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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 28, 1998
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Merrill Lynch & Co., Inc.
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(Exact name of Registrant as specified in its charter)
Delaware 1-7182 13-2740599
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(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
World Financial Center, North Tower, New York, New York 10281-1220
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 449-1000
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(Former name or former address, if changed since last report.)
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Item 5. Other Events
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Exhibits are filed herewith in connection with the Registration Statement
on Form S-3 (File No. 333-59997) filed by Merrill Lynch & Co., Inc. ("ML & Co.")
with the Securities and Exchange Commission covering Senior Debt Securities
issuable under an indenture dated as of April 1, 1983, as amended and restated,
between ML & Co. and The Chase Manhattan Bank (the "Indenture"). ML & Co. will
issue $70,000,000 aggregate principal amount of Nikkei 225 Market Index Target-
Term Securities(R) due September 21, 2005 under the Indenture. The exhibits
consist of the form of Securities and an opinion of counsel relating thereto.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
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EXHIBITS
(4) Instruments defining the rights of
security holders, including indentures.
Form of Merrill Lynch & Co., Inc.'s Nikkei 225
Market Index Target-Term Securities(R) due
September 21, 2005.
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood LLP relating to the
Nikkei 225 Market Index Target-Term Securities(R)
due September 21, 2005 (including consent for
inclusion of such opinion in this report and in
Merrill Lynch & Co., Inc.'s Registration
Statement relating to such Securities).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereto duly authorized.
MERRILL LYNCH & CO., INC.
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(Registrant)
By: /s/ Theresa Lang
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Theresa Lang
Treasurer
Date: December 28, 1998
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
MERRILL LYNCH & CO., INC.
EXHIBITS TO CURRENT REPORT ON
FORM 8-K DATED DECEMBER 28, 1998
COMMISSION FILE NUMBER 1-7182
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EXHIBIT INDEX
Exhibit No. Description Page
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(4) Instruments defining the rights of security holders,
including indentures.
Form of Merrill Lynch & Co., Inc.'s Nikkei 225 Market
Index Target-Term Securities(R) due September 21, 2005.
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood LLP relating to the Nikkei 225
Market Index Target-Term Securities(R) due September 21,
2005 (including consent for inclusion of such opinion in
this report and in Merrill Lynch & Co., Inc.'s
Registration Statement relating to such Securities).
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Exhibit (4)
THIS MITTS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR MITTS
SECURITIES IN CERTIFICATED FORM, THIS MITTS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS MITTS
SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO MERRILL LYNCH &
CO., INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY MITTS SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R-1 Units
CUSIP 590188 553 (Each Unit representing $10
principal amount of Securities)
MERRILL LYNCH & CO., INC.
Nikkei 225 Market Index Target-Term Securities(R)
due September 21, 2005
("MITTS Securities")
Merrill Lynch & Co., Inc., a Delaware corporation (hereinafter referred to
as the "Company", which term includes any successor corporation under the
Indenture herein referred to), for value received, hereby promises to pay to
CEDE & CO., or registered assigns, the principal sum of SEVENTY MILLION DOLLARS
($70,000,000) (the "Principal Amount") plus the Supplemental Redemption Amount,
as defined below, on September 21, 2005 (the "Stated Maturity").
Payment of the Principal Amount and the Supplemental Redemption Amount and
any interest on any overdue amount thereof with respect to this Security shall
be made at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts.
This MITTS Security is one of the series of Nikkei 225 Market Index Target-
Term Securities(R) due September 21, 2005.
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SUPPLEMENTAL REDEMPTION AMOUNT
The "Supplemental Redemption Amount" with respect to this MITTS Security
equals:
(Ending Value-Starting Value)
Principal Amount x ---------------------------
( Starting Value )
provided, however, that in no event will the Supplemental Redemption Amount be
less than zero. The Starting Value equals 14,152.95. The Ending Value will be
determined by Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPF&S"), as
calculation agent (the "Calculation Agent"), and will equal the average
(arithmetic mean) of the closing values of the Nikkei Stock Average (the
"Index") determined on each of the first five Calculation Days (as defined
below) during the Calculation Period (as defined below). If there are fewer
than five Calculation Days, then the Ending Value will equal the average
(arithmetic mean) of the closing values of the Index on such Calculation Days,
and if there is only one Calculation Day, then the Ending Value will equal the
closing value of the Index on such Calculation Day. If no Calculation Days
occur during the Calculation Period, then the Ending Value will equal the
closing value of the Index determined on the last scheduled Index Business Day
(as defined below) in the Calculation Period, regardless of the occurrence of a
Market Disruption Event (as defined below) on such day.
The "Calculation Period" means the period from and including the seventh
scheduled Index Business Day prior to the Stated Maturity to and including the
second scheduled Index Business Day prior to the Stated Maturity.
"Calculation Day" means any Index Business Day during the Calculation
Period on which a Market Disruption Event has not occurred.
For purposes of determining the Ending Value, an "Index Business Day" is a
day on which the New York Stock Exchange ("NYSE") and the American Stock
Exchange ("AMEX") are open for trading and the Index or any Successor Index, as
defined below, is calculated and published. All determinations made by the
Calculation Agent shall be at the sole discretion of the Calculation Agent and,
absent a determination by the Calculation Agent of a manifest error, shall be
conclusive for all purposes and binding on the Company and beneficial owners of
the MITTS Securities.
ADJUSTMENTS TO THE INDEX; MARKET DISRUPTION EVENTS
If at any time the method of calculating the Index, or the value thereof,
is changed in any material respect, or if the Index is in any other way modified
so that such Index does not, in the opinion of the Calculation Agent, fairly
represent the value of the Index had such changes or modifications not been
made, then, from and after such time, the Calculation Agent shall, at the close
of business in New York, New York, on each date that the closing value with
respect to the Ending Value is to be calculated, make such adjustments as, in
the good faith judgment of the Calculation Agent, may be necessary in order to
arrive at a calculation of a value of a stock index
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comparable to the Index as if such changes or modifications had not been made,
and calculate such closing value with reference to the Index, as adjusted.
Accordingly, if the method of calculating the Index is modified so that the
value of such Index is a fraction or a multiple of what it would have been if it
had not been modified (e.g., due to a split in the Index), then the Calculation
Agent shall adjust such Index in order to arrive at a value of the Index as if
it had not been modified (e.g., as if such split had not occurred).
"Market Disruption Event" means either of the following events, as
determined by the Calculation Agent:
(a) a suspension, material limitation or absence of trading on the
Tokyo Stock Exchange (the "TSE") of 20% or more of the underlying stocks
which then comprise the Index or a Successor Index (as defined below)
during the one-half hour period preceding the close of trading on the
applicable exchange; or
(b) the suspension or material limitation on the Singapore
International Monetary Exchange, Ltd., the Osaka Securities Exchange or any
other major futures or securities market from trading in futures or options
contracts related to the Index or a Successor Index during the one-half
hour period preceding the close of trading on the applicable exchange.
For the purposes of determining whether a Market Disruption Event has
occurred: (i) a limitation on the hours or number of days of trading will not
constitute a Market Disruption Event if it results from an announced change in
the regular business hours of the relevant exchange, (ii) a decision to
permanently discontinue trading in the relevant futures or options contract will
not constitute a Market Disruption Event, (iii) a suspension in trading in a
futures or options contract on the Index by a major securities market by reason
of (a) a price change violating limits set by such securities market, (b) an
imbalance of orders relating to such contracts or (c) a disparity in bid and ask
quotes relating to such contracts will constitute a suspension or material
limitation of trading in futures or options contracts related to the Index, and
(iv) an absence of trading on the TSE will not include any time when the TSE is
closed for trading under ordinary circumstances. Under certain circumstances,
the duties of MLPF&S as Calculation Agent in determining the existence of Market
Disruption Events could conflict with the interests of MLPF&S as an affiliate of
the Company.
DISCONTINUANCE OF THE INDEX
If Nihon Keizai Shimbun, Inc. ("NKS") discontinues publication of the Index
and NKS or another entity publishes a successor or substitute index that the
Calculation Agent determines, in its sole discretion, to be comparable to such
Index (any such index being referred to herein as a "Successor Index"), then,
upon the Calculation Agent's notification of such determination to the Trustee
and the Company, the Calculation Agent will substitute the Successor Index as
calculated by NKS or such other entity for the Index. Upon any selection by the
Calculation Agent of a Successor Index, the Company shall cause notice thereof
to be given to holders of the MITTS Securities.
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If NKS discontinues publication of the Index and a Successor Index is not
selected by the Calculation Agent or is no longer published on any of the
Calculation Days, the value to be substituted for the Index for any such
Calculation Day used to calculate the Supplemental Redemption Amount at maturity
will be a value computed by the Calculation Agent for each Calculation Day in
accordance with the procedures last used to calculate the Index prior to such
discontinuance. If a Successor Index is selected or the Calculation Agent
calculates a value as a substitute for the Index as described below, such
Successor Index or value shall be substituted for the Index for all purposes,
including for purposes of determining whether a Market Disruption Event exists.
If the Calculation Agent calculates a value as a substitute for the Index,
"Index Calculation Day" shall mean any day on which the Calculation Agent is
able to calculate such value.
If NKS discontinues publication of the Index prior to the period during
which the Supplemental Redemption Amount is to be determined and the Calculation
Agent determines that no Successor Index is available at such time, then on each
Business Day until the earlier to occur of (a) the determination of the Ending
Value and (b) a determination by the Calculation Agent shall determine the
value that would be used in computing the Supplemental Redemption Amount as
described in the preceding paragraph as if such day were a Calculation Day. The
Calculation Agent will cause notice of each such value to be published not less
often than once each month in The Wall Street Journal (or another newspaper of
general circulation), and arrange for information with respect to such values to
be made available by telephone.
General
This MITTS Security is one of a duly authorized issue of securities of the
Company, issued and to be issued under an Indenture, dated as of April 1, 1983,
as amended and restated (herein referred to as the "Indenture"), between the
Company and The Chase Manhattan Bank (successor by merger to Manufacturers
Hanover Trust Company), as Trustee (herein referred to as the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights thereunder of the Company, the Trustee and the Holders of
the MITTS Securities, and the terms upon which the MITTS Securities are, and are
to be, authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the MITTS
Securities, to the extent permitted by applicable law, not to claim voluntarily
the benefits of any laws concerning usurious rates of interest against a Holder
of the MITTS Securities.
The MITTS Securities are not subject to redemption by the Company or at the
option of the Holder prior to the Stated Maturity.
In case an Event of Default with respect to any MITTS Securities shall have
occurred and be continuing, the amount payable to a beneficial owner of a MITTS
Security upon any acceleration permitted by the MITTS Securities, with respect
to each $10 principal amount thereof, will be equal to the Principal Amount and
the Supplemental Redemption Amount, if
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any, calculated as though the date of early repayment were the Stated Maturity
of the MITTS Securities.
In case of default in payment of the MITTS Securities (whether at the
Stated Maturity or upon acceleration), from and after the maturity date the
MITTS Securities shall bear interest, payable upon demand of the beneficial
owners thereof, at the rate 6.01% per annum (to the extent that payment of such
interest shall be legally enforceable) on the unpaid amount due and payable on
such date in accordance with the terms of the MITTS Securities to the date
payment of such amount has been made or duly provided for.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the MITTS Securities of each series to
be affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than 66 2/3% in aggregate principal
amount of the MITTS Securities at the time Outstanding, as defined in the
Indenture, of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the MITTS Securities of each series at the time Outstanding,
on behalf of the Holders of all MITTS Securities of each series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this MITTS Security shall be conclusive and binding upon
such Holder and upon all future Holders of this MITTS Security and of any MITTS
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof whether or not notation of such consent or waiver is made upon
this MITTS Security.
No reference herein to the Indenture and no provision of this MITTS
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal Amount plus
the Supplemental Redemption Amount with respect to this MITTS Security and any
interest on any overdue amount thereof at the time, place, and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and on the first page hereof, the transfer of this MITTS Security may be
registered on the MITTS Security Register of the Company, upon surrender of this
MITTS Security for registration of transfer at the office or agency of the
Company in the Borough of Manhattan, The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company duly executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new MITTS Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The MITTS Securities are issuable only in registered form without coupons
in denominations of $10 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the first
page hereof, the MITTS Securities are exchangeable for a like aggregate
principal amount of MITTS Securities in authorized denominations, as requested
by the Holder surrendering the same. If (x) any Depository is at any
5
<PAGE>
time unwilling or unable to continue as Depository and a successor depository is
not appointed by the Company within 60 days, (y) the Company executes and
delivers to the Trustee a Company Order to the effect that this MITTS Security
shall be exchangeable or (z) an Event of Default has occurred and is continuing
with respect to the MITTS Securities, this MITTS Security shall be exchangeable
for MITTS Securities in definitive form of like tenor and of an equal aggregate
principal amount, in denominations of $10 and integral multiples thereof. Such
definitive MITTS Securities shall be registered in such name or names as the
Depository shall instruct the Trustee. If definitive MITTS Securities are so
delivered, the Company may make such changes to the form of this MITTS Security
as are necessary or appropriate to allow for the issuance of such definitive
MITTS Securities.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
Prior to due presentment of this MITTS Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this MITTS Security is registered as the
owner hereof for all purposes, whether or not this MITTS Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this MITTS Security which are defined in the Indenture
but not in this MITTS Security shall have the meanings assigned to them in the
Indenture.
Unless the certificate of authentication hereon has been executed by The
Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder, by the manual signature of one of its authorized officers, this
MITTS Security shall not be entitled to any benefits under the Indenture or be
valid or obligatory for any purpose.
6
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: December 28, 1998
<TABLE>
<S> <C>
CERTIFICATE OF AUTHENTICATION Merrill Lynch & Co., Inc.
This is one of the Securities of the series [Copy of Seal]
designated therein referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
</TABLE>
7
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EXHIBIT (5) & (23)
December 28, 1998
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281
Gentlemen:
As your counsel, we have examined a copy of the Restated Certificate of
Incorporation, as amended, of Merrill Lynch & Co., Inc. (hereinafter called the
"Company"), certified by the Secretary of State of the State of Delaware. We
are familiar with the corporate proceedings had in connection with the proposed
issuance and sale by the Company to the Underwriter named in the Terms Agreement
referred to below, pursuant to an Underwriting Agreement dated August 5, 1998
(the "Underwriting Agreement"), between the Company and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPF&S"), as supplemented
by the Terms Agreement dated December 21, 1998 (the "Terms Agreement") between
the Company and MLPF&S (the "Underwriter"), of $70,000,000 aggregate principal
amount of the Company's Nikkei 225 Market Index Target-Term Securities(R) due
September 21, 2005 (the "Securities"). We have also examined a copy of the
Indenture between the Company and The Chase Manhattan Bank as Trustee, dated as
of April 1, 1983, as amended and restated (the "Indenture"), and the Company's
Registration Statement on Form S-3 (File No. 333-59997) relating to the
Securities (the "Registration Statement").
<PAGE>
Based upon the foregoing and upon such further investigation as we deemed
relevant in the premises, we are of the opinion that:
1. The Company has been duly incorporated under the laws of the State of
Delaware.
2. The Securities have been duly and validly authorized by the Company and
when the Securities have been duly executed and authenticated in accordance with
the terms of the Indenture and delivered against payment therefor as set forth
in the Underwriting Agreement, as supplemented by the Terms Agreement, the
Securities will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by bankruptcy, moratorium,
insolvency, reorganization or similar laws relating to or affecting creditors'
rights generally and except as enforcement thereof is subject to general
principles at equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
2
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We consent to the filing of this opinion as an exhibit to the Registration
Statement and as an exhibit to the Current Report of the Company on Form 8-K
dated December 28, 1998.
Very truly yours,
3
