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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 23, 1995
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Merrill Lynch & Co., Inc.
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(Exact name of Registrant as specified in its charter)
Delaware 1-7182 13-2740599
----------------- ------------ ------------------
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
World Financial Center, North Tower, New York, New York 10281-1220
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (212) 449-1000
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_________________________________________________________________
(Former name or former address, if changed since last report.)
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Item 5. Other Events
---------------------
Exhibits are filed herewith in connection with the Registration
Statement on Form S-3 (File No. 33-52647) filed by Merrill Lynch & Co., Inc.
("ML & Co.") with the Securities and Exchange Commission (the Registration
Statement ) covering the Greater of U.S. Dollar/Deutsche Mark--U.S.
Dollar/Japanese Yen Put Currency Warrants, Expiring May 15, 1997 (the
"Warrants") issuable under a Warrant Agreement dated as of May 23, 1995
between ML & Co. and Citibank, N.A. (the "Warrant Agreement"). ML & Co. will
issue 1,250,000 Warrants pursuant to the Warrant Agreement. The exhibits
consist of the form of the Warrant Agreement (including a form of the
Warrant) and an opinion of counsel relating to the Warrants.
Item 7. Financial Statements, Pro Forma Financial Information
--------------------------------------------------------------
and Exhibits
------------
EXHIBITS
(4) Instruments defining the rights of security holders, including
indentures.
Form of Warrant Agreement dated as of May 23, 1995,
including a form of the Warrant.
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood relating to the Greater of U.S.
Dollar/Deutsche Mark--U.S. Dollar/Japanese Yen Put
Currency Warrants, Expiring May 15, 1997 (including
consent for inclusion of such opinion in this report and
in Merrill Lynch & Co., Inc.'s Registration Statement
relating to such Warrants).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereto duly authorized.
MERRILL LYNCH & CO., INC.
---------------------------------
(Registrant)
By: /s/ Theresa Lang
_____________________________
Theresa Lang
Senior Vice President
and Treasurer
Date: May 23, 1995
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
MERRILL LYNCH & CO., INC.
EXHIBITS TO CURRENT REPORT ON
FORM 8-K DATED MAY 23, 1995
Commission File Number 1-7182
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Exhibit Index
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Exhibit No. Description Page
----------- ----------- ----
(4) Instruments defining the rights of security holders
including indentures.
Form of Warrant Agreement dated as of May 23, 1995,
including a form of the Warrant.
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood relating to the Greater of U.S.
Dollar/Deutsche Mark--U.S. Dollar/Japanese Yen Put Currency
Warrants, Expiring May 15, 1997 (including consent for
inclusion of such opinion in this report and in Merrill Lynch
& Co., Inc.'s Registration Statement relating to such
Warrants).
2
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Exhibit (4)
MERRILL LYNCH & CO., INC.
and
CITIBANK, N.A., as Warrant Agent
____________________
WARRANT AGREEMENT
dated as of May 23, 1995
____________________
1,250,000 GREATER OF U.S. DOLLAR/DEUTSCHE MARK--U.S.
DOLLAR/JAPANESE YEN PUT CURRENCY WARRANTS,
EXPIRING MAY 15, 1997
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TABLE OF CONTENTS
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Page
----
PARTIES..................................................... 1
RECITALS.................................................... 1
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01. Issuance of Warrants; Book-Entry
Procedures; Successor Depository........ 1
SECTION 1.02. Form, Execution and Delivery of Global
Warrant Certificate..................... 3
SECTION 1.03. Global Warrant Certificate.............. 4
SECTION 1.04. Registration of Transfers and Exchanges. 4
SECTION 1.05. Warrant Certificates.................... 4
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Duration of Warrants.................... 8
SECTION 2.02. Exercise and Delivery of Warrants....... 8
SECTION 2.03. Early Exercise of the Warrants.......... 9
SECTION 2.04. Covenant of the Company................. 11
SECTION 2.05. Return of Global Warrant Certificate.... 11
SECTION 2.06. Return of Money Held Unclaimed
for Two Years........................... 11
SECTION 2.07. Designation of Agent for Receipt of
Notice.................................. 12
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS
SECTION 3.01. Holder of Warrant May Enforce Rights.... 13
SECTION 3.02. Merger, Consolidation, Sale, Transfer or
Conveyance............................. 13
ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants................ 14
SECTION 4.02. Treatment of Holders.................... 14
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ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent........................... 15
SECTION 5.02. Conditions of Warrant Agent's
Obligations............................. 15
SECTION 5.03. Resignation and Appointment of
Successor............................... 17
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment............................... 19
SECTION 6.02. Notices and Demands to the Company and
Warrant Agent........................... 19
SECTION 6.03. Addresses for Notices................... 20
SECTION 6.04. Notices to Holders...................... 20
SECTION 6.05. Applicable Law.......................... 20
SECTION 6.06. Obtaining of Governmental Approvals..... 20
SECTION 6.07. Persons Having Rights Under Warrant
Agreement............................... 20
SECTION 6.08. Headings................................ 21
SECTION 6.09. Counterparts............................ 21
SECTION 6.10. Inspection of Agreement................. 21
SIGNATURES.................................................. 21
EXHIBIT A - Form of Global Warrant Certificate
ii
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WARRANT AGREEMENT
THIS AGREEMENT, dated as of May 23, 1995, between MERRILL LYNCH &
CO., INC., a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), and CITIBANK, N.A., a national banking
association duly incorporated and existing under the laws of the United
States, as Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H T H A T :
WHEREAS, the Company proposes to sell warrants (the "Warrants" or,
individually, a "Warrant") representing the right to receive from the Company
the Cash Settlement Value (as defined herein) in U.S. dollars computed by
reference to decreases in the value of either the Deutsche Mark or the
Japanese Yen relative to the U.S. dollar (as described below); and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of
the Company in connection with the issuance, transfer and exercise of the
Warrants, and wishes to set forth herein, among other things, the provisions
of the Warrants and the terms and conditions on which they may be issued,
transferred, exercised and cancelled;
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01. Issuance of Warrants; Book-Entry Procedures; Successor
------------------------------------------------------
Depository. (a) The Warrants shall initially be represented by a single
----------
certificate (the "Global Warrant Certificate"). Each Warrant shall represent
the right, subject to the provisions contained herein and in the Global
Warrant Certificate, to receive the Cash Settlement Value, if any, (as
defined in paragraph (d) of Section 2.02) of such Warrant. In no event shall
Holders (as defined in Section 4.02) be entitled to receive any interest on
any Cash Settlement Value. Beneficial owners of interests in the Global
Warrant Certificate shall not be entitled to receive definitive Warrants
evidencing the Warrants; provided, however, that if (i) the Depository (as
defined in Section 1.01(b)) is at any time unwilling or unable to continue as
Depository for the Warrants and a successor Depository is not appointed by
the Company within 90 days, or (ii) the Company shall be adjudged bankrupt or
insolvent or make an assignment for the benefit of its creditors or institute
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proceedings to be adjudicated bankrupt or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or
consent seeking reorganization under applicable law, or shall consent to the
filing of any such petition, or shall consent to the appointment of a
receiver or custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts as they mature,
or if a receiver or custodian of it or all or any substantial part of its
property shall be appointed, or if any public officer shall have taken charge
or control of the Company or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, the Company will issue Warrants
in definitive form in exchange for the Global Warrant Certificate. In
addition, the Company may at any time determine not to have the Warrants
represented by a Global Warrant Certificate and, in such event, will issue
Warrants in definitive form in exchange for the Global Warrant Certificate.
In either instance, and in accordance with the provisions of this Agreement,
each beneficial owner of an interest in the Global Warrant Certificate will
be entitled to have a number of Warrants equivalent to such owner's
beneficial interest in the Global Warrant Certificate registered in its name
and will be entitled to physical delivery of such Warrants in definitive form
by the Depository Participant (as defined in Section 1.01(c)) through which
such owner's beneficial interest is reflected. The provisions of Section
1.05 shall apply only if, and when, Warrants in definitive form ("Warrant
Certificates") are issued hereunder. Unless the context shall otherwise
require, all references in this Agreement to the Global Warrant Certificate
shall include the Warrant Certificates in the event that Warrant Certificates
are issued.
(b) The Global Warrant Certificate shall be deposited with the
Depository or its agent (the term "Depository", as used
herein, initially refers to The Depository Trust Company and
includes any successor depository selected by the Company as
provided in Section 1.01(d)) for credit to the accounts of the
Depository Participants as shown on the records of the Depository
from time to time.
(c) The Global Warrant Certificate will initially be registered in the
name of a nominee of the Depository selected by the Company for the Warrants.
The Warrant holdings of Depository Participants will be recorded on the books
of the Depository. The holdings of customers of Depository Participants will
be reflected on the books and records of such Depository Participants and
will not be known to the Warrant Agent, the Company or to the Depository.
"Depository Participants" include securities brokers and dealers, banks and
trust companies, clearing organizations and certain other organizations which
are participants in the Depository's system. The Global Warrant Certificate
will be held by the Depository or its agent.
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(d) The Company may from time to time select a new entity to act as
Depository and, if such selection is made, the Company shall promptly give
the Warrant Agent notice to such effect identifying the new Depository, and
the Global Warrant Certificate shall be delivered to the Warrant Agent and
shall be transferred to the new Depository as provided in Section 1.04 as
promptly as possible. Appropriate changes may be made in the Global Warrant
Certificate and the related notices delivered in connection with an exercise
of Warrants to reflect the selection of the new Depository.
SECTION 1.02. Form, Execution and Delivery of Global Warrant
----------------------------------------------
Certificate. The Global Warrant Certificate shall be in registered form and
-----------
substantially in the form set forth in Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement. The Global Warrant Certificate may
have imprinted or otherwise reproduced thereon such letters, numbers or other
marks of identification or designation and such legends or endorsements as
the officers of the Company executing the same may approve (execution thereof
to be conclusive evidence of such approval) and are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed or of
the Depository, or to conform to usage. The Global Warrant Certificate shall
be signed on behalf of the Company by its President, Chairman of the Board,
officer serving as Chief Financial Officer, Treasurer, any Executive Vice
President or any Vice President, manually or by facsimile signature, and a
facsimile of its corporate seal shall be impressed, imprinted or engraved
thereon, which shall be attested by its Secretary or any Assistant Secretary,
either manually or by facsimile signature. Typographical and other minor
errors or defects in any such reproduction of the seal or any such signature
shall not affect the validity or enforceability of the Global Warrant
Certificate that has been duly authenticated and delivered by the Warrant
Agent.
In case any officer of the Company who shall have signed the Global
Warrant Certificate either manually or by facsimile signature shall cease to
be such officer before the Global Warrant Certificate so signed shall have
been authenticated and delivered by the Warrant Agent to the Company or
delivered by the Company, such Global Warrant Certificate nevertheless may be
authenticated and delivered as though the person who signed such Global
Warrant Certificate had not ceased to be such officer of the Company; and the
Global Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Global Warrant
Certificate, shall be the proper officers of the Company, although at the
date of
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the execution of this Agreement any such person was not such officer.
SECTION 1.03. Global Warrant Certificate . A Global
--------------------------
Warrant Certificate relating to 1,250,000 Warrants originally
issued may be executed by the Company and delivered to the
Warrant Agent on or after the date of execution of this
Agreement. The Warrant Agent is authorized, upon receipt of the
Global Warrant Certificate from the Company, duly executed on
behalf of the Company, to authenticate such Global Warrant
Certificate. The Global Warrant Certificate shall be manually
authenticated and dated the date of its authentication by the
Warrant Agent and shall not be valid for any purpose unless so
authenticated. The Warrant Agent shall authenticate and deliver
the Global Warrant Certificate to or upon the written order of the Company.
SECTION 1.04. Registration of Transfers and Exchanges. Except as
---------------------------------------
otherwise provided herein or in the Global Warrant Certificate, the Warrant
Agent shall from time to time register the transfer of the Global Warrant
Certificate in the records of the Warrant Agent only to the Depository, to a
nominee of the Depository, to a successor Depository, or to a nominee of a
successor Depository, upon surrender of such Global Warrant Certificate, duly
endorsed and accompanied by a written instrument or instruments of transfer
in form satisfactory to the Warrant Agent and the Company, duly signed by the
registered Holder thereof or by the duly appointed legal representative
thereof or by a duly authorized attorney. Upon any such registration of
transfer, the Company shall execute and the Warrant Agent shall authenticate
and deliver in the name of the designated transferee a new Global Warrant
Certificate of like tenor and evidencing a like number of Warrants as
evidenced by the Global Warrant Certificate at the time of such registration
of transfer.
The Global Warrant Certificate may be transferred as provided above at
the option of the Holder thereof when surrendered to the Warrant Agent at its
office or agency maintained for the purpose of transferring any of the
Warrants, which shall be south of Chambers Street in the Borough of
Manhattan, The City of New York (the "Warrant Agent Office"), and which is,
on the date of this Agreement, 111 Wall Street, New York, New York 10043
Attention: Corporate Trust Services, or at the office of any successor
Warrant Agent as provided in Section 5.03, in exchange for another Global
Warrant Certificate of like tenor and representing a like number of Warrants.
SECTION 1.05. Warrant Certificates. Any Warrant Certificates issued in
--------------------
accordance with Section 1.01(a) shall be in registered form substantially in
the form set forth in Exhibit A hereto, with such appropriate insertions,
omissions,
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substitutions and other variations as are necessary or desirable for
individual Warrant Certificates, and may represent any integral multiple of
Warrants. The Warrant Certificates may have imprinted or otherwise reproduced
thereon such letters, numbers or other marks of identification or designation
and such legends or endorsements as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such
approval) and are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which the Warrants may be listed or of the Depository, or to conform to
usage. Warrant Certificates shall be signed on behalf of the Company upon the
same conditions, in substantially the same manner and with the same effect as
the Global Warrant Certificate.
Each Warrant Certificate, when so signed on behalf of the Company, shall
be delivered to the Warrant Agent, which shall manually authenticate and
deliver the same to or upon the written order of the Company. Each Warrant
Certificate shall be dated the date of its authentication.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has
been authenticated by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates delivered in exchange for the Global Warrant
Certificate shall be registered in such names and addresses (including tax
identification numbers) and in such denominations as shall be requested in
writing by the Depository or its nominee in whose name the Global Warrant
Certificate is registered, upon written certification to the Company and the
Warrant Agent in form satisfactory to each of them of a beneficial ownership
interest in the Global Warrant Certificate.
The Company shall cause to be kept at an office of the Warrant Agent in
The City of New York a register (the register maintained in such office and
in any other office or agency maintained by or on behalf of the Company for
such purpose being herein sometimes collectively referred to as the "Warrant
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Warrant
Certificates and the transfer of Warrant Certificates. The Warrant Agent is
hereby appointed "Warrant Registrar" for the purpose of registering Warrant
Certificates and the transfer of Warrant Certificates as herein provided.
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Upon surrender for registration of a transfer of a Warrant Certificate
at an office or agency of the Company maintained for such purpose, the
Company shall execute, and the Warrant Agent shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Warrant Certificates of any authorized denominations and representing
Warrants of a like aggregate number.
At the option of the Holder, Warrant Certificates may be exchanged for
other Warrant Certificates of any authorized denominations and representing
Warrants of a like aggregate number, upon surrender of the Warrant
Certificates to be exchanged at such office or agency. Whenever any Warrant
Certificates are so surrendered for exchange, the Company shall execute, and
the Warrant Agent shall authenticate and deliver, the Warrant Certificates
which the Holder making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of a transfer or
an exchange of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations of the Company, and entitled to the
same benefits under this Warrant Agreement, as the Warrant Certificates
surrendered upon such registration of a transfer or an exchange.
Every Warrant Certificate presented or surrendered for registration of a
transfer or for an exchange shall (if so required by the Company or the
Warrant Agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Warrant Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of a transfer or an
exchange of Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of a transfer or an exchange of
Warrant Certificates.
If any mutilated Warrant Certificate is surrendered to the Warrant
Agent, the Company shall execute and the Warrant Agent shall authenticate and
deliver in exchange therefor a new Warrant Certificate of like tenor
representing Warrants of a like number and bearing a number not
contemporaneously outstanding.
If there shall be delivered by a Holder to the Company and the Warrant
Agent (i) evidence to their satisfaction of the destruction, loss or theft of
any Warrant Certificate, (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless and
(iii) funds sufficient to cover any cost or expense to the Company (including
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any fees charged by the Warrant Agent) relating to the issuance of a new
Warrant Certificate, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Warrant Agent
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Warrant Certificate, a new Warrant Certificate of like tenor representing
Warrants of a like number and bearing a number not contemporaneously
outstanding.
Every new Warrant Certificate issued pursuant to this Section 1.05 in
lieu of any destroyed, lost or stolen Warrant Certificate shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Warrant Agreement equally and proportionately with any and all other Warrant
Certificates duly issued hereunder.
The provisions of this Section 1.05 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Prior to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may treat the person in whose name such Warrant Certificate is
registered as the owner of such Warrant Certificate for all purposes
hereunder whatsoever, whether or not such Warrant Certificate has been
transferred and neither the Company, the Warrant Agent nor any agent of the
Company or the Warrant Agent shall be affected by notice to the contrary.
All Warrant Certificates surrendered for registration of transfer or
exchange shall, if surrendered to any person other than the Warrant Agent, be
delivered to the Warrant Agent and shall be promptly cancelled by it. The
Company may at any time deliver to the Warrant Agent for cancellation any
Warrant Certificates previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and all Warrant
Certificates so delivered shall be promptly cancelled by the Warrant Agent.
No Warrant Certificates shall be authenticated in lieu of or in exchange for
any Warrant Certificates cancelled as provided in this Section 1.05, except
as expressly permitted by this Warrant Agreement. All cancelled Warrant
Certificates held by the Warrant Agent shall be disposed of as directed by
the Company.
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ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Duration of Warrants. Subject to the limitations
--------------------
described herein, each Warrant evidenced by the Global Warrant Certificate
will expire on May 15, 1997 (the "Expiration Date").
SECTION 2.02. Exercise and Delivery of Warrants.
---------------------------------
(a) The Warrants will be automatically exercised on the fifth New York
Business Day immediately preceding the Expiration Date or, if an Early
Expiration Date occurs, the New York Business Day immediately preceding the
Early Expiration Date (the "Exercise Date").
(b) On the Exercise Date, the Warrant Agent shall: obtain the Cash
Settlement Value, if any, from the Calculation Agent, advise the Company of
the aggregate Cash Settlement Value, if any, of the Warrants and advise the
Company of such other matters relating to the Warrants as the Company shall
reasonably request. Any notice to be given to the Company by the Warrant
Agent pursuant to this Section 2.02 or pursuant to Section 2.03 shall be by
telephone and shall be promptly confirmed in writing. Any notice to be given
by the Calculation Agent to the Warrant Agent pursuant to this Section 2.02
or pursuant to Section 2.03 shall be by facsimile transmission to the address
of the Warrant Agent set forth in Section 6.03.
(c) If no Early Expiration Date occurs, the Company will make available
to the Warrant Agent, no later than 3:00 P.M., New York City time, on the
Expiration Date, or, if the Expiration Date is not a New York Business Day,
on the next succeeding New York Business Day (the "Settlement Date"), funds
in an amount sufficient to pay such Cash Settlement Value. Provided that the
Company has made adequate funds available to the Warrant Agent in such
manner, the Warrant Agent will make payment by check to the Depository, after
3:00 P.M., New York City time, but prior to the close of business, on such
Settlement Date. Any such payment will be in the amount of the aggregate
Cash Settlement Value in respect of the Warrants.
(d) "Cash Settlement Value" of a Warrant is an amount, if positive,
which is the greater of:
(i) U.S. $50 - U.S. $50 x DEM Strike Price
----------------
DEM Spot Rate ; and
(ii) U.S. $50 - U.S. $50 x JPY Strike Price
----------------
JPY Spot Rate .
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The "DEM Strike Price" equals 1.4440. The "JPY Strike Price" equals
86.50. The "DEM Spot Rate" and "JPY Spot Rate" will be determined on the
Exercise Date by Merrill Lynch International Bank (the "Calculation Agent").
The "DEM Spot Rate" will equal:
(a) the noon buying rate per U.S. $1.00 in The City of New York on the
Exercise Date for cable transfers in Deutsche Marks as certified for
customs purposes by the Federal Reserve Bank of New York (the "DEM Noon
Buying Rate") as reported on page 1FEE of The Reuter Monitor Money Rates
Service (or such page as may replace that page), or (b) if the DEM Noon
Buying Rate does not appear on such page by 1:00 P.M. on the Exercise Date,
the DEM Noon Buying Rate on the Exercise Date as otherwise announced by the
Federal Reserve Bank of New York, or (c) if the Federal Reserve Bank of New
York has not quoted such rate by 1:30 P.M. on the Exercise Date, the
offered spot rate of Deutsche Marks per U.S. $1.00 on such date for a
transaction amount approximately equivalent to U.S. $50 times the aggregate
number of Warrants issued, quoted at approximately 1:30 P.M., New York City
time, by a leading bank in the foreign exchange markets as may be selected
by the Calculation Agent.
The "JPY Spot Rate" will equal:
(a) the noon buying rate per U.S. $1.00 in The City of New York on the
Exercise Date for cable transfers in Japanese Yen as certified for customs
purposes by the Federal Reserve Bank of New York (the "JPY Noon Buying
Rate") as reported on page 1FEE of The Reuter Monitor Money Rates Service
(or such page as may replace that page), or (b) if the JPY Noon Buying Rate
does not appear on such page by 1:00 P.M. on the Exercise Date, the JPY
Noon Buying Rate on the Exercise Date as otherwise announced by the Federal
Reserve Bank of New York, or (c) if the Federal Reserve Bank of New York
has not quoted such rate by 1:30 P.M. on the Exercise Date, the offered
spot rate of Japanese Yen per U.S. $1.00 on such date for a transaction
amount approximately equivalent to U.S. $50 times the aggregate number of
Warrants issued, quoted at approximately 1:30 P.M., New York City time, by
a leading bank in the foreign exchange markets as may be selected by the
Calculation Agent.
The Cash Settlement Value will be rounded, if necessary, to the nearest
cent (with one-half cent being rounded upwards).
SECTION 2.03. Early Exercise of the Warrants.
------------------------------
(a) In the event that the Warrants are delisted from, or permanently
suspended from trading on, the American Stock Exchange and the Warrants are
not simultaneously accepted for
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trading pursuant to the rules of another national securities exchange, the
Warrants will expire on the date such delisting or trading suspension becomes
effective (an "Early Expiration Date") and the Warrants will be automatically
exercised on the New York Business Day immediately preceding the Early
Expiration Date. The Company will advise the Warrant Agent of the date of
any expected delisting or permanent suspension of trading of the Warrants as
soon as is practicable and will immediately inform the Warrant Agent after
the Company has received notice that such delisting or suspension has
occurred and that the Warrants are not accepted for listing on another
national securities exchange, but in no event will such notice be given to
the Warrant Agent later than 5:00 P.M., New York City time, on the second New
York Business Day preceding the Early Expiration Date.
The term "New York Business Day", as used herein, means any day other than
a Saturday or Sunday or a day on which commercial banks in The City of New
York are required or authorized by law or executive order to be closed.
(b) The Warrants will expire on the date that any of the following events
occur (any such date also being an "Early Expiration Date") and the Warrants
will be automatically exercised on the New York Business Day immediately
preceding the Early Expiration Date:
(i) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
the Company or for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(ii) the Company commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or similar official) of
the Company or for any substantial part of its property, or shall
make any general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due or shall take any
corporate action in furtherance of any of the foregoing.
10
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(c) The Warrant Agent shall, on the New York Business Day following the
Exercise Date as determined pursuant to subsection (a) or (b) above, obtain
the Cash Settlement, if any, from the Calculation Agent, advise the Company
of the Cash Settlement Value, if any, of the Warrants evidenced by the Global
Warrant Certificate and advise the Company of such other matters relating to
the Warrants as the Company shall reasonably request. Provided that the
Company has made adequate funds available to the Warrant Agent in a timely
manner which shall, in no event, be later than 3:00 P.M., New York City time,
on the fifth New York Business Day following the Early Expiration Date, the
Warrant Agent will make its check (or another form of payment in accordance
with existing arrangements between the Warrant Agent and the Depository)
available to the Depository against receipt by the Warrant Agent from the
Depository of the Global Warrant Certificate on the fifth New York Business
Day following the Early Expiration Date, such check to be in the amount of
the aggregate Cash Settlement Value in respect of the number of Warrants
evidenced by the Global Warrant Certificate at the close of business on the
Early Expiration Date. The Warrant Agent shall promptly cancel the Global
Warrant Certificate following its receipt thereof from the Depository.
(d) The Company will notify the beneficial owners of interests in the
Global Warrant Certificate, or will cause such owners to be notified, as
promptly as is practicable, of any expected delisting or suspension of
trading of the Warrants.
(e) If the Warrants are simultaneously accepted for trading pursuant to the
rules of another national securities exchange, from and after such date all
references in this Section 2.03 shall continue to apply, but each reference
to the "American Stock Exchange" herein shall be deemed to refer to such
other national securities exchange.
SECTION 2.04. Covenant of the Company. The Company covenants, for the
-----------------------
benefit of the Holders, that it will not seek the delisting of the Warrants
from, or suspension of their trading on, the American Stock Exchange.
SECTION 2.05. Return of Global Warrant Certificate. At such time as all
------------------------------------
of the Warrants have been exercised, deemed automatically exercised or
otherwise cancelled, the Warrant Agent shall destroy the cancelled Global
Warrant Certificate unless the Company directs it to return it.
SECTION 2.06. Return of Money Held Unclaimed for Two Years. Any money
--------------------------------------------
deposited with or paid to the Warrant Agent for the payment of the Cash
Settlement Value of any Warrants and not applied but remaining unclaimed for
two years after the date upon which such Cash Settlement Value shall have
become due and payable, shall, unless otherwise required by applicable law,
be
11
<PAGE>
repaid by the Warrant Agent to the Company and the Holder of such Warrants
shall thereafter look only to the Company for any payment which such Holder
may be entitled to collect and all liability of the Warrant Agent with
respect to such money shall thereupon cease; provided, however, that the
Warrant Agent, before making any such repayment, may at the expense of the
Company notify the Holders concerned that said money has not been so applied
and remains unclaimed and that after a date named therein any unclaimed
balance of said money then remaining will be returned to the Company.
SECTION 2.07. Designation of Agent for Receipt of Notice. The
------------------------------------------
Company may from time to time designate in writing to the Warrant Agent a
designee for receipt of all notices required to be given by the Warrant Agent
pursuant to this Article II and all such notices thereafter shall be given in
the manner herein provided by the Warrant Agent to such designee.
12
<PAGE>
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01. Holder of Warrant May Enforce Rights. Notwithstanding any
------------------------------------
of the provisions of this Agreement, any Holder, without the consent of the
Warrant Agent, may, in and for his own behalf, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to
enforce, or otherwise in respect of, his right to receive payment for his
Warrants as provided in the Global Warrant Certificate and in this Agreement.
SECTION 3.02. Merger, Consolidation, Sale, Transfer or Conveyance. The
---------------------------------------------------
Company may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided
that in any such case, either the Company shall be the continuing
corporation, or the successor corporation shall be a corporation organized
and existing under the laws of the United States of America or a State
thereof and such successor corporation shall expressly assume the payment of
the Cash Settlement Value with respect to all Warrants, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Agreement and the Global Warrant Certificate
to be performed by the Company. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, a new Global Warrant Certificate representing the
Warrants not theretofore exercised, in exchange and substitution for the
Global Warrant Certificate theretofore issued. Such Global Warrant
Certificate shall in all respects have the same legal rank and benefit under
this Agreement as the Global Warrant Certificate theretofore issued in
accordance with the terms of this Agreement as though such new Global Warrant
Certificate had been issued at the date of the execution hereof. In any case
of any such consolidation, merger, sale, lease or conveyance of substantially
all of the assets of the Company, such changes in phraseology and form (but
not in substance) may be made in the new Global Warrant Certificate as may be
appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, sale, lease or
conveyance of substantially all of the assets of the Company complies with
the provisions of this Section 3.02 and that the assumption of this Agreement
by the successor or assuming corporation is effective.
13
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ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants. In the event the Company shall
------------------------
purchase or otherwise acquire Warrants, such Warrants may, at the option of
the Company and upon notification to the Warrant Agent, be surrendered free
through a Depository Participant for credit to the Warrant Account and if so
credited the Warrant Agent shall promptly note the cancellation of such
Warrants by notation on the records of the Warrant Agent. No Warrant shall
be issued in lieu of or in exchange for any Warrant which is cancelled as
provided herein, except as otherwise expressly permitted by this Agreement.
SECTION 4.02. Treatment of Holders. The Company, the Warrant
--------------------
Agent and any agent of the Company or the Warrant Agent may deem and treat
the person in whose name the Global Warrant Certificate shall be registered
in the records of the Warrant Agent as the absolute owner of such Global
Warrant Certificate (notwithstanding any notation of ownership or other
writing thereon) (the "Holder") for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced hereby, and neither
the Company nor the Warrant Agent, nor any agent of the Company or the
Warrant Agent shall be affected by any notice to the contrary. This Section
4.02 shall be without prejudice to the rights of Holders as described
elsewhere herein.
14
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ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. (a) The Company hereby appoints Citibank,
-------------
N.A. as Warrant Agent of the Company in respect of the Warrants and Global
Warrant Certificate upon the terms and subject to the conditions set forth
herein and in the Global Warrant Certificate; and Citibank, N.A. hereby
accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Global Warrant Certificate
and hereby and such further powers and authority acceptable to it to act on
behalf of the Company as the Company may hereafter grant to or confer upon
it. All of the terms and provisions with respect to such powers and
authority contained in the Global Warrant Certificate are subject to and
governed by the terms and provisions hereof.
(b) The Warrant Agent covenants and agrees to maintain offices, staffed by
qualified personnel, with adequate facilities for the discharge of its
responsibilities under this Warrant Agreement, including without limitation
the timely settlement of the Warrants upon exercise thereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
-----------------------------------------
Agent accepts its obligations herein set forth upon the terms and conditions
hereof and of the Global Warrant Certificates including the following, to all
of which the Company agrees and to all of which the rights hereunder of the
Holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company for all services rendered
by the Warrant Agent and to reimburse the Warrant Agent for its reasonable
out-of-pocket expenses (including counsel fees and expenses) incurred by
the Warrant Agent without negligence, bad faith or breach of this Agreement
on its part in connection with the services rendered by it hereunder. The
Company also agrees to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense (including reasonable
attorneys' fees and expenses) incurred without negligence, bad faith or
breach of this Agreement on the part of the Warrant Agent, arising out of
or in connection with it acting as such Warrant Agent hereunder or with
respect to the Warrants or the Global Warrant Certificate, as well as the
reasonable costs and expenses of defending against any claim of liability
in the premises.
(b) In acting under this Agreement and in connection with the Global
Warrant Certificate, the Warrant Agent is acting solely as agent of the
Company and does not assume any
15
<PAGE>
obligation or relationship of agency or trust for or with any of the owners
or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and
the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted or thing suffered by it in
reliance upon any Global Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) The Warrant Agent, and its officers, directors and employees, may
become the owner of, or acquire an interest in, any Warrants or other
obligations of the Company, with the same rights that it or they would have
if it were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of Holders of Warrants or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder.
(f) The Warrant Agent shall not be under any liability for interest on
any monies at any time received by it pursuant to any of the provisions of
this Agreement or of the Global Warrant Certificate nor shall it be
obligated to segregate such monies from other monies held by it, except as
required by law. The Warrant Agent shall not be responsible for advancing
funds on behalf of the Company.
(g) The Warrant Agent shall not be under any responsibility with
respect to the validity or sufficiency of this Agreement or the execution
and delivery hereof (except the due execution and delivery hereof by the
Warrant Agent) or with respect to the validity or execution of the Global
Warrant Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate
(except as to the Warrant Agent's authentication thereon) shall be taken as
the statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as
are herein and in the Global Warrant
16
<PAGE>
Certificate specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Global Warrant Certificate against
the Warrant Agent. The Warrant Agent shall not be under any obligation to
take any action hereunder likely to involve it in any expense or liability,
the payment of which is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility
for the use by the Company of the Global Warrant Certificate authenticated
by the Warrant Agent and delivered by it to the Company pursuant to this
Agreement or for the application by the Company of any proceeds. The
Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained
herein or in the Global Warrant Certificate or in the case of the receipt
of any written demand from a Holder of a Warrant with respect to such
default, except as provided in Section 6.02 hereof, including, without
limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or to
make any demand upon the Company.
(j) Unless herein or in the Global Warrant Certificate otherwise
specifically provided, any order, certificate, notice, request, direction
or other communication from the Company made or given by the Company under
any provision of this Agreement shall be sufficient if signed by its
President, Chairman of the Board, officer serving as Chief Financial
Officer, Treasurer, any Executive Vice President or any Vice President.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company
----------------------------------------
agrees, for the benefit of the Holders from time to time of the Warrants,
that there shall at all times be a Warrant Agent hereunder until all the
Warrants have expired.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective, subject to the
appointment of a successor Warrant Agent, and acceptance of such appointment
by such successor Warrant Agent, as hereinafter provided. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument
in writing signed by or on behalf of the Company and specifying such removal
and the date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a banking institution
organized under the laws of the United States of America, or one of the
states thereof and having an office or an agent's office south of Chambers
Street in the Borough of Manhattan, The City of New York) and the acceptance
of such appointment by such
17
<PAGE>
successor Warrant Agent. In the event a successor Warrant Agent has not been
appointed and accepted its duties within 90 days of the Warrant Agent's
notice of resignation, the Warrant Agent may apply to any court of competent
jurisdiction for the designation of a successor Warrant Agent. The
obligation of the Company under Section 5.02(a) shall continue to the extent
set forth therein notwithstanding the resignation or removal of the Warrant
Agent and shall survive the termination of this Agreement.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or make an assignment for the benefit of its creditors or
consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to
pay or meet its debts as they mature, or if a receiver or custodian of it or
all or any substantial part of its property shall be appointed, or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the latter of such appointment, the Warrant
Agent so superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all of the corporate trust business of the Warrant Agent,
provided that it shall be qualified as aforesaid, shall be the successor
Warrant Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
18
<PAGE>
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. (a) This Agreement and the Global Warrant
---------
Certificate may be amended by the Company and the Warrant Agent, without the
consent of the Holder of the Global Warrant Certificate or the Holders of any
Warrants, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective or inconsistent provision contained herein or
therein, for the purpose of appointing a successor Depository in accordance
with paragraph (d) of Section 1.01, for the purpose of issuing Warrants in
definitive form in accordance with paragraph (a) of Section 1.01, or in any
other manner which the Company may deem to be necessary or desirable and
which will not materially and adversely affect the interests of the Holders
of the Warrants. Notwithstanding anything in this Section 6.01 to the
contrary, this Agreement may not be amended to provide for the authentication
by the Warrant Agent of one or more Global Warrant Certificates evidencing in
excess of 1,250,000 Warrants originally issued unless and until the Warrant
Agent has received notice from the American Stock Exchange or any successor
national securities exchange that additional Warrants in excess of 1,250,000
Warrants originally issued have been approved for listing on such exchange.
(b) The Company and the Warrant Agent may modify or amend this Agreement
and the Global Warrant Certificate, with the consent of the Holders holding
not fewer than a majority in number of the then outstanding Warrants affected
by such modification or amendment, for any purpose; provided, however, that
no such modification or amendment that changes the DEM Spot Rate or JPY Spot
Rate so as to adversely affect the Holders, shortens the period of time
remaining to the Expiration Date or otherwise materially and adversely
affects the exercise rights of the Holders or reduces the percentage of the
number of outstanding Warrants the consent of whose Holders is required for
modification or amendment of this Agreement or the Global Warrant Certificate
may be made without the consent of each Holder affected thereby.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If
----------------------------------------------------
the Warrant Agent shall receive any notice or demand addressed to the Company
by any Holder pursuant to the provisions of the Global Warrant Certificate,
the Warrant Agent shall promptly forward such notice or demand to the
Company.
19
<PAGE>
SECTION 6.03. Addresses for Notices. Any communications from the Company
---------------------
to the Warrant Agent with respect to this Agreement shall be addressed to
Citibank, N.A., 120 Wall Street, New York, NY 10043, (facsimile: (212) 480-
1613) (telephone: (212) 412-6209), Attention: Corporate Trust Services; any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Merrill Lynch & Co., Inc., South Tower, World
Financial Center, 225 Liberty Street, New York, NY 10080-6105 (facsimile:
(212) 236-6004) (telephone: (212) 236-6153), Attention: Treasurer (first
copy) and Merrill Lynch & Co., Inc., 100 Church Street, 12th Floor, New York,
NY 10007 (facsimile: (212) 602-8436) (telephone: (212) 602-8135), Attention:
Corporate Secretary (second copy); and any communications from the Warrant
Agent to the Calculation Agent with respect to this Agreement shall be
addressed to Merrill Lynch International Bank, Ropemaker Place, 25 Ropemaker
Street, London EC2Y 9LY, Attention: Sunil Beri (facsimile: 44-171-867-2229
(telephone: 44-171-867-3690 (or such other address as shall be specified in
writing by the Warrant Agent, the Company or the Calculation Agent,
respectively).
SECTION 6.04. Notices to Holders. The Company or the Warrant Agent may
------------------
cause to have notice given to the beneficial owners of interests in the
Global Warrant Certificate by providing the Depository with a form of notice
to be distributed by the Depository to Depository Participants in accordance
with the customs and practices of the Depository.
SECTION 6.05. Applicable Law. The validity, interpretation and
--------------
performance of this Agreement and each Warrant issued hereunder and of the
respective terms and provisions thereof shall be governed by the laws of the
State of New York applicable to agreements made and to be performed in such
State.
SECTION 6.06. Obtaining of Governmental Approvals. The Company will from
-----------------------------------
time to time take all actions which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental
agencies and authorities and the American Stock Exchange and securities acts
filings under United States Federal and State laws, which may be or become
requisite in connection with the issuance, sale, trading, transfer or
delivery of the Warrants, the Global Warrant Certificate and the exercise of
the Warrants.
SECTION 6.07. Persons Having Rights Under Warrant Agreement. Nothing in
---------------------------------------------
this Agreement expressed or implied and nothing that may be inferred from any
of the provisions hereof is intended, or shall be construed, to confer upon,
or give to, any person or corporation other than the Company, the Warrant
Agent, and the Holders any right, remedy or claim under or by reason of this
Agreement or of any covenant, condition, stipulation, promise or agreement
hereof; and all covenants, conditions, stipulations,
20
<PAGE>
promises and agreements in this Agreement contained shall be for the sole and
exclusive benefit of the Company and the Warrant Agent and their successors
and of the registered Holders of the Warrant Certificate.
SECTION 6.08. Headings. The descriptive headings of the several Articles
--------
and Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall be
-----------------------
available at all reasonable times at the principal corporate trust office of
the Warrant Agent, for inspection by the Depository Participants and the
Holders.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
MERRILL LYNCH & CO., INC.
By _________________________
Theresa Lang
Treasurer
CITIBANK, N.A.
By _________________________
Name:
Title:
21
<PAGE>
EXHIBIT A
THIS WARRANT IS A GLOBAL WARRANT WITHIN THE MEANING OF THE WARRANT AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
WARRANTS IN CERTIFICATED FORM, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO A
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS WARRANT IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY WARRANT ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
No. CUSIP No. 590188 __ __
GLOBAL WARRANT CERTIFICATE
representing
up to 1,250,000 Greater of U.S. Dollar/Deutsche Mark--U.S.
Dollar/Japanese Yen Put Currency Warrants, Expiring May 15, 1997
MERRILL LYNCH & CO., INC.
This certifies that CEDE & Co. or registered assigns is the registered
Holder of 1,250,000 Greater of U.S. Dollar/Deutsche Mark--U.S.
Dollar/Japanese Yen Put Currency Warrants, Expiring May 15, 1997 (the
"Warrants") or such lesser amount as is indicated in the records of Citibank,
N.A., as Warrant Agent. Each Warrant entitles the beneficial owner thereof,
subject to the provisions contained herein and in the Warrant Agreement
referred to below, to receive from Merrill Lynch & Co., Inc. (the "Company")
the cash settlement value, if positive, (the "Cash Settlement Value")
specified in Section 2.02(d) of the Warrant Agreement. The Holder hereof
will not be entitled to any interest on any Cash Settlement Value to which it
is otherwise entitled (unless the Company shall default in the payment of
such Cash Settlement Value). The Warrants shall be automatically exercised
on the fifth New York Business Day immediately preceding May 15, 1997 (the
"Expiration Date") or, if an Early Expiration Date occurs, the New York
Business Day immediately preceding the Early Expiration Date (the "Exercise
Date") as further described below and as provided in the Warrant Agreement.
The term "New York
1
<PAGE>
EXHIBIT A
---------
Page 2
Business Day", as used herein, means any day other than a Saturday or Sunday
or a day on which commercial banks in The City of New York are required or
authorized by law or executive order to be closed.
This Global Warrant Certificate is issued under and in accordance with
the Warrant Agreement, dated as of May 23, 1995 (the "Warrant Agreement"),
between the Company and the Warrant Agent, and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions all beneficial owners of the Warrants evidenced by this Global
Warrant Certificate and the Holder of this Global Warrant Certificate consent
by acceptance hereof by the Depository (as defined below). Copies of the
Warrant Agreement are on file at the Warrant Agent Office of the Warrant
Agent in The City of New York. Except as provided in the Warrant Agreement,
beneficial owners of the Warrants evidenced by this Global Warrant
Certificate will not be entitled to receive definitive Warrants evidencing
their Warrants. Warrants will be held through a depository selected by the
Company which initially is The Depository Trust Company (the "Depository",
which term, as used herein, includes any successor depository selected by the
Company as further provided in the Warrant Agreement).
Capitalized terms included herein but not defined herein have the same
meaning assigned thereto in the Warrant Agreement.
In the event that the Warrants are delisted from, or permanently
suspended from trading on, the American Stock Exchange and the Warrants are
not simultaneously accepted for trading pursuant to the rules of another
national securities exchange, or if certain events in bankruptcy, insolvency
or reorganization involving the Company specified in the Warrant Agreement
occur, the Warrants shall expire on the date such delisting or trading
suspension becomes effective or such event in bankruptcy, insolvency or
reorganization occurs (in either case, an "Early Expiration Date") and the
Warrants shall be automatically exercised on the New York Business Day
immediately preceding the Early Expiration Date. The Cash Settlement Value,
if any, of such Warrants will be paid on the fifth New York Business Day
following the Early Expiration Date. The Company will advise the Warrant
Agent of the date of any expected delisting or permanent suspension of
trading of the Warrants as soon as is practicable and will immediately inform
the Warrant Agent after the Company has received notice that such delisting
or suspension has occurred and that the Warrants are not accepted for listing
on another national securities exchange, but in no event will such notice be
given to the Warrant Agent later than
2
<PAGE>
EXHIBIT A
---------
Page 3
5:00 P.M., New York City time, on the second New York Business Day preceding
the Early Expiration Date.
The Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may deem and treat the registered owner hereof as the absolute
owner of the Warrants evidenced hereby (notwithstanding any notation of
ownership or other writing hereon) for any purpose and as the person entitled
to exercise the rights represented by the Warrants evidenced hereby, and
neither the Company nor the Warrant Agent nor any agent of the Company or the
Warrant Agent shall be affected by any notice to the contrary, subject to
certain provisions of the Warrant Agreement, except that the Company and the
Warrant Agent shall be entitled to rely on and act pursuant to instructions
of Depository Participants as contemplated herein and in the Warrant
Agreement.
Subject to the terms of the Warrant Agreement and certain restrictions
set forth above, upon due presentment for registration of transfer of this
Global Warrant Certificate at the Warrant Agent Office of the Warrant Agent
in New York City, the Company shall execute and the Warrant Agent shall
authenticate and deliver in the name of the designated transferee a new
Global Warrant Certificate of like tenor and evidencing a like number of
Warrants as evidenced by this Global Warrant Certificate at the time of such
registration of transfer, which shall be issued to the designated transferee
in exchange for this Global Warrant Certificate, subject to the limitations
provided in the Warrant Agreement, without charge.
This Global Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
3
<PAGE>
EXHIBIT A
---------
Page 4
This Global Warrant Certificate shall not be valid or obligatory for any
purpose until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Date:
Merrill Lynch & Co., Inc.
By _________________________
Treasurer
[SEAL] Attest _____________________
Secretary
This is one of the Warrants
referred to in the within-mentioned
Warrant Agreement:
CITIBANK, N.A. as Warrant Agent
By __________________________
Authorized Officer
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EXHIBIT A
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Page 5
Form of Transfer of Global Warrant Certificate
Citibank, N.A., as Warrant Agent
Corporate Trust Services
111 Wall Street
New York, New York 10043
, the registered Holder of the Global Warrant Certificate
representing all Merrill Lynch & Co., Inc. Greater of U.S. Dollar/Deutsche
Mark--U.S. Dollar/Japanese Yen Put Currency Warrants, Expiring May 15, 1997,
hereby requests the transfer of such Global Warrant Certificate to
Dated:
By: [NAME OF REGISTERED HOLDER]
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Exhibit (5) & (23)
May 23, 1995
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281-1220
Gentlemen:
As your counsel, we have examined a copy of the Restated Certificate of
Incorporation, as amended, of Merrill Lynch & Co., Inc. (hereinafter called
the "Company"), certified by the Secretary of State of the State of Delaware.
We are familiar with the corporate proceedings had in connection with the
proposed issuance and sale by the Company to the Underwriter named in the
Terms Agreement referred to below, pursuant to an Underwriting Agreement
dated March 22, 1994 (the "Underwriting Agreement"), among the Company,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("MLPF&S") and the other firms named therein, as supplemented by the Terms
Agreement dated May 16, 1995 (the "Terms Agreement") between the Company and
MLPF&S, of 1,250,000 of the Company's Greater of U.S.
<PAGE>
Dollar/Deutsche Mark--U.S. Dollar/Japanese Yen Put Currency Warrants,
Expiring May 15, 1997 (the "Warrants"). We have also examined a copy of the
Warrant Agreement between the Company and Citibank, N.A., as Warrant Agent,
dated as of May 23, 1995 (the "Warrant Agreement"), and the Company's
Registration Statement on Form S-3 (File No. 33-52647) relating to the
Warrants (the "Registration Statement").
Based upon the foregoing and upon such further investigation as we
deemed relevant in the premises, we are of the opinion that:
1. The Company has been duly incorporated under the laws of the State
of Delaware.
2. The Warrants have been duly and validly authorized by the Company
and when the Warrants have been duly executed and authenticated in accordance
with the terms of the Warrant Agreement and delivered against payment
therefor as set forth in the Underwriting Agreement, as supplemented by the
Terms Agreement, the Warrants will constitute valid and legally binding
obligations of the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles.
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We consent to the filing of this opinion as an exhibit to the
Registration Statement and as an exhibit to the Current Report of the Company
on Form 8-K dated May 23, 1995.
Very truly yours,
/s/ Brown & Wood
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