<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 26, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
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.
MERRILL LYNCH & CO., INC.
WORLD FINANCIAL CENTER
NORTH TOWER
NEW YORK, NEW YORK 10281-1334
(212) 449-2827
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
----------------
REPLACEMENT OPTIONS ISSUED PURSUANT TO THE PLAN OF ARRANGEMENT AMONG
MERRILL LYNCH & CO., INC. AND SUBSIDIARIES AND MIDLAND WALWYN INC.
(Full title of the plan)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT TO PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PRICE PER SHARE OFFERING PRICE(2) REGISTRATION FEE
===============================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par value
$1.33-1/3 per share,
(including Preferred Stock
Purchase Rights) (1)...... 800,000 shares $83.0625 $66,450,000 $19,602.75
===============================================================================================================================
(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), based on the average of the high and low prices of the Common Stock reported
in the consolidated reporting system on August 21, 1998.
===============================================================================================================================
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating key employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended. Such documents and the
documents incorporated by reference herein pursuant to Item 3 of Part II hereof,
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Annual Report of Merrill Lynch & Co., Inc. (the "Company") on Form 10-K
for the fiscal year ended December 26, 1997, Quarterly Reports on Form 10-Q for
the quarters ended March 27, 1998 and June 26, 1998, and 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 15, 1998, June 24, 1998, June 26, 1998,
July 2, 1998, July 14, 1998, July 15, 1998, and July 29, 1998 filed pursuant to
Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act"), are
incorporated by reference herein.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering of the securities registered hereunder shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes hereof to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
The following description sets forth the general terms of common stock, par
value $1.33 1/3 per share ("Common Stock"); and of the preferred stock purchase
rights attached thereto. The descriptions set forth below do not purport to
be complete and are subject to, and are qualified in their entirety by reference
to, the Restated Certificate of Incorporation and the Amended and Restated
Rights Agreement.
GENERAL
The authorized capital stock of the Company consists of 1,000,000,000
shares of Common Stock and 25,000,000 shares of preferred stock, par value $1.00
per share, issuable in series ("Preferred Stock). As of July 31, 1998, there
were 348,250,990 shares of Common Stock outstanding. The Common Stock is traded
on the New York Stock Exchange ("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 Common Stock will be, when issued, fully paid and nonassessable.
Holders thereof have no preemptive rights to subscribe for any additional
securities that 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 July 31, 1998, 17,000,000 Depository Shares, each representing a
one-four-hundredth interest in a share of 9% Cumulative Preferred Stock, Series
A, were outstanding. The 9% Preferred Stock has dividend and liquidation
preference over the Common Stock. The Board of Directors of the Company, without
further action by stockholders, has the authority to issue shares of Preferred
Stock from time to time in one or more series and to fix the powers (including
voting power), designations, preferences as to dividends and liquidation, and
2
<PAGE>
relative, participating, optional, or other special rights and the
qualifications, limitations, or restrictions thereof. 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 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 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 (Service Mark). In
connection with the issuance of such Trust Originated Preferred Securities
(Service Mark), the Company has agreed, among other things, that if full
distributions on such securities have not been paid or set 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 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 are entitled to one vote per share with
respect to all matters. In connection with the Plan of Arrangement involving
Midland Walwyn Inc. (the "Plan of Arrangement"), the Company is issuing to a
trustee for the benefit of the holders of exchangeable shares ("Exchangeable
Shares") of the Company's subsidiary, Merrill Lynch & Co., Canada Ltd., a
Special Voting Share carrying voting rights equal to the number of Exchangeable
Shares outstanding from time to time and 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 that 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
The Board of Directors has approved and adopted an amended and restated
Rights Agreement dated as of December 2, 1997 between the Company and
ChaseMellon Shareholder Services, L.L.C (the "Rights Agreement"). Preferred
purchase rights (the "Rights") distributed to holders of the Common Stock will
separate from the Common Stock 10 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 shares of Common Stock, or (b) the commencement of a
tender or exchange offer for
3
<PAGE>
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 covered by this Registration Statement.
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. 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, defying or preventing a change in control of the Company.
ITEM 5. INTERESTS OF EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, provides that under certain circumstances a corporation may indemnify
any person who was or is a party or threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director, officer, employee or agent of the Company or is or was
serving at its request in such capacity in another corporation or business
association, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Article XIII, Section 2 of the Restated Certificate of Incorporation of the
Company provides in effect that, subject to certain limited exceptions, the
Company shall indemnify its directors and officers to the extent authorized or
permitted by the General Corporation Law of the State of Delaware. The
directors and officers of the Company are insured under policies of insurance
maintained by the Company, subject to the limits of the policies, against
certain losses arising from any claims made against them by reason of being or
having been such directors or officers. 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.
4
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4(a) Restated Certificate of Incorporation of the Company effective as of
April 28, 1998 (incorporated by reference to Exhibit 3(i) to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 27,
1998 (File No. 1-7182) ("1998 First Quarter 10-Q")).
4(b) By-Laws of the Company, effective as of April 15, 1997 (incorporated by
reference to Exhibit 3(ii) to the Company's Quarterly Report on Form
10-Q for the quarter ended March 28, 1997 (File No. 1-7182)).
4(c) Form of Amended and Restated Rights Agreement dated as of December 2,
1997 between the Company and ChaseMellon Shareholder Services, L.L.C.
(incorporated by reference to Exhibit 4 to the Company's Current
Report on Form 8-K dated December 2, 1997 (File No. 1-7182)).
4(d) Certificate of Designation of the Company establishing the rights,
preferences, privileges, qualifications, restrictions and limitations
relating to the Company's Series A Junior Preferred Stock (incorporated
by reference to Exhibit 3(i) to the 1998 First Quarter 10-Q;
specifically, those pages attached as Exhibit A to Exhibit 3(i)).
4(e) Certificate of Designations of the Company establishing the rights,
preferences, privileges, qualifications, restrictions and limitations
relating to the Company's 9% Cumulative Preferred Stock, Series A
(incorporated by reference to Exhibit 3(i) to the 1998 First Quarter
10-Q; specifically, those pages attached as Exhibit B to Exhibit 3(i)).
4(f) Certificate of Designation of the Company establishing the rights,
preferences, privileges, qualifications, restrictions and limitations
relating to the Company's Special Voting Stock.
5 Opinion of Brown & Wood LLP.
15 Letter re: unaudited interim financial information.
23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5).
23(b) Consent of Deloitte & Touche LLP.
24 Power of Attorney (included on page 5).
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-8 and 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 by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
5
<PAGE>
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering hereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions referred to in Item 6 of
this registration statement, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by a
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- -----------
4(a) Restated Certificate of Incorporation of the Company effective as
of April 28, 1998 (incorporated by reference to Exhibit 3(i) to the
Company's Quarterly Report on Form 10-Q for the quarter ended
March 27, 1998 (File No. 1-7182) ("1998 First Quarter 10-Q")).
4(b) By-Laws of the Company, effective as of April 15, 1997
(incorporated by reference to Exhibit 3(ii) to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 28, 1997
(File No. 1-7182)).
4(c) Form of Amended and Restated Rights Agreement dated as of December
2, 1997 between the Company and ChaseMellon Shareholder Services,
L.L.C. (incorporated by reference to Exhibit 4 to the Company's
Current Report on Form 8-K dated December 2, 1997 (File No. 1-7182).
4(d) Certificate of Designation of the Company establishing the rights,
preferences, privileges, qualifications, restrictions and
limitations relating to the Company's Series A Junior Preferred
Stock (incorporated by reference to Exhibit 3(i) to the 1998 First
Quarter 10-Q; specifically, those pages attached as Exhibit A to
Exhibit 3(i)).
4(e) Certificate of Designations of the Company establishing the rights,
preferences, privileges, qualifications, restrictions and
limitations relating to the Company's 9% Cumulative Preferred
Stock, Series A (incorporated by reference to Exhibit 3(i) to the
1998 First Quarter 10-Q; specifically, those pages attached as
Exhibit B to Exhibit 3(i)).
+ 4(f) Certificate of Designation of the Company establishing the rights,
preferences, privileges, qualifications, restrictions and
limitations relating to the Company's Special Voting Stock.
+ 5 Opinion of Brown & Wood LLP.
+ 15 Letter re: unaudited interim financial information.
+ 23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5).
+ 23(b) Consent of Deloitte & Touche LLP.
+ 24 Power of Attorney (included on page 5).
+ Filed herewith.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in The City of New York and State of New York on the 26th day of
August, 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, Herbert M. Allison, Jr., 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 26TH DAY OF AUGUST, 1998.
Signature Title
--------- -----
/s/ David H. Komansky Chairman of the Board, Chief
- --------------------------------- Executive Officer and Director
(David H. Komansky)
/s/ Herbert M. Allison, Jr. President, Chief Operating
- --------------------------------- Officer and Director
(Herbert M. Allison, Jr.)
/s/ E. Stanley O'Neal Executive Vice President and
- --------------------------------- Chief Financial Officer
(E. Stanley O'Neal) (Principal Financial Officer)
/s/ Michael J. Castellano Senior Vice President and
- --------------------------------- Controller (Principal Accounting
(Michael J. Castellano) Officer)
8
<PAGE>
Signature Title
--------- -----
/s/ W.H. Clark Director
- ---------------------------------
(W.H. Clark)
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)
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)
9
<PAGE>
Exhibit 4(f)
MERRILL LYNCH & CO., INC.
--------------------
CERTIFICATE OF DESIGNATION
PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
--------------------
SPECIAL VOTING STOCK
MERRILL LYNCH & CO., INC., a corporation organized and existing under
the laws of the State of Delaware (the "CORPORATION"), HEREBY CERTIFIES that,
the following resolutions were duly adopted by the Board of Directors of the
Corporation and by the Executive Committee of the Board of Directors pursuant to
authority conferred upon the Board of Directors by the provisions of the
Restated Certificate of Incorporation of the Corporation, as amended, (the
"CERTIFICATE OF INCORPORATION"), and pursuant to authority conferred upon the
Executive Committee of the Board of Directors in accordance with Section 141(c)
of the General Corporation Law of the State of Delaware, by Article IV, Section
1 of the Bylaws of the Corporation and by the resolutions of the Board of
Directors set forth herein, at a meeting of the Board of Directors duly held on
June 22, 1998 and by unanimous written consent of the Executive Committee dated
August 18, 1998:
1. The Board of Directors on June 22, 1998 adopted the following
resolutions authorizing the Executive Committee of the Board of Directors to act
on behalf of the Board of Directors in connection with the issuance of the
Special Voting Share and fixing the relative powers, preferences, rights,
qualifications, limitations and restrictions of such share:
"FURTHER RESOLVED, that in connection with the Transaction and the
Arrangement the Corporation, directly or indirectly, through one or more foreign
or domestic subsidiaries of the Corporation, is hereby authorized to undertake
and complete and cause to be undertaken and completed each of the following
actions:
. . . g) the Executive Committee is hereby authorized to take any and
all action that the Executive Committee may deem necessary
or desirable under applicable law, including without
limitation, the execution of one or more Certificates of
Designation under Section 151 of the General Corporation Law
of the State of Delaware, to create and issue one Special
Voting Share in the capital of the Corporation, to have the
rights, privileges, restrictions and conditions
substantially as set forth in and contemplated by the MWI
Plan of Arrangement and the Voting and Exchange Trust
Agreement, in
<PAGE>
each case, as discussed at this meeting, such share to be
issued for an aggregate consideration of $1.00, and upon
receipt by the Corporation of the consideration therefor
such Special Voting Share shall be issued to the trustee
under the Voting and Exchange Trust Agreement hereinafter
approved, to be held and exercised by such trustee as
therein contemplated;"
2. The Executive Committee of the Board of Directors, by unanimous
written consent to corporate action dated August 18, 1998 adopted the following
resolution pursuant to authority conferred upon the Executive Committee by the
resolution of the Board of Directors set forth in paragraph 1:
"RESOLVED, that Special Voting Stock of the Corporation is hereby
authorized, and the Executive Committee hereby fixes the number, powers,
designations, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations and restrictions of such
Special Voting Stock as follows:
I. AUTHORIZED NUMBER AND DESIGNATION. There is hereby created
out of the authorized and unissued shares of Preferred Stock of the Corporation
a series of Preferred Stock designated as "Special Voting Stock". The number of
shares constituting the Special Voting Stock shall be one (the "Special Voting
Share").
II. DIVIDENDS. Neither the holder nor, if different, the owner
of the Special Voting Share shall be entitled to receive Corporation dividends
in its capacity as holder or owner thereof.
III. VOTING RIGHTS. The holder of record of the Special Voting
Share shall be entitled to all of the voting rights, including the right to vote
in person or by proxy, of the Special Voting Share on any matters, questions,
proposals or propositions whatsoever that may properly come before the
shareholders of the Corporation at a Corporation meeting or in connection with a
Corporation consent.
IV. LIQUIDATION PREFERENCE. Upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, the holder of the
Special Voting Share shall be entitled to receive out of the assets of the
Corporation available for distribution to the stockholders, an amount equal to
$1.00 before any distribution is made on the common stock of the Corporation or
any other stock ranking junior to the Special Voting Share as to distribution of
assets upon liquidation, dissolution or winding-up.
V. RANKING. The Special Voting Share shall, with respect to
rights on liquidation, winding up and dissolution, rank (i) senior to all
classes of common stock of the Corporation and (i) junior to any other class of
capital stock of the Corporation.
2
<PAGE>
VI. REDEMPTION. The Special Voting Share shall not be subject
to redemption, except that at such time as no exchangeable shares ("Exchangeable
Shares") of Merrill Lynch & Co., Canada Ltd. (other than Exchangeable Shares
owned by the Corporation and its affiliates) shall be outstanding, the Special
Voting Share shall automatically be redeemed and canceled, for an amount equal
to $1.00 due and payable upon such redemption.
VII. OTHER PROVISIONS. Pursuant to the terms of that certain
Voting and Exchange Trust Agreement by and between Merrill Lynch & Co., Canada
Ltd., the Corporation, and Montreal Trust Company of Canada, as such agreement
may be amended, modified or supplemented from time to time (the "TRUST
AGREEMENT"):
(i) During the term of the Trust Agreement, the Corporation may
not, without the consent of the holders of the Exchangeable Shares (as
defined in the Trust Agreement), issue any shares of its Special Voting
Stock in addition to the Special Voting Share;
(ii) the Special Voting Share entitles the holder of record to a
number of votes at meetings of holders of Corporation common shares equal
to the number of Exchangeable Shares (as defined by the Trust Agreement)
outstanding from time to time (other than the Exchangeable Shares held by
the Corporation and its affiliates);
(iii) the Trustee (as defined by the Trust Agreement) shall
exercise the votes held by the Special Voting Share pursuant to and in
accordance with the Trust Agreement;
(iv) the voting rights attached to the Special Voting Share shall
terminate pursuant to and in accordance with the Trust Agreement; and
(v) the powers, designations, preferences and relative,
participating, optional and other special rights, and the qualifications,
limitations and restrictions of such Special Voting Share shall be as
otherwise provided in the Trust Agreement."
3
<PAGE>
Exhibit 5
[Letterhead of Brown & Wood LLP]
August 24, 1998
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281-1334
Ladies and Gentlemen:
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 800,000 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
[LETTERHEAD OF DELOITTE & TOUCHE LLP]
August 26, 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 and June 26, 1998 and for the three-month
periods ended March 27, 1998 and March 28, 1997 and the three- and six-month
periods ended June 26, 1998 and June 27, 1997 as indicated in our reports
dated May 8, 1998 and August 7, 1998, respectively, because we did not
perform an audit, we expressed no opinion on that information.
We are aware that such reports referred to above, which are included
in your Quarterly Reports on Form 10-Q for the quarters ended March 27, 1998
and June 26, 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 the Act.
/s/ Deloitte & Touche LLP
<PAGE>
Exhibit 23(b)
[LETTERHEAD OF DELOITTE & TOUCHE LLP]
INDEPENDENT AUDITORS' CONSENT
- -----------------------------
We consent to the incorporation by reference in this Registration Statement
of Merrill Lynch & Co., Inc. (the "Company") on Form S-8 related to the
Replacement Options issued pursuant to the Plan of Arrangement among Merrill
Lynch & Co., Inc. and subsidiaries and Midland Walwyn Inc. 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.
/s/ DELOITTE & TOUCHE LLP
August 26, 1998
