-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BIX2rH6DuEz359UXB/l7AqJcbl6iIxRBK73Qb57Z+ID6LxYOxFllUbRdW17K6mmc POSC+ffP8y/bh9JRjmUWNw== 0000950130-00-006290.txt : 20001222 0000950130-00-006290.hdr.sgml : 20001222 ACCESSION NUMBER: 0000950130-00-006290 CONFORMED SUBMISSION TYPE: POS EX PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20001128 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MERRILL LYNCH PIERCE FENNER & SMITH INC CENTRAL INDEX KEY: 0000728612 STANDARD INDUSTRIAL CLASSIFICATION: 6189 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS EX SEC ACT: SEC FILE NUMBER: 333-31226 FILM NUMBER: 777428 BUSINESS ADDRESS: STREET 1: NORTH TOWER WORLD FINANCIAL CENTER STREET 2: NORTH TOWER WORLD FINANCIAL CENTER 5TH F CITY: NEW YORK STATE: NY ZIP: 10281-1323 BUSINESS PHONE: 2124496202 MAIL ADDRESS: STREET 1: WORLD FINANCIAL CENTER STREET 2: NORTH TOWER 23RD FL CITY: NEW YORK STATE: NY ZIP: 10281-1323 POS AM 1 0001.txt POST-EFFECTIVE AMENDMENT #1 TO FORM S-1 As filed with the Securities and Exchange Commission on November 27, 2000 Registration No. 333-31226 - - -------------------------------------------------------------------------------- - - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- POST-EFFECTIVE AMENDMENT NO. 1 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) --------------- Broadband HOLDRS SM Trust (Issuer with respect to the receipts) Delaware 6211 13-5674085 (State or other (Primary Standard Industrial jurisdiction (I.R.S. Employer Classification Code Number) Identification Number) of incorporation or --------------- organization) 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. Copies to: Corporate Secretary Andrew B. Janszky Merrill Lynch, Pierce, Fenner & Smith Shearman & Sterling Incorporated 599 Lexington Avenue 250 Vesey Street New York, New York 10022 New York, New York 10281 (212) 848-4000 (212) 449-1000 (Name, address, including zip code, and telephone number, including area code, of agent for service) 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 effective 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. [X] If delivery of the prospectus is expected to be made pursuant to Rule 434 under the Securities Act, please check the following box. [_] - - -------------------------------------------------------------------------------- - - -------------------------------------------------------------------------------- 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............. $290,136 Printing and engraving expenses................................. 150,000 Legal fees and expenses......................................... 200,000 Rating agency fees.............................................. 0 Miscellaneous................................................... 9,864 -------- Total......................................................... $650,000
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 attorney's 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. 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: II-1 (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. (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-2 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 Post-Effective Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, on November 27, 2000. Merrill Lynch, Pierce, Fenner & Smith Incorporated * By: _________________________________ Name:Ahmass L. Fakahany Title:Senior Vice President, Chief Financial Officer and Controller Pursuant to the requirements of the Securities Act of 1933, this Post- Effective Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities indicated on November 27, 2000.
Signature Title --------- ----- * Chief Executive Officer, ___________________________________________ Chairman of the Board and Director John L. Steffens * Director ___________________________________________ E. Stanley O'Neal * Director ___________________________________________ George A. Schieren Director ___________________________________________ Thomas H. Patrick * Senior Vice President and ___________________________________________ Chief Financial Officer Ahmass L. Fakahany * First Vice President and ___________________________________________ Controller Dominic A. Carone /s/ Stephen G. Bodurtha Attorney-in-Fact By: _______________________________________ Stephen G. Bodurtha
II-3 INDEX TO EXHIBITS
Exhibits - - -------- * 4.1 Standard Terms for Depositary Trust Agreements between Merrill Lynch, Pierce, Fenner & Smith Incorporated and The Bank of New York, as Trustee dated as of September 2, 1999, and included as exhibits thereto, form of Depositary Trust Agreement and form of HOLDRS 4.2 Amendment No. 2 to the Standard Terms for Depositary Trust Agreements; dated as of November 22, 2000 *5.1 Opinion of Shearman & Sterling regarding the validity of the Broadband HOLDRS Receipts *8.1 Opinion of Shearman & Sterling, as special U.S. tax counsel regarding the material federal income tax consequences *24.1 Power of Attorney (included in Part II of Registration Statement) 24.2 Power of Attorney for Dominic Carone
- - ---------------- *Previously filed. EX-4.2 2 0002.txt AM. NO. 2 TO STD TERMS FOR DEPOSITARY TRUST AGREEMENTS Exhibit 4.2 AMENDMENT NO. 2 TO THE STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS AMENDMENT NO. 2 TO THE STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS (the "Amendment") dated as of November 22, between Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Initial Depositor, and The Bank of New York, as Trustee. W I T N E S S E T H: WHEREAS, the Initial Depositor wishes to amend the Standard Terms for Depositary Trust Agreements, dated September 2, 1999, between the Initial Depositor and the Trustee (the `Standard Terms") to allow for the inclusion in all future and existing HOLDRS trusts the securities received as a result of distribution of securities from a Securities Issuer or the securities received as consideration in connection with a merger, acquisition or other corporate combination involving a Securities Issuer. However, the Amendment does not apply to the Market 2000+ HOLDRS or a future HOLDRS Trust agreed upon by the Initial Depositor and the Trustee. NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Amendment, the parties hereby agree as follows: Article I DEFINITIONS Section 1.1 Definitions. The following definition is hereby deleted in ----------- its entirety and restated as follows: (a) "Securities" means any shares of a class of securities, including American depositary shares and American depositary receipts, and Additional Securities which must be deposited for issuance of Receipts. (b) The following definitions are hereby added to the Standard Terms: "Additional Securities" means any securities which are issued to the holders of the Underlying Securities as a dividend, distribution or in exchange for Securities, unless such securities (1) are not listed for trading on a U.S. national securities exchange or through Nasdaq NMS or (2) have a Standard & Poor's Corporation Sector Classification that is different from any Underlying Security in the respective HOLDRS trust at the time of the dividend, distribution or exchange. "Standard & Poor's Corporation Sector Classification" means the sector classification given to each class of publicly traded securities of a company, from time to time, by Standard & Poor's Corporation. Article II AMENDMENT Section 2.1 Reconstitution Events. Section 2.11(a) is hereby --------------------- deleted in its entirety and replaced with the following: (a) If any class of Securities ceases to be outstanding as a result of a merger, consolidation, corporate combination or other event, and, as a result, securities which are not Underlying Securities or Additional Securities are received by the Trustee, the Trustee shall, if it has actual knowledge of such event, to the extent lawful and feasible and subject to Section 4.10, distribute any such securities which shall be received by the Trustee to the Owners in proportion to their ownership of Receipts. Effective on the date that such Securities cease to be outstanding, such class of Securities shall cease to be either Securities or Underlying Securities. Section 2.2 Distributions in Securities. Section 4.3 is hereby --------------------------- deleted in its entirety and replaced with the following: If any distribution by a Securities Issuer consists of a dividend in, or free distribution of, Securities or Additional Securities, the Trustee shall, to the extent lawful and feasible, retain such Securities or Additional Securities under the Depositary Trust Agreement, and, in such case, (i) the amount of such Securities or Additional Securities so retained in respect of each Receipt shall be added to the classes and quantities of securities which must be deposited for issuance of one Receipt and (ii) the number of Receipts in an Issuance Denomination may be increased or decreased by the Trustee to the lowest multiple of 100 Receipts such that no fractional shares are thereby represented in such Issuance Denomination. Section 2.3 Changes Affecting Underlying Securities. Section 4.8(a) --------------------------------------- is hereby deleted in its entirety and replaced with the following: In circumstances where the provisions of Section 2.11, 4.2 and 4.3 do not apply, upon any change in nominal value, change in par value, split-up, consolidation or any other reclassification of any Underlying Securities, or upon any recapitalization, reorganization, merger or consolidation or sale of assets affecting the issuer of any Underlying Security, regardless of whether the Securities Issuer survives, the Trustee shall, to the extent lawful and feasible, retain any Securities or Additional Securities under the Depository Trust Agreement, and, in such case, (i) the amount of such Securities or Additional Securities so retained in respect of each Receipt shall be added to the classes and quantities of securities which must be deposited for issuance of one Receipt and (ii) the number of Receipts in an Issuance Denomination may be increased or decreased by the Trustee to the lowest multiple of 100 Receipts such that no fractional shares are thereby represented in such Issuance Denomination. Article III Miscellaneous Section 3.1 Counterparts. This Amendment may be executed in any ------------ number of counterparts, each of which shall be deemed an original and all of such counterparts shall constitute one and the same instrument. Copies of this Amendment, the Standard Terms and the applicable Depositary Trust Agreement shall be filed with the Trustee and shall be open to inspection by any Owner of a Receipt during business hours. Section 3.2 Governing Law. This Amendment shall be interpreted and ------------- all rights hereunder and provisions hereof shall be governed by the substantive laws (but not the choice of law rules) of the State of New York. IN WITNESS WHEREOF, Merrill Lynch, Pierce, Fenner & Smith Incorporated and The Bank of New York have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first set forth above. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: /s/ Stephen G. Bodurtha ------------------------ Stephen G. Bodurtha Attorney-in-Fact and First Vice President THE BANK OF NEW YORK, as Trustee By: /s/ Joanne DiGiovanni --------------------- Joanne DiGiovanni Vice President EX-24.2 3 0003.txt POWER OF ATTORNEY OF DOMINIC A. CARONE Exhibit 24.2 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS that the person whose signature appears below constitutes and appoints Joseph Moglia and Stephen G. Bodurtha and each of them, with full power to act without the other, his true and lawful attorneys-in-fact and agents with full and several power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, and supplements to Registration Statement No. 333-78575, Registration Statement No. 333-89355, Registration Statement No. 333-92161, Registration Statement No. 333-92163, Registration Statement No. 333-96061, Registration Statement No. 333-36490, Registration Statement No. 333-95805, Registration Statement No. 333-95807, Registration Statement No. 333-31226, Registration Statement No. 333-36480, Registration Statement No. 333-96063, Registration Statement No. 333-96069, Registration Statement No. 333-33362 and Registration Statement No. 333-37980 and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Signature Title --------- ----- /s/ Dominic Carone First Vice President and ___________________________________________ Controller Dominic Carone
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