As filed with the Securities and Exchange Commission on August 6, 1999
Registration No. 333-78575
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 3
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)
---------------------------------------------------------------
[Industry] Receipts Trust
yet-to-be formed
[Issuer with respect to the receipts]
<TABLE>
<CAPTION>
<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>
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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
- ---------------------- ------------- ------------- ------------- -------------
Proposed Proposed
Title of Each Class Maximum Maximum Amount of
of Amount to Be Offering Aggregate Registration
Securities to Be Registered Price Offering Fee(2)
Registered Per Receipt Price(1)
- ---------------------- ------------- ------------- ------------- -------------
- ---------------------- ------------- ------------- ------------- -------------
[Industry] Receipts 100,000 $100 $10,000,000 $3,448.00
- ---------------------- ------------- ------------- ------------- -------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act.
(2) Previously paid.
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
[Logo]
100,000 Receipts
[Industry] ReceiptsSM Trust
The [Industry] Receipts Trust will issue [industry] receiptsSM
representing your undivided beneficial ownership in the common stock of a group
of [25] specified companies that operate in various segments of the [_____]
industry. [_____] will be the trustee. You only may acquire, hold or transfer
[industry] receipts in a round-lot amount of 100 [industry] receipts or
round-lot multiples. [Industry] receipts are separate from the underlying
deposited common stocks that are represented by the [industry] receipts. For a
list of the names and the number of shares of the companies that make up an
[industry] receipts, see "Highlights of [industry] receipts--The [industry]
receipts Securities" starting on page 5. The trust will issue additional
[industry] receipts on a continuous basis.
INVESTING IN [INDUSTRY] RECEIPTS INVOLVES SIGNIFICANT RISKS.
SEE "RISK FACTORS" STARTING ON PAGE 4.
The initial public offering price for a round-lot of 100 [industry]
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.
[Industry] 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 [industry]
receipts. Application has been made to list the [industry] receipts on the
American Stock Exchange under the symbol "___."
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE [INDUSTRY] RECEIPTS, OR DETERMINED
IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
Receipts Underwriting Price to
Price Fee Public
---------------------------------------------------------
Per [industry] 2%
receipts........
TOTAL...........
For purchases of [industry] receipts in excess of [ ] [industry]
receipts, the underwriting fee will be [ ]%.
----------------------------
Merrill Lynch & Co.
----------------------------
The date of this prospectus is [August __], 1999.
"[Industry] receipts " and "__________" are service marks of Merrill Lynch &
Co., Inc.
<PAGE>
TABLE OF CONTENTS
Page
Summary.....................................................................3
Risk factors................................................................4
Highlights of [industry] receipts...........................................6
The Trust..................................................................12
Description of [industry] receipts.........................................13
Description of underlying securities.......................................13
Description of the Depositary Trust Agreement..............................15
Federal income tax consequences............................................18
ERISA considerations.......................................................20
Plan of distribution.......................................................20
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 [industry] receipts, 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 [industry] receipts in any jurisdiction
where the offer or sale is not permitted.
2
<PAGE>
SUMMARY
The [industry] receipts trust will be formed under the depositary trust
agreement, dated as of August __, 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 [25] specified
companies generally considered to operate in various segments of the [ ]
industry. This group of common stocks is referred to as the underlying
securities. Except when a reconstitution event occurs, the underlying securities
will not change.
Under no circumstances will a new company be added to the group of issuers
of underlying securities.
The trust will issue [industry] receipts that represent your undivided
beneficial ownership interest in the shares of common stock held by the trust on
your behalf. The [industry] receipts are separate from the underlying common
stocks that are represented by the [industry] receipts.
3
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RISK FACTORS
An investment in [industry] receipts involves risks similar to investing
in each of the underlying securities outside of the [industry] receipts,
including the risks associated with concentrated investments in the [____]
industry.
o Loss of investment. Because the value of [industry] receipts directly
relates to the value of the underlying securities, you may lose all or a
substantial portion of your investment in the [industry] receipts if the
underlying securities decline in value.
o Discount trading price. [Industry] receipts may trade at a discount
to the aggregate value of the underlying securities.
o Not necessarily representative of the [_____] industry. While the
underlying securities are common stocks of companies generally
considered to be involved in various segments of the [_____] industry, the
underlying securities and the [industry] receipts may not necessarily
follow the price movements of the entire [_____] industry generally.
If the underlying securities decline in value, your investment in the
[industry] receipts will decline in value even if common stock prices
in the [_____] industry generally increase in value.
o No investigation of underlying securities. The underlying securities
included in the [industry] receipts were selected by Merrill Lynch,
Pierce, Fenner & Smith Incorporated based on the market capitalization
of issuers and the market liquidity of common stocks in the [_____]
industry, without regard for the value, price performance, volatility
or investment merit of the underlying securities. Consequently, the
[industry] receipts 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 is any form of
investment recommendation by the trust, the trustee, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, or their affiliates.
o Loss of diversification. As a result of business developments,
reorganizations, or market fluctuations affecting issuers of the
underlying securities, [industry] receipts may not necessarily continue to
be a diversified investment in the [____] industry.
o Possible concentrated investment. As a result of market fluctuation and/or
reconstitution events, [industry] receipts may represent a concentrated
investment in one or more of the underlying securities which would reduce
investment diversification and increase your exposure to the risks of
concentrated investments.
o Conflicting investment choices. In order to sell one or more of the
underlying securities or to participate in a tender offer relating to
one or more of the underlying securities, you will be required to
cancel your [industry] receipts and receive delivery of each of the
underlying securities. The cancellation of your [industry] receipts
will allow you to sell individual underlying securities or to deliver
individual underlying securities in a tender offer. The cancellation
of [industry] receipts will involve payment of a cancellation fee to
the trustee.
4
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o Trading halts. Trading in [industry] receipts may be halted in the event
trading in one or more of the underlying securities is halted. If so, you
will not be able to trade [industry] receipts even though there is trading
in some of the underlying securities.
o Possible conflicts of interest. Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as initial depositor, will select the underlying
securities. Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Merrill Lynch & Co., and its affiliates, collectively referred to as
Merrill Lynch, also will be involved in the initial distribution of
[industry] receipts, will seek to make a market in [industry]
receipts, and may from time to time engage in transactions involving
the underlying securities for its proprietary accounts or for other
accounts under its management. Merrill Lynch may engage in investment
banking and other activities, or may otherwise provide services to
issuers of the underlying securities in connection with its business.
All of these activities may result in conflicts of interest,
including, but not limited to, conflicts of interest with regard to
the initial selection of the underlying securities to be included in
the [industry] receipt, Merrill Lynch's activity in the secondary
market, the initial and subsequent deposits of the underlying
securities with the trust, and cancellations of [industry] receipts by
Merrill Lynch.
o Temporary price increases in the underlying securities. Purchasing
activity of underlying securities in the secondary trading market for
deposit 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 [industry] receipts, particularly in
connection with the initial issuance of [industry] receipts, could
temporarily increase the market price of the underlying securities,
resulting in a higher price on that date. This purchasing activity
could create a temporary imbalance between the supply and demand of
the underlying securities, thereby limiting the liquidity of the
underlying securities due to a temporary increased demand for
underlying securities. Consequently, prices for the underlying common
stocks may 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 [industry] receipts.
o Industry risk factors. [To come.]
5
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HIGHLIGHTS OF [INDUSTRY] RECEIPTS
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 [Industry] Receipts Trust.
The trust The [Industry] Receipts trust will be formed under the
depositary trust agreement, dated as of August __, 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 New York state-chartered banking organization, will
be the trustee and receive compensation as set forth in the
depositary trust agreement.
Purpose of
[industry]
receipts [Industry] receipts are designed to achieve the following:
o Diversification. [Industry] receipts are designed to
allow you to diversify your investment in the [____]
industry through a single, exchange-listed instrument
representing your undivided beneficial ownership of
the underlying securities.
o Flexibility. The beneficial owners of [industry]
receipts have undivided beneficial ownership interests
in each of the underlying securities represented by the
[industry] receipts, and can cancel their [industry]
receipts to receive each of the underlying securities
represented by the receipts.
o Transaction costs. The expenses associated with trading
[industry] receipts are expected to be less than trading
each of the underlying securities separately.
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 the common stock of a new company be
added to the common stocks underlying the [industry] receipts.
The trust's assets may increase or decrease as a result of
in-kind deposits and withdrawals during the life of the trust.
6
<PAGE>
The [industry]
receipts
The trust will issue [industry] receipts that represent your
undivided beneficial ownership interest in the shares of
common stock held by the trust on your behalf. The [industry]
receipts themselves are separate from the underlying
securities that are represented by the [industry] receipts.
The specific share amounts for each round-lot of 100
[industry] receipts are set forth in the chart below and were
determined on August __, 1999 so that the initial weightings
of each underlying security included in the [industry]
receipts 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 [industry] 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 underlying securities or
reconstitution events.
The following chart provides the
o names of the [25] issuers of the underlying securities
that make up an [industry] receipts,
o stock ticker symbols,
o share amounts reflected in a round-lot of 100 [industry]
receipts,
o initial weightings, and
o the principal market on which the shares of common stock
of the selected companies are traded.
7
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Primary
Name of Ticker Share Initial Trading
Company Amounts Weighting Market
---------------------------------------------------------
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---------------------------------------------------------
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---------------------------------------------------------
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These companies generally are considered to be among the [___]
largest and most liquid companies involved in the [____]
industry as measured by market capitalization and trading
volume on August __, 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, [industry] receipts in a round-lot
of 100 [industry] receipts and round-lot multiples. The trust
will only issue [industry] receipts upon the deposit of the
whole shares represented by a round-lot of 100 [industry]
receipts. In the event that a fractional share comes to be
represented by a round-lot of [industry] receipts, the trust
may require a minimum of more than one round-lot of 100
[industry] receipts for an issuance so that the trust will
always receive whole share amounts for issuance of receipts.
The number of outstanding [industry] receipts will increase
and decrease as a result of in-kind deposits and withdrawals.
The trust will stand ready to issue additional [industry]
receipts on a continuous basis when an investor deposits the
required shares of common stock with the [_____], as trustee.
Public offering
price The initial public offering price for 100 [industry] receipts
will equal the sum of the closing market price on the pricing
date for each underlying security multiplied by the share
amount appearing in the above table, plus the underwriting
fee.
8
<PAGE>
Purchases After the initial offering, you may acquire [industry]
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 purchase in the secondary trading market.
Underwriting
fees If you wish to purchase [industry] 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 [industry] receipts or less, 2%.
o For purchases in excess of 10,000 [industry] receipts,
[ ]%.
You will not be charged any issuance fee or other sales
commission in connection with purchases of [industry] receipts
made in the initial public offering.
Issuance and
cancellation
fees After the initial offering, if you wish to create [industry]
receipts by delivering to the trust the requisite shares of
common stock evidencing an [industry] receipts, [_____] as
trustee will charge you an issuance fee of up to $10.00 for
each round-lot of 100 [industry] receipts. If you wish to
cancel your [industry] receipts and withdraw your underlying
securities, [_____] as trustee will charge you a cancellation
fee of up to $10.00 for each round-lot of 100 [industry]
receipts.
Commissions If you choose to deposit underlying securities in order to
receive [industry] 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 commission
associated with your purchase of the underlying 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 for each round-lot of 100
[industry] receipts to be deducted from any dividend payments
on underlying securities 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 not sufficient to cover the custody fees
for that year.
9
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Rights relating
to [industry]
Receipts You have the right to withdraw the underlying securities upon
request by delivering your [industry] receipts to [_____] as
trustee, during the trustee's business hours, and paying the
cancellation fees, taxes, and other charges. You should
receive the underlying securities no later than the business
day after the trustee receives a proper notice of
cancellation. The trustee will not deliver fractional shares
of underlying securities, to the extent that any cancellation
of [industry] receipts would otherwise require the delivery of
a fractional share, the trust will deliver cash in lieu of
such shares. Except with respect to the right to vote for
dissolution of the trust, the [industry] receipts themselves
will not have voting rights.
Rights relating
to the underlying
securities
You have the right to:
o Receive all shareholder disclosure materials, including
annual and quarterly reports, distributed by the issuers
of the underlying securities.
o Receive all proxy materials distributed by the issuers
of the underlying securities and will have the right to
instruct [_____] as trustee, to vote the underlying
securities or may attend shareholder meetings yourself.
o Receive dividends and other distributions on the
underlying securities, if any are declared and paid to
the trustee by an issuer of the underlying securities.
If you wish to participate in a tender offer for underlying
securities, you must obtain the underlying securities by
surrendering your [industry] receipts and receiving all of
your underlying securities. For specific information about
obtaining your underlying securities, you should read the
discussion under the caption "Description of Depositary Trust
Agreement."
Reconstitution
events A. If an issuer of underlying securities 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 an underlying security and the trustee
will distribute the shares of that company to the owners
of the [industry] receipts.
B. If the SEC finds that an issuer of underlying securities
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 [industry] receipts.
10
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C. If the underlying securities of an issuer are no
longer outstanding because its 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
[industry] receipts, unless the acquiring company
already is included in the [industry] receipts and
the consideration paid is additional underlying
securities. In this case, the additional underlying
securities will be deposited into the trust.
D. If an issuer's underlying securities are delisted from
trading on a national securities exchange or NASDAQ and
are not listed for trading on another national
securities exchange or through NASDAQ within 5 business
days from the date the such securities are delisted.
If a reconstitution event occurs, the trustee will deliver the
underlying security to you within three calendar days from the
date that the trustee has knowledge of the occurrence of a
reconstitution event.
Termination
events A. The [industry] receipts are delisted from the
American Stock Exchange and are not listed for trading
on another national securities exchange or through
NASDAQ within five business days from the date the
[industry] 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 beneficial owners of [industry]
receipts of its intent to resign.
C. 75% of beneficial owners of outstanding [industry]
receipts vote to dissolve and liquidate the trust.
If a termination event occurs, the trustee will distribute the
underlying securities to you within three calendar days after
the termination event.
Federal income tax
consequences The federal income tax laws will treat a U.S. holder of
[industry] receipts as directly owning the underlying
securities. The [industry] receipts themselves will not result
in any federal tax consequences separate from the tax
consequences associated with ownership of the underlying
securities.
Listing Application has been made to list [industry] receipts on the
American Stock Exchange under the symbol "___." Trading will
take place only in round-lots of 100 [industry] receipts and
round-lot multiples. A minimum of 150,000 [industry] receipts
will be required to be outstanding when trading begins.
11
<PAGE>
Trading Investors only will be able to acquire, hold, transfer and
surrender a round-lot of 100 [industry] receipts. Bid and ask
prices, however, will be quoted per single [industry]
receipts.
Clearance and
settlement The trust will issue [industry] receipts in book-entry form.
The trust will issue [industry] 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
[industry] receipts".
THE TRUST
General. This discussion highlights information about the [industry]
receipts 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 [industry] receipts trust. The trust will be formed pursuant to the
depositary trust agreement, dated as of August __, 1999. [_____] will be the
trustee. The [industry] receipts Trust is not a registered investment company
under the Investment Company Act of 1940.
The [industry] receipts trust is intended to hold deposited shares for the
benefit of owners of [industry] receipts. The trustee will perform only
administrative and ministerial acts.
The property of the trust will consist of the underlying 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 [industry] receipts.
The trust will terminate on December 31, 2039, or earlier if a termination
event occurs.
12
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DESCRIPTION OF [INDUSTRY] RECEIPTS
The trust will issue [industry] 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 [industry] receipts on a continuous basis when an investor deposits
the requisite underlying securities with the trustee.
You may only acquire, hold, trade and surrender [industry] receipts in a
round-lot of 100 [industry] receipts and round-lot multiples. The trust will
only issue [industry] receipts upon the deposit of the whole shares of
underlying securities that are represented by a round-lot of 100 [industry]
receipts. In the event of a stock split, reverse split, or other distribution by
the issuer of an underlying security that results in a fractional share becoming
an underlying security, the trust may require a minimum of more than one
round-lot of 100 [industry] receipts for an issuance so that the trust will
always receive whole share amounts for issuance of receipts.
[Industry] receipts will represent your individual and undivided
beneficial ownership interest in the common stock of the specified underlying
securities. The [25] companies selected as part of this receipt program are
listed above in the section entitled "Highlights of [industry] receipts--The
[industry] receipts".
Beneficial owners of [industry] receipts will have the same rights,
privileges and obligations as they would have if they beneficially owned the
underlying securities outside of the trust. These include the right of investors
to instruct the trustee to vote the common stock, and to receive dividends and
other distributions on the underlying securities, if any are declared and paid
to the trustee by an issuer of an underlying security, as well as the right to
cancel [industry] receipts to receive the underlying securities. See
"Description of the Depositary Trust Agreement". [Industry] receipts are not
intended to change your beneficial ownership in the underlying securities under
federal securities laws, including Sections 13(d) and 16(a) of the Securities
Exchange Act of 1934.
The trust will issue [industry] 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. [industry] receipts will be available only in
book-entry form. Owners of [industry] receipts may hold their [industry]
receipts through DTC, if they are participants of DTC, or indirectly through
entities that are participants in DTC.
DESCRIPTION OF THE UNDERLYING SECURITIES
Selection criteria. The underlying securities are the common stocks of a
group of [25] specified companies involved in various segments of the [_____]
industry and whose common stock is registered under Section 12 of the Exchange
Act. The issuers of the underlying securities are among the [___] largest
capitalized, most liquid companies in the [____] Industry as measured by market
capitalization as of August __, 1999 and average 60-day daily trading volume.
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.
Underlying securities. For a list of the underlying securities that make
up a receipt, please refer to "Highlights of [industry] receipts--The [industry]
receipts." If the underlying
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securities change because of a reconstitution event, a revised list of
underlying securities will be set forth in a prospectus supplement and will be
available from the American Stock Exchange and through a widely-used electronic
information dissemination system such as Bloomberg or Reuters.
No investigation. In selecting the underlying securities, the trust, the
trustee, Merrill Lynch, Pierce, Fenner & Smith Incorporated, 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 [industry] receipts,
you should consider publicly available financial and other information about the
issuers of the underlying 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 recommendation of
that company by the trust, the trustee, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, and any of their affiliates.
General Background and Historical Information. The following tables
provide a brief description of the business of each of the issuers of the
underlying securities and set forth the high and low market prices of each of
the underlying securities 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-sixteenth dollar. An asterisk (*) denotes that no
shares of the issuer were outstanding during the year. The historical prices of
the underlying securities should not be taken as an indication of future
performance.
[Separate entry for EACH underlying security]. [Brief description of
the business of the issuer of the underlying security to come.]
High Low Last
---- --- ----
1994
1995
1996
1997
1998
1999
The following graph sets forth the composite performance of all of the
underlying securities measured at the close of each business day from ______,
199__, the first date when all of the underlying securities were publicly
traded, to August __, 1999. The performance graph is determined by using the
specific share amounts reflected in a round-lot of 100 [industry] receipts, as
adjusted for any splits that may have occurred over the measurement period. Past
movements of the underlying securities are not necessarily indicative of future
values.
- -----------------------------------------------------------------------------
[Graph to come]
- -----------------------------------------------------------------------------
14
<PAGE>
DESCRIPTION OF THE DEPOSITARY TRUST AGREEMENT
General. The depositary trust agreement, dated as of August __, 1999,
among Merrill Lynch, Pierce, Fenner & Smith, as initial depositor, [_____], as
trustee, and the owners of the [industry] receipts, provides that [industry]
receipts will represent the common stock of the underlying companies.
The Trustee. [[_____] provide]
Issuance, transfer and surrender of [industry] receipts. You may create,
hold in your investment portfolio, transfer in the trading market, and cancel
[industry] receipts only in round-lots of 100 [industry] receipts. You may
create [industry] receipts by delivering to the trustee the requisite underlying
securities. The trust will only issue [industry] receipts upon the deposit of
the whole shares represented by a round-lot of 100 [industry] receipts. In the
event that an issuer of underlying securities distributes a fractional share
that is represented in a round-lot of [industry] receipts, the trust may require
a minimum of more than one round-lot of 100 [industry] receipts for an issuance
so that the trust will always receive whole share amounts for issuance of
receipts. You must endorse or otherwise complete documents so that you or a
person acting on your behalf may deposit the requisite underlying securities
into the trust in return for a round-lot of 100 [industry] receipts. Similarly,
you must surrender [industry] receipts in integral multiples of 100 [industry]
receipts to withdraw deposited shares from the trust. The trustee will not
deliver fractional shares of underlying securities, to the extent that any
cancellation of [industry] receipts would otherwise require the delivery of
fractional shares, the trust will deliver cash in lieu of such shares. 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 one business day of your withdrawal request.
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 underlying securities.
Under the depositary trust agreement, the beneficial owners of [industry]
receipts, 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 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 underlying 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 underlying securities directly. You will be obligated to
pay any tax or other governmental charge that may become due with respect to
[industry] 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 quarterly custody fee of $2.00 for each
round-lot of 100 [industry] receipts from quarterly dividends, if any, paid to
the trustee by the issuers of the underlying securities. The trustee, however,
will waive its 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.
15
<PAGE>
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 underlying securities.
Shareholder communications. The trustee promptly will forward to you all
shareholder communications that it receives from issuers of the underlying
securities.
Withdrawal of underlying securities. You may surrender your [industry]
receipts and receive underlying securities during the trustee's normal business
hours and upon the payment of applicable fees, taxes or governmental charges, if
any. You should receive your underlying securities no later than the business
day after the trustee receives your request. If you surrender [industry]
receipts in order to receive underlying securities, you will pay to the trustee
a cancellation fee of up to $10.00 per round-lot of 100 [industry] receipts.
Further issuances of [industry] receipts. The depositary trust agreement
will provide for further issuances of [industry] receipts on a continuous basis
without your consent.
Reconstitution events. The depositary trust agreement provides for the
automatic distribution of underlying securities to you in four circumstances.
A. If an issuer of underlying securities 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 underlying security and the trustee will
distribute the shares of that company to the owners of the [industry] receipts.
B. If the SEC finds that an issuer of underlying securities 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 [industry] receipts.
C. If the underlying securities of an issuer are no longer outstanding
because its 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 [industry] receipts, unless the acquiring company is
already included in the [industry] receipts and the consideration paid is
additional underlying securities. In this case, the additional underlying
securities will be deposited into the trust.
D. If an issuer's underlying securities are delisted from trading on a
national securities exchange or NASDAQ and are not listed for trading on another
national securities exchange or through NASDAQ within 5 business days from the
date the such securities are delisted.
If a reconstitution event occurs, the trustee will deliver the underlying
security to you within three calendar days from the date that the trustee has
knowledge of the occurrence of a reconstitution event.
Termination of depositary trust agreement. The trust will terminate if the
trustee resigns and no successor trustee is appointed within 60 days from the
date the trustee provides notice to
16
<PAGE>
the beneficial owners of [industry] receipts of its intent to resign. Upon
termination, the beneficial owners of [industry] receipts will surrender their
[industry] 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 [industry] receipts. The trust
also will terminate if [industry] receipts are delisted from the American Stock
Exchange and are not listed for trading on another national securities exchange
or through NASDAQ within 5 business days from the date the [industry] receipts
are delisted. Finally, the trust will terminate if 75% of the owners of
outstanding [industry] receipts other than Merrill Lynch, Pierce, Fenner & Smith
Incorporated vote to dissolve and liquidate the trust.
If a termination event occurs, the trustee will distribute the underlying
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 [industry] 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. Except
with respect to amendments affecting the fees and charges of the trustee, the
amendment must not adversely affect in any material respect the interests of the
owners of [industry] receipts, as evidenced by an opinion of counsel delivered
to the trustee. 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 [industry] 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 [industry]
receipts will not become effective until 30 days after notice of the amendment
is given to the owners of [industry] receipts.
Issuance and cancellation fees. After the initial public offering, the
trust expects to issue more [industry] receipts. If you wish to create
[industry] receipts by delivering to the trust the requisite underlying
securities, the trustee will charge you an issuance fee of up to $10.00 for each
round-lot of 100 [industry] receipts. If you wish to cancel your [industry]
receipts and withdraw your underlying securities, the trustee will charge you a
cancellation fee of up to $10.00 for each round-lot of 100 [industry] receipts
issued. The trustee may negotiate either of these fees depending on the volume,
frequency and size of the issuance or cancellation transactions.
Commissions. If you choose to create [industry] 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 underlying 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
quarterly custody fee of $2.00 for each round-lot of 100 [industry] receipts to
be deducted from any dividend payments on underlying securities 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.
17
<PAGE>
Address of the trustee. [ ]
Governing law. The depositary trust agreement and [industry] 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 underlying 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 [industry] receipts (other than the execution and authentication
thereof), except for the trustee's representation as to the due execution and
authorization 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.
FEDERAL INCOME TAX CONSEQUENCES
General
The following is a summary of the U.S. federal income tax consequences
relating to the [industry] 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. receipt 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 [industry] 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.
18
<PAGE>
Taxation of the trust
The trust will provide for flow through tax consequences as it will be
treated as a grantor trust or custodial arrangement for United States federal
income tax purposes.
Taxation of [industry] receipts
A receipt holder purchasing and owning [industry] receipts will be
treated, for U.S. federal income tax purposes, as directly owning a
proportionate share of the underlying securities represented by [industry]
receipts. Consequently, if there is a taxable cash distribution on an underlying
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
underlying securities by allocating the purchase price for the [industry]
receipts among the underlying 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 underlying 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.
The distribution of any securities by the trust upon the surrender of
[industry] receipts, 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 underlying securities. Accordingly, a holder includes this
fee in its tax basis in the underlying 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 underlying
security. Similarly, the brokerage fee incurred in selling [industry] receipts
will reduce the amount realized with respect to the underlying securities.
A holder will be required to include in its income the full amount of
dividends paid on the underlying 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 underlying 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. receipt holders
Non-U.S. receipt holders should consult their tax advisors regarding
U.S. withholding and other taxes which may apply to an investment in the
underlying securities.
19
<PAGE>
ERISA CONSIDERATIONS
Any plan fiduciary which proposes to have a plan acquire [industry]
receipts 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 [industry] 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 trust will issue to
Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Merrill Lynch, Pierce,
Fenner & Smith Incorporated will deposit the underlying securities to receive
[industry] receipts. Merrill Lynch, as underwriter, proposes to offer the
[industry] 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 has from time to time provided investment banking and other
financial services to certain of the issuers of the underlying securities and
expects in the future to provide these services, for which it has received and
will receive customary fees and commissions. It also may have served as
counterparty in other transactions with certain of the issuers of the underlying
securities.
Merrill Lynch, Pierce, Fenner & Smith Incorporated will indemnify the
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 [industry] 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 has filed a
registration statement on Form S-1 with the SEC covering the [industry]
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.
The 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
20
<PAGE>
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 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 underlying securities is
registered under the Exchange Act, the issuers of the underlying securities are
required to file periodically financial and other information specified by the
SEC. For more information about the issuers of the underlying securities,
information provided to or filed with the SEC by the issuers of the underlying
securities with respect to their registered securities can be inspected at the
SEC's public reference facilities or accessed through the SEC's web site
referenced above. In addition, information regarding the issuers of the
underlying securities may be obtained from other sources including, but not
limited to, press releases, newspaper articles and other publicly disseminated
information. Neither the trust nor Merrill Lynch, Pierce, Fenner & Smith
Incorporated or its affiliates make any representation or warranty as to the
accuracy or completeness of any information regarding the issuers of the
underlying securities not directly included in this prospectus.
THE TRUST AND MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED AND ITS
AFFILIATES NOT AFFILIATED WITH THE ISSUERS OF THE UNDERLYING SECURITIES, AND THE
ISSUERS OF THE UNDERLYING SECURITIES HAVE NO OBLIGATIONS WITH RESPECT TO
[INDUSTRY] RECEIPTS. THIS PROSPECTUS RELATES ONLY TO [INDUSTRY] RECEIPTS AND
DOES NOT RELATE TO THE COMMON STOCK OR OTHER SECURITIES OF THE ISSUERS OF THE
UNDERLYING SECURITIES. THE INFORMATION IN THIS PROSPECTUS REGARDING THE ISSUERS
OF THE UNDERLYING 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 UNDERLYING SECURITIES IN CONNECTION WITH [INDUSTRY]
RECEIPTS. WE MAKE NO REPRESENTATION THAT THESE PUBLICLY AVAILABLE DOCUMENTS OR
ANY OTHER PUBLICLY AVAILABLE INFORMATION REGARDING THE ISSUERS OF THE UNDERLYING
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 UNDERLYING SECURITIES, AND THEREFORE THE
OFFERING AND TRADING PRICES OF THE [INDUSTRY] RECEIPTS, HAVE BEEN PUBLICLY
DISCLOSED.
21
<PAGE>
================================================================================
[Industry] Receipts Logo
100,000 Shares
[Industry] ReceiptsSM Trust
-----------------------
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 [INDUSTRY] 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..................... 0
Legal fees and expenses............................. 0
Rating agency fees.................................. 0
Miscellaneous....................................... 0
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 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.
II-2
<PAGE>
(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: *
----------------------------------------
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
* Chief Financial Officer
- ------------------------------ and Controller
Michael Castellano
* Director
- ------------------------------
George A. Schieren
* Director
- ------------------------------
John L. Steffens
*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 [industry] receipts
** 5.1 Opinion of Shearman & Sterling regarding the
validity of the [industry] receipts
** 8.1 Opinion of Shearman & Sterling, as special U.S. tax counsel
regarding the material federal income tax consequences
* [___] Power of Attorney (included on page II-3 of original filing)
- ----------
* Previously filed.
** To be filed by amendment.
