Exhibit 4.11
MERRILL LYNCH & CO., INC.
__% Subordinated Debenture Due ______
No. R- $___________
MERRILL LYNCH & CO., INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to MERRILL LYNCH
PREFERRED FUNDING , L.P., or registered assigns, the principal sum of
____________________________DOLLARS ($___________) on ________ __, ____ and
to pay interest on said principal sum from _________ __, 1998 or from the
most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, quarterly
(subject to deferral as set forth herein) in arrears on March 30, June 30,
September 30 and December 30 of each year, commencing ______ 30, _____, at
the rate of __% per annum plus Additional Interest, if any, until the
principal hereof shall have become due and payable, and on any overdue
principal. The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on this Security is not a Business Day,
then a payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than a day on which banking institutions in The
City of New York are authorized or required by law to close. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities, as
defined in the Indenture) is registered at the close of business on the
Regular Record Date for such interest installment, which shall be the close
of business on the Business Day next preceding such Interest Payment Date.
Any such interest installment not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this security (or one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
The Company shall have the right at any time during the term of this
Security, from time to time, to extend the interest payment period of such
Security for a period not exceeding six consecutive quarters from the date of
issue or the most recent date that interest has been paid or been duly
provided for (an "Extension Period"). During any Extension Period, interest
will compound quarterly and the Company shall have the right to make partial
payments of interest on any Interest Payment Date. At the end of any
Extension Period the Company shall pay all interest then accrued and unpaid
(together with Additional Interest thereon to the extent that payment of such
interest is permitted by applicable law). "Additional Interest" means
interest that shall accrue on any interest on the Securities that is in
arrears for more than one quarter or not paid during an Extension Period,
which in either case shall accrue at __% per annum compounded quarterly.
Prior to the termination of any such Extension Period, the Company may
further extend the interest payment period, provided that such Extension
Period together with all such previous and further extensions thereof shall
not exceed six consecutive quarters or extend beyond the Maturity of this
Security. Upon the termination of any Extension Period and upon the payment
of all accrued and unpaid interest and any Additional Interest then due, the
Company may select a new Extension Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extension
Period except at the end thereof and no default under this security or Event
of Default shall be deemed to occur solely as a result of an Extension
Period. The Company shall give the Holder of this Security and the Trustee
notice of its selection of an Extension Period at least one Business Day
prior to the earlier of (i) the Interest Payment Date or (ii) the date
Merrill Lynch Preferred Capital Trust is required to give notice to the New
York Stock Exchange or other applicable self-regulatory organization or to
holders of the Trust Preferred Securities of the record date or the date such
distributions are payable, but in any event not less than one Business Day
prior to such record date.
Payment of the principal of and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in
New York, New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts;
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provided, however, that at the option of the Company payment of interest may
be made (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or (ii) by wire transfer
in immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Security
Register.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Security, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact
for any and all such purposes. Each Holder hereof, by his acceptance hereof,
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture of each holder of Senior Indebtedness, whether
now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
Reference is hereby made to the further provisions of the Indenture
summarized on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, Merrill Lynch & Co., Inc. has caused this
instrument to be duly executed under its corporate seal.
Dated: ___________ __, 1998
MERRILL LYNCH & CO., INC.
By:________________________________
Name:
Title:
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Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company, designated as its __% Subordinated Debentures Due _____ (herein
called the "Securities"), limited in aggregate principal amount to
$______________ issued under an Indenture, dated as of December 17, 1996
(herein called the "Indenture"), between the Company and The Chase Manhattan
Bank, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Securities, and of the terms
upon which the securities are, and are to be, authenticated and delivered.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
At any time on or after ______ __, ____, the Company shall have the
right to redeem the Securities, in whole or in part, from time to time, at a
Redemption Price equal to 100% of the principal amount of Securities to be
redeemed plus accrued but unpaid interest, including any Additional Interest,
if any, to the Redemption Date.
If, at any time, a Partnership Tax Event or a Partnership Investment
Company Event (each a "Partnership Special Event") shall occur and be
continuing, the Company may, within 90 days following the occurrence of such
Partnership Special Event, elect to redeem the Securities in whole (but not
in part), upon not less than 30 or more than 60 days notice at the Redemption
Price, provided that, if at the time there is available to the Company or the
Partnership the opportunity to eliminate, within such 90-day period, the
Partnership Special Event by taking some ministerial action, such as filing a
form or making an election, or pursuing some other similar reasonable such
measure that in the sole judgment of the Company has or will cause no adverse
effect on the Partnership, the Trust or the Company, and will involve no
material cost, the Company will pursue such measure in lieu of redemption.
"Partnership Investment Company Event" means that Merrill Lynch &
Co., Inc., in its capacity as general partner of Merrill Lynch Preferred
Funding , L.P. (the "Partnership"), shall have requested and received an
opinion of nationally recognized independent legal counsel experienced in
such matters to the effect that as a result of the occurrence on or after
_______ __, 1998 of a change in law or regulation or a change in
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interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, the Partnership is or
will be considered an "investment company" which is required to be registered
under the Investment Company Act of 1940.
"Partnership Tax Event" means that the Merrill Lynch & Co., Inc. in
its capacity as general partner of the Partnership, shall have requested and
received an opinion of nationally recognized independent tax counsel
experienced in such matters to the effect that there has been a Tax Action
which affects any of the events described in (i) through (iii) below and that
there is more than an insubstantial risk that (i) the Partnership is, or will
be subject to United States federal income tax with respect to income accrued
or received on the Affiliate Investment Instruments or the Eligible Debt
Securities (each as defined in the Limited Partnership Agreement), (ii) the
Partnership is, or will be subject to more than a de minimis amount of other
taxes, duties or other governmental charges or (iii) interest payable by one
or more of the obligors with respect to the Affiliate Investment Instruments
(as defined in the Amended and Restated Agreement of Limited Partnership of
Merrill Lynch Preferred Funding , L.P.) to the Partnership is not, or will
not be, deductible by the Company for United States federal income tax
purposes.
"Tax Action" means (a) an amendment to, change in or announced
proposed change in the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein,
(b) a judicial decision interpreting, applying or clarifying such laws or
regulations, (c) an administrative pronouncement or action that represents an
official position (including a clarification of an official position) of the
governmental authority or regulatory body making such administrative
pronouncement or taking such action, or (d) a threatened challenge asserted
in connection with an audit of the Company or any of its subsidiaries, the
Partnership, or the Trust, or a threatened challenge asserted in writing
against any other taxpayer that has raised capital through the issuance of
securities that substantially similar to the Securities, the Partnership
Preferred Securities, or the Trust Preferred Securities, which amendment or
change is adopted or which decision, pronouncement or proposed change is
announced or which action, clarification or challenge occurs on or after the
date of the prospectus related to the issuance of the Trust Preferred
Securities.
"Limited Partnership Agreement" means the amended and restated
agreement of Limited Partnership, dated as of ________ __, 1998, of the
Partnership as amended, modified or otherwise
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supplemented from time to time. If the Securities are only partially
redeemed by the Company, the Securities will be redeemed pro rata, by lot or
in such other manner as the Trustee shall deem appropriate and fair in its
discretion and that may provide for the selection of a portion or portions
(equal to twenty-five U.S. dollars ($25) or any integral multiple thereof) of
the principal amount of any Security.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions for satisfaction and discharge at
any time of the entire indebtedness of this Security upon compliance by the
Company with certain conditions set forth in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities, to modify the Indenture in a manner
affecting the rights of the Holders of the Securities; provided that no such
modification may, without the consent of the Holder of each Outstanding
Security, (i) extend the fixed maturity of the Securities, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable upon the redemption thereof,
or (ii) reduce the percentage of principal amount of the Securities, the
Holders of which are required to consent to any such modification of the
Indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional,
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to pay the principal of and interest on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any of their respective agents may
treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security shall be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Securities are issuable only in registered form without coupons
in denominations of $25 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
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