As filed with the Securities and Exchange Commission on July 28, 1999
Registration No. 333-78575
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
AMENDMENT NO. 2
TO
FORM S-1 REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------------------
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Initial Depositor
(Exact name of registrant as specified in charter)
---------------------------------------------------------------
ABC TRUST SERIES 1999-A
yet-to-be formed
[Issuer with respect to the receipts]
<TABLE>
<S> <C> <C>
Delaware 6211 13-5674085
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
---------------------------
250 Vesey Street
New York, New York 10281
(212) 449-1000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------------------
Andrea L. Dulberg, Esq.
Corporate Secretary
Merrill Lynch, Pierce, Fenner & Smith Incorporated
250 Vesey Street
New York, New York 10281
(212) 449-1000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------------
Copies to:
ANDREW B. JANSZKY
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
---------------------------
Approximate date of commencement of proposed sale to public:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [__]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. [__]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [__]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, please check the following box. [__]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to Be Offering Price Aggregate Offering Amount of
Securities to Be Registered Registered Per Receipt Price(1) Registration Fee(2)
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ABC receipts 100,000 $100 $10,000,000 $3,448.00
==========================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 under the Securities Act.
(2) Previously paid.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to such
Section 8(a), may determine.
<PAGE>
The information in this prospectus is not complete and may be changed. We have
filed a registration statement relating to these receipts with the Securities
and Exchange Commission. We cannot sell these receipts until the registration
statement becomes effective. This prospectus is not an offer to sell these
receipts and we are not soliciting offers to buy these receipts in any state
where such offer or sale is not permitted.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED AUGUST __, 1999.
PROSPECTUS
- ----------
[Number of ABC Receipts]
ABC TRUST SERIES 1999-A
The ABC Trust Series 1999-A will issue ABC receipts evidencing your
undivided beneficial ownership of common stock of [ ] companies in the [ ]
industry. [ ] will be the trustee. You only may acquire, hold or transfer ABC
receipts in a round-lot amount of 100 ABC receipts or round-lot multiples. The
receipts are separate from the underlying securities that are evidenced by the
receipt. For a list of the names and the number of shares of the companies that
make up a receipt, see "Highlights of the [ ] Industry Receipts--The ABC
Receipts" starting on page 5. The trust will issue additional ABC receipts on a
continuous basis.
Investing in the ABC receipts involves significant risks. See "Risk
Factors" starting on page 4.
The initial public offering price for a round-lot of 100 ABC receipts
will equal the sum of the closing market price on the pricing date for each
deposited share multiplied by the share amount specified in this prospectus,
plus an underwriting fee.
The ABC receipts are neither interests in nor obligations of either the
initial depositor, Merrill Lynch, Pierce, Fenner & Smith Incorporated, or [ ],
as trustee.
Prior to this issuance, there has been no public market for the ABC
receipts. Application has been made to list the ABC receipts on the [ ] Exchange
under the symbol "[ ]."
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these ABC receipts, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
Receipt Price to
Price Underwriting Fee Public
--------------------------------------------------------
Per ABC receipt....... [2]%
TOTAL.................
For purchases of receipts in excess of [ ] receipts, the underwriting
fee will be [ ]%.
Delivery of the ABC receipts will be on or about August __, 1999.
------------------------
Merrill Lynch & Co.
------------------------
The date of this prospectus is August __, 1999.
<PAGE>
TABLE OF CONTENTS
Page
----
Summary........................................................................3
Risk Factors...................................................................4
Highlights of the [ ] Industry Receipts Program................................6
The ABC Trust.................................................................12
Description of the ABC receipts...............................................12
Description of Deposited Securities...........................................13
Description of the Depositary Trust Agreement.................................14
Federal Income Tax Consequences...............................................18
ERISA Considerations..........................................................19
Plan of Distribution..........................................................19
Legal Matters.................................................................20
Where You Can Find More Information...........................................20
------------------------
This prospectus contains information you should consider when making
your investment decision. With respect to information about the ABC receipts
program, you should rely only on the information contained in this prospectus.
We have not authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent information,
you should not rely on it. We are not making an offer to sell the ABC receipts
in any jurisdiction where the offer or sale is not permitted.
The information appearing in this prospectus is current only as its
date.
2
<PAGE>
SUMMARY
The ABC Trust will be formed under the depositary trust agreement,
dated as of [ ], 1999 among [ ], as trustee, and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as the initial depositor. The trust is not a registered
investment company under the Investment Company Act of 1940.
The trust will hold shares of common stock issued by [ ] specified
companies in the [ ] industry on your behalf. Except when a reconstitution event
occurs, the group of companies will not change.
Under no circumstances will a new company be added to the list of
companies after a particular receipt program is established.
The trust will issue ABC receipts that represent your undivided
beneficial ownership interest in the shares of common stock held by the ABC
Trust on your behalf. The receipts are separate from the underlying securities
that are evidenced by the receipts.
3
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RISK FACTORS
An investment in ABC receipts involves risks similar to investing in
each of deposited securities outside of the receipt program, as well as the
risks associated with concentrated investments in a particular sector, group or
industry.
o Because the value of the ABC receipts is directly related to the value
of the underlying securities, you may lose all or a substantial portion
of your investment in ABC receipts.
o ABC receipts may trade at a discount to the aggregate value of the
deposited securities.
o In selecting the securities eligible for deposit, Merrill Lynch,
Pierce, Fenner & Smith Incorporated have selected the [ ] [industry]
companies based only on the program's selection criteria, without
regard for the deposited securities' value, price performance,
volatility or investment merit. Consequently, the ABC Trust, the
trustee, Merrill Lynch, Pierce, Fenner & Smith Incorporated, and their
affiliates, have not performed any investigation or review of the
selected companies, including the public filings by the companies.
Investors and market participants should not conclude that the
inclusion of a company in the ABC receipt is any form of investment
recommendation by the trust, the trustee, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, and their affiliates.
o The ABC receipts may not be representative of the [________] industry
and the deposited securities may not continue to meet the program's
selection criteria as a result of market fluctuations changes in the
businesses of the issuers of deposited securities and changes in the
industry.
o As a result of market fluctuation and/or reconstitution events, ABC
receipts may represent a concentrated investment in one or more of the
deposited securities.
o Owners of ABC receipts wishing to participate in a tender offer with
respect to deposited securities trust cancel their receipts which
involves payment of the cancellation fee, in order to tender.
o Trading in the ABC receipts may be halted in the event trading in one
or more of the deposited securities is halted. If so, you will not be
able to trade your receipts even though there is trading in some of the
deposited securities.
o Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner and Smith
Incorporated or its affiliates may from time to time engage in
transactions involving the deposited securities for their proprietary
accounts and for other accounts under their management, which my
influence the value of the deposited securities and therefore the value
of the ABC receipts. Accordingly, under some circumstances, conflicts
of interest may arise.
4
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o Purchasing activity of deposited securities on the secondary trading
market for the initial deposits into the trust may affect the market
price of the deposited shares. Large volumes of purchasing activity,
which may occur in connection with the issuance of receipts, could
temporarily increase the market price of the shares of the underlying
issuers, resulting in a higher price on that date. This purchasing
activity also could temporarily limit the liquidity of the deposited
securities. Stock prices may accordingly decline subsequent to these
purchases as the volume of purchases subsides. This in turn is likely
to have an immediate, adverse effect on the trading price of the ABC
receipts.
o [Industry-specific risk factors will be included for each transaction.]
5
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HIGHLIGHTS OF THE [ ] INDUSTRY RECEIPTS PROGRAM
This discussion highlights information we present more fully in the
rest of this prospectus. You should read the entire prospectus carefully before
you purchase a receipt.
Issuer ABC Trust Series 1999-A.
The ABC Trust The ABC Trust will be formed under the depositary
trust agreement, dated as of [ ], 1999 among [ ], as
trustee, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as the initial depositor. The trust is
not a registered investment company under the
Investment Company Act of 1940.
Initial Depositor Merrill Lynch, Pierce, Fenner & Smith Incorporated.
Trustee [ ], a [ ] banking organization, will be the trustee
and receive compensation as set forth in the
depositary trust agreement.
Purpose of
ABC receipts The ABC receipts are designed to achieve the
following:
o Diversification. ABC receipts are designed
to allow you to diversify your investment in
a particular sector, group or industry
through a single, exchange-listed instrument
representing their beneficial ownership of
the deposited securities.
o Flexibility. The beneficial owners of ABC
receipts have undivided beneficial ownership
interests in each of the deposited
securities evidenced by the ABC receipts,
and can cancel their ABC receipts to receive
each of the deposited securities evidenced
by the receipts.
o Transaction costs. The expenses associated
with trading ABC receipts are expected to be
less than trading each of the deposited
securities separately.
ABC Trust assets The trust will hold shares of common stock issued by
[ ] specified companies in the [ ] industry on
your behalf. Except when a reconstitution event
occurs, the group of companies will not change.
Reconstitution events are described in this
prospectus under the heading "Description of the
Depositary Trust Agreement--Reconstitution Events."
Under no circumstances will a new company be added to
the list of companies after a particular receipt
program is established.
6
<PAGE>
The trust's assets may increase or decrease as a
result of in-kind deposits and withdrawals during the
life of the trust.
The ABC receipts The trust will issue ABC receipts that represent your
undivided beneficial ownership interest in the shares
of common stock held by the ABC Trust on your behalf.
The receipts are separate from the underlying
securities that are evidenced by the receipts.
The specific share amounts for each round-lot of 100
ABC receipts are set forth in the chart below and
were determined on [ ], 1999 so that the initial
weightings of each stock in the receipt will
approximate the relative market capitalizations of
the specified companies subject to a maximum weight
of [20]%. Because these weightings are a function of
market prices, it is expected that these weightings
will change substantially over time, including during
the period between the date of this prospectus and
the date the receipts are first issued to the public.
The share amounts set forth below will not change,
except for changes due to corporate events such as
stock splits or reverse stock splits on the deposited
shares.
The following chart provides the
o names of the [ ] issuers of the deposited
securities that make up a receipt,
o stock ticker symbols,
o share amounts reflected in a round-lot of
100 ABC receipts,
o initial weightings, and
o the principal market on which the shares of
common stock of the selected companies are
traded.
7
<PAGE>
Primary
Name of Share Initial Trading
Company Ticker Amounts Weighting Market
These companies generally are considered to be the
[ ] largest and most liquid companies in the [ ]
industry as measured by market capitalization and
trading volume on [ ], 1999. The market
capitalization of a company is determined by
multiplying the price of its common stock by the
number of outstanding shares of its common stock.
The trust only will issue and cancel, and you only
may obtain, hold, trade or surrender, receipts in a
round-lot of 100 ABC receipts and round-lot
multiples.
The number of outstanding receipts will increase and
decrease as a result of in-kind deposits and
withdrawals. The trust will stand ready to issue
additional ABC receipts on a continuous basis when an
investor deposits the required shares of common stock
with [ ], as trustee.
Public offering
price The initial public offering price for 100 ABC
receipts will equal the sum of the closing market
price on the pricing date for each deposited share
multiplied by the share amount appearing in the above
table, plus the underwriting fee.
Purchases After the initial offering, you may acquire ABC
receipts in two ways:
o through an in-kind deposit of the required
number of shares of common stock of the
underlying issuers with the trustee, or
o through a cash payment in the secondary
trading market.
8
<PAGE>
Underwriting
fees If you wish to purchase ABC receipts in the initial
public offering, you will pay Merrill Lynch, Pierce,
Fenner & Smith Incorporated, in its role as
underwriter, an underwriting fee equal to:
o For purchases of 10,000 receipts or less,
[2]%.
o For purchases in excess of 10,000 receipts,
[ ]%.
You will not be charged any issuance fee or other
sales commission in connection with purchases of ABC
receipts made in the initial public offering.
Issuance and
cancellation fees After the initial offering, if you wish to create ABC
receipts by delivering to the trust the requisite
shares of common stock evidencing an ABC receipt,
[ ] as trustee will charge you a issuance fee of up
to $10.00 per 100 ABC receipts. If you wish to cancel
your ABC receipts and withdraw your deposited
securities, [ ] as trustee will charge you a
cancellation fee of up to $10.00 per 100 ABC
receipts.
Commissions If you choose to create ABC receipts after the
conclusion of the trust's initial public offering,
you will not be charged the underwriting fee.
However, in addition to the issuance and cancellation
fees charged by the Trustee that are described above,
you will be responsible for paying any sales
commissions associated with your purchase of the
deposited securities that is charged by your broker,
whether it be Merrill Lynch, Pierce, Fenner & Smith
Incorporated or another broker.
Custody Fees [ ], as trustee and as custodian, will charge you a
quarterly custody fee of $2.00 per 100 ABC receipts
to be deducted from any dividend payments on
deposited shares received by the trustee. The
trustee, however, will waive the custody fee on an
annual basis to the extent that the total dividends
received by the trustee during a calendar year are
insufficient to cover the custody fees for that year.
Rights relating
to the ABC
receipts You have the right to withdraw the deposited
securities upon request by delivering your ABC
receipts to [ ], as trustee, during the trustee's
business hours, and paying the trustee's fees and
withdrawal expenses. You should receive the deposited
shares no later than the business day after the
trustee receives a properly completed withdrawal
request and endorsed ABC receipts. Except with
respect to the right to vote for
9
<PAGE>
dissolution of the ABC Trust, the ABC receipts will
not have voting rights.
Rights relating
to the deposited
securities
You have the right to:
o all shareholder disclosure materials,
including annual and quarterly reports,
distributed by the issuers of the deposited
securities.
o receive all proxy materials received by the
trustee and will have the right to instruct
[ ], as trustee, to vote the shares
evidenced by your ABC receipts or may attend
shareholder meetings yourself.
o receive dividends and other distributions on
the deposited shares, if any are declared
and paid to the trustee by an issuer of the
deposited shares. If you wish to participate
in a tender offer for deposited shares, you
must obtain the deposited shares by
surrendering your receipt and receiving all
deposited shares evidenced by the receipt.
For specific information about obtaining
your deposited securities, you should read
the discussion under the caption
"Description of Depositary Trust Agreement."
Reconstitution
events A. If a company with deposited shares evidenced
by an ABC receipt no longer has a class of
common stock registered under section 12 of
the Securities Exchange Act of 1934, then
its securities will no longer be a deposited
security and the trustee will distribute the
shares of that company to the owners of the
ABC receipts.
B. If the SEC finds that a company with
deposited shares evidenced by an ABC receipt
is a company that should be registered as an
investment company under the Investment
Company Act of 1940, and the trustee has
actual knowledge of the SEC finding, then
the trustee will distribute the shares of
that company to the owners of the ABC
receipts.
C. If the deposited shares of a company
evidenced by an ABC receipt are no longer
outstanding because the shares were acquired
by another company, the trustee will
distribute the consideration paid by and
received from the acquiring company to the
beneficial owners of ABC receipts, unless
the consideration is additional
10
<PAGE>
shares of already deposited shares, in which
case these additional shares will be
deposited into the trust.
D. If an underlying issuer's deposited shares
are delisted from trading on national
securities exchange or NASDAQ and are not
listed for trading on another national
securities exchange or through NASDAQ within
30 days from the date the receipts are
delisted.
If a reconstitution event occurs, the trustee will
deliver the deposited security to you within three
calendar days from the occurrence of a reconstitution
event.
Termination
events A. The ABC receipts are delisted from the [ ]
Exchange and are not listed for trading on
another national securities exchange or
through NASDAQ within 30 days from the date
the receipts are delisted.
B. The trustee resigns and no successor trustee
is appointed within 60 days from the date
the trustee provides notice to the ABC
receipt holders of its intent to resign.
C. [ ]% of owners of outstanding ABC receipts
vote to dissolve and liquidate the trust.
If a termination event occurs, the trustee will
distribute the deposited securities to you within
three calendar days after the termination event
occurs.
Federal income tax
consequences The federal income tax laws will treat a U.S. holder
as directly owning the deposited securities. The
receipt will not result in any federal tax
consequences separate from the tax consequences
associated with ownership of the deposited shares.
Listing Application has been made to list the ABC receipts on
the [ ] Exchange under the symbol "[ ]." It is
anticipated that a minimum of 150,000 receipts will
be required to be outstanding when trading begins.
Trading While investors only will be able to acquire, hold,
transfer and surrender a round-lot of 100 ABC
receipts, bid and ask prices will be quoted on a per
receipt basis.
11
<PAGE>
Clearance and
settlement The trust only will issue ABC receipts in book-entry
form. The trust will issue the ABC receipts in one or
more global certificates that the trustee will
deposit with the Depositary Trust Company, referred
to as DTC. Transfers within DTC will be in accordance
with DTC's usual rules and operating procedures. For
further information see "Description of the ABC
receipts."
THE ABC TRUST
General. This discussion highlights information about the ABC Trust.
You should read this information, information about the depositary trust
agreement as well as the depositary trust agreement before you purchase a
receipt. The material terms of the depositary trust agreement are described in
this prospectus under the heading "Description of the Depositary Trust
Agreement."
The ABC Trust. The trust will be formed pursuant to the depositary
trust agreement, dated as of [ ], 1999. [ ] will be the trustee. The ABC Trust
is not a registered investment company under the Investment Company Act of 1940.
The ABC Trust is intended to hold deposited shares for the benefit of
owners of the ABC receipts. The trustee will perform only administrative and
ministerial acts.
The property of the trust will consist of the deposited securities and
all monies or other property, if any, received by the trustee on behalf of the
trust and for the benefit of the owners of the ABC receipts.
The trust will terminate on December 31, 2039, or earlier if a
termination event occurs.
DESCRIPTION OF THE ABC RECEIPTS
The trust will issue ABC receipts under the depositary trust agreement
described in this prospectus under the heading "Description of the Depositary
Trust Agreement." After the initial offering, the trust may issue additional ABC
receipts on a continuous basis when an investor deposits the requisite shares of
common stock with the trustee.
You may only acquire, hold, trade and surrender ABC receipts in a
round-lot of 100 ABC receipts and round-lot multiples.
ABC receipts will represent your individual and undivided beneficial
ownership interest in the common stock of [ ] companies in the [ ] industry. The
[ ] companies selected as
12
<PAGE>
part of this receipt program are listed above in the section entitled
"Highlights of the [ ] Industry Receipts Program--The ABC receipts."
Beneficial owners of ABC receipts will have the same rights, privileges
and obligations as they would have if they beneficially owned the common stock
of the companies outside of the receipt program. These include the right of
investors to instruct the trustee to vote the common stock, and to receive
dividends and other distributions on the deposited securities, if any are
declared and paid to the trustee by an issuer of a deposited security, as well
as the right to surrender ABC receipts in return for the deposited shares. See
"Description of the Depositary Trust Agreement" starting on page 12 of this
prospectus. The ABC receipts are not intended to change receipt holders'
beneficial ownership of the deposited securities under federal securities laws,
including Sections 13(d) and 16(c) of the Securities Exchange Act of 1934 and
SEC rules and regulations.
The trust will issue the ABC receipts in the form of one or more global
certificates that the trustee will deposit with DTC and register in the name of
Cede & Co., as nominee for DTC. The ABC receipts will be available only in
book-entry form. Owners of ABC receipts may hold their ABC receipts through DTC,
if they are participants of DTC, or indirectly through entities that are
participants in DTC.
DESCRIPTION OF DEPOSITED SECURITIES
Selection criteria. The companies were selected from a universe of
companies in the [ ] industry whose common stock is registered under Section 12
of the Exchange Act. The companies whose shares of common stock the ABC receipts
evidence are the [ ] largest companies in the [ ] industry as measured by market
capitalization as of [ ], 1999, and which also have an average 60-day daily
trading volume of at least [ ]. The market capitalization of a company is
determined by multiplying the price of its common stock by the number of shares
of its common stock that are held by stockholders.
Deposited securities. For a list of the companies that make up a
receipt, please refer to "Highlights of the [ ] Industry Receipts Program--The
ABC receipts." If the list changes because of a reconstitution event, the
revised list will be set forth in a prospectus supplement.
No investigation. In selecting the securities eligible for deposit, the
trust, Merrill Lynch, Pierce, Fenner & Smith Incorporated, [ ], as trustee, and
any affiliate of these entities, have not performed any investigation or review
of the selected companies, including the public filings by the companies, other
than to the extent required to determine whether the companies satisfied the
program's stated selection criteria. Accordingly, before you acquire ABC
receipts, you should consider publicly available financial and other information
about the issuers of the deposited securities. See "Risk Factors" and "Available
Information." Investors and market participants should not conclude that the
inclusion of a company in the list is any form of investment
13
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recommendation of that company by the trust, the trustee, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, and any of their affiliates.
Historical Information. The following table sets forth the high and low
market prices during 1994, 1995, 1996, 1997, 1998 and 1999 through August ___,
1999, and the market price on August ___, 1999. All market prices are rounded to
the nearest one-sixty-fourth dollar. The historical prices of the deposited
securities should not be taken as an indication of future performance.
Deposited Securities High Low Last
- -------------------- -------- -------- --------
1994
1995
1995
1997
1998
1999
DESCRIPTION OF THE DEPOSITARY TRUST AGREEMENT
General. The depositary trust agreement, dated as of [ ], 1999, among
Merrill Lynch, Pierce, Fenner & Smith, as initial depositor, [state or federal
chartered U.S. Bank], as trustee, and the owners of the ABC receipts provides
that ABC receipts will represent the common stock of the specified companies.
The Trustee [ ]
Issuance, transfer and surrender of ABC receipts. You may receive from
the trust, hold in your investment portfolio, transfer in the trading market and
surrender for deposited shares ABC receipts only in integral multiples of 100
ABC receipts; that is, round-lots. You may deposit shares into the trust by
delivering the required number of shares to the trustee. You must endorse or
otherwise complete documents so that you or a person acting on your behalf may
deposit the securities into the trust in return for a round-lot of 100 ABC
receipts. You must deposit shares in an amount equal to a round-lot of 100 ABC
receipts. Similarly, you must surrender ABC receipts in integral multiples of
100 ABC receipts to withdraw deposited shares from the trust. You may request
withdrawal of your deposited shares during the trustee's normal business hours.
The trustee expects that in most cases it will deliver your deposited shares
within 24 hours of receipt of your withdrawal request.
14
<PAGE>
Voting rights. The trustee will deliver you proxy soliciting materials
provided by issuers of the deposited shares so as to permit you to give the
trustee instructions as to how to vote on matters to be considered at any annual
or special meetings held by issuers of the deposited shares.
Under the depositary trust agreement, ABC receipt holders, other than
Merrill Lynch, Pierce, Fenner & Smith owning receipts for its own proprietary
account as principal, will have the right to vote to dissolve and liquidate the
ABC Trust.
Distributions. You will be entitled to receive, net of trustee fees, if
any, distributions of cash, including dividends, securities or property, if any,
made with respect to the deposited securities. The trustee will use its
reasonable efforts to ensure that it distributes these distributions within
three calendar days from the date on which it receives the distribution.
Therefore, you may receive your distributions substantially later than you would
have had you held the deposited securities directly. You will be obligated to
pay any tax or other governmental charge that may become due with respect to the
ABC receipts. The trustee may deduct the amount of any tax or other governmental
charge from a distribution before making payment to you. In addition, the
trustee will deduct its custody fee of $2.00 per 100 ABC receipts from quarterly
dividends, if any, paid to the trustee by the issuers of the deposited
securities. [ ], as trustee, however, will waive the custody fee on an annual
basis to the extent that the total dividends received by the trustee during a
calendar year are insufficient to cover the custody fees for that year.
Record dates. With respect to dividend payments and voting
instructions, the trustee expects to fix the trust's record dates as close as
possible to the record date fixed by the issuer of the deposited securities.
Shareholder communications. The trustee promptly will forward to you
all shareholder communications that it receives from issuers of the deposited
securities.
Withdrawal of deposited securities. You may surrender your ABC receipts
and receive deposited securities evidenced by those ABC receipts during the
trustee's normal business hours and upon the payment of applicable fees, taxes
or governmental charges, if any. You should receive your deposited securities no
later than the business day after the trustee receives your request. If you
surrender ABC receipts in order to receive deposited securities, you will pay to
the trustee a cancellation fee of up to $10.00 per round-lot of 100 ABC
receipts.
Further issuances of ABC receipts. The depositary trust agreement will
provide for further issuances of ABC receipts on a continuous basis without your
consent.
Reconstitution events. The depositary trust agreement provides for the
automatic distribution of deposited shares to you in four circumstances.
1. If a company with deposited shares evidenced by an ABC receipt
no longer has a class of common stock registered under section
12 of the Securities Exchange Act
15
<PAGE>
of 1934, then its securities will no longer be a deposited
security and the trustee will distribute the shares of that
company to the owners of the ABC receipts.
2. If the SEC finds that a company with deposited shares
evidenced by an ABC receipt is a company that should be
registered as an investment company under the Investment
Company Act of 1940, and the trustee has actual knowledge of
the SEC finding, then the trustee will distribute the shares
of that company to the owners of the ABC receipts.
3. If the deposited shares of a company with deposited shares
evidenced by an ABC receipt are no longer outstanding because
the shares were acquired by another company, the trustee will
distribute the consideration paid by and received from the
acquiring company to the beneficial owners of ABC receipts,
unless the consideration is additional shares of already
deposited shares, in which case these additional shares will
be deposited into the trust.
4. If an underlying issuer's deposited shares are delisted from
trading on their primary exchange or market and are not listed
for trading on another national securities exchange or through
NASDAQ within 30 days from the date the receipts are delisted.
If a reconstitution event occurs, the trustee will deliver the
deposited security to you within three calendar days from the occurrence of a
reconstitution event.
Termination of depositary trust agreement. The trustee may terminate
the depositary trust agreement by mailing notice of the termination to you if 60
days have passed after the trustee resigns and no successor trustee is appointed
by the initial depositor within 60 days from the date the trustee provides
notice to the ABC receipt holders of its intent to resign. Upon termination, the
owners of ABC receipts will surrender their ABC receipts as provided in the
depositary trust agreement, including payment of any fees of the trustee or
applicable taxes or governmental charges due in connection with delivery to the
owners of ABC receipts. The trust also will terminate when the ABC receipts are
delisted from the [ ] Exchange and are not listed for trading on another
national securities exchange or through NASDAQ within 30 days from the date the
receipts are delisted. Finally, the trust will be terminated if [ ]% of owners
of outstanding ABC receipts vote to dissolve and liquidate the trust.
If a termination event occurs, the trustee will distribute the
deposited securities to you within three calendar days after the termination
event occurs.
Amendment of depositary trust agreement. The trustee may amend any
provisions of the depositary trust agreement without the consent of the initial
depositor or any of the owners of the ABC receipts, to cure any ambiguity, to
correct or supplement any inconsistent provisions, to add any other provisions
with respect to matters or questions arising under the agreement that will not
be inconsistent with the agreement's provisions. The amendment, however, must
not, as
16
<PAGE>
evidenced by an opinion of counsel delivered to the trustee, adversely affect in
any material respect the interests of the owners of the ABC receipts. Promptly
after the execution of any amendment to the agreement, the trustee must furnish
or cause to be furnished written notification of the substance of the amendment
to each owner of the ABC receipts. Any amendment that imposes or increases any
fees or charges, subject to exceptions, or that otherwise prejudices any
substantial existing right of the owners of ABC receipts will not become
effective until 30 days after notice of the amendment is given to the owners of
ABC receipts.
Issuance and cancellation Fees. After the initial public offering, we
expect the trust to issue more ABC receipts. If you wish to create ABC receipts
by delivering to the trust the requisite stocks evidenced an ABC Receipt, [ ] as
trustee, will charge you an issuance fee of up to $10.00 per 100 ABC receipts.
If you wish to cancel your ABC receipts and withdraw your deposited securities,
[ ], as trustee, will charge you a cancellation fee of up to $10.00 per 100 ABC
receipts. The trustee may negotiate either of these fees depending on the
volume, frequency and size of the transactions with the person.
Commissions. If you choose to create ABC receipts after the conclusion
of the trust's initial public offering, you will not be charged the Underwriting
Fee. However, in addition to the issuance and cancellation fees described above,
you will be responsible for paying any sales commissions associated with your
purchase of the deposited securities that is charged by your broker, whether it
be Merrill Lynch, Pierce, Fenner & Smith Incorporated or another broker.
Custody fees. [ ], as trustee and as custodian, will charge you a
quarterly custody fee of $2.00 per 100 ABC receipts to be deducted from any
dividend payments on deposited shares received by the trustee. The trustee,
however, will waive the custody fee on an annual basis to the extent that the
total dividends received by the trustee during a calendar year are insufficient
to cover the custody fees for that year.
Address of the trustee. [ ]
Governing law. The depositary trust agreement and the ABC receipts will
be governed by the laws of the State of New York. The trustee will provide the
depositary trust agreement to any owner of the deposited securities free of
charge upon written request.
Duties and immunities of the trustee. The trustee will assume no
responsibility or liability for, and makes no representations as to, the
validity or sufficiency, or as to the accuracy of the recitals, if any, set
forth in the ABC receipts (other than the execution and authentication thereof),
except for the trustee's representation as to the due execution of all documents
signed by it.
The trustee undertakes to perform only those duties as are specifically
set forth in the depositary trust agreement. Subject to the preceding sentence,
the trustee will be liable for its own negligence or misconduct except for good
faith errors in judgment so long as the trustee was not negligent in
ascertaining the relevant facts.
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<PAGE>
FEDERAL INCOME TAX CONSEQUENCES
General
The following is a summary of the U.S. federal income tax consequences
relating to the ABC receipts for:
o a citizen or resident of the United States, a corporation or
partnership created or organized in the United States or under
the laws of the United States, an estate, the income of which
is includible in gross income for U.S. federal income tax
purposes regardless of its source, or a trust if a court
within the United States is able to exercise primary
supervision over the administration of the trust and one or
more U.S. persons have the authority to control all
substantial decisions of the trust (a "U.S. receipt holder"),
and
o any person other than a U.S. holder (a "Non-U.S. receipt
holder").
This summary is based upon laws, regulations, rulings and decisions
currently in effect, all of which are subject to change, possibly on a
retroactive basis. The discussion does not deal with all U.S. federal income tax
consequences applicable to all categories of investors, some of which may be
subject to special rules. In addition, this summary generally is limited to
investors who will hold the ABC receipts as "capital assets" (generally,
property held for investment) within the meaning of Section 1221 of the Internal
Revenue Code of 1986, as amended. We suggest that you consult with your own tax
advisor.
Taxation of ABC receipts
A receipt holder purchasing and owning ABC receipts will be treated,
for U.S. federal income tax purposes, as directly owning a proportionate share
of the deposited securities represented by the ABC receipts. Consequently, if
there is a taxable cash distribution on a deposited security, a holder will
recognize income with respect to the distribution at the time the distribution
is received by the Trustee, not at the time that the holder receives the cash
distribution from the trustee.
A receipt holder will determine its initial tax basis in each of the
deposited securities by allocating the purchase price for the receipt among the
deposited securities based on their relative fair market values at the time of
purchase. Similarly, when a holder sells a receipt, it will determine the amount
realized with respect to each security by allocating the sales price among the
deposited securities based on their relative fair market values at the time of
sale. A holder's gain or loss with respect to each security will be computed by
subtracting its basis in the security from the amount realized on the security.
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<PAGE>
The distribution of any securities by the trust upon the occurrence of
a reconstitution event or a termination event will not be a taxable event. The
receipt holders holding period with respect to the distributed securities will
include the period that the holder held the securities through the trust.
Brokerage fees and custodian fees
The brokerage fee incurred in purchasing a receipt will be treated as
part of the cost of the deposited securities. Accordingly, a holder includes
this fee in its tax basis in the deposited securities. A holder will allocate
the brokerage fee among the underlying securities using either a fair market
value allocation or pro rata based on the number of shares of each deposited
security. Similarly, the brokerage fee incurred in selling a receipt will reduce
the amount realized with respect to the deposited securities.
A holder will be required to include in its income the full amount of
dividends paid on the deposited securities, even though the depositary trust
agreement provides that the custodian fees will be deducted directly from any
dividends paid. These custodian fees will be treated as an expense incurred in
connection with a holder's investment in the deposited securities and may be
deductible. If a holder is an individual, estate or trust, however, the
deduction of its share of custodian fees will be a miscellaneous itemized
deduction that may be disallowed in whole or in part.
Non-U.S. holders
Non-U.S. holders should consult their tax advisors regarding U.S.
withholding and other taxes which may apply to an investment in the deposited
securities.
ERISA CONSIDERATIONS
Any plan fiduciary which proposes to have a plan acquire a receipt
should consult with its counsel with respect to the potential applicability of
ERISA and the Code to this investment and whether any exemption would be
applicable and determine on its own whether all conditions have been satisfied.
Moreover, each plan fiduciary should determine whether, under the general
fiduciary standards of investment prudence and diversification, an acquisition
of the ABC receipts is appropriate for the plan, taking into account the overall
investment policy of the plan and the composition of the plan's investment
portfolio.
PLAN OF DISTRIBUTION
In accordance with the depository trust agreement, the ABC Trust will
sell to Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Merrill Lynch,
Pierce, Fenner & Smith Incorporated will purchase, [_____] ABC receipts. Merrill
Lynch, Pierce, Fenner & Smith
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Incorporated, as underwriter, proposes to offer the ABC receipts to the public
at the offering price set forth on the cover page of this prospectus. After the
initial offering, the public offering price, concession and discount may be
changed.
Merrill Lynch, Pierce, Fenner & Smith Incorporated has from time to
time provided investment banking and other financial services to the issuers of
the deposited securities and expects in the future to provide these services,
for which it has received and will receive customary fees and commissions.
Merrill Lynch, Pierce, Fenner & Smith Incorporated will indemnify the
ABC Trust against civil liabilities related to the initial deposit, including
liabilities under the Securities Act, or will contribute to payments the Trust
may be required to make in respect thereof.
LEGAL MATTERS
Legal matters, including the validity of the ABC receipts will be
passed upon for Merrill Lynch, Pierce, Fenner & Smith Incorporated, the initial
depositor and the underwriter, by Shearman & Sterling, New York, New York, by
the time the registration statement is effective. Shearman & Sterling, as
special U.S. tax counsel to the trust, also will render an opinion regarding the
material federal income tax consequences by the time the registration statement
is effective.
WHERE YOU CAN FIND MORE INFORMATION
Merrill Lynch, Pierce, Fenner & Smith Incorporated have filed a
registration statement on Form S-1 with the SEC covering the ABC receipts. While
this prospectus is a part of the registration statement, it does not contain all
the exhibits filed as part of the registration statement. You should consider
reviewing the full text of those exhibits.
Our registration statement is available over the Internet at the SEC's
web site at http://www.sec.gov. You also may read and copy the registration
statement at the SEC's public reference rooms in Washington, D.C., New York, New
York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for more
information on the public reference rooms and their copy charges. Merrill Lynch,
Pierce, Fenner & Smith Incorporated will not and the ABC Trust may not be
subject to the requirements of the Exchange Act and accordingly may not file
periodic reports.
Because the common stock of the issuers of the deposited securities is
registered under the Exchange Act, the issuers of the deposited securities are
required to file periodically financial and other information specified by the
SEC. For more information about the issuers of the deposited securities,
information provided to or filed with the SEC by the issuers of the deposited
securities with respect to their registered securities can be inspected at the
SEC's public reference
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<PAGE>
facilities or accessed through the SEC's web site referenced above. In addition,
information regarding the issuers of the deposited securities may be obtained
from other sources including, but not limited to, press releases, newspaper
articles and other publicly disseminated information. We make no representation
or warranty as to the accuracy or completeness of any information regarding the
issuers of the deposited securities.
We are not affiliated with the issuers of the deposited securities, and
the issuers of the deposited securities have no obligations with respect to the
ABC receipts. This prospectus relates only to the ABC receipts and does not
relate to the common stock or other securities of the issuers of the deposited
securities. The information in this prospectus regarding the issuers of the
deposited securities has been derived from the publicly available documents
described in the preceding paragraph. We have not participated in the
preparation of these documents or made any due diligence inquiries with respect
to the issuers of the deposited securities in connection with this ABC receipts
program. We make no representation that these publicly available documents or
any other publicly available information regarding the issuers of the deposited
securities are accurate or complete. Furthermore, we cannot assure you that all
events occurring prior to the date of this prospectus, including events that
would affect the accuracy or completeness of the publicly available documents
described in the preceding paragraph, that would affect the trading price of the
common stock of the issuers of the deposited securities, and therefore the
offering and trading prices of the ABC receipts, have been publicly disclosed.
From time to time, in the ordinary course of business, affiliates of
Merrill Lynch, Pierce, Fenner & Smith Incorporated may have engaged and may in
the future engage in investment banking activities on behalf of some of the
issuers of the deposited securities as well as served as counterparty in other
transactions.
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================================================================================
LOGO
[Number of ABC receipts]
ABC Trust Series 1999-A
------------------------------
P R O S P E C T U S
------------------------------
MERRILL LYNCH & CO.
August __, 1999
Until [ ], 1999 (25 days after the date of this prospectus), all
dealers effecting transactions in the offered ABC receipts, whether or not
participating in this distribution, may be required to deliver a prospectus.
This requirement is in addition to the obligations of dealers to deliver a
prospectus when acting as underwriters and with respect to unsold allotments or
subscriptions.
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses expected to be incurred in connection with the
issuance and distribution of the securities being registered, other than
underwriting compensation, are as set forth below. Except for the registration
fee payable to the Securities and Exchange Commission, all such expenses are
estimated:
Securities and Exchange Commission registration fee............... $[ ]
Printing and engraving expenses................................... [ ]
Legal fees and expenses........................................... [ ]
Rating agency fees................................................ [ ]
Miscellaneous..................................................... ____[_____]
Total.............................. $[ ]
============
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, provides that under certain circumstances a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation or is
or was serving at its request in such capacity in another corporation or
business association, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful.
Article XIV, Section 2 of the Restated Certificate of Incorporation of
Merrill Lynch, Pierce, Fenner & Smith Incorporated provides in effect that,
subject to certain limited exceptions, Merrill Lynch, Pierce, Fenner & Smith
Incorporated shall indemnify its directors and officers to the full extent
authorized or permitted by law.
The directors and officers of Merrill Lynch, Pierce, Fenner & Smith
Incorporated are insured under policies of insurance maintained by Merrill
Lynch, Pierce, Fenner & Smith Incorporated, subject to the limits of the
policies, against certain losses arising from any claim made against them by
reason of being or having been such directors or officers. In addition, Merrill
Lynch, Pierce, Fenner & Smith Incorporated has entered into contracts with all
of its directors providing for indemnification of such persons by Merrill Lynch,
Pierce, Fenner & Smith Incorporated to the full extent authorized or permitted
by law, subject to certain limited exceptions.
II-1
<PAGE>
Item 16. Exhibits.
See Exhibit Index.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of the prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(5) For purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new
II-2
<PAGE>
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to Item 15 of this registration statement, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant hereby certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-1 and has duly caused this
Amendment No. 2 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, on July 28,
1999.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: *
-------------------------------------
Name: Michael Castellano
Title: Chief Financial Officer
and Controller
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 2 to the Registration Statement has been signed by the following
persons in the capacities indicated below on July 28, 1999.
Signature Title
--------- -----
*
- -------------------------------
Michael Castellano Chief Financial Officer
and Controller
*
- -------------------------------
George A. Schieren Director
*
- -------------------------------
John L. Steffens Director
*By: /s/ Stephen G. Bodurtha Attorney-in-Fact
-------------------------------
Stephen G. Bodurtha
II-4
<PAGE>
INDEX TO EXHIBITS
Exhibits Sequential page numbers
- -------- -----------------------
* 4.1 Form of Depositary Trust Agreement
* 4.2 Form of ABC receipts
** 5.1 Opinion of Shearman & Sterling regarding the
validity of the ABC receipts
** 8.1 Opinion of Shearman & Sterling, as special U.S. tax counsel
regarding the material federal income tax consequences
* 24.1 Power of Attorney (included on page II-3 of original filing)
- ----------
* Previously filed.
** To be filed by amendment.
II-5
