<PAGE>
As filed with the Securities and Exchange Commission on June 8, 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
(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)
------------
Merrill Lynch & Co., Inc. Long-Term Incentive Compensation Plan
for Managers and Producers
(Full title of the plan)
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(2) registration fee
---------------------------- ----------------------- -------------------------- ---------------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$1.33-1/3 per share,
(including Preferred Stock
Purchase Rights)
(1)........... 40,000,000 shares $87.4375 $3,497,500,000 $1,031,762.50
---------------------------- ----------------------- -------------------------- ---------------------------- -------------------
</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), based on the average of the
high and low prices of the Common Stock reported in the consolidated
reporting system on June 4, 1998.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<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 Report on
Form 10-Q for the quarter ended March 27, 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, and June 3, 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 and the Plan 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 authorized capital stock of the Company consists of 1,000,000,000
shares of common stock, par value $1.33-1/3 per share ("Common Stock"), and
25,000,000 shares of preferred stock, par value $1.00 per share, issuable in
series ("Preferred Stock"). The holders of shares of Common Stock are entitled
to one vote for each share held and each share of Common Stock is entitled to
participate equally in dividends out of funds legally available therefor, as and
when declared by the Board of Directors, and in the distribution of assets in
the event of liquidation. The shares of Common Stock have no preemptive or
conversion rights, redemption provisions or sinking fund provisions. The
outstanding shares of Common Stock are, and the shares offered hereby will be,
duly and validly issued, fully paid and nonassessable. Each share is eligible to
participate under the Rights Agreement referenced below and, to the extent
specified therein, to purchase certain securities upon the occurrence of certain
events specified in the Rights Agreement.
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 relative,
participating, optional, or other special rights and the qualifications,
limitations, or restrictions thereof. As of May 15, 1998, there were 17,000,000
Depositary Shares issued each representing a one-four hundredth interest in a
share of the Company's 9% Cumulative Preferred Stock, Series A (the "9%
Preferred Stock"). The 9% Preferred Stock is a single series consisting of
42,500 shares with an aggregate liquidation preference of $425,000,000. As of
May 15, 1998, there were 42,500 shares of 9% Preferred Stock outstanding. From
time to time, Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPF&S") may
occasionally acquire a temporary position in the Depositary Shares. As of May
15, 1998, the Depositary Shares held by MLPF&S for the purpose of resale was not
material. The 9% Preferred Stock has dividend and liquidation preference over
the Common Stock and over the Series A Junior Preferred Stock issuable pursuant
to a Rights Agreement dated as of December 2, 1997 between the Company and
ChaseMellon Shareholder Services, L.L.C.
2
<PAGE>
ITEM 5. INTERESTS OF EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, provides that under certain circumstances a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director, officer, employee or agent of the Company or is or was
serving at its request in such capacity in another corporation or business
association, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Article XIII, Section 2 of the Restated Certificate of Incorporation of
the Company provides in effect that, subject to certain limited exceptions, the
Company shall indemnify its directors and officers to the extent authorized or
permitted by the General Corporation Law of the State of Delaware. The directors
and officers of the Company are insured under policies of insurance maintained
by the Company, subject to the limits of the policies, against certain losses
arising from any claims made against them by reason of being or having been such
directors or officers. Like indemnification and insurance is also provided to
those employees of the Company who serve as administrators of the Plan. In
addition, the Company has entered into contracts with all of its directors
providing for indemnification of such persons by the Company to the full extent
authorized or permitted by law, subject to certain limited exceptions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
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 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)).
5 Opinion of Brown & Wood LLP.
15 Letter re: unaudited interim financial information.
23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5).
23(b) Consent of Deloitte & Touche LLP.
24 Power of Attorney (included on page 5).
3
<PAGE>
ITEM 9. UNDERTAKINGS.
The undersigned 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.
(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.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of New York and State of New York on
the 8th day of June, 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 8th day of June, 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 Officer)
(Michael J. Castellano)
5
<PAGE>
Signature Title
--------- -----
/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)
6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
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 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)).
+ 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).
</TABLE>
+ Filed herewith.
7
<PAGE>
Exhibit 5
[BROWN & WOOD LETTERHEAD]
June 1, 1998
Via Facsimile
- -------------
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281
Dear Sirs:
We have acted as counsel for Merrill Lynch & Co., Inc., a Delaware
corporation (the "Company"), in connection with the proposed filing with the
Securities and Exchange Commission expected to be made on or about June 3,
1998 under the Securities Act of 1933, as amended, of a Registration
Statement on Form S-8 (the "Registration Statement") for the purpose of
registering 40,000,000 shares of Common Stock, par value $1.33 1/3 per share
(including Preferred Stock Purchase Rights) (the "Common Stock") which may be
issued under the Merrill Lynch & Co., Inc. Long-Term Incentive Compensation
Program for Managers and Producers (the "Plan"). In such capacity, we have
examined the Restated Certificate of Incorporation and By-Laws of the
Company, the Plan, and such other documents of the company as we have deemed
necessary or appropriate for the purposes of the opinion expressed herein.
Based upon the foregoing, we advise you that, in our opinion, the shares
of Common Stock issued under the Plan will be legally issued, fully paid and
nonassessable.
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
[DELOITTE & TOUCHE LETTERHEAD]
June 2, 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 for the periods ended March 27, 1998 and March 28, 1997, as
indicated in our report dated May 8, 1998; because we did not perform an
audit, we expressed no opinion on that information.
We are aware that such report referred to above, which is included in your
Quarterly Report on Form 10-Q for the quarter ended March 27, 1998, is
incorporated by reference in this Registration Statement.
We are also aware that the aforementioned report, pursuant to Rule 436(c)
under the Securities Act of 1933, is not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that
Act.
/s/ Deloitte & Touche LLP
<PAGE>
Exhibit 23(b)
[DELOITTE & TOUCHE LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Merrill Lynch & Co., Inc. (the "Company") on Form S-8 of our reports
dated February 23, 1998, appearing in and incorporated by reference in the
Annual Report on Form 10-K of the Company for the year ended December 26,
1997 and to the reference to us under the heading "Experts" in the
Prospectus dated February 18, 1997, which is a part of this Registration
Statement.
/s/ Deloitte & Touche LLP
June 2, 1998
