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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 19, 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. 333-44173) 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 $14,500,000 aggregate principal amount of Telebras Indexed Callable
Protected GrowthSM Securities due May 19, 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 Telebras Indexed
Callable Protected GrowthSM Securities due May 19,
2005.
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood llp relating to the Telebras
Indexed Callable Protected GrowthSM Securities due May
19, 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: May 19, 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 MAY 19, 1998
COMMISSION FILE NUMBER 1-7182
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EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------- ----
(4) Instruments defining the rights of security holders,
including indentures.
Form of Merrill Lynch & Co., Inc.'s Telebras Indexed
Callable Protected GrowthSM Securities due May 19, 2005.
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood llp relating to the Telebras Indexed
Callable Protected GrowthSM Securities due May 19, 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 99 (B)
THIS PROGROS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
PROGROS SECURITIES IN CERTIFICATED FORM, THIS PROGROS 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 DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
PROGROS 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 PROGROS 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- 1,450,000 Units
CUSIP 590188 629 (Each Unit representing $10
principal amount of Securities)
MERRILL LYNCH & CO., INC.
Telebras Indexed
Callable Protected GrowthSM Securities
due May 19, 2005
("ProGroSSM 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 FOURTEEN MILLION, FIVE
HUNDRED THOUSAND DOLLARS ($14,500,000) (the "Principal Amount") plus the
Supplemental Redemption Amount, as defined below, on May 19, 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 ProGroS 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.
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This ProGroS Security is one of the series of Telebras Indexed Callable
Protected Growth/SM/ Securities due May 19, 2005.
SUPPLEMENTAL REDEMPTION AMOUNT
The "Supplemental Redemption Amount" with respect to this ProGroS 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 $115.4375. The "Ending Value"
will be determined by Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Calculation Agent", which term includes any successor thereto) and will equal
the Reorganization Event Value (as defined below under "Dilution and
Reorganization Adjustments") with respect to a Reorganization Event, if any,
plus the value of the Reference Property (as defined below) determined as
follows: (A) for any portion of the Reference Property consisting of cash, the
U.S. Dollar Equivalent (as defined herein) of such cash plus interest on such
amount accruing from the date of the payment of such cash to holders of the
relevant Reference Property for which such cash was paid until the stated
maturity date at a fixed interest rate determined on the date of such payment
equal to the interest rate that would be paid on a fixed rate senior non-
callable debt security of the Company with a term equal to the remaining term
for the ProGroS Securities as determined by the Calculation Agent; (B) for any
portion of the Reference Property consisting of property other than cash or
Reference Securities, the U.S. Dollar Equivalent of the market value of such
property on the date that such property was delivered to holders of the relevant
Reference Property for which such property was distributed plus interest on such
U.S. dollar amount accruing from the date of such delivery until the stated
maturity date at a fixed interest rate determined as described in (A) above; and
(C) for any portion of the Reference Property consisting of Reference
Securities, the average (arithmetic mean) of the Closing Prices of each such
Reference Security determined on each of the first five Calculation Days during
the Calculation Period. If there are fewer than five Calculation Days in the
Calculation Period with respect to any such Reference Security, then the Ending
Value shall be calculated using the average (arithmetic mean) of the Closing
Prices of such Reference Security on such Calculation Days, and if there is only
one Calculation Day, then the Ending Value shall be calculated using the Closing
Price of such Reference Security on such Calculation Day. If no Calculation Days
occur during the Calculation Period with respect to such Reference Security,
then the Ending Value shall be calculated using the Closing Price of such
Reference Security determined on the last scheduled Calculation Day in the
Calculation Period, regardless of the occurrence of a Market Disruption Event on
such day.
"Reference Property" initially shall mean one unit of the American
Depositary Receipt ("ADR") representing the common stock of Telecomunicacoes
Brasileiras S.A.-Telebras ("Telebras") (such ADR, the "Telebras Receipt"), and
shall be subject to adjustment from time to
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time to reflect the addition, substitution or distribution of cash, securities
and/or other property resulting from the application of the adjustment
provisions described below under "Dilution and Reorganization Adjustments".
"U.S. Dollar Equivalent" shall mean, with respect to cash not denominated
in U.S. dollars, such cash amount multiplied by the Spot Rate (defined below)
for the currency in which such cash is denominated at approximately the date of
payment or date of valuation of such cash.
The "Calculation Period" means the period from and including the seventh
scheduled Calculation Day prior to the Stated Maturity to and including the
second scheduled Calculation Day prior to the Stated Maturity.
"Calculation Day" means any Trading Day during the Calculation Period on
which a Market Disruption Event has not occurred.
"Trading Day" means day on which the AMEX, the NYSE and the National
Association of Securities Dealers, Inc. National Market System (the "NASDAQ
NMS") are open for trading.
"Closing Price" with respect to a Reference Security means, for a
Calculation Day the following:
(a) If such Reference Security is listed on a national securities exchange in
the United States, is a NASDAQ NMS security or is included in the OTC
Bulletin Board Service ("OTC Bulletin Board") operated by the National
Association of Securities Dealers, Inc. (the "NASD"), Closing Price means
(i) the last reported sale price, regular way, on such day on the principal
United States securities exchange registered under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on which such Reference
Security is listed or admitted to trading, or (ii) if not listed or
admitted to trading on any such securities exchange or if such last
reported sale price is not obtainable, the last reported sale price on the
over-the-counter market as reported on the NASDAQ NMS or OTC Bulletin Board
on such day, or (iii) if the last reported sale price is not available
pursuant to (i) and (ii) above, the mean of the last reported bid and offer
price on the over-the-counter market as reported on the NASDAQ NMS or OTC
Bulletin Board on such day as determined by the Calculation Agent. The
term "NASDAQ NMS security" shall include a security included in any
successor to such system and the term "OTC Bulletin Board" shall include
any successor service thereto.
(b) If such Reference Security is not listed on a national securities exchange
in the United States or is not a NASDAQ NMS security or included in the OTC
Bulletin Board operated by the NASD, Closing Price means the last reported
sale price on such day on the securities exchange on which such Reference
Security is listed or admitted to trading with the greatest volume of
trading for the calendar month preceding such day as determined by the
Calculation Agent, provided that if such
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last reported sale price is for a transaction which occurred more than four
hours prior to the close of such exchange, then the Closing Price shall
mean the average (mean) of the last available bid and offer price on such
exchange. If such Reference Security is not listed or admitted to trading
on any such securities exchange or if such last reported sale price or bid
and offer are not obtainable, the Closing Price shall mean the last
reported sale price for a transaction which occurred more than four hours
prior to when trading in such over-the-counter market typically ends, then
the Closing Price shall mean the average (mean) of the last available bid
and offer prices in such market of the three dealers which have the highest
volume of transactions in such Reference Security in the immediately
preceding calendar month as determined by the Calculation Agent based on
information that is reasonably available to it. If such prices are quoted
in a currency other than in U.S. dollars, such prices will be translated
into U.S. dollars for purposes of calculating the average market price
using the Spot Rate on the same calendar day as the date of any such price.
The "Spot Rate" on any date will be determined by the Calculation Agent and
will equal the spot rate of such currency per U.S. $1.00 on such date at
approximately 3:00 p.m., New York City time, as reported by a recognized
reporting service for such spot rate, provided that if the Calculation
Agent shall determine that such reported rate is not indicative of actual
rates of exchange that may be obtained in the currency exchange rate
market, then the Spot Rate shall equal the Spot Rate of such currency per
U.S. $1.00 on such date at approximately 3:00 p.m., New York City time at
which the Calculation Agent is able to convert such currency into U.S.
dollars.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law to close and that is a trading day on the NYSE
and the AMEX.
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 ProGroS Securities.
MARKET DISRUPTION EVENT
"Market Disruption Event" means with respect to a Reference Security the
occurrence or existence on any Business Day during the one-half hour period that
ends when the Closing Price is determined of any suspension of, or limitation
imposed on, trading in such Reference Security, on the NYSE (or other market or
exchange, if applicable).
For the purposes of this definition, a limitation on the hours in a trading
day and/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.
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EARLY CALL
During the month of June 2004 (the "Call Period"), the Company, in its sole
discretion, may elect to call the ProGroS Securities offered hereby, in whole
but not in part, prior to the Stated Maturity by giving notice to the Trustee of
the Company's election on any Business Day within the Call Period, at the Call
Price ($20 per Unit).
If we elect to call your ProGroS Securities prior to the Stated Maturity,
you will receive only the Call Price and you will not receive a Supplemental
Redemption Amount based on the value of the Reference Property. If we do not
call the ProGroS Securities prior to the stated maturity date, the Principal
Amount plus the Supplemental Redemption Amount, if any, that you receive at the
stated maturity may be greater than or less than the Call Price. The Company
may elect to call the ProGroS Securities on any Business Day during the Call
Period by giving notice to the Trustee and specifying the date on which the Call
Price shall be paid (the "Payment Date"). Such Payment Date shall be no later
than the 20th Business Day after such call election. The Trustee will provide
notice of such call election to the registered holders of the ProGroS
Securities, specifying the Payment Date, no less than 15, nor more than 30,
calendar days prior to such Payment Date.
DILUTION AND REORGANIZATION ADJUSTMENTS
The Reference Property is subject to adjustment if an issuer of any
Reference Security (or the custodian in the case of Reference Security that is
an ADR) shall: (i) pay a stock dividend or make a distribution with respect to
such Reference Security in Reference Securities; (ii) subdivide or split the
outstanding units of such Reference Security into a greater number of units;
(iii) combine the outstanding units of such Reference Security into a smaller
number of units; (iv) issue by reclassification of units of such Reference
Security any units of another security of such issuer; (v) issue rights or
warrants to all holders of such Reference Security entitling them to subscribe
for or purchase shares, in the aggregate, for more than 5% of the number of such
Reference Securities outstanding prior to the issuance of such rights or
warrants at a price per share less than the then current market price of such
Reference Security (other than rights to purchase such Reference Security
pursuant to a plan for the reinvestment of dividends or interest); or (vi) pay a
dividend or make a distribution to all holders of such Reference Security of
evidences of its indebtedness or other assets (excluding any stock dividends or
distributions referred to in clause (i) above or any cash dividends other than
any Extraordinary Cash Dividend (as defined below)) or issue to all holders of
such Reference Security rights or warrants to subscribe for or purchase any of
its securities (other than those referred to in clause (v) above) (any of the
foregoing assets are referred to as the "Distributed Assets" and any of the
foregoing events are referred to as the "Dilution Events"). Notwithstanding
provision (vi) in the foregoing sentence, if a Reference Security is an ADR and
the holder of such ADR would receive cash or other property other than
securities in the circumstances described in (vi) above, but the holder of the
securities underlying such ADR could receive securities as a result of a
Dilution Event (the "Distributed Securities") and the Calculation Agent or its
affiliates would be eligible to receive the Distributed Securities, then the
Company can elect for purposes of provision (vi) to include
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the Distributed Securities in the Reference Property instead of the cash or
property distributed to holders of the ADR in an amount equal to the amount of
the Distributed Securities that would have been received had the Reference
Property consisted of the securities underlying the ADRs instead of the ADRs.
For purposes of provision (vi), if the holder of a Reference Security can elect
to receive securities in lieu of cash or property other than securities, then
for purposes of provision (vi) the holders of the Reference Security shall be
deemed to receive only the securities.
In the case of the Dilution Events referred to in clauses (i), (ii), (iii)
and (iv) above, the Reference Property shall be adjusted to include the number
of units of such Reference Security and/or security of such issuer which a
holder of units of such Reference Security would have owned or been entitled to
receive immediately following any such event had such holder held, immediately
prior to such event, the number of units of such Reference Security constituting
part of the Reference Property immediately prior to such event. Each such
adjustment shall become effective immediately after the effective date for such
subdivision, split, combination or reclassification, as the case may be. Each
such adjustment shall be made successively.
In the case of the Dilution Event referred to in clause (v) above where the
rights or warrants are for more than 5% of the number of shares outstanding
prior to the issuance of such rights or warrants, the Reference Property shall
be adjusted by multiplying the number of Reference Securities constituting
Reference Property immediately prior to the date of issuance of the rights or
warrants referred to in clause (v) above by a fraction, (1) the numerator of
which shall be the number of Reference Securities outstanding on the date
immediately prior to such issuance, plus the number of additional Reference
Securities offered for subscription or purchase pursuant to such rights or
warrants, and (2) the denominator of which shall be the number of Reference
Securities outstanding on the date immediately prior to such issuance, plus the
number of additional Reference Securities which the aggregate offering price of
the total number of Reference Securities so offered for subscription or purchase
pursuant to such rights or warrants would purchase at the current market price
(determined as the average Closing Price per Reference Security for the 20
Trading Days immediately prior to the date of such rights or warrants are
issued, subject to certain adjustments), which shall be determined by
multiplying such total number of Reference Securities by the exercise price of
such rights or warrants and dividing the product so obtained by such current
market price. To the extent that Reference Securities are not delivered after
the expiration of such rights or warrants, or if such rights or warrants are not
issued, the Reference Property shall be readjusted to the Reference Property
which would then be in effect had such adjustments for the issuance of such
rights or warrants been made upon the basis of delivery of only the number of
Reference Securities actually delivered.
In the case of the Dilution Event referred to in clause (vi) above, the
Reference Property shall be adjusted to include, from and after such dividend,
distribution or issuance, (x) in respect of that portion, if any, of the
Distributed Assets consisting of cash, the amount of such Distributed Assets
consisting of cash received for each unit of such Reference Security multiplied
by the number of units of such Reference Security constituting part of the
Reference
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Property on the date of such dividend, distribution or issuance, immediately
prior to such dividend, distribution or issuance, plus (y) in respect of that
portion, if any, of the Distributed Assets which are other than cash, the number
or amount of each type of Distributed Assets other than cash received with
respect to each unit of such Reference Security multiplied by the number of
units of such Reference Security constituting part of the Reference Property on
the date of such dividend, distribution or issuance, immediately prior to such
dividend, distribution or issuance.
For example, where a reorganization of Telebras results in the distribution
to holders of the Telebras Receipt of ADRs representing shares of common stock
in various companies formed to operate various spin-off businesses of Telebras,
then the Reference Property shall include such ADRs in amounts specified
pursuant to provision (vi) above. If in any such reorganization of Telebras,
holders of Telebras Receipts receive cash or property while holders of the
shares of common stock underlying the Telebras Receipt receive Distributed
Securities and the Calculation Agent or an affiliate can receive and hold such
Distributed Securities, then the Calculation Agent can elect to have the
Reference Property include such Distributed Securities instead of such cash or
property.
An "Extraordinary Cash Dividend" means, with respect to any consecutive 12-
month period, the amount, if any, by which the aggregate amount of all cash
dividends or any other distribution made by the issuer of a Reference Security
or made pursuant to an arrangement effecting a distribution of distributable
profits or reserves, whether in cash or in specie, on any Reference Security
occurring in such 12-month period (or, if such Reference Security was not
outstanding at the commencement of such 12-month period or was not then a part
of the Reference Property, occurring in such shorter period during which such
Reference Security was outstanding and was part of the Reference Property)
exceeds on a per share basis 10% of the average of the Closing Prices per share
of such Reference Security over such 12-month period (or such shorter period
during which such Reference Security was outstanding and was part of the
Reference Property); provided that, for purposes of the foregoing definition,
the amount of cash dividends paid on a per share basis will be appropriately
adjusted to reflect the occurrence during such period of any stock dividend or
distribution of shares of capital stock of the issuer of such Reference Security
or any subdivision, split, combination or reclassification of shares of such
Reference Security.
All adjustments will be calculated to the nearest 1/10,000th of a share of
the Reference Security (or if there is not a nearest 1/10,000th of a share to
the next lower 1/10,000th of a share). No adjustment shall be required unless
such adjustment would require an increase or decrease of at least one percent in
the Closing Price; provided, however, that any adjustments which by reason of
the foregoing are not required to be made shall be carried forward and taken
into account in any subsequent adjustment.
If any of the Distributed Assets are cash, property or Reference Securities
that will be distributed only to holders of the relevant Reference Property who
or which can certify as to a certain nationality or formation under the laws of
a certain jurisdiction, as the case may be, and a
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corporation formed in the United States or an affiliate of such corporation
formed elsewhere cannot receive such distribution, the Reference Property will
reflect only those Distributed Assets available for distribution to such United
States corporation or its affiliates.
In the event of (A) any consolidation or merger of an issuer of a Reference
Security, or any surviving entity or subsequent surviving entity of such issuer
(a "Successor Company"), with or into another entity (other than a merger or
consolidation in which such issuer is the continuing corporation and in which
the Reference Security outstanding immediately prior to the merger or
consolidation is not exchanged for cash, securities or other property of such
issuer or another corporation), (B) any sale, transfer, lease or conveyance to
another corporation of the property of an issuer of a Reference Security or any
Successor Company as an entirety or substantially as an entirety, (C) any
statutory exchange of securities of an issuer of a Reference Security or any
Successor Company with another corporation (other than in connection with a
merger or acquisition) or (D) any liquidation, dissolution, winding up or
bankruptcy of an issuer of a Reference Security or any Successor Company (any
such event described in clause (A), (B), (C) or (D), a "Reorganization Event"),
the Ending Value shall be calculated by including the Reorganization Event
Value. The "Reorganization Event Value" shall be determined by the Calculation
Agent and shall equal (i) the Transaction Value related to the relevant
Reorganization Event, plus (ii) interest on such Transaction Value accruing from
the date of the payment or delivery of the consideration, if any, received in
connection with such Reorganization Event until the stated maturity date at a
fixed interest rate determined on the date of such payment or delivery equal to
the interest rate that would be paid on a fixed rate senior non-callable debt
security of the Company with a term equal to the remaining term of the ProGroS
Securities. The "Transaction Value" means (i) for any cash received in any such
Reorganization Event, the U.S. Dollar Equivalent of cash received per unit of
Reference Security, (ii) for any property other than cash or securities received
in any such Reorganization Event, an amount equal to the U.S. Dollar Equivalent
of the market value of such property per unit of Reference Security on the date
that such property is received by holders of such Reference Security as
determined by the Calculation Agent, and (iii) for any securities received in
any such Reorganization Event, an amount equal to the Closing Price per unit of
such securities on the date such securities are received by holders of such
Reference Security multiplied by the number of such securities received for each
unit of such Reference Security (subject to adjustment on a basis consistent
with the adjustment provisions described above).
The foregoing adjustments shall be made by the Calculation Agent, and all
such adjustments shall be final.
No adjustments will be made for certain other events, such as offerings of
Deposit Reference Shares by Telebras for cash or in connection with
acquisitions.
The Company will, within ten Business Days following the occurrence of an
event that requires an adjustment (or if the Company is not aware of such
occurrence, as soon as practicable after becoming so aware), provide written
notice to the Trustee and to the holders of the ProGroS Securities of the
occurrence of such event and, if applicable, a statement in
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reasonable detail setting forth the adjusted Closing Price to be used in
determining the Ending Value.
GENERAL
This ProGroS 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 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 ProGroS Securities, and the terms upon which the ProGroS
Securities are, and are to be, authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the ProGroS
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 ProGroS Securities.
Upon the occurrence of an Event of Default with respect to the ProGroS
Securities, the Trustee or the Holders of the ProGroS Securities may accelerate
the maturity of the ProGroS Securities in the manner and with the effect
provided in the Indenture. The amount payable to a Holder of this ProGroS
Security upon any acceleration permitted by the ProGroS Securities, with respect
to each $10 principal amount thereof, will be equal to: (i) $10, plus (ii) an
additional amount of contingent interest calculated as though the date of early
repayment were the Stated Maturity of the ProGroS Securities.
In case of default in payment at the maturity date of the ProGroS
Securities (whether at their Stated Maturity, at the Call Date or upon
acceleration), from and after the maturity date the ProGroS Securities shall
bear interest, payable upon demand of the beneficial owners thereof, at the rate
of 6.25% 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 ProGroS Securities to the date payment of such amount has
been made or duly provided for. Interest on any overdue Principal Amount or
Supplemental Redemption Amount, as the case may be, shall be payable on demand.
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 ProGroS 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 ProGroS 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 ProGroS Securities of each series at the time
Outstanding, on behalf of the Holders of all ProGroS 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
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of this ProGroS Security shall be conclusive and binding upon such Holder and
upon all future Holders of this ProGroS Security and of any ProGroS 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
ProGroS Security.
No reference herein to the Indenture and no provision of this ProGroS
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 or the Call Price with respect to this
ProGroS 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 ProGroS Security may
be registered on the ProGroS Security Register of the Company, upon surrender of
this ProGroS 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 ProGroS
Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The ProGroS 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 ProGroS Securities are exchangeable for a like aggregate
principal amount of ProGroS Securities in authorized denominations, as requested
by the Holder surrendering the same. If (x) any Depository is at any time
unwilling or unable to continue as Depository and a successor depositary 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 ProGroS Security shall be
exchangeable or (z) an Event of Default has occurred and is continuing with
respect to the ProGroS Securities, this ProGroS Security shall be exchangeable
for ProGroS Securities in definitive form of like tenor and of an equal
aggregate principal amount, in denominations of $10 and integral multiples
thereof. Such definitive ProGroS Securities shall be registered in such name or
names as the Depository shall instruct the Trustee. If definitive ProGroS
Securities are so delivered, the Company may make such changes to the form of
this ProGroS Security as are necessary or appropriate to allow for the issuance
of such definitive ProGroS 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 ProGroS 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 ProGroS Security is registered as the
owner hereof for all purposes, whether or
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not this ProGroS Security is overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
All terms used in this ProGroS Security which are defined in the Indenture
but not in this ProGroS 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
ProGroS Security shall not be entitled to any benefits under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: May 19, 1998
CERTIFICATE OF AUTHENTICATION Merrill Lynch & Co., Inc.
This is one of the Securities of
the series designated therein [Copy of Seal]
referred to in the within-mentioned
Indenture.
The Chase Manhattan Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
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EXHIBIT (5) & (23)
May 19, 1998
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281-1220
Gentlemen:
As your counsel, we have examined a copy of the Restated Certificate of
Incorporation, as amended, of Merrill Lynch & Co., Inc. (hereinafter called the
"Company"), certified by the Secretary of State of the State of Delaware. We
are familiar with the corporate proceedings had in connection with the proposed
issuance and sale by the Company to the Underwriter named in the Terms Agreement
referred to below, pursuant to an Underwriting Agreement dated September 8, 1997
(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 May 13, 1998 (the "Terms Agreement") between the
Company and MLPF&S (the "Underwriter"), of $14,500,000 aggregate principal
amount of the Company's Telebras Indexed Callable Protected GrowthSM Securities
due May 19, 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. 333-44173) relating to the
Securities (the "Registration Statement").
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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).
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We consent to the filing of this opinion as an exhibit to the Registration
Statement and as an exhibit to the Current Report of the Company on Form 8-K
dated May 19, 1998.
Very truly yours,
/s/ Brown & Wood LLP
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