<PAGE>
As filed with the Securities and Exchange Commission on November 25, 1998
Registration No. 333-_____
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
Registration Statement
under
THE SECURITIES ACT OF 1933
MERRILL LYNCH & CO., INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-2740599
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
World Financial Center
North Tower
New York, New York 10281-1334
(212) 449-1000
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
------------
MARK B. GOLDFUS, ESQ.
General Counsel - Corporate Law
Merrill Lynch & Co., Inc.
222 Broadway - 17th Floor
New York, New York 10038
(212) 670-0180
(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 resales of common stock 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
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
Title of securities Amount to Proposed maximum Proposed maximum aggregate Amount of
to be registered be registered offering price per share offering price registration fee(2)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$1.33-1/3 per share,
(including Preferred Stock
Purchase Rights) (1)............ 408,000 shares $65.4375 $26,698,500 $7,422.18
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(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
408,000 Shares
MERRILL LYNCH & CO., INC.
Common Stock
-------------
This prospectus relates to resales of up to 408,000 shares of Common Stock of
Merrill Lynch & Co., Inc. (the "Company"), par value $1.33-1/3 per share
("Common Stock"), by the former owners of Howard Johnson & Company ("Selling
Shareholders"). The Selling Shareholders acquired the shares of Common Stock
which were issued under the terms of a merger agreement pursuant to which a
subsidiary of the Company acquired Howard Johnson & Company in October 1998.
See "Selling Shareholders", "Plan of Distribution", and "Use of Proceeds". The
outstanding shares of the Company's Common Stock are, and the shares offered
hereby will be, listed and principally traded on the New York Stock Exchange
under the symbol "MER". The closing price of the Company's Common Stock on
November 18, 1998, as reported on the New York Stock Exchange was $65.625 per
share.
The shares will not be offered through an underwriter. The Selling Shareholders
have advised the Company that they may sell their shares by means of ordinary
brokers' transactions or block trades on the New York Stock Exchange or any
other exchange on which the Common Stock of the Company is listed from time to
time, in the over-the-counter market or in private sales, at market prices
prevailing at the time of such sales or negotiated prices, and that selling
brokers will be paid usual and customary commissions.
The Company is bearing all expenses relating to the registration and listing of
the shares but each Selling Shareholder will bear the cost of the brokerage
commissions and other expenses incurred by a Selling Shareholder in connection
with the sale of his or her shares.
-------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or 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.
-------------
Merrill Lynch & Co. Inc
250 Vesey Street
New York, New York 10281
(212) 449-1000
The date of this Prospectus is November , 1998.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information...........................................................................2
Description of Merrill Lynch & Co., Inc.'s Business.............................................3
Use of Proceeds.................................................................................4
Market Prices and Dividend Policy...............................................................4
Selling Shareholders............................................................................4
Plan of Distribution............................................................................6
Description of the Company's Common Stock.......................................................6
Incorporation of Certain Documents by Reference.................................................8
Experts.........................................................................................8
Validity of the Company's Common Stock..........................................................9
</TABLE>
The Company will, upon request, provide a copy of any or all of the
documents incorporated herein by reference to each person to whom this
prospectus is delivered. The copies of such documents will be provided without
charge and will not include exhibits (other than exhibits specifically
incorporated by reference). Requests for such copies may be made orally or in
writing and may be directed to Lawrence M. Egan, Jr., Assistant Secretary,
Merrill Lynch & Co., Inc., 100 Church Street, 12th Floor, New York, New York
10080-6512 (telephone number: (212) 602-8435).
2
<PAGE>
DESCRIPTION OF MERRILL LYNCH & CO. INC.'S BUSINESS
- The Company is a holding company that, through its subsidiaries and
affiliates, provides investment, financing, advisory, insurance, and
related services on a global basis.
- The Company's principal subsidiary, Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("MLPF&S"), is one of the largest securities firms in the
world. MLPF&S 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; an
underwriter of selected insurance products and a distributor of investment
products of the Merrill Lynch Asset Management group.
- 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.
- The Company's asset management and investment management activities are
conducted through the Merrill Lynch Asset Management group and Merrill
Lynch Mercury Asset Management, which together constitute one of the
largest asset management organizations in the world. Merrill Lynch
Government Securities Inc. is a primary dealer in obligations issued or
guaranteed by the U.S. Government and its agencies and its
government-sponsored entities.
- Merrill Lynch Capital Services, Inc., Merrill Lynch Derivative Products
AG, and Merrill Lynch International are the Company's primary derivative
product dealers and enter into interest rate, currency, and other
over-the-counter derivative transactions as intermediaries and as
principals.
- The Company's operations in insurance services 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 and purchasing secured
loans, providing currency exchange facilities and other related services,
and furnishing trust, employee benefit, and custodial services.
The principal executive office of the Company is located at World
Financial Center, North Tower, 250 Vesey Street, New York, New York 10281 and
its telephone number is (212) 449-1000.
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. 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.
3
<PAGE>
USE OF PROCEEDS
The Selling Shareholders will receive the proceeds from the sale of the
shares, less any brokerage commissions paid by the Selling Shareholders. The
Company will receive no part of the proceeds from the sale of the shares.
MARKET PRICES AND DIVIDEND POLICY
The Common Stock is listed and principally traded on the New York Stock
Exchange ("NYSE") under the symbol "MER". The Common Stock is also listed on
certain other United States and foreign stock exchanges. There were
approximately 19,217 registered stockholders of the Common Stock as of November
18, 1998. The table below sets forth the high and low sales prices of the Common
Stock as reported for NYSE Composite Transactions and the quarterly cash
dividends declared per share of the Common Stock during the periods indicated.
The Common Stock prices and dividends reflect the retroactive effect of a
two-for-one stock split, effected in the form of a 100% stock dividend, paid on
May 30, 1997.
<TABLE>
<CAPTION>
Price Range Cash Dividends
Low High Declared
--------- --------- --------
<S> <C> <C> <C>
1996
First Quarter.............................................................................. $24 11/16 $31 1/4 $.130
Second Quarter............................................................................. 28 1/8 34 1/16 .150
Third Quarter.............................................................................. 27 1/8 33 3/8 .150
Fourth Quarter............................................................................. 32 9/16 42 9/16 .150
1997
First Quarter.............................................................................. $39 1/4 $52 $.150
Second Quarter............................................................................. 42 1/16 63 7/8 .200
Third Quarter.............................................................................. 59 1/16 75 1/8 .200
Fourth Quarter............................................................................. 61 1/4 78 3/16 .200
1998
First Quarter.............................................................................. $60 7/16 $87 1/4 $.200
Second Quarter............................................................................. 82 1/4 100 .240
Third Quarter.............................................................................. 51 1/2 109 1/8 .240
Fourth Quarter (through November 18, 1998)................................................. 35 3/4 68 .240
</TABLE>
See the cover page for the closing price for the Common Stock on the
NYSE on November 18, 1998.
The Company's Board of Directors presently intends to continue to pay
regular quarterly cash dividends; however, the declaration and payment of future
dividends will be determined by the Board of Directors in its sole discretion.
The Board of Directors' decisions concerning the declaration and payment of
future dividends will depend on the earnings, financial condition and capital
needs of the Company and other factors which the Board of Directors deems
relevant.
SELLING SHAREHOLDERS
All of the Selling Shareholders are former equity owners of Howard
Johnson & Company. The Selling Shareholders acquired their shares under the
terms of an Agreement and Plan of Reorganization, dated as of August 28, 1998,
pursuant to which one of the Company's subsidiaries acquired Howard Johnson &
Company in October 1998. The table below sets forth each Selling Shareholder's
affiliation with the Company and the aggregate number of shares of Common Stock
owned by each Selling Shareholder prior to the offering made hereby:
4
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------- --------------------------------------------------- ------------------------------
Selling Shareholder Affiliation with Company Number of shares of Common
Stock beneficially owned
prior to this offering
- ---------------------------------- --------------------------------------------------- ------------------------------
<S> <C> <C>
Howard J. Johnson Vice Chairman of Group Employee Services 137,196
Brendan O'Farrell Employee, Howard Johnson 137,155
John R. Claus Employee, Howard Johnson 63,917
Kent Buckles Co-Manager of Howard Johnson 13,188
Nancy Greer Financial Officer, Howard Johnson 13,188
Nathan Skow Employee, Howard Johnson 10,550
Dennis R. Olson Employee, Howard Johnson 7,033
Catherine C Allen Employee, Howard Johnson 5,275
Timothy M. Wulfekuhle Employee, Howard Johnson 2,936
Dennis W. Fidler Employee, Howard Johnson 2.461
William S. Small Employee, Howard Johnson 1,881
Kevin Young Employee, Howard Johnson 1,213
William Yee Former Employee, Howard Johnson 1,213
Carla R. Wall Employee, Howard Johnson 1,055
John D. Bostrom Employee, Howard Johnson 879
Kelly J. Hoal Employee, Howard Johnson 756
David E. Olsho Employee, Howard Johnson 703
J. Michael Nash Employee, Howard Johnson 685
Thomas C. Walker Former Employee, Howard Johnson 615
Barbara Weaver Lloyd Employee, Howard Johnson 527
Laura K. Cavender Employee, Howard Johnson 527
James Dolstad Employee, Howard Johnson 527
Joshua G. Kors Former Employee, Howard Johnson 527
William P. Marks Employee, Howard Johnson 410
Allan B. Culverwell Employee, Howard Johnson 351
Nancy M. Rizzuto Employee, Howard Johnson 351
Eric Woodbury Employee, Howard Johnson 351
Robert J. Hasslinger Employee, Howard Johnson 293
O. Rachel Coil Employee, Howard Johnson 263
Joyce M. Oshita Employee, Howard Johnson 175
Thomas B. O'Brien Employee, Howard Johnson 175
Alicia R. Schmidt Employee, Howard Johnson 175
Douglas G. Brownlee Employee, Howard Johnson 175
Thomas E. Kuuksvere Employee, Howard Johnson 175
Michael J. Lorengo Employee, Howard Johnson 175
Fumiko Murakami Employee, Howard Johnson 175
Daniel L. Reddick Employee, Howard Johnson 175
Stephanie L. Sent Employee, Howard Johnson 175
Peggy A. Crist Former Employee, Howard Johnson 175
- ---------------------------------- --------------------------------------------------- ------------------------------
</TABLE>
The maximum number of shares that each Selling Shareholder may sell
pursuant to this prospectus is not currently determined, but the aggregate
number of shares sold pursuant to this prospectus will not exceed 408,000.
Assuming all such shares are sold pursuant to this prospectus, the amount of
Common Stock beneficially owned by the Selling Shareholders as of November 1,
1998, which represents in each case less than 1% of the outstanding Common
Stock, will be unaffected. There can be no assurance, however, that the Selling
Shareholders will sell all or any portion of the shares offered hereby.
5
<PAGE>
PLAN OF DISTRIBUTION
The shares will not be offered through an underwriter. The Selling
Shareholders have advised the Company that they may sell their shares by means
of ordinary brokers' transactions or block trades on the New York Stock Exchange
or any other exchange on which the Common Stock is listed from time to time, in
the over-the-counter market or in private sales, at market prices prevailing at
the time of such sales or negotiated prices, and that selling brokers will be
paid usual and customary commissions.
All expenses relating to the registration and listing of the shares are
being borne by the Company, but the brokerage commissions and other expenses of
sale incurred by a Selling Shareholder will be borne by such Selling
Shareholder.
DESCRIPTION OF THE COMPANY'S COMMON STOCK
The following description sets forth the general terms of the Company's
Common Stock and of the rights attached thereto. The description set forth below
does not purport to be complete and is subject to, and is qualified in its
entirety by reference to, the Restated Certificate of Incorporation and the
Amended and Restated Rights Agreement, each of which is filed as an exhibit to
the registration statement.
General
The Company's authorized capital stock consists of 1,000,000,000 shares
of the Common Stock and 25,000,000 shares of preferred stock, par value $1.00
per share, issuable in series ("Preferred Stock"). As of October 30, 1998, there
were 354,712,004 shares of the Common Stock outstanding. The Common Stock is
traded on the NYSE under the symbol "MER" and also on the Chicago Stock
Exchange, the Pacific Exchange, the Paris Bourse, the London Stock Exchange and
the Tokyo Stock Exchange.
The shares of Common Stock, when issued, are fully paid and
nonassessable. Holders thereof have no preemptive rights to subscribe for any
additional securities which may be issued by the Company. The rights of holders
of Common Stock will be subject to, and may be adversely affected by, the rights
of holders of any Preferred Stock that has been issued and may be issued in the
future. As of August 19, 1998, 17,000,000 depositary shares, each representing a
one-four-hundredth interest in a share of 9% Cumulative Preferred Stock, Series
A, were outstanding. The Board of Directors of the Company may cause additional
shares of Common Stock or Preferred Stock to be issued to obtain additional
financing, in connection with acquisitions, to officers, directors and employees
of the Company and its subsidiaries pursuant to benefit plans or otherwise and
for other proper corporate purposes.
The Company is the principal transfer agent for the Common Stock.
Because the Company is a holding company, its rights and the rights of
holders of its securities, including the holders of the Common Stock, to
participate in the distribution of assets of any subsidiary of the Company upon
the latter's liquidation or recapitalization will be subject to the prior claims
of such subsidiary's creditors and preferred stockholders, except to the extent
the Company may itself be a creditor with recognized claims against such
subsidiary or a holder of the preferred stock of such subsidiary.
Dividends
The Company may pay dividends on the Common Stock out of funds legally
available therefor as, if and when declared by the Board of Directors of the
Company (or a duly authorized committee thereof).
As of the date hereof, subsidiaries of the Company have issued $1.725
billion of perpetual Trust Originated Preferred Securities. In connection with
the issuance of such Trust Originated Preferred Securities, the Company has
agreed, among other things, that if full distributions on such securities have
not been paid or set
6
<PAGE>
apart for payment or the Company is in default of certain related guarantee
obligations, the Company, with certain exceptions, will not declare or pay
dividends, make distributions with respect to, or redeem, purchase or acquire,
or make a liquidation payment with respect to any of its capital stock,
including the Common Stock.
Liquidation Rights
Upon any voluntary or involuntary liquidation, dissolution, or winding
up of the Company, the holders of the Company's Common Stock will be entitled to
receive, after payment of all of its debts, liabilities and of all sums to which
holders of any Preferred Stock may be entitled, all of the remaining assets of
the Company.
Voting Rights
The holders of the Common Stock currently possess exclusive voting
rights in the Company. However, in connection with a plan of arrangement
involving Midland Walwyn, Inc. and the Company ("Plan of Arrangement"), the
Company has issued to a trustee for the benefit of the holders of exchangeable
shares of a subsidiary of the Company ("Exchangeable Shares"), a special voting
share carrying voting rights equal to the number of outstanding Exchangeable
Shares from time to time not owned by the Company and its affiliates. The Board
of Directors of the Company may also specify voting power with respect to any
Preferred Stock which may be issued in the future. Each holder of Common Stock
is entitled to one vote per share with respect to all matters. There is no
cumulative voting in the election of directors. Actions requiring approval of
stockholders generally require approval by a majority vote of outstanding
shares.
The Board of Directors of the Company is currently comprised of 14
directors, divided into three classes, the precise number of members to be fixed
from time to time by the Board of Directors. The directors of the class elected
at each annual election hold office for a term of three years, with the term of
each class expiring at successive annual meetings of stockholders.
Rights Agreement
On December 2, 1997, the Board of Directors of the Company approved and
adopted the Amended and Restated Rights Agreement, which amends and restates the
plan that had originally been adopted in December 1987 (the "Rights Agreement").
Under the Rights Agreement, preferred purchase rights (the "Rights") were
distributed to holders of Common Stock. The Rights will separate from the Common
Stock ten days following the earlier of: (a) an announcement of an acquisition
by a person or group ("acquiring party") of 15% or more of the outstanding
common shares of the Company; or (b) the commencement of a tender or exchange
offer for 15% or more of the shares of Common Stock outstanding.
The Rights are attached to each outstanding share of Common Stock and
will attach to all subsequently issued shares, including Common Stock that may
be delivered pursuant to this Prospectus. The Rights entitle the holder to
purchase fractions of a share ("Units") of Series A Junior Preferred Stock, par
value $1.00 per share (the "Series A Junior Preferred Stock") at an exercise
price of $300 per Unit, subject to adjustment from time to time as provided in
the Rights Agreement. The Units are nonredeemable and have voting privileges and
certain preferential dividend rights. The exercise price and the number of Units
issuable are subject to adjustment to prevent dilution.
If, after the Rights have separated, (i) the Company is the surviving
corporation in a merger with an acquiring party, (ii) a person becomes the
beneficial owner of 15% or more of the Common Stock, (iii) an acquiring party
engages in one or more "self-dealing" transactions, or (iv) an event occurs
which results in such acquiring party's ownership interest being increased by
more than 1%, then each holder of a Right will have the right to purchase, upon
exercise, Units of Series A Junior Preferred Stock (or, under certain
circumstances, Common Stock, cash, property or other securities of the Company)
having a value equal to two times the exercise price of the Right and, in
addition, Rights held by, or transferred in certain circumstances by, an
acquiring party may immediately become void.
7
<PAGE>
In the event that, at any time, (i) the Company is acquired in a
merger or other business combination transaction and the Company is not the
surviving corporation, or (ii) any person consolidates or merges with the
Company and all or part of the Common Stock is converted or exchanged for
securities, cash or property of any other person or (iii) 50% or more of the
Company's assets or earning power is sold or transferred, each holder of a right
shall thereafter have the right to purchase, upon exercise, common stock of the
acquiring party having a value equal to two times the exercise price of the
Right. The Rights expire on December 2, 2007 and are redeemable at the option of
a majority of the Board of Directors of the Company at $.01 per Right at any
time until the tenth day following an announcement of the acquisition of 15% or
more of the Common Stock.
The foregoing provisions of the Rights Agreement may have the effect of
delaying, deferring or preventing a change in control of the Company.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant to Section
13 of the Exchange Act, are hereby incorporated in this prospectus by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 26, 1997.
2. Quarterly Reports on Form 10-Q for the quarters ended March
27, 1998, June 26, 1998, and September 25, 1998.
3. Current Reports on Form 8-K dated January 20, 1998, January
30, 1998, February 4, 1998, February 12, 1998, February 23,
1998, March 19, 1998, April 13, 1998, April 29, 1998, May 19,
1998, June 2, 1998, June 3, 1998, June 24, 1998, June 26,
1998, July 2, 1998, July 14, 1998, July 15, 1998, July 29,
1998, September 3, 1998, September 8, 1998, September 9, 1998,
September 29, 1998, October 13, 1998, October 21, 1998,
October 28, 1998 (two reports), November 3, 1998, and
November 24, 1998.
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.
EXPERTS
The consolidated financial statements and related financial statement
schedules of the Company and its subsidiaries included in the Company's 1997
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 26, 1997 included
in the 1997 Annual Report on Form 10-K, and incorporated by reference herein,
has 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.
8
<PAGE>
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 report included in each such Quarterly Report 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 report 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 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.
VALIDITY OF THE COMPANY'S COMMON STOCK
The validity of the Common Stock offered hereby is being passed upon
for the Company by Brown & Wood LLP, New York, New York.
No dealer, salesperson or other individual has been authorized to give
any information or to make any representations other than those contained or
incorporated by reference in this prospectus in connection with the offer made
by this prospectus and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company. Neither the
delivery of this prospectus nor any sale made hereunder shall under any
circumstance create an implication that there has been no change in the affairs
of the Company since the date hereof. This prospectus does not constitute an
offer or solicitation by anyone in any jurisdiction in which such offer or
solicitation is not authorized or in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation.
9
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION(1)
<TABLE>
<S> <C>
Registration Fee.................................................................................. $7,422
Fees and Expenses of Counsel...................................................................... 2,500
Fees and Expenses of Accountants.................................................................. 3,000
Printing and Engraving............................................................................ 1,000
Miscellaneous..................................................................................... 3,000
-----
Total.......................................................................................... $16,922
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-------
</TABLE>
- -----------
(1) All amounts, other than the registration fee, are estimated and are subject
to future contingencies.
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 such
person is or was a director, officer, employee or agent of the corporation 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 such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
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 full extent authorized
or permitted by law.
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 claim 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 AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
The following exhibits are filed herewith or incorporated herein by
reference.
EXHIBIT DESCRIPTION
NUMBER
4.1 Restated Certificate of Incorporation of registrant, dated
April 28, 1998. (1)
4.2 Amended and Restated Bylaws of registrant, effective as of
April 15, 1997. (2)
4.3 Amended and Restated Rights Agreement, dated as of December 2, 1997
between the registrant and ChaseMellon Shareholder Services, L.L.C. (3)
4.4 Form of certificate representing Common Stock. (4)
5* Opinion of Brown & Wood LLP as to the legality of the registrant's
Common Stock being registered hereby.
15* Letter of Deloitte & Touche LLP with respect to unaudited interim
financial information.
23.1* Consent of Brown & Wood LLP with respect to the legality of securities
being registered (contained in Exhibit 5).
23.2* Consent of Deloitte & Touche LLP, independent auditors, with respect to
financial statements of the registrant.
24* Power of Attorney (included on page II-4)
- -----------
* Filed herewith.
(1) Incorporated by reference to Exhibit 3(i) to the registrant's
quarterly report on form 10-Q for the quarter ended March 27, 1998.
(2) Incorporated by reference to Exhibit 3(i) to the registrant's
quarterly report on form 10-Q for the quarter ended March 28, 1997.
(3) Incorporated by reference to Exhibit 4 to the registrant's current
report on form 8-K dated December 2, 1997.
(4) Incorporated by reference to Exhibit 4(uuuu) to the registrant's
registration statement on form S-3 (File No. 333-44173).
II-2
<PAGE>
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(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;
(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; and
(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 the undertakings set
forth in paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") that
are incorporated by reference into the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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 that 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) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, 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 such
Act and is, therefore, unenforceable. In the event that such 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 such Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant 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 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 24th day of November, 1998.
MERRILL LYNCH & CO., INC.
By: /s/ David H. Komansky
----------------------------------------
David H. Komansky
(Chairman of the Board and
Chief Executive Officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David H. Komansky, E. Stanley O'Neal, 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 24th day of November, 1998.
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
- ---------------------------------------
(Herbert M. Allison, Jr.) Officer and Director
/s/ E. Stanley O'Neal Senior Vice President and
- ---------------------------------------
(E. Stanley O'Neal) Chief Financial Officer (Principal
Financial Officer)
/s/ Michael J. Castellano Senior Vice President and Controller
- ---------------------------------------
(Michael J. Castellano) (Principal Accounting Officer)
II-4
<PAGE>
/s/ W.H. Clark Director
- ---------------------------------------
(W.H. Clark)
/s/ Jill K. Conway Director
- ---------------------------------------
(Jill K. Conway)
/s/ Stephen L. Hammerman Director
- ---------------------------------------
(Stephen L. Hammerman)
/s/ Earle H. Harbison, Jr. Director
- ---------------------------------------
(Earle H. Harbison, Jr.)
/s/ George B. Harvey Director
- ---------------------------------------
(George B. Harvey)
/s/ William R. Hoover Director
- ---------------------------------------
(William R. Hoover)
/s/ Robert P. Luciano Director
- ---------------------------------------
(Robert P. Luciano)
/s/ 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)
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
NUMBER -----------
4.1 Restated Certificate of Incorporation of registrant, dated
April 28, 1998. (1)
4.2 Amended and Restated Bylaws of registrant, effective as of
April 15, 1997. (2)
4.3 Amended and Restated Rights Agreement, dated as of December 2,
1997 between the registrant and ChaseMellon Shareholder
Services, L.L.C. (3)
4.4 Form of certificate representing Common Stock. (4)
5* Opinion of Brown & Wood LLP as to the legality of the registrant's
Common Stock being registered hereby.
15* Letter of Deloitte & Touche LLP with respect to unaudited interim
financial information.
23.1* Consent of Brown & Wood LLP with respect to the legality of
securities being registered (contained in Exhibit 5).
23.2* Consent of Deloitte & Touche LLP, independent auditors, with
respect to financial statements of the registrant.
24* Power of Attorney (included on page II-4)
- -----------
* Filed herewith.
(1) Incorporated by reference to Exhibit 3(i) to the registrant's
quarterly Report on form 10-Q for the quarter ended March 27, 1998.
(2) Incorporated by reference to Exhibit 3(i) to the registrant's
quarterly report on form 10-Q for the quarter ended March 28, 1997.
(3) Incorporated by reference to Exhibit 4 to the registrant's current
report on form 8-K dated December 2, 1997.
(4) Incorporated by reference to Exhibit 4(uuuu) to the registrant's
registration statement on form S-3 (File No. 333-44173).
<PAGE>
[Letterhead of Brown & Wood LLP.]
Exhibit 5
November 24, 1998
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281-1334
Ladies and Gentleman:
We have acted as your counsel and are familiar with the corporate
proceedings had in connection with the proposed issuance and sale by Merrill
Lynch & Co., Inc. (the "Company") of up to 408,000 shares of common stock, par
value $1.33 1/3 per share, of the Company (the "Common Stock").
We have examined such documents and records as we deemed appropriate,
including the following:
(a) a copy of the Restated Certificate of Incorporation of the Company,
certified by the Secretary of State of the State of Delaware.
(b) a copy of the By-Laws of the Company, as amended, certified by the
Secretary of the Company to be a true and correct copy.
(c) a copy of the Company's Registration Statement on Form S-3
registering the Common Stock of the Company filed on the date hereof
(the "Registration Statement"), and
(d) a specimen of the certificate representing the Common Stock in the
form filed or incorporated by reference as an exhibit to the
Registration Statement.
Based upon the foregoing and upon such further investigation as we deem
relevant in the premises, we are of the opinion:
1. The Company has been duly incorporated under the laws of the State
of Delaware.
2. The Common Stock, when issued and delivered as contemplated in the
Registration Statement, will be duly authorized, validly issued, fully paid and
non-assessable.
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
<PAGE>
Exhibit 15
November 24, 1998
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, 1998, June 26, 1998 and September 25, 1998 and
for the three-month periods ended March 27, 1998 and March 28, 1997, the
three- and six-month periods ended June 26, 1998 and June 27, 1997 and the
three- and nine-month periods ended September 25, 1998 and September 26, 1997
as indicated in our reports dated May 8, 1998, August 7, 1998 and November 9,
1998, respectively; because we did not perform an audit, we expressed no
opinion on that information. The financial information as of and for the three-
and nine-month periods ended September 25, 1998 and September 26, 1997 gives
retroactive effect to the 1998 merger of Merrill Lynch and Midland Walwyn Inc.,
which has been accounted for as a pooling-of-interests, as described in Note 2
to the condensed consolidated financial statements.
We are aware that our reports referred to above, which were included in your
Quarterly Reports on Form 10-Q for the quarter ended March 27, 1998, June 26,
1998 and September 25, 1998, are 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
New York, New York
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
- -----------------------------
We consent to the incorporation by reference, in this Registration Statement
of Merrill Lynch & Co., Inc. and subsidiaries (the "Company") on Form S-3
related to the resales of up to 408,000 shares of common stock of the Company
by the former owners of Howard Johnson & Company, of our report dated
February 23, 1998, appearing in the Annual Report on Form 10-K of the Company
for the year ended December 26, 1997 and consent to the reference to us under
the heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
New York, New York
November 24, 1998
