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As Of Filer Filing For·On·As Docs:Size Issuer Agent 11/09/04 Merrill Lynch & Co., Inc. T-3 3:588K RR Donnelley/FA |
Document/Exhibit Description Pages Size 1: T-3 Application for Qualification of a Trust Indenture HTML 54K 2: EX-4 Form of Indenture HTML 487K 3: EX-25 Statement of Eligibility HTML 21K
| Form T-3 |
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
MERRILL LYNCH & CO., INC.
(Name of Applicant)
4 WORLD FINANCIAL CENTER
(Address of Principal Executive Offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
| TITLE OF CLASS |
AMOUNT | |
| Exchange Liquid Yield Option Notes due 2032 (Zero Coupon—Floating Rate—Senior) |
$2,300,000,000 |
Approximate Date of Proposed Public Offering: November 9, 2004
Richard Alsop, Esq.
General Counsel
Corporate Law
Merrill Lynch & Co., Inc.
4 World Financial Center
Telephone: (212) 449-1000
(Name, address, including zip code, and telephone number,
including area code, of agent of service)
With a Copy to:
Norman D. Slonaker, Esq.
Sidley Austin Brown & Wood LLP
787 Seventh Avenue
(216) 839-5300
GENERAL
1. General Information.
(a) Form of Organization: Corporation
(b) State or other sovereign power under the laws of which organized: Delaware
2. Securities Act Exemption Applicable.
Merrill Lynch & Co., Inc. (the “Company”) is relying upon the exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), provided by Section 3(a)(9) thereof, in connection with the Company’s exchange offer as described herein (the “Exchange Offer”). The Exchange Offer is being made by the Company pursuant to the Exchange Circular dated November 9, 2004 (the “Exchange Circular”), and the related Letter of Transmittal of even date therewith, and consists of an offer to exchange an aggregate original principal amount of up to $2,300,000,000 of the Company’s Exchange Liquid Yield Option Notes due 2032 (Zero-Coupon—Floating Rate—Senior) (the “New LYONs”) for a like original principal amount of the Company’s Liquid Yield Option Notes due 2032 (Zero-Coupon—Floating Rate—Senior) (the “Old LYONs”).
There have not been any sales of securities of the same class as the New LYONs or the Old LYONs by the Company, nor are there any such other sales planned, by or through an underwriter at or about the time of the Exchange Offer transaction.
The Company has retained Global Bondholder Services Corporation as the “Exchange Agent” and “Information Agent”, and Merrill Lynch, Pierce, Fenner & Smith Incorporated as the “Financial Advisor” in connection with the Exchange Offer. The Exchange Agent, Information Agent and Financial Advisor will answer questions with respect to the exchange offer solely by reference to the terms of the Exchange Circular. None of the Company, the Financial Advisor, the Information Agent or the Exchange Agent makes any recommendation as to whether to exchange or refrain from exchanging the Old LYONs. The Information Agent, Exchange Agent and Financial Advisor will be paid reasonable fees directly by the Company for their services.
AFFILIATIONS
3. Affiliates. Furnish a list or diagram of all affiliates of the Company and indicate the respective percentages of voting securities or other bases of control.
The list of direct and indirect subsidiaries of the Company is hereby incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended December 26, 2003.
MANAGEMENT AND CONTROL
4. Directors and Executive Officers. List the names and complete mailing addresses of all directors and executive officers of the applicant and all persons chosen to become directors or executive officers. Indicate all offices with the applicant held or to be held by each person named.
The names of the directors and executive officers of the Company are set forth below. The mailing address of each of the directors and executive officers is 4 World Financial Center, New York, New York 10080. The title of each of the executive officers set forth below refers to such executive officer’s position with the Company, unless other specified below.
| Name |
Title | |
| E. Stanley O’Neal |
Chairman of the Board, Chief Executive Officer, President and Chief Operating Officer | |
| Rosemary T. Berkery |
Executive Vice President, General Counsel | |
| Robert C. Doll |
Senior Vice President | |
| Ahmass L. Fakahany |
Executive Vice President, Chief Financial Officer | |
| Gregory J. Fleming |
Executive Vice President | |
| James P. Gorman |
Executive Vice President | |
| Do Woo Kim |
Executive Vice President | |
| Robert J. McCann |
Executive Vice President | |
| Worley H. Clark |
Director | |
| Jill K. Conway |
Director | |
| Alberto Cribiore |
Director | |
| John D. Finnegan |
Director | |
| Heinz-Joachim Neubürger |
Director | |
| David K. Newbigging |
Director | |
| Aulana L. Peters |
Director | |
| Joseph W. Prueher |
Director | |
| Ann N. Reese |
Director | |
| Charles O. Rossotti |
Director |
5. Principal Owners of Voting Securities. Furnish the following information as to each person owning 10 percent or more of the voting securities of the applicant as of November 9, 2004.
There are no shareholders owning 10 percent or more of the voting securities of the Company.
UNDERWRITERS
6. Underwriters. Give the name and complete mailing address of (a) each person who, within three years prior to the date of filing the application, acted as an underwriter of any securities of the obligor, which were outstanding on the date of filing the application, and (b) each proposed principal underwriter of the securities proposed to be offered. As to each person specified in (a), give the title of each class of securities underwritten.
(a) Merrill Lynch, Pierce, Fenner & Smith Incorporated has acted as the principal underwriter of the securities of the Company outstanding on the date of this application over the past three years.
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(b) There are no principal underwriters of the New LYONs proposed to be offered in the Exchange Offer.
CAPITAL SECURITIES
7. Capitalization. (a) Furnish the following information as to each authorized class of securities of the applicant.
The information required by this section is incorporated by reference to the documents listed below which were filed with the SEC under the Securities Exchange Act of 1934, as amended (other than information in the documents that is deemed not to be filed):
| • | Annual Report on Form 10-K for the year ended December 26, 2003; |
| • | Quarterly Reports on Form 10-Q for the periods ended March 26, 2004, June 25, 2004 and September 24, 2004; and |
| • | all Current Reports on Form 8-K dated after the date of the Form 10-K for the year ended December 26, 2003. |
INDENTURE SECURITIES
8. Analysis of Indenture Provisions. Insert at this point the analysis of indenture provisions required under Section 305(a)(2) of the Trust Indenture Act of 1939, as amended.
The Company will issue the New LYONs pursuant to an Indenture (the “Indenture”), to be effective as of the date of the closing of the Exchange Offer, by and between the Company and JPMorgan Chase Bank, as Trustee (the “Trustee”). Other capitalized but otherwise undefined terms shall have the meanings ascribed thereto in the Indenture.
(A) EVENTS OF DEFAULT
An Event of Default with respect to the New LYONs is defined in the Indenture as:
| (i) | a default in the payment of the Contingent Principal Amount, Redemption Price, Purchase Price or Change in Control Purchase Price on any Security when the same becomes due and payable pursuant to the terms hereof; |
| (ii) | failure of the Company to make any payment of contingent interest when the same becomes due and payable pursuant to the terms of Article 10 hereof for a period of 30 days; |
| (iii) | the Company fails to comply with any of its agreements in the Securities or this Indenture (other than those referred to in clauses (a) or (b) above) upon the receipt of notice of such default from the Trustee or from Holders of not less than 25% in aggregate Original Principal Amount of the Securities then outstanding and such failure (or the failure to obtain a waiver thereof) continues for 60 days after receipt by the Company of a Notice of Default; |
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| (iv) | the Company pursuant to or under or within the meaning of any Bankruptcy Law: |
| (a) | commences a voluntary case or proceeding; |
| (b) | consents to the entry of an order for relief against it in an involuntary case or proceeding or the commencement of any case against it; |
| (c) | consents to the appointment of a Custodian of it or for any substantial part of its property; |
| (d) | makes a general assignment for the benefit of its creditors; |
| (e) | files a petition in bankruptcy or answer or consent seeking reorganization or relief; or |
| (f) | consents to the filing of such petition or the appointment of or taking possession by a Custodian; or |
| (v) | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
| (a) | is for relief against the Company in an involuntary case or proceeding, or adjudicates the Company insolvent or bankrupt; |
| (b) | appoints a Custodian of the Company or for any substantial part of its property; or |
| (c) | orders the winding up or liquidation of the Company and the order or decree remains unstayed and in effect for 60 days. |
Notwithstanding anything herein to the contrary, a Default is not an Event of Default until the Trustee notifies the Company or the Holders of at least 25% in aggregate Original Principal Amount of the Securities at the time outstanding notify the Company and the Trustee, of the Default and the Company does not cure such Default (and such Default is not waived) within the time specified in clause (ii) or clause (iii) above after actual receipt of such notice. Any such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default”.
| (B) | AUTHENTICATION AND DELIVERY |
The New LYONs shall be executed by the Company by either of its Chairman or Vice Chairman of the Board, its President, its Treasurer, its Assistant Treasurer or one of its Vice Presidents. The signature of any of these officers on the Securities may be manual or facsimile. Upon proper delivery of the New LYONs to the Trustee for authentication, the Trustee shall authenticate and deliver such securities. There will be no proceeds to the Company resulting from issuance of the New LYONs.
| (C) | RELEASE OF PROPERTY SUBJECT TO LIEN |
The Company’s obligations under the New LYONs issued under the Indenture are unsecured.
5
| (D) | SATISFACTION AND DISCHARGE |
The Indenture shall cease to be of further effect when (i) the Company delivers to the Trustee all outstanding New LYONs for cancellation or (ii) all outstanding New LYONs have become due and payable and the Company deposits with the Trustee cash sufficient to pay at the Stated Maturity, the Purchase Date, the Change in Control Purchase or the Redemption Date, the Contingent Principal Amount, the Purchase Price or contingent interest (if any shall be due and unpaid), the Change in Control Purchase Price or the Redemption Price, as the case may be, of all outstanding New LYONs, and if, in either case, the Company has paid all other sums payable hereunder by the Company.
| (E) | EVIDENCE OF COMPLIANCE WITH CONDITIONS AND COVENANTS |
| (i) | The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company a certificate of the principal executive officer, the principal financial officer or the principal accounting officer of the Company stating whether or not, to the knowledge of the signer, the Company has complied with all conditions and covenants on its part contained in the Indenture and, if the signer has obtained knowledge of any default by the Company in the performance, observance or fulfillment of any such condition or covenant, specifying each such default and the nature thereof. |
| (ii) | The Company shall file with the Trustee written notice of the occurrence of any Default or Event of Default within five Business Days of its becoming aware of such Default or Event of Default. |
9. Other Obligors. Give the name and complete mailing address of any person, other than the applicant, who is an obligor upon the indenture securities.
Not Applicable.
CONTENTS OF APPLICATION FOR QUALIFICATION
This application for qualification comprises:
(a) Pages numbered 1 to 8, consecutively.
(b) The statement of eligibility and qualification of the Trustee under the Indenture to be qualified (on Form T-1).
(c) The following exhibits, in addition to those filed as part of the statement of eligibility and qualification of the trustee:
| (i) | Exhibit T3A - The Company’s Restated Certificate of Incorporation (incorporated by reference to Exhibit (3)(i) to the Company’s Quarterly Report on Form 10-Q for the quarter ended March 30, 2001); |
| (ii) | Exhibit T3B - The Company’s Bylaws (incorporated by reference to Exhibit (3) to the Company’s Quarterly Report on Form 10-Q for the quarter ended March 28, 2003); |
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| (iii) | Exhibit T3C - Form of Indenture, to be effective as of the date of the closing of the Exchange Offer, by and between the Company and JPMorgan Chase Bank, as trustee; |
| (iv) | Exhibit T3D - Not applicable; |
| (v) | Exhibit T3E.1 – Exchange Circular, dated as of November 9, 2004 (incorporated by reference to Exhibit (a)(1)(i) to the Schedule TO filed on November 9, 2004); |
| (vi) | Exhibit T3E.2 - Letter of Transmittal (incorporated by reference to Exhibit (a)(1)(ii) to the Schedule TO filed on November 9, 2004); |
| (vii) | Exhibit T3E.3 – Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to Exhibit (a)(1)(i) to the Schedule TO filed on November 9, 2004); |
| (viii) | Exhibit T3E.4 – Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to Exhibit (a)(1)(i) to the Schedule TO filed on November 9, 2004); and |
| (ix) | Exhibit T3F - Cross-Reference Sheet (included in the Form of Indenture filed as Exhibit T3C hereto). |
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, Merrill Lynch & Co., Inc., a corporation organized and existing under the laws of the State of Delaware, has duly caused this application to be signed on its behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the City of New York, and State of New York, on the 9th day of November, 2004.
| (SEAL) |
MERRILL LYNCH & CO., INC. | |||||||
| By: | /s/ John Laws | |||||||
| Name: John Laws Title: Assistant Treasurer | ||||||||
| Attest: | /s/ Michael LaMaina |
|||||||
| Name: Michael LaMaina Title: Assistant Secretary |
||||||||
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| This ‘T-3’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on: | 11/9/04 | 8-K, SC TO-I | ||
| 9/24/04 | 10-Q, 424B3, 424B5 | |||
| 6/25/04 | 10-Q, 4, 424B5 | |||
| 3/26/04 | 10-Q, 424B3, 424B5 | |||
| 12/26/03 | 10-K, 8-K | |||
| 3/28/03 | 424B5, 8-K | |||
| 3/30/01 | 10-Q, 8-K | |||
| List all Filings | ||||