Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
under
THE SECURITIES ACT OF 1933
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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)
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MARK B. GOLDFUS, 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)
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Merrill Lynch & Co., Inc. 1998 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 $30,303.03
================================================================================================================
</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. 1998 Deferred Compensation
Plan for a Select Group of Eligible Employees.
(2) Estimated solely for the purpose of determining the registration fee.
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<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 on Form 10-K of Merrill Lynch & Co., Inc. (the
"Company") for the year ended December 27, 1996, Quarterly Report on Form 10-Q
for the quarter ended March 28, 1997, and Current Reports on Form 8-K dated
January 13, 1997, January 27, 1997, February 25, 1997, March 14, 1997, April 15,
1997, May 2, 1997, May 30, 1997, June 3, 1997 and July 16, 1997, 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. 1998 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, and 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. 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.
2
<PAGE>
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.
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).
3
<PAGE>
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 registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) That, for 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 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 28th day of
July, 1997.
MERRILL LYNCH & CO., INC.
By: /s/ David H. Komansky
-------------------------------------
David H. Komansky
(Chairman of the Board,
Chief Executive Officer and Director)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David H. Komansky, Herbert M. Allison, Jr.,
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 28TH DAY OF JULY, 1997.
Signature Title
--------- -----
/s/ David H. Komansky
- ------------------------------------ Chairman of the Board, Chief
(David H. Komansky) Executive Officer and Director
/s/ Herbert M. Allison, Jr.
- ------------------------------------ President, Chief Operating Officer
(Herbert M. Allison, Jr.) 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)
- ------------------------------------ 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/ David K. Newbigging
- ------------------------------------ Director
(David K. Newbigging)
/s/ Aulana L. Peters
- ------------------------------------ Director
(Aulana L. Peters)
/s/ John J. Phelan, Jr.
- ------------------------------------ Director
(John J. Phelan, Jr.)
/s/ John L. Steffens
- ------------------------------------ Director
(John L. Steffens)
/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
July 28, 1997
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 July 28, 1997
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. 1998 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 purposes of the opinion expressed
herein.
Based upon the foregoing, we advise you that, in our opinion, when issued
in accordance with the provisions of the Plan, the Deferred Compensation
Obligations will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability relating to or
affecting enforcement of creditors' rights or by general equity principles.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of our name wherever appearing in the Registration
Statement and any amendment thereto.
Very truly yours,
/s/ Brown & Wood LLP
July 28, 1997
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
27, 1997 and for the three-months periods ended March 27, 1997 and March 29,
1996 as indicated in our report dated May 9, 1997; 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 27, 1997, 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 1933, 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 Sections 7 and 11 of that Act.
/s/ Deloitte & Touche LLP
July 28, 1997
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 24, 1997, appearing in and incorporated by reference in the Annual
Report on Form 10-K of the Company for the year ended December 27, 1996 and to
the reference to us under the heading "Experts" in the Prospectus, which is part
of this Registration Statement. We also consent to the incorporation by
reference in this Registration Statement of our report dated February 24, 1997,
appearing as Exhibit 99(ii) in the Company's Current Report of Form 8-K dated
March 14, 1997, 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 27, 1996 included in the 1996 Annual
Report to the Stockholders of the Company.
/s/ Deloitte & Touche LLP
July 28, 1997
New York, New York
