
considerations applicable thereto; and (6) whether the Debt Warrants represented
by the Debt Warrant Certificates will be issued in registered or bearer form,
and, if registered, where they may be transferred and registered.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Debt Warrant Agent or any other office
indicated in the Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the rights of Holders of
the Debt Securities
15
purchasable upon such exercise and will not be entitled to payments of principal
of, and any premium, Additional Amounts, if any, or interest on, the Debt
Securities purchasable upon such exercise.
EXERCISE OF DEBT WARRANTS
Each Debt Warrant will entitle the Holder to purchase for cash such
principal amount of Debt Securities at such exercise price as shall in each case
be set forth in, or be determinable as set forth in, the Prospectus Supplement
relating to the Debt Warrants offered thereby. Debt Warrants may be exercised at
any time up to the close of business on the Expiration Date set forth in the
Prospectus Supplement relating to the Debt Warrants offered thereby. After the
close of business on the Expiration Date, unexercised Debt Warrants will become
void.
Debt Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Debt Warrants offered thereby. Upon receipt of payment and the
Debt Warrant Certificate properly completed and duly executed at the corporate
trust office of the Debt Warrant Agent or any other office indicated in the
Prospectus Supplement, the Company will, as soon as practicable, forward the
Debt Securities purchasable upon such exercise. If less than all of the Debt
Warrants represented by such Debt Warrant Certificate are exercised, a new Debt
Warrant Certificate will be issued for the remaining amount of Debt Warrants.
DESCRIPTION OF CURRENCY WARRANTS
The Company may issue, together with Debt Securities, Debt Warrants or Index
Warrants or separately, Currency Warrants either in the form of Currency Put
Warrants entitling the Holders thereof to receive from the Company the cash
settlement value in U.S. dollars of the right to sell a specified amount of a
specified foreign currency or currency units for a specified amount of U.S.
dollars, or in the form of Currency Call Warrants entitling the Holders thereof
to receive from the Company the cash settlement value in U.S. dollars of the
right to purchase a specified amount of a specified foreign currency or units of
two or more currencies for a specified amount of U.S. dollars. The Currency
Warrants are to be issued under a currency put warrant agreement or a currency
call warrant agreement, as applicable (each a "Currency Warrant Agreement"), to
be entered into between the Company and a bank or trust company, as currency
warrant agent (the "Currency Warrant Agent"), all as shall be set forth in the
applicable Prospectus Supplement. Copies of the forms of Currency Put Warrant
Agreement and Currency Call Warrant Agreement, including the forms of warrant
certificates representing the Currency Put Warrants and Currency Call Warrants
(the "Currency Warrant Certificates"), reflecting the provisions to be included
in the Currency Warrant Agreements that will be entered into with respect to
particular offerings of Currency Warrants, are filed as exhibits to the
Registration Statement. The following summaries of certain provisions of the
Currency Warrant Agreements and the Currency Warrant Certificates do not purport
to be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Currency Warrant Agreements and the
Currency Warrant Certificates, respectively, including the definitions therein
of certain terms.
GENERAL
The applicable Prospectus Supplement will describe the terms of Currency
Warrants offered thereby, the Currency Warrant Agreement relating to such
Currency Warrants and the Currency Warrant Certificates representing such
Currency Warrants, including the following: (1) whether such Currency Warrants
shall be Currency Put Warrants, Currency Call Warrants, or both; (2) the formula
for determining the cash settlement value of each Currency Warrant; (3) the
procedures and conditions relating to the exercise of such Currency Warrants;
(4) the circumstances which will cause the Currency Warrants to be deemed to be
automatically exercised; (5) any minimum number of Currency
16
Warrants which must be exercised at any one time, other than upon automatic
exercise; and (6) the date on which the right to exercise such Currency Warrants
shall commence and the date on which such right shall expire (the "Expiration
Date"), provided that the commencement date and the Expiration Date may be the
same date.
BOOK-ENTRY PROCEDURES
Except as may otherwise be provided in an applicable Prospectus Supplement,
the Currency Warrants will be issued in the form of global Currency Warrant
Certificates, registered in the name of a depository or its nominee. Beneficial
owners will not be entitled to receive definitive certificates representing
Currency Warrants. Ownership of a Currency Warrant will be recorded on or
through the records of the brokerage firm or other entity that maintains a
beneficial owner's account. In turn, the total number of Currency Warrants held
by an individual brokerage firm for its clients will be maintained on the
records of the depository in the name of such brokerage firm or its agent.
Transfer of ownership of any Currency Warrant will be effected only through the
selling beneficial owner's brokerage firm.
EXERCISE OF CURRENCY WARRANTS
Each Currency Warrant will entitle the Holder to the cash settlement value
of such Currency Warrant on the applicable Exercise Date, in each case as such
terms will be defined in the applicable Prospectus Supplement. If a Currency
Warrant has more than one exercise date and is not exercised prior to 1:30 P.M.,
New York City time, on the fifth New York Business Day preceding the Expiration
Date, Currency Warrants will be deemed automatically exercised.
LISTING
Each issue of Currency Warrants will be listed on a national securities
exchange, subject only to official notice of issuance, as a condition of sale of
any such Currency Warrants. In the event that the Currency Warrants are delisted
from, or permanently suspended from trading on, such exchange, the Expiration
Date for such Currency Warrants will be the date such delisting or trading
suspension becomes effective and Currency Warrants not previously exercised will
be deemed automatically exercised on the business day immediately preceding such
Expiration Date. The applicable Currency Warrant Agreement will contain a
covenant of the Company not to seek delisting of the Currency Warrants, or
suspension of their trading, on such exchange.
DESCRIPTION OF INDEX WARRANTS
The Company may issue from time to time Index Warrants consisting of put
warrants (the "Index Put Warrants") or call warrants (the "Index Call
Warrants"). The Index Warrants will entitle the holders to receive from the
Company a payment or delivery, subject to applicable law, determined by
reference to decreases (in the case of Index Put Warrants) or to increases (in
the case of Index Call Warrants) in the level of an index or portfolio based on
one or more equity or debt securities (including the price or yield of such
securities), any statistical measure of economic or financial performance
(including any consumer price, currency or mortgage index) or the price or value
of any commodity or any combination thereof (the "Index"). Unless otherwise
specified in the accompanying Prospectus Supplement, payments, if any, upon
exercise (or deemed exercise) of the Index Warrants will be made in U.S.
dollars. The Index Warrants will be offered on terms to be determined at the
time of sale.
17
GENERAL
The applicable Prospectus Supplement will describe the Index Warrant
Agreement or Index Warrant Trust Indenture (each as defined below), as the case
may be, relating to the Index Warrants being offered thereby and the terms of
such Index Warrants, including, without limitation: (i) whether the Index
Warrants to be issued will be Index Put Warrants, Index Call Warrants or both;
(ii) the aggregate number and initial public offering price or purchase price;
(iii) the Index for such Index Warrants; (iv) whether the Index Warrants will be
deemed exercised as of a specified date or whether the Index Warrants may be
exercised during a period and the date on which the right to exercise such Index
Warrants commences and the date on which such right expires; (v) the manner in
which such Index Warrants may be exercised and any restrictions on, or other
special provisions relating to, the exercise of such Index Warrants; (vi) the
minimum number, if any, of such Index Warrants exercisable at any one time;
(vii) the maximum number, if any, of such Index Warrants that may, subject to
the Company's election, be exercised by all Index Warrantholders (or by any
person or entity) on any day; (viii) any provisions permitting an Index
Warrantholder to condition an exercise notice on the absence of certain
specified changes in the level of the applicable Index after the exercise date,
any provisions permitting the Company to suspend exercise of such Index Warrants
based on market conditions or other circumstances and any other special
provision relating to the exercise of such Index Warrants; (ix) any provisions
for the automatic exercise of such Index Warrants other than at expiration; (x)
any provisions permitting the Company to cancel such Index Warrants upon the
occurrence of certain events; (xi) any additional circumstances which would
constitute an Event of Default with respect to such Index Warrants; (xii) the
method of determining (a) the payment or delivery, if any, to be made in
connection with the exercise or deemed exercise of such Index Warrants (the
"Settlement Value"), (b) the minimum payment or delivery, if any, to be made
upon expiration of such Index Warrants (the "Minimum Expiration Value"), (c) the
payment or delivery to be made upon the exercise of any right which the Company
may have to cancel such Index Warrants and (d) the value of the Index; (xiii) in
the case of Index Warrants relating to an Index for which the trading prices of
underlying securities, commodities or rates are expressed in a foreign currency,
the method of converting amounts in the relevant foreign currency or currencies
into U.S. dollars (or such other currency or composite currency in which the
Index Warrants are payable); (xiv) the method of providing for a substitute
index or otherwise determining the payment or delivery, if any, to be made in
connection with the exercise of such Index Warrants if the Index changes or
ceases to be made available by its publisher; (xv) the time or times at which
payment or delivery, if any, will be made in respect of such Index Warrants
following exercise or deemed exercise; (xvi) the self-regulatory organization on
which such Index Warrants will be traded, if any; (xvii) any provisions for
issuing such Index Warrants in other than book-entry form; (xviii) if such Index
Warrants are not issued in book-entry form, the place or places at which payment
or delivery on cancellation, if any, and the Minimum Expiration Value, if any,
of such Index Warrants is to be made by the Company; (xix) certain U.S. federal
income tax consequences relating to such Index Warrants; and (xx) other specific
provisions.
Except as otherwise provided in the applicable Prospectus Supplement, each
issue of Index Warrants will contain the terms set forth below.
The Index Warrants which are issued without a Minimum Expiration Value will
be issued under one or more index warrant agreements (each, an "Index Warrant
Agreement") to be entered into between the Company and a bank or trust company,
as warrant agent (the "Index Warrant Agent"), all as described in the Prospectus
Supplement relating to such Index Warrants. The Index Warrant Agent will act
solely as the agent of the Company under the applicable Index Warrant Agreement
and will not assume any obligation or relationship of agency or trust for or
with any Index Warrantholders. A single bank or trust company may act as Index
Warrant Agent for more than one issue of Index Warrants.
The Index Warrants which are issued with a Minimum Expiration Value will be
issued under one or more index warrant trust indentures (each an "Index Warrant
Trust Indenture") to be entered into
18
between the Company and a corporation (or other person permitted to so act by
the Trust Indenture Act of 1939, as amended from time to time (the "Trust
Indenture Act")), to act as trustee (the "Index Warrant Trustee"), all as
described in the Prospectus Supplement relative to such Index Warrants. Any
Index Warrant Trust Indenture will be qualified under the Trust Indenture Act.
To the extent allowed by the Trust Indenture Act, a single qualified corporation
may act as Index Warrant Trustee for more than one issue of Index Warrants.
Forms of Index Warrant Agreement and Index Warrant Trust Indenture and the
respective global index warrant certificates related thereto are filed as
exhibits to the Registration Statement. The summaries herein of certain
provisions of the Index Warrant Agreement, the Index Warrant Trust Indenture and
global index warrant certificates do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all the provisions of
the Index Warrant Agreement, the Index Warrant Trust Indenture and global index
warrant certificates, respectively.
The Company will have the right to "reopen" a previous issue of Index
Warrants and to issue additional Index Warrants of such issue without the
consent of any Index Warrantholder.
The Index Warrants involve a high degree of risk, including the risk that
the Index Warrants will expire worthless except for the Minimum Expiration
Value, if any, of such Index Warrants. Investors should therefore be prepared to
sustain a total loss of the purchase price of the Index Warrants (except for the
Minimum Expiration Value, if applicable). Investors who consider purchasing
Index Warrants should be experienced with respect to options and option
transactions and reach an investment decision only after carefully considering
the suitability of the Index Warrants in light of their particular circumstances
and the information set forth below as well as additional information contained
in the Prospectus Supplement relating to such Index Warrants.
Unless otherwise provided in the Prospectus Supplement, each Index Warrant
will entitle Index Warrantholders to receive from the Company upon exercise the
Settlement Value of such Index Warrant. Certain Index Warrants issued pursuant
to an Index Warrant Trust Indenture will, if specified in the Prospectus
Supplement, entitle the Index Warrantholder to receive from the Company, under
certain circumstances specified in the Prospectus Supplement, a payment or
delivery equal to the greater of the applicable Settlement Value and a Minimum
Expiration Value of such Index Warrants. In addition, certain Index Warrants
will, if specified in the Prospectus Supplement, entitle Index Warrantholders to
receive from the Company a certain payment or delivery upon cancellation of the
Index Warrants by the Company, upon the occurrence of specified events. In
addition, if so specified in the Prospectus Supplement, following the occurrence
of an extraordinary event, the Settlement Value of an Index Warrant may, at the
option of the Company, be determined on a different basis, including in
connection with automatic exercise at expiration.
Unless otherwise specified in the related Prospectus Supplement, the Index
Warrants will be deemed to be automatically exercised upon expiration or such
earlier date that may be specified. Upon such automatic exercise, Index
Warrantholders will be entitled to receive a payment or delivery equal to the
Settlement Value of the Index Warrants, except that holders of Index Warrants
having a Minimum Expiration Value will be entitled to receive a payment or
delivery equal to the greater of such Settlement Value and the applicable
Minimum Expiration Value. The Minimum Expiration Value may be either a
predetermined payment or delivery or a payment or delivery that varies during
the term of the Index Warrants in accordance with a schedule or formula. Any
Minimum Expiration Value applicable to an issue of Index Warrants, as well as
any additional circumstances resulting in the automatic exercise of such Index
Warrants, will be specified in the related Prospectus Supplement.
If so specified in the Prospectus Supplement, the Index Warrants may be
canceled by the Company, or the exercise or valuation of, or payment or delivery
for, such Index Warrants may be delayed or postponed upon the occurrence of an
extraordinary event. Any extraordinary events relating to an issue of Index
Warrants will be set forth in the related Prospectus Supplement. Upon
cancellation,
19
the related Index Warrantholders will be entitled to receive only the applicable
payment or delivery on cancellation specified in such Prospectus Supplement. The
payment or delivery on cancellation may be either a predetermined payment or
delivery or a payment or delivery that varies during the term of the Index
Warrants in accordance with a schedule or formula.
If the Company defaults with respect to any of its obligations under Index
Warrants which are issued with a Minimum Expiration Value pursuant to an Index
Warrant Trust Indenture, such default may be waived by the Index Warrantholders
of a majority in interest of all outstanding Index Warrants, except a default in
the payment or delivery of the Settlement Value, Minimum Expiration Value or
cancellation payment or delivery (if applicable) on such Index Warrants or in
respect of a covenant or provision of the applicable Index Warrant Trust
Indenture which cannot be modified or amended without the consent of the Index
Warrantholder of each outstanding Index Warrant affected.
The Index Warrants are unsecured contractual obligations of the Company and
will rank pari passu with the Company's other unsecured contractual obligations
and with the Company's unsecured and unsubordinated debt. Since the Company is a
holding company, the right of the Company, and hence the right of creditors of
the Company (including the Holders of the Debt Securities), to participate in
any distribution of the assets of any subsidiary upon its liquidation or
reorganization or otherwise is necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that claims of the Company
itself as a creditor of the subsidiary may be recognized. In addition,
dividends, loans and advances from certain subsidiaries, including MLPF&S, to
the Company are restricted by net capital requirements under the Exchange Act
and under rules of certain exchanges and other regulatory bodies.
Certain special United States federal income tax considerations may be
applicable to instruments such as the Index Warrants. The related Prospectus
Supplement will describe such tax considerations. The summary of United States
Federal income tax considerations contained in the Prospectus Supplement will be
presented for informational purposes only, however, and will not be intended as
legal or tax advice to prospective purchasers. Prospective purchasers of Index
Warrants are urged to consult their own tax advisors prior to any acquisition of
Index Warrants.
BOOK-ENTRY PROCEDURES
Except as may otherwise be provided in an applicable Prospectus Supplement,
Index Warrants will be issued in book-entry form and represented by global Index
Warrants, registered in the name of a depository or its nominee. Except as may
otherwise be provided in an applicable Prospectus Supplement, Index
Warrantholders will not be entitled to receive definitive certificates
representing Index Warrants, unless the depository is unwilling or unable to
continue as depository or the Company decides to have the Index Warrants
represented by definitive certificates. A beneficial owner's interest in an
Index Warrant represented by a global Index Warrant will be recorded on or
through the records of the brokerage firm or other entity that maintains such
beneficial owner's account. In turn, the total number of Index Warrants held by
an individual brokerage firm or other entity for its clients will be maintained
on the records of the depository in the name of such brokerage firm or other
entity or its agent. Transfer of ownership of any Index Warrant will be effected
only through the selling beneficial owner's brokerage firm.
LISTING
Unless otherwise indicated in the Prospectus Supplement, the Index Warrants
will be traded pursuant to the rules of a self-regulatory organization as
specified in the Prospectus Supplement. It is expected that such self-regulatory
organization will cease trading an issue of Index Warrants at the close of
business on the related expiration date of such Index Warrants.
20
MODIFICATION
Any Index Warrant Agreement or Index Warrant Trust Indenture and the terms
of the related Index Warrants may be amended by the Company and the Index
Warrant Agent or Index Warrant Trustee, as the case may be (which amendment
shall take the form of a supplemental index warrant agreement or supplemental
index warrant trust indenture (collectively referred to as "Supplemental
Agreements")), without the consent of the holders of any Index Warrants, for the
purpose of (i) curing any ambiguity, or of curing, correcting or supplementing
any defective or inconsistent provision contained therein, or of making any
other provisions with respect to matters or questions arising under the Index
Warrant Agreement or Index Warrant Trust Indenture, as the case may be, which
shall not be inconsistent with the provisions thereof or of the Index Warrants,
(ii) evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants of the Company contained in
the Index Warrant Agreement or the Index Warrant Trust Indenture, as the case
may be, and the Index Warrants, (iii) appointing a successor depository, (iv)
evidencing and providing for the acceptance of appointment by a successor Index
Warrant Agent or Index Warrant Trustee with respect to the Index Warrants, as
the case may be, (v) adding to the covenants of the Company, for the benefit of
the Index Warrantholders or surrendering any right or power conferred upon the
Company under the Index Warrant Agreement or Index Warrant Trust Indenture, as
the case may be, (vi) issuing Index Warrants in definitive form, or (vii)
amending the Index Warrant Agreement or Index Warrant Trust Indenture, as the
case may be, in any manner which the Company may deem to be necessary or
desirable and which will not materially and adversely affect the interests of
the Index Warrantholders.
The Company and the Index Warrant Agent may also amend any Index Warrant
Agreement or Index Warrant Trust Indenture, as the case may be, and the terms of
the related Index Warrants (which amendment shall take the form of a
Supplemental Agreement) with the consent of the Index Warrantholders holding not
less than 66 2/3% in number of the then outstanding unexercised Index Warrants
affected by such amendment, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Index Warrant
Agreement or Index Warrant Trust Indenture, as the case may be, or of modifying
in any manner the rights of the Index Warrantholders; provided that no such
amendment that (i) changes the determination of the Settlement Value or the
payment or delivery to be made on cancellation, if any, or Minimum Expiration
Value, if any, of the Index Warrants (or any aspects of such determination) so
as to reduce the payment or delivery to be made upon exercise or deemed
exercise, (ii) shortens the period of time during which the Index Warrants may
be exercised, or otherwise materially and adversely affects the exercise rights
of the Index Warrantholders or (iii) reduces the number of outstanding Index
Warrants, the consent of whose holders is required for amendment of the Index
Warrant Agreement, the Index Warrant Trust Indenture or the terms of the related
Index Warrants, may be made without the consent of each Index Warrantholder
affected thereby.
EVENTS OF DEFAULT
Certain events in bankruptcy, insolvency or reorganization of the Company
will constitute an Event of Default with respect to Index Warrants having a
Minimum Expiration Value which are issued under an Index Warrant Trust
Indenture. Upon the occurrence of an Event of Default, the holders of 25% of
unexercised Index Warrants may elect to receive a settlement payment or delivery
for such unexercised Index Warrants, which will immediately become due to the
Index Warrantholders upon such election in an amount equal to the market value
of such Index Warrants (assuming the Company's ability to satisfy its
obligations under such Index Warrants as they would become due) as of the date
the Company is notified of the intended liquidation, as determined by a
nationally recognized securities broker-dealer unaffiliated with the Company and
mutually selected by the Company and the Index Warrant Trustee.
21
MERGER, CONSOLIDATION, SALE, LEASE OR OTHER DISPOSITIONS
The Company may consolidate or merge with or into any other corporation and
the Company may sell, lease or convey all or substantially all of its assets to
any corporation, provided that (i) the corporation (if other than the Company)
formed by or resulting from any such consolidation or merger or which shall have
received such assets shall be a corporation organized and existing under the
laws of the United States of America or a State thereof and shall assume the
Company's obligations in respect of the payment or delivery of the Settlement
Value (or any Minimum Expiration Value or cancellation payment or delivery, if
applicable) with respect to all the unexercised Index Warrants and the
performance and observance of all of the covenants and conditions of the Index
Warrant Agreement or Index Warrant Trust Indenture, as the case may be, to be
performed or observed by the Company, and (ii) the Company or such successor
corporation, as the case may be, shall not immediately be in default under the
Index Warrant Agreement or Index Warrant Trust Indenture, as the case may be.
ENFORCEABILITY OF RIGHTS BY INDEX WARRANTHOLDERS
Any Index Warrantholder may, without the consent of the related Index
Warrant Agent, enforce by appropriate legal action, in and for its own behalf,
its right to exercise, and receive payment or delivery for, its Index Warrants.
PLAN OF DISTRIBUTION
The Company may sell Securities (i) through MLPF&S as agent, (ii) to the
public through, or through underwriting syndicates managed or co-managed by, one
or more underwriters, including MLPF&S, or (iii) directly to purchasers. The
Prospectus Supplement with respect to the Securities of a particular series
describes the terms of the offering of such Securities, including the name of
the agent or the name or names of any underwriters, the public offering or
purchase price, any discounts and commissions to be allowed or paid to the agent
or underwriters, all other items constituting underwriting compensation, the
discounts and commissions to be allowed or paid to dealers, if any, and the
exchanges, if any, on which the Securities will be listed. Only the agents or
underwriters so named in the Prospectus Supplement are agents or underwriters in
connection with the Securities offered thereby. Under certain circumstances, the
Company may repurchase Securities and reoffer them to the public as set forth
above. The Company may also arrange for repurchases and resales of such
Securities by dealers.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters to solicit offers by certain institutions to purchase Debt
Securities from the Company pursuant to delayed delivery contracts providing for
payment and delivery on the date stated in the Prospectus Supplement. Each such
contract will be for an amount not less than, and, unless the Company otherwise
agrees, the aggregate principal amount of Debt Securities sold pursuant to such
contracts shall not be more than, the respective amounts stated in the
Prospectus Supplement. Institutions with whom such contracts, when authorized,
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions, and other
institutions, but shall in all cases be subject to the approval of the Company.
Delayed delivery contracts will not be subject to any conditions except that the
purchase by an institution of the Debt Securities covered thereby shall not at
the time of delivery be prohibited under the laws of any jurisdiction in the
United States to which such institution is subject.
The Company has agreed to indemnify the agent and the several underwriters
against certain civil liabilities, including liabilities under the Securities
Act of 1933, as amended (the "Act"), or contribute to payments the agent or the
underwriters may be required to make in respect thereof.
22
The distribution of Securities will conform to the requirements set forth in
the applicable sections of Rule 2720 of the Conduct Rules of the National
Association of Securities Dealers, Inc.
EXPERTS
The consolidated financial statements and related financial statement
schedules of the Company and its subsidiaries included or incorporated by
reference in the Company's 1995 Annual Report on Form 10-K, and incorporated by
reference in this Prospectus, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports incorporated by reference
herein. The Selected Financial Data under the captions "Operating Results",
"Financial Position" and "Common Share Data" for each of the five years in the
period ended December 29, 1995 included in the 1995 Annual Report to
Stockholders of the Company and incorporated by reference herein, has been
derived from consolidated financial statements audited by Deloitte & Touche LLP,
as set forth in their reports included as an exhibit to the Registration
Statement or incorporated by reference herein. Such consolidated financial
statements and related financial statement schedules, and such Selected
Financial Data appearing or incorporated by reference in this Prospectus and the
Registration Statement of which this Prospectus is a part, have been included or
incorporated herein by reference in reliance upon such reports of Deloitte &
Touche LLP given upon their authority as experts in accounting and auditing.
With respect to unaudited interim financial information for the periods
included in the Quarterly Reports on Form 10-Q which are incorporated herein by
reference, Deloitte & Touche LLP have applied limited procedures in accordance
with professional standards for a review of such information. However, as stated
in their report included in such Quarterly Report on Form 10-Q and incorporated
by reference herein, they did not audit and they do not express an opinion on
such interim financial information. Accordingly, the degree of reliance on their
reports on such information should be restricted in light of the limited nature
of the review procedures applied. Deloitte & Touche LLP are not subject to the
liability provisions of Section 11 of the Act for any such report on unaudited
interim financial information because any such report is not a "report" or a
"part" of the registration statement prepared or certified by an accountant
within the meaning of Sections 7 and 11 of the Act.
23
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT, THE APPLICABLE
PRICING SUPPLEMENT OR THE PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY
THIS PROSPECTUS SUPPLEMENT, THE APPLICABLE PRICING SUPPLEMENT AND THE
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY THE AGENT.
NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT, THE APPLICABLE PRICING
SUPPLEMENT OR THE PROSPECTUS NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL
UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS SUPPLEMENT,
THE APPLICABLE SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
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TABLE OF CONTENTS
PAGE
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>
PROSPECTUS SUPPLEMENT
Risk Factors......................... S-2
Description of Notes................. S-4
Certain United States Federal Income
Tax Considerations................... S-22
Plan of Distribution................. S-28
Legal Opinion........................ S-29
PROSPECTUS
Available Information................ 2
Incorporation of Certain Documents by
Reference.......................... 2
Merrill Lynch & Co., Inc............. 3
Use of Proceeds...................... 3
Summary Financial Information........ 4
Description of Debt Securities....... 10
Description of Debt Warrants......... 15
Description of Currency Warrants..... 16
Description of Index Warrants........ 17
Plan of Distribution................. 22
Experts.............................. 23
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[LOGO - MERRILL LYNCH & CO., INC.]
$4,240,774,362
MEDIUM-TERM NOTES,
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Series B
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PROSPECTUS SUPPLEMENT
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MERRILL LYNCH & CO.
JANUARY 6, 1997
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