As filed with the Securities and Exchange Commission on August 8, 1996
Registration No. 333-
================================================================================
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 (I.R.S. Employer Identification No.)
of incorporation or organization)
World Financial Center
North Tower
New York, New York 10281-1334
(212) 449-1000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
____________
ROSEMARY T. BERKERY, ESQ.
Associate General Counsel
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281-1334
(212) 449-6990
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
____________
Merrill Lynch & Co., Inc. 1997 Deferred Compensation Plan
for a Select Group of Eligible Employees
(Full title of the plan)
CALCULATION OF REGISTRATION FEE
<TABLE><CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Title of securities Amount to Proposed maximum offering Proposed maximum aggregate Amount of
to be registered be registered price per obligation offering price(2) registration fee
=================================================================================================================
<S> <C> <C> <C> <C>
Deferred Compensation
Obligations(1) $100,000,000 100% $100,000,000 $34,482.76
=================================================================================================================
</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. 1997 Deferred Compensation
Plan 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. Such documents and the documents
incorporated by reference herein pursuant to Item 3 of Part II hereof, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended.
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 29, 1995, Quarterly Report on Form 10-Q for the
quarter ended March 29, 1996, and Current Reports on Form 8-K dated January 17,
1996, January 22, 1996, February 7, 1996, February 29, 1996, March 1, 1996,
March 12, 1996, March 18, 1996, April 1, 1996, April 15, 1996, May 1, 1996, May
13, 1996, May 15, 1996, May 28, 1996 (as amended by Form 8-K/A filed June 7,
1996), July 9, 1996, July 16, 1996, and July 31, 1996, 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 hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Under the Merrill Lynch & Co., Inc. 1997 Deferred Compensation Plan for a
Select Group of Eligible Employees ("the Plan"), the Company will provide
eligible employees the opportunity to enter into agreements for the deferral of
a specified percentage of their cash compensation, exclusive of base salary.
The obligations of the Company under such agreements (the "Obligations") will be
unsecured general obligations of the Company to pay the deferred compensation in
the future in accordance with the terms of the Plan, and will 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 Plan), 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 to be deferred by each participating employee
(each a "Participant") will be determined in accordance with the Plan based on
elections by each Participant. Each Obligation will be payable on a date
selected by each Participant in accordance with the terms of the Plan. The
Obligations will be indexed to one or more Benchmark Return Options individually
chosen by each Participant from a list of investment media.
2
<PAGE>
Each Participant's Obligation will be adjusted to reflect the investment
experience, whether positive or negative, of the Selected Benchmark Return
Options, including any appreciation or depreciation. The Obligations will be
denominated and be 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 Plan, 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 each Participant, at the option of
the Company or though operation of a mandatory or optional sinking fund or
analogous provision. However, the Company reserves the right to amend or
terminate the Plan at any time, except that no such amendment or termination
shall adversely affect the right of the Participant to the balance of his or her
deferred account 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 default.
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 Plan. 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.
3
<PAGE>
ITEM 8. EXHIBITS.
5 Opinion of Brown & Wood LLP.
15 Letter re: unaudited interim financial information.
23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5).
23(b) Consent of Deloitte & Touche LLP.
24 Power of Attorney (included on page 5).
ITEM 9. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(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 registrants 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 the purpose 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 be 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 hereof.
(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 a
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 and State of New York on the 8th day of
August, 1996.
MERRILL LYNCH & CO., INC.
By /s/ DANIEL P. TULLY
-----------------------------------
Daniel P. Tully
(Chairman of the Board and
Chief Executive Officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Daniel P. Tully, David H. Komansky, Joseph T.
Willett and Stephen L. Hammerman, 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 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 8th day of August, 1996.
Signature Title
--------- -----
/s/ DANIEL P. TULLY Chairman of the Board, Chief
- -------------------------------
(Daniel P. Tully) Executive Officer and Director
/s/ DAVID H. KOMANSKY President, Chief Operating
- -------------------------------
(David H. Komansky) Officer and Director
/s/ JOSEPH T. WILLETT Senior Vice President and Chief
- -------------------------------
(Joseph T. Willett) Financial Officer (Principal Financial
Officer)
/s/ MICHAEL J. CASTELLANO Senior Vice President and Controller
- -------------------------------
(Michael J. Castellano) (Principal Accounting Officer)
5
<PAGE>
Signature Title
--------- -----
/s/ WILLIAM O. BOURKE Director
- -------------------------------
(William O. Bourke)
/s/ W.H. CLARK Director
- -------------------------------
(W.H. Clark)
/s/ JILL K. CONWAY Director
- -------------------------------
(Jill K. Conway)
/s/ STEPHEN L. HAMMERMAN Director
- -------------------------------
(Stephen L. Hammerman)
/s/ EARLE H. HARBISON, JR. Director
- -------------------------------
(Earle H. Harbison, Jr.)
/s/ GEORGE B. HARVEY Director
- -------------------------------
(George B. Harvey)
/s/ WILLIAM R. HOOVER Director
- -------------------------------
(William R. Hoover)
/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/ WILLIAM L. WEISS Director
- -------------------------------
(William L. Weiss)
6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------- ----
5 Opinion of Brown & Wood LLP.
15 Letter re: unaudited interim financial information.
23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5).
23(b) Consent of Deloitte & Touche LLP.
24 Power of Attorney (included on page 5).
7
EXHIBIT 5
LETTERHEAD OF BROWN & WOOD LLP
August 8, 1996
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 August 8,
1996 under the Securities Act of 1933, as amended, of a Registration
Statement on Form S-8 (the "Registration Statement") for the purpose of
registering $100,000,000 of Deferred Compensation Obligations which represent
unsecured obligations of the Company to pay deferred compensation in the
future in accordance with the terms of the Merrill Lynch & Co., Inc. 1997
Deferred Compensation Plan for a Select Group of Eligible Employees (the
"Plan"). In such capacity, we have examined the Restated Certificate of
Incorporation and By-Laws of the Company, the Plan, and such other documents
of the Company as we have deemed necessary or appropriate for the purpose 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 Plan, the Deferred
Compensation Obligations will be valid and binding there of 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 LLP
Exhibit 15
August 8, 1996
Merrill Lynch & Co., Inc.
World Financial Center
North Tower, 31st Floor
New York, NY 10281
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 as of March 29, 1996 and for the three-month periods ended
March 29, 1996 and March 31, 1995 as indicated in our report dated May 10,
1996, because we did not perform an audit, we expressed no opinion on that
information.
We are aware that such report referred to above, which is included in your
Quarterly Report on Form 10-Q for the quarter ended March 29, 1996, is
incorporated by reference in this Registration Statement.
We are also aware that the aforementioned report, pursuant to Rule 436(c)
under the Securities Act of 1993, is not considered a part of the
Registration Statement prepared or certified by an accountant or a report
prepared or certified by an accountant within the meaning of Section 7 and 11
of that Act.
/s/ Deloitte & Touche LLP
New York, New York
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 our reports dated
February 26, 1996, appearing in and incorporated by reference in the Annual
Report on Form 10-K of the Company for the year ended December 29, 1995 and
to the reference to us 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 our report dated
February 26, 1996, appearing as Exhibit 99(ii) in the Company's Current
Report on Form 8-K dated March 12, 1996, 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 29, 1995
included in the 1995 Annual Report to Stockholders of the Company.
/s/ Deloitte & Touche LLP
August 8, 1996
New York, New York
