As filed with the Securities and Exchange Commission on June 27, 1996
REGISTRATION NO. 333-02275
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-3
AMENDMENT NO. 1 TO
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
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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)
Approximate date of commencement of the proposed sale to the public: From
time to time after the effective date of this Registration Statement, in
connection with the exercise of the stock options described herein.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 426(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
_______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration number of the earlier effective registration statement for
the same offering. [ ] ________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
TITLE OF AMOUNT TO PROPOSED PROPOSED MAXIMUM AMOUNT OF
SECURITIES BE REGISTERED MAXIMUM AGGREGATE REGISTRATION
TO BE REGISTERED OFFERING PRICE OFFERING PRICE FEE(2)
PER SHARE
- --------------------------------------------------------------------------------
Common Stock,
par value $1.33-
1/3 per share,
(including
Preferred Stock
Purchase Rights)
(1)................ 1,000,000 $61.875 $61,875,000 $21,337*
- --------------------------------------------------------------------------------
*Previously paid.
(1) Prior to the occurrence of certain events, the Preferred Stock
Purchase Rights will not be evidenced separately from the Common Stock;
value attributable to such Rights, if any, is reflected in the market price
of the Common Stock.
(2) Calculated in accordance with Rule 457(c).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
PROSPECTUS
- ----------
1,000,000 SHARES
MERRILL LYNCH & CO., INC.
COMMON STOCK
_____________
This prospectus relates to up to 1,000,000 shares of Common Stock, par
value $1.33-1/3 share ("Common Stock"), of Merrill Lynch & Co., Inc. (the
"Company"), which may be offered and sold to immediate family members of
certain Participants in the Merrill Lynch & Co., Inc. Long-Term Incentive
Compensation Plan (the "Plan"), pursuant to nonqualified stock options
("Stock Options") granted to such Participants under the Plan, some or all
of which may be transferred by Participants to immediate family members in
accordance with the Plan and the grant documents specifying the terms and
conditions of such Stock Options. This prospectus also relates to the
offer and sale of Common Stock pursuant to such Stock Options to the
beneficiaries of such immediate family members, or the executors,
administrators or beneficiaries of their estates, or other persons duly
authorized by law to administer the estate or assets of such persons.
_____________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_____________
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND IF GIVEN
OR MADE SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THESE SECURITIES IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION.
_____________
THIS PROSPECTUS SHOULD BE RETAINED FOR FUTURE REFERENCE.
_____________
The date of this Prospectus is June 27, 1996.
<PAGE>
TABLE OF CONTENTS
Page
----
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents by Reference . . . . . . . . . . . . 2
Merrill Lynch & Co., Inc. . . . . . . . . . . . . . . . . . . . . . . . 3
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Description of Common Stock . . . . . . . . . . . . . . . . . . . . . . 3
Description of the Plan and the Stock Options . . . . . . . . . . . . 4
Federal Income Tax Consequences . . . . . . . . . . . . . . . . . . . 7
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Legal Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith,
files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements, and other
information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, as well as the following Regional
Offices of the Commission: Midwest Regional Office, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2551 and Northeast Regional
Office, Seven World Trade Center, New York, New York 10048. Copies of such
material can also be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. Reports, proxy statements, and other information concerning the
Company may also be inspected at the offices of the New York Stock
Exchange, the American Stock Exchange, the Chicago Stock Exchange, and the
Pacific Stock Exchange. The Commission maintains a Web site at
http://www.sec.gov containing reports, proxy and information statements and
other information regarding registrants, including the Company, that file
electronically with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report 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, and May 28, 1996 (as amended by Form 8-K/A filed June 7,
1996) filed pursuant to Section 13 of the Exchange Act, are incorporated by
reference herein.
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 hereunder
shall be deemed to be incorporated by reference herein 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 hereof 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.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON
(WITHOUT EXHIBITS OTHER THAN EXHIBITS SPECIFICALLY INCORPORATED BY
REFERENCE) OF ANY OR ALL OF THE DOCUMENTS INCORPORATED BY REFERENCE IN THIS
PROSPECTUS. REQUESTS FOR SUCH COPIES MAY BE DIRECTED TO MR. GREGORY T.
RUSSO, SECRETARY, MERRILL LYNCH & CO., INC., 100 CHURCH STREET, 12TH FLOOR,
NEW YORK, NEW YORK 10080-6512 (TELEPHONE NUMBER: (212) 602-8435).
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MERRILL LYNCH & CO., INC.
Merrill Lynch & Co., Inc. is a holding company that, through its
subsidiaries and affiliates, provides investment, financing, insurance, and
related services on a global basis. Its principal subsidiary, Merrill
Lynch, Pierce, Fenner & Smith Incorporated ("MLPF&S"), one of the largest
securities firms in the world, is a leading broker in securities, options
contracts and commodity and financial futures contracts; a leading dealer
in options and in corporate and municipal securities; a leading investment
banking firm that provides advice to, and raises capital for, its clients;
and an underwriter of selected insurance products. Other subsidiaries
provide financial services on a global basis similar to those of MLPF&S and
are engaged in such other activities as international banking, lending, and
providing other investment and financing services. Merrill Lynch
International Incorporated, through subsidiaries and affiliates, provides
investment, financing, and related services outside the United States and
Canada. Merrill Lynch Asset Management, LP and Fund Asset Management, LP
together constitute one of the largest mutual fund managers in the world
and provide investment advisory services. Merrill Lynch Government
Securities Inc. is a primary dealer in obligations issued or guaranteed by
the U.S. Government and its agencies. Merrill Lynch Capital Services,
Inc., Merrill Lynch Derivative Products, Inc., and Merrill Lynch Capital
Markets PLC are the Company's primary derivative product dealers and enter
into interest rate and currency swaps and other derivative transactions as
intermediaries and as principals. The Company's insurance underwriting
operations consist of the underwriting of life insurance and annuity
products. Banking, trust, and mortgage lending operations conducted
through subsidiaries of the Company include issuing certificates of
deposit, offering money market deposit accounts, making secured loans, and
providing foreign exchange trading facilities and other related services.
The principal executive office of the Company is located at World
Financial Center, North Tower, 250 Vesey Street, New York, New York 10281;
its telephone number is (212) 449-1000.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the
Common Stock offered hereby for general corporate purposes.
DESCRIPTION OF COMMON STOCK
The authorized capital stock of the Company consists of 500,000,000
shares of Common Stock, par value $1.33-1/3 per share, and 25,000,000
shares of preferred stock, par value $1.00 per share, issuable in series
("Preferred Stock"). The holders of shares of Common Stock are entitled to
one vote for each share held and each share of Common Stock is entitled to
participate equally in dividends out of funds legally available therefor,
as and when declared by the Board of Directors, and in the distribution of
assets in the event of liquidation. The shares of Common Stock have no
preemptive or conversion rights, redemption provisions or sinking fund
provisions. The outstanding shares of Common Stock are, and the shares
offered hereby will be, duly and validly issued, fully paid and
nonassessable. Each share is eligible to participate under the Rights
Agreement referenced below and, to the extent specified therein, to
purchase certain securities upon the occurrence of certain events specified
in the Rights Agreement.
The Board of Directors of the Company, without further action by
stockholders, has the authority, to issue shares of Preferred Stock from
time to time in one or more series and to fix the powers (including voting
power), designations, preferences as to dividends and liquidation, and
relative, participating, optional, or other special rights and the
qualifications, limitations, or restrictions thereof. As of June 15, 1996,
there were 17,000,000 Depositary Shares issued each representing a one-four
hundredth interest in a share of the Company's 9% Cumulative Preferred
Stock, Series A (the "9% Preferred Stock"). The 9% Preferred Stock is a
single series consisting of 42,500 shares with an aggregate liquidation
preference of $425,000,000. As of June 15, 1996, there were 42,500 shares
of 9% Preferred Stock outstanding. As of June 15, 1996, there were 3,000
shares of the Company's Remarketed Preferred StockSM, Series C (the "RP(R)
Stock") issued, of which 1,938 were outstanding. From time to time, MLPF&S
may occasionally acquire a temporary position in the Depositary Shares and
shares of RP Stock. At June 15, 1996, the Depositary Shares and shares of
RP Stock held by MLPF&S for the purpose of resale was not material.
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The 9% Preferred Stock and RP Stock have dividend and liquidation preference
over the Common Stock and over the Series A Junior Preferred Stock issuable
pursuant to a Rights Agreement dated as of December 16, 1987 between ML & Co.
and Chemical Bank (successor by merger to Manufacturers Hanover Trust Company).
DESCRIPTION OF THE PLAN AND THE STOCK OPTIONS
THE PLAN
A copy of the Plan is filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. The following summary of certain provisions
of the Plan does not purport to be complete and is subject to, and qualified in
its entirety by reference to, all of the provisions of the Plan, including the
definitions therein of certain terms.
The purposes of the Plan are to enhance the growth and profitability of the
Company and its subsidiaries by providing the incentive of long-term rewards to
key employees, to attract and retain employees of outstanding competence and
ability, to encourage long-term stock ownership by employees, and to further
align the interests of such employees with those of stockholders by providing
them with the incentive of long-term rewards through an opportunity for capital
accumulation in the form of a proprietary interest in the Company. The Plan is
not a pension, profit-sharing, or stock bonus plan designed to qualify under
Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code"), or
an employee benefit plan subject to any of the provisions of the Employee
Retirement Income Security Act of 1974 (other than a one-time reporting
requirement).
The Plan was adopted by the Board of Directors of the Company on February
27, 1989 and was approved by the stockholders of the Company on April 28, 1989.
On April 22, 1991, the stockholders of the Company approved an increase, to
40,000,000, in the number of shares authorized to be distributed under the Plan.
On January 27, 1992, the Board of Directors of the Company amended the Plan to
limit to 40,000,000 the total number of units payable in cash under the Plan.
On October 11, 1993, the Board of Directors of the Company declared a two-for-
one stock split, effected in the form of a 100% stock dividend, payable on
November 24, 1993 to the holders of record of shares of Common Stock at the
close of business on October 22, 1993. Therefore, total authorization pursuant
to the Plan is 80,000,000 shares of Common Stock and 80,000,000 units payable in
cash. As of December 29, 1995, 18,265,877 shares were available for
distribution under the Plan (net of shares reserved for issuance upon the
exercise of outstanding Stock Options), and unexercised Stock Options to
purchase 30,075,851 shares of Common Stock were outstanding under the Plan.
The Plan provides for grants of "Performance Shares," "Performance Units,"
"Restricted Shares," "Restricted Units," "Stock Options," "Stock Appreciation
Rights," and "Other ML & Co. Securities" to eligible employees as the Management
Development and Compensation Committee of the Board of Directors of the Company
(the "Committee") may determine. The Committee determines, after receiving the
recommendations of the management, the employees to whom grants will be made,
when such grants will be made, the size of such grants, and other terms of
grants.
The Plan is administered by the Committee, which is constituted to meet the
requirements of Rule 16b-3 promulgated under the Exchange Act. The Committee
members serve at the pleasure of the Company's Board of Directors. They
presently are Jill K. Conway, who chairs the Committee, Earle H. Harbison, Jr.,
Robert P. Luciano, John J. Phelan, Jr., and William L. Weiss, none of whom is
employed by the Company. The Committee's address is c/o Corporate Secretary,
Merrill Lynch & Co., Inc., 100 Church Street, 12th Floor, New York, New York
10080-6512. In addition to the powers mentioned above, the Committee has the
power to interpret the Plan and to prescribe rules and regulations relating
thereto. Copies of the Plan and additional information about the Plan and its
administrators may be obtained from Linda Teufel, Executive Compensation,
Merrill Lynch & Co., Inc., North Tower, World Financial Center, New York, New
York 10281-1331 (telephone no.: (212) 449-7031).
The Company's Board of Directors or the Committee may modify, amend, or
terminate the Plan at any time, except that, to the extent then required by
applicable law, rule, or regulation, approval of the holders of a majority of
the shares of Common Stock represented in person or by proxy at a meeting of
stockholders will be required to increase the maximum number of shares of Common
Stock available for distribution under the Plan (other than increases due to an
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<PAGE>
adjustment in accordance with the Plan). No amendment, modification or
termination shall adversely affect the rights of a Participant or Stock
Option Transferee (as defined below) under a grant previously made to him
or her without his or her consent.
THE STOCK OPTIONS
GENERAL
As stated above, the Plan provides for the grant of Nonqualified Stock
Options to purchase shares of Common Stock. At the time of grant, the
Committee establishes the exercise price (which may not be less than 50% of
the Fair Market Value of the underlying Common Stock on the date of grant),
the expiration date (which may not be more than 10 years from the date of
grant), and the times and installments in which the Stock Options may be
exercised.
As of the date of this Prospectus, all Stock Options granted under the
Plan have had expiration dates ten-years from the date of grant with an
exercise price equal to the Fair Market Value of the Common Stock on the
date of grant. All such grants have provided that the Stock Options become
exercisable in equal annual installments over the four- or five-year period
following the date of grant.
If any change shall occur in or affect shares of Common Stock or Stock
Options on account of a merger, reorganization, stock dividend, stock split
or similar changes, the Committee shall make adjustments in, among other
things, (i) the maximum number of shares of Common Stock available for
distribution under the Plan; (ii) the number of shares reserved for
outstanding Stock Option grants; and (iii) any other terms or provisions of
outstanding grants, in order to preserve the full benefits of such grants.
TRANSFERABILITY
The Plan provides that Stock Options are generally not transferable by
a Participant except by will or the laws of descent and distribution and
are exercisable during the Participant's lifetime only by the Participant.
Notwithstanding the foregoing, under certain circumstances, the Committee
may grant (or sanction by amending an existing grant) Stock Options that
may be transferred by the Participant during his or her lifetime to any
member of his or her immediate family or a trust established for the
exclusive benefit of one or more members of his or her immediate family in
order to permit Participants who receive transferable grants to make a gift
of Stock Options to such persons for estate planning purposes. The term
"immediate family" is defined for such purpose as children, stepchildren
and grandchildren, including relationships arising from legal adoption.
This Prospectus relates to up to 1,000,000 shares of Common Stock of
the Company which may be offered and sold to immediate family members of
Participants in the Plan pursuant to Stock Options that may be transferred
to such immediate family members as described in the immediately preceding
paragraph. This Prospectus also relates to the offer and sale of Common
Stock pursuant to such Stock Options to the beneficiaries of such immediate
family members, or the executors, administrators or beneficiaries of their
estates, or other persons duly authorized by law to administer the estate
or assets of such persons. As used herein, "Stock Option Transferee"
refers to an immediate family member of a Plan Participant (or such
person's beneficiary, estate or other legal representative), or a trust for
the benefit of one or more immediate family members, that has received
Stock Options in a valid transfer, and "Participant Transferor" refers to
the Plan Participant who transferred Stock Options held by a particular
Stock Option Transferee.
Upon transfer to a Stock Option Transferee, a Stock Option continues
to be governed by and subject to the terms and limitations of the Plan and
the relevant grant, and the Stock Option Transferee is entitled to the same
rights as the Participant Transferor thereunder, as if no transfer had
taken place. Accordingly, the rights of the Stock Option Transferee are
subject to the terms and limitations of the original grant to the
Participant Transferor, including provisions relating to expiration date,
exercisability, exercise price and forfeiture. For information regarding
the terms of a particular Stock Option grant, Stock Option Transferees may
contact Linda Teufel, Executive Compensation, Merrill Lynch & Co., Inc.,
North Tower, World Financial Center, New York, New York 10281-1331
(telephone no.: (212) 449-7031).
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Once a Stock Option has been transferred to a Stock Option Transferee,
it may not be subsequently transferred by the Stock Option Transferee
except by will or the laws of descent and distribution. A Stock Option
Transferee may designate in writing to the Company before his or her death
one or more beneficiaries to receive, in the event of his or her death, any
rights to which the Stock Option Transferee would be entitled under the
Plan. A Stock Option Transferee may also designate an alternate
beneficiary to receive payments if the primary beneficiary predeceases the
Stock Option Transferee. A beneficiary designation may be changed or
revoked in writing by the Stock Option Transferee at any time. Changes in
beneficiary designation should be sent (return receipt requested) to the
attention of the Secretary, Merrill Lynch & Co., Inc., 100 Church Street,
12th Floor, New York, New York 10080-6512.
EXERCISE OF STOCK OPTIONS BY STOCK OPTION TRANSFEREES
A Stock Option may be exercised by a Stock Option Transferee at any
time from the time first set by the Committee in the original grant to the
Participant Transferor until the close of business on the expiration date
of the Stock Option. Stock Options generally become exercisable in equal
annual installments over the four- or five-year period following the date
of grant. NOTWITHSTANDING THE FOREGOING, THE STOCK OPTION TRANSFEREE MAY
NOT EXERCISE A STOCK OPTION DURING THE 12-MONTH PERIOD FOLLOWING A HARDSHIP
WITHDRAWAL BY THE PARTICIPANT TRANSFEROR OF ELECTIVE 401(K) DEFERRALS AS
DEFINED IN THE MERRILL LYNCH & CO., INC. 401(K) SAVINGS & INVESTMENT PLAN.
The purchase price of the shares as to which Stock Options are
exercised shall be paid to the Company at the time of exercise (i) in cash,
(ii) by delivering freely transferable shares of Common Stock already owned
by the Stock Option Transferee having a total Fair Market Value on the day
prior to the date of exercise at least equal to the purchase price, (iii) a
combination of cash and shares of Common Stock equal in value to the
purchase price, or (iv) by such other means as the Committee may from time
to time determine.
Upon exercise of a Stock Option by a Stock Option Transferee, any
federal, state or local withholding taxes arising from the exercise are the
obligation of the Participant Transferor. The exercise will not be given
effect and the Stock Option Transferee will not be able to sell the
underlying shares until the Company receives confirmation that the
Participant Transferor's withholding obligations, where applicable, have
been satisfied. ACCORDINGLY, THE EXERCISE OF A STOCK OPTION BY A STOCK
OPTION TRANSFEREE IS NOT ENTIRELY WITHIN HIS OR HER CONTROL.
A Stock Option will be deemed exercised on the date the Merrill Lynch
Corporate Secretary's office has received a copy of the Stock Option
Exercise Form (by mail or facsimile transmission), completed in all
respects and signed by the Stock Option Transferee (accompanied by a check
and/or shares of Common Stock, where applicable). The Stock Option shares
will generally be transferred to the Stock Option transferee as of the day
following the date that (i) the above conditions have been met, (ii) the
funds and/or shares of Common Stock paid by the Stock Option Transferee in
satisfaction of the exercise price have been received by the Company free
and clear of all restrictions, and (iii) the Company has received
confirmation that the Participant Transferor's withholding obligations have
been satisfied.
Once the exercise is completed as described above, stock certificates
for the appropriate number of shares will be delivered to the Stock Option
Transferee or his or her estate or beneficiaries, or such shares shall be
credited to an MLPF&S brokerage account or otherwise delivered in such
manner as the person(s) entitled thereto may direct.
EFFECT OF TERMINATION OF EMPLOYMENT
Because Stock Options transferred to Stock Option Transferees continue
to be governed by the terms of the Plan and the original grant, their
exercisability continues to be affected by the Participant Transferor's
employment status.
If a Participant Transferor terminates employment with the Company for
any reason other than death, all outstanding unexercised Stock Options
granted to such Participant Transferor, including those held by a Stock
Option Transferee, expire on the date of termination of employment, unless
the Committee determines that an extended exercise period is warranted.
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Notwithstanding the foregoing, the Disability or Retirement (as such terms
are defined in the Plan) of a Participant Transferor shall not constitute
termination of employment for the purposes of the preceding paragraph, and
accordingly shall not result in the early expiration of outstanding Stock
Options, unless the Committee shall at any time determine that the Participant
Transferor is engaging in or assisting any business that the Committee
determines to be in competition with a business engaged in by the Company, in
which case the Participant Transferor shall be deemed to have terminated
employment.
If a Participant Transferor dies, all unexercised and unexpired Stock
Options granted to such Participant Transferor, including those held by a Stock
Option Transferee, shall become immediately exercisable at any time and from
time to time, but in no event after the expiration dates of such Stock Options.
CHANGE IN CONTROL PROVISIONS
The Plan provides that, in the event of a Change in Control of the Company
(as defined below) and a subsequent termination of the Participant Transferor's
employment without "Cause" or termination of employment by the Participant
Transferor for "Good Reason" as such terms are defined in the Plan, including a
change in responsibilities or a reduction in salary or benefits, payment will be
made for all unexpired Stock Options granted to that Participant Transferor,
including those held by a Stock Option Transferee, as if all conditions of
exercisability had been met. Payment will consist of a cash amount equal to,
for each underlying share of Common Stock, the excess of the Fair Market Value
of Common Stock on the day the Participant Transferor's employment is
terminated, or, if higher, the highest Fair Market Value during the 90-day
period preceding the Change in Control, over the exercise price for the relevant
Stock Option.
A "Change in Control" of the Company means: (i) any change in control of a
nature required to be reported under the Commission's proxy rules; (ii) the
acquisition by any person of the beneficial ownership of securities representing
30 percent or more of the combined voting power of the Company's then
outstanding voting securities; (iii) a change in the composition of the Board of
Directors such that, within a period of 2 consecutive years, individuals who at
the beginning of such 2-year period constituted the Board of Directors and any
new directors elected or nominated by at least three-fourths of the directors
who were either directors at the beginning of the 2-year period or were so
elected or nominated, cease for any reason to constitute at least a majority of
the Board of Directors; or (iv) the liquidation of all or substantially all of
the assets of the Company. In addition, if the Company enters into an
agreement, the consummation of which would result in a Change in Control, then a
Change in Control shall be deemed to have occurred with respect to any
Participant's termination without "Cause" or for "Good Reason" occurring after
the execution of such agreement and, if such agreement expires or is terminated
prior to consummation of the Change in Control, before such expiration or
termination.
FEDERAL INCOME TAX CONSEQUENCES
Prior to making a transfer of a Nonqualified Stock Option ("NSO"), a Participant
should consult with his or her personal tax advisors concerning the possible
Federal and state gift, estate, inheritance, and generation skipping tax
consequences of such a transfer, as well as state and local income tax
consequences which are not addressed herein. The discussion of federal income
tax consequences for the Participant and the Stock Option Transferee set forth
below assumes that the transfer of an NSO during a Participant's lifetime is
made by way of gift and no consideration is received therefor.
INCOME TAX CONSEQUENCES FOR PARTICIPANT TRANSFERORS
The Company has been advised by its tax counsel that a Participant who
transfers an NSO by way of gift to an immediate family member will not recognize
income at the time of the transfer. Instead, the Participant will recognize
ordinary compensation income in an amount equal to the excess of the fair market
value of the shares purchased (which will not necessarily be equal to the price
at which such shares are sold, even if sold on the same day as exercise) over
the exercise price at the time the Stock Option Transferee exercises the NSO.
(Special rules may apply to Participants subject to potential liability under
Section 16(b) of the Exchange Act, which may defer the recognition of
compensation income.) Moreover, such income will be subject to payment and
withholding of income and FICA taxes. Normally,
7
<PAGE>
Participants will have all withholding amounts deducted from a margin account
maintained by the Participant with the Company's affiliate, MLPF&S;
alternatively, Participants may satisfy the withholding obligation by writing a
check to the Company or by another method permitted by the Company. Subject to
certain limitations, the Company will generally be entitled to claim a Federal
income tax deduction at such time and in the same amount that the Participant
realizes ordinary income. In the event the Stock Option Transferee exercises
the NSO after the death of the Participant, any such ordinary income will be
recognized by the Stock Option Transferee.
INCOME TAX CONSEQUENCES FOR STOCK OPTION TRANSFEREE
Tax counsel has also advised that a Stock Option Transferee will not
recognize income at the time of the transfer of the NSO since a gift is
specifically excluded from gross income. As described in the preceding
paragraph, the Participant and not the Stock Option Transferee will recognize
ordinary compensation income at the time the Stock Option Transferee exercises
the NSO if the Participant is alive at the date the NSO is exercised. In the
event that the Stock Option Transferee exercises the NSO after the death of the
Participant, any such ordinary income will be recognized by the Stock Option
Transferee. Such income will not be subject to withholding of income tax but
will be subject to withholding of FICA tax unless such income is recognized
after the calendar year of the Participant's death. A Stock Option Transferee
who chooses to exercise an NSO in whole or in part by delivery of other Common
Stock already owned by the Stock Option Transferee should consult with tax
counsel concerning the tax consequences of such a transaction.
INCOME TAX CONSEQUENCES ON SUBSEQUENT SALE OF STOCK
If shares acquired upon exercise of an NSO are later sold or exchanged,
then the difference between the sales price and the Stock Option Transferee's
tax basis for the shares will generally be taxable as long-term or short-term
capital gain or loss (if the stock is a capital asset of the taxpayer) depending
upon whether the stock has been held for more than one year after the exercise
date. If the NSO is exercised by the Stock Option Transferee for cash while the
Participant is alive, the tax basis for the shares in the hands of the Stock
Option Transferee would be the exercise price for the NSO plus the amount of the
income recognized by the Participant Transferor at the time of exercise. If the
NSO is exercised for cash by the Stock Option Transferee after the Participant's
death, the tax basis for the Shares would be the exercise price for the NSO plus
the amount of income recognized upon exercise by the Stock Option Transferee.
Different basis rules will apply if the Stock Option Transferee delivered Common
Stock in payment of all or a portion of the exercise price of the NSO.
8
<PAGE>
EXPERTS
The consolidated financial statements and related financial statement
schedules of the Company and its subsidiaries included or incorporated by
reference in the Company's 1995 Annual Report on Form 10-K, and incorporated by
reference in this Prospectus, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports incorporated by reference
herein. 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, and incorporated by reference herein, have been
derived from consolidated financial statements audited by Deloitte & Touche
LLP, as set forth in their reports incorporated by reference herein. Such
consolidated financial statements and related financial statement schedules,
and such Selected Financial Data incorporated by reference in this Prospectus
and the Registration Statement of which this Prospectus is a part, have been
incorporated herein by reference in reliance upon such reports of Deloitte &
Touche LLP given upon their authority as experts in accounting and auditing.
With respect to unaudited interim financial information for the periods
included in the Quarterly Reports on Form 10-Q which are incorporated herein by
reference, Deloitte & Touche LLP have applied limited procedures in accordance
with professional standards for a review of such information. However, as
stated in their reports included in such Quarterly Reports on Form 10-Q and
incorporated by reference herein, they did not audit and they do not express an
opinion on such interim financial information. Accordingly, the degree of
reliance on their reports on such information should be restricted in light of
the limited nature of the review procedures applied. Deloitte & Touche LLP are
not subject to the liability provisions of Section 11 of the Securities Act of
1933, as amended (the "Securities Act") for any such report on unaudited interim
financial information because any such report is not a "report" or a "part" of
the registration statement prepared or certified by an accountant within the
meaning of Sections 7 and 11 of the Securities Act.
LEGAL OPINION
The legality of the shares of Common Stock offered hereby has been passed
upon by Brown & Wood, One World Trade Center, New York, New York 10048, counsel
for the Company. In addition, Brown & Wood has advised the Company concerning
certain Federal income tax consequences related to Stock Options under the Plan
and the transfer and exercise thereof.
9
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses in connection with the issuance and
distribution of the securities being registered. All the amounts shown are
estimates, except the registration fee.
Registration fee.............................. $21,337
Fees and expenses of accountants.............. 3,000
Fees and expenses of counsel ................. 5,000
Blue Sky fees and expenses.................... 7,500
Printing expenses............................. 1,000
Miscellaneous................................. 1,000
----------
Total......................................... 38,837
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, provides that under certain circumstances a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative, by reason of the fact that he 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 in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
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 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. 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.
II-1
<PAGE>
ITEM 16. EXHIBITS.
4(a) Restated Certificate of Incorporation of the Company, as amended
April 24, 1987 (incorporated by reference to Exhibit 3(i) to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 25, 1992 ("1992 10-K") (File No. 1-7182)).
4(b) Certificate of Amendment, dated April 29, 1993, of the Certificate
of Incorporation of the Company (incorporated by reference to
Exhibit 3(i) to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 26, 1993 ("First Quarter 1993 10-Q") (File
No. 1-7182)).
4(c) By-Laws of the Company, effective as of October 25, 1993
(incorporated by reference to Exhibit 3(i) to the Company's
Quarterly Report on Form 10-Q for the quarter ended September 24,
1993 (File No. 1-7182)).
4(d) Form of Rights Agreement, dated as of December 16, 1987, between
the Company and Chemical Bank (successor by merger to
Manufacturers Hanover Trust Company) (incorporated by reference to
Exhibit 3(iv) to the 1992 10-K).
4(e) Certificate of Designation of the Company establishing the rights,
preferences, privileges, qualifications, restrictions and
limitations relating to the Company's 9% Cumulative Preferred
Stock, Series A (incorporated by reference to Exhibit 4(iii) to
the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1994 (File No. 1-7182)).
4(f) Certificate of Designation of the Company establishing the rights,
preferences, privileges, qualifications, restrictions and
limitations relating to the Company's Remarketed Preferred Stock,
Series C (incorporated by reference to Exhibit 3(ii) to the First
Quarter 1993 10-Q).
4(g) Certificate of Designation of the Company establishing the rights,
preferences, privileges, qualifications, restrictions and
limitations relating to the Company's Series A Junior Preferred
Stock (incorporated by reference to Exhibit 3(f) to the Company's
Registration Statement on Form S-3 (File No. 33-19975)).
*5 Opinion of Brown & Wood as to legality and tax matters.
*23(a) Consent of Brown & Wood (included as part of Exhibit 5).
23(b) Consent of Deloitte & Touche LLP.
*24 Power of Attorney.
*99 Merrill Lynch & Co., Inc. Long-Term Incentive Compensation Plan,
as amended through April 16, 1996 (incorporated by reference
to Exhibit 10(i) to the Company's Quarterly Report on Form 10-
Q for the quarter ended March 29, 1996 (File No. 1-7182)).
* Previously filed.
ITEM 17. 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-3 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.
II-2
<PAGE>
(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 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 15 of this registration statement, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by the registrant is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-3
<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-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in The City of New York and
State of New York on the 27th day of June, 1996.
MERRILL LYNCH & CO., INC.
By /s/ JOSEPH T. WILLETT
------------------------------------
JOSEPH T. WILLETT
(Senior Vice President and
Chief Financial Officer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE 27TH DAY OF JUNE,
1996.
Signature Title
--------- -----
* Chairman of the Board, Chief
- ---------------------------------- Executive Officer and Director
(DANIEL P. TULLY)
* President, Chief Operating
- ---------------------------------- Officer and Director
(DAVID H. KOMANSKY)
* Senior Vice President and Chief
- ---------------------------------- Financial Officer (Principal
(JOSEPH T. WILLETT) Financial Officer)
* Senior Vice President and Controller
- ----------------------------------
(MICHAEL J. CASTELLANO)
* Director
- ----------------------------------
(WILLIAM O. BOURKE)
* Director
- ----------------------------------
(WORLEY H. CLARK)
II-4
<PAGE>
Signature Title
--------- -----
* Director
- ----------------------------------
(JILL K. CONWAY)
* Director
- ----------------------------------
(STEPHEN L. HAMMERMAN)
* Director
- ----------------------------------
(EARLE H. HARBISON, JR.)
* Director
- ----------------------------------
(GEORGE B. HARVEY)
* Director
- ----------------------------------
(WILLIAM R. HOOVER)
* Director
- ----------------------------------
(ROBERT P. LUCIANO)
* Director
- ----------------------------------
(AULANA L. PETERS)
* Director
- ----------------------------------
(JOHN J. PHELAN, JR.)
* Director
- ----------------------------------
(WILLIAM L. WEISS)
BY: /s/ JOSEPH T. WILLETT
---------------------------------
Joseph T. Willett
Attorney in Fact
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------- ----
4(a) Restated Certificate of Incorporation of the Company, as
amended April 24, 1987 (incorporated by reference to Exhibit
3(i) to the Company's Annual Report on Form 10-K for the
fiscal year ended December 25, 1992 ("1992 10-K") (File No.
1-7182)).
4(b) Certificate of Amendment, dated April 29, 1993, of the
Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3(i) to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 26, 1993 ("First
Quarter 1993 10-Q") (File No. 1-7182)).
4(c) By-Laws of the Company, effective as of October 25, 1993
(incorporated by reference to Exhibit 3(i) to the Company's
Quarterly Report on Form 10-Q for the quarter ended September
24, 1993 (File No. 1-7182)).
4(d) Form of Rights Agreement, dated as of December 16, 1987,
between the Company and Chemical Bank (successor by merger to
Manufacturers Hanover Trust Company) (incorporated by
reference to Exhibit 3(iv) to the 1992 10-K).
4(e) Certificate of Designation of the Company establishing the
rights, preferences, privileges, qualifications, restrictions
and limitations relating to the Company's 9% Cumulative
Preferred Stock, Series A (incorporated by reference to
Exhibit 4(iii) to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1994 (File No. 1-7182)).
4(f) Certificate of Designation of the Company establishing the
rights, preferences, privileges, qualifications, restrictions
and limitations relating to the Company's Remarketed
Preferred Stock, Series C (incorporated by reference to
Exhibit 3(ii) to the First Quarter 1993 10-Q).
4(g) Certificate of Designation of the Company establishing the
rights, preferences, privileges, qualifications, restrictions
and limitations relating to the Company's Series A Junior
Preferred Stock (incorporated by reference to Exhibit 3(f) to
the Company's Registration Statement on Form S-3 (File No.
33-19975)).
*5 Opinion of Brown & Wood as to legality and tax matters.
*23(a) Consent of Brown & Wood (included as part of Exhibit 5).
23(b) Consent of Deloitte & Touche LLP.
*24 Power of Attorney.
*99 Merrill Lynch & Co., Inc. Long-Term Incentive Compensation
Plan, as amended through April 16, 1996 (incorporated by
reference to Exhibit 10(i) to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 29, 1996 (File No.
1-7182)).
* Previously filed.
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-3 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
June 27, 1996
New York, New York
