Filed Pursuant to Rule 424(b)(3)
Registration No. 333-109802
PRICING SUPPLEMENT |
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(To prospectus supplement and prospectus dated November 26, 2003) |
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Pricing Supplement Number: 2416 |
7,250,000 Units
Merrill Lynch & Co., Inc.
Medium-Term Notes, Series C
Accelerated Return Notes
Linked to the Russell 2000® Index
due June 30, 2006
(the Notes)
$10 original public offering price per unit
The Notes: The Notes are designed for investors who are willing to forego interest payments on the Notes and willing to accept a return that will not exceed the limit described in this pricing supplement in exchange for the ability to participate in changes in the level of the Russell 2000 Index (index symbol RTY) over the term of the Notes.
There will be no payments prior to the maturity date and we cannot redeem the Notes prior to the maturity date. The Notes have been approved for quotation on The Nasdaq National Market under the trading symbol ARRB. Senior unsecured debt securities of Merrill Lynch & Co., Inc., part of a series entitled Medium-Term Notes, Series C. Expected closing date: December 31, 2004. CUSIP No.: 59021S828 |
Payment on the maturity date:
The amount you receive on the maturity date will be based upon the percentage change in the level of the Russell 2000 Index. If the level of the Russell 2000 Index has increased over the term of the Notes, on the maturity date you will receive a payment per unit equal to $10 plus triple the percentage increase of the Russell 2000 Index, up to a maximum payment of $11.80 per unit, as described in this pricing supplement. If the level of the Russell 2000 Index has decreased over the term of the Notes, on the maturity date you will receive a payment per unit based upon that percentage decrease. As a result, you may receive less, and possibly significantly less, than the $10 original public offering price per unit. |
Information included in this pricing supplement supercedes information in the accompanying prospectus supplement and prospectus to the extent it is different from that information.
Investing in the Notes involves risks that are described in the Risk Factors section of this pricing supplement and the accompanying prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this pricing supplement or the accompanying prospectus supplement and prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Per Unit |
Total | |||
Public offering price |
$10.00 | $72,500,000 | ||
Underwriting discount |
$.20 | $1,450,000 | ||
Proceeds, before expenses, to Merrill Lynch & Co., Inc. |
$9.80 | $71,050,000 |
Merrill Lynch & Co.
The date of this pricing supplement is December 28, 2004.
Russell 2000® Index is a registered trademark of Frank Russell Company and has been licensed for use for certain purposes by Merrill Lynch, Pierce, Fenner & Smith Incorporated and Merrill Lynch & Co., Inc. is an authorized licensee. The Notes are not sponsored, endorsed, sold or promoted by Frank Russell Company.
Pricing Supplement
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Prospectus Supplement
Page | ||
RISK FACTORS |
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DESCRIPTION OF THE NOTES |
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UNITED STATES FEDERAL INCOME TAXATION |
S-23 | |
PLAN OF DISTRIBUTION |
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VALIDITY OF THE NOTES |
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Prospectus
Page | ||
MERRILL LYNCH & CO., INC |
2 | |
USE OF PROCEEDS |
2 | |
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS |
3 | |
THE SECURITIES |
3 | |
DESCRIPTION OF DEBT SECURITIES |
4 | |
DESCRIPTION OF DEBT WARRANTS |
13 | |
DESCRIPTION OF CURRENCY WARRANTS |
15 | |
DESCRIPTION OF INDEX WARRANTS |
16 | |
DESCRIPTION OF PREFERRED STOCK |
22 | |
DESCRIPTION OF DEPOSITARY SHARES |
27 | |
DESCRIPTION OF PREFERRED STOCK WARRANTS |
31 | |
DESCRIPTION OF COMMON STOCK |
33 | |
DESCRIPTION OF COMMON STOCK WARRANTS |
36 | |
PLAN OF DISTRIBUTION |
39 | |
WHERE YOU CAN FIND MORE INFORMATION |
39 | |
INCORPORATION OF INFORMATION WE FILE WITH THE SEC |
40 | |
EXPERTS |
41 |
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This summary includes questions and answers that highlight selected information from this pricing supplement and the accompanying prospectus supplement and prospectus to help you understand the Accelerated Return Notes Linked to the Russell 2000 Index due June 30, 2006 (the Notes). You should carefully read this pricing supplement and the accompanying prospectus supplement and prospectus to fully understand the terms of the Notes, the Russell 2000 Index (the Index) and the tax and other considerations that are important to you in making a decision about whether to invest in the Notes. You should carefully review the Risk Factors section in this pricing supplement and the accompanying prospectus supplement, which highlights certain risks associated with an investment in the Notes, to determine whether an investment in the Notes is appropriate for you.
References in this pricing supplement to ML&Co., we, us and our are to Merrill Lynch & Co., Inc. and references to MLPF&S are to Merrill Lynch, Pierce, Fenner & Smith Incorporated.
What are the Notes?
The Notes will be part of a series of senior debt securities issued by ML&Co. entitled Medium-Term Notes, Series C and will not be secured by collateral. The Notes will rank equally with all of our other unsecured and unsubordinated debt. The Notes will mature on June 30, 2006. We cannot redeem the Notes at an earlier date. We will not make any payments on the Notes until the maturity date.
Each unit will represent a single Note with a $10 original public offering price. You may transfer the Notes only in whole units. You will not have the right to receive physical certificates evidencing your ownership except under limited circumstances. Instead, we will issue the Notes in the form of a global certificate, which will be held by The Depository Trust Company, also known as DTC, or its nominee. Direct and indirect participants in DTC will record your ownership of the Notes. You should refer to the section entitled Description of Debt SecuritiesDepositary in the accompanying prospectus.
Are there any risks associated with my investment?
Yes, an investment in the Notes is subject to risks, including the risk of loss. Please refer to the section entitled Risk Factors in this pricing supplement and the accompanying prospectus supplement.
Who publishes the Index and what does the Index measure?
Frank Russell Company began dissemination of the Index on January 1, 1987 and calculates and publishes the Index under index symbol RTY. The Index is designed to track the performance of 2,000 common stocks of companies with small market capitalizations relative to other stocks in the U.S. equity market. Market capitalization is the value of a companys stock in the public market determined by multiplying the current price of a share by the number of outstanding shares. As of November 30, 2004, the market capitalization of the stocks in the Index ranged from approximately $40.3 million to approximately $3.2 billion, with the weighted average market capitalization being approximately $1.03 billion. The companies in the Index are domiciled in the U.S. and its territories and their stocks are traded on the American Stock Exchange, on the New York Stock Exchange or in the over-the-counter market. For more information on the Index, please see the section entitled The Index in this pricing supplement.
The Notes are debt obligations of ML&Co. An investment in the Notes does not entitle you to any dividends, voting rights or any other ownership interest in the stocks of the companies included in the Index.
How has the Index performed historically?
On December 28, 2004, the date the Notes were priced for initial sale to the public (the Pricing Date), the closing level of the Index was 654.57. We have included a graph showing the year-end closing level of the Index for each year from 1986 through 2003 and a table and a graph showing the month-end closing levels of the Index from January
PS-3
1999 through November 2004 in the section entitled The IndexHistorical Data on the Index in this pricing supplement. We have provided this historical information to help you evaluate the behavior of the Index in various economic environments; however, past performance of the Index is not necessarily indicative of how the Index will perform in the future.
What will I receive on the maturity date of the Notes?
On the maturity date, you will receive a cash payment per unit equal to the Redemption Amount.
The Redemption Amount to which you will be entitled will depend on the percentage change in the level of the Index over the term of the Notes and will equal:
(i) If the Ending Value is greater than the Starting Value:
$10 | + | ( | $30 | × | ( | Ending Value Starting Value |
) | ) | ; | |||||||||||
Starting Value |
provided, however, the Redemption Amount will not exceed $11.80 per unit (the Capped Value); or
(ii) If the Ending Value is equal to or less than the Starting Value:
$10 × | ( | Ending Value |
) | |||||
Starting Value |
The Starting Value equals 654.57, the closing level of the Index on the Pricing Date.
The Ending Value means the average, arithmetic mean, of the levels of the Index at the close of the market on five business days shortly before the maturity date of the Notes. We may calculate the Ending Value by reference to fewer than five or even a single days closing level if, during the period shortly before the maturity date of the Notes, there is a disruption in the trading of a sufficient number of stocks included in the Index or certain futures or options contracts relating to the Index.
The opportunity to participate in the possible increases in the level of the Index through an investment in the Notes is limited because the amount that you receive on the maturity date will never exceed the Capped Value, which represents an appreciation of 18% over the $10 original public offering price per unit of the Notes. However, in the event that the level of the Index declines over the term of the Notes, the amount you receive on the maturity date will be proportionately less than the $10 original public offering price of the Notes. As a result, you may receive less, and possibly significantly less, than the $10 original public offering price per unit.
For more specific information about the Redemption Amount, please see the section entitled Description of the Notes in this pricing supplement.
PS-4
Examples
Set forth below are three examples of Redemption Amount calculations:
Example 1The hypothetical Ending Value is equal to 50% of the Starting Value:
Starting Value: 654.57
Hypothetical Ending Value: 327.29
Redemption Amount (per unit) | = | $ | 10 | × | ( | 327.29 |
) | = | $ | 5.00 | ||||||||
654.57 |
Example 2The hypothetical Ending Value is equal to 103% of the Starting Value:
Starting Value: 654.57
Hypothetical Ending Value: 674.21
Redemption Amount (per unit) | = | $ | 10 | + | ( | $ | 30 | × | ( | 674.21-654.57 |
) | ) | = | $ | 10.90 | |||||||||||||
654.57 |
Example 3The hypothetical Ending Value is equal to 150% of the Starting Value:
Starting Value: 654.57
Hypothetical Ending Value: 981.86
Redemption Amount (per unit) | = | $ | 10 | + | ( | $ | 30 | × | ( | 981.86-654.57 |
) | ) | = | $ | 11.80 | (Redemption Amount cannot be greater than the Capped Value) | ||||||||||||||
654.57 |
Will I receive interest payments on the Notes?
You will not receive any interest payments on the Notes, but you will receive the Redemption Amount on the maturity date. We have designed the Notes for investors who are willing to forego interest payments on the Notes, such as fixed or floating interest rates paid on traditional interest bearing debt securities, and willing to accept a return that will not exceed the Capped Value in exchange for the ability to participate in changes in the level of the Index over the term of the Notes.
What about taxes?
The United States federal income tax consequences of an investment in the Notes are complex and uncertain. By purchasing a Note, you and ML&Co. agree, in the absence of an administrative or judicial ruling to the contrary, to characterize a Note for all tax purposes as a pre-paid cash-settled forward contract linked to the level of the Index. Under this characterization of the Notes, you should be required to recognize gain or loss to the extent that you receive cash on the maturity date or upon a sale or exchange of a Note prior to the maturity date. You should review the discussion under the section entitled United States Federal Income Taxation in this pricing supplement.
Will the Notes be listed on a stock exchange?
The Notes have been approved for quotation on The Nasdaq National Market under the trading symbol ARRB. The quotation of the Notes on The Nasdaq National Market will not necessarily ensure that a liquid trading market will be available for the Notes. You should review the section entitled Risk FactorsThere may be an uncertain trading market for the Notes in this pricing supplement.
What is the role of MLPF&S?
Our subsidiary MLPF&S is the underwriter for the offering and sale of the Notes. After the initial offering, MLPF&S intends to buy and sell Notes to create a secondary market for holders of the Notes, and may stabilize or maintain the market price of the Notes during their initial distribution. However, MLPF&S will not be obligated to engage in any of these market activities or continue them once it has started.
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MLPF&S will also be our agent for purposes of calculating, among other things, the Ending Value and the Redemption Amount. Under certain circumstances, these duties could result in a conflict of interest between MLPF&S as our subsidiary and its responsibilities as calculation agent.
What is ML&Co.?
Merrill Lynch & Co., Inc. is a holding company with various subsidiaries and affiliated companies that provide investment, financing, insurance and related services on a global basis.
For information about ML&Co., see the section entitled Merrill Lynch & Co., Inc. in the accompanying prospectus. You should also read other documents ML&Co. has filed with the Securities and Exchange Commission, which you can find by referring to the section entitled Where You Can Find More Information in the accompanying prospectus.
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Your investment in the Notes will involve risks. You should carefully consider the following discussion of risks before deciding whether an investment in the Notes is suitable for you.
Your investment may result in a loss
We will not repay you a fixed amount of principal on the Notes on the maturity date. The Redemption Amount will depend on the change in the level of the Index. Because the level of the Index is subject to market fluctuations, the Redemption Amount you receive may be more or less than the $10 original public offering price per unit of the Notes. If the Ending Value is less than the Starting Value, the Redemption Amount will be less than the $10 original public offering price per unit of the Notes. As a result, you may receive less, and possibly significantly less, than the $10 original public offering price per unit. Additionally, although any positive return on the Notes is based on triple the amount of the percentage increase in the Index, in no event will the Redemption Amount be greater than the Capped Value.
Your yield may be lower than the yield on other debt securities of comparable maturity
The yield that you will receive on your Notes, which could be negative, may be less than the return you could earn on other investments. Your yield may be less than the yield you would earn if you bought a traditional interest bearing debt security of ML&Co. with the same stated maturity date. Your investment may not reflect the full opportunity cost to you when you take into account factors that affect the time value of money. Unlike traditional interest bearing debt securities, the Notes do not guarantee the return of a principal amount on the maturity date.
Your return is limited and will not reflect the return of owning the stocks included in the Index
The opportunity to participate in the possible increases in the level of the Index through an investment in the Notes is limited because the Redemption Amount will never exceed the Capped Value, which represents an appreciation of 18% over the $10 original public offering price per unit of the Notes. However, in the event that the level of the Index declines over the term of the Notes, you will realize the entire decline. As a result, you may receive less, and possibly significantly less, than the $10 original public offering price per unit.
In addition, your return will not reflect the return you would realize if you actually owned the stocks included in the Index and received the dividends paid on those stocks, if any, because the level of the Index is calculated by reference to the prices of the stocks included in the Index without taking into consideration the value of dividends paid on those stocks.
There may be an uncertain trading market for the Notes
The Notes have been approved for quotation on The Nasdaq National Market under the trading symbol ARRB. The quotation of the Notes on The Nasdaq National Market does not necessarily ensure that a trading market will develop for the Notes. If a trading market does develop, there can be no assurance that there will be liquidity in the trading market. The development of a trading market for the Notes will depend on our financial performance and other factors such as the increase, if any, in the level of the Index.
If the trading market for the Notes is limited, there may be a limited number of buyers for your Notes if you do not wish to hold your investment until the maturity date. This may affect the price you receive.
PS-7
Many factors affect the trading value of the Notes; these factors interrelate in complex ways and the effect of any one factor may offset or magnify the effect of another factor
The trading value of the Notes will be affected by factors that interrelate in complex ways. The effect of one factor may offset the increase in the trading value of the Notes caused by another factor and that the effect of one factor may exacerbate the decrease in the trading value of the Notes caused by another factor. For example, an increase in United States interest rates may offset some or all of any increase in the trading value of the Notes attributable to another factor, such as an increase in the level of the Index. The following paragraphs describe the expected impact on the trading value of the Notes given a change in a specific factor, assuming all other conditions remain constant.
The level of the Index is expected to affect the trading value of the Notes. We expect that the trading value of the Notes will depend substantially on the amount, if any, by which the level of the Index exceeds or does not exceed the Starting Value. If you choose to sell your Notes when the level of the Index exceeds the Starting Value, you may receive substantially less than the amount that would be payable on the maturity date based on this level because of the expectation that the Index will continue to fluctuate until the Ending Value is determined. In addition, because the payment on the maturity date on the Notes will not exceed the Capped Value, we do not expect that the Notes will trade in the secondary market above the Capped Value.
Changes in the levels of interest rates are expected to affect the trading value of the Notes. We expect that changes in interest rates will affect the trading value of the Notes. Generally, if United States interest rates increase, we expect the trading value of the Notes to decrease and, conversely, if United States interest rates decrease, we expect the trading value of the Notes to increase. Rising United States interest rates may lower the level of the Index and, thus, may lower the value of the Notes. Falling United States interest rates may increase the level of the Index and, thus, may increase the value of the Notes.
Changes in the volatility of the Index are expected to affect the trading value of the Notes. Volatility is the term used to describe the size and frequency of price and/or market fluctuations. If the volatility of the Index increases or decreases, the trading value of the Notes may be adversely affected.
Changes in dividend yields on the stocks included in the Index are expected to affect the trading value of the Notes. In general, if dividend yields on the stocks included in the Index increase, we expect that the trading value of the Notes will decrease and, conversely, if dividend yields on these stocks decrease, we expect that the trading value of the Notes will increase.
As the time remaining to the stated maturity date of the Notes decreases, the time premium associated with the Notes is expected to decrease. We anticipate that before their stated maturity date, the Notes may trade at a value above that which would be expected based on the level of interest rates and the level of the Index. This difference will reflect a time premium due to expectations concerning the level of the Index during the period before the stated maturity date of the Notes. However, as the time remaining to the stated maturity date of the Notes decreases, we expect that this time premium will decrease, lowering the trading value of the Notes.
Changes in our credit ratings may affect the trading value of the Notes. Our credit ratings are an assessment of our ability to pay our obligations. Consequently, real or anticipated changes in our credit ratings may affect the trading value of the Notes. However, because the return on your Notes is dependent upon factors in addition to our ability to pay our obligations under the Notes, such as the percentage increase in the level of the Index over the term of the Notes, an improvement in our credit ratings will not reduce the other investment risks related to the Notes.
In general, assuming all relevant factors are held constant, we expect that the effect on the trading value of the Notes of a given change in some of the factors listed above will be less if it occurs later in the term of the Notes than if it occurs earlier in the term of the Notes. We expect, however, that the effect on the trading value of
PS-8
the Notes of a given change in the level of the Index will be greater if it occurs later in the term of the Notes than if it occurs earlier in the term of the Notes.
Purchases and sales by us and our affiliates may affect your return
We and our affiliates may from time to time buy or sell the stocks included in the Index or futures or options contracts on those stocks for our own accounts for business reasons and expect to enter into these transactions in connection with hedging our obligations under the Notes. These transactions could affect the price of those stocks and, in turn, the level of the Index in a manner that would be adverse to your investment in the Notes. Any purchases by us, our affiliates or others on our behalf on or before the Pricing Date may temporarily increase the prices of those stocks. Temporary increases in the market prices of those stocks may also occur as a result of the purchasing activities of other market participants. Consequently, the prices of those stocks may decline subsequent to the Pricing Date reducing the level of the Index and therefore the trading value of the Notes.
Potential conflicts of interest could arise
Our subsidiary MLPF&S is our agent for the purposes of calculating the Ending Value and Redemption Amount. Under certain circumstances, MLPF&S as our subsidiary and its responsibilities as calculation agent for the Notes could give rise to conflicts of interest. These conflicts could occur, for instance, in connection with its determination as to whether the level of the Index can be calculated on a particular trading day, or in connection with judgments that it would be required to make in the event of a discontinuance or unavailability of the Index. See the sections entitled Description of the NotesAdjustments to the Index; Market Disruption Events and Discontinuance of the Index in this pricing supplement. MLPF&S is required to carry out its duties as calculation agent in good faith and using its reasonable judgment. However, because we control MLPF&S, potential conflicts of interest could arise.
We have entered into an arrangement with one of our subsidiaries to hedge the market risks associated with our obligation to pay the Redemption Amount. This subsidiary expects to make a profit in connection with this arrangement. We did not seek competitive bids for this arrangement from unaffiliated parties.
ML&Co. or its affiliates may presently or from time to time engage in business with one or more of the companies included in the Index including extending loans to, or making equity investments in, the companies included in the Index or providing advisory services to the companies included in the Index, including merger and acquisition advisory services. In the course of business, ML&Co. or its affiliates may acquire non-public information relating to the companies included in the Index and, in addition, one or more affiliates of ML&Co. may publish research reports about the companies included in the Index. ML&Co. does not make any representation to any purchasers of the Notes regarding any matters whatsoever relating to the companies included in the Index. Any prospective purchaser of the Notes should undertake an independent investigation of the companies included in the Index as in its judgment is appropriate to make an informed decision regarding an investment in the Notes. The composition of the companies included in the Index does not reflect any investment recommendations of ML&Co. or its affiliates.
Tax consequences are uncertain
You should consider the tax consequences of investing in the Notes, aspects of which are uncertain. See the section entitled United States Federal Income Taxation in this pricing supplement.
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ML&Co. will issue the Notes as part of a series of senior debt securities entitled Medium-Term Notes, Series C under the 1983 Indenture, which is more fully described in the accompanying prospectus. The Notes will mature on June 30, 2006. Information included in this pricing supplement supercedes information in the accompanying prospectus supplement and prospectus to the extent that it is different from that information. The CUSIP number for the Notes is 59021S828.
While on the maturity date a holder of a Note will receive an amount equal to the Redemption Amount, there will be no other payment of interest, periodic or otherwise. See the section entitled Payment on the Maturity Date in this pricing supplement.
The Notes will not be subject to redemption by ML&Co. or at the option of any holder of the Notes before the maturity date. If an Event of Default occurs with respect to the Notes, holders of the Notes may accelerate the maturity of the Notes, as described under Events of Default and Acceleration in this pricing supplement and Description of Debt SecuritiesEvents of Default in the accompanying prospectus.
ML&Co. will issue the Notes in denominations of whole units each with a $10 original public offering price per unit. You may transfer the Notes only in whole units. You will not have the right to receive physical certificates evidencing your ownership except under limited circumstances. Instead, we will issue the Notes in the form of a global certificate, which will be held by The Depository Trust Company, also known as DTC, or its nominee. Direct and indirect participants in DTC will record your ownership of the Notes. You should refer to the section entitled Description of Debt SecuritiesDepositary in the accompanying prospectus.
The Notes will not have the benefit of any sinking fund.
Payment on the Maturity Date
On the maturity date, a holder of a Note will be entitled to receive the Redemption Amount of that Note, as provided below.
Determination of the Redemption Amount
The Redemption Amount per unit will be determined by the calculation agent and will equal:
(i) If the Ending Value is greater than the Starting Value:
$10 | + | ( | $30 | × | ( | Ending Value Starting Value |
) | ) | ; | |||||||||
Starting Value |
provided, however, the Redemption Amount will not exceed $11.80 per unit (the Capped Value); or
(ii) If the Ending Value is equal to or less than the Starting Value:
$10 | × | ( | Ending Value |
) | ||||
Starting Value |
The Starting Value equals 654.57, the closing level of the Index on the date the Notes were priced for initial sale to the public (the Pricing Date).
PS-10
The Ending Value will be determined by the calculation agent and will equal the average, arithmetic mean, of the closing levels of the Index determined on each of the first five Calculation Days during the Calculation Period. If there are fewer than five Calculation Days during the Calculation Period, then the Ending Value will equal the average, arithmetic mean, of the closing levels of the Index on those Calculation Days. If there is only one Calculation Day during the Calculation Period, then the Ending Value will equal the closing level of the Index on that Calculation Day. If no Calculation Days occur during the Calculation Period, then the Ending Value will equal the closing level of the Index determined on the last scheduled Index Business Day in the Calculation Period, regardless of the occurrence of a Market Disruption Event (as described below under Adjustments to the Index; Market Disruption Events) on that scheduled Index Business Day.
The Calculation Period means the period from and including the seventh scheduled Index Business Day before the maturity date to and including the second scheduled Index Business Day before the maturity date.
A Calculation Day means any Index Business Day during the Calculation Period on which a Market Disruption Event has not occurred.
An Index Business Day means any day on which the New York Stock Exchange (the NYSE), the American Stock Exchange (the AMEX) and The Nasdaq Stock Market (the Nasdaq) are open for trading and the Index or any successor index is calculated and published.
All determinations made by the calculation agent will be at the sole discretion of the calculation agent and, absent a determination of a manifest error, will be conclusive for all purposes and binding on ML&Co. and the holders and beneficial owners of the Notes.
PS-11
Hypothetical Returns
The following table illustrates, for the Starting Value and a range of hypothetical Ending Values of the Index:
| the percentage change from the Starting Value to the hypothetical Ending Value; |
| the total amount payable on the maturity date for each Note; |
| the total rate of return to holders of the Notes; |
| the pretax annualized rate of return to holders of the Notes; and |
| the pretax annualized rate of return of an investment in the stocks included in the Index, which includes an assumed aggregate dividend yield of 1.08% per annum, as more fully described below. |
Hypothetical Ending Value |
Percentage change to the hypothetical Ending Value |
Total amount payable on the maturity date per unit |
Total rate of return on the Notes |
Pretax annualized rate of return on the Notes(1) |
Pretax annualized rate of return of stocks included in the Index(1)(2) | |||||
327.29 | 50% | $ 5.00 | 50.00% | 41.36% | 39.98% | |||||
392.74 | 40% | $ 6.00 | 40.00% | 31.39% | 30.11% | |||||
458.20 | 30% | $ 7.00 | 30.00% | 22.48% | 21.27% | |||||
523.66 | 20% | $ 8.00 | 20.00% | 14.37% | 13.22% | |||||
589.11 | 10% | $ 9.00 | 10.00% | 6.92% | 5.81% | |||||
602.20 | 8% | $ 9.20 | 8.00% | 5.50% | 4.39% | |||||
615.30 | 6% | $ 9.40 | 6.00% | 4.09% | 2.99% | |||||
628.39 | 4% | $ 9.60 | 4.00% | 2.71% | 1.62% | |||||
641.48 | 2% | $ 9.80 | 2.00% | 1.35% | 0.26% | |||||
654.57(3) | 0% | $10.00 | 0.00% | 0.00% | 1.08% | |||||
667.66 | 2% | $10.60 | 6.00% | 3.93% | 2.40% | |||||
680.75 | 4% | $11.20 | 12.00% | 7.72% | 3.71% | |||||
693.84 | 6% | $11.80(4) | 18.00% | 11.38% | 5.00% | |||||
706.94 | 8% | $11.80 | 18.00% | 11.38% | 6.27% | |||||
720.03 | 10% | $11.80 | 18.00% | 11.38% | 7.53% | |||||
785.48 | 20% | $11.80 | 18.00% | 11.38% | 13.60% | |||||
850.94 | 30% | $11.80 | 18.00% | 11.38% | 19.35% |
(1) | The annualized rates of return specified in this column are calculated on a semiannual bond equivalent basis and assume an investment term from December 31, 2004 to June 30, 2006, a term equal to that of the Notes. |
(2) | This rate of return assumes: |
(a) | a percentage change in the aggregate price of the stocks underlying the Index that equals the percentage change in the Index from the Starting Value to the relevant hypothetical Ending Value; |
(b) | a constant dividend yield of 1.08% per annum, paid quarterly from the date of initial delivery of the Notes, applied to the level of the Index at the end of each quarter assuming this level increases or decreases linearly from the Starting Value to the applicable hypothetical Ending Value; and |
(c) | no transaction fees or expenses. |
(3) | This is the Starting Value. |
(4) | The total amount payable on the maturity date per unit of the Notes cannot exceed the Capped Value. |
PS-12
The above figures are for purposes of illustration only. The actual amount received by you and the resulting total and pretax annualized rates of return will depend on the actual Ending Value and term of your investment.
Adjustments to the Index; Market Disruption Events
If at any time Frank Russell Company (FRC) makes a material change in the formula for or the method of calculating the Index or in any other way materially modifies the Index so that the Index does not, in the opinion of the calculation agent, fairly represent the level of the Index had those changes or modifications not been made, then, from and after that time, the calculation agent will, at the close of business in New York, New York, on each date that the closing level of the Index is to be calculated, make any adjustments as, in the good faith judgment of the calculation agent, may be necessary in order to arrive at a calculation of a level of a stock index comparable to the Index as if those changes or modifications had not been made, and calculate the closing level with reference to the Index, as so adjusted. Accordingly, if the method of calculating the Index is modified so that the level of the Index is a fraction or a multiple of what it would have been if it had not been modified, e.g., due to a split, then the calculation agent will adjust the Index in order to arrive at a level of the Index as if it had not been modified, e.g., as if a split had not occurred.
Market Disruption Event means either of the following events as determined by the calculation agent:
(a) | the suspension of or material limitation on trading for more than two hours of trading, or during the one-half hour period preceding the close of trading, on the applicable exchange (without taking into account any extended or after-hours trading session), in 20% or more of the stocks which then comprise the Index or any successor index; or |
(b) | the suspension of or material limitation on trading for more than two hours of trading, or during the one-half hour period preceding the close of trading, on the applicable exchange (without taking into account any extended or after-hours trading session), whether by reason of movements in price otherwise exceeding levels permitted by the relevant exchange or otherwise, in options contracts or futures contracts related to the Index, or any successor index, which are traded on any major United States exchange. |
For the purpose of determining whether a Market Disruption Event has occurred:
(1) | a limitation on the hours in a trading day and/or number of days of trading will not constitute a Market Disruption Event if it results from an announced change in the regular business hours of the relevant exchange; |
(2) | a suspension in trading in a futures or options contract on the Index, or any successor index, by a major securities market by reason of (a) a price change violating limits set by that securities market, (b) an imbalance of orders relating to those contracts or (c) a disparity in bid and ask quotes relating to those contracts will constitute a suspension or material limitation of trading in futures or options contracts related to that index; |
(3) | a suspension of or material limitation on trading on the relevant exchange will not include any time when that exchange is closed for trading under ordinary circumstances; and |
(4) | for the purpose of clause (a) above, any limitations on trading during significant market fluctuations under NYSE Rule 80A, or any applicable rule or regulation enacted or promulgated by the NYSE or any other self regulatory organization or the Securities and Exchange Commission of similar scope as determined by the calculation agent, will be considered material. |
PS-13
As a result of terrorist attacks, the financial markets were closed from September 11, 2001 through September 14, 2001, and levels of the Index are not available for those dates. Those market closures would have constituted Market Disruption Events. The occurrence of a Market Disruption Event could effect the calculation of the payment you may receive on the maturity date. See the section entitled Payment on the Maturity Date in this pricing supplement.
Discontinuance of the Index
If FRC discontinues publication of the Index and FRC or another entity publishes a successor or substitute index that the calculation agent determines, in its sole discretion, to be comparable to the Index (a successor index), then, upon the calculation agents notification of that determination to the trustee and ML&Co., the calculation agent will substitute the successor index as calculated by FRC or any other entity for the Index and calculate the Ending Value as described above under Payment on the Maturity Date. Upon any selection by the calculation agent of a successor index, ML&Co. will cause notice to be given to holders of the Notes.
In the event that FRC discontinues publication of the Index and:
| the calculation agent does not select a successor index; or |
| the successor index is not published on any of the Calculation Days, |
the calculation agent will compute a substitute level for the Index in accordance with the procedures last used to calculate the Index before any discontinuance. If a successor index is selected or the calculation agent calculates a level as a substitute for the Index as described below, the successor index or level will be used as a substitute for the Index for all purposes, including for purposes of determining whether a Market Disruption Event exists.
If FRC discontinues publication of the Index before the Calculation Period and the calculation agent determines that no successor index is available at that time, then on each Business Day until the earlier to occur of:
| the determination of the Ending Value; or |
| a determination by the calculation agent that a successor index is available, |
the calculation agent will determine the value that would be used in computing the Redemption Amount as described in the preceding paragraph as if that day were a Calculation Day. The calculation agent will cause notice of each value to be published not less often than once each month in The Wall Street Journal or another newspaper of general circulation and arrange for information with respect to these values to be made available by telephone.
A Business Day is any day on which the NYSE, the Nasdaq and the AMEX are open for trading.
Notwithstanding these alternative arrangements, discontinuance of the publication of the Index may adversely affect trading in the Notes.
Events of Default and Acceleration
In case an Event of Default with respect to any Notes has occurred and is continuing, the amount payable to a holder of a Note upon any acceleration permitted by the Notes, with respect to each $10 original public offering price per unit, will be equal to the Redemption Amount, calculated as though the date of acceleration were the stated maturity date of the Notes. If a bankruptcy proceeding is commenced in respect of ML&Co., the claim of the holder of a Note may be limited, under Section 502(b)(2) of Title 11 of the
PS-14
United States Code, to the $10 original public offering price per unit plus an additional amount of contingent interest calculated as though the date of the commencement of the proceeding were the stated maturity date of the Notes.
In case of default in payment of the Notes, whether on the stated maturity date or upon acceleration, from and after that date the Notes will bear interest, payable upon demand of their holders, at the rate of 2.0% per annum, to the extent that payment of any interest is legally enforceable on the unpaid amount due and payable on that date in accordance with the terms of the Notes to the date payment of that amount has been made or duly provided for.
PS-15
FRC began dissemination of the Index on January 1, 1987 and calculates and publishes the Index under index symbol RTY. The Index measures the composite price performance of stocks of 2,000 companies domiciled in the United States and its territories. All 2,000 stocks are traded on the NYSE, the AMEX or in the over-the-counter market and form a part of the Russell 3000® Index. The Russell 3000 Index is composed of the 3,000 largest United States companies as determined by market capitalization and represents approximately 98% United States equity market.
The Index consists of the smallest 2,000 companies included in the Russell 3000 Index and represented approximately 8.7% of the total market capitalization of the Russell 3000 Index as of November 30, 2004. The Russell 2000 Index is designed to track the performance of the small capitalization segment of the United States equity market. The Index is determined, comprised and calculated by FRC without regard to the Notes.
Selection of stocks underlying the Index
Only common stocks belonging to companies domiciled in the United States and its territories are eligible for inclusion in the Russell 3000 Index and the Index. Stocks traded on United States exchanges but domiciled in other countries are excluded. Preferred stock, convertible preferred stock, participating preferred stock, paired shares, warrants and rights are also excluded. Trust receipts, Royalty Trusts, limited liability companies, OTC Bulletin Board companies, pink sheets, closed-end mutual funds, and limited partnerships that are traded on United States exchanges, are also ineligible for inclusion. Real Estate Investment Trusts and Beneficial Trusts are eligible for inclusion, however. In general, only one class of securities of a company is eligible for inclusion in the Russell 3000 Index, although exceptions to this general rule have been made where FRC has determined that each class of securities acts independent of the other.
The primary criteria used to determine the initial list of securities eligible for the Russell 3000 Index is total market capitalization, which is defined as the price of the shares times the total number of shares outstanding. Based on closing levels on May 31 of each year, FRC reconstitutes the composition of the Russell 3000 Index using the then existing market capitalizations of eligible companies. As of June 30 of each year, the Index is adjusted to reflect the reconstitution of the Russell 3000 Index for that year. In addition, since September 30, 2004, FRC has added initial public offerings to the Russell 3000 Index on a quarterly basis based on market capitalization guidelines established during the most recent reconstitution.
As a capitalization-weighted index, the Index reflects changes in the capitalization, or market value, of the component stocks relative to the capitalization on a base date. The current Index level is calculated by adding the market values of the Indexs component stocks, which are derived by multiplying the price of each stock by the number of shares outstanding, to arrive at the total market capitalization of the 2,000 stocks. The total market capitalization is then divided by a divisor, which represents the adjusted capitalization of the Index on the base date of December 31, 1986. To calculate the Index, last sale prices will be used for exchange-traded and Nasdaq stocks. If a component stock is not open for trading, the most recently traded price for that security will be used in calculating the Index. In order to provide continuity for the Indexs level, the divisor is adjusted periodically to reflect events including changes in the number of common shares outstanding for component stocks, company additions or deletions, corporate restructurings and other capitalization changes.
The level of the Index is reported on the AMEX under the symbol RTY, on Bloomberg under the symbol RTY and on Reuters under the symbol RUT.
PS-16
Historical Data on the Index
The following graph sets forth the closing levels of the Index on the last business day of each year from 1986 through 2003, as published by FRC. The historical performance of the Index should not be taken as an indication of future performance, and no assurance can be given that the level of the Index will not decline and thereby reduce the Redemption Amount which may be payable to you on the maturity date.
The following table sets forth the closing levels of the Index at the end of each month in the period from January 1999 through November 2004. This historical data on the Index is not necessarily indicative of the future performance of the Index or what the value of the Notes may be. Any historical upward or downward trend in the level of the Index during any period set forth below is not an indication that the Index is more or less likely to increase or decrease at any time during the term of the Notes.
1999 |
2000 |
2001 |
2002 |
2003 |
2004 | |||||||
January |
427.22 | 496.23 | 508.34 | 483.10 | 372.17 | 580.76 | ||||||
February |
392.26 | 577.71 | 474.37 | 469.36 | 360.52 | 585.56 | ||||||
March |
397.63 | 539.09 | 450.53 | 506.46 | 364.54 | 590.31 | ||||||
April |
432.81 | 506.25 | 485.32 | 510.67 | 398.68 | 559.80 | ||||||
May |
438.68 | 476.18 | 496.50 | 487.47 | 441.00 | 568.28 | ||||||
June |
457.68 | 517.23 | 512.80 | 462.65 | 448.37 | 591.52 | ||||||
July |
444.77 | 500.64 | 484.78 | 392.42 | 476.02 | 551.29 | ||||||
August |
427.83 | 537.89 | 468.56 | 390.96 | 497.42 | 547.93 | ||||||
September |
427.30 | 521.37 | 404.87 | 362.27 | 487.68 | 572.94 | ||||||
October |
428.64 | 497.68 | 428.17 | 373.50 | 528.22 | 583.79 | ||||||
November |
454.08 | 445.94 | 460.78 | 406.36 | 546.51 | 633.77 | ||||||
December |
504.75 | 483.53 | 488.50 | 383.09 | 556.91 |
PS-17
The following graph sets forth the historical performance of the Index presented in the preceding table. Past movements of the Index are not necessarily indicative of the future performance of the Index. On the Pricing Date, the closing level of the Index was 654.57.
License Agreement
FRC and MLPF&S have entered into a non-exclusive license agreement providing for the license to MLPF&S, in exchange for a fee, of the right to use the Index in connection with certain securities, including the Notes and ML&Co. is an authorized licensee.
The license agreement between FRC and MLPF&S provides that the following language must be set forth in this pricing supplement:
The Notes are not sponsored, endorsed, sold or promoted by FRC. FRC makes no representation or warranty, express or implied, to the owners of the Notes or any member of the public regarding the advisability of investing in securities generally or in the Notes particularly or the ability of the Index to track general stock market performance or a segment of the same. FRCs publication of the Index in no way suggests or implies an opinion by FRC as to the advisability of investment in any or all of the securities upon which the Index is based. FRCs only relationship to MLPF&S and ML&Co. is the licensing of certain trademarks and trade names of FRC and of the Index which is determined, composed and calculated by FRC without regard to MLPF&S or ML&Co. or the Notes. FRC is not responsible for and has not reviewed the Notes nor any associated literature or publications and FRC makes no representation or warranty express or implied as to their accuracy or completeness, or otherwise. FRC reserves the right, at any time and without notice, to alter, amend, terminate or in any way change the Index. FRC has no obligation or liability in connection with the administration, marketing or trading of the Notes.
FRC DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF THE INDEX OR ANY DATA INCLUDED THEREIN AND FRC SHALL HAVE NO LIABILITY FOR ANY ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. FRC MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY MLPF&S, ML&CO., INVESTORS, OWNERS OF THE NOTES, OR ANY OTHER PERSON OR ENTITY
PS-18
FROM THE USE OF THE INDEX OR ANY DATA INCLUDED THEREIN. FRC MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE INDEX OR ANY DATA INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL FRC HAVE ANY LIABILITY FOR ANY SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
All disclosures contained in this pricing supplement regarding the Index, including its make-up, method of calculation and changes in its components, are derived from publicly available information prepared by FRC. ML&Co. and MLPF&S do not assume any responsibility for the accuracy or completeness of that information.
PS-19
UNITED STATES FEDERAL INCOME TAXATION
Set forth in full below is the opinion of Sidley Austin Brown & Wood LLP, counsel to ML&Co. (Tax Counsel). As the law applicable to the U.S. federal income taxation of instruments such as the Notes is technical and complex, the discussion below necessarily represents only a general summary. The following discussion is based upon laws, regulations, rulings and decisions now in effect, all of which are subject to change (including changes in effective dates) or possible differing interpretations. The discussion below supplements the discussion set forth under the section entitled United States Federal Income Taxation that is contained in the accompanying prospectus supplement and supercedes that discussion to the extent that it contains information that is inconsistent with that contained in the accompanying prospectus supplement. The discussion below deals only with Notes held as capital assets and does not purport to deal with persons in special tax situations, such as financial institutions, insurance companies, regulated investment companies, real estate investment trusts, tax-exempt entities, dealers in securities or currencies, persons subject to the alternative minimum tax, persons holding Notes as a hedge against currency risks, as a position in a straddle or as part of a hedging, conversion or integrated transaction for tax purposes, or persons whose functional currency is not the United States dollar. It also does not deal with holders other than original purchasers (except where otherwise specifically noted). If a partnership holds the Notes, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. Thus, persons who are partners in a partnership holding the Notes should consult their own tax advisors. Moreover, all persons considering the purchase of the Notes should consult their own tax advisors concerning the application of United States federal income tax laws to their particular situations as well as any consequences of the purchase, ownership and disposition of the Notes arising under the laws of any other taxing jurisdiction.
As used herein, the term U.S. Holder means a beneficial owner of a Note that is for United States federal income tax purposes (i) a citizen or resident of the United States, (ii) a corporation or a partnership (including an entity treated as a corporation or a partnership for United States federal income tax purposes) that is created or organized in or under the laws of the United States, any state thereof or the District of Columbia (unless, in the case of a partnership, Treasury regulations are adopted that provide otherwise), (iii) an estate whose income is subject to United States federal income tax regardless of its source, (iv) 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 United States persons have the authority to control all substantial decisions of the trust or (v) any other person whose income or gain in respect of a Note is effectively connected with the conduct of a United States trade or business. Certain trusts not described in clause (iv) above in existence on August 20, 1996, that elect to be treated as United States persons will also be U.S. Holders for purposes of the following discussion. As used herein, the term non-U.S. Holder means a beneficial owner of a Note that is not a U.S. Holder.
General
There are no statutory provisions, regulations, published rulings or judicial decisions addressing or involving the characterization and treatment, for United States federal income tax purposes, of the Notes or securities with terms substantially the same as the Notes. Accordingly, the proper United States federal income tax characterization and treatment of the Notes is uncertain. Pursuant to the terms of the Notes, ML&Co. and every holder of a Note agree (in the absence of an administrative determination or judicial ruling to the contrary) to characterize a Note for all tax purposes as a pre-paid cash-settled forward contract linked to the level of the Index. In the opinion of Tax Counsel, this characterization and tax treatment of the Notes, although not the only reasonable characterization and tax treatment, is based on reasonable interpretations of law currently in effect and, even if successfully challenged by the Internal Revenue Service (the IRS), will not result in the imposition of penalties. The treatment of the Notes described above is not, however, binding on the IRS or the courts. No statutory, judicial or administrative authority directly addresses the characterization of the Notes or instruments similar to the Notes for United States federal income tax purposes, and no ruling is being requested from the IRS with respect to the Notes.
PS-20
Due to the absence of authorities that directly address instruments that are similar to the Notes, significant aspects of the United States federal income tax consequences of an investment in the Notes are not certain, and no assurance can be given that the IRS or the courts will agree with the characterization described above. Accordingly, prospective purchasers are urged to consult their own tax advisors regarding the United States federal income tax consequences of an investment in the Notes (including alternative characterizations of the Notes) and with respect to any tax consequences arising under the laws of any state, local or foreign taxing jurisdiction. Unless otherwise stated, the following discussion is based on the assumption that the treatment described above is accepted for United States federal income tax purposes.
Tax Treatment of the Notes
Assuming the characterization of the Notes as set forth above, Tax Counsel believes that the following United States federal income tax consequences should result.
Tax Basis. A U.S. Holders tax basis in a Note will equal the amount paid by the U.S. Holder to acquire the Note.
Payment on the Maturity Date. Upon the receipt of cash on the maturity date of the Notes, a U.S. Holder will recognize gain or loss. The amount of that gain or loss will be the extent to which the amount of the cash received differs from the U.S. Holders tax basis in the Note. It is uncertain whether any gain or loss would be treated as ordinary income or loss or capital gain or loss. Absent a future clarification in current law (by an administrative determination or judicial ruling), where required, ML&Co. intends to report any gain or loss to the IRS in a manner consistent with the treatment of that gain or loss as capital gain or loss. If any gain or loss is treated as capital gain or loss, then that gain or loss will generally be long-term capital gain or loss, as the case may be, if the U.S. Holder held the Note for more than one year as of the maturity date. The deductibility of capital losses is subject to certain limitations.
Sale or Exchange of the Notes. Upon a sale or exchange of a Note prior to the maturity date of the Notes, a U.S. Holder will generally recognize capital gain or loss equal to the difference between the amount realized on the sale or exchange and the U.S. Holders tax basis in the Note so sold or exchanged. Capital gain or loss will generally be long-term capital gain or loss if the U.S. Holder held the Note for more than one year at the time of disposition. As discussed above, the deductibility of capital losses is subject to certain limitations.
Possible Alternative Tax Treatments of an Investment in the Notes
Due to the absence of authorities that directly address the proper characterization of the Notes, no assurance can be given that the IRS will accept, or that a court will uphold, the characterization and tax treatment described above. In particular, the IRS could seek to analyze the United States federal income tax consequences of owning the Notes under Treasury regulations governing contingent payment debt instruments (the CPDI Regulations).
If the IRS were successful in asserting that the CPDI Regulations applied to the Notes, the timing and character of income thereon would be significantly affected. Among other things, a U.S. Holder would be required to accrue original issue discount on the Notes every year at a comparable yield for us, determined at the time of issuance of the Notes. Furthermore, any gain realized on the maturity date or upon a sale or other disposition of the Notes would generally be treated as ordinary income, and any loss realized on the maturity date or upon a sale or other disposition of the Notes would be treated as ordinary loss to the extent of the U.S. Holders prior accruals of original issue discount and capital loss thereafter.
Even if the CPDI Regulations do not apply to the Notes, other alternative United States federal income tax characterizations or treatments of the Notes may also be possible, and if applied could also affect the timing
PS-21
and the character of the income or loss with respect to the Notes. Accordingly, prospective purchasers are urged to consult their tax advisors regarding the United States federal income tax consequences of an investment in the Notes.
Constructive Ownership Law
Section 1260 of the Internal Revenue Code of 1986, as amended (the Code), treats a taxpayer owning certain types of derivative positions in property as having constructive ownership of that property, with the result that all or a portion of any long-term capital gain recognized by that taxpayer with respect to the derivative position will be recharacterized as ordinary income. In its current form, Section 1260 of the Code does not apply to the Notes. If Section 1260 of the Code were to apply to the Notes in the future, however, the effect on a U.S. Holder of a Note would be to treat all or a portion of any long-term capital gain recognized by the U.S. Holder on the sale, exchange or maturity of a Note as ordinary income. In addition, Section 1260 of the Code would impose an interest charge on any gain that was recharacterized. U.S. Holders should consult their tax advisors regarding the potential application of Section 1260 of the Code, if any, to the purchase, ownership and disposition of a Note.
Non-U.S. Holders
Based on the treatment of each Note as a pre-paid cash-settled forward contract linked to the level of the Index, in the case of a non-U.S. Holder, a payment made with respect to a Note on the maturity date will not be subject to United States withholding tax, provided that the non-U.S. Holder complies with applicable certification requirements and that the payment is not effectively connected with a United States trade or business of the non-U.S. Holder. Any capital gain realized upon the sale or other disposition of a Note by a non-U.S. Holder will generally not be subject to United States federal income tax if (i) that gain is not effectively connected with a United States trade or business of the non-U.S. Holder and (ii) in the case of an individual non-U.S. Holder, the individual is not present in the United States for 183 days or more in the taxable year of the sale or other disposition, or the gain is not attributable to a fixed place of business maintained by the individual in the United States, and the individual does not have a tax home (as defined for United States federal income tax purposes) in the United States.
As discussed above, alternative characterizations of the Notes for United States federal income tax purposes are possible. Should an alternative characterization of the Notes, by reason of a change or clarification of the law, by regulation or otherwise, cause payments with respect to the Notes to become subject to withholding tax, ML&Co. will withhold tax at the applicable statutory rate. Prospective non-U.S. Holders of the Notes should consult their own tax advisors in this regard.
Backup Withholding
A beneficial owner of a Note may be subject to backup withholding at the applicable statutory rate of United States federal income tax on certain amounts paid to the beneficial owner unless the beneficial owner provides proof of an applicable exemption or a correct taxpayer identification number, and otherwise complies with applicable requirements of the backup withholding rules.
Any amounts withheld under the backup withholding rules from a payment to a beneficial owner would be allowed as a refund or a credit against the beneficial owners United States federal income tax provided the required information is furnished to the IRS.
PS-22
Each fiduciary of a pension, profit-sharing or other employee benefit plan (a plan) subject to the Employee Retirement Income Security Act of 1974, as amended (ERISA), should consider the fiduciary standards of ERISA in the context of the plans particular circumstances before authorizing an investment in the Notes. Accordingly, among other factors, the fiduciary should consider whether the investment would satisfy the prudence and diversification requirements of ERISA and would be consistent with the documents and instruments governing the plan, and whether the investment would involve a prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.
Section 406 of ERISA and Section 4975 of the Code prohibit plans, as well as individual retirement accounts and Keogh plans subject to Section 4975 of the Code (also plans) from engaging in certain transactions involving plan assets with persons who are parties in interest under ERISA or disqualified persons under the Code (parties in interest) with respect to the plan or account. A violation of these prohibited transaction rules may result in civil penalties or other liabilities under ERISA and/or an excise tax under Section 4975 of the Code for those persons, unless exemptive relief is available under an applicable statutory, regulatory or administrative exemption. Certain employee benefit plans and arrangements including those that are governmental plans (as defined in section 3(32) of ERISA), certain church plans (as defined in Section 3(33) of ERISA) and foreign plans (as described in Section 4(b)(4) of ERISA) (non-ERISA arrangements) are not subject to the requirements of ERISA or Section 4975 of the Code but may be subject to similar provisions under applicable federal, state, local, foreign or other regulations, rules or laws (similar laws).
The acquisition of the Notes by a plan with respect to which we, MLPF&S or certain of our affiliates is or becomes a party in interest may constitute or result in prohibited transaction under ERISA or Section 4975 of the Code, unless those Notes are acquired pursuant to and in accordance with an applicable exemption. The U.S. Department of Labor has issued five prohibited transaction class exemptions, or PTCEs, that may provide exemptive relief if required for direct or indirect prohibited transactions that may arise from the purchase or holding of the Notes. These exemptions are:
(1) | PTCE 84-14, an exemption for certain transactions determined or effected by independent qualified professional asset managers; |
(2) | PTCE 90-1, an exemption for certain transactions involving insurance company pooled separate accounts; |
(3) | PTCE 91-38, an exemption for certain transactions involving bank collective investment funds; |
(4) | PTCE 95-60, an exemption for transactions involving certain insurance company general accounts; and |
(5) | PTCE 96-23, an exemption for plan asset transactions managed by in-house asset managers. |
The Notes may not be purchased or held by (1) any plan, (2) any entity whose underlying assets include plan assets by reason of any plans investment in the entity (a plan asset entity) or (3) any person investing plan assets of any plan, unless in each case the purchaser or holder is eligible for the exemptive relief available under one or more of the PTCEs listed above or another applicable similar exemption. Any purchaser or holder of the Notes or any interest in the Notes will be deemed to have represented by its purchase and holding of the Notes that it either (1) is not a plan or a plan asset entity and is not purchasing those Notes on behalf of or with plan assets of any plan or plan asset entity or (2) with respect to the purchase or holding, is eligible for the exemptive relief available under any of the PTCEs listed above or another applicable exemption. In addition, any purchaser or holder of the Notes or any interest in the Notes which is a non-ERISA arrangement will be deemed to have represented by its purchase and holding of the Notes that its purchase and holding will not violate the provisions of any similar law.
PS-23
Due to the complexity of these rules and the penalties that may be imposed upon persons involved in non-exempt prohibited transactions, it is important that fiduciaries or other persons considering purchasing the Notes on behalf of or with plan assets of any plan, plan asset entity or non-ERISA arrangement consult with their counsel regarding the availability of exemptive relief under any of the PTCEs listed above or any other applicable exemption, or the potential consequences of any purchase or holding under similar laws, as applicable.
The net proceeds from the sale of the Notes will be used as described under Use of Proceeds in the accompanying prospectus and to hedge market risks of ML&Co. associated with its obligation to pay the Redemption Amount.
SUPPLEMENTAL PLAN OF DISTRIBUTION
MLPF&S has advised ML&Co. that it proposes initially to offer all or part of the Notes directly to the public on a fixed price basis at the offering price set forth on the cover of this pricing supplement. After the initial public offering, the public offering price may be changed. The obligations of MLPF&S are subject to certain conditions and it is committed to take and pay for all of the Notes if any are taken.
The restated consolidated financial statements and the related restated financial statement schedule incorporated in this pricing supplement by reference from the Current Report on Form 8-K of Merrill Lynch & Co., Inc. and subsidiaries dated May 4, 2004 for the year ended December 26, 2003 have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports dated March 1, 2004 (May 4, 2004 as to Note 2) (which express unqualified opinions, and which report on the consolidated financial statements includes an explanatory paragraph for the change in accounting method in 2002 for goodwill amortization to conform to Statement of Financial Accounting Standards No. 142, Goodwill and Other Intangible Assets, and for the change in accounting method in 2004 for stock-based compensation to conform to Statement of Financial Accounting Standards No. 123, Accounting for Stock-Based Compensation, as amended by Statement of Financial Accounting Standards No. 148, Accounting for Stock-Based CompensationTransition and Disclosure, by retroactively restating its 2003, 2002 and 2001 consolidated financial statements), which are incorporated herein by reference, and have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
With respect to the unaudited condensed consolidated financial statements for the periods ended March 26, 2004 and March 28, 2003, June 25, 2004 and June 27, 2003 and September 24, 2004 and September 26, 2003, which are incorporated herein by reference, Deloitte & Touche LLP, an independent registered public accounting firm, have applied limited procedures in accordance with the standards of the Public Company Accounting Oversight Board (United States) for a review of such information. However, as stated in their report included in Merrill Lynch & Co., Inc. and subsidiaries Quarterly Reports on Form 10-Q for the quarters ended March 26, 2004, June 25, 2004 and September 24, 2004 and incorporated by reference herein, they did not audit and they do not express opinions on those unaudited condensed consolidated financial statements. Accordingly, the degree of reliance on their reports on such information should be restricted in light of the limited nature of the review procedures applied. Deloitte & Touche LLP are not subject to the liability provisions of Section 11 of the Securities Act of 1933 for their reports on the unaudited condensed consolidated financial statements because those reports are not reports or a part of the registration statement prepared or certified by an accountant within the meaning of Sections 7 and 11 of the Act.
PS-24
INDEX OF CERTAIN DEFINED TERMS
Page | ||
Business Day |
PS-14 | |
Calculation Day |
PS-11 | |
Calculation Period |
PS-11 | |
Capped Value |
PS-4 | |
Ending Value |
PS-4 | |
Index |
PS-3 | |
Index Business Day |
PS-11 | |
Market Disruption Event |
PS-13 | |
Notes |
PS-1 | |
Pricing Date |
PS-3 | |
Redemption Amount |
PS-4 | |
Starting Value |
PS-4 | |
successor index |
PS-14 |
PS-25
7,250,000 Units
Merrill Lynch & Co., Inc.
Medium-Term Notes, Series C
Accelerated Return Notes Linked to the Russell 2000® Index
due June 30, 2006
(the Notes)
$10 original public offering price per unit
PRICING SUPPLEMENT
|
Merrill Lynch & Co.
December 28, 2004