<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 10, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MERRILL LYNCH & CO., INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-2740599
-------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
WORLD FINANCIAL CENTER
NORTH TOWER
NEW YORK, NEW YORK 10281
------------------------------------------------------------
(Address of principal executive offices, including zip code)
MERRILL LYNCH & CO., INC.
AMENDED AND RESTATED 1994 DEFERRED COMPENSATION AGREEMENT
FOR A SELECT GROUP OF ELIGIBLE EMPLOYEES
(Full title of the plan)
_______________________
ROSEMARY T. BERKERY, ESQ.
ASSOCIATE GENERAL COUNSEL
MERRILL LYNCH & CO., INC.
WORLD FINANCIAL CENTER
NORTH TOWER
NEW YORK, NEW YORK 10281-1334
---------------------------------------
(Name and Address of agent for service)
(212) 449-6990
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
_____________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed maximum Proposed maximum
Title of Securities to be registered/(1)/ Amount to be offering price per aggregate offering Amount of
registered obligation price/(2)/ registration fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation Obligations $90,000,000 100% $90,000,000 $31,034
=======================================================================================================================
</TABLE>
/(1)/ The Deferred Compensation Obligations are unsecured obligations of Merrill
Lynch & Co., Inc. to pay deferred compensation in the future in accordance with
the terms of the Merrill Lynch & Co., Inc. Amended and Restated 1994 Deferred
Compensation Agreement for a Select Group of Eligible Employees.
/(2)/ Estimated solely for the purpose of determining the registration fee.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended. These documents and
the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933, as amended. Capitalized terms used
but not defined herein shall have the same meanings given them in the
Merrill Lynch & Co., Inc. Amended and Restated 1994 Deferred Compensation
Agreement for a Select Group of Eligible Employees (the "Agreement").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Annual Report of Merrill Lynch & Co., Inc. (the "Company") on Form
10-K for the year ended December 31, 1993, Quarterly Reports on Form 10-Q
for the quarters ended April 1, 1994 and July 1, 1994 and Current Reports
on Form 8-K dated January 20, 1994, January 24, 1994, January 27, 1994,
February 3, 1994, March 9, 1994, March 24, 1994, March 30, 1994, March 31,
1994, April 18, 1994, May 6, 1994, July 19, 1994, August 2, 1994, October
18, 1994, October 31, 1994 and November 3, 1994 filed pursuant to Section
13 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
are hereby incorporated by reference into this Registration Statement.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering of the securities registered pursuant to this
Registration Statement shall be deemed to be incorporated by reference into
this Registration Statement and to be part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The Agreement is an amendment and restatement, effective November 10,
1994, of certain pre-existing deferral agreements with employees of the
Company which are collectively referred to as the Merrill Lynch & Co., Inc.
1994 Deferred Compensation Agreement for a Select Group of Eligible
Employees (the "Former Agreement"). The Agreement amends the Former
Agreement to permit Eligible Employees who have elected or may in the
future elect to defer compensation under the Agreement (the "Participants")
to effect changes in their Benchmark Return Options and to provide for a
default beneficiary where no beneficiary has been specified by a
Participant. Other amendments are of a technical or administrative nature
and do not materially modify the rights of the Participants under the
Former Agreement.
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Under the Former Agreement, Participants submitted elections to defer
compensation, which included elections as to the amount to be deferred and
the timing and manner of distribution, in the fourth quarter of 1993.
Except to the extent that Participants may change their Selected Benchmark
Return Options under the Agreement, the original elections made by the
Participants under the Former Agreement will continue to govern the rights
of Participants under the Agreement, and are irrevocable. The Company may,
however, permit Eligible Employees who commence employment in 1994 to defer
a portion of any Sign-On Bonus under the Agreement. Any such new
Participants will be required to make elections under the Agreement prior
to commencing employment.
The obligations of the Company under the Agreement (the "Obligations")
are unsecured general obligations of the Company to pay the deferred
compensation in the future in accordance with the terms of the Agreement,
and rank pari passu with other unsecured and unsubordinated indebtedness of
the Company from time to time outstanding. However, because the Company is
a holding company, the right of the Company, hence the right of creditors
of the Company (including Participants in the Agreement), to participate in
any distribution of the assets of any subsidiary upon its liquidation or
reorganization or otherwise is necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that claims of the
Company itself as a creditor of the subsidiary may be recognized. In
addition, dividends, loans and advances from certain subsidiaries,
including Merrill Lynch, Pierce, Fenner & Smith Incorporated, to the
Company are restricted by net capital requirements under the Exchange Act,
and under rules of certain exchanges and other regulatory bodies.
The amount of compensation deferred by each Participant is determined in
accordance with the Agreement based on the Participant's elections. Each
Obligation will be payable on a date selected by the Participant in
accordance with the terms of the Agreement. Under the Agreement, the
Obligations may be indexed to one or more Benchmark Return Options
individually chosen by each Participant from a list of investment media
(currently 25 mutual funds). Each Participant's Obligation will be
adjusted to reflect the investment experience of the Selected Benchmark
Return Options, including any appreciation or depreciation. The
Obligations are denominated and payable in United States dollars.
A Participant's right or the right of any other person to the
Obligations cannot be assigned, alienated, sold, garnished, transferred,
pledged, or encumbered except by a written designation of a beneficiary
under the Agreement, by written will, or by the laws of descent and
distribution.
The Obligations are not subject to redemption, in whole or in part,
prior to the individual payment dates specified by the Participants, at the
option of the Company or through operation of a mandatory or optional
sinking fund or analogous provision. However, the Company reserves the
right to amend or terminate the Agreement at any time, except that no such
amendment or termination shall adversely affect the right of a Participant
to the Account Balance as of the date of such amendment or termination.
The Obligations are not convertible into another security of the
Company. The Obligations will not have the benefit of a negative pledge or
any other affirmative or negative covenant on the part of the Company. No
trustee has been appointed having the authority to take action with respect
to the Obligations and each Participant will be responsible for acting
independently with respect to, among other things, the giving of notices,
responding to any requests for consents, waivers or amendments pertaining
to the Obligations, enforcing covenants and taking action upon a default.
-3-
<PAGE>
ITEM 5. INTERESTS OF EXPERTS AND COUNSEL.
None.
ITEM 6. 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 he or she is or was a director, officer, employee or agent of the
Company or is or was serving at its request in such capacity in another
corporation or business association, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
Article XIII, Section 2 of the Restated Certificate of Incorporation of
the Company provides in effect that, subject to certain limited exceptions,
the Company shall indemnify its directors and officers to the extent
authorized or permitted by the General Corporation Law of the State of
Delaware. The directors and officers of the Company are insured under
policies of insurance maintained by the Company, subject to the limits of
the policies, against certain losses arising from any claims made against
them by reason of being or having been such directors or officers. Like
indemnification and insurance is also provided to those employees of the
Company who serve as administrators of the Agreement. In addition, the
Company has entered into contracts with all of its directors providing for
indemnification of such persons by the Company to the full extent
authorized or permitted by law, subject to certain limited exceptions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
5 Opinion of Brown & Wood re: legality
15 Letter re: unaudited interim financial information
23 (a) Consent of Brown & Wood (included as part of Exhibit 5)
23 (b) Consent of Deloitte & Touche LLP
24 Power of Attorney (included on page 7)
-4-
<PAGE>
ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(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;
provided, however that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-8 and the information required to
be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
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 the 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.
(b) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall deemed to be
a new registration statement relating to the securities offered herein, and
the offering of such securities at the time shall be deemed to be the
initial bona fide offering thereof.
(c) 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 the provisions referred
to in Item 6 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
-5-
<PAGE>
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.
-6-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of New York, State of New York, on
the 10th day of November, 1994.
MERRILL LYNCH & CO., INC.
By: /s/ Daniel P. Tully
-------------------------------
Daniel P. Tully
Chairman of the Board,President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Daniel P. Tully, Stephen L. Hammerman and
Joseph T. Willett, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement and to each Registration Statement amended hereby, 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, and each of them, 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 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 any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in
the capacities indicated on the 10th day of November, 1994.
Signature Title
--------- -----
/s/ Daniel P. Tully
- -------------------------- Chairman of the Board, President,
Daniel P. Tully Chief Executive Officer and Director
/s/ Joseph T. Willett
- -------------------------- Senior Vice President,
Joseph T. Willett Chief Financial Officer and Controller
/s/ William O. Bourke
- -------------------------- Director
William O. Bourke
-7-
<PAGE>
/s/ Jill K. Conway
- -------------------------- Director
Jill K. Conway
/s/ Stephen L. Hammerman
- -------------------------- Director
Stephen L. Hammerman
/s/ Robert A. Hanson
- -------------------------- Director
Robert A. Hanson
/s/ Earle H. Harbison, Jr.
- -------------------------- Director
Earle H. Harbison, Jr.
/s/ George B. Harvey
- -------------------------- Director
George B. Harvey
/s/ Robert P. Luciano
- -------------------------- Director
Robert P. Luciano
/s/ Aulana L. Peters
- -------------------------- Director
Aulana L. Peters
/s/ John J. Phelan, Jr.
- -------------------------- Director
John J. Phelan, Jr.
/s/ Charles A. Sanders
- -------------------------- Director
Charles A. Sanders
/s/ William L. Weiss
- -------------------------- Director
William L. Weiss
-8-
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------- ----
5 Opinion of Brown & Wood re: legality 9
15 Letter re: unaudited interim financial information 10
23(a) Consent of Brown & Wood (included as part of Exhibit 5)
23(b) Consent of Deloitte & Touche LLP 11
24 Power of Attorney (included on page 7) 7
<PAGE>
EXHIBIT 5
LETTERHEAD OF BROWN & WOOD
November 10, 1994
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281
Dear Sirs:
We have acted as counsel for Merrill Lynch & Co., Inc., a Delaware
corporation (the "Company"), in connection with the proposed filing with
the Securities and Exchange Commission expected to be made on or about
November 10, 1994 under the Securities Act of 1933, as amended, of a
Registration Statement on Form S-8 (the "Registration Statement") for the
purpose of registering $90,000,000 of Deferred Compensation Obligations
which represent unsecured obligations of the Company to pay deferred
compensation in the future in accordance with the terms of Merrill Lynch &
Co., Inc. Amended and Restated 1994 Deferred Compensation Agreement for a
Select Group of Eligible Employees (the "Agreement"). In such capacity, we
have examined the Restated Certificate of Incorporation and By-Laws of the
Company, the Agreement, and such other documents of the Company as we have
deemed necessary or appropriate for the purposes of the opinion expressed
herein.
Based upon the foregoing, we advise you that, in our opinion, when
issued in accordance with the provisions of the Agreement, the Deferred
Compensation Obligations are valid and binding obligations of the Company,
enforceable in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other laws of general
applicability relating to or affecting enforcement of creditors' rights or
by general equity principles.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name wherever appearing in the
Registration Statement and any amendment thereto.
Very truly yours,
/s/ Brown & Wood
Brown & Wood
<PAGE>
EXHIBIT 15
November 9, 1994
Merrill Lynch & Co., Inc.
World Financial Center
North Tower, 31st Floor
New York, NY 10281-1231
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited
interim consolidated financial information of Merrill Lynch & Co., Inc. and
subsidiaries for the periods ended April 1, 1994 and March 26, 1993 and
July 1, 1994 and June 25, 1993 as indicated in the reports of Deloitte &
Touche dated May 13, 1994 and August 12, 1994 respectively; because we did
not perform an audit, we expressed no opinion on that information.
We are aware that such reports referred to above, which are included in
your Quarterly Reports on Form 10-Q for the quarters ended April 1, 1994
and July 1, 1994, are incorporated by reference in this Registration
Statement.
We are also aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the
Registration Statement prepared or certified by an accountant or reports
prepared or certified by an accountant within the meaning of Sections 7 and
11 of that Act.
/s/ Deloitte & Touche LLP
New York, New York
<PAGE>
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
-----------------------------
We consent to the incorporation by reference in this Registration Statement
of Merrill Lynch & Co., Inc. (the "Company") on Form S-8 of the reports of
Deloitte & Touche dated February 28, 1994 appearing in and incorporated by
reference in the Annual Report on Form 10-K of the Company for the year
ended December 31, 1993 and to the reference to Deloitte & Touche LLP under
the heading "Experts" in the Prospectus, which is a part of this
Registration Statement. We also consent to the incorporation by reference
in this Registration Statement of the report of Deloitte & Touche dated
February 28, 1994, appearing as Exhibit 99(a) in the Company's Current
Report on Form 8-K dated March 9, 1994, relating to the Selected Financial
Data under the captions "Operating Results", "Financial Position" and
"Common Share Data" for each of the five years in the period ended December
31, 1993 included in the 1993 Annual Report to Stockholders of the Company.
/s/ Deloitte & Touche LLP
New York, New York
November 9, 1994
