<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 3, 1994
----------------
Merrill Lynch & Co., Inc.
-------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware 1-7182 13-2740599
----------------- ----------- ------------------
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
World Financial Center, North Tower, New York, New York 10281-1220
--------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (212) 449-1000
--------------
_________________________________________________________________
(Former name or former address, if changed since last report.)
<PAGE>
Item 5. Other Events
---------------------
Exhibits are filed herewith in connection with the Registration
Statement on Form S-3 (File No. 33-49947) filed by Merrill Lynch & Co., Inc.
("ML & Co.") with the Securities and Exchange Commission covering the
Constant Maturity U.S. Treasury Yield Increase Warrants, Expiring August 25,
1995 (the "Warrants") issuable under a Warrant Agreement dated as of February
3, 1994 between ML & Co. and Citibank, N.A. (the "Warrant Agreement"). ML &
Co. will issue 1,800,000 Warrants pursuant to the Warrant Agreement. The
exhibits consist of the form of the Warrant Agreement (including a form of
the Warrant) and an opinion of counsel relating to the Warrants.
Item 7. Financial Statements, Pro Forma Financial Information
--------------------------------------------------------------
and Exhibits
------------
EXHIBITS
(4) Instruments defining the rights of security holders,
including indentures.
Form of Warrant Agreement dated as of February 3,
1994, including a form of the Warrant certificate.
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood relating to the Constant
Maturity U.S. Treasury Yield Increase Warrants,
Expiring August 25, 1995 (including consent for
inclusion of such opinion in this report and in
Merrill Lynch & Co., Inc.'s Registration Statement
relating to such Warrants).
2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereto duly authorized.
MERRILL LYNCH & CO., INC.
---------------------------------
(Registrant)
By: /s/ Theresa Lang
-------------------------------
Theresa Lang
Senior Vice President
and Treasurer
Date: February 3, 1994
3
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
MERRILL LYNCH & CO., INC.
EXHIBITS TO CURRENT REPORT ON
FORM 8-K DATED FEBRUARY 3, 1994
Commission File Number 1-7182
<PAGE>
Exhibit Index
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<TABLE>
<CAPTION>
Exhibit No. Description Page
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<S> <C> <C>
(4) Instruments defining the rights of
security holders including indentures.
Form of Warrant Agreement dated as of
February 3, 1994, including a form of
the Warrant certificate.
(5) & (23) Opinion re: legality; consent of
counsel.
Opinion of Brown & Wood relating to
the Constant Maturity U.S. Treasury
Yield Increase Warrants, Expiring
August 25, 1995 (including consent
for inclusion of such opinion in
this report and in Merrill Lynch &
Co., Inc.'s Registration Statement
relating to such Warrants).
</TABLE>
2
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Exhibit (4)
MERRILL LYNCH & CO., INC.
and
CITIBANK, N.A., as Warrant Agent
____________________
WARRANT AGREEMENT
dated as of February 3, 1994
____________________
1,800,000 CONSTANT MATURITY U.S. TREASURY YIELD INCREASE WARRANTS,
EXPIRING AUGUST 25, 1995
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
PARTIES ............................................................ 1
RECITALS ............................................................ 1
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
<TABLE>
<CAPTION>
<S> <C>
SECTION 1.01. Issuance of Warrants; Book-Entry
Procedures; Successor Depository.......................... 1
SECTION 1.02. Form, Execution and Delivery of Global
Warrant Certificate....................................... 3
SECTION 1.03. Global Warrant Certificate............... 4
SECTION 1.04. Registration of Transfers and Exchanges.. 4
SECTION 1.05. Warrant Certificates..................... 4
</TABLE>
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
<TABLE>
<CAPTION>
<S> <C>
SECTION 2.01. Duration of Warrants.................. 8
SECTION 2.02. Exercise and Delivery of Warrants..... 8
SECTION 2.03. Early Exercise of the Warrants........ 10
SECTION 2.04. Covenant of the Company............... 12
SECTION 2.05. Return of Global Warrant Certificate.. 12
SECTION 2.06. Return of Money Held Unclaimed
for Two Years.......................................... 12
SECTION 2.07. Designation of Agent for Receipt of
Notice................................................. 12
</TABLE>
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS
SECTION 3.01. Holder of Warrant May Enforce Rights.... 13
SECTION 3.02. Merger, Consolidation, Sale, Transfer or
Conveyance............................. 13
ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants................ 14
SECTION 4.02. Treatment of Holders.................... 14
i
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ARTICLE V
CONCERNING THE WARRANT AGENT
<TABLE>
<CAPTION>
<S> <C>
SECTION 5.01. Warrant Agent................... 15
SECTION 5.02. Conditions of Warrant Agent's
Obligations...................................... 15
SECTION 5.03. Resignation and Appointment of
Successor........................................ 17
</TABLE>
ARTICLE VI
MISCELLANEOUS
<TABLE>
<CAPTION>
<S> <C>
SECTION 6.01. Amendment............................... 19
SECTION 6.02. Notices and Demands to the Company and
Warrant Agent............................................ 19
SECTION 6.03. Addresses for Notices................... 20
SECTION 6.04. Notices to Holders...................... 20
SECTION 6.05. Applicable Law.......................... 20
SECTION 6.06. Obtaining of Governmental Approvals..... 20
SECTION 6.07. Persons Having Rights Under Warrant
Agreement................................................ 20
SECTION 6.08. Headings................................ 21
SECTION 6.09. Counterparts............................ 21
SECTION 6.10. Inspection of Agreement................. 21
</TABLE>
SIGNATURES.................................................. 21
EXHIBIT A - Form of Global Warrant Certificate
ii
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WARRANT AGREEMENT
THIS AGREEMENT, dated as of February 3, 1994, between MERRILL LYNCH
& CO., INC., a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), and CITIBANK, N.A., a national banking
association duly incorporated and existing under the laws of the United
States, as Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H T H A T :
WHEREAS, the Company proposes to sell warrants (the "Warrants" or,
individually, a "Warrant") representing the right to receive from the Company
the Cash Settlement Value (as defined herein) in U.S. dollars computed by
reference to increases in the CMT Yield (as defined below); and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of
the Company in connection with the issuance, transfer and exercise of the
Warrants, and wishes to set forth herein, among other things, the provisions
of the Warrants and the terms and conditions on which they may be issued,
transferred, exercised and cancelled;
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01. Issuance of Warrants; Book-Entry Procedures;
--------------------------------------------
Successor Depository. (a) The Warrants shall initially be represented by a
--------------------
single certificate (the "Global Warrant Certificate"). Each Warrant shall
represent the right, subject to the provisions contained herein and in the
Global Warrant Certificate, to receive the Cash Settlement Value, if any, (as
defined in paragraph (d) of Section 2.02) of such Warrant. In no event shall
Holders (as defined in Section 4.02) be entitled to receive any interest on
any Cash Settlement Value. Beneficial owners of interests in the Global
Warrant Certificate shall not be entitled to receive definitive Warrants
evidencing the Warrants; provided, however, that if (i) the Depository (as
defined in Section 1.01(b)) is at any time unwilling or unable to continue as
Depository for the Warrants and a successor Depository is not appointed by
the Company within 90 days, or (ii) the Company shall be adjudged bankrupt or
insolvent or make an assignment for the benefit of its creditors or institute
proceedings to be adjudicated bankrupt or shall consent to the
1
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filing of a bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization under applicable law, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian of it or all or any substantial
part of its property shall be appointed, or if any public officer shall have
taken charge or control of the Company or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation, the Company will
issue Warrants in definitive form in exchange for the Global Warrant
Certificate. In addition, the Company may at any time determine not to have
the Warrants represented by a Global Warrant Certificate and, in such event,
will issue Warrants in definitive form in exchange for the Global Warrant
Certificate. In either instance, and in accordance with the provisions of
this Agreement, each beneficial owner of an interest in the Global Warrant
Certificate will be entitled to have a number of Warrants equivalent to such
owner's beneficial interest in the Global Warrant Certificate registered in
its name and will be entitled to physical delivery of such Warrants in
definitive form by the Depository Participant (as defined in Section 1.01(c))
through which such owner's beneficial interest is reflected. The provisions
of Section 1.05 shall apply only if, and when, Warrants in definitive form
("Warrant Certificates") are issued hereunder. Unless the context shall
otherwise require, all references in this Agreement to the Global Warrant
Certificate shall include the Warrant Certificates in the event that Warrant
Certificates are issued.
(b) The Global Warrant Certificate shall be deposited with the
Depository or its agent (the term "Depository", as used
herein, initially refers to The Depository Trust Company and
includes any successor depository selected by the Company as
provided in Section 1.01(d)) for credit to the accounts of the
Depository Participants as shown on the records of the Depository
from time to time.
(c) The Global Warrant Certificate will initially be registered in
the name of a nominee of the Depository selected by the Company for the
Warrants. The Warrant holdings of Depository Participants will be recorded
on the books of the Depository. The holdings of customers of Depository
Participants will be reflected on the books and records of such Depository
Participants and will not be known to the Warrant Agent, the Company or to
the Depository. "Depository Participants" include securities brokers and
dealers, banks and trust companies, clearing organizations and certain other
organizations which are participants in the Depository's system. The Global
Warrant Certificate will be held by the Depository or its agent.
2
<PAGE>
(d) The Company may from time to time select a new entity to act
as Depository and, if such selection is made, the Company shall promptly give
the Warrant Agent notice to such effect identifying the new Depository, and
the Global Warrant Certificate shall be delivered to the Warrant Agent and
shall be transferred to the new Depository as provided in Section 1.04 as
promptly as possible. Appropriate changes may be made in the Global Warrant
Certificate and the related notices delivered in
connection with an exercise of Warrants to reflect the selection of the new
Depository.
SECTION 1.02. Form, Execution and Delivery of Global Warrant
----------------------------------------------
Certificate. The Global Warrant Certificate shall be in registered form and
-----------
substantially in the form set forth in Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement. The Global Warrant Certificate may
have imprinted or otherwise reproduced thereon such letters, numbers or other
marks of identification or designation and such legends or endorsements as
the officers of the Company executing the same may approve (execution thereof
to be conclusive evidence of such approval) and are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed or of
the Depository, or to conform to usage. The Global Warrant Certificate shall
be signed on behalf of the Company by its President, Chairman of the Board,
officer serving as Chief Financial Officer, Treasurer, any Executive Vice
President or any Vice President, manually or by facsimile signature, and a
facsimile of its corporate seal shall be impressed, imprinted or engraved
thereon, which shall be attested by its Secretary or any Assistant Secretary,
either manually or by facsimile signature. Typographical and other minor
errors or defects in any such reproduction of the seal or any such signature
shall not affect the validity or enforceability of the Global Warrant
Certificate that has been duly authenticated and delivered by the Warrant
Agent.
In case any officer of the Company who shall have signed the Global
Warrant Certificate either manually or by facsimile signature shall cease to
be such officer before the Global Warrant Certificate so signed shall have
been authenticated and delivered by the Warrant Agent to the Company or
delivered by the Company, such Global Warrant Certificate nevertheless may be
authenticated and delivered as though the person who signed such Global
Warrant Certificate had not ceased to be such officer of the Company; and the
Global Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Global Warrant
Certificate, shall be the proper officers of the Company, although at the
date of the execution of this Agreement any such
3
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person was not such officer.
SECTION 1.03. Global Warrant Certificate . A Global
--------------------------
Warrant Certificate relating to 1,800,000 Warrants originally
issued may be executed by the Company and delivered to the
Warrant Agent on or after the date of execution of this
Agreement. The Warrant Agent is authorized, upon receipt of the
Global Warrant Certificate from the Company, duly executed on
behalf of the Company, to authenticate such Global Warrant
Certificate. The Global Warrant Certificate shall be manually
authenticated and dated the date of its authentication by the
Warrant Agent and shall not be valid for any purpose unless so
authenticated. The Warrant Agent shall authenticate and deliver
the Global Warrant Certificate to or upon the written order of the Company.
SECTION 1.04. Registration of Transfers and Exchanges. Except as
---------------------------------------
otherwise provided herein or in the Global Warrant Certificate, the Warrant
Agent shall from time to time register the transfer of the Global Warrant
Certificate in the records of the Warrant Agent only to the Depository, to a
nominee of the Depository, to a successor Depository, or to a nominee of a
successor Depository, upon surrender of such Global Warrant Certificate, duly
endorsed and accompanied by a written instrument or instruments of transfer
in form satisfactory to the Warrant Agent and the Company, duly signed by the
registered Holder thereof or by the duly appointed legal representative
thereof or by a duly authorized attorney. Upon any such registration of
transfer, the Company shall execute and the Warrant Agent shall authenticate
and deliver in the name of the designated transferee a new Global Warrant
Certificate of like tenor and evidencing a like number of Warrants as
evidenced by the Global Warrant Certificate at the time of such registration
of transfer.
The Global Warrant Certificate may be transferred as provided above
at the option of the Holder thereof when surrendered to the Warrant Agent at
its office or agency maintained for the purpose of transferring any of the
Warrants, which shall be south of Chambers Street in the Borough of
Manhattan, The City of New York (the "Warrant Agent Office"), and which is,
on the date of this Agreement, 111 Wall Street, New York, New York 10043
Attention: Corporate Trust Services, or at the office of any successor
Warrant Agent as provided in Section 5.03, in exchange for another Global
Warrant Certificate of like tenor and representing a like number of Warrants.
SECTION 1.05. Warrant Certificates. Any Warrant Certificates
--------------------
issued in accordance with Section 1.01(a) shall be in registered form
substantially in the form set forth in Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
necessary or desirable
4
<PAGE>
for individual Warrant Certificates, and may represent any integral multiple
of Warrants. The Warrant Certificates may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of identification or
designation and such legends or endorsements as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence
of such approval) and are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Warrants may be listed or of the Depository, or to
conform to usage. Warrant Certificates shall be signed on behalf of the
Company upon the same conditions, in substantially the same manner and with
the same effect as the Global Warrant Certificate.
Each Warrant Certificate, when so signed on behalf of the Company,
shall be delivered to the Warrant Agent, which shall manually authenticate
and deliver the same to or upon the written order of the Company. Each
Warrant Certificate shall be dated the date of its authentication.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant
Certificate has been authenticated by the manual signature of the Warrant
Agent. Such signature by the Warrant Agent upon any Warrant Certificate
executed by the Company shall be conclusive evidence that the Warrant
Certificate so authenticated has been duly issued hereunder.
Warrant Certificates delivered in exchange for the Global Warrant
Certificate shall be registered in such names and addresses (including tax
identification numbers) and in such denominations as shall be requested in
writing by the Depository or its nominee in whose name the Global Warrant
Certificate is registered, upon written certification to the Company and the
Warrant Agent in form satisfactory to each of them of a beneficial ownership
interest in the Global Warrant Certificate.
The Company shall cause to be kept at an office of the Warrant
Agent in The City of New York a register (the register maintained in such
office and in any other office or agency maintained by or on behalf of the
Company for such purpose being herein sometimes collectively referred to as
the "Warrant Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Warrant
Certificates and the transfer of Warrant Certificates. The Warrant Agent is
hereby appointed "Warrant Registrar" for the purpose of registering Warrant
Certificates and the transfer of Warrant Certificates as herein provided.
Upon surrender for registration of a transfer of a Warrant
Certificate at an office or agency of the Company
5
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maintained for such purpose, the Company shall execute, and the Warrant Agent
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Warrant Certificates of any authorized
denominations and representing Warrants of a like aggregate number.
At the option of the Holder, Warrant Certificates may be exchanged
for other Warrant Certificates of any authorized denominations and
representing Warrants of a like aggregate number, upon surrender of the
Warrant Certificates to be exchanged at such office or agency. Whenever any
Warrant Certificates are so surrendered for exchange, the Company shall
execute, and the Warrant Agent shall authenticate and deliver, the Warrant
Certificates which the Holder making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of a transfer
or an exchange of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations of the Company, and entitled to the
same benefits under this Warrant Agreement, as the Warrant Certificates
surrendered upon such registration of a transfer or an exchange.
Every Warrant Certificate presented or surrendered for registration
of a transfer or for an exchange shall (if so required by the Company or the
Warrant Agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Warrant Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of a transfer
or an exchange of Warrant Certificates, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of a transfer or an exchange of
Warrant Certificates.
If any mutilated Warrant Certificate is surrendered to the Warrant
Agent, the Company shall execute and the Warrant Agent shall authenticate and
deliver in exchange therefor a new Warrant Certificate of like tenor
representing Warrants of a like number and bearing a number not
contemporaneously outstanding.
If there shall be delivered by a Holder to the Company and the
Warrant Agent (i) evidence to their satisfaction of the destruction, loss or
theft of any Warrant Certificate, (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them
harmless and (iii) funds sufficient to cover any cost or expense to the
Company (including any fees charged by the Warrant Agent) relating to the
issuance of a new Warrant Certificate, then, in the absence of notice to
6
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the Company or the Warrant Agent that such Warrant Certificate has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Warrant Agent shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of
like tenor representing Warrants of a like number and bearing a number not
contemporaneously outstanding.
Every new Warrant Certificate issued pursuant to this Section 1.05
in lieu of any destroyed, lost or stolen Warrant Certificate shall constitute
an original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Warrant Agreement equally and proportionately with any and all other Warrant
Certificates duly issued hereunder.
The provisions of this Section 1.05 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Prior to due presentment of a Warrant Certificate for registration
of transfer, the Company, the Warrant Agent and any agent of the Company or
the Warrant Agent may treat the person in whose name such Warrant Certificate
is registered as the owner of such Warrant Certificate for all purposes
hereunder whatsoever, whether or not such Warrant Certificate has been
transferred and neither the Company, the Warrant Agent nor any agent of the
Company or the Warrant Agent shall be affected by notice to the contrary.
All Warrant Certificates surrendered for registration of transfer
or exchange shall, if surrendered to any person other than the Warrant Agent,
be delivered to the Warrant Agent and shall be promptly cancelled by it. The
Company may at any time deliver to the Warrant Agent for cancellation any
Warrant Certificates previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and all Warrant
Certificates so delivered shall be promptly cancelled by the Warrant Agent.
No Warrant Certificates shall be authenticated in lieu of or in exchange for
any Warrant Certificates cancelled as provided in this Section 1.05, except
as expressly permitted by this Warrant Agreement. All cancelled Warrant
Certificates held by the Warrant Agent shall be disposed of as directed by
the Company.
7
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ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Duration of Warrants. Subject to the limitations
--------------------
described herein, each Warrant evidenced by the Global Warrant Certificate
will expire on August 25, 1995 (the "Expiration Date").
SECTION 2.02. Exercise and Delivery of Warrants.
---------------------------------
(a) The Warrants will be automatically exercised on the fifth New
York Business Day immediately preceding the Expiration Date or, if an Early
Expiration Date occurs, the New York Business Day immediately preceding the
Early Expiration Date (the "Exercise Date").
(b) On the Exercise Date, the Warrant Agent shall: (i) obtain the
Spot Yield from the Calculation Agent; (ii) determine the Cash Settlement
Value of the Warrants; (iii) advise the Company of the aggregate Cash
Settlement Value of the Warrants and advise the Company of such other matters
relating to the exercised Warrants as the Company shall reasonably request.
Any notice to be given to the Company by the Warrant Agent pursuant to this
Section 2.02 or pursuant to Section 2.03 shall be by telephone and shall be
promptly confirmed in writing. Any notice to be given by the Calculation
Agent to the Warrant Agent pursuant to this Section 2.02 or pursuant to
Section 2.03 shall be by facsimile transmission to the address of the
Warrant Agent set forth in Section 6.03.
(c) If no Early Expiration Date occurs, the Company will make
available to the Warrant Agent, no later than 3:00 P.M., New York City time,
on the Expiration Date, or, if the Expiration Date is not a New York Business
Day, on the next succeeding New York Business Day (the "Settlement Date"),
funds in an amount sufficient to pay such Cash Settlement Value. Provided
that the Company has made adequate funds available to the Warrant Agent in
such manner, the Warrant Agent will make payment by check to the Depository,
after 3:00 P.M., New York City time, but prior to the close of business, on
such Settlement Date. Any such payment will be in the amount of the
aggregate Cash Settlement Value in respect of the Warrants.
(d) "Cash Settlement Value" of a Warrant is an amount which is the
greater of:
(i) $100 x 4 x (Spot Yield - Strike Yield) and
(ii) $0
The "Strike Yield" equals 5.03%. The "Spot Yield" will be determined on
the Exercise Date by Merrill Lynch, Pierce, Fenner
8
<PAGE>
& Smith Incorporated (the "Calculation Agent"). The "Spot Yield" will be
determined as follows:
(i) The Spot Yield will equal the rate which appears on Telerate Page
7052, "WEEKLY AVG YIELDS ON TREASURY CONSTANT MATURITIES", under the column
entitled "5 YR", which appears as of 2:30 P.M., New York time, on the
Exercise Date. "Telerate Page 7052" means the display designated as page
7052 on the Dow Jones Telerate Service (or such page as may replace page 7052
on that service).
(ii) If the Spot Yield as described in clause (i) is not available by 2:30
P.M., New York City time, on the Exercise Date, the Spot Yield will equal the
one-week average yield on 5-year United States Treasury securities at
"constant maturity", as published in the most recent H.15(519) (as defined
below) available on the Exercise Date, in the column "Week Ending" for the
most recent date opposite the heading "Treasury constant maturities, 5-Year."
"H.15(519)" means the weekly statistical release designated as such,
published by the Board of Governors of the Federal Reserve System.
(iii) If the most recent H.15(519) available on the Exercise Date as
described in clause (ii) above was published more than fourteen calendar days
prior to the Exercise Date, the Spot Yield will equal the one-week average
yield on 5-year United States Treasury securities at "constant maturity" as
otherwise announced by the Federal Reserve Bank of New York on the Exercise
Date for the preceding week.
(iv) If the Spot Yield as described in clause (iii) is not announced by
3:00 P.M., New York City time, on the Exercise Date, the Spot Yield will be
calculated by the Calculation Agent and will be a yield to maturity
(expressed as a bond equivalent and as a decimal rounded, if necessary, to
the nearest one hundred-thousandth of a percentage point with five one-
millionths of a percentage point rounded up, on the basis of a year of 365
days, applied on a daily basis) based on the arithmetic mean of the secondary
market offer prices as of approximately 3:30 P.M., New York City time, on the
Exercise Date of three leading primary United States government securities
dealers in The City of New York selected by the Calculation Agent (from five
such dealers 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
approximately five years, a remaining term to maturity of not less than four
years and in an amount of $100,000,000. If three or four (and not five) of
such dealers are quoting as described in this clause (iv), then the Spot
Yield will be based on the arithmetic mean of the bid prices obtained and
neither the highest nor lowest of such quotations will be eliminated.
9
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(v) If fewer than three dealers selected by the Calculation Agent are
quoting as described in clause (iv), the Spot Yield will be calculated by the
Calculation Agent and will be a yield to maturity (expressed as a bond
equivalent and as a decimal rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point with five one-millionths of a
percentage point rounded up, on the basis of a year of 365 days, and applied
on a daily basis) based on the arithmetic mean of the secondary market offer
prices as of approximately 3:30 P.M., New York City time, on the Exercise
Date of three leading primary United States government securities dealers in
The City of New York selected by the Calculation Agent (from five such
dealers 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
approximately ten years, a remaining term to maturity closest to five years
and in an amount of $100,000,000. If three or four (and not five) of such
dealers are quoting as described in this clause, then the Spot Yield will be
based on the arithmetic mean of the bid prices obtained and neither the
highest nor lowest of such quotes will be eliminated. If two Treasury Notes
with an original maturity of approximately ten years have remaining terms to
maturity equally close to five years, the quotes for the Treasury Note with
the shorter remaining term to maturity will be used.
The Cash Settlement Value will be rounded, if necessary, to the nearest
cent (with one-half cent being rounded upwards).
SECTION 2.03. Early Exercise of the Warrants.
------------------------------
(a) In the event that the Warrants are delisted from, or
permanently suspended from trading on, the American Stock Exchange and the
Warrants are not simultaneously accepted for trading pursuant to the rules of
another Self-Regulatory Organization (as defined in Section 3(a)(26) of the
Securities Exchange Act of 1934, as amended), the Warrants will expire on the
date such delisting or trading suspension becomes effective (an "Early
Expiration Date") and the Warrants will be automatically exercised on the New
York Business Day immediately preceding the Early Expiration Date. The
Company will advise the Warrant Agent of the date of any expected delisting
or permanent suspension of trading of the Warrants as soon as is practicable
and will immediately inform the Warrant Agent after the Company has received
notice that such delisting or suspension has occurred and that the Warrants
are not accepted for listing on another Self-Regulatory Organization, but in
no event will such notice be given to the Warrant Agent later than 5:00 P.M.,
New York City time, on the second New York Business Day preceding the Early
Expiration Date.
(b) The Warrants will expire on the date that any
10
<PAGE>
of the following events occur (any such date also being an "Early Expiration
Date") and the Warrants will be automatically exercised on the New York
Business Day immediately preceding the Early Expiration Date:
(i) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
the Company or for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(ii) the Company commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or similar official) of
the Company or for any substantial part of its property, or shall
make any general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due or shall take any
corporate action in furtherance of any of the foregoing.
(c) The Warrant Agent shall, on the New York Business Day
following the Exercise Date as determined pursuant to subsection (a) or (b)
above, (i) obtain the Spot Yield from the Calculation Agent and determine the
Cash Settlement Value, if any, in the manner provided in paragraph (d) of
Section 2.02, (ii) advise the Company of the Spot Yield and the Cash
Settlement Value, if any, of the Warrants evidenced by the Global Warrant
Certificate, and (iii) advise the Company of such other matters relating to
the Warrants as the Company shall reasonably request. Provided that the
Company has made adequate funds available to the Warrant Agent in a timely
manner which shall, in no event, be later than 3:00 P.M., New York City time,
on the fifth New York Business Day following the Early Expiration Date, the
Warrant Agent will make its check (or another form of payment in accordance
with existing arrangements between the Warrant Agent and the Depository)
available to the Depository against receipt by the Warrant Agent from the
Depository of the Global Warrant Certificate on the fifth New York Business
Day following the
11
<PAGE>
Early Expiration Date, such check to be in the amount of the aggregate Cash
Settlement Value in respect of the number of Warrants evidenced by the Global
Warrant Certificate at the close of business on the Early Expiration Date.
The Warrant Agent shall promptly cancel the Global Warrant Certificate
following its receipt thereof from the Depository.
(d) The Company will notify the beneficial owners of interests
in the Global Warrant Certificate, or will cause such owners to be notified,
as promptly as is practicable, of any expected delisting or suspension of
trading of the Warrants.
(e) If the Warrants are simultaneously accepted for trading
pursuant to the rules of another Self-Regulatory Organization (as defined in
Section 3(a)(26) of the Securities Exchange Act of 1934 as amended), from and
after such date all references in this Section 2.03 shall continue to apply,
but each reference to the "American Stock Exchange" herein shall be deemed to
refer to such other Self-Regulatory Organization.
SECTION 2.04. Covenant of the Company. The Company covenants,
-----------------------
for the benefit of the Holders, that it will not seek the delisting of the
Warrants from, or suspension of their trading on, the American Stock
Exchange.
SECTION 2.05. Return of Global Warrant Certificate. At such time
------------------------------------
as all of the Warrants have been exercised, deemed automatically exercised or
otherwise cancelled, the Warrant Agent shall destroy the cancelled Global
Warrant Certificate unless the Company directs it to return it.
SECTION 2.06. Return of Money Held Unclaimed for Two Years. Any
--------------------------------------------
money deposited with or paid to the Warrant Agent for the payment of the Cash
Settlement Value of any Warrants and not applied but remaining unclaimed for
two years after the date upon which such Cash Settlement Value shall have
become due and payable, shall, unless otherwise required by applicable law,
be repaid by the Warrant Agent to the Company and the Holder of such Warrants
shall thereafter look only to the Company for any payment which such Holder
may be entitled to collect and all liability of the Warrant Agent with
respect to such money shall thereupon cease; provided, however, that the
Warrant Agent, before making any such repayment, may at the expense of the
Company notify the Holders concerned that said money has not been so applied
and remains unclaimed and that after a date named therein any unclaimed
balance of said money then remaining will be returned to the
Company.
SECTION 2.07. Designation of Agent for Receipt of Notice. The
------------------------------------------
Company may from time to time designate in writing to the Warrant Agent a
designee for receipt of all notices required to be given by the Warrant Agent
pursuant to this Article II and all such notices thereafter shall be given in
the manner herein
12
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provided by the Warrant Agent to such designee.
13
<PAGE>
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01. Holder of Warrant May Enforce Rights.
------------------------------------
Notwithstanding any of the provisions of this Agreement, any Holder, without
the consent of the Warrant Agent, may, in and for his own behalf, enforce,
and may institute and maintain any suit, action or proceeding against the
Company suitable to enforce, or otherwise in respect of, his right to receive
payment for his Warrants as provided in the Global Warrant Certificate and in
this Agreement.
SECTION 3.02. Merger, Consolidation, Sale, Transfer or
----------------------------------------
Conveyance. The Company may consolidate with, or sell, lease or convey all
----------- or substantially all of its assets to, or merge with or into any
other corporation, provided that in any such case, either the Company shall
be the continuing corporation, or the successor corporation shall be a
corporation organized and existing under the laws of the United States of
America or a State thereof and such successor corporation shall expressly
assume the payment of the Cash Settlement Value with respect to all
unexercised Warrants, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Agreement and the Global Warrant Certificate to be performed by the Company.
Such successor or assuming corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, a new Global
Warrant Certificate representing the Warrants not theretofore exercised, in
exchange and substitution for the Global Warrant Certificate theretofore
issued. Such Global Warrant Certificate shall in all respects have the same
legal rank and benefit under this Agreement as the Global Warrant Certificate
theretofore issued in accordance with the terms of this Agreement as though
such new Global Warrant Certificate had been issued at the date of the
execution hereof. In any case of any such consolidation, merger, sale, lease
or conveyance of substantially all of the assets of the Company, such changes
in phraseology and form (but not in substance) may be made in the new Global
Warrant Certificate as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, sale, lease or
conveyance of substantially all of the assets of the Company complies with
the provisions of this Section 3.02 and that the assumption of this Agreement
by the successor or assuming corporation is effective.
14
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ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants. In the event the Company
------------------------
shall purchase or otherwise acquire Warrants, such Warrants may, at the
option of the Company and upon notification to the Warrant Agent, be
surrendered free through a Depository Participant for credit to the Warrant
Account and if so credited the Warrant Agent shall promptly note the
cancellation of such Warrants by notation on the records of the Warrant
Agent. No Warrant shall be issued in lieu of or in exchange for any Warrant
which is cancelled as provided herein, except as otherwise expressly
permitted by this Agreement.
SECTION 4.02. Treatment of Holders. The Company, the Warrant
--------------------
Agent and any agent of the Company or the Warrant Agent may deem and treat
the person in whose name the Global Warrant Certificate shall be registered
in the records of the Warrant Agent as the absolute owner of such Global
Warrant Certificate (notwithstanding any notation of ownership or other
writing thereon) (the "Holder") for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced hereby, and neither
the Company nor the Warrant Agent, nor any agent of the Company or the
Warrant Agent shall be affected by any notice to the contrary. This Section
4.02 shall be without prejudice to the rights of Holders as described
elsewhere herein.
15
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ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. (a) The Company hereby appoints
-------------
Citibank, N.A. as Warrant Agent of the Company in respect of the Warrants and
Global Warrant Certificate upon the terms and subject to the conditions set
forth herein and in the Global Warrant Certificate; and Citibank, N.A. hereby
accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Global Warrant Certificate
and hereby and such further powers and authority acceptable to it to act on
behalf of the Company as the Company may hereafter grant to or confer upon
it. All of the terms and provisions with respect to such powers and
authority contained in the Global Warrant Certificate are subject to and
governed by the terms and provisions hereof.
(b) The Warrant Agent covenants and agrees to maintain offices, staffed
by qualified personnel, with adequate facilities for the discharge of its
responsibilities under this Warrant Agreement, including without limitation
the computation of the Cash Settlement Value and the timely settlement of the
Warrants upon exercise thereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
-----------------------------------------
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof and of the Global Warrant Certificates including the
following, to all of which the Company agrees and to all of which the rights
hereunder of the Holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company for all services rendered
by the Warrant Agent and to reimburse the Warrant Agent for its reasonable
out-of-pocket expenses (including counsel fees and expenses) incurred by
the Warrant Agent without negligence, bad faith or breach of this Agreement
on its part in connection with the services rendered by it hereunder. The
Company also agrees to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense (including reasonable
attorneys' fees and expenses) incurred without negligence, bad faith or
breach of this Agreement on the part of the Warrant Agent, arising out of
or in connection with it acting as such Warrant Agent hereunder or with
respect to the Warrants or the Global Warrant Certificate, as well as the
reasonable costs and expenses of defending against any claim of liability
in the premises.
16
<PAGE>
(b) In acting under this Agreement and in connection with the Global
Warrant Certificate, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or
trust for or with any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and
the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted or thing suffered by it in
reliance upon any Global Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) The Warrant Agent, and its officers, directors and employees, may
become the owner of, or acquire an interest in, any Warrants or other
obligations of the Company, with the same rights that it or they would have
if it were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of Holders of Warrants or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder.
(f) The Warrant Agent shall not be under any liability for interest on
any monies at any time received by it pursuant to any of the provisions of
this Agreement or of the Global Warrant Certificate nor shall it be
obligated to segregate such monies from other monies held by it, except as
required by law. The Warrant Agent shall not be responsible for advancing
funds on behalf of the Company.
(g) The Warrant Agent shall not be under any responsibility with
respect to the validity or sufficiency of this Agreement or the execution
and delivery hereof (except the due execution and delivery hereof by the
Warrant Agent) or with respect to the validity or execution of the Global
Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate
(except as to the Warrant Agent's authentication thereon) shall be taken as
the statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of the same.
17
<PAGE>
(i) The Warrant Agent shall be obligated to perform only such duties as are
herein and in the Global Warrant Certificate specifically set forth and no
implied duties or obligations shall be read into this Agreement or the
Global Warrant Certificate against the Warrant Agent. The Warrant Agent
shall not be under any obligation to take any action hereunder likely to
involve it in any expense or liability, the payment of which is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company
of the Global Warrant Certificate authenticated by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of any proceeds. The Warrant Agent shall have
no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the
Global Warrant Certificate or in the case of the receipt of any written
demand from a Holder of a Warrant with respect to such default, except as
provided in Section 6.02 hereof, including, without limiting the generality
of the foregoing, any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or to make any demand upon the
Company.
(j) Unless herein or in the Global Warrant Certificate otherwise
specifically provided, any order, certificate, notice, request, direction
or other communication from the Company made or given by the Company under
any provision of this Agreement shall be sufficient if signed by its
President, Chairman of the Board, officer serving as Chief Financial
Officer, Treasurer, any Executive Vice President or any Vice President.
SECTION 5.03. Resignation and Appointment of Successor.
----------------------------------------
(a) The Company agrees, for the benefit of the Holders from
time to time of the Warrants, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have expired.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective,
subject to the appointment of a successor Warrant Agent, and acceptance of
such appointment by such successor Warrant Agent, as hereinafter provided.
The Warrant Agent hereunder may be removed at any time by the filing with it
of an instrument in writing signed by or on behalf of the Company and
specifying such removal and the date when it shall become effective. Such
resignation or removal shall take effect upon the appointment by the Company,
as hereinafter provided, of a successor Warrant Agent (which shall be a
banking institution organized under the laws of the United States of America,
or one of the states thereof and having an office or an agent's office
18
<PAGE>
south of Chambers Street in the Borough of Manhattan, The City of New York)
and the acceptance of such appointment by such successor Warrant Agent. In
the event a successor Warrant Agent has not been appointed and accepted its
duties within 90 days of the Warrant Agent's notice of resignation, the
Warrant Agent may apply to any court of competent jurisdiction for the
designation of a successor Warrant Agent. The obligation of the Company
under Section 5.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent and shall
survive the termination of this Agreement.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or make an assignment for the benefit of its creditors
or consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to
pay or meet its debts as they mature, or if a receiver or custodian of it or
all or any substantial part of its property shall be appointed, or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the latter of such appointment, the Warrant
Agent so superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may
be merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all of the corporate trust business of the Warrant Agent,
provided that it shall be qualified as aforesaid, shall be
19
<PAGE>
the successor Warrant Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties
hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment.
---------
(a) This Agreement and the Global Warrant Certificate may be
amended by the Company and the Warrant Agent, without the consent of the
Holder of the Global Warrant Certificate or the Holders, for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective
or inconsistent provision contained herein or therein, for the purpose of
appointing a successor Depository in accordance with paragraph (d) of Section
1.01, for the purpose of issuing Warrants in definitive form in accordance
with paragraph (a) of Section 1.01, or in any other manner which the Company
may deem to be necessary or desirable and which will not materially and
adversely affect the interests of the Holders of the Warrants.
Notwithstanding anything in this Section 6.01 to the contrary, this Agreement
may not be amended to provide for the authentication by the Warrant Agent of
one or more Global Warrant Certificates evidencing in excess of 1,800,000
Warrants originally issued unless and until the Warrant Agent has received
notice from the American Stock Exchange or any successor Self-Regulatory
Organization that additional Warrants in excess of 1,800,000 Warrants
originally issued have been approved for listing on such exchange.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Global Warrant Certificate, with the consent of the Holders
holding not fewer than a majority in number of the then outstanding
Unexercised Warrants affected by such modification or amendment, for any
purpose; provided, however, that no such modification or amendment that
changes the Spot Yield so as to adversely affect the Holders, shortens the
period of time remaining to the Expiration Date or otherwise materially and
adversely affects the exercise rights of the Holders or reduces the
percentage of the number of outstanding Warrants the consent of the Holders
of which is required for modification or amendment of this Agreement or the
Global Warrant Certificate may be made without the consent of each Holder
affected thereby.
SECTION 6.02. Notices and Demands to the Company and Warrant
----------------------------------------------
Agent. If the Warrant Agent shall receive any notice or demand addressed to
-----
the Company by any Holder pursuant to the provisions of the Global Warrant
Certificate, the Warrant Agent shall promptly forward such notice or demand
to the Company.
20
<PAGE>
SECTION 6.03. Addresses for Notices. Any communications from the
---------------------
Company to the Warrant Agent with respect to this Agreement shall be
addressed to Citibank, N.A., 120 Wall Street, New York, NY 10043,
(facsimile: (212) 480-1613) (telephone: (212) 412-6209), Attention:
Corporate Trust Services; any communications from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Merrill Lynch &
Co., Inc., South Tower, World Financial Center, 225 Liberty Street, New York,
NY 10080-6107 (facsimile: (212) 236-6004) (telephone: (212) 236-6113),
Attention: Treasurer (first copy) and Merrill Lynch & Co., Inc., 100 Church
Street, 12th Floor, New York, NY 10007 (facsimile: (212) 602-8436)
(telephone: (212) 602-8444), Attention: Corporate Secretary (second copy);
and any communications from the Warrant Agent to the Calculation Agent with
respect to this Agreement shall be addressed to Merrill Lynch, Pierce, Fenner
& Smith, World Financial Center, North Tower, 250 Vesey Street, New York, NY,
10281 Attention: Richard George (facsimile: (212) 449-8920) (telephone:
(212) 449-6177) (or such other address as shall be specified in writing by
the Warrant Agent, the Company or the Calculation Agent, respectively).
SECTION 6.04. Notices to Holders. The Company or the Warrant
------------------
Agent may cause to have notice given to the beneficial owners of interests in
the Global Warrant Certificate by providing the Depository with a form of
notice to be distributed by the Depository to Depository Participants in
accordance with the customs and practices of the Depository.
SECTION 6.05. Applicable Law. The validity, interpretation and
--------------
performance of this Agreement and each Warrant issued hereunder and of the
respective terms and provisions thereof shall be governed by the laws of the
State of New York applicable to agreements made and to be performed in such
State.
SECTION 6.06. Obtaining of Governmental Approvals. The Company
-----------------------------------
will from time to time take all actions which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and the American Stock Exchange and securities acts
filings under United States Federal and State laws, which may be or become
requisite in connection with the issuance, sale, trading, transfer or
delivery of the Warrants, the Global Warrant Certificate and the exercise of
the Warrants.
SECTION 6.07. Persons Having Rights Under Warrant Agreement.
---------------------------------------------
Nothing in this Agreement expressed or implied and nothing that may be
inferred from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation other than
the Company, the Warrant Agent, and the Holders any right, remedy or claim
under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or
21
<PAGE>
agreement hereof; and all covenants, conditions, stipulations, promises and
agreements in this Agreement contained shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and their successors and of the
registered Holders of the Warrant Certificate.
SECTION 6.08. Headings. The descriptive headings of the several
--------
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in
------------
any number of counterparts, each of which so executed shall be deemed to be
an original; but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement
-----------------------
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent, for inspection by the Depository Participants
and the Holders.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
MERRILL LYNCH & CO., INC.
By _________________________
Theresa Lang
Treasurer
CITIBANK, N.A.
By _________________________
Name:
Title:
22
<PAGE>
EXHIBIT A
THIS WARRANT IS A GLOBAL WARRANT WITHIN THE MEANING OF THE WARRANT AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
WARRANTS IN CERTIFICATED FORM, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO A
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS WARRANT IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY WARRANT ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
No. CUSIP No. 590188 15 7
GLOBAL WARRANT CERTIFICATE
representing
up to 1,800,000 Constant Maturity U.S. Treasury Yield Increase
Warrants, Expiring August 25, 1995
MERRILL LYNCH & CO., INC.
This certifies that CEDE & Co. or registered assigns is the registered
Holder of 1,800,000 Constant Maturity U.S. Treasury Yield Increase Warrants,
Expiring August 25, 1995 (the "Warrants") or such lesser amount as is
indicated in the records of Citibank, N.A., as Warrant Agent. Each Warrant
entitles the beneficial owner thereof, subject to the provisions contained
herein and in the Warrant Agreement referred to below, to receive from
Merrill Lynch & Co., Inc. (the "Company") the cash settlement value, if any,
(the "Cash Settlement Value") specified in Section 2.02(d) of the Warrant
Agreement. The Holder hereof will not be entitled to any interest on any
Cash Settlement Value to which it is otherwise entitled (unless the Company
shall default in the payment of such Cash Settlement Value). The Warrants
shall be automatically exercised on the fifth New York Business Day
immediately preceding August 25, 1995 (the "Expiration Date") or, if an Early
Expiration Date occurs, the New York Business Day immediately preceding the
Early Expiration Date (the "Exercise Date") as further described below and as
provided in the Warrant Agreement. The term "New York
1
<PAGE>
EXHIBIT A
---------
Page 2
Business Day", as used herein, means any day other than a Saturday or Sunday
or a day on which commercial banks in The City of New York are required or
authorized by law or executive order to be closed.
This Global Warrant Certificate is issued under and in accordance with
the Warrant Agreement, dated as of February 3, 1994 (the "Warrant
Agreement"), between the Company and the Warrant Agent, and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions all beneficial owners of the Warrants evidenced by this
Global Warrant Certificate and the Holder of this Global Warrant Certificate
consent by acceptance hereof by the Depository (as defined below). Copies of
the Warrant Agreement are on file at the Warrant Agent Office of the Warrant
Agent in The City of New York. Except as provided in the Warrant Agreement,
beneficial owners of the Warrants evidenced by this Global Warrant
Certificate will not be entitled to receive definitive Warrants evidencing
their Warrants. Warrants will be held through a depository selected by the
Company which initially is The Depository Trust Company (the "Depository",
which term, as used herein, includes any successor depository selected by the
Company as further provided in the Warrant Agreement).
Capitalized terms included herein but not defined herein have the same
meaning assigned thereto in the Warrant Agreement.
In the event that the Warrants are delisted from, or permanently
suspended from trading on, the American Stock Exchange and the Warrants are
not simultaneously accepted for trading pursuant to the rules of another
Self-Regulatory Organization (as defined in Section 3(a)(26) of the
Securities Exchange Act of 1934, as amended), or if certain events in
bankruptcy, insolvency or reorganization involving the Company specified in
the Warrant Agreement occur, the Warrants shall expire on the date such
delisting or trading suspension becomes effective or such event in
bankruptcy, insolvency or reorganization occurs (in either case, an "Early
Expiration Date") and the Warrants shall be automatically exercised on the
New York Business Day immediately preceding the Early Expiration Date. The
Cash Settlement Value, if any, of such Warrants will be paid on the fifth New
York Business Day following the Early Expiration Date. The Company will
advise the Warrant Agent of the date of any expected delisting or permanent
suspension of trading of the Warrants as soon as is practicable and will
immediately inform the Warrant Agent after the Company has received notice
that such delisting or suspension has occurred and that the Warrants are not
accepted for listing on another
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EXHIBIT A
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Page 3
Self-Regulatory Organization, but in no event will such notice be given to
the Warrant Agent later than 5:00 P.M., New York City time, on the second New
York Business Day preceding the Early Expiration Date.
The Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may deem and treat the registered owner hereof as the absolute
owner of the Warrants evidenced hereby (notwithstanding any notation of
ownership or other writing hereon) for any purpose and as the person entitled
to exercise the rights represented by the Warrants evidenced hereby, and
neither the Company nor the Warrant Agent nor any agent of the Company or the
Warrant Agent shall be affected by any notice to the contrary, subject to
certain provisions of the Warrant Agreement, except that the Company and the
Warrant Agent shall be entitled to rely on and act pursuant to instructions
of Depository Participants as contemplated herein and in the Warrant
Agreement.
Subject to the terms of the Warrant Agreement and certain restrictions
set forth above, upon due presentment for registration of transfer of this
Global Warrant Certificate at the Warrant Agent Office of the Warrant Agent
in New York City, the Company shall execute and the Warrant Agent shall
authenticate and deliver in the name of the designated transferee a new
Global Warrant Certificate of like tenor and evidencing a like number of
Unexercised Warrants as evidenced by this Global Warrant Certificate at the
time of such registration of transfer, which shall be issued to the
designated transferee in exchange for this Global Warrant Certificate,
subject to the limitations provided in the Warrant Agreement, without charge.
This Global Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
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EXHIBIT A
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Page 4
This Global Warrant Certificate shall not be valid or obligatory for any
purpose until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Date:
Merrill Lynch & Co., Inc.
By _________________________
Treasurer
[SEAL] Attest _____________________
Secretary
This is one of the Warrants
referred to in the within-mentioned
Warrant Agreement:
CITIBANK, N.A. as Warrant Agent
By __________________________
Authorized Officer
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EXHIBIT A
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Page 5
Form of Transfer of Global Warrant Certificate
Citibank, N.A., as Warrant Agent
Corporate Trust Services
111 Wall Street
New York, New York 10043
, the registered Holder of the Global Warrant Certificate
representing all unexercised Merrill Lynch & Co., Inc. Constant Maturity
U.S. Treasury Yield Increase Warrants, Expiring August 25, 1995, hereby
requests the transfer of such Global Warrant Certificate to
Dated: [NAME OF REGISTERED HOLDER]
By
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<PAGE>
Exhibit (5) & (23)
February 3, 1994
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281-1220
Gentlemen:
As your counsel, we have examined a copy of the Restated Certificate of
Incorporation, as amended, of Merrill Lynch & Co., Inc. (hereinafter called
the "Company"), certified by the Secretary of State of the State of Delaware.
We are familiar with the corporate proceedings had in connection with the
proposed issuance and sale by the Company to the Underwriter named in the
Terms Agreement referred to below, pursuant to an Underwriting Agreement
dated August 25, 1993 (the "Underwriting Agreement"), among the Company,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("MLPF&S") and the other firms named therein, as supplemented by the Terms
Agreement dated January 27, 1994 (the "Terms Agreement") between the Company
and MLPF&S, of 1,800,000 of the Company's Constant Maturity U.S. Treasury
Yield Increase Warrants, Expiring August 25, 1995 (the "Warrants"). We have
also examined a copy of the
<PAGE>
Warrant Agreement between the Company and Citibank, N.A., as Warrant Agent,
dated as of February 3, 1994 (the "Warrant Agreement"), and the Company's
Registration Statement on Form S-3 (File No. 33-49947) relating to the
warrants (the "Registration Statement").
Based upon the foregoing and upon such further investigation as we deemed
relevant in the premises, we are of the opinion that:
1. The Company has been duly incorporated under the laws of the State of
Delaware.
2. The Warrants have been duly and validly authorized by the Company and
when the Warrants have been duly executed and authenticated in accordance
with the terms of the Warrant Agreement and delivered against payment
therefor as set forth in the Underwriting Agreement, as supplemented by the
Terms Agreement, the Warrants will constitute valid and legally binding
obligations of the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles.
2
<PAGE>
We consent to the filing of this opinion as an exhibit to the Registration
Statement and as an exhibit to the Current Report of the Company on Form 8-K
dated February 3, 1994.
Very truly yours,
/s/ Brown & Wood
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